# SCIENTIFIC ADVISER TO THE MINISTRY OF DEFENCE AND ORS. ETC. ETC v. S. DANIEL AND ORS. ETC. ETC

- **Citation:** [1990] 2 S.C.R. 440
- **Court:** Supreme Court of India
- **Decided:** 1990-04-10
- **Case number:** __ Civil Appeal Nos. 1210 ~ to 1217 of 1980
- **Bench:** S. Ranganathan, K.N. Saikia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/scientific-adviser-to-the-ministry-of-defence-and-ors-etc-etc-v-s-daniel-and-10703
- **Pages:** 23

## Headnote

Central Civil Services (Classification, Control and Appeal) Rules,
1965: Rules 2(a), 9( 1), Proviso, 12, 13 and Schedule Part V, Item No.
XIV.
Ministry of Defence-Research Laboratories attached to Ministry-Civil posts-Class III Employees-'Appointing Authority'-
Authority to Institute Disciplinary proceedings-Who is-Specified
Jlppointing authority, Scientific Adviser-Delegation of power of
appointment to Director-Appointments made by Director-Initiation
D of disciplinary proceedings by Director-Validity of.
Rule 2(a)-Only envisage the authority to whom the power of
appointment has been delegated and not both Delegator and Delegatee-Expression "Appointing Authority"-Scope and meaning ofWhether means highest of authorities mentioned in sub-clause (i) to
E
(iv )-Expression "whichever is highest authority"-whether governs
only sub-clause (iv) of Rule 2(a) and not other clauses-Purpose of
Rule 2ja) explained.
Rule 9( 1)-Proviso--Power of Appointment-Delegation ofConsequences of Delegation-Both authorities viz. Delegator and
f'
Delegatee whether can be treated as 'authority empowered to appoint.'
Railway Servants (Discipline & Appeal) Rules, 1968: Rules
2( l)(a), 2( l)(c), 7 & 8/Railway Establishment Code.
Railway Servanrs-Group C · and D employees-Appointing
G authority-Descip/inary authority-Who is-Competent appointing
authority, General Manager-Delegation of power of .appointment to
Zonal Officers/Divisional Superintendents-Appointments made by
Divisional Superintendents/Zonal Officers-Initiation of Disciplinary
Proceedings by Divisional Superintendents-Validity of.
Administrative Law-Delegation of power of Appointment440
MINISTRY OF DEFENCE v. S. DANIEL
441
Consequences of Delegation-Scope of Delegate's power-Theory of
imputation to the principal the acts of the delegate-Whether applicable
to Service Rules which make distinction between power to appoint and
power to take disciplinary proceedings-Power to take disciplinary
proceedings-Whether adjunct to power of appointment.
General Clauses Act, 1897: Section 16-Applicability of-Whether confers power on the factual appointing authority to conduct disciplinary proceedings or impose penalties.
Practice and Procedure: Special Leave Petition-Dismissal in
limine_:_Supreme Court-Whether precluded from considering the issue
in appeal on merits.
The respondents were holding class III civil posts in the Research
Laboratories attached to the Ministry of Defence. Under the Central
Civil Services (Classification, Control and Appeal) Rules, 1965, their
'appointing authority' was the Scien.tific Adviser. But the appointing
authority, the Scientific Adviser, delegated his power of appointment to the
Director under Proviso to Rule 9(1). Pursuant to the delegated power,
the Director appointed the respondents. Subsequently, the Director
initiated disciplinary proceedings against the respondents.
Similarly for the respondents, in the connected appeals, belonging
to Group C and D employees of the Railways the competent authority,
prescribed under the Railway Establishment Code, to make appointments was the General Manager. But the General Manager delegated his
power of appointment to Zonal Officers/Divisional Superintendents.
Pursuant to the delegated power the Divisional Superintendents
appointed the respondents. Subsequently, disciplinary proceedings
were initiated against the respondents by the Divisional Superintendents.
The respondents challenged the disciplinary proceedings before
the Central Administrative Tribunal contending that they were without
jurisdiction since the Director and the Divisional Superintending were
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D
E
F
not competent to initiate the disc!J>linary proceedings. The Central
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Administrative Tribunal accepted the plea and quashed the proceedings.
In appeals to this Court it was contended on behalf of the respondents fi) that the Director was not competent to initiate disciplinary
proceedings against them and only the Scientific Adviser, a higher
authority, could do so;

## Text

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SCIENTIFIC ADVISER TO THE MINISTRY OF DEFENCE
AND ORS. ETC. ETC.
v.
S. DANIEL AND ORS. ETC. ETC.
APRIL 10, 1990
[S. RANGANATHAN AND K.N. SAIKIA, JJ.]
Central Civil Services (Classification, Control and Appeal) Rules,
1965: Rules 2(a), 9( 1), Proviso, 12, 13 and Schedule Part V, Item No.
XIV.
Ministry of Defence-Research Laboratories attached to Ministry-Civil posts-Class III Employees-'Appointing Authority'-
Authority to Institute Disciplinary proceedings-Who is-Specified
Jlppointing authority, Scientific Adviser-Delegation of power of
appointment to Director-Appointments made by Director-Initiation
D of disciplinary proceedings by Director-Validity of.
Rule 2(a)-Only envisage the authority to whom the power of
appointment has been delegated and not both Delegator and Delegatee-Expression "Appointing Authority"-Scope and meaning ofWhether means highest of authorities mentioned in sub-clause (i) to
E
(iv )-Expression "whichever is highest authority"-whether governs
only sub-clause (iv) of Rule 2(a) and not other clauses-Purpose of
Rule 2ja) explained.
Rule 9( 1)-Proviso--Power of Appointment-Delegation ofConsequences of Delegation-Both authorities viz. Delegator and
f'
Delegatee whether can be treated as 'authority empowered to appoint.'
Railway Servants (Discipline & Appeal) Rules, 1968: Rules
2( l)(a), 2( l)(c), 7 & 8/Railway Establishment Code.
Railway Servanrs-Group C · and D employees-Appointing
G authority-Descip/inary authority-Who is-Competent appointing
authority, General Manager-Delegation of power of .appointment to
Zonal Officers/Divisional Superintendents-Appointments made by
Divisional Superintendents/Zonal Officers-Initiation of Disciplinary
Proceedings by Divisional Superintendents-Validity of.
Administrative Law-Delegation of power of Appointment440
MINISTRY OF DEFENCE v. S. DANIEL
441
Consequences of Delegation-Scope of Delegate's power-Theory of
imputation to the principal the acts of the delegate-Whether applicable
to Service Rules which make distinction between power to appoint and
power to take disciplinary proceedings-Power to take disciplinary
proceedings-Whether adjunct to power of appointment.
General Clauses Act, 1897: Section 16-Applicability of-Whether confers power on the factual appointing authority to conduct disciplinary proceedings or impose penalties.
Practice and Procedure: Special Leave Petition-Dismissal in
limine_:_Supreme Court-Whether precluded from considering the issue
in appeal on merits.
The respondents were holding class III civil posts in the Research
Laboratories attached to the Ministry of Defence. Under the Central
Civil Services (Classification, Control and Appeal) Rules, 1965, their
'appointing authority' was the Scien.tific Adviser. But the appointing
authority, the Scientific Adviser, delegated his power of appointment to the
Director under Proviso to Rule 9(1). Pursuant to the delegated power,
the Director appointed the respondents. Subsequently, the Director
initiated disciplinary proceedings against the respondents.
Similarly for the respondents, in the connected appeals, belonging
to Group C and D employees of the Railways the competent authority,
prescribed under the Railway Establishment Code, to make appointments was the General Manager. But the General Manager delegated his
power of appointment to Zonal Officers/Divisional Superintendents.
Pursuant to the delegated power the Divisional Superintendents
appointed the respondents. Subsequently, disciplinary proceedings
were initiated against the respondents by the Divisional Superintendents.
The respondents challenged the disciplinary proceedings before
the Central Administrative Tribunal contending that they were without
jurisdiction since the Director and the Divisional Superintending were
A
B
c
D
E
F
not competent to initiate the disc!J>linary proceedings. The Central
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Administrative Tribunal accepted the plea and quashed the proceedings.
In appeals to this Court it was contended on behalf of the respondents fi) that the Director was not competent to initiate disciplinary
proceedings against them and only the Scientific Adviser, a higher
authority, could do so; the expression "whichever authority is the highH
442
SUPREME COURT REPORTS
[ 1990] 2 S.C.R.
A
est authority" in Rule 2(a) governs only sub-clause (iv) of Rule and thi<
expression seeks to ensure that though the power to appoint may have beeu
delegated under the Provm to Rule 9( 1 ), such delegation does not extend to
the exercise of disciplinary powers; (ii) that appointnients made by the Scientific Adviser should he treated as .appOi.'ltmeuts made by the Scientific
Adviser himself with the ~tthat'a subordinate authority could uot initiate
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disciplinary action against the respondent.
Also, in the connected railway cases, it was couteuded on behalf of the
respondents
that
notwithstanding
the
delegation
of powers
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appointment by the General Manager, he, being the highest amongst the
various appointing authorities, was alone competent to institute disciplinary
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proceedings.
On behalf of the appellant, Union of India, 'it was contended: (i) that
on a proper interpretation of the rules, the Director Zonal Officer /Divisional
Superintendents were competent to initiate the proceedings and (ii) that;
irrespective of the provi.<ions in the rules, a person who makes an appointD ment has always an implied power of suspending or dismissing the appointee
under section 16 of the General Clauses Act, 1897.
Disposing of the appeals, this Court,
HELD: 1. The delegation of the power of appointment under the Proviso to rule 9( 1) does uot necessarily deprive the disciplinary authority
E
specified in the main part of the rule from exercising the delegated power of
appointment in any case or class of cases. [459B I
Godawari S. Paru/ekar v. State of Maharashtra, [1966) 3 S.C.R. 314;
followed.
Ramachandra Rao v. State, [1984] 3 S.L.R. 768; Halsbury's Laws of
England, 4th Edn., pare 32; Wade on Administrative Law, 6th Edn., P.
F
365, referred to.
·
King Emperor v. Shibnath Banerjee, 72 I.A. 241; Huth v. Clarke,
(1890] 25 Q.B.D. 391, cited.
2. A proper and harmonious reading of rules 2(a) and rule 9
G
shows that sub-rule (a) of rule 2 only envisages the authority lo whom
the power of appointment has been delegated under rule 9 and not both
the delegator and the delegatee. Rule 2(a) directs the ascertainment of
the authorities specified, in such of clauses (i) to (iv) of the rule as may
he applicable to a particular case and designates the highest of them as
'the 'appointing authority'. It envisages only one authority as falling
H , tinder each of these clauses and not more. An inter-pretation of clause
'
MINISTRY OF DEFENCE v. S. DANIEL
443
(i) or (ii) as contemplating more than one authority runs counter to the
tenor of the rule. The said rule does not contemplate any. authority
other than the one empowered to appoint a pe~son belonging to the post
or grade which the concerned government employees holds. In that
sense the two parts of clause (i) and clause (ii) are not to be read
disjnnctively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and ( c) to the post and consider
the highest of them. One has to restrict oneself to the post or grade of
the government servant concerned and invoke clause (i) or (ii) as the
case may be. f459F-H; 460C-Dl
Dharma Dey v. Union of India, [1980) 2 S.C.R. 554; Om Prakash
Gupta v. Union of India, A.LR. 1975 S.C. 1265, el!'plained and held
inapplicable.
Murishwar v. Union, [1976) S.L.C. 82; Union v. Choudhary,
[ 1976] 2 S.L.R. 819; Choudhary v. Union, [1977) All India Services Law
Journal I, cited.
.2.1 In Rnle 2(a), not only do tl\e words "whichever is the highest
authority" occur in the Rules separately from the four suh-clauses hut the
t~rms thereof also clearly envisaKe a determination of one who, among
several authorities, is the highest. It, therefore, clearly means that the
'authorities' falling under the definition in sub-clauses (i) to (iv) have to
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be ascertained and the highest amonll. them taken as the disciplinary
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authority for purposes of rule J2(2)(b). [449B)
3. The appointing authOrity under the Schedule is a high-ranking
authority and, in an organisation like the Railways for instance, it will
be virtually impossible for him to consider each and every case of
appointment of; or disciplinary action against, all the Class III or Class
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IV employees in the organisation. It is indeed this realisation that has
rendered necessary a delegation of the power of appointment and cannot
be ignored, in the absence of compelling reasons, in the matter of disciplinary powers. [461C-D)
4. In the context of rules 2(a) and 12(2) which outline a contrast
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between the person who is empowered to appoint and the person who
actually appoints, it is impossible to treat the Scientific Adviser/General
Manager as the person who appointed the respondents. l 456H; 457 Al
Roop Chand v. State, [1963] Supp. 1 S.C.R. 539, held inapplicable.
H
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444
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SUPREME COURT REPORTS
[ 1990] 2 S.C.R.
B. Daniel & Ors. v. Union of India, [1980] 2 S.L.R. 477, referred
to.
4.1 A delegation of power does dot enhance or improve the
hierarchical status of the delegate. [ 456G I
B
Krishna Kumar v. Electrical Engineer Central Raliway & Ors.,
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I 1980] 1 S.C.R. 50, referred to.
5. It is doubtful how far, in the context of the service rules which
make a clear distinction between the power to appoint and the power to
take disciplinary proceedings, the latter can be said to be adjunct or
ancillary to the former. [4570-E]
Daluram Pannalal Modi v. Commissioner, [1964] ~ S.C.R. 286,
held inapplicable.
b. Section 16 of the General Clauses Act, 1897 confers on the
factual appointing authority, in terms, only a power to suspend or
dismiss and not a power to conduct disciplinary proceedings or impose
the various other kinds of penalties envisaged in the rules. To say that
the latter power also comes within S. 16, one would need to make a
further assumption that the power to suspend or dismiss is a more.
comprehensive power which would include the power to impose smaller
penalties too and this assumption is said to run counter to the rules
which deal with the two powers separately. The said section applies only
"unless a different intention appears". It applies only where a general
power of appointment i~ conferred under an Act or Regulation. Here
the Act or Regulation i.e. the Rules envisage the power of appointment
conferred by them on certain authorities being delegated. The power
co11ferred on the delegatees is circumscribed by the instrument of such
delegation and cannot be extended beyond its ambit. [454B-E]
Heckett Engineering Co. v. Workmen, [1978] I S.C.R. 693;
Gafoor Mia and Ors. v. Director, DMRL, [1988] 2 CAT 277, referred to.
7. The dismissal in limine of the Special Leave Petition cannot.predude
the Tribunal or Court from considering the issue in the appeals on
merits. f452H; 453A]
CIVIL APPELLATE JURISDICTION: __ Civil Appeal Nos. 1210
~
to 1217 of 1980 etc.
H
From the Judgment and Order dated the 22nd April, 1980 of the
·-y:·
MINISTRY OF DEFENCE v. S. DANIEL (RANGANATHAN, J]
445
Andhra Pradesh High Court in Writ Appeal Nos. 499, 500 to 505 of
1979 and 144 of 1980.
A
Anil Dev Singh, G.B. Pai, K. Madhva Reddy, P.A. Choudhary,
Heniant Sharma, P. Parmeshwaran, B. Parthasarthi, C. Y.. Subba Rao,
Abbas Naqvi, R.P. Gupta, N.K. Nair, B. Kanta Rao, Chandrashekhar
'Panda, A.T.M. Sampath, P.N. Ramalingam, R.D. Upadhyay, Ms.
B
S. Janani and A. Subba Rao for the appeating parties. ·
The Judgment of the Court was delivered by
RANGANATHAN, J. In the Special Leave Petitions, we grant
leave and proceed to dispose of all these appeals by a common order.
It may be noted that, except in C.A. 3044/89, the Union of India is the
appellant.
The short common question arising in this large batch of appeals
is: who is the authority competent to initiate disciplinary proceedings
against the Government servi!Ilts who are the parties here (hereinafter
referred to, for convenience, .as 'the respondents')? There are two sets
of appeals before us, one arising out ofproceedings in the Ministry of
Defence, and the other in the Ministry of Railways. The rules govern- •
ing the former are the Central Civil Services (Classification, Control &
Appeal) Rules (hereinafter referred to as "the Civil Services rules")
and those governing the latter are the Railway Servants (Discipline
and Appeal) Rules (hereinafter referred to as 'the Railway rules').
S/Shri G.B. Pai, Anil Dev Singh, P.A. Choudhary, Madhava
Reddy, B. Kanta Rao, A. Subba Rao, A.T.M. Sampath, R.D.
Upadhyay and others have argued the matters at length and in great
detail and we proceed to dispose of these appeals after considering all
the aspects urged before us.
We shall take Daniel's case (C.A. Nos. 1210 to 1217 of 1980) as
illustrative of the cases under the Civil Service Rules. Though the
employees in these and connected matters are Class Ill employees of
Research Laboratories attached to the Ministry of Defence (shortly
referred to as DRDL, DMAL, DERL and DLRL), they are serving in
civil posts therein and, hence, governed by the Civil Service Rules.
They had been appointed by the Director of the Laboratory. Disciplinary proceedings were initiated against tliem by the Director. There is,
therefore, no possibility of any eventual violation of the constitutional
prohibition in Article 311(1) against a Government servant being disc
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446
SUPREME COURT REPORTS
[1990) 2 S.C.R.
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missed or removed from office by an authority subordinate to the
appointing authority. Still, the respondents contend that the Director
is not competent to initiate disciplinary proceedings against them and
that it is only the Scientific Adviser to the Government of India-a
higher authority-that can do so. This co~tention, based on the relevant provisions of the Civil Service Rules, proceeds on the following
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lines.
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0
•
Rules 12 and 13 of the Civil Service Rules deal with this topic and
read as follows:
"12. Disciplinary Au,thorities-(l)The President may
impose any of the penalties specified in rule 11 on any
Government servant.
(2) Wilh!Jut prejudice to the provisions of sub-rule (1), but
subject to the provisions of sub-rule (4), any of the
.--./ .
penalties specified in rule 11 may be imposed on-
(a) xx
xx
xx
(b) a person appointed to a Central Civil post included in
the General Central Service, by the authority specified in
this behalf by a general or special order of the President or,
/
where no such order has been made, by the appointing
~
authority or the authority specified in the Schedule in this
behalf.
,A3. Authority to institute proceedings-
(1) The President or any other authority empowered by
him by general or special order may-
(a) institute disciplinary proceedings against any Government servant;
(b) direct a disciplinary authority to institute disciplinary
proceedings against any Government servant on whom that
alsciplinary authority is competent to impose under I these
rules any of the penalties specified in rule 11.
(2) A disciplinary authority competent under these rules to
impose any of the penalties specified in clauses (i) to (iv) of
""--·
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MINISTRY OF DEFENCE v. S. DANIEL [RANGANATHAN, J]
447
rule 11 may institute disciplinary proceedings against any
Government servant for the imposition of any of the
penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent
under these rules to impose any of the latter penalties."
In these cases, the disciplinary proceedings have been instituted
neither by the President nor by an authority directed by him to do so,
nor by any other authority empowered by him, by general or special
order,to do so. The disciplinary authority (D.A.) in the present case,
therefore, has to be in terms of rule 12(2)(b), ''the appointing authority or the authority specified in the schedule in this behalf". The
"authority specified in the schedule in this behalf", admittedly, is the
Scientific Adviser to the Government.of India. The question next is
whether the Director is the "appointing authority" in the case of the
re$pondents. This matter is dealt within Rule 9(1) read with its proviso
whiclt<"ead thus:
"9. Appointments to other Services and Posts-
(1) All al'Pointments to the Central Civil Services (other
than the General Central Service) Class II, Class III and
Class IV, shall be made by authorities specified in this
behalfin the Schedule."
"Provided that in respect of Class III and Class IV civilian
services, or civilian posts m the Detence services appointments may be made by officers empowered in this behalf by
the aforesaid authorities."
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The 'appointing authority' specified in the schedule referred to in
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Rule 9( 1), in the case of the respondents, is, again, the Scientific
Adviser to the Government of India: But, by a notification made in
exercise of the power conferred by the proviso, he had authorised the
Director to make appointments to Class III and Class IV posts in his
establishment and, it is common ground, the Director had appointed
the respondents in exercise of that power. In other words, there is no
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dispute that the Director is the "appointing authority" of the respondents not only in the sense that he was empowered to appoint them
under rule 9 but also in the sense that he actually made these appointments. Nevertheless, it is said, he is not the 'appointing authority' in
the case of the respondents within the meaning of rule 12(2)(b). In
support of this argument, attention is drawn to rule 2 which contains
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448
SUPREME COURT REPORTS
I 1990) 2 S.C.R.
the definitions of various expressions for the purposes of the rules
which will be applicable in the absence of anything to the contrary in
the relevant context. Rule 2(a) reads:
"(a) 'appointing authority' in relation to a Government
servant means-
(i) the authority empowered to make appointments to the
Service of which the Government servant is for the time
being a member or to the grade of the service in which the
Government servant is for the time being included, or
(ii) the authority empowered to make appointments to the
posts which the Government servant for the time being
holds, or
(iii) the authority which appointed the Government ser-
-~
·
van! to such Service, grade or post, as the case may be, or
(iv) where the Government servant having been a permanent member of any other Service or having substantively
held any other permanent post, has been in continuous
employment of the Government, the authority which
appointed him to that Service or to any grade in that
/
Service or to that post.
--"
whichever authority is the highest authority."
It will be noticed that this clause refers to two classes of persons: (a)
the authority empowered to make appointments to the service, grade
F or post with which we are concerned-sub clauses (i) and (ii)-and (b)
the autherity who actually appointed the Government servant to the
service, grade or post in question-sub clauses (iii) and (iv). Each of
these is sub-divided into two categories but we need not, for the
purposes of the present cases, bother about this sub-division. Stopping here, it wili be seen, as pointed out already, that the Director falls
G under both the above categories as he is empowered to appoint the
respondents by virtue of the power delegated to him under the proviSo
to rule 9( 1) and as he has also factually appointed them. But, it is said,
the Scientific Adviser to the Government of India, notwithstanding his
having delegated his power to the Director under the proviso, also
continues to be an authority empowered to appoint persons to the
I-I posts in question under rule 9(1) read with the schedule. So under the
MINISTRY OF DEFENCE v. S. DANIEL [RANGANATIJAN, JI
449
first category of persons indicated above as referred to in rule 2(a)
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there are two authorities the Scientific Adviser and the Director and
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under the second category we have the Director. And, here comes the
crucial point on which the respondents bank their entire case: the last
few words of rule 2(a) make it clear and specific that the expression
'appointing authority' means the highest of the authorities mentioned
in sub-clauses (i) to (iv). So, it is said, the 'appointing authority' for
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purposes of rule 12(2)(b ), in the instant case, will be the highest of the
three authorities we have referred to above, viz. the Scientific Adviser
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to the Government of India. In short, it is contended that, by using the
"'\
last few significant words in rule 2(a), the Civil Rule_s seek to ensure
that, though the power to appoint persons to a particular post, grade
or service may be delegated under the proviso to rule 9(1), snch delec
gation should not extend to the exercise of disciplinary powers. It is
the clear intention of the rule-makers, it is argued, that disciplinary
"-....
powers should continue to vest in the appointing authority mentioned
in the schedule read with rule 9( 1) and should not be allowed to be
exercised by his delegate under the proviso. The emphasis, it is said, is
not on the person who has made, or is empowered to make, the
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appointment of the particular civil servant in question; it is on the
person who makes, or is empowered to make, appointment of persons
generally to the post, grade or service to which the civil servant in
question belongs. It is, therefore, urged that though one Class III
\__
servants in the laboratory may be appointed by the Director and
another by the Scientific Adviser (who can make such appointment
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despite the delegation), the disciplinary authority for both and, indeed
for all dass III servants in the Laboratory, must be the same and
cannot be different. This interpretation of rule 2(a), it is said, is not
only quite plain on the language used but has also received the
>
approval of this Court in Dharam Dev v. Union, [1980] 2 SCR 554.
Further force is sought to be lent to the argument by pointing out that
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the expression 'appointing authority' is used only in rules 2, 10, 12 and
24 of, and the schedule to, the Civil Service rules and that, to refuse to
give effect to the definition for purposes of rule 12 is to render the
definition clause virtually otiose. This plea was upheld by the Andhra
Pradesh High Court in Danial's case [1980] 2 SLR 477 and, following
it, in the other cases before us. A similar view has been taken in the
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Delhi High Court in Murishwar v. Union, [ 1976] Service Law Cases 82
in Union v. Tarlok Singh, cited therein, and by the Calcutta High
y
Court in Union v. Choudhury, [1976] 2 SLR 819. But a contrary view
'
has been taken by the M.P. High Court in Chaudhury v. Union, [1977]
All India Services Journal 1) and by the Andhra Pradesh High Court in
W.A. 793/83 and W.P. 2441/79.
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450
SUPREME COURT REPORTS
[1990] 2 S.C.R.
The position in respect of ordnance factories which has to be
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co~idered in some of the cases is identical, except for the nomenclatures of the respective authorities, and does not need any separate
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discusSion.
To tum, next, to the railway cases, we are concerned with apB pointees to Group C and Group D of the services, which correspond to
class III and class IV of the Civil Services. In respect of these persons,
the rel.evant provisions are as follows:
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"2(1)(a) 'Appointing Authority', m relation to railway
servant, means:
{i) the authority empowered to make appointments to. the
sewice of which the railway servant is, for the time being,· a
mt\mber or to the grade of the Service in which the railway
se(Vant is, for the time being, included, or
(ii) the authority empowered to make appointments to the
post which the Railway servant, for the time being holds,
or
(iii) the authority which appointed the Railway servant to
such Service, grade or post, as the case may be, or
(iv) where the Railway servant having been a permanent
member of any other Service or having substantively held
any other permanent post, has been in continuous employment under \he Ministry of Railways, the authority which
appointed him to that service or to any grade in that
Service or to that post , whichever authority is highest
authority".
"2{1)(c) 'Disciplinary Authority' means-
(i) in relation to the imposition of a penalty on a Railway
Servant, the authority competent, under these rules, to
impose on him that penalty;
(ii) in relation to rule 9 and clauses (a) and {b) of sub-rule
(1) of Rule 11 in the case of any Gazetted Railway servant,
an authority competent to impose any of the penalties
specified inrule 6.
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MINISTRY OF DEFENCE v. S. DANIEL [RANGANATHAN, J)
451
(iii) in relation to rule 9 in the case of any non-gazetted
Railway servant, an authority competent to impose any of
the major penalties specified in rule 6;
(iv) in relation to clauses (a) and (b) of sub-rule ( 1) of Rule
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11, in the case of a non-gazetted Railway servant, an
authority competent to impose any of the penalties
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specified in Rule 6".
"7. Disciplinary authorities-
(1) The President may impose any of the penalties specified in Rule 6 on any Railway Servant.
(2) Without prejudice to the provisions of sub-rule (1), any
of the penalties specified in Rule 6 may be imposed on a
Railway servant by the authorities as specified in Schedules
I, II and III.
(3) The discplinary authority in the cases of a Railway
Servant officiating in a higher post, shall be determined
with reference to the officiating post held by him at the
time of taking action" .
.Js. Authority to institute proceeding.-
(1) The President, or any other authority-empowered by
him, by general or special order, may-
(a) institute disciplinary proceedings against any Railway
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servant;
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(b) direct a disciplinary authority to institute disciplinary
proceedings against any Railway servant on whom that disciplinary proceedings against any Railway servant on
whom that disciplinary authority is competent to impose,
under these rules, any of the penalties specified in rule 6.
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(2) A disciplinary authority competent under these rules to
impose any of the penalties specified in clauses (i) to (iv) of
Rule 6 may, subject to the provisions of clause (c) of subrule ( 1) of rule 2, institute disciplinary proceedings against
any Railway servant for imposition of any of the penalties
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specified in clauses (v) to (ix) of rule 6, notwithstanding
that such disciplinary authority is not competent under
these rules, to impose any of the latter penalties".
Schedule II referred to in rule 7(2) lays down that an order of .compulsory retirement, removal or dismissal from service may be ordered,
in the case of a Group C or Group D Railway servant b)' the appointing authority or authority equivalent in rank or any higher authority
and Note 2 to the Schedule mentions that'such an authority may also
impose any lower penalty. Under rule 275 of the Railway Establishment Code (Vol. I), which de.als with the. recruitment, training and
promotion of Group C and Group D railway servants, the authority
competent to make a first appointment is the General Manager or any
lower authority to whom he may delegate the power. The General
Manager of each Railway has delegated his powers under several
heads. One set of the Schedule of Delegation of Powers by the
General Manager of the Southern Railway in Establishment Matters
has been set out in some detail in the order of the Central Administrative Tribunal (CAT) in the case of Gafoor Mia and Ors. v. Director,
DMRL, (1988] 2 CAT 277, (which is one of the orders in appeal before
us.) It is neither useful nor necessary to repeat them here in extenso.
Here also, the argument i1: that, notwithstanding the delegation of
powers of appointment of Group C and Group D employees to various
other zonal officers, the General Manager has.not divested himself of
the power to make such appointments and continues to be the
'appointing authority'. Being the highest among the various appointing authorities, he alone stands vested with the power to institute
disciplinary proceedings and impose penalties. It is, therefore, submitted that the disciplinary· proceedings, in the cases under this batch,
initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gaffoor Mia's
case, already referred to, and the decisions in the other matters before
_..._
us following the said decision.
This, in crux, is the argument for the respondents. Before dealing with this argument, it will perhaps be helpful to steer clear of
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certain minor arguments addressed by either side:
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(a)· Sri Kanta Rao submitted that the same view as in
Gafoor Mia, had been taken by the C.A.T. in Supriya Roy's,
case and that this Court has already, on 21. 9 .88, dismissed
S.L.P. Nos. 9956-57 of 1988 filed against the said order. This
appears to be correct but the dismissal in limine of that S .L.P.
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MINISTRY OF DEFENCE v. S. DANIEL [RANGANATHAN, JI
453
cannot preclude us from considering the issue in these appeals on
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merits. It is seen that, in C.A. 3963/88, an application has been
I(•
filed for revocation, on this ground, of the leave granted by this
Court. We dismiss this application.
(b) Much ·store is set, on behalf of the respondents, by the
decision of this Court in Dharam Dev's case '(supra). It is no
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doubt true that the decision refers to the provisions of Rule 2(a)
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and applies the same to the case before it. But the context in
which the case arose was a very simple and straight forward one.
....,
In that case, the employee in question had in fact been appointed
by the Comptroller and Auditor General of India (CAG) and he
was the highest authority in regard to the service in question. AU c
that the decision pointed out was that, in view of this and of
Article 311, no authority lower in rank to the CAG was compe-
""-
tent to take action against the appellant before the Court. The
Court had no occasion to consider the type of controversy that
has arisen her~ and did not consider either the interaction of
sub-clauses (i) and (iii) of clause (a) of rule 2 or the situation as
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to whether there could be more than one authority empowered
to appoint persons to a post, grade or service within the meaning
of sub-clause (i) or (ii) of clause (a) itself. This decision is therefore not helpful-and certainly not conclusive-to solve the issue
.\...-
arising before us. The same is the position in regard to the decision of this Court in Om Prakash Gupta v. Union, A.LR. 1975
E
S.C. 1265 which seems to have been relied on, for the Union,
before the CAT. In that case, the appellant was a temporary
Government servant not holding a specified post. All that this
,
Court pointed out was that, if the definition in rule 2(a) was not
applicable to such a person, the word 'appointing authority',
understood in its plain and natural meaning would mean the
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authority which appointed him-viz. the Director General of the
Geological Survey of India. If, on the other hand, the terms of
rule 2(a) were applicable-the person empowered to appoint the
appellant being one Sri Mo.ghe and the person who appointed
him being the Director General-the latter, who was the higher
authority, would be the 'appointing authority'. This, again, was
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an instance of a simple and direct application of the rule, involving no complications as here and cannot be treated as deciding
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the issue before us.
(c) On behalf of the appellant, the Union of India, reliance
is placed on S. 16 of the General Clauses Act, 1897. It is argued
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[1990] 2 S.C.R.
that, irrespective of the provisions in the rules, a person who
makes an appointment has always an implied power of suspending or dismissing him-vide: Heckert Engineering Co. v. Workmen, [ 1978] 1 S.C.R. 693. There are three difficulties in accepting this argunient. In the first place, even if the argument is valid,
it confers on .the factual appointing authority, in terms, only a
power to suspend or dismiss and not a power to conduct disciplinary proceedings or impose the various other kinds of penalties
envisaged in the rules. To say that the latter power also comes
within S. 16, one would need to make a further assumption that
the power to suspend or dismiss is a more comprehensive power
which would include the power to impose smaller penalties too
and this assumption is said to run counter to the rules which deal
with the two powers separately. Secondly, S. 16 applies only
"unless a different intention appears". If the construction placed
on the Civil Service Rules and the Railway rules on behalf of the
respondents is correct, then the rules express a different intention and it would therefore not be possible to rest on the general
principle enunciated by S. 16. The contention has, therefore, to
be examined independently and S. 16 cannot be an answer to it.
Thirdly, S. 16 applies only where a general power of appointment is conferred under an Act or Regulation. Here the Act or
Regulation (i.e. the Rules) envisage the power of appointment
conferred by them on certain authorities being delegated. The
power conferred on the delegatees is circumscribed by theiinstrument of such delegation and cannot be extended beyond its
ambit, as observed by the C.A.T. in Gafoor Mia's case (supra).
S. 16, therefore, does not come to the rescue of the appellants.
( d) An argument was raised at the earlier stages, that the
words "whichever is the highest authority" governs only subclause (iv) of rule 2(a) of the Civil Service Rules and not the
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other' sub-clauses. This contention cannot bear a moment's
scrutiny both because the above words occur in the Rules separately from the four sub-clause but also because the terms
thereof clearly envisage a determination of one who, among
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several authorities, is the highest. It, therefore, clearly means
that the 'authorities' falling under the definitions in sub-clauses
(i) Jo (iv) have to be ascenained and the highest among them
taken as the disciplinary authority for purposes of rule 12(2)(b ).
-iThe above discussion narrows down the controversy before us to
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a very short issue: Can it be said, where the appointing authority under
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MINISTRY OF DEFENCE v. S. DANIEL [RANGANATHAN, J)
455
rule 9( 1) has delegated his powers of appointment under the proviso,
that both the authorities should be treated as the "authority
empowered to appoint" persons to the post, grade or service or does
this expression get restricted only to the latter, i.e. the delegatee authority? If both fall under the above description within the meaning of
sub-clause (i), the respondent's plea that the definition in rule 2(a) will
mark out only the Scientific Adviser/General Manager would be correct. On the other hand, if the second of the above interpretation is
correct, the appellant's stand will have to be upheld.
Learned counsel for the respondents vehemently contend that
the authority specified under the schedule read with rule 9( 1) does not
lose his authority to appoint merely by the act of delegating his powers
to a subordinate authority. Such delegation no doubt empowers the
subordinate authority to appoint but does not take away the power of
appointment conferred on the authority specified in the schedule read
with rule 9(1).
Before dealing with the above contention, we may make reference to certain decisions cited by counsel on the consequences of such
delegation. In Roop Chand v. State, [1963] Suppl. 1 SCR 539 the
petitioner had filed an appeal from the order of the Settlement Officer
to the State Government under S. 21(4) of the relevant Act. But the
State Government, having delegated-under S. 41(1) of the Act-the
right to hear and dispose of the appeals made to it to the Assistant
Director (Consolidation), the petitioner's appeal was disposed of by
the said Officer who allowed the same. The Respondent thereupon
sought to invoke a power conferred on the State Government under
S. 42 of the Act to revise the orders passed by the authorities under the
Act. On a writ petition filed before it the Supreme Court quashed the
revisional order passed by the State Government on the simple logic
that the order passed under section 41(1) read with section 21(4) was
>-
an order of the State Government (though, in fact, passed by a dele·
gate) and could not be "revised" by the State Government itself under
S. 42. The Andhra Pradesh High Court speaking through P.A. Choudary, J. in Daniel's case (since reported in 1988 2 S.L.R. 477) thought
that the principle of the case was of no avail to the Union of India
which appears to have contended, on the strength thereof, that "though
the disciplinary action was initiated by the Director, it must be treated
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as having been taken by the Scientific Adviser himself because the
action of the Director, being that of a delegate, must be regarded in
law as that of the principal himself". The learned Judge repelled the
argument, observing:
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"The ratio of the aforesaid case is that the action of
the delegate can be treated as that of the principal himself.
Applying the ratio of the above case to the facts of our
case, it can be said at the most that the orders of appointments made by the Director, by reason of the statutory
delegation made by the Scientific Adviser under Rule 9( I),
are those of the Scientific Adviser himself, on the basic that
the exercise, of the power delegated to an authority may be
treated as an exercise of the power by the principal himself.
Accepting the principle, we cannot agree with the
contention of the learned Counsel that the Director's exercise of the disciplinary power against the petitioners should
be treated as an exercise of disciplinary authority by the
Scientific Adviser himself. The reason is too simple.
Firstly, the statute deals, throughout its provisions, with
the disciplinary power as a different and separate power
from the power to appoint. Secondly, the disciplinary
power is never delegated by the Scientific Adviser to the
Director either under Rule 9(1) or any other rule of the
CCA Rules. It follows, therefore, that the theory of imputation to the principal the acts of the delegate can have no
application to such a situation as the one before us. We,
therefore, find that the Roop Chand's case is of no avail to
the respondents."
Though Sri Choudhary, who appeared before us for the respondents
seemed to have second thoughts about this, we are of opinion that the
observations extracted above set out the correct position and that the
Roop Chand decision is of no help. An attempt has been made before us
to invoke the Roop Chand principle in a different way to support the
case of the employees and argue that their appointments made by the
Director should be treated as appointments made by the Scientific
Adviser himself and that, therefore, no disciplinary action can be initiated against them by any one other than the Scientific Adviser himself. We do not think that this argument can be accepted. As observed
in Kishore Kumar's case [1980] 1 S.C.R. 50 a delegation of power does
not enhance or improve the heirarchical status of the delegate. The
rule in Roop Chand as to the nature and character of the power exercised by a delegate was enunciated in a particular context. It cannot be
treated as a general principle applicable to all situations. In particular,
in the context of rules 2(a) and 12(2) with which we are concerned and
which outline a contrast between the person who is empowered to
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MINISTRY OF DEFENCE v. S. DANIEL [RANGANATHAN.