CM Eknath Shinde Has No Power To Interfere With Decision Of In-Charge Minister On Subject Matter Assigned: Bombay High Court

Justice Vinay Joshi and Justice Valmiki SA Menezes of the Nagpur bench quashed CM’s order staying the recruitment process of the Chandrapur District Central Co-operative Bank observing that the subject fell under the authority of the Minister of Co-operation.

The court held –

“The Intervention of the Chief Minister is wholly unwarranted and without the authority of law. The Chief Minister has no independent power under the Business Rules and Instructions to interfere into the subject which was allocated to the In-charge-Minister”.

The court added that there must be express provision authorizing the CM to act on a matter assigned to a particular Ministry. 

"Once the powers are distributed by the Rules of Business and Instructions, there must be an express provision authorizing the Chief Minister to indulge in the matter assigned to the particular Ministry. Since a Minister-in-charge of a department is supposed to function for the concerned department, he is responsible for the affairs thereof and his orders would assume the character of an order passed by the State Government". 

The court added that under the Maharashtra Government Rules of Business and Instructions the Minister is not subordinate to the Chief Minister regarding independent functioning of a department assigned to him.

“…the Chief Minister has no independent power assigned under the Rules of Business and Instructions issued thereunder to review or modify the decision taken by the concerned In-charge-Minister, therefore, the impugned order of stay granted by the Chief Minister would not stand on this legal touchstone.”

The bank operates in 93 branches over the Chandrapur district. It has approved staffing pattern of 885 employees; however, 393 positions are currently vacant. On the bank’s proposal, the Commissioner of Co-operation granted permission for initiating recruitment process. Consequently, the bank issued public advertisement inviting applications from recruitment agencies to undertake the recruitment process.

On May 12, 2022, the Divisional Joint Registrar (Co-operative societies) stayed the recruitment process. The petitioner approached the Minister of Co-operation who vacated the stay on November 23, 2022. However, on November 29, 2022, the Chief Minister again stayed the recruitment process. Hence the present petition by the bank,

The issue before the court was whether the CM had the power to pass an order on a case which is the subject matter assigned to another Minister.

The court said that there is no Rule among the Business Rules empowering the CM to “intermeddle” with the business of a department assigned to another minister. Further, the Instructions do not confer supervisory or appellate powers on the CM to reverse the decision of the Minister in-charge, it held.

Instruction no. 4 specifies that Minister in-charge of a department shall dispose of the cases of the department and orders passed by the concerned Minister would be orders of state government, the court noted.

The court noted that Instruction no. 11 authorizes the CM to “see papers” of any department but there is no express power to take a decision regarding any department.

The court further held that Instruction no. 21 does not empower the CM to decide cases of a particular department. It only states that the inter departmental cases shall be submitted to the CM to obtain orders for circulation. It provides the mechanism for considering any subject by circulation only, the court said.

The CM can bring any subject before the council of ministers under Rule 9 of the Business Rules. It does not mean that CM is empowered to pass orders on any subject before he places the matter before the council, the court held.

Further, there is no Rule of Business or Instruction framed by the Governor of Maharashtra under article 166(3) of the Constitution which vests residuary powers with the CM, the court said.

The court held that an authority must be vested with initial power to pass orders on a subject, only then incidental power to add, amend, rescind etc can be read into it as per Section 21 of the General Clauses Act. However, in the present case, the initial power to pass orders on the subject is with the Co-operation Ministry and hence Section 21 doesn’t apply to justify the impugned order, the court held.

The court concluded that permission for recruitment is an administrative order which can be reviewed only by the in-charge Minister and the CM’s intervention is not authorised under the Business Rules and Instructions.

Case no. – Writ Petition No. 8041/2022

Case Title – Chandrapur District Central Co-operative Bank Ltd. and Anr. v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 147