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1995 Supreme(Pat) 334
High Court Of Patna
Nagendra Rai, J.
Gananand Jha - Petitioner
vs.
The State of Bihar & Ors. - Respondents
C.W.J.C. No. 12983 of 1993
Decided on : 27.6.1995
For the Petitioner: M/s Tarakant Jha, B.S. Tiwari and Prabhakar Jha.
For the Respondents: M/s Ganga Prasad Roy, Sachita Singh, J. K. Karn and A. K. Ambastha.
The Governor's power to issue directions under Article 123 of the Nigam's Articles of Association is limited to broad policy matters and not day-to-day administration.
Headnote:
BIHAR RAJYA POOL NIRMAN NIGAM LTD. - APPOINTMENT - SENIORITY - ARTICLES OF ASSOCIATION - GOVERNOR'S POWER - NATURAL JUSTICE: 1. The Governor's power to issue directions under Article 123 of the Articles of Association of Bihar Rajya Pool Nirman Nigam Ltd. (Nigam) is limited to broad policy matters and not day-to-day administration. 2. The Governor cannot interfere with the Nigam's orders regarding appointment, seniority, promotion, etc., unless they violate constitutional or statutory rules or impose an additional financial burden on the Nigam. 3. The Nigam has the power to determine the seniority of its employees, and the Governor cannot interfere with this power as an appellate authority. 4. The Minister's orders canceling the Nigam's order determining the seniority of the petitioner and the Managing Director's consequential order are quashed as they amount to interference with the Nigam's day-to-day business and violate the principles of natural justice.
Fact of the Case:
The petitioner, an employee of the Nigam, challenged the Minister's order canceling the Nigam's order determining his seniority over Respondent No. 5. The petitioner argued that the Minister did not have the authority to interfere with the Nigam's order and that he was not given an opportunity to be heard before the order was passed. The Nigam and Respondent No. 5 argued that the Minister had the authority to issue directions to the Nigam and that the petitioner was not entitled to a hearing.
Finding of the Court:
The court held that the Governor's power to issue directions under Article 123 of the Nigam's Articles of Association is limited to broad policy matters and not day-to-day administration. The court also held that the Nigam has the power to determine the seniority of its employees and that the Governor cannot interfere with this power as an appellate authority. The court further held that the Minister's orders canceling the Nigam's order determining the seniority of the petitioner and the Managing Director's consequential order are quashed as they amount to interference with the Nigam's day-to-day business and violate the principles of natural justice.
Issues: 1. Whether the Minister had the authority to cancel the Nigam's order determining the seniority of the petitioner. 2. Whether the petitioner was entitled to a hearing before the Minister's order was passed.
Ratio Decidendi: 1. The Governor's power to issue directions under Article 123 of the Nigam's Articles of Association is limited to broad policy matters and not day-to-day administration. 2. The Nigam has the power to determine the seniority of its employees, and the Governor cannot interfere with this power as an appellate authority. 3. The Minister's orders canceling the Nigam's order determining the seniority of the petitioner and the Managing Director's consequential order are quashed as they amount to interference with the Nigam's day-to-day business and violate the principles of natural justice.
Final Decision: The court allowed the petition and quashed the Minister's orders canceling the Nigam's order determining the seniority of the petitioner and the Managing Director's consequential order.
Nagendra Rai, J.
The petitioner, an employee of Bihar Rajya Pool Nirman Nigam Ltd. (hereinafter referred to as the Nigam), has filed the present writ application for quashing the office order dated 3.9.1993 (Annexure-24) issued under the signature of the Managing Director of the Nigam in pursuance of a direction issued by the State Government contained in the order dated 12.1.1993, canceling the office order elated 13th January, 1993 (Annexure19) by which the petitioner was held to be senior to Respondent no. 5 after rejecting his representation. It has been further ordered, vide Annexure-24, that the decision with regard to inter se seniority between the petitioner and Respondent no. 5 will be taken after considering the matter afresh.
2. The Bihar Bridge Construction Corporation Ltd. was incorporated under the provisions of the Companies Act as Public Limited Company in the year 1975. On 30th June, 1978 its name was changed as Bihar Rajya Pool Nirman Nigam Ltd. it is a Government Company within the meaning of Section 617 of the Companies Act.
3. According to the petitioner, the Board of Directors in its meeting created several technical and non-technical posts. In the Head Office, two posts of Routine Clerks, six posts of Assistants, one post of Section Officer and one post of Secretary (non-technical) were created apart from other Class III and IV posts. A Lateral Road Project Wing functioning under the Road Construction Department was abolished by the Government and the posts of Routine Clerks, Assistants, Section Officers and Secretary (non-technical) were made available to the Nigam. The Nigam did not frame its own rules and regulations and it adopted the rules, regulations and instructions of the State Government with regard to service conditions of its employees. In the Headquarters establishment, the post of Assistant is a initial post and below that there is no other post in Class III. The power to appoint Assistants is vested in the Board of Directors of the Nigam under Article 80, sub-article 22 of the Articles of Association and the said power has been delegated by the Board to the Managing Director.
4. Respondent no. 5, Dayanand Prasad, worked as Routine Clerk from 12th December, 1975 to 4th May, 1976 in the Headquarter and by office order dated 5th May, 1976 he was appointed as Assistant purely on ad hoc basis (vide Annexure-2).
In the year 1980. six posts of typists were created in the Headquarters of the Nigam and applications were invited for appoint. ment to the said posts. The petitioner along with others applied for the said posts through Employment Exchange and after test the petitioner along with others were selected. The petitioner stood second in the test and was appointed on 24th May, 1980 to the post of typist (vide Annexure-6). In pursuance of which he joined the post on 26th May, 1980.
5. In the year 1981, apart from these six posts of Assistants the Nigam created two more posts of Assistants in the Headquarters Establishment. Thus, there became 8 posts of Assistants in the Headquarters Establishment.
6. According to the decision of the State Government, which has been adopted by the Nigam, 25 percent of the posts of Assistants are to be filled up from and amongst the Routine Clerks and Typists who possess requisite qualification, namely, Graduation, 25 percent are to be filled up from amongst the ministerial clerks, who are matriculates and the rest 50 percent are to be filled up from open market. The recruitment or appointment of the departmental employees is to be made on the basis of the limited competitive examination. A copy of the aforesaid Resolution of the State Government has been annexed as Annexure-8 to the writ application. The Nigam decided to fill up two posts of Assistants from the quota of Routine Clerks and Typist and took action in the direction. The Nigam sent the proposal to the Bureau of Public Enterprises, Department of Finance through the Road Construction Department for
