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PETITIONER: SCIENTIFIC ADVISER TO THE MINISTRY OF DEFENCEAND ORS. ETC. E

       Vs.

RESPONDENT: S. DANIEL AND ORS. ETC. ETC.

DATE OF JUDGMENT10/04/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. SAIKIA, K.N. (J)

CITATION:  1990 SCR  (2) 440        1990 SCC  Supl.  374  JT 1990 (2)   544        1990 SCALE  (1)731

ACT:     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  proceed- ings--Who  is--Specified appointing  authority,   Scientific Adviser--Delegation  of  power  of  appointment  to   Direc- tor--Appointments made by Director--Initiation of  discipli- nary 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 of-Whether means highest of authorities mentioned in sub-clause  (i)  to (iv)--Expression "whichever  is  highest authority"--whether  governs  only sub-clause (iv)  of  Rule 2(a) and not other clauses--Purpose of Rule 2(a) explained.     Rule  9(1)--Proviso--Power  of   Appointment--Delegation of-Consequences of Delegation--Both authorities viz. Delega- tor  and  Delegatee  whether can be  treated  as  ’authority empowered to appoint.’     Railway  Servants  (Discipline & Appeal)  Rules,   1968: Rules 2(1)(a), 2(1)(c), 7 & 8/Railway Establishment Code.     Railway  Servants--Group C’ and D  employees--Appointing authority--Desciplinary  authority--Who  is--Competent   ap- pointing authority, General Manager--Delegation of power  of appointment        to       Zonal        Officers/Divisional Superintendents--Appointments  made by  Divisional  Superin- tendents/Zonal Officers--Initiation of Disciplinary Proceed- ings by Divisional Superintendents--Validity of. Administrative Law--Delegation of power of Appointment-- 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  pro- ceedings--Whether adjunct to power of appointment.     General  Clauses Act, 1897.’  Section  16--Applicability of--Whether confers power on the factual appointing authori- ty to conduct disciplinary proceedings or impose penalties.     Practice and Procedure: Special Leave Petition--Dismiss- al in limine--Supreme Court--Whether precluded from  consid-

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ering the issue in appeal on merits.

HEADNOTE:     The  respondents were holding class III civil  posts  in the  Research Laboratories attached to the Ministry  of  De- fence.  Under  the Central Civil  Services  (Classification, Control and Appeal) Rules, 1965, their ’appointing  authori- ty’ was the Scientific Adviser. But the appointing  authori- ty, the Scientific Adviser, delegated his power of  appoint- ment to the Director under Proviso to Rule 9(1). Pursuant to the delegated power. the Director appointed the respondents. Subsequently,  the Director initiated disciplinary  proceed- ings 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 Establish- ment 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 Superin- tendents.     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 not competent to initiate the disciplinary proceedings. The Central Administrative  Tribu- nal accepted the plea and quashed the proceedings.     In  appeals to this Court it was contended on behalf  of the  respondents (i) 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 high- 442 est authority" in Rule 2(a) governs only sub-clause (iv)  of Rule  and  this expression seeks to ensure that  though  the power  to appoint may have been delegated under the  Proviso to  Rule 9(1), such delegation does not extend to the  exer- cise of disciplinary powers; (ii) that appointments made  by the  Scientific Adviser should be treated  as  .appointments made by the Scientific Adviser himself with the result  that a  subordinate  authority could  not  initiate  disciplinary action against the respondent.     Also,  in the connected railway cases, it was  contended on  behalf  of the respondents  that   notwithstanding   the delegation  of  powers  of appointment by the General Manag- er,  he,  being the highest amongst the  various  appointing authorities,  was alone competent to institute  disciplinary 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,  irre- spective of the provisions in the rules, a person who  makes an appointment 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 not necessarily  deprive the disciplinary authority specified in the main part of the rule  from exercising the delegated power of appointment  in

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any case or class of cases. [459B]     Godawari S. Parulekar v. State of Maharashtra, [1966]  3 S.C.R. 314; followed.     Ramachandra  Rao  v. State, [1984] 3 S.L.R.  768;  Hals- bury’s Laws of England, 4th Edn., pare 32; Wade on  Adminis- trative Law, 6th Edn., P. 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 shows that sub-rule (a) of rule 2 only envisages  the authority to whom the power of appointment has been delegat- ed  under rule 9 and not both the delegator and the  delega- tee. Rule 2(a) directs the ascertainment of the  authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the  high- est of them as the ’appointing authority’. It envisages only one authority as failing under each of these clauses and not more. An inter-pretation of clause 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 person 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 disjunctively  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  re- strict oneself to the post or grade of the government  serv- ant concerned and invoke clause (i) or (ii) as the case  may be. [459F-H; 460C-D]     Dharma  Dey v. Union of India, [1980] 2 S.C.R.  554;  Om Prakash  Gupta  v. Union of India, A.I.R.  1975  S.C.  1265, explained and held inapplicable.     Murishwar  v. Union, [1976] S.L.C. 82; Union  v.  Choud- hary,  [1976] 2 S.L.R. 819; Choudhary v. Union,  [1977]  All India Services Law Journal 1, cited.     2.1  In Rule 2(a), not only do the words  "whichever  is the  highest authority" occur in the Rules  separately  from the  four  sub-clauses but the terms  thereof  also  clearly envisage a determination of one who, among several  authori- ties, is the highest. It, therefore, clearly means that  the ’authorities’  falling under the definition  in  sub-clauses (i)  to  (iv) have to be ascertained and the  highest  among them  taken  as the disciplinary authority for  purposes  of rule 12(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  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 compel- ling reasons, in the matter of disciplinary powers. [461C-D]     4. In the context of rules 2(a) and 12(2) which  outline a  contrast 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. [456H; 457A]     Roop  Chand  v. State, [1963] Supp. 1 S.C.R.  539,  held inapplicable. 444 B.  Daniel  & Ors. v. Union of India, [1980] 2  S.L.R.  477, referred to.

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   4.1  A delegation of power does not enhance  or  improve the hierarchical status of the delegate. [456G]      Krishna Kumar v. Electrical Engineer Central Railway  & Ors., [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. [457D-E]     Daluram  Pannalal Modi v. Commissioner, [1964] 2  S.C.R. 286, held inapplicable.       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 assump- tion that the power to suspend or dismiss is a more  compre- hensive power which would include the power to impose small- er 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  appoint- ment  is conferred under an Act or Regulation. Here the  Act or Regulation i.e. the Rules envisage the power of  appoint- ment conferred by them on certain authorities being delegat- ed.  The power conferred 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] 1 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  preclude the Tribunal or Court from considering  the issue in the appeals on merits.[452H; 453A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:_ Civil Appeal Nos. 12  10 to 12 17 of 1980 etc. From  the Judgment and Order dated the 22nd April,  1980  of the 445 Andhra  Pradesh High Court in Writ Appeal Nos. 499,  500  to 505 of 1979 and 144 of 1980.     Anil  Dev Singh, G.B. Pai, K. Madhva Reddy, P.A.  Choud- hary, Hemant Sharma, P. ParmeshWaran, B. Parthasarthi,  C.V. 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.S. Janani and A. Subba Rao for  the  appearing 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 servants who are  the parties here (hereinafter referred to, for  conven- ience, as ’the respondents’)? There are two sets of  appeals before us, one arising out of proceedings in the Ministry of Defence,  and  the other in the Ministry  of  Railways.  The rules  governing the former are the Central  Civil  Services

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(Classification,  Control & Appeal) Rules  (hereinafter  re- ferred 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 1,980) as illustrative of the cases under the Civil  Service Rules.  Though the employees in these and connected  matters are Class III 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 them by  the  Director. There  is, therefore, no possibility of any eventual  viola- tion  of  the constitutional prohibition in  Article  311(1) against a Government servant being dis- 446 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 contention, based on the relevant provisions of the Civil Service Rules, proceeds on the following lines.     Rules  12  and 13 of the Civil Service Rules  deal  with this topic and read as follows: "12.   Disciplinary   Authorities--(1)The   President    may impose  any  of the penalties specified in rule  11  on  any Government servant. (2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penal- ties 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. 13. 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  Govern- ment servant; (b)  direct a disciplinary authority to institute  discipli- nary proceedings against any Government servant on whom that disciplinary 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 447 rule  11 may institute disciplinary proceedings against  any Government  servant for the imposition of any of the  penal- ties  specified in clauses (v) to (ix) of rule  11  notwith- standing  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  empow-

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ered  by  him, by general or special order, to  do  so.  The disciplinary  authority (D.A.) in the present  case,  there- fore,  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  Gov- ernment of India. The question next is whether the  Director is  the "appointing authority" in the case of  the  respond- ents.  This  matter is dealt within Rule 9(1) mad  with  its proviso which read thus: "9. Appointments to other Services and Posts-- (1)  All appointments 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 behalf in the Schedule." "Provided that in respect of Class III and Class IV civilian services, or civilian posts m the Defence services  appoint- ments  may be made by officers empowered in this  behalf  by the aforesaid authorities."     The  ’appointing  authority’ specified in  the  schedule referred  to in 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 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 authori- ty’  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 448 the  definitions of various expressions for the purposes  of the  rules which will be applicable in the absence  of  any- thing  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  servant 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 or post with which we are  concerned--sub clauses  (i)  and (ii)--and (b) the authority  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-divi-

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sion.  Stopping  here, it will be seen, as pointed  out  al- ready, that the Director falls under both the above  catego- ries 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 Direc- tor  under  the proviso, also continues to be  an  authority empowered to appoint persons to the posts in question  under rule 9(1) read with the schedule. So under the 449 first category of persons indicated above as referred to  in rule  2(a) there are two authorities the Scientific  Adviser and  the Director and 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 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  to the Government of India. In short, it is contended that,  by using the last few significant words in rule 2(a), the Civil Rules  seek  to  ensure that, though the  power  to  appoint persons to a particular post, grade or service may be  dele- gated under the proviso to rule 9(1), such delegation 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  appoint- ing 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  appoint- ment  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  Scien- tific  Adviser  (who can make such appointment  despite  the delegation), the disciplinary authority for both and, indeed for  all class 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  Der  v. Union, [1980] 2 SCR 554.  Further  force  is sought  to be lent to the argument by pointing out that  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 Delhi High Court in Murishwar v. Union,  [1976] Service Law Cases 82 in Union v. Tarlok Singh, cited  there- in,  and by the Calcutta High 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. 450     The position in respect of ordnance factories which  has to  be considered in some of the cases is identical,  except

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for  the  nomenclatures of the respective  authorities,  and does not need any separate discussion.     To  turn, next, to the railway cases, we  are  concerned with  appointees  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 relevant  provi- sions are as follows: "2(1)(a)  ’Appointing  Authority’, in  relation  to  railway servant, means: (i)  the  authority empowered to make  appointments  to  the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant 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 the Ministry of Railways, the authority which appoint- ed 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  penal- ties specified in rule 6. 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  11, in the case of a non-gazetted Railway servant,  an authority competent to impose any of the penalties 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  disciplinary 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". "8. 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 servant; (b)  direct a disciplinary authority to institute  discipli- nary  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. (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

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penalties 452 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 by 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  tower penalty.  Under rule 275 of the Railway  Establishment  Code (Vol.  I),  which deals 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  dele- gate  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  Administra- tive  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 neces- sary to repeat them here in extenso. Here also, the argument is  that,  notwithstanding the delegation of powers  of  ap- pointment of Group C and Group D employees to various  other zonal  officers, the General Manager has. not divested  him- self 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  help- ful  to steer clear of certain minor arguments addressed  by either side:       (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. 453 cannot  preclude  us  from considering the  issue  in  these appeals  on  merits. It is seen that, in  C.A.  3963/88,  an application  has been filed for revocation, on this  ground, of the leave granted by this Court. We dismiss this applica- tion.     (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 doubt true that the decision refers to the  provisions of Rule 2(a) 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. All that  the  decision pointed out was that, in view of this and of Article 311, no authority  lower  in rank to the CAG was competent  to  take

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action against the appellant before the Court. The Court had no  occasion  to consider the type of controversy  that  has arisen  here and did not consider either the interaction  of sub-clauses  (i)  and (iii) of clause (a) of rule 2  or  the situation as to whether there could be more than one author- ity 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 certain- ly 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.I.R. 1975 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  authori- ty’, understood in its plain and natural meaning would  mean the 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 Moghe 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 an instance of a  simple  and direct  application of the rule, involving no  complications as  here and cannot be treated as deciding 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 454 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: Heckett Engineering  Co. v.  Workmen, [1978] 1 S.C.R. 693. There are three  difficul- ties in accepting this argument. 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  app.  lies only  "unless  a different intention appears". If  the  con- struction 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  Regu- lation  (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 the  instrument  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

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and not the 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 several authorities, is the highest. It,  there- fore, clearly means that the ’authorities’ falling under the definitions  in  sub-clauses (i) to (iv) have to  be  ascer- tained and the highest among them taken as the  disciplinary authority for purposes of rule 12(2)(b).     The above discussion narrows down the controversy before us to a very short issue: Can it be said, where the appoint- ing authority under 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 fail 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  Gov- ernment  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 delegate) 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 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: 456           "The  ratio  of  the aforesaid case  is  that  the action of the delegate can be treated as that of the princi- pal  himself.  Applying the ratio of the above case  to  the

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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(1), are those of the Scientific  Adviser  him- self, 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  exer- cise  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  re- spondents." Though  Sri  Choudhary, who appeared before us for  the  re- spondents 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 discipli- nary  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  Ku- mar’s case [1980] 1 S.C.R. 50 a delegation of power does not enhance or improve the hierarchical 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  ap- plicable 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 457 appoint and the person who actually appoints, it is impossi- ble  to treat the Scientific Adviser/General Manager as  the person who appointed the respondents.     Reference has not been made to Daluram Pannalal Modi  v. Commissioner,  [1963] 2 SCR 286. This was a case as  to  the interpretation of the scope of a delegate’s power. S. 19  of the Madhya Pradesh Sales Tax Act, 1958, empowers the Commis- sioner,  if  he is satisfied that any sale  or  purchase  of goods, has escaped assessment, to make a reassessment. S. 30 of  the Act, however, enabled the Commissioner to  "delegate any of his powers and duties under the Act" and the  Commis- sioner,  exercising this power, delegated to  the  Assistant Commissioner his powers and duties to make an assessment  or reassessment and to exercise all other powers under Sections 18, 19 and 20. An assessee challenged a reassessment  notice issued by an Assistant Commissioner contending that what had been  delegated was only the power of reassessment  but  not the  duty  of being satisfied that there was  an  escapement which,  according to the assessee, still remained  with  the Commissioner.  This  argument was repelled and it  was  held that  the requirement of being satisfied was an  adjunct  of the power to initiate reassessment proceedings. That princi-

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ple  cannot  apply here as 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 discipli- nary  proceedings, the latter can be said to be  adjunct  or ancillary to the former.     This  leads  us to the question whether  the  appointing authority  specified in the schedule can exercise his  power of appointment to a post, cadre or service even after he has delegated  that power to a subordinate authority  under  the proviso.  An answer to this question in the  affirmative  is contended  for on the strength of certain authorities  which may now be considered. In Godawari S. Parulekar v. State  of Maharashtra,  [1966] 3 SCR 3 14 the appellant had  been  de- tained by an order passed by the State Government under rule 30 of the Defence of India Rules. 1t was contended on behalf of the appellant, inter alia, that the State Government  had earlier  issued a notification delegating its  powers  under rule 30 to the District Magistrate and was so not  competent to  make  the order of detention in question.  Reliance  was placed for this argument on the observations of the Judicial Committee in King Emperor v. Shibnath Banerjee, 72 I.A. 241. These observations were distinguished and the above  conten- tion was repelled. It was held that by issuing the notifica- tion  in  question,  the State Government  had  not  denuded itself of the power to act under r. 30 (vide Willis J. in 458 Huth  v.  Clarke, [1890] 25 QBD 39 1. Learned  counsel  also referred  to  the decision of the Karnataka  High  Court  in Ramachandra  Rao v. State, [1984] 3 SLR 768. This case  does hold  that a power which is delegated can be exercised  both by the delegator and the delegatee, though the Supreme Court decisions  cited therein as deciding this issue do not  seem to help. Halsbury 4th Edn., para 32, citing Huth v.  Clarke, (supra), summarises the English Law on the subject thus: "In  general, a delegation of power does not  imply  parting with authority. The delegating body will retain not only the power to revoke the grant but also power to act concurrently on matters within the area of delegated authority except  in so far as it may already have become bound by an act of  its delegate". However,  the following passage from Wade on  Administrative Law  (Sixth Edition) at p. 365 would seem to  indicate  that the  position is not quite clear and may need detailed  con- sideration in an appropriate case: "A statutory power to delegate will normally include a power to revoke the delegation when desired. While the  delegation subsists it may be arguable whether the delegating authority is  denuded of its power or is able to exercise  it  concur- rently  with the delegate. This question arose  where  under statutory  authority  the executive committee  of  a  county council  delegated  to a sub-committee its  powers  to  make regulations  for the control of rabies; but before the  sub- committee had done anything the executive committee, without revoking  the delegation, itself issued regulations for  the muzzling  of  dogs. These regulations were  upheld,  but  on inconsistent  grounds, one judge holding that the  executive committee  had resumed its power and the other that  it  had never parted with them, and that ’the word "delegate"  means little  more than an agent. In a later case the latter  view prevailed, on the ground that ’one cannot divest oneself  of one’s  statutory duties’. But the contrary was held  by  the Court  of Appeal where a minister had formally delegated  to local authorities his power to requisition houses. By  doing this  he  had  for the time being divested  himself  of  his powers, so that an invalid requisition by the local authori-

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ty  could not be cured by their acting in his name; and  the court rejected the contention that 459 delegation  was a form of agency. The Local  Government  Act 1972  expressly  preserves the powers of a  local  authority concurrently with those delegated to its commits, etc." We do not think it is necessary to go into this question. In view  of the decision in Godawari (supra), we  shall  accept the general proposition that the delegation of the power  of appointment  under the proviso to rule 9(1) does not  neces- sarily  deprive the disciplinary authority specified in  the main part of the rule from exercising the delegated power of appointment in any case or class of cases.     Still  the basic question that remains is,  whether,  in the context of rule 2(a) read with rule 9(1), the  reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to rule 9 or to both  the authorities  falling  under the main part 01’ rule  9(1)  as well  as the proviso. The sheet anchor of  the  respondent’s case  is that the expression ’appointing authority’ is  used in  very few of the rules. One of them is rule 12 and  there can,  therefore, be no valid reason to refuse to  apply  the definition clause in the context of those rules. It is urged that,  by holding the person specified in the schedule  also to  be the ’appointing authority’ as defined in  rule  2(a), none  of the other rules relating to appeal,  revision  etc. become  redundant as urged on behalf of the  appellants.  We agree  with the respondents that the expression  ’appointing authority’ in rule 12 should have the meaning attributed  to it  in rule 2(a). But what is the real and true  interpreta- tion  of Rule 2(a)? What does that sub-rule talk of when  it refers  to a ’person empowered to make the  appointment’  in question? These words clearly constitute a reference to rule 9.  Does rule 2(a) refer then to the authority empowered  by the  schedule to make the appointments or the  authority  to whom  he  has delegated that power or both? We think,  on  a proper and harmonious reading of rule 2(a) and rule 9,  that sub-rule (a) of rule 2 only envisages the authority to  whom the power of appointment has been delegated under rule 9 and not  both  the delegator and the delegate. We have  come  to this conclusion for a number of reasons. In the first place, it  is  clear on the plain language of rule  2(a),  that  it directs  the ascertainment of the authorities specified,  in such of clauses (i) to (iv) of the rule as may be applicable to  a particular case and designates the highest of them  as the ’appointing authority’. It envisages only one  authority as  falling  under each of these clauses and not  more.  The respondent’s  contention  which involves  interpretation  of clause (i) or (ii) as contemplating more than one  authority runs counter to the tenor of the rule. Secondly, the strict- ly  literal  meaning of rule 2(a) insisted upon by  the  re- spondents 460 would  render  the  rules unworkable.  For  instance,  under clause  (i), one of the authorities to be considered is  the ’authority empowered to make appointments to the service  of which  the government servant is for the time being  a  mem- ber’.  The  respondents belong to one of the  Central  Civil Services. Though they belong to class III or class IV, there are  class  and class II officers as well  therein.  Rule  8 declares  that only the President can make  appointments  to Class  I in the service. If each of the clauses is  read  as envisaging  a plurality of authorities as contended for  and if clause (i) is literally interpreted, it will also include the  President  who is one of the authorities  empowered  to

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make  appointments  to the service of  which  the  concerned employees is a member. This will render the entire gamut  of the rules unworkable. On this interpretation, the  President will be the only appointing authority under rule 2(a) in all cases, being the highest of the authorities envisaged there- in.  This  cannot  clearly be correct. Rule  2(a)  does  not contemplate  any authority other than the one  empowered  to appoint  a person belonging to the post or grade  which  the concerned  government employee holds. In that sense the  two parts  of  clause  (i) and clause (ii) are not  to  be  read distributively 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  re- strict oneself to the post or grade of the government  serv- ant concerned and invoke clause (i) or (ii) as the case  may be. Thirdly, the whole purpose and intent of rule 2(a) is to provide that appointing authority means either the de  facto or the de jure appointing authority. It will be  appreciated that,  generally  speaking, only the de jure  authority  can make the appointment but, occasionally, a superior authority or  even  a subordinate authority (with his  consent)  could have  made  the appointment. Again it is possible  that  the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in  rank  to the authority which was empowered to  make  the appointment  or  which made the appointment at  a  different point of time. The whole intent or purpose of the definition to  safeguard  against an infringement of  Art.  311(1)  and ensure  that  a person can be dealt with only  by  either  a person  competent  to appoint persons of his  class  or  the person  who appointed him, whoever happens to be  higher  in rank.  That  rule  is not infringed  by  the  interpretation placed  by the appellants. The provisions of Schedule II  in the  case of the Railways which specify the  appointing  au- thority  or  an authority of equivalent rank or  any  higher authority as the disciplinary authority are also  consistent with  this  interpretation.  Fourthly,  the   interpretation sought  to  be  placed by the respondents on  rule  2(a)  is artificial and strained. It amounts to saying that a  person who is 461 empowered to appoint a government servant (as the  Director, DERL, for example, undoubtedly is) and who has also appoint- ed him will not be the appointing authority, because,  theo- retically,  even  a more superior authority could  have  ap- pointed  him despite having delegated his authority in  this regard to a subordinate. On the contrary, the interpretation urged by the Union will not adversely affect the few employ- ees,  if any, who may be appointed by a  superior  scheduled authority despite delegation of such power to a  subordinate authority. For, in such a case, the superior authority would be  the person who has factually appointed such an  employee and he will clearly be the ’appointing authority’ by  virtue of  rule 2(a). Lastly, the interpretation sought for by  the Union  is consistent with practical consideration.  The  ap- pointing  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 consid- er  each and every case of appointment of,  or  disciplinary action  against all the Class III or Class IV  employees  in the  organisation.  It is indeed this realisation  that  has rendered  necessary delegation of the power  of  appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.     On  behalf of the respondents, it is contended that  the

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intention  of the rules is to restrict powers of  discipline from being exercised by all appointing authorities. Central- isation, it is urged, is the object. This contention is  not borne out by the table of innumerable disciplinary  authori- ties set out in the schedule, not to speak of those on  whom factual or special powers have been conferred by the  Presi- dent (as was indeed done in many of these very cases later). As  against  this, Sri Pai, for the appellants  pointed  out that if one has regard to the strength of the railway  staff or the other class III or IV staff employed in various civil services, the interpretation urged on behalf of the respond- ents would cast an impossible burden of work on the authori- ties specified in the schedule to whom alone the respondents seek to confine the power to take disciplinary  proceedings. There is force in this contention.     It  has  been brought to our notice  that  notifications have  since been issued (for example on 29th August 1979  in the  case  of the DERL and 2.1.87 in the  case  of  Ordnance factories) by the President under rule 12 empowering certain authorities to exercise disciplinary powers. We need  hardly say  that  any disciplinary proceedings  initiated  by  such authorities from the date when such notifications came  into effect will be perfectly valid. It has also been brought  to our  notice  that, in some cases, (for  example,  C.A.  Nos. 1443, 1444 and 4340/88), the CAT has 462 also  gone  into the merits of the cases and set  aside  the penalties  or punishments imposed on the concerned  respond- ent. We do not propose to review the finding on this  aspect of  the matter under Article 136. C.A. No. 1444/88, .we  are told, has also abated as the appellant has taken no steps to bring on record the legal representatives of the  respondent but,  in  view of the Tribunal’s findings on merits,  it  is unnecessary to go ’into this question now. The order of  the CAT,  in such cases, will therefore,  stand  notwithstanding our  conclusion being different from that of the CAT on  the main issue discussed above On the other hand, in most cases, the  CAT, because of the view taken by it on the main  ques- tion, ’has not dealt with the merits of the proceedings. For example, it was mentioned that in C.A. 316/81, the  respond- ent has been removed from service by the Deputy Director, an authority subordinate to the Director who had appointed him. This  aspect  has not been considered and will  have  to  be considered  now.  Similarly, in C.A. 3044/89  filed  by  the employee,  it  is pointed out that the  appellant  had  been appointed by the Director of Ordnance Services in 1964.  The power  of appointment was delegated to Commandants in   1971 and the respondent was penalised by the Commandant, a subor- dinate authority, to whom disciplinary powers were  delegate by  the President only in 1979. Though this point  does  not appear  to have been raised before the Tribunal, it goes  to the  root  of the matter and we, therefore,  think  that  it should be left open to be considered by the Tribunal now.     As the cases before us are many and were decided princi- pally  on  the point of law discussed earlier, we  have  not touched upon the facts or merits of individual cases. We set aside  the orders of the CAT in all cases--except C.A.  Nos. 1443   and  4340/88  which  stand  dismissed  as   mentioned above--and  direct  the Tribunal/High Court. to  pass  fresh orders  disposing of the applications filed before  them  in the  light of our judgment. Where  disciplinary  proceedings have been stayed at the stage of initiation or later because of  the view taken by the Tribunal, they should now be  con- tinued  and finished without delay in accordance  with  law. The appeals are disposed of accordingly.

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T.N.A.                                      Appeals disposed of. 463