JUDGMENT
1. Petitioner has called in question Order No. 447 of 2006 dated 28-06-2006 contained in annexure-A to the writ petition, passed by the Secretary, J&K State Sports Council (hereinafter to be referred to as the Council), on the grounds taken therein. Respondents have filed reply and resisted the petition.
2. During pendency of the writ petition, this Court vide order dated 03-02-2007 restrained Ravinder Gupta, present Secretary from operating upon the funds of the Council.
3. Learned Counsel for the petitioner argued that the Secretary of the Council namely Mr. Manoj Pant (IFS), the then Director of the Council, was a member of the Council and was also nominated Secretary of the Council. He continues to be the Secretary even through he has been transferred. Thus respondent No. 3 – Vice President was not competent to pass the impugned order and empower Shri Ravinder Gupta, present Director of the Council to hold the charge of the office of Secretary of the Council. In the alternative he argued that even if the post of Secretary of the Council had fallen vacant, the Secretary was to be elected from the members of the Council in terms of the Rules and Regulations of the Jammu and Kashmir State Sports Council (for short Rules). He further argued that Council is having two Joint Secretaries as per Rules, the vice President could have asked one of the Joint Secretary to perform the duties and functions of the Secretary till elections.
4. Learned Counsel for the respondents argued that the then Secretary of the Council Shri Pant, IF A, was posted as Director of the Council, came to be nominated as member of the Council vide Government order No. 46-Edu (Tech) of 2005 dated 24-03-2005 and elected as Secretary of the council. By his transfer, the post of Secretary had fallen vacant because he ceased to be the member of the Council. Further he argued that Manoj Pant had made a written request that he has been transferred and he is no longer member of the Council and could not hold the charge of the Secretary of the Council and had sought instructions to whom he would hand over the charge of the Secretary of the Council. Accordingly Government passed order No. 788-GAD of 2006 dated 24-06-2006, impugned in this petition. Shri Pant is not aggrieved of the said order. Ravinder Gupta, Director Youth Services and Sports is performing the duties right from 25-06-2006. However, after lapse of six months, petitioner challenged the order on the ground that the same is against the Rules.
5. Learned Counsel for the respondents argued that the petitioner has no right or locus to challenge the order. While defending the impugned order, he argued that the impugned order is just an interim arrangement till elections are held and Vice President is within his powers to make such orders in order to run the affairs of the Council, because he has the power to preside over the meetings of the Standing Committee, to exercise powers to take emergent decision(s) and to implement and carry out the decision(s) in terms of the mandate of Rule 19 of the Rules.
6. Heard learned Counsel for the parties.
Admit. With the consensus of learned Counsel for the parties, the case is taken up for final disposal.
7. At the outset it is apt to mention here that I deem it proper not to thrash out and determine as to whether petitioner has locus to challenge the impugned order, but to decide the issue that whether respondent No. 2 has the powers and jurisdiction to pass the impugned order.
8. The sole question which calls for determination is whether Vice President – respondent No. 2 was having powers to pass the impugned order. In order to reply this question, it is necessary to notice relevant provisions of the Rules.
Sub-rule (c) of Rule 1 defines Council – Standing Committee – member. It is profitable to reproduce sub-rule
a)xxxxxxxxxxx
c) Council” shall mean the Jammu and Kashmir State Sports Council.
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h) “Standing Committee” Shall mean the standing Committee of the J&K State Sports Council.
i) “Member” shall mean the member of the J&K Sports Council. Rule 5 gives composition of the Council. It reads as under:
Composition of the Council”: The Council shall consist of twenty nine members including the President and Vice President to be nominated by the Government:
(i) President.
(ii) Vice President.
(iii) Four members from amongst Government Officials.
(iv) Twenty three members from amongst outstanding sports persons, persons of repute connected with Organization of Sports and Games in the state, well known Physical Educationists, Sports Correspondents and Commentators and representatives of recognized Associations.
9. As per this Rule, President and Vice President are to be nominated by the Government. Four members are to be nominated from amongst Government Officials and 23 members from amongst outstanding sports persons, persons of repute connected with Organization of Sports and Games in the state, well known Physical Educationists, Sports Correspondents and Commentators and representatives of recognized Associations. Rule 6 reads as under: “Secretary, Treasurer and Joint Secretaries:
The council shall elect from amongst themselves four of its members to act as under:
(i) Secretary.
(ii) Two joint Secretaries (One for each Province).
(iii) One Treasurer.
10. It provides that Secretary is to be elected from members of the Council meaning thereby that out of 27 members excepting President and Vice President as per Rule 5. Rule 7 gives tenure of office of the members and office bearers of the council. While going through the communication made by Manoj Pant, the then Director, it appears that he had become member of the Council being Director Youth Services and Sports and he ceased to be a member because of his transfer made vide Government order dated 24-6-2006 and in terms of that communication, the impugned order came to be passed. Thus one comes to irresistible conclusion that the post of Secretary had fallen vacant because of his transfer read with the communication referred to hereinabove.
11. Secretary is to be elected as per Rule 6 of the Rules referred to herein-above. Whether Vice President could have asked the present Director, Youth Services and Sports Council, Shri R. Gupta to hold the charge of the office of Secretary? My answer is in the affirmative for the following reasons:
12. In terms of Government order No. 46-Edu (Tech) of 2005 dated 24-03-2005, ]&K Sports Council came to be reconstituted. Due to the change of power/change of guard in the Government in 2005 when Shri G. N. Azad took over as Chief Minister, there was reshuffle of cabinet and new Cabinet came to be constituted and there-after it was necessary to reconstitute the council, which so far has not been done, as admitted by both learned Counsel for the parties. Thus the council is without President and other members. In the given circumstances and as per Rules, it is the duty and responsibility of the Standing Committee to carry on the work/functions/affairs of the council. It is necessary to reproduce Rule 12 and 14(i) hereunder:
12. Composition of the standing Committee:
The standing committee of the Council shall consist of 11 members including the Chairman as under:
i. Vice President of the Council – Chairman.
ii. Secretary.
iii. Two Joint Secretaries.
iv. Treasurer.
v. 6 members to be nominated by the President.
14. Functions and powers of the Standing Committee:-The standing Committee shall be the Principal Executive Body of the Council and will have the following functions and powers:
1. Subject to policy direction and general control of the Council to be responsible for carrying on the work of the Council.
2. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
13. Rule 12 gives composition of the Standing Committee and Rule 14(i) provides as what is the responsibility of the Standing Committee for carrying on the work of the Council. Now the question is as to who will preside over the Standing Committee. Vice President has to preside over the Standing Committee and he is within his powers to take emergent decisions. It is profitable to reproduce extract of Rule 19(B)(iii) and (iv) hereunder:
19) Powers and Functions of the Office bearers:
(A)…
(B) Vice President:
(iii) Shall exercise such powers and discharge such functions as may be delegated to him by the President.
(iv) Shall have powers to take emergent decisions and implement them during the periods intervening the meetings of the Standing Committee or if for any person it is not possible to call a meeting of the Standing Committee….
14. Vice President of the Council is the authority who has take emergent decisions and the Standing Committee has to carry a the business of the Council meaning thereby that it is the Vice President who is responsible for carrying on work of the council. Thus in the given circumstances, the Vice President was within his powers to ask present Director to hold the charge till elections are held. Not only has he the powers to carry on the work, but he is within his powers to take emergent decisions.
15. Secretary is the only authority who can operate bank accounts and who has the powers to pass bills/vouchers for payment as per approved budget. It is profitable to reproduce Rule 19(c)(iv) hereunder:
Shall operate the Bank account, shall have powers to pass bills and vouchers for payment as per approved budget.
16. As per the Rule supra, without Secretary, bank account cannot be operated upon and bills and vouchers could not have been approved for payment as per budget allocation. In the given circumstances, it is one of the emergent decisions which was to be taken by the Vice President and he has rightly taken the said decision and no fault can be found with the said decision of the Vice President. I am fortified in my view by a judgement of this Court delivered on 25-9-1995 in OWP No. 266/1995 titled Sheikh Fazal Ahmad v. State of J&K and Ors., the relevant para whereof is reproduced hereunder:
…Coming to the main claim of his case that Secretary of the Sports Council was to be elected and could not have been nominated by the Government, the issue loses its sting and force on the statement made by Mr. R. Pant, GA, that the Secretary, Mr. Mehboob Iqbal was only appointed in an interim arrangement to facilitate the election of the Secretary of the Sports Council in accordance with the Rules of the Society. Therefore, taking in regard that appointment/nomination of Mr. Mehbob Iqbal was only by was of interim arrangement, it would be futile to declare it invalid at this stage. On the contrary it would be appropriate to have it till the elections are held by the council to elect the new Secretary….
17. The argument of Mr. Qureshi that the Vice Present could have asked one of the Joint Secretaries to perform the job of Secretary is devoid of force for the following reasons:
Rule 19 (E) so far it is relevant for the present case is extracted hereunder:
E. Joint Secretaries:
i. Shall assist the Secretary in carrying out the decisions and supervising the works and activities in respective provinces.
ii. To function in absence of the Secretary or running day to day business of the office with the approval of the Vice President.
18. As per above provision of law, the job and function of the Joint Secretary is to assist the Secretary in carrying that business and supervise the works and activities in respective of respective provinces. Further Joint Secretary can function in absence of the Secretary for running “day to day” business of the office/business with the approval of the Vice President, meaning thereby that whatever day to day business the Joint Secretaries had to conduct, it was to be conducted with the approval of the Vice President. As per The New Shorter Oxford English Dictionary, the word ‘day to day’ is defined as “continuous(ly), routine(ly)….” Thus the Joint Secretary could have attended routine business for a day. It means that when the absence of the Secretary is casual, for that day, the routine work could be attended by the Joint Secretary, but he cannot operate upon the bank accounts and could not perform other business than the one given in Rule 19(E). In the given circumstances, I am of the firm opinion that the writ petition is not maintainable being devoid of any force accordingly it merits to be dismissed.
19. For the foregoing reasons, the writ petition along with all CMPs is dismissed and the interim direction vacated. But I deem it proper to direct the respondents to conduct elections for the post of Secretary of the Council within one month commencing from 2nd April 2007.