B.K. Sharma, J.@mdashA very short, but interesting question has been raised in this writ petition. The Petitioner who is the Registrar of Co-operative Societies, Government of Nagaland has assailed the legality and validity of the office memorandum dated 6.4.2004 (Annexure-A) by which the powers and functions as specified in the order itself were delegated to the Registrar of Co-operative Societies and the Additional Registrar of Co-operative Societies. The impugned office memorandum dated 6.4.2004 is reproduced below:
GOVERNMENT OF NAGALAND
CO-OPERATION DEPARTMENT
OFFICE MEMORANDUM
Dated 6th April 2004
No. Cop-1/24/92-In exercise of Rule 9 of the Rules of Executive Business and in the interest of public services, the following officers in the Cooperation Department are hereby delegated with powers and functions as specified below. Both the officers will perform their duties independently with their assigned duties.
This comes into effect from the date of issue of this order.
1. Registrar of Co-operative Societies (R.C.S.)
(a) Registration/Audit/Inspection of Co-operative Societies
(b) All State and District level Co-operative Organizations.
2. Additional Registrar of Co-operative Societies (Addl. R.C.S.)
a) All financial matters pertaining to the Department which include CSS/NCDC/ICDP.
b) General overall administration of the Department.
(TOVILISEMA)
Secretary to the Government of Nagaland No. Cop-1/24/92
Dated 6th April 2004
2. It is the case of the Petitioner that by the impugned office memorandum, the status of the Petitioner as the head of the department has been taken away and that he has been made to discharge his function as a subordinate officer to the Additional Registrar of Co-operative Societies i.e. the Respondent No. 3. According to the Petitioner as per the nature of the duties and functions entrusted to the Respondent No. 3, he has been made the head of the department and has been assigned with more than 90% of the scheduled works meant for the Registrar of Co-operative Societies.
3. The Petitioner in support of his claim has placed reliance on a decision of this Court dated 11.12.1997 passed in the writ petition being Civil Rule No. 133(K)/1997. According to the Petitioner a similar notification dated 20.11.1997 was issued which formed the subject matter in the said writ petition and this Court by its judgment and order dated 11.12.1997 set aside and quashed the impugned notification. The Petitioner asserts that his case is covered by the said judgment. According to him the Respondent No. 3, a subordinate officer under the Petitioner cannot be made the de-facto head of the department leading to anarchy and violation of all rules and norms.
4. The Respondents have filed their counter affidavit controverting the claim of the Petitioner. The theme of their defence in respect of the impugned office memorandum is to be found in paragraph 5 which is quoted below:
5. That as regards the statements made in paragraphs 6 and 7 of the writ petition, the deponent respectfully states that the said Office Memorandum dated 6th April 2004 was issued purely to distribute the works in the Office of the Registrar of Co-operative Societies for its smooth and effective functioning. The deponent therefore denies the statement that by the aforesaid memorandum has effectively taken away the status of the Registrar as Head of the Department.
It is pertinent to state here that the Department is also governed by the Assam Co-operative Societies Act, 1949 (hereinafter referred to as the Act of 1949) and the same is still in force. As such, the Petitioner has no cause of action as no right of the Petitioner has been affected by the aforesaid office memorandum dated 6.4.2004 which has been issued in consonance with the provisions of the Act of 1949. It may also be stated that the said office memorandum has been issued keeping in mind the interest of the Department and not otherwise.
5. I have heard the learned Counsel for the parties and have gone through the records of the case. learned Counsel for the Petitioner strenuously argued that the impugned action on the part of the Respondents by way of issuance of the office memorandum dated 6.4.2004 is prima facie arbitrary and illegal and has been issued in extraneous consideration. According to him, the impugned OM, on the face of it smacks malafide and depicts colourable exercise of power. According to him the action of the Respondents towards issuance of the impugned OM depicts malice in law. He placed reliance on the provisions of the Nagaland Co-Operative Service Rules, 1992, the Rules of Executive Business, Government of Nagaland and the Delegation of Financial and Cognate Powers Rules, 1964. He also referred to the provisions of the Assam Co-operative Societies Act, 1949.
6. Referring to the aforesaid provisions of the Act and the Rules, learned Counsel for the Petitioner submitted that the source of power on the strength on which the impugned OM has been issued is not traceable and that the Respondents resorted to the impugned action without any foundation. He also emphasized on the position of the Petitioner as the Registrar of Co-operative Societies in reference to the aforesaid rules. According to him, the provisions of the Co-operative Societies Act, 1949 on which the Respondents placed reliance towards vacating the interim stay are not at all applicable inasmuch as the said provisions do not govern the service conditions of the Petitioner. learned Counsel also placed reliance on the decisions of the Apex Court as reported in
7. Countering the above arguments, learned State Counsel defended the action of the Respondents. According to him the prima facie findings recorded by the Division Bench of this Court in respect of the interim matter in the writ appeal preferred by the State of Nagaland against the interim order of stay of the impugned office memorandum is in fact the correct interpretation of the impugned OM and the same is required to be affiirmed. Referring to the stand in the above quoted paragraph 5 of the counter affidavit, he submitted that the Petitioner has become unnecessarily apprehensive and that when he remains the head of the department, the office memorandum takes care of the smooth functioning of the department.
8. I have given my anxious consideration to the materials on record and the submissions made by the learned Counsel for the parties. While entertaining the writ petition, this Court by order dated 10.5.2004 restrained the Respondents from implementing the impugned OM dated 6.4.2004. The Respondents moved an application being Misc. Case No. 62(K)/2004 praying for vacating the said interim order, but the same was rejected by order dated 14.5.2004. Being aggrieved the State of Nagaland preferred Writ Appeal No. 186/2004 which was allowed by judgment and order dated 8.6.2004, which reads as follows:
Heard Mr. N. Dutta, learned Advocate General, Nagaland. None appeared for the Respondent though served.
The matter is finally heard at the admission stage. The Government of Nagaland has issued an Office Memorandum dated 6.4.2004 wherein in exercise of Rule 9 of the Rules of Executive Business and in the interest of public service some of the powers and functions of the Registrar of Co-operative Societies (R.C.S.) have been delegated to the Additional Registrar of Co-operative Societies (Addl. R.C.S.). Those powers are:
a) All financial matters pertaining to the Department which include CSS/NCDC/ICDP.
b) General overall administration of the Department.
The Office Memorandum also mentions the powers to be exercised by the Registrar of Co-operative Societies (R.C.S.) namely.
a) Registration/Audit/Inspection of Co-operative Societies.
b) All State and District level Co-operative Organizations.
Aggrieved by the aforesaid Office Memorandum issued by the State of Nagaland, The Registrar of Co-operative Societies filed a writ petition on the ground that the powers which have been delegated to the Additional Registrar of Co-operative Societies have the result of divesting the Registrar of those powers and, therefore, two heads have been created in the department exercising the powers of the Registrar of Co-operative Societies.
The learned Single Judge has passed the interim order of stay of the Office Memorandum which was refused to be vacated on an application moved by the State of Nagaland. The State of Nagaland has preferred the present appeal challenging the order of the learned Single Judge whereby the stay order granted by the Court was refused to be vacated, meaning thereby confirmation of the stay order.
At the very outset, Mr. N. Dutta, learned Advocate General appearing for the State of Nagaland has frankly stated at the Bar that the impugned Office Memorandum has not been issued for divesting the powers of the Registrar of Co-operative Societies Assignment of works to the Additional Registrar of Co-operative Societies under the Office Memorandum is for the purpose of assisting the Registrar as is permissible under Sub-section (2) of Section 3 of the Assam Co-operative Societies Act, 1949 which is being adopted in the State of Nagaland.
We have perused Sub-section (2) of Section 3 of the Act of 1949 and it is clear to us that the State Government has the jurisdiction and power to delegate the powers of the Registrar in favour of any person. The only restriction is that such delegation of the powers should be by general or special order in writing and it is for the purpose of assistance of the Registrar. The phrase assistance is very significant. It signifies assistance by a person delegated with the powers of the Registrar, in discharge of his functions and it does not mean completely divesting the Registrar of the powers which have been delegated in favour of any person under Sub-section (2) of Section 3 of the Co-operative Societies Act and that is what has been submitted and candidly admitted by the learned Advocate General, Nagaland.
In the aforesaid premises, prima facie we do not find any infirmity in the Office Memorandum issued by the State of Nagaland dated 6.4.2004. For the aforesaid reasons, we set aside the order of stay passed by the learned Single Judge.
The appeal is allowed. However, there shall be no order as to costs.
9. Being aggrieved by the aforesaid ex-parte order dated 8.6.2004, the writ Petitioner preferred Review Application No. 76/ 2004 seeking review of the final order passed in the writ appeal. One of the grounds urged by the Petitioner was that while allowing the appeal, he was not heard as no notice was issued to him. The Review application was disposed of with the following observation:
The argument bow advanced touches upon the merit of the case and therefore, we do not consider the present to be a fit case for review of the order dated 8.6.2004. Accordingly, we declined to interfere and leave it open to the writ Petitioner to approach the learned Single Judges for expeditious disposal of the writ petition. We are confident that the learned Single Judge to whom a request for expeditious disposal of the writ petition is made will hear and dispose of the case at the earliest. With the aforesaid observation, the review petition stands closed.
Needless to say that the views recorded in the order dated 8.6.2004, as already expressed are the tentative views of the Bench.
10. The impugned OM has been issued deriving the source of power under Rule 9 of the rules of Executive Business. Rule 9 of the rules reads as follows:
9. without prejudice to the provisions of Rule 7 the Minister-in-charge of a department shall be primarily responsible for the disposal of the business appertaining to the department.
11. On perusal of the aforesaid provisions of Rule 9, no source of power is traceable towards issuance of the kind of impugned OM dated 6.4.2004 enabling delegation of powers of functions to the Registrar and the Additional Registrar of the Co-Operative Societies. The argument that was advanced before the Division Bench was in reference to the provisions of Sub-Section 2 of Section 3 of the Act of 1949. The impugned OM was not issued taking note of the said provisions of the Act. On the other hand the Act was promulgated to facilitate the formation and working of the Co-operative Societies and to consolidate and amend the law relating to/Co-operative Societies. The provisions of the Act certainly do not govern the service conditions of the Registrar who has been defined u/s 2(p) of the Act as the person appointed to perform the duties of a Registrar of Co-operative Societies under the Act. As per Section 3 of the Act, the State Government may appoint a person to be Registrar of Co-operative Societies for the province or any portion of it for the registration, supervision, assistance, counsel and control of registered societies and for the development of the Co-operative movement and control over all Co-operative education and with such other powers and responsibilities as may be provided under the Act or rules or bye-laws framed thereunder.
12. As per Sub-section (2) of Section 3, the State Government may also appoint persons to assist the Registrar and may, by general or special order in writing delegate to any such person or any other Government Officer all or any of the powers of the Registrar under the Act. It was submitted by the learned Counsel for the Respondents in tune with the submissions made before the Division Bench that the impugned OM has not been issued for divesting the powers of the Registrar of Co-operative Societies and that assignment of works to the Additional Registrar of Co-operative Societies under the OM is for the purpose of assisting the Registrar. The Division Bench also recording such submissions observed that the expression used in Section 3(2) of the Act "to assist" signifies assistance by a person delegated with the powers of the Registrar, in discharge of his function and it does not mean completely divesting the Registrar of the powers. Learned Advocate General, Nagaland also candidly admitted such a position and proposition.
13. From the above, it will be seen that the whole basis of the submission made by the learned State counsel is on the expression "to assist" in reference to Section 3(2) of the Act. However, on a close scrutiny of the impugned OM dated 6.4.2004 will go to show that the powers and functions have been delegated to the Petitioner and the Respondent No. 3 so as to perform the assigned duties independently (emphasis supplied). While the Petitioner, although is the head of the department has been assigned duties pertaining to registration/audit/inspection of the Co-operative Societies, the Respondent No. 3 who is admittedly a subordinate officer under the Petitioner has been vested with the independent duties and powers pertaining to all financial matters and general administration of the department. On the face of it, it will be seen that the Respondent No. 3 who is admittedly subordinate to the Petitioner has been vested with overall duties, power and functions of the department so as to include all financial matters and general overall administration of the department.
14. From the above, it will be seen that the Respondent No. 3, a subordinate officer to the Petitioner has been vested with all important duties, functions and responsibilities of the department relegating the Petitioner to a position in which virtually, he becomes the subordinate to the Respondent No. 3. As per the Nagaland Co-operative Service Rules governing the service conditions of the officers of the Department, the Registrar of Co-operative Societies is a post to be filled up by promotion from the post of Additional Registrar having been confirmed in any cadre in Co-operative Service and holding the post of Additional Registrar atleast for a continuous period of service for 2 (two) years. The basis of selection shall be seniority-cum-merit. Thus here is a case in which although the post of Registrar is a promotional post for the Additional Registrar and yet he has been made the virtual head of the department without earning his promotion to the post of Registrar. The kind of delegation of duties and functions to the Respondent No. 3 by the impugned OM virtually makes him the head of the department equating the rank and status of the Registrar of Co-operative Societies, i.e., the Petitioner. In service jurisprudence such a position cannot be contemplated so as to make the head of the department a subordinate to his own subordinate.
15. As per Section 2(j) of the aforesaid Rules of 1992, the Registrar of Co-operative Societies is the head of department. No other person has been authorized to be so, but by the impugned OM, a subordinate officer of the Petitioner has been made the virtual head of the department vesting on him all important duties and functions of the department so as to include even all the financial and administrative powers. Once the administrative power is vested on the Additional Registrar of Co-operative Societies, then automatically the Registrar of Co-operative Societies who is otherwise is the administrative head of the department becomes the subordinate to his own subordinate i.e. the Additional Registrar of Co-operative Societies. Such a situation cannot be contemplated under any circumstances and unknown to service jurisprudence.
16. As per the provisions of the Delegation of financial and Cognate Powers Rules, 1964 (Entry 1998), it is the Registrar of Co-operative Societies who is empowered to sanction grant-in-aid to the societies. These rules prescribe the nature and extent of delegation of financial and cognate powers. The Respondents while issuing the OM dated 6.4.2004 by-passed the provisions of these rules as well as the aforesaid rules of 1992 governing the service condition of the Petitioner and the Respondent No. 3.
17. The case of Tulsiram Patel (supra) was pressed into service to bring home the point of argument that the source of authority of a particular officer to act in a particular manner is derived from the rules and that there cannot be an exercise of power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it.
18. The case of Rajaram Jayswal (supra) was relied upon to put emphasis that where power is conferred to achieve a purpose, the power must be exercised reasonably and in good faith to effectuate the purpose. The Apex Court in the said case held that ''in good faith'' means ''for legitimate reasons''. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power of fraud on power and the exercise of power is vitiated.
19. In the instant case, the impugned OM has been issued under/Rule 9 of the rules of Executive Business which has been quoted above. The source of power towards issuance of the impugned OM dated 6.4.2004 is not traceable in Rule 9. The kind of argument, now sought to be advanced by the Respondents in reference to Section 3(2) of the Act of 1949 cannot supplement the impugned OM which will have to be judged on the basis of the source of power reflected in the OM itself and as its stood at the time of issuance of the OM. As observed by the Apex Court in the case of
20. In the said case of Mahinder Singh Gill the Apex Court quoted with authority the observations made by the Apex Court in an earlier decision as reported in
Public orders, publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he made, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
21. As observed by the Apex Court in the aforesaid decision that orders are not like old wine becoming better as they grow older. In the instant case also, the Respondents have issued the impugned OM dated 6.4.2004 purportedly deriving the source of power to do so under Rule 9 of the Rules of Executive Business. On a bare perusal of the same, such source of power is not discernible in Rule 9. It is in this kind of situation coupled with the facts and circumstances narrated above, the concept of malice in law comes into operation. The Respondents have not stated anything as to what was the great necessity to divest the Petitioner from his powers, functions and duties to the extent vested on the Respondent No. 3, i.e. the Additional Registrar of Co-operative Societies.
22. There is no manner of doubt that till issuance of the impugned OM dated 6.4.2004, the Petitioner being the head of the department was in full charge of all the duties, functions and responsibilities as indicated in the impugned OM in respect of both the Respondent No. 3 and the Petitioner. At that point of time the Respondent No. 3 as the subordinate officer of the Registrar was discharging his assigned duties, functions and powers. Suddenly, he got the upgradation and became the virtual head of the department rendering the Petitioner a titular head. Except making a vague statement in the counter affidavit that the impugned OM had to be issued for smooth and effective functioning of the department, no reasons have been assigned so as to depict the real state of affairs involving the issuance of the impugned OM.
23. The State Government cannot add to the single post cadre of the Registrar of Co-operative Societies by-passing the rules, nor can it make any permanent addition to the number of posts of a particular category in the cadre, for to do so would mean, in the first case, alteration in the composition in the cadre, and in the second, alteration in the strength of a cadre, both of which would be impermissible to the State Government, unless the same is permitted by rules. What the State Government is not empowered to do directly has been sought to be achieved by way of issuing the impugned OM dated 6.4.2004. The State Government could not have added to the cadre of Registrar by way of virtual upgradation of the post of Additional Registrar unless such post was already in existence in the cadre of Registrar. As already noticed above, the Respondent No. 3 is subordinate officer to the Petitioner and as per the provisions of the rules of 1992, the post of Registrar is a promotional post for him. However, by the impugned OM, the Respondents have not only equated the Additional Registrar with that of Registrar of Co-operative Societies, but have placed him in a higher pedestal than that of the Petitioner. The course of action adopted by the Respondents is simply not tenable in absence of any declaration bringing the post of Additional Registrar to the same rank, status and responsibility with that of the Registrar of Co-operative Societies.
24. By the impugned OM dated 6.4.2004, a subordinate officer to the Petitioner has been given higher rank and status which is unknown to service jurisprudence. Here is a case in which although the post of Registrar is a promotional post for the Additional Registrar and although the Registrar is the head of the department and thus naturally vested with the administrative and financial power has been divested of all such powers, functions and duties so as to vest the same to his subordinate i.e. the Respondent No. 3 virtually making him the head of the department. Such a course of action adopted by the Respondents cannot be upheld. No amount of explanation by way of supplementing the impugned OM can come in aid of the Respondents to defend the OM.
25. I shall be failing in my duty, if I do not refer to the judgment of this Court on which the Petitioner has placed reliance. A copy of the same has been annexed as Annexure-C to the writ petition. In that case also the Petitioner assailed a notification dated 20.11.1997 allowing the Respondent No. 6 to look after certain duties and function independently. As in the instant case, in that case also, the Petitioner was the Director of the department. However, his junior was allowed to look after the departmental programmes independently virtually bringing into existence two heads of department. It was observed that if the notification was allowed to remain in force, it would inbreed indiscipline in the department and instead of solving problems would create more chaos and problems. It was further observed that in service jurisprudence, there cannot be any occasion to ask a junior officer of the department to look after the majority of the departmental works independently in the same department. It was emphasized that every decision in any department will have to be routed through the head of the department alone. On these grounds the notification dated 20.11.1997 was set aside and quashed. This case is more or less similar to the case of the Petitioner and amply supports his case.
26. For the foregoing reasons and discussions, I have no hesitation to set aside and quash the impugned OM dated 6.4.2004. The respective positions of the Petitioner and the Respondent No. 3 as they stood prior to 6.4.2004. Stand restored.
27. Writ petition stands allowed leaving the parties to bear their own costs.
