Updated 7:19 am, Oct 12, 2018

HC: Top Punjab officer’s post void | SNE

By  THE TRIBUNE .
Jan 18, 2018

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In a major embarrassment for the Punjab Government, the Punjab and Haryana High Court today set aside the appointment of retired IAS officer Suresh Kumar as the Chief Principal Secretary to Chief Minister (CPSCM) after ruling that he was holding a “public office” without authority of law.

Holding the appointment to be “void”, Justice Rajan Gupta ruled that it was in clear violation of the constitutional scheme, particularly the procedure and rules of business envisaged by Article 166(3) of the Constitution.

Referring to his appointment record, Justice Gupta held that overriding powers had been vested in CPSCM’s post. Even consultation with the ministers and administrative secretaries was not necessary in view of powers bestowed by virtue of a standing order.

Justice Gupta observed that it was not difficult to envision a situation where the state was plunged into crisis following a decision by “such an appointee” because he could not be expected to have the same vision for the state’s development as the Chief Minister.

Any intentional or unintentional lapse on his part could not be questioned by any disciplinary authority. He was also not bound by the oath of secrecy, having superannuated from regular service.
It was also not clear why in the CM’s absence, the next senior-most minister or the minister in-charge would not assume command and authorized to take important decisions. There could be no justification for vesting such extraordinary power in the CPSCM apparently in violation of Article 166(3).

Justice Gupta noted that a post in the cadre strength of IAS in the state was kept vacant to facilitate his appointment. The speed and alacrity with which the file moved thereafter showed that his appointment was to play an important role in decision-making.

Justice Gupta also refused to accept the state’s argument that he was not holding a public office and the government was not accountable to courts while appointing a person unless the post was a “public office”.

Justice Gupta held that Kumar had been given wide discretion to take decisions. “To hold that office held by him is not a ‘public office’, would not only be absurd but against the record.”
Justice Gupta noticed that the emphasis had been laid in the noting file on “senior, experienced and retired IAS officer” for fulfilling the commitments. Dubbing it as “inexplicable”, Justice Gupta said the use of the word “and retired” in the noting made it almost mandatory to appoint a retired IAS officer on the newly-created post. Reason for the “policy decision” at the time of the file’s inception was not forthcoming.

It was unclear why the same functions could not have been performed by an in-service officer. The state has liberty to make a choice, but it had to be within the Constitution’s framework. “Due to creation of a new post, the state was left with no option but to keep an existing post in the IAS cadre in abeyance to facilitate his appointment.” Justice Gupta added that the post was neither comprehended by the rules nor was it a “cadre post”. It was, therefore, inexplicable how a person appointed as CPSCM could exercise the powers vested in the “Principal Secretary” to the CM.

Unwilling to continue, says retired IAS officer

Suresh Kumar, when contacted, said he was unwilling to continue in the government. “I had resigned almost two months ago, and have relinquished the charge now,” he said. “The case was contested by the Punjab Government and it is their decision if they want to file an appeal,” he added.

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