Ravi S. Dhavan, C.J & Shashank Kumar Singh, J.:— The present appeals arise against an order dated 10 January, 1997 on CWJC, Nos. 12050 of 1993 & 12420 of 1993. The petitions were brought by persons who had been appointed as Agricultural Inspectors and equivalent post holders known as Bihar Agricultural Graduates. The issue submitted on the appeal was about drawing the attention of the court to two decisions of the Council of Ministers. One is dated 25 August, 1987. This decision refers to a change in the scale of pay of Bihar Agricultural Inspectors and equivalent post from Rs. 850-1360 to Rs. 1000-1820. This is shown from the record sent for publication in the Government Gazette as Gazette Publication No. 10088 Kri. Patna dated 18 September 1987. The other record on which the Court's attention is drawn is a decision, also, of the Council of Ministers dated 1.9.1987 This is about merger of the post of Bihar Agricultural Inspectors and equivalent post with Bihar Agricultural Service Class-II post. This decision was also formalised for publication in the Gazette as Gazette Publication No. 3805 Kri. Patna dated 30 March 1988.
2. It has been submitted before the court that all that the petitioners-appellants desire is to close this long controversy on the decisions of the Cabinet otherwise formalised into a notification and meant for publication. It is contended that the notification be given effect to. It is submitted that once the Cabinet had taken a decision and the action was formalised for publication on behalf of the government then the publication must see result as the Constitution so ordains. This is one aspect of the matter.
3. There were intervenors to the writ petitions. It is contended on their behalf that there is a possibility of their seniority being jeopardized as they are direct recruits. Given an occasion they would not like the formalisation of publication of Gazette. But, this will bring no solution to anybody neither the petitioners-appellants nor the intervenors as the state of affairs will remain as a controversy in the unpublished Gazette Notification on which the Council of Ministers had taken a decision.
4. The matter is basically of government inaction and not that any matter is pending as an issue before the court. It is necessary for the court to record this.
5. In so far as the intervenors are concerned, their attention was drawn by the court that the matter cannot be isolated from an Act of legislature not referred to in any of the record of the proceedings before the court. The Act is known as Assistant of the Secretariat and Attached Offices Joint Cadre Act, 1989 (Bihar Act 9 of 1989). Under the Act, rationalization is spelled out for a combined gradation list for each of the Assistants Selection Grade, Assistant Section Officers, Registrars and Under Secretaries and beyond these ranks. The exercise has never been ventured into in the present context. The determination of seniority has been provided for in Section 5 of the Act. Learned counsel for the intervenors submitted that if this will be indicated and the matter is left open it would suffice the purpose in so far as the intervenors are concerned. Thus, now between the petitioners and the intervenors, there is no issue.
6. But, a strange submission was presented to the court by the State Counsel. It is submitted on behalf of the State that the Cabinet decision whether of 25 August, 1987 or of 1 September, 1987, the decisions were wrong and illegal and were taken against all norms and principles. The question arises who submits this? Firstly, it is a very unusual for a State Counsel to submit that the Council of Ministers has taken a wrong decision. A wrong decision, if taken, must be formally retracted. Otherwise, a decision formalised for publication as a notification has created rights in public employment. Perhaps, this is only to avoid implementation of a decision which was taken but never saw a result by publication of a Gazette Notification.
7. There are no issues before the High Court now. But on the presentation of the State government's case the court is called upon to certify that the Council of Ministers has taken a wrong decision. The court wonders whether the parameters of such a plea are available to the government itself that the High Court may invoke its certiorari jurisdiction to certify the Council of Ministers as wrong. No facts are before the court as the counter affidavit was never filed. It does not stop anyone from making a submission. But when it comes down to the consideration of it, it might leave a very dangerous trend. For instance, once a Council of Ministers have taken a decision all action has to be taken in the name of the State and the head of the State is obliged to formalise the decision for it is bound by the decision of the Council of Ministers. If there be other norms of governance then it may be indicated to the High Court. The court is prepared to consider this argument. But the question is where will the proceedings go hereinafter? If this matter related to the Government of India, the court would have drawn the attention of the Cabinet Secretary that a submission and been made by a Counsel for the Central Government that the Cabinet had taken a wrong decision. Thus, attention be drawn of the Chief Secretary, Government of Bihar, of the issues which are now being presented though there are no issues left between the petitioners and the interveners. This is a matter which is one of urgency, therefore, the Court cannot give stretched time in an already stretched proceeding, still pending. Thus, the order be dispatched to the Chief Secretary be so kind to present himself to justify how the Cabinet has taken a wrong decision and he may have the liberty to do so but with all the records which are in his possession, provided he would like to take up such a stand.
8. Put up tomorrow under the same heading.
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