Direction/order of Prime Minister

  1. —rule 15— the Rules of Business, 1985 —  consultation with the Finance Department—mandatory— clause (c) of sub-rule (1) of the Rule 15—- change in number in number or grading of posts order having effect on finance of the Govt.—prior consultation with the Finance Department—mandatory under the Rules of Business— Rule 4 & 5— AJ&K Grant of and Appointment to BS-21 & B5-22 Rules, 1994- BPS-21 and BPS-22—being selection  posts shall be selected in on the recommendations of the selection Board constituted by the Government from time to time—-no required procedure adopted—for given grade 22 to the respondent—except the order of the Prime Minister— For implementation of the order of the Prime Minister , the respondent filed writ petition before the High court and the learned High Court while accepting the same issued the direction as ,The question arises; whether, the worthy prime minister without adopting any proper process was equipped with the powers to grant BPS-22, to the respondent in view of his meritorious service career. To reach the right conclusion, we have examined Rule 4 and 5 of the AJ&K Grant of and Appointment to BS-21 & B5-22 Rules, 1994,   and RuIe 15 of the Rules of Business. Rule 15 of the Rules of Business, 1985 postulates that without prior consultation with the finance department no department shall be authorized to issue any order which directly or indirectly affects the finance of the Government. Furthermore, clause (c) of sub-rule (1) of the Rule 15, speaks that the matters where change in the number or grading of the posts or the terms and conditions of service or Government servants or their rights and privileges which have financial implication, are involved the prior consultation With the Finance Department is mandatory. Item 15 of the schedule 3, of the Rules of the Business, 1985, provides that in the matter for appointment and promotion of officers to the posts of BPS-19 and above,  the cases shall. Be submitted to the prime Minister. Moreover, the  AJ&K Grant of and Appointment to BS-21 and BS-22, Rules 1994, provides that the posts of  BPS-21 and BPS-22 shall be the selections posts and the same shall be selected in on the recommendations of the selection Board constituted by the Government from time to time under law. The juxtapose perusal of the  relevant provisions of law leads us to the conclusion that a proper procedure has been provided to deal with the matter, but in the instant case, except the ,above referred approval nothing is available on record to that the respondent fulfilled the criteria laid down in the relevant Rules, me same ‘was accorded. This way, procedure provided under law has not been adopted while granting BPS-22 to the respondent. AJK Government & others v. Khurshid Ahmed Chaudhary 2017 SCR 936 (A)
  2. —according of grade 22—by Prime Minister—without following mandatory procedure—argument: Prime Minister is empowered to accord as such—held: no one is above law—including Prime Minister and President—person holding highest posts should be more careful—while dealing with such matters—they are not supposed to violate the rules and regulations— direction/order of Prime Minister—void order—cannot be given legal cover—The argument of the learned counsel for the respondent that the prime Minister being Chief Executive of the State is empowered to accord such approval, cannot be considered as a valid argument as no one is above law including the president and the Prime Minister. It may be observed here that the persons holding the highest posts of the state should be more careful while dealing with such like matters and they cannot be supposed to violate the rules and regulations. As no justification has come on the record to grant the special treatment to the respondent, therefore, the approval accorded by the worthy prime Minister cannot be given a legal cover, rather the same comes within the void order which cannot be implemented under law. This Court has time and again held that only such order/direction of the prime Minister can be implemented which is consistent with law. AJK Government & others v. Khurshid Ahmed Chaudhary 2017 SCR 936 (B)
  3. —Approved by Prime Minister—approval for creation/upgradation of a post—without consultation with the Finance Department—order of Prime Minister held as void being against law—the Prime Minster accorded the approval for creation/upgradation of a post without consultation with the Finance Department and taking into consideration that the rights of the other civil servants of the department, who are senior to the appellant in the same cadre, will be affected—Held: such order clearly comes within the purview of a void order which under law could not be implemented. Shabir Ahmed Qureshi  v. Azad Govt. & others  2019 SCR 85 (A)
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