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PETITIONER: U.P. PUBLIC SERVICE COMMISSION AT ALLAHABAD

       Vs.

RESPONDENT: SURESH CHANDRA TEWARI & ANR.

DATE OF JUDGMENT07/08/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1953            1987 SCR  (3) 833  1987 SCC  (4) 176        JT 1987 (3)   243  1987 SCALE  (2)223

ACT:     Civil  Service  (Classification,  Control  and   Appeal) Rules,  1930-R.  69---Read with Regulation 20 of  the  Uttar Pradesh  Public Service Commission (Conditions  of  Service) Regulation,  1937,  and Regulation 28 of the  Uttar  Pradesh Public  Service Commission Staff  Regulations,  1942--Orders passed  by  Commission in disciplinary  proceedings  against gazetted ministerial officers other than Under Secretary and Assistant  Secretary  are  subject to appeal  to  the  State Government.

HEADNOTE:     In  an  appeal  preferred by respondent  No.  1  against orders  reverting him from the post of Section Officer to  a lower  post and dismissing him from service, the State  Gov- ernment  found  that he had not been afforded  a  reasonable opportunity to defend himself at the inquiry, and set  aside the  order of dismissal directing the State  Public  Service Commission  to  reinstate him in the lower post and  hold  a fresh inquiry. The Commission having declined to comply with the order of the State Government, respondent No. 1 filed  a writ petition, and the High Court directed the Commission to comply with the said order.     In  this petition for special leave to appeal, the  Com- mission  contended  (1) that since it was  a  Constitutional Authority being not subordinate to the State Government, the latter  could  not have heard the appeal filed  against  its order  passed in a disciplinary proceeding; and (2) that  in any  event, the appeal should have been disposed of  by  the Governor himself and not by the Governor in accordance  with the advice of the State Government. Dismissing the petition,     HELD:  The Commission may be a constitutional  authority not  subordinate  to  any other authority.  But  the  orders passed  by the Commission in disciplinary  proceedings  held against  the members of its staff are subject to the  appeal to  the  State Government under r. 69 of the  Civil  Service (Classification, Control and Appeal) Rules, 1930, read  with Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions  of  Service) Regulations, 1937  as  amended  in 1978. There is

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834 no ground for thinking that the independence ,of the Commis- sion  would be affected by the State  Government  exercising the  appellate power in disciplinary matters as provided  by Regulation 20. [837H; 838A-B]     Hargovind  Pant v. Dr. Raghukul Tilak & Ors.,  [1979]  3 S.C.R. 972, referred to.     Rule  69 of the Civil Service  (Classification,  Control and  Appeal)  Rules, 1930 is to the effect that  the  .State Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority  by these rules, and inter alia, confirm, modify or reverse  the order  passed  by such authority, or direct that  a  further enquiry  be held in the case. Rule 69-A sets out the  proce- dure  to  be followed in filing a petition  under  rule  69. Rules  69 and 69-A are substantially applicable to the  mem- bers of the staff of the Commission by virtue of  Regulation 28  of the Uttar Pradesh Public Service  Staff  Regulations, 1942,  even  though the Commission may not be  an  authority subordinate  to the State Government because while  applying r. 69 to the staff of the Commission the rule should be read with the necessary modification by substituting in the place of the words ’an authority subordinate to it’ the words ’the Uttar  Pradesh Public Service Commission’. In any  event  by virtue  of the amendment made to Regulation 20 of the  Uttar Pradesh  Public Service Commission (Conditions  of  Service) Regulations, 1937 in 1978 appeals against the orders of  the Commission  passed  in respect of the  gazetted  ministerial officers  other than the Under Secretary and  the  Assistant Secretary  lie  to  the Governor. Respondent  No.1  being  a gazetted  officer holding the post of a Section Officer  was entitled  to  prefer an appeal under Regulation  20  to  the Governor. [837C-G]     2.  It is no doubt true that Regulation 20 of the  Uttar Pradesh  Public Service Commission (Conditions  of  Service) Regulations,  1937 provides that appeals against the  orders of  the Commission shall be made to the Governor. But  while exercising his powers under that Regulation the Governor has to act on the advice given by the State Government by virtue of Art. 163(1) of the Constitution. The function of  hearing an  appeal  against an order passed by the Commission  in  a disciplinary proceeding held against any member of its staff is  an  executive function and not one  of  those  functions which the Governor is required to exercise in its discretion under any of the provisions of the Constitution. The  Gover- nor  has, therefore, to act on the advice of the State  Gov- ernment. [838C-F]    835 Shamsher  Sing  v.  State of Punjab, [1975]  1  S.C.R.  814, referred to.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 3865 of 1987.     From the Judgment and Order dated 2.1.87 of the  Allaha- bad High Court in Writ Petition No. 17082/86. S.N. Kacker and R.B. Mehrotra for the Petitioner. R.K. Jain for the Respondent. The Order of the Court was delivered by     VENKATARAMIAH,  J.  The  Uttar  Pradesh  Public  Service Commission (hereinafter referred to as ’the Commission’)  is the  petitioner  in  this petition. It  has  questioned  the

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correctness of the order passed by the High Court of Allaha- bad  in  Writ  Petition No. 17082 of 1986  directing  it  to comply  with the order dated August 30, 1986 passed  by  the State  Government  on an appeal filed by  Respondent  No.  1 against the order passed by the Commission in a disciplinary proceeding held against him.    Respondent No. 1 was working as a Section Officer in  the office  of  the Commission. On July 18, 1981 he  was  placed under  suspension  on  certain charges  and  a  departmental enquiry  was initiated against him. In the said  enquiry  he was found guilty and he was reverted to the rank of an Upper Division Assistant by the order dated April 24, 1982 and  by another  order passed on the same day he was dismissed  from service. Against these orders Respondent No. 1 preferred  an appeal  before  the State Government. The  State  Government found  that Respondent No. 1 had not been given  opportunity to cross-examine the witnesses produced at the  disciplinary enquiry, that he had not been given a reasonable opportunity to  produce evidence from his side and that, therefore,  the punishment imposed on him was violative of Article 311(2) of the Constitution. Accordingly, the order of dismissal passed against  him in the disciplinary enquiry was set  aside  and the  Commission  was  directed to hold a  fresh  enquiry  in accordance  with  law.  The order of  the  State  Government further directed the Commission to reinstate Respondent  No. 1  as an Upper Division Assistant pending final decision  in the  disciplinary  enquiry.  It was also  ordered  that  the salary and allowances due to Respondent No. 1 from the date 836 of  his dismissal till the date of reinstatement  should  be paid to him. The above order was passed on August 30,  1986. Respondent  No. 1 applied to the Commission on September  3, 1986  to permit him to rejoin the service as ordered by  the State  Government.  When the Commission declined  to  comply with  the  order of the State Government, Respondent  No.  1 instituted the writ petition, referred to above, in the High Court  of  Allahabad  for the issue of a  direction  to  the Commission to comply with the order of the State Government. After  heating the learned counsel for Respondent No. 1  and the Commission, the High Court allowed the writ petition and issued  the  directions as stated above.  Aggrieved  by  the decision  of the High Court, the Commission has  filed  this petition.     Two  contentions  are urged before us on behalf  of  the Commission--(i)  since the Commission, which is a  constitu- tional  authority, is not subordinate to the  State  Govern- ment,  the State Government could not have heard the  appeal filed against the order passed by the Commission in a disci- plinary proceeding. and (ii) in any event the appeal  should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State  Govern- ment.     The conditions of service of the members of the Staff of the  Commission  are regulated by the  U.P.  Public  Service Commission  (Conditions of Service) Regulations,  1937  made under  section 265(2) of the Government of India  Act,  1935 (corresponding to Article 3 18 of the Constitution) as  they have  been continued under the provisions of  the  Constitu- tion.  Regulation 20 of the said Regulations, as amended  by the  Uttar Pradesh Public Service Commission (Conditions  of Service) (Amendment) Regulations, 1978 made by the  Governor under Article 3 18 of the Constitution reads as follows:               "20. Appointments to the gazetted  ministerial               posts other than those of the Under  Secretary               and  the Assistant Secretary shall be made  by

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             the Commission.               (Appeals  against the order of the  Commission               shall be to the Governor)."               Regulation  28  of  the  U.P.  Public  Service               Commission  Staff Regulations, 1942 lays  down               as follows:               "28.  Regulation  of  pay,  leave   allowance,               pension     and    other     conditions     of               service--Except as provided in these                   837               regulations  or in any special declaration  or               order made by the Governor, all matters relat-               ing to the pay, allowances, pension, gratuity,               leave,  retirement  and  other  conditions  of               service of the persons appointed to the  staff               shall be regulated by the rules,  declarations               and  orders applicable generally from time  to               time  to  servants  of the  State  of  similar               classes under the control of the Uttar Pradesh               Government insofar as they are not  inconsist-               ent  with  any provisions  expressly  made  in               these  regulations  or in  the  Uttar  Pradesh               Public   Service  Commission  (Conditions   of               Service) Regulations."     Rule  69 of the Civil Service  (Classification,  Control and  Appeal)  Rules, 1930 is to the effect  that  the  State Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority  by these rules, and inter alia, confirm, modify or reverse  the order  passed  by such authority, or direct that  a  further enquiry  be held in the case. Rule 69-A sets out the  proce- dure to be followed in filing a petition under rule 69. Rule 69 and rule 69-A are substantially applicable to the members of the staff of the Commission by virtue of Regulation 28 of the  Uttar Pradesh Public Service Staff  Regulations,  1942, extracted  above, even though the Commission may not  be  an authority subordinate to the State Government because  while applying  rule  69 to the staff of the Commission  the  rule should be read with the necessary modification by substitut- ing  in the place of the words ’an authority subordinate  to it’ the words ’the Uttar Pradesh Public Service Commission’. In  any event by virtue of the amendment made to rule 20  in 1978 appeals against the orders of the Commission passed  in respect of the gazetted ministerial officers other than  the Under  Secretary  and  the Assistant Secretary  lie  to  the Governor. Respondent No. 1 being a gazetted officer  holding the  post  of  a Section Officer is entitled  to  prefer  an appeal  under  regulation  20 of the  Uttar  Pradesh  Public Service Commission (Conditions of Service) Regulations, 1937 to  the Governor. On the facts and in the  circumstances  of the  case we feel the contention of the Commission  that  an order  passed by it in a disciplinary proceeding  cannot  be subject  to an appeal, is untenable by virtue of  regulation 20  of the Uttar Pradesh Public Service  Commission  (Condi- tions of Service) Regulations, 1937 and regulation 28 of the Uttar  Pradesh Public Service Commission Staff  Regulations, 1942. It may be that as held by this Court in Hargovind Pant v.  Dr. Raghukul Tilak & Ors., [1979] 3 S.C.R. 972 the  Com- mission may be a constitutional authority not subordinate to any other authority. But the orders 838 passed  by the Commission in disciplinary  proceedings  held against  the members of its staff are subject to the  appeal to  the State Government under rule 69 of the Civil  Service

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(Classification, Control and Appeal) Rules read with regula- tion  20  of  the Uttar Pradesh  Public  Service  Commission (Conditions-of  Service)  Regulations,  1937.  There  is  no ground for thinking that the independence of the  Commission would  be  affected by the State Government  exercising  the appellate  power  in  disciplinary matters  as  provided  by regulation 20. We, therefore, reject the first contention.     We  shall now deal with the second contention. It is  no doubt true that regulation 20 provides that appeals  against the orders of the Commission shall be made to the  Governor. But  while exercising his powers under that  regulation  the Governor has to act on the advice given by the State Govern- ment  by virtue of Article 163(1) of the Constitution  which reads thus:               "163(1). There shall be a Council of Ministers               with the Chief Minister at the head to aid and               advise  the  Governor in the exercise  of  his               functions, except insofar as he is by or under               this  Constitution  required to  exercise  his               functions or any of them in his discretion."     The  function  of  heating an appeal  against  an  order passed  by the Commission in a disciplinary proceeding  held against  any member of its staff is not one of  those  func- tions  which  the Governor is required to  exercise  in  its discretion under any of the provisions of the  Constitution. The  Governor  has, therefore, to act on the advise  of  the State  Government.  This position has been  settled  by  the decision of this Court in Shamsher Singh & Ant. v. State  of Punjab,  [1975] 1 S.C.R. 8 14. Ray, C.J. speaking  for  him- self, Palekar, Mathew, Chandrachud and Alagiriswami, JJ. has observed at page 836 thus:               "For  the foregoing reasons we hold  that  the               President or the Governor acts on the aid  and               advice  of the Council of Ministers  with  the               Prime Minister at the head in the case of  the               Union  and the Chief Minister at the  head  in               the case of State in all matters which vest in               the  executive  whether  those  functions  are               executive or legislative in character. Neither               the President nor the Governor is to  exercise               the executive functions personally." The  function  of  deciding an appeal against  an  order  of punish-   839 ment  imposed in a disciplinary proceeding is  an  executive function.  Hence,  by acting in accordance with  the  advice tendered  to him by the State Government, the  Governor  has not  acted contrary to the provisions of the regulations  or of the Constitution. The appellate power is exercised in the instant case in accordance with Article 166 of the Constitu- tion.  We  do not, therefore, find any merit in  the  second contention too. The petition is, therefore, dismissed. H.L.C.                                       Petition   dis- missed. 840