D&A Rules – Determination of Appointing Authority

No.E(D&A)88 RG6-12, dated 07.05.1990

Sub: Determination of “Appointing Authority” under Rule 2(1)(a) of the RS(D&A)Rules, 1968 for the purpose of ascertaining authority competent to impose the penalties of dismissal, removal or compulsory retirement.

1. A full bench of the Central Administrative Tribunal / Hyderabad in their judgment dated 04.12.1987 in the case of Sheikh Khadar Mastan and Nookaraju vs. South Central Railway Administration etc. [1988 (2) SLJ 277 (CAT)] had given certain interpretation about determination of the ‘Appointing Authority’ on the Railway in terms of Rule 2(1)(a) and 7 of the RS(D&A) Rules, 1968 and Para 215 of the Indian Railway Establishment Code, Vol-II (1985 Edition) as well as the relevant entries in Schedule-II to the RS(D&A)Rules, 1968. The full bench had come to the conclusion that the Divisional Mechanical Engineer and the Divisional Railway manager, although they had actually appointed S/Shri Khadar Mastan and Nookaraju, were not competent to impose the punishment of dismissal, removal or compulsory retirement on them. The full bench were of the view that the DME and DRM were only the delegates of the General Manager in the matter of making appointments and gave the following main grounds in support of the aforesaid conclusion:-

(a) It is by virtue of delegation that appointments to Group ‘C’ and Group ‘D’ may be made by an officer subordinate to the General Manager. But the General Manager also continues to be competent to make these appointments and amongst offices competent to appoint, General Manager happens to be the highest authority. Hence, so far as Group ‘C’ and Group ‘D’ Railway Staff are concerned, only the General Manager shall be the appointing authority within the definition of ‘Appointing Authority’ contained in Rule 2(1)(a).
(b) Delegate of an appointing authority by virtue of mere delegation of power to appoint is not competent to impose the punishment of dismissal, removal or compulsory retirement.
(c) The rule making authority intended that while the power to appoint Group ‘C’ and Group ‘D’ staff may be delegated, a person once inducted into service ought not to be removed, dismissed or compulsorily retired except by the highest of the authorities competent to appoint, which in the case of Group ‘C’ and Group ‘D’ staff is the General Manager.
(2) An appeal against the above judgment was filed in the Supreme Court. The Supreme Court have given their decision on the same issue vide their judgment dated 10.04.1990, a copy of which is enclosed. They have come to the following conclusion:-

(i) In the first place, it is clear, on the plain language of the Rule 2(1)(a) that it directs the ascertainment of the authorities specified in each of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the ‘Appointing Authority’.
(ii) Secondly, Rule 2(1)(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned employee holds. In that sense, the two parts of clauses (i) and (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service, (b) to the grade and (c) to the post and consider the highest of them. One has to restrict oneself to the post or grade of the government servant concerned and invoke clause (i) or (ii) as the case may be.
(iii) Thirdly, the whole purpose and intent of the Rule 2(1)(a) is to provide that appointing authority means either the de facto or the de jure appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment. Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition is to safeguard against an infringement of Article 311(1) of the Constitution of India and ensure that a person can be dealt with only by either a person competent to appoint person of his class or the person who appointed him, whoever happens to be higher in rank. That rule is not infringed by the interpretation placed by the appellants. The provisions of the Schedule-II in the case of Railways which specify the Appointing Authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation.
(iv) Fourthly, if any person is appointed by a superior schedule authority despite delegation of such power to a subordinate authority, such superior authority would be the person who has factually appointed the employee and he will clearly be the ‘Appointing Authority’.
(v) The appointing authority under the Schedule is a high ranking authority and, in an organization like the Railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organization. It is indeed this realization that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.

(3) The aforesaid points made in the Supreme Court judgment will indicate that they have vindicated Ministry of Railway’s stand that it is not necessary for the General Manager to dismiss or remove even Group ‘C’ and Group ‘D’ staff like S/Shri Khadar Mastan and Nookaraju, who were appointed by lower authorities.
(4) The Supreme Court have decided the principle on the point of law regarding determination of ‘Appointing Authority’, as mentioned above. The Supreme Court have not touched upon the facts or merits of individual cases (except for 3 or 4 of individual cases of S.C.Railway). They have directed the Tribunal / High Courts to pass fresh orders disposing of the applications in other individual cases filed before the Tribunal / Courts in the light of their judgment about the principle involved. In view of this, necessary action may please be taken to have all the cases involving the above point which are pending as well as those already settled in the different Courts / CATs decided as quickly as possible by filing special applications in the Courts or Tribunal concerned.

Download Railway Board Circular dated 07.05.1990

Forward reference⇒RBE No.