B.D. Agarwal, J. - (1.) THE petitioner was appointed Upper Division Clerk in the office of the U.P. Public Service Commission at Allahabad in the year 1963 and confirmed in 1971. In the year 1978 he was promoted as Section Officer. On July 18, 1981 he was placed under suspension upon certain charges; the departmental proceedings were initiated. As a result of the enquiry, the petitioner was reverted to the rank of the Upper Division Assistant by order dated April 24, 1982 and by another order passed the same day he was dismissed from service. Against these the petitioner preferred an appeal to the State Government which called for the record and upon scrutiny thereof set aside the order of dismissal. The appellate order made by the State Government is dated August 30, 1986. The stand taken by the Public Service Commission to the effect that the State Government was not competent to make a review of the matter under the provisions of Rule 69 of the Civil Services (Classification, Control and Appeal) Rules was negatived. It was observed that in the course of the enquiry the petitioner had not been given opportunity to cross examine the witnesses produced for the Commission; it was pointed further that the petitioner did not get reasonable opportunity to produce evidence from his side and that his application thus supported by medical certificate for time was wrongly dealt with. There was, in the opinion of the State Government, no reasonable opportunity of being heard given to the petitioner as contemplated under Article 311(2) of the Constitution. The order of dismissal was consequently set aside, as mentioned above, and it was directed that the Commission shall enquire into the matter again in accordance with law and that till then the petitioner shall be reinstated as the Upper Division Assistant and also that the orders be passed for the payment of salary to him for the period commencing on the date of dismissal till the reinstatement. The petitioner applied to the Commission on September 3, 1986 for being permitted to join. He sought implementation of the order made by the State Government which, however, has been declined by the Commission. The petitioner has thereupon approached this Court under Article 226 of the Constitution seeking a writ of direction in the nature of mandamus requiring the respondents Nos. 1 to 3 to allow the petitioner to join as Upper Division Assistant in pursuance of the order of the State Government dated August 30, 1986 and to pay him salary with other benefits attached thereto.
(2.) WE have heard Sri R.R.K. Trivedi, learned counsel for the petitioner and Sri Vinod Misra, Standing Counsel appearing for the Public Service Commission. Sri Vinod Misra urged that the Commission is not subordinate to the State Government and, therefore, the State Government could not have the power to nullify the order of dismissal made by the Commission against the petitioner or to direct the Commission to reinstate the petitioner as Upper Division Assistant. In our view the submission is misdirected, There is no question as such of the Commission being placed under subordination to the State Government in this respect; in the correct perspective the question raised is of mere enforcement of statutory regulations framed in this behalf. Article 318(b) of the Constitution confers power upon the Governor to make regulations as to conditions of service of members and staff of the Commission. It is provided, inter alia that the Governor may make provision with respect to the number of members of the staff of the Commission and their conditions of service. It may not be open to doubt that conditions of service of members of the staff would include the right and the forum for appeal by an aggrieved member of the staff against the order passed in disciplinary proceedings. In exercise of powers under Section 265(2) of the Government of India Act, 1935 (Corresponding to Article 318 of the Constitution), the Governor framed the U.P. Public Service Commission (Conditions of Service) Regulations. Chapter III of those Regulations deals with the composition of the staff of the Commission. Part II lays down the conditions of service. Regulation 20 as amended from time to time provides that appeals against the orders of the Commission shall be made to the Governor. Reference may also be made to Regulation 28 of the U.P. Public Service Commission Staff Regulations, 1942 which lays down: - - 28. Regulation of pay, leave allowance, pension and other conditions of service: - - Except as provided in these regulations or in any special declaration or order made by the Governor, all matters relating 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 Uttar Pradesh Government in so far as they are not inconsistent with any provisions expressly made in these regulations or in the Uttar Pradesh Public Service Commission (Condition of Service) Regulations.
(3.) RULE 69 of the Civil Service (Classification, Control and Appeal) Rules 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 specifies that whenever a petition is preferred under rule 69, it shall contain all material statements and arguments relied on by the petitioner. The provisions made in Rule 69 has to be read along side with Regulation 28 of the 1942 Regulations, referred to above. For all practical purpose, in our words, the provisions made in Rule 69/69 -A has been adopted in relation to Members of the Staff of the Commission in pursuance of the statutory regulations framed under Article 318 of the Constitution, even though the Commission is as such not an authority subordinate to the State Government in the general sense. The vires of the Regulation 1942 or the U.P. Public Service Commission (Conditions of Service) Regulations existing in this respect is not under challenge before us.;