Above: Bureaucrat Suresh Kumar with Chief Minister Amarinder Singh

A single bench of the high court has set aside the appointment of a retired IAS officer who was made chief principal secretary. The government has appealed to a two-judge bench

~By Vipin Pubby in Chandigarh

Nearly a year after he retired as additional chief secretary in the Punjab government, Suresh Kumar was called in March last year by Chief Minister Capt Amarinder Singh, and offered the most powerful post after himself.

Suresh Kumar, a 1983 batch IAS officer, who had resigned himself to a leisurely, retired life, sounded reluctant to take on the responsibility. To make it more attractive and to leave no ambiguity about his role and powers, Singh designated him chief principal secretary and gave him the status, pay and perks of a cabinet secretary at the centre.

Such a post had only one precedent and that was an appointment made by Prime Minister Narendra Modi when he was the chief minister of Gujarat. The designation left no one in doubt that he would call the shots over the chief secretary and would be senior to the cadre post of principal secretary to the CM.

Known to be a no-nonsense officer, Suresh Kumar was a key man in Singh’s previous tenure. In view of his efficiency and experience, he was given vital posts in the Badal government. He neither sought nor was given another job after retirement, although it would have been offered to him if he had shown  interest.

Singh, however, had his way and made him join the CMO shortly after he took over the reins of office in March last year. This obviously led to heartburn, particularly from vested interests within the CMO. As is his wont, Singh depends on a coterie and this was the major cause behind the defeat of his party in the 2007 elections. It took him a decade to return to power but this dependence on a coterie remains. The only difference this time is that he has asked some of his close confidantes, who were known to control access to him, to keep a low profile. Thus, some of them are not seen in public but continue to pull the strings from behind the scenes. There is also a new set of advisors who keep a close watch and aid the chief minister in different fields. The large number of official and non-official advisors has led to intense rivalries.

Kumar sought to keep a distance and avoided being party to any group. For that he had to pay the price. Although no evidence is available, some of the affected parties propped up a resident to file a case to challenge his appointment. The plea was admitted and a few hearings took place. Although Kumar was made a party, he declined to fight the case, forcing the government to let its advocate general argue the case.

However, the single-judge of the high court seemed convinced that it was an illegal appointment and set his appointment aside on January 17 last. Justice Rajan Gupta declared that Kumar was holding a public office without authority. He concluded that Kumar was enjoying “inherent powers” and that it was unusual for “a contractual employee to be given the powers of the chief minister”. The judge went on to note that “giving rank and status of cabinet secretary to Suresh Kumar conveys that he would be higher in rank to the chief secretary which may create anomaly in the hierarchy of the administrative secretaries in the state”. He ruled that the officer was holding the post “in violation of Article 166 (3) of the Constitution” and thus the appointment was “null and void”.

Kumar took little time to clear his desk and pack his bags. He declined to challenge the verdict and went off for a vacation. In the meantime, it was known in bureaucratic circles in Chandigarh that the development was celebrated by a section of people and even prayers were conducted to thank the Almighty.

Kumar refused to take legal help and hire a lawyer to fight the case. This time, the state government was more careful about the appeal before a division bench of the high court and argued that the single bench judge had “incorrectly concluded” that the officer was enjoying “inherent powers”. It pointed out that the officer was not given any powers to take decisions and that he was merely to record and convey the decisions taken by the chief minister.

GOVERNMENT APPEAL

In its appeal, the government said that even “in such limited and rare disposals as per telephonic instructions, a second layer of protection is built into standing order in the form of an ex-post factor approval, so as to ensure that the directions conveyed by the CM to Suresh Kumar are executed in their true spirit and no part of instruction are lost in transit nor in lack of communication”. It affirmed that there was no delegation of power and giving him the status of cabinet secretary did not convey that he enjoyed the powers of cabinet secretary. The appeal stated that the state had “unequivocal powers” to make contractual appointments and denied that he held a public office and had the power to perform any sovereign functions of the state. It questioned the jurisdiction exercised by the single bench in the matter in a writ of quo warranto and said that the standing order on the officer’s post was “wrongly interpreted”.

The petition filed through Advocate General Atul Nanda stated that the single bench “failed to appreciate that the government has absolute powers to make contractual appointments and so long as the appointment is made on account of exigencies of administration, it is not open to attack under Articles 14 and 16”.

It argued that there is a settled law that when there is no law for any appointment, the appointing authority has “absolute discretion” in the matter. It said that the single bench judge “failed to appreciate that the said post not being a cadre post was not governed by the 1992 rules and the terms thereof were to be at the discretion of the

government”. It denied that the chief minister’s powers were delegated to Kumar and that he was “free to act independently”. It said that his appointment not done in the name of the governor was “at the most a procedural lapse”.

TWO-JUDGE BENCH

Accepting the plea, a division bench of the Punjab and Haryana High Court, comprising Justices Mahesh Grover and Rajbir Sehrawat, issued a notice of motion to the person who had filed the petition against Kumar, to Kumar and to other respondents for April 17.

In order to take no chances this time, Singh took the services of former Union finance minister and senior Congress leader P Chidambaram who appeared for the Punjab government to challenge the single bench ruling. Chidambaram pleaded before the division bench that the appointment of any person as a staff officer to assist the CM was his prerogative. It pointed out that Kumar did not possess the power to pass orders on any file.

Although the division bench has stayed the judgment of the single bench and has posted the next hearing for April 17, it is not clear whether Kumar would immediately join back or wait for the final order. Singh, on his part, had visited his residence a week before the double bench order to persuade him to rejoin if the single bench order was stayed.