In the High Court of Punjab and Haryana at Chandigarh C.W.P. No. 19218 of 2015 Reserved on: 23.02.2017 Date of Decision: March 1st , 2017 Avtar Singh Kalra and others … Petitioners Versus High Court of Punjab and Haryana at Chandigarh and another … Respondents

CWP No. 19218 of 2015 1
In the High Court of Punjab and Haryana at Chandigarh
C.W.P. No. 19218 of 2015
Reserved on: 23.02.2017
Date of Decision: March 1st , 2017
Avtar Singh Kalra and others
… Petitioners
Versus
High Court of Punjab and Haryana at Chandigarh and another
… Respondents
CORAM: HON’BLE MR. JUSTICE P.B. BAJANTHRI
Present: Mr. Rajiv Atma Ram, Sr. Advocate with
Mr. Abhishek Arora, Advocate,
for the petitioners.
Mr. Gurminder Singh, Sr. Advocate with
Mr. Gaurav Chopra, Advocate,
for respondent No.1.
Mr. Puneet Bali, Sr. Advocate with
Ms. Monika Thakur, Advocate,
for respondent No.3.
P.B. Bajanthri, J.
1. In the instant writ petition, the petitioners have assailed the
order dated 22.07.2014 passed by the first respondent (Annexure P/4) by
which respondent no.3 is promoted to the post of Superintendent Grade-II
and further prayed for consideration of the petitioners’ claim to the post of
Superintendent Grade-II w.e.f. the date third respondent was promoted
with all consequential reliefs such as seniority, further promotion along
with interest at the rate of 18% per annum.
2. All the petitioners are working as Senior Assistants in the
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High Court of Punjab and Haryana at Chandigarh (hereinafter referred to
as “High Court”).
3. The third respondent initially appointed as a Driver on
18.03.1991 in the High Court. He was attached with the then Hon’ble Mr.
Justice N.K. Kapoor, Hon’ble Mr. Justice G.S. Singhvi and thereafter in the
year 2005, his services were attached with the then Hon’ble Chief Justice.
The then Hon’ble Chief Justice while invoking Rule 38 of High Court
Establishment (Appointment and Conditions of Service) Rules, 1973
(hereinafter referred to as “Rules 1973”), appointed the third respondent to
the post of Assistant in the High Court while relaxing rule 16(i) of Rules
1973 and re-designated as an Assistant Protocol Officer attached to the
Chief Justice’s office on 20.12.2010 (Annexure P/3), which is in pursuant
to the decision dated 09.12.2010 of the Protocol Committee. Subsequently,
the post of Assistant was equated to that of Senior Assistant. Thus, the
third respondent has entered into the cadre of Senior Assistant.
4. Respondent no.1 notified the seniority list of Senior Assistants
as on 21.07.2014 in which petitioners’ name are at Sr. Nos. 11, 14, 26, 30,
36, 45, 54, 58, 66, 69, 75, 109, 114, 125, 132, 147, 155 and 157
respectively, whereas the third respondent’s name is reflected at Sr. No.
172.
5. The then Hon’ble Chief Justice promoted the third respondent
as a Superintendent Grade-II with immediate effect by relaxing all the
rules to the post of Superintendent Grade-II and was re-designated as
Protocol Officer to the Hon’ble Chief Justice. Consequently, a formal order
was passed while ordering so it was ordered that third respondent would be
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adjusted against the post reserved vide order dated 30.05.2014 for Smt.
Sunayana Jain, Senior Assistant, who is facing disciplinary proceedings by
de-reserving the above said post for the time being. Thereafter, 1st
respondent passed a formal office order dated 22.07.2014 in promoting the
third respondent to the post of Superintendent Grade-II in the pay band of
Rs.10300-34800/- plus Rs.4800/- grade pay from officiating Senior
Assistant to officiating Superintendent Grade-II against a vacant post and
re-designated as Protocol Officer to Hon’ble the Chief Justice (Annexure
P/4).
6. The petitioners’ counsel submitted that under Right to
Information Act, the petitioners have obtained proceedings like Annexures
P/4 and P/5 relates to the various proceedings of third respondent’s
promotion as well as rejection of representation by three Joint Registrars
dated 08.08.2014 seeking certain service benefits on par with one Sh.
Sham Lal Sharma, Joint Registrar. Learned counsel for the petitioners
further submitted that promotion of the third respondent to the post of
Superintendent Grade-II is contrary to rules of recruitment governing the
post. In this regard, he has pointed out that there is violation of rule 12 of
Rules 1973 which relates to the post of Superintendent Grade-II,
contending that Superintendent Grade-II shall be filled by promotion on
the basis of seniority-cum-merit from out of the Senior Assistants having
experience of minimum period of three years and there is also violation of
Rule 30 of Rules 1973 relates to seniority. It was further submitted that as
per the seniority list of Senior Assistants, third respondent is at Sr. No.
172, whereas all the petitioners are seniors to the third respondent.
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Therefore, there is clear violation of Rule 12 read with Rule 30 of Rules
1973. Learned counsel for the petitioners further submitted that Rule 38 of
Rules 1973 has been invoked by the then Hon’ble Chief Justice on count
that there is undue hardship in a case and rest of the mandate under Rule
38 is not at all attracted to the third respondent’s case for the reasons that if
any provision of Rules 1973 would be hurdled for an employee, in such
event, the Hon’ble Chief Justice can invoke Rule 38 after due consideration
of hardship i.e. undue hardship due to particular provision or any provision
of Rules, 1973. Even just and equitable manner concept has not been taken
into consideration. It was further submitted that while taking decision to
promote the third respondent on out of turn basis while relaxing all the
rules, the Hon’ble Chief Justice has not taken note of Articles 14 and 16 of
the Constitution since the post of Superintendent Grade-II is a public post.
Any public post in the High Court is to be filled up only after due adhered
to Articles 14 and 16 of Constitution read with Rules 1973 issued under
Articles 229(1) and 231 of the Constitution herein.
7. Further it was contended that Rule 20 of the Punjab Services
(General and Common Condition of Service) Rules 1994 (hereinafter
referred to as the “Rules 1994”) relates to over riding effect, which reads
as under:-
“Over riding effect – The provisions of these rules shall have
effect notwithstanding anything to the contrary contained in
any rules for the time being in force for regulating the
recruitment and conditions of service for appointment to
public service and posts in connection with the affairs of the
State.”
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Rule 19 of Rules 1994 provides for power to relax any of the provisions of
the rule to any class or category of persons. Rule 20 read with rule 19 of
Rules 1994 over rides Rule 38 of Rules 1973, therefore, invoking Rule 38
for promotion of the third respondent by the then Hon’ble Chief Justice is
contrary to Rules 1994. It was further contended that at the time of
considering the third respondent’s promotion to the post of Superintendent
Grade-II, the petitioners’ names have not been considered even though
admittedly, they are seniors to the third respondent and the third
respondent has not questioned the ranking assigned to him in the seniority
list of Senior Assistants cadre unless and until third respondent is placed
over and above 1st petitioner in the seniority list of Senior Assistants. The
third respondent’s name could not have been considered for promotion to
the post of Superintendent Grade-II overlooking the claims of the
petitioners who are much seniors, since method of recruitment to the post
of Superintendent Grade-II is seniority-cum-merit.
8. For the purpose of invoking Rule 38 of Rules 1973 by the
Hon’ble Chief Justice to get certain benefits on par with one Sh. Sham Lal
Sharma, Joint Registrar, who was earlier designated as Principal Secretary
(Judicial)-cum-Registrar who was stated to be junior to Sh. Ram Kumar,
Joint Registrar submitted representation for extending certain service
benefits which have been extended to Sh. Sham Lal Sharma on out of turn
basis while invoking Rule 38 by the then Hon’ble Chief Justice, therefore,
Sh. Ram Kumar also requested for extending similar benefits granted to
Sh. Sham Lal Sharma, who is junior. While considering the grievance of
Sh. Ram Kumar, the Hon’ble Acting Chief Justice passed the following
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order:-
“I regret my inability to grant the request contained in the
representation by three Joint Registrars dated 08.08.2014 for
their appointment/promotion to the post of Registrar on the
same terms as that of Notification dated 23.07.2014 issued for
Shri Sham Lal Sharma, Joint Registrar, who was earlier
designated as Principal Secretary (Judicial)-cum-Registrar,
although Shri Sham Lal Sharma was junior to them.
2. Shri Sham Lal Sharma was appointed pursuant to an
administrative order dated 17.07.2014 made by the then
learned Chief Justice. The order recorded that Shri Sham Lal
Sharma had been working with the learned Chief Justice as
the Principal Secretary (Judicial)-cum-Joint Registrar; that
he was diligent, earnest, proficient, industrious, dedicated
and efficient in discharge of his duties and that the assistance
rendered by him in conducting the court proceedings always
remained par excellence. The order further stated that his
duties are arduous in nature and that he continued to work
till late evening much beyond the court hours every day. In
view thereof, the then learned Chief Justice in exercise of his
powers under Article 229 of the Constitution of India
upgraded the post of Principal Secretary (Judicial)-cum-Joint
Registrar as the Principal Secretary (Judicial)-cum-Registrar
and promoted him to the upgraded post with immediate effect
by relaxing the rule as a measure personal to him till he
retires on attaining the age of superannuation on 31.05.2015.
The post is to revert to its original rank and status w.e.f.
01.06.2015. Lastly, the order states that he would be entitled
to the emoluments and other perks as admissible to the post of
Registrar.
3. Shri Sham Lal Sharma has been working with me for
almost three and a half months. I find the quality of his work
to be exactly as described by the learned Chief Justice. The
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quality of his work is very good. His ability and willingness to
work hard are obvious.
4. The representation states that in 2011, when the
selection process was underway to fill up the two posts of
Joint Registrars from amongst the Special Secretaries /
Deputy Registrars, a post of Joint Registrar was specifically
created w.e.f. 03.01.2011 which was filled up by giving out of
turn promotion to Shri Sham Lal Sharma who was at the
relevant time officiating as a Special Secretary and he was
not even within the zone of consideration.
A representation in respect of this appointment was
also made which was considered by a Committee. The
Committee chaired by Mr. Justice A.K. Goel expressed the
view that the relaxation in this selection process to exclude
from consideration eligible candidates may affect their right
and that all the eligible candidates in the zone of
consideration should be considered for the post. However, in
view of the observations made in the order of promotion, the
Committee opined that the promotion given may not be
disturbed but may be treated as adhoc subject to all eligible
candidates being considered for the newly created post or for
other available vacancy and that the matter be finalized in the
light of recommendations of the Selection Committee.
5. The grievance of the representation made to me is that
the selection process for the post of Registrar had been set in
motion. The post was to be filled up from amongst the Joint
Registrars belonging to the establishment of this Court. The
interviews were fixed for 23.07.2014. Once again a post was
specifically created / upgraded to Registrar for Shri Sham Lal
Sharma, although he was neither in the zone of consideration
nor called for the ongoing interviews and he has been
appointed / promoted to the post of Registrar out of turn.
6. The Joint Registrars who have made the representation
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stated t hat they have equally unblemished service records
and they have been denied equal treatment. The three Joint
Registrars stated that had a proper selection procedure been
adopted and had they been given an equal opportunity, they
may have been selected. I do not for a moment suggest that
they are wrong. I do not wish to speculate on this issue as I
have not had the benefit of observing the work of the three
Joint Registrars. Their main grievance is that they did not
have the benefit of working with the Chief Justice. They stated
that if they had this opportunity they would have been willing
to work as hard as Mr. Sham Lal Sharma did and would have
been able to demonstrate to the Chief Justice that they were
as hard working and efficient as him. Due to this lack of
opportunity, enormous injustice has been caused to them.
7. I personally believe that an employee ought not to be
given preferential treatment merely because he or she is
attached to the Chief Justice / Acting Chief Justice. This
would be unfair to other employees for they would be denied
the opportunity of even being considered for the benefit.
8. Shri Sham Lal Sharma, however, has been conferred
the benefit, in exercise of the powers under Article 229 of the
Constitution of India by the then learned Chief Justice. The
Chief Justice undoubtedly has the power to do so. It would
not be appropriate for me to upset or even question this
decision. The Chief Justice would obviously have considered
the comparative merits of the employees concerned before
conferring the benefits upon Shri Sham Lal Sharma.
9. I have been requested to confer the same benefit upon
the existing Joint Registrars on the basis of their Annual
Confidential Reports. Conferring ad hoc benefits upon any
particular employee or employees including the three Joint
Registrars would have enormous adverse consequences in the
administration of this Court.
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10. I have been informed that there are certain other out of
turn appointments as well and that other employees have also
been conferred benefits out of turn. Assuming that this is true
it enhances my reluctance to confer out of turn benefits upon
the three Joint Registrars even assuming that they are
equally, if not more, entitled to the benefits conferred upon
Shri Sham Lal Sharma. I am not inclined to grant ad hoc
benefits to the employees selectively. If I grant this benefit to
the three Joint Registrars, several other employees of this
Court in different cadres would insist upon the same benefit
in view their having been overlooked or in view of the persons
junior to them having been conferred benefits of promotion
out of turn and / or any other benefits on an ad hoc basis.
11. I reiterate that I do not for a moment suggest that the
three Joint Registrars were not entitled to be considered when
Shri Sham Lal Sharma was conferred the benefit or that their
performances in any manner in inferior to that of Shri Sham
Lal Sharma. I am not inclined to grant the request on
principle for such a decision would be arbitrary and the same
would have enormous adverse consequences upon the
administration of this Court.
12. I must, therefore, unfortunately decline the request
contained in the representation.”
Thus, the Hon’ble Acting Chief Justice expressed that employee ought not
to be given preferential treatment merely because he or she is attached to
the Chief Justice/Acting Chief Justice. Such granting of undue benefit
would be unfair to other employees as they would be denied opportunity of
even being considered for the benefit. The decision taken in the Ram
Kumar’s case is evident that while giving preferential treatment to an
employee invoking Rule 38 if it is affected similarly situated persons, in
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that event it is not fair and such decision would be arbitrary.
9. Learned counsel further submitted that even though Rule 38
of Rules 1973 provides for relaxing certain rules of Rules 1973 at the same
time there should be compliance of Articles 14 and 16 of the Constitution
which has not been taken note of while promoting the third respondent.
Therefore, for the purpose of promotion of the third respondent to
Superintendent Grade-II, his performance while discharging duties
attached to the Hon’ble Chief Justice and their appreciation are not relevant
since the method of recruitment to the post of Superintendent Grade-II is
only by seniority-cum-merit. Respondent no.3 is at Sr. No. 172 and the fact
that promotion to Superintendent Grade-II has been given upto Sr. No. 9 in
the seniority list of Senior Assistants and the 1st petitioner is at Sr. No. 11
and rest of the petitioners are much over and above respondent no.3. Thus,
order of promotion dated 22.07.2014 (Annexure P/4) is liable to be set
aside and the petitioners’ name be considered for the purpose of promotion
to the posts of Superintendent Grade-II in accordance with rules governing
the post. The petitioners’ counsel in support of the petitioners’ grievance
cited the following decisions:-
1) Satinder Singh Bajwa vs. Registrar High Court of
Punjab and Haryana, CWP No. 7418 of 1993, wherein this
Court has held as under:-
“Before parting with the case, we consider it necessary to
observe that practice of grant of pre-mature / advance
increments does not have any sanction of law. From the
record, it transpires that the incumbents of the office of the
Chief Justice have granted increments to a large number of
employees on the eve of their retirement. This practice cannot
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be commended particularly when it is being followed by the
holder of the highest judicial post in the State. In the bygones
days of kings and princes charity used to be distributed when
the king used to demit the office but in the present day system,
people expect highest degree of restraint from those who hold
judicial offices. The urge to distribute benefits on the eve of
retirement has to be curbed by those who adorn the highest
judicial offices. Even the grant of advance increment or
additional increment with the avowed object of compensating
the employee is not warranted. The only proper course open
to compensate the employee for the loss, he may be put to in
the discharge of his duties, is to make payment of specified
allowances to him during the period he holds that post. We
hope that in future the practice of giving advance increments
or premature increments will not be followed.”
2) Renu and others vs. District & Sessions Judge, Tis
Hazari and another, reported in JT 2014(3) SC(1), the
Supreme Court in para nos. 24, 27, 29, 31 and 35(ii) held as
under:-
“24. In this case, this Court spelt out the powers of the Chief
Justice of the High Court in the matters of appointment of
staff of the High Court, but this Court did not lay down in any
way that the Chief Justice can exercise such powers in
contravention of the provisions of Articles 14 and 16 of the
Constitution while making appointments in the establishment
of this High Court.
27. To say that the Chief Justice can appoint a person
without following the procedure provided under Articles 14
and 16 would lead to an indefinite conclusion that the Chief
Justice can dismiss him also without holding any inquiry or
following the principles of natural justice/Rules etc., for as
per Section 16 of General Clauses Act, 1897 power to appoint
includes power to remove/suspend/dismiss. (Vide: Pradyat
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Kumar Bose v. The Hon’ble Chief Justice of Calcutta High
Court, 1956 SC 285; and Chief Justice of Andhra Pradesh &
Anr. v. L.V.A. Dikshitulu & Ors., AIR 1979 SC 193). But as no
employee can be removed without following the procedure
prescribed by law or in violation of the terms of his
appointment, such a course would not be available to the
Chief Justice. Therefore, the natural corollary of this is that
the Chief Justice cannot make any appointment in
contravention of the Statutory Rules, which have to be in
consonance with the scheme of our Constitution.
29. Thus, in view of the above, the law can be summarised
to the effect that the powers under Article 229(2) of the
Constitution cannot be exercised by the Chief Justice in an
unfettered and arbitrary manner. Appointments should be
made giving adherence to the provisions of Articles 14 and 16
of the Constitution and/or such Rules as made by the
legislature.
31. In a democratic set up like ours, which is governed by
rule of law, the supremacy of law is to be acknowledged and
absence of arbitrariness has been consistently described as
essence of rule of law. Thus, the powers have to be canalised
and not unbridled so as to breach the basic structure of the
Constitution. Equality of opportunity in matters of
employment being the constitutional mandate has always
been observed. The unquestionable authority is always
subject to the authority of the Constitution. The higher the
dignitary, the more objectivity is expected to be observed. We
do not say that powers should be curtailed. What we want to
say is that the power can be exercised only to the width of the
constitutional and legal limits. The date of retirement of every
employee is well known in advance and therefore, the number
of vacancies likely to occur in near future in a particular
cadre is always known to the employer. Therefore, the
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exercise to fill up the vacancies at the earliest must start in
advance to ensure that the selected person may join
immediately after availability of the post, and hence, there
may be no occasion to appoint any person on ad-hoc basis
for the reason that the problem of inducting the daily
labourers who are ensured of a regular appointment
subsequently has to be avoided and a fair procedure must be
adopted giving equal opportunity to everyone.
35. In view of the above, the appeal stands disposed of with
the following directions:
i) xxxx xxxx xxx
ii) To fill up any vacancy for any post either in the High
Court or in courts subordinate to the High Court, in strict
compliance of the statutory rules so made. In case any
appointment is made in contravention of the statutory rules,
the appointment would be void ab-initio irrespective of any
class of the post or the person occupying it.
iii) to (v) xxxx xxxx xxxx”
3) H.C. Puttaswamy & Ors. vs. The Hon’ble Chief
Justice of Karnataka High Court, Bangalore & Ors.,
reported in AIR 1991 S.C., 295, the Supreme Court has held
as under:-
“But the Chief Justice or any other Administrative Judge is
not an absolute ruler. Now he is a free wheeler. He must
operate in the clean world of law, not in the neighbourhood of
sordid atmosphere. He has a duty to ensure that in carrying
out the administrative functions, he is actuated by same
principles and values as those of the Court he is serving. He
cannot depart from and indeed must remain committed to the
constitutional ethos and traditions of his calling. We need
hardly say that those who are expected to oversee the conduct
of others, must necessarily maintain a higher stands of ethical
and intellectual rectitude. The public expenses do not seem to
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be less exacting.”
The above rulings are relating to how the Chief Justice has to exercise the
power of appointment of the staff of the High Court. In the case of Renu’s
case (supra), it was pointed out that the Hon’ble Chief Justice of the High
Court for the purpose of appointment of staff, Articles 14 and 16 of the
Constitution is to be taken note of. In other words, Chief Justice cannot
make any appointment in contravention of statutory rules and it has to be
in consonance with the scheme of Constitution.
10. Per contra, learned counsel for the first respondent – High
Court submitted that Protocol Committee of the High Court took a
decision that the third respondent who is working as a Driver has been
assisting the Protocol Branch of the Court. He is a Graduate. He has been
discharging both the duties diligently and efficiently. Therefore, a proposal
has been made to give him suitable designation / post the Protocol Branch.
The then Hon’ble Chief Justice approved the recommendation of the
Protocol Committee and appointed the third respondent as an Assistant
directly in the High Court by relaxing Rule 16(i) of the Establishment
Rules and designated as Assistant Protocol Officer attached to the Hon’ble
Chief Justice’s office when respondent no.3 was working as Driver and
attached to the then Hon’ble Chief Justice. It was further submitted that
appointment of the third respondent to the post of Assistant is unchallenged.
Thus, the third respondent entered the cadre of Assistant on
20.12.2010. Consequent upon Assistant post was re-designated / upgraded
to the Senior Assistant post and third respondent entered in the cadre of
Senior Assistant. The then Hon’ble Chief Justice suo moto took a decision
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to promote the third respondent to the post of Superintendent Grade-II to
be adjusted against the post of reserved vide order dated 30.05.2014 for
Smt. Sunayana Jain, Senior Assistant, who is facing disciplinary
proceedings by de-reserving the above said post for the time being and
made a note that his Lordship has gone through past records of the third
respondent and approved it that he has all capabilities to handle any
situation etc. Extract of note dated 20.07.2014 reads as under:-
“Shri Rajbir, Protocol Officer attached with me for the last
14 months is a very hard worker and is dedicated towards his
work. I have gone through his past service records and he
proved it that he has all capabilities to handle any situation.
He has abilities to motivate others and to play the important
role in team work. Not only the Judges of this Court but also
the Hon’ble Judges of Supreme Court and other High Courts
are also satisfied with his work and they always praising
about his work. Therefore, keeping in view his work
dedication, excellent team coordination and also meritorious
service records I hereby promoted Shri Rajbir as
Superintendent Grade-II with immediate effect by relaxing all
rules and be designated as Protocol Officer to Hon’ble the
Chief Justice.”
Perusal of the note of the Hon’ble Chief Justice, it is evident that the due
application of mind and there is subjective satisfaction and necessary
ingredients stated in Rule 38 has been complied while ordering promotion
to the third respondent. Therefore, there is no infirmity. It was further
submitted that petitioners have not urged any mala fide, therefore, there is
no stuff in the present petition. It was also submitted that during the
pendency of this petition, petitioners no. 1 to 10 were promoted to the
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posts of Superintendent Grade-II during the intervening period of 2015-16.
11. Learned counsel for the first respondent vehemently
contended that the Hon’ble Chief Justice of the Court has ample power
under Article 229 of the Constitution for framing rules in relation to
conditions and service of the High Court’s staff. In other words, Rules
1973 are framed under Article 229 read with Article 231, therefore,
petitioners’ contention that the Hon’ble Chief Justice has violated Rules 19
and 20 of the Rules 1994 is incorrect for the reasons that Rules 1994 are
issued under Article 309 of the Constitution, whereas Rules 1973 are
issued under Article 229 of the Constitution, therefore, there is no
application of Rules 1994 in the present case. Thus, order of promotion of
the third respondent is within the ambit of Article 229 read with Rule 38 of
the Rules 1973. Learned counsel for the first respondent cited the
following decisions:-
1) Satya Vir Singh vs. Punjab and Haryana High
Court, reported in 2012 (1) RSJ 141, wherein this Court in
para no. 19 held as under:-
“19. This Rule, when read, gives the power to the Chief
Justice to do complete justice befitting to the office held by
him. His power to do justice has been given precedence over
the shackles and restrictions as imposed by these Rules. As
per this rule, the satisfaction is his while dealing with the
case of an individual that the operation of any Rule causes
undue hardship. Once such satisfaction is reached, the Rule
envisages that the Chief Justice may by order dispense with
or relax the requirements of that Rule to such extent and
subject to such conditions as he may consider necessary for
dealing with the case in a just and equitable manner. It
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further qualifies that the case be not dealt with in a manner
less favourable to the officer or official concerned than in
accordance with the Rules. This Rule thus, is required to be
invoked and exercised by the Chief Justice for the benefit of
an officer or official where in his opinion and satisfaction,
any Rule has put an officer or official in a disadvantageous
position by its operation and to deal with the case in a just
and equitable manner, he may by order dispense with or relax
the requirement of that Rule. Keeping in view the high office
of the Chief Justice, this exceptional power has been
conferred on him so that no officer or official by virtue of
operation of any Rule is put in an disadvantageous position
causing undue hardship and justice can be done to the
employee where the Chief Justice is so satisfied. Present is a
case where such hardship has, as a matter of fact, been
caused due to no fault of the petitioner where the power
under Rule 38 deserves to be invoked which has not been
considered by the Committee.”
2) R.K. Sharma vs. High Court of Punjab and
Haryana, reported in 2000(30 RSJ 168, wherein this Court in
para no. 5 held as under:-
5. After hearing the learned counsel for the parties, we
find no merit in this writ petition. No doubt under the rules,
educational qualification for promotion to the post of
Assistant Registrar has been prescribed as Graduation, but
under those very Rules i.e. Rule 38 (supra), power has been
vested in the Chief Justice of this Court that if he is satisfied
that operation of any rule causes undue hardship in any
particular case, he may, by order, dispense with or relax the
requirement of that rule for dealing with the case in just and
equitable manner. This power vests in the appointing
authority, which is a high dignitary, and the rule itself
contains self-imposed restriction on the power of the Chief
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Justice that before relaxing any rule he is to be satisfied that
operation of any rule causes undue hardship in a particular
case and to do justice to the individual the case is to be dealt
with in just and equitable manner. There is no fetter on the
power of the Chief Justice in exercising the power of
relaxation even in the presence of an eligible person, further,
there is no fetter that the power cannot be exercised again
and again. It will depend on the circumstances of each case
and each case has to be dealt with on its merits as to whether
a particular individual requires the relaxation of service rule,
which causes undue hardship to that individual. For example,
there may be a person, who is lacking the educational
qualification and is senior-most having put in very long
service with excellent record. Simply because the person is
not graduate his further chance of rising in the service career
will be blocked, inasmuch as the rigour of the rule of
educational qualification would certainly cause undue
hardship to that individual and the rigour of the rule may be
relaxed. Learned counsel for the petitioner had cited Dr. Ami
Lal Bhat v. State of Rajasthan, 1997(3) SCT 595, judgment
of the Apex Court, to contend that in presence of the eligible
candidates, no relaxation should be given to the unqualified
candidates. That case was a case of direct requirement, in
which quite a few candidates were over-aged. By a general
relaxation given to all such candidates, they were made
eligible for appointments. Taking into consideration the
power of relaxation, the Apex Court observed that the power
of wholesale relaxation was not envisaged by the Rules,
which could be exercised in a given case only to mitigate the
hardship to an individual. Since there was wholesale
relaxation, which was not to mitigate the hardship to any
individual, the Apex Court had struck down the relaxation.
The case in hand is totally different. It may be observed here
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that there is no specific challenge to the actual relaxation
given by the Chief Justice to the private respondents.”
3) Renu and others vs. District and Sessions Judge, Tis
Hazari Courts, Delhi and another, reported in (2014) 14
Supreme Court Cases 50, wherein the Supreme Court in para
no. 22 held as under:-
“22. As a safeguard, the Constitution has also recognized
that in the internal administration of the High Court, no other
power, except the Chief Justice should have domain. In order
to enable a judicial intervention, it would require only a very
strong and convincing argument to show that this power has
been abused. If an authority has exercised his discretion in
good faith and not in violation of any law, such exercise of
discretion should not be interfered with by the courts merely
on the ground that it could have been exercised differently or
even that the courts would have exercised if differently had
the matter been brought before it in the first instance or in
that perspective.”
Having regard to Article 229, Rule 38 of Rules 1973 read with above cited
rulings, the petitioners have not made out a case, therefore, instant petition
is liable to be dismissed.
12. Learned counsel for the third respondent submitted that it is
prerogative of the Chief Justice to extend service benefits to class of
employees. In the present case, the Hon’ble Chief Justice has exercised
power under rule 38 of Rules 1973 while relaxing all rules under Rules
1973 and promoted the third respondent and further after due consideration
of the third respondent’s past records like Annual Confidential Reports for
10 years which are A+Outstanding and the fact that the third respondent as
an Assistant Protocol Officer served the Hon’ble Judges of this Court,
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Hon’ble Judges of the Supreme Court and other High Courts for their
satisfaction and his work has been praised by each of the Judge. That apart
having meritorious service record throughout his service has been taken
note of by the then Hon’ble Chief Justice and after personal satisfaction
with his merit and after subjective satisfaction, he has been promoted. The
then Hon’ble Chief Justice exercising power under Rule 38 is widest power
and it is within the rule 38 of Rules 1973. The petitioners’ merit cannot be
comparable with the third respondent. Therefore the petitioners’ right to
promotion is not at all affected in any manner. Learned counsel for the
third respondent cited the following decisions:
1) M. Gurumoorthy vs. Accountant General, Assam
and Nagaland and others, reported in (1971) 2 Supreme
Court Cases 137, wherein the Supreme Court in para no. 11,
held as under:-
“11. The unequivocal purpose and obvious intention of the
framers of the Constitution in enacting Article 229 is that in
the matter of appointments of officers and servants of a High
Court it is the Chief Justice or his nominee who is to be the
supreme authority and there can be no interference by the
executive except to the limited extent that is provided in the
Article. This was essentially to secure and maintain the
independence of the High Courts. The anxiety of the
constitution makers to achieve that object is fully shown by
putting the administrative expenses of a High Court including
all salaries, allowances and pension payable to or in respect
of officers and servants of the court at the same level as the
salaries and allowances of the judges of the High Court nor
can the amount of any expenditure so charged be varied even
by the legislature. Clause (1) read with clause (2) of Article
229 confers exclusive power not only in the matter of
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appointments but also with regard to prescribing the
conditions of service of officers and servants of a High Court
by Rules on the Chief Justice of the Court. This is subject to
any legislation by the State legislature but only in respect of
conditions of service. In the matter of appointments even the
legislature cannot abridge or modify the powers conferred on
the Chief Justice under clause (1). The approval of the
Governor, as noticed in the matter of Rules, is confined only
to such rules as relate to salaries, allowances, leave or
pension. All other rules in respect of conditions of service do
not require his approval. Even under the Government of India
Act the power to make rules relating to the conditions of
service of the staff of the High Court vested in the Chief
Justice of the Court under Section 242 (4) read with Section
241 of the Government of India Act, 1935. By way of contrast
reference may be made to Article 148 relating to the-
Comptroller and Auditor General of India. Clause (5)
provides :
“Subject to the provisions of this Constitution and of any
law made by Parliament the conditions of service of
persons serving in the Indian Audit and Accounts
Department and the administrative powers of the
Comptroller and Auditor General shall be such as may
be prescribed by rules made by the President after
consultation with the Comptroller and Auditor
General.”
The aforesaid decision cited in support of the contention of learned
counsel for the petitioners that Rules 1994 are applicable to the present
case. In view of the decision above Rules, 1994 are not applicable to the
present case.
2. High Court of Judicature for Rajasthan vs. Ramesh
Chand Paliwal and another, reported in (1998) 3 Supreme
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Court Cases 72, wherein in para no. 24 and 28 the Supreme
Court held as under:-
“24. The power of appoint an officer or servant of the High
Court also includes the power to dismiss as was held in
Pradyat Kumar Bose vs. Hon’ble Chief Justice of Calcutta
High Court. AIR 1956 SC 285 = 1955 (2) SCR 1331. It was
also held in that case that it was not necessary for the Chief
Justice to consult the State Public Service Commission before
dismissing the Registrar of the original side of the High
Court. In M. Gurumoorthy vs. Accountant General, Assam
and Nagaland & Ors., AIR 1971 SC 1850 = 1971 Supp SCR
420, it was held that in the matter of appointment of the High
Court officers and servants, the Chief Justice is the supreme
authority and there can be no interference by the executive
except to the limited extent indicated in Article 229. If,
however, the matter relates to pay fixation, it has to have the
approval of the Governor of the State. (See: State of Assam
vs. Bhubhan Chandra Datta & Anr. AIR 1975 SC 889, (1975)
4 SCC 1 = 1975 (3) SCR 854).
28. Apart from the fact that the impugned directions to the
Registrar are contrary to Article 229, they also have the
effect of negativing the impact of the Rajasthan High Court
(Conditions of Service of Staff) Rules, 1953 made by the Chief
Justice in exercise of power conferred by Article 229. Rule 2
specifies the strength of staff. It provides that the staff shall
consist of the posts specified in the second column of
Schedule I attached to the rules. It also provide that the Chief
Justice may, from time to time, leave unfilled or hold in
abeyance any vacant post. The rules also provide that the
Chief Justice may increase or reduce the strength of staff.
Method of recruitment has been specified in Rule 2A as
under:-
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“2A. Method of recruitment:- (1) Recruitment to a post or
category of posts specified in the second column of
Schedule I shall be made by one or more of the following
methods, namely, –
(a) by direct recruitment, or
(b) by promotion of a person already employed in the
High Court, or
(c) by transfer from subordinate courts or offices of
the State Government.
Provided that the Chief Justice or subject to any general or
special order of the Chief Justice, the Registrar may order
transfer of any member of the ministerial or class IV staff
serving on the establishment of the High Court to any Court
subordinate to the High Court and vise versa on such terms
and conditions as may be deemed proper.
(2) The Chief justice may, from time to time, by
general or special order:-
(a) specify the method by which recruitment to a post
or category of posts shall be made,
(b) determine the proportion of vacancies to be filled
by each method of in case of recruitment by more than
one method, and
(c) specify the manner in which such recruitment shall
be made in the case of direct recruitment.
(3) Recruitment to the post of Court Officer shall be
made & (by selection from the staff or) by direct
recruitment in accordance with such method as may be
prescribed by the Chief Justice.”
3. Renu and others vs. District and Sessions Judge, Tis
Hazari Courts, Delhi and another, reported in (2014) 14
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Supreme Court Cases 50, wherein the Supreme Court in para
no. 1 held as under:-
“1. The matter initially related to the appointment of Class
IV employees in the courts subordinate to Delhi High Court
as the dispute arose about the continuity of the employees
appointed on ad-hoc basis for 89 days which stood
extended for the same period after same interval from
time to time. The matter reached the Delhi High Court
and ultimately before this Court. This court vide order
dated 10.5.2012 took up the matter in a larger perspective
taking cognizance of perpetual complaints regarding
irregularities and illegalities in the recruitments of staff in
the subordinate courts throughout the country and in
order to ensure the feasibility of centralising these
recruitments and to make them transparent and transferable.
This Court suo motu issued notice to Registrar Generals
of all the High Courts and to the States for filing their
response mainly on two points viz. (i) why the recruitment be
not centralized; and (ii) why the relevant rules dealing with
service conditions of the entire staff be not amended to
make them as transferable posts. All the States and High
Courts have submitted their response and all of them are
duly represented in the court.”
In view of Rule 38 of Rules 1973 and the fact that the then Hon’ble Chief
Justice is satisfied with the performance of the third respondent read with
the aforesaid cited decisions, the petitioners have not made out a case so as
to interfere with the third respondent’s promotion, therefore, the instant
writ petition is liable to be dismissed.
13. Heard the parties and gone through record.
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14. Core issue in the present case is whether Articles 14 and 16 of
the Constitution are complied or not before ordering promotion of
respondent no.3 to the post of Superintendent Grade-II. Further is there
any violation of Rules 12, 30 and 38 of Rules 1973. Admittedly, the post
of Superintendent Grade-II in the High Court is a public post and it is to be
filled with reference to seniority-cum-merit principle i.e. from feeder cadre
viz. Senior Assitant. Therefore, Articles 14 and 16 are to be complied.
Equality
Supreme Court in Secretary, State of Karnataka and others
vs. Umadevi and others, reported in (2006) 4 SCC 1, in paragraph nos. 2,
4, 6, 11, 13, 38, 40, 41 and 43 held as under:-
“2. Public employment in a sovereign socialist secular
democratic republic, has to be as set down by the
Constitution and the laws made thereunder. Our
constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a
procedure established in that behalf. Equality of
opportunity is the hallmark, and the Constitution has
provided also for affirmative action to ensure that
unequals are not treated as equals. Thus, any public
employment has to be in terms of the constitutional
scheme.
4. But, sometimes this process is not adhered to and
the constitutional scheme of public employment is
bypassed. The Union, the States, their departments and
instrumentalities have resorted to irregular appointments,
especially in the lower rungs of the service, without
reference to the duty to ensure a proper appointment
procedure through the Public Service Commissions or
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otherwise as per the rules adopted and to permit these
irregular appointees or those appointed on contract or on
daily wages, to continue year after year, thus, keeping out
those who are qualified to apply for the post concerned
and depriving them of an opportunity to compete for the
post. It has also led to persons who get employed, without
the following of a regular procedure or even through the
backdoor or on daily wages, approaching the courts,
seeking directions to make them permanent in their posts
and to prevent regular recruitment to the posts concerned.
The courts have not always kept the legal aspects in mind
and have occasionally even stayed the regular process of
employment being set in motion and in some cases, even
directed that these illegal, irregular or improper entrants
be absorbed into service. A class of employment which
can only be called “litigious employment”, has risen like
a phoenix seriously impairing the constitutional scheme.
Such orders are passed apparently in exercise of the wide
powers under Article 226 of the Constitution. Whether the
wide powers under Article 226 of the Constitution are
intended to be used for a purpose certain to defeat the
concept of social justice and equal opportunity for all,
subject to affirmative action in the matter of public
employment as recognised by our Constitution, has to be
seriously pondered over. It is time, that the courts desist
from issuing orders preventing regular selection or
recruitment at the instance of such persons and from
issuing directions for continuance of those who have not
secured regular appointments as per procedure
established. The passing of orders for continuance tends
to defeat the very constitutional scheme of public
employment. It has to be emphasised that this is not the
role envisaged for the High Courts in the scheme of things
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and their wide powers under Article 226 of the
Constitution are not intended to be used for the purpose
of perpetuating illegalities, irregularities or improprieties
or for scuttling the whole scheme of public employment.
Its role as the sentinel and as the guardian of equal rights
protection should not be forgotten.
6. The power of a State as an employer is more
limited than that of a private employer inasmuch as it is
subjected to constitutional limitations and cannot be
exercised arbitrarily (see Basu’s Shorter Constitution of
India). Article 309 of the Constitution gives the
Government the power to frame rules for the purpose of
laying down the conditions of service and recruitment of
persons to be appointed to public services and posts in
connection with the affairs of the Union or any of the
States. That article contemplates the drawing up of a
procedure and rules to regulate the recruitment and
regulate the service conditions of appointees appointed to
public posts. It is well acknowledged that because of this,
the entire process of recruitment for services is controlled
by detailed procedures which specify the necessary
qualifications, the mode of appointment, etc. If rules have
been made under Article 309 of the Constitution, then the
Government can make appointments only in accordance
with the rules. The State is meant to be a model employer.
The Employment Exchanges (Compulsory Notification of
Vacancies) Act, 1959 was enacted to ensure equal
opportunity for employment seekers. Though this Act may
not oblige an employer to employ only those persons who
have been sponsored by employment exchanges, it places
an obligation on the employer to notify the vacancies that
may arise in the various departments and for filling up of
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those vacancies, based on a procedure. Normally,
statutory rules are framed under the authority of law
governing employment. It is recognised that no
government order, notification or circular can be
substituted for the statutory rules framed under the
authority of law. This is because, following any other
course could be disastrous inasmuch as it will deprive the
security of tenure and the right of equality conferred on
civil servants under the constitutional scheme. It may
even amount to negating the accepted service
jurisprudence. Therefore, when statutory rules are
framed under Article 309 of the Constitution which are
exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed.
11. In addition to the equality clause represented by
Article 14 of the Constitution, Article 16 has specifically
provided for equality of opportunity in matters of public
employment. Buttressing these fundamental rights,
Article 309 provides that subject to the provisions of the
Constitution, Acts of the legislature may regulate the
recruitment and conditions of service of persons
appointed to public services and posts in connection with
the affairs of the Union or of a State. In view of the
interpretation placed on Article 12 of the Constitution by
this Court, obviously, these principles also govern the
instrumentalities that come within the purview of Article
12 of the Constitution. With a view to make the procedure
for selection fair, the Constitution by Article 315 has also
created a Public Service Commission for the Union and
the Public Service Commissions for the States. Article
320 deals with the functions of the Public Service
Commissions and mandates consultation with the
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Commission on all matters relating to methods of
recruitment to civil services and for civil posts and other
related matters. As a part of the affirmative action
recognised by Article 16 of the Constitution, Article 335
provides for special consideration in the matter of claims
of the members of the Scheduled Castes and Scheduled
Tribes for employment. The States have made Acts, rules
or regulations for implementing the above constitutional
guarantees and any recruitment to the service in the State
or in the Union is governed by such Acts, rules and
regulations. The Constitution does not envisage any
employment outside this constitutional scheme and
without following the requirements set down therein.
13. What is sought to be pitted against this approach,
is the so-called equity arising out of giving of temporary
employment or engagement on daily wages and the
continuance of such persons in the engaged work for a
certain length of time. Such considerations can have only
a limited role to play, when every qualified citizen has a
right to apply for appointment, the adoption of the
concept of rule of law and the scheme of the Constitution
for appointment to posts. It cannot also be forgotten that
it is not the role of the courts to ignore, encourage or
approve appointments made or engagements given
outside the constitutional scheme. In effect, orders based
on such sentiments or approach would result in
perpetuating illegalities and in the jettisoning of the
scheme of public employment adopted by us while
adopting the Constitution. The approving of such acts
also results in depriving many of their opportunity to
compete for public employment. We have, therefore, to
consider the question objectively and based on the
constitutional and statutory provisions. In this context,
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we have also to bear in mind the exposition of law by a
Constitution Bench in State of Punjab v. Jagdip Singh
and others, (1964) (4) SCR 964). It was held therein:
“In our opinion where a government servant
has no right to a post or to a particular status,
though an authority under the Government acting
beyond its competence had purported to give that
person a status which it was not entitled to give he
will not in law be deemed to have been validly
appointed to the post or given the particular
status.”
38. In Union Public Service Commission v. Girish
Jayanti Lal Vaghela and others [2006(2) SCALE 115]
this Court answered the question, who was a government
servant and stated:
“12. Article 16 which finds place in Part III of
the Constitution relating to fundamental rights
provides that there shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the State. The main
object of Article 16 is to create a constitutional
right to equality of opportunity and employment in
public offices. The words ‘employment’ or
‘appointment’ cover not merely the initial
appointment but also other attributes of service like
promotion and age of superannuation, etc. The
appointment to any post under the State can only
be made after a proper advertisement has been
made inviting applications from eligible candidates
and holding of selection by a body of experts or a
specially constituted committee whose members
are fair and impartial through a written
examination or interview or some other rational
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criteria for judging the inter se merit of candidates
who have applied in response to the advertisement
made. A regular appointment to a post under the
State or Union cannot be made without issuing
advertisement in the prescribed manner which may
in some cases include inviting applications from
the employment exchange where eligible
candidates get their names registered. Any regular
appointment made on a post under the State or
Union without issuing advertisement inviting
applications from eligible candidates and without
holding a proper selection where all eligible
candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of
the Constitution (see B.S. Minhas v. Indian
Statistical Institute and others, AIR 1984 SC 363).”
40. At this stage, it is relevant to notice two aspects. In
Kesavananda Bharati v. State of Kerala (1973) Supp. SCR
1) this Court held that Article 14, and Article 16, which
was described as a facet of Article 14, is part of the basic
structure of the Constitution. The position emerging from
Kesavananda Bharati (supra) was summed up by
Jagannadha Rao, J. speaking for a Bench of three Judges
in Indra Sawhney v. Union of India (1999 Suppl. (5) S.C.R.
229). That decision also reiterated how neither Parliament
nor the legislature could transgress the basic feature of
the Constitution, namely, the principle of equality
enshrined in Article 14 of which Article 16(1) is a facet.
This Court stated:
“64. The preamble to the Constitution of India
emphasises the principle of equality as basic to our
Constitution. In Kesavananda Bharati v. State of
Kerala it was ruled that even constitutional
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amendments which offended the basic structure of
the Constitution would be ultra vires the basic
structure. Sikri, C.J. laid stress on the basic features
enumerated in the preamble to the Constitution and
said that there were other basic features too which
could be gathered from the constitutional scheme
(para 506-A of SCC). Equality was one of the basic
features referred to in the preamble to our
Constitution. Shelat and Grover, JJ. also referred to
the basic rights referred to in the preamble. They
specifically referred to equality (paras 520 and 535-
A of SCC). Hegde & Shelat, JJ. also referred to the
preamble (paras 648, 652). Ray, J. (as he then was)
also did so (para 886). Jaganmohan Reddy, J. too
referred to the preamble and the equality doctrine
(para 1159). Khanna, J. accepted this position
(para 1471). Mathew, J. referred to equality as a
basic feature (para 1621). Dwivedi, J. (paras 1882,
1883) and Chandrachud, J. (as he then was) (see
para 2086) accepted this position.
65. What we mean to say is that Parliament and
the legislature in this country cannot transgress
the basic feature of the Constitution, namely, the
principle of equality enshrined in Article 14 of
which Article 16(1) is a facet.”
41. In the earlier decision in Indra Sawhney v. Union
of India (1992 Supp. (2) S.C.R. 454) B.P. Jeevan Reddy,
J. speaking for the majority, while acknowledging that
equality and equal opportunity is a basic feature of our
Constitution, has explained the exultant (sic exalted)
position of Articles 14 and 16 of the Constitution in the
scheme of things. His Lordship stated:
“644[6]. The significance attached by the
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Founding Fathers to the right to equality is evident
not only from the fact that they employed both the
expressions ‘equality before the law’ and ‘equal
protection of the laws’ in Article 14 but proceeded
further to state the same rule in positive and
affirmative terms in Articles 15 to 18. …
645[7]. Inasmuch as public employment always
gave a certain status and power—it has always
been the repository of State power—besides the
means of livelihood, special care was taken to
declare equality of opportunity in the matter of
public employment by Article 16. Clause (1)
expressly declares that in the matter of public
employment or appointment to any office under
the State, citizens of this country shall have equal
opportunity while clause (2) declares that no
citizen shall be discriminated in the said matter on
the grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them.
At the same time, care was taken to declare in
clause (4) that nothing in the said article shall
prevent the State from making any provision for
reservation of appointments or posts in favour of
any backward class of citizens which in the
opinion of the State is not adequately represented
in the services under the State.” (See paras 6 and
7 in SCR pp. 544 and 545.)
These binding decisions are clear imperatives that
adherence to Articles 14 and 16 of the Constitution is a
must in the process of public employment.
43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
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Constitution, a court would certainly be disabled from
passing an order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for
public employment, this Court while laying down the law,
has necessarily to hold that unless the appointment is in
terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any
right on the appointee. If it is a contractual appointment,
the appointment comes to an end at the end of the
contract, if it were an engagement or appointment on
daily wages or casual basis, the same would come to an
end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the
expiry of his term of appointment. It has also to be
clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be
absorbed in regular service or made permanent, merely
on the strength of such continuance, if the original
appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not open
to the court to prevent regular recruitment at the instance
of temporary employees whose period of employment has
come to an end or of ad hoc employees who by the very
nature of their appointment, do not acquire any right. The
High Courts acting under Article 226 of the Constitution,
should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the
recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because an employee had
continued under cover of an order of the court, which we
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have described as “litigious employment” in the earlier
part of the judgment, he would not be entitled to any right
to be absorbed or made permanent in the service. In fact,
in such cases, the High Court may not be justified in
issuing interim directions, since, after all, if ultimately the
employee approaching it is found entitled to relief, it may
be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an
interim direction to continue his employment would hold
up the regular procedure for selection or impose on the
State the burden of paying an employee who is really not
required. The courts must be careful in ensuring that they
do not interfere unduly with the economic arrangement of
its affairs by the State or its instrumentalities or lend
themselves the instruments to facilitate the bypassing of
the constitutional and statutory mandates.”
Supreme Court in Renu and others vs. District & Sessions
Judge, Tis Hazari Courts, Delhi and another reported in (2014) 14 SCC
50, in paragraph Nos. 6 to 16, 19, 21, 27, 29, 30, 31 and 35.2(ii), held as
under:-
“6. Article 14 of the Constitution provides for equality
of opportunity. It forms the cornerstone of our
Constitution.
7. In I.R. Coelho v. State of T.N.(2007) 2 SCC 1, the
doctrine of basic features has been explained by this Court
as under: (SCC p. 108, para 141)
“141. The doctrine of basic structure contemplates
that there are certain parts or aspects of the
Constitution including Article 15, Article 21 read
with Articles 14 and 19 which constitute the core
values which if allowed to be abrogated would
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change completely the nature of the Constitution.
Exclusion of fundamental rights would result in
nullification of the basic structure doctrine, the
object of which is to protect basic features of the
Constitution as indicated by the synoptic view of
the rights in Part III.”
8. As Article 14 is an integral part of our system, each
and every State action is to be tested on the touchstone of
equality. Any appointment made in violation of mandate of
Articles 14 and 16 of the Constitution is not only irregular
but also illegal and cannot be sustained in view of the
judgments rendered by this Court in Delhi Development
Horticulture Employees’ Union v. Delhi Admn.(1992) 4
SCC 99, State of Haryana v. Piara Singh (1992) 4 SCC
118, Prabhat Kumar Sharma v. State of U.P.(1996) 10
SCC 62, J.A.S. Inter College v. State of U.P. (1996) 10
SCC 71, M.P. Housing Board v. Manoj Shrivastava (2006)
2 SCC 702, M.P. State Agro Industries Development
Corpn. Ltd. v. S.C. Pandey (2006) 2 SCC 716 and State of
M.P. v. Sandhya Tomar (2013) 11 SCC 357.
9. In Excise Supt. v. K.B.N. Visweshwara Rao (1996) 6
SCC 216, a larger Bench of this Court reconsidered its
earlier judgment in Union of India v. N. Hargopal (1987)
3 SCC 308, wherein it had been held that insistence on
recruitment through employment exchanges advances
rather than restricts the rights guaranteed by Articles 14
and 16 of the Constitution. However, due to the possibility
of non-sponsoring of names by the employment exchange,
this Court held that any appointment even on temporary
or ad hoc basis without inviting application is in violation
of the said provisions of the Constitution and even if the
names of candidates are requisitioned from employment
exchange, in addition thereto, it is mandatory on the part
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of the employer to invite applications from all eligible
candidates from open market as merely calling the names
from the employment exchange does not meet the
requirement of the said articles of the Constitution. The
Court further observed: (K.B.N. Visweshwara Rao case),
SCC p. 218 para 6)
“6. … In addition, the appropriate department …
should call for the names by publication in the
newspapers having wider circulation and also
display on their office notice … and employment
news bulletins; and then consider the cases of all
candidates who have applied. If this procedure is
adopted, fair play would be subserved. The
equality of opportunity in the matter of employment
would be available to all eligible candidates.”
(emphasis supplied)
(See also Arun Tewari v. Zila Mansavi Shikshak Sangh
(1998) 2 SCC 332 and Kishore K. Pati v. District
Inspector of Schools, Midnapore (2000) 9 SCC 405).
10. In Suresh Kumar v. State of Haryana (2003) 10 SCC
276 this Court upheld the judgment of the Punjab and
Haryana High Court wherein 1600 appointments made in
the Police Department without advertisement stood
quashed though the Punjab Police Rules, 1934 did not
provide for such a course. The High Court reached the
conclusion that process of selection stood vitiated because
there was no advertisement and due publicity for inviting
applications from the eligible candidates at large.
11. In UPSC v. Girish Jayanti Lal Vaghela (2006) 2 SCC
482 this Court held: (SCC p. 490, para 12)
“12. … The appointment to any post under the
State can only be made after a proper
advertisement has been made inviting applications
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from eligible candidates and holding of selection
by a body of experts or a specially constituted
committee whose members are fair and impartial,
through a written examination or interview or
some other rational criteria for judging the inter
se merit of candidates who have applied in
response to the advertisement made … Any regular
appointment made on a post under the State or
Union without issuing advertisement inviting
applications from eligible candidates and without
holding a proper selection where all eligible
candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of
the Constitution.”
(emphasis supplied)
12. The principles to be adopted in the matter of public
appointments have been formulated by this Court in M.P.
State Coop. Bank Ltd. v. Nanuram Yadav (2007) 8 SCC
264 as under: (SCC pp. 274-75, para 24)
“(1) The appointments made without following the
appropriate procedure under the rules/government
circulars and without advertisement or inviting
applications from the open market would amount to
breach of Articles 14 and 16 of the Constitution of
India.
(2) Regularisation cannot be a mode of
appointment.
(3) An appointment made in violation of the
mandatory provisions of the statute and in
particular, ignoring the minimum educational
qualification and other essential qualification
would be wholly illegal. Such illegality cannot be
cured by taking recourse to regularisation.
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(4) Those who come by back door should go
through that door.
(5) No regularisation is permissible in exercise
of the statutory power conferred under Article 162
of the Constitution of India if the appointments have
been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction
on misplaced sympathy.
(7) If the mischief played is so widespread and
all pervasive, affecting the result, so as to make it
difficult to pick out the persons who have been
unlawfully benefited or wrongfully deprived of their
selection, it will neither be possible nor necessary
to issue individual show-cause notice to each
selectee. The only way out would be to cancel the
whole selection.
(8) When the entire selection is stinking, conceived
in fraud and delivered in deceit, individual
innocence has no place and the entire selection has
to be set aside.”
13. A similar view has been reiterated by the
Constitution Bench of this Court in State of Karnataka v.
Umadevi (3) (2006) 4 SCC 1, observing that any
appointment made in violation of the statutory rules as
also in violation of Articles 14 and 16 of the Constitution
would be a nullity. “Adherence to Articles 14 and 16 of
the Constitution is a must in the process of public
employment.” The Court further rejected the prayer that
ad hoc appointees working for long be considered for
regularisation as such a course only encourages the State
to flout its own rules and would confer undue benefits on
some at the cost of many waiting to compete.
14. In State of Orissa v. Mamata Mohanty (2011) 3 SCC
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436 this Court dealt with the constitutional principle of
providing equality of opportunity to all which mandatorily
requires that vacancy must be notified in advance meaning
thereby that information of the recruitment must be
disseminated in a reasonable manner in public domain
ensuring maximum participation of all eligible candidates,
thereby the right of equal opportunity is effectuated. The
Court held as under: (SCC p. 452, para 36)
“36. Therefore, it is a settled legal proposition
that no person can be appointed even on a
temporary or ad hoc basis without inviting
applications from all eligible candidates. If any
appointment is made by merely inviting names from
the employment exchange or putting a note on the
noticeboard, etc. that will not meet the requirement
of Articles 14 and 16 of the Constitution. Such a
course violates the mandates of Articles 14 and 16
of the Constitution of India as it deprives the
candidates who are eligible for the post, from being
considered. A person employed in violation of these
provisions is not entitled to any relief including
salary. For a valid and legal appointment
mandatory compliance with the said constitutional
requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such
appointment be made by an open advertisement as
to enable all eligible persons to compete on merit.”
15. Where any such appointments are made, they can be
challenged in the court of law. The quo warranto
proceeding affords a judicial remedy by which any person,
who holds an independent substantive public office or
franchise or liberty, is called upon to show by what right
he holds the said office, franchise or liberty, so that his
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title to it may be duly determined, and in case the finding
is that the holder of the office has no title, he would be
ousted from that office by judicial order. In other words,
the procedure of quo warranto gives the judiciary a
weapon to control the executive from making appointment
to public office against law and to protect a citizen from
being deprived of public office to which he has a right.
These proceedings also tend to protect the public from
usurpers of public office who might be allowed to continue
either with the connivance of the executive or by reason of
its apathy. It will, thus, be seen that before a person can
effectively claim a writ of quo warranto, he has to satisfy
the court that the office in question is a public office and is
held by a usurper without legal authority, and that
inevitably would lead to an enquiry as to whether the
appointment of the alleged usurper has been made in
accordance with law or not. For issuance of writ of quo
warranto, the Court has to satisfy that the appointment is
contrary to the statutory rules and the person holding the
post has no right to hold it. (Vide University of Mysore v.
C.D. Govinda Rao AIR 1965 SC 491, Kumar Padma
Prasad v. Union of India (1992) 2 SCC 428, B.R. Kapur v.
State of T.N.(2001) 7 SCC 231, Mor Modern Coop.
Transport Society Ltd. v. State of Haryana (2002) 6 SCC
269, Arun Singh v. State of Bihar (2006) 9 SCC 375, Hari
Bansh Lal v. Sahodar Prasad Mahto (2010) 9 SCC 655
and Central Electricity Supply Utility of Odisha v. Dhobei
Sahoo (2014) 1 SCC 161.)
16. Another important requirement of public
appointment is that of transparency. Therefore, the
advertisement must specify the number of posts available
for selection and recruitment. The qualifications and other
eligibility criteria for such posts should be explicitly
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provided and the schedule of recruitment process should
be published with certainty and clarity. The advertisement
should also specify the rules under which the selection is
to be made and in absence of the rules, the procedure
under which the selection is likely to be undertaken. This
is necessary to prevent arbitrariness and to avoid change
of criteria of selection after the selection process is
commenced, thereby unjustly benefiting someone at the
cost of others.
19. In Som Raj v. State of Haryana (1990) 2 SCC 653
this Court held as under: (SCC pp. 658-59, para 6)
“6. … The absence of arbitrary power is the first
postulate of rule of law upon which our whole
constitutional edifice is based. In a system governed
by rule of law, discretion when conferred upon an
executive authority must be confined within clearly
defined limits. The Rules provide the guidance for
exercise of the discretion in making appointment
from out of selection lists which was prepared on the
basis of the performance and position obtained at
the selection. The appointing authority is to make
appointment in the order of gradation, subject to any
other relevant rules like, rotation or reservation, if
any, or any other valid and binding rules or
instructions having force of law. If the discretion is
exercised without any principle or without any rule,
it is a situation amounting to the antithesis of rule of
law. Discretion means sound discretion guided by
law or governed by known principles of rules, not by
whim or fancy or caprice of the authority.”
21. Even under the Constitution, the power of
appointment granted to the Chief Justice under Article
229(1) is subject to Article 16(1), which guarantees
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equality of opportunity for all citizens in matters relating
to employment. “Opportunity” as used in this article
means chance of employment and what it guaranteed is
that this opportunity of employment would be equally
available to all.
27. To say that the Chief Justice can appoint a person
without following the procedure provided under Articles
14 and 16 would lead to an indefinite conclusion that the
Chief Justice can dismiss him also without holding any
inquiry or following the principles of natural
justice/Rules, etc. for as per Section 16 of the General
Clauses Act, 1897, power to appoint includes power to
remove/suspend/dismiss. (Vide Pradyat Kumar Bose v.
High Court of Calcutta AIR 1956 SC 285 and Chief
Justice of A.P. v. L.V.A. Dixitulu (1979) 2 SCC 34.) But
as no employee can be removed without following the
procedure prescribed by law or in violation of the terms
of his appointment, such a course would not be available
to the Chief Justice. Therefore, the natural corollary of
this is that the Chief Justice cannot make any
appointment in contravention of the statutory rules,
which have to be in consonance with the scheme of our
Constitution.
29. Thus, in view of the above, the law can be
summarised to the effect that the powers under Article
229(2) of the Constitution cannot be exercised by the
Chief Justice in an unfettered and arbitrary manner.
Appointments should be made giving adherence to the
provisions of Articles 14 and 16 of the Constitution
and/or such rules as made by the legislature.
30. In today’s system, daily labourers and casual
labourers have been conveniently introduced which are
followed by attempts to regularise them at a subsequent
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stage. Therefore, most of the times the issue raised is
about the procedure adopted for making appointments
indicating an improper exercise of discretion even when
the rules specify a particular mode to be adopted. There
can be no doubt that the employment whether of Class IV,
Class III, Class II or any other class in the High Court or
courts subordinate to it falls within the definition of
“public employment”. Such an employment, therefore, has
to be made under rules and under orders of the competent
authority.
31. In a democratic set-up like ours, which is governed
by rule of law, the supremacy of law is to be
acknowledged and absence of arbitrariness has been
consistently described as essence of rule of law. Thus, the
powers have to be canalised and not unbridled so as to
breach the basic structure of the Constitution. Equality of
opportunity in matters of employment being the
constitutional mandate has always been observed. The
unquestionable authority is always subject to the authority
of the Constitution. The higher the dignitary, the more
objectivity is expected to be observed. We do not say that
powers should be curtailed. What we want to say is that
the power can be exercised only to the width of the
constitutional and legal limits. The date of retirement of
every employee is well known in advance and therefore,
the number of vacancies likely to occur in near future in a
particular cadre is always known to the employer.
Therefore, the exercise to fill up the vacancies at the
earliest must start in advance to ensure that the selected
person may join immediately after availability of the post,
and hence, there may be no occasion to appoint any
person on ad hoc basis for the reason that the problem of
inducting the daily labourers who are ensured of a regular
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appointment subsequently has to be avoided and a fair
procedure must be adopted giving equal opportunity to
everyone.
35.2. (ii) To fill up any vacancy for any post either in the
High Court or in courts subordinate to the High Court, in
strict compliance with the statutory rules so made. In case
any appointment is made in contravention of the statutory
rules, the appointment would be void ab initio irrespective
of any class of the post or the person occupying it.”
Supreme Court in State of Punjab and another vs.
Brijeshwar Singh Chahal and another, reported in (2016) 6 SCC 1, in
paragraph nos. 10, 20 to 23, 39, 41.1 to 41.5 has held as under:-
“10. We are not sure whether a similar study has been
conducted qua the State of Punjab, but given the fact that
the number of Law Officers appointed by that State is also
fairly large, we will not be surprised if any such study
would lead to similar or even more startling results. The
upshot of the above discussion is that for a fair and
objective system of appointment, there ought to be a fair
and realistic assessment of the requirement, for otherwise
the appointments may be made not because they are
required but because they come handy for political
aggrandisement, appeasement or personal benevolence of
those in power towards those appointed. The dangers of
such an uncanalised and unregulated system of
appointment, it is evident, are multi-dimensional resulting
in erosion of the rule of law, public faith in the fairness of
the system and injury to public interest and administration
of justice. It is high time to call a halt to this process lest
even the right thinking become cynical about our capacity
to correct what needs to be corrected.
20. In S.G. Jaisinghani v. Union of India, AIR 1967 SC
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1427, this Court held that absence of arbitrary power is
the first essential of “Rule of Law” upon which rests our
constitutional system. This Court ruled that in a system
governed by rule of law, any discretion conferred upon the
executive authorities must be confined within clearly
defined limits. This Court quoted with approval, the
following observations of Douglas, J. in United States v.
Wunderlich 1951 SCC Online US SC 93: 96 L Ed 113:
342 US 98 (1951): (S.G. Jaisinghani case AIR 1967 SC
1427, AIR p. 1434, para 14)
“9. Law has reached its finest moments when it has
freed man from the unlimited discretion of some
ruler…. Where discretion is absolute, man has
always suffered.” (Wunderlich case 1951 SCC
Online US SC 93: 96 L Ed 113: 342 US 98 (1951),
SCC OnLine US SC para 9)
21. A similar sentiment was expressed by this Court in
E.P. Royappa v. State of T.N. (1974) 4 SCC 3 wherein this
Court declared that Article 14 is the genus while Article
16 is a specie and the basic principle which informs both
these Articles is equality and inhibition against
discrimination. Equality, declared this Court, was
antithetic to arbitrariness. The Court described equality
and arbitrariness as sworn enemies, one belonging to the
rule of law in a republic and the other to the whims and
caprice of an absolute monarch. Resultantly if an act is
found to be arbitrary, it is implicit that it is unequal both
according to political logic and constitutional law, hence
violative of Article 14 and if it affects any matter of public
employment it is also violative of Article 16. This Court
reiterated that Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and inequality of
treatment.
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22. Then came the decision of this Court in Maneka
Gandhi v. Union of India (1978) 1 SCC 248, wherein this
Court held that the principle of reasonableness both
legally and philosophically is an essential element of
equality and that non-arbitrariness pervades Article 14
with brooding omnipresence. This implies that wherever
there is arbitrariness in State action, whether it be
legislative or executive, Article 14 would spring into
action and strike the same down. This Court held that the
concept of reasonableness and non-arbitrariness pervades
the constitutional scheme and is a golden thread which
runs through the entire Constitution.
23. In Ramana Dayaram Shetty v. International Airport
Authority of India (1979) 3 SCC 489, this Court relying
upon the pronouncements of E.P. Royappa v. State of T.N.,
(1974) 4 SCC 3 and Maneka Gandhi v. Union of India,
(1978) 1 SCC 248 once again declared that State action
must not be guided by extraneous or irrelevant
considerations because that would be denial of equality.
This Court recognised that principles of reasonableness
and rationality are legally as well as philosophically
essential elements of equality and non-arbitrariness as
projected by Article 14, whether it be authority of law or
exercise of executive power without the making of a law.
This Court held that State cannot act arbitrarily in the
matter of entering into relationships be it contractual or
otherwise with a third party and its action must conform to
some standard or norm, which is in itself rational and
non-discriminatory.
39. The development of law in this country has taken
strides when it comes to interpreting Articles 14 and 16
and their sweep. Recognition of power exercisable by the
functionaries of the State as a trust which will stand
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discharged only if the power is exercised in public interest
is an important milestone just as recognition of the
Court’s power of judicial review to be wide enough to
strike at and annul any State action that is arbitrary,
unguided, whimsical, unfair or discriminatory. Seen as
important dimensions of the Rule of Law by which we
swear, the law as it stands today has banished from our
system unguided and uncanalised or arbitrary discretion
even in matters that were till recently considered to be
within the legitimate sphere of a public functionary as a
repository of executive power. Those exercising power for
public good are now accountable for their action, which
must survive scrutiny or be annulled on the first principle
that the exercise was not for public good in that the same
was either mala fide, unfair, unreasonable or
discriminatory. Extension of the principle even to
contractual matters or matters like engagement of Law
Officers is symbolic of the lowering of the threshold of
tolerance for what is unfair, unreasonable or arbitrary.
The expanding horizons of the jurisprudence on the
subject both in terms of interpretation of Article 14 of the
Constitution as also the Court’s willingness to entertain
pleas for judicial review is a heartening development on
the judicial landscape that will disentitle exercise of power
by those vested with it as also empower those affected by
such power to have it reversed if such reversal is
otherwise merited.
41. To sum up, the following propositions are legally
unexceptionable:
41.1. The Government and so also all public bodies are
trustees of the power vested in them.
41.2. Discharge of the trust reposed in them in the best
possible manner is their primary duty.
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41.3. The power to engage, employ or recruit servants,
agents, advisors and representatives must like any other
power be exercised in a fair, reasonable, nondiscriminatory
and objective manner.
41.4. The duty to act in a fair, reasonable, nondiscriminatory
and objective manner is a facet of the Rule
of Law in a constitutional democracy like ours.
41.5. An action that is arbitrary has no place in a polity
governed by Rule of Law apart from being offensive to the
equality clause guaranteed by Article 14 of the
Constitution of India.”
Supreme Court in the case of State of Jammu and Kashmir
and others vs. District Bar Association, Bandipora, reported in AIR
2017 S.C. 11, in paragraph nos. 12 to 14 has held as under:-
“12. The decision in Renu v. District and Sessions Judge,
Tis Hazari Courts, Delhi MANU/SC/0096/2014: (2014) 14
scc 50 dealt with appointments which were shown to be
illegal and the outcome of arbitrariness. It was in that
backdrop that the following observations came to be
made :
“2. This Court had appointed Shri P.S.
Narasimha, learned Senior Counsel as amicus
curiae to assist the Court. The matter was heard on
28-1-2014 and deliberations took place at length
wherein all the learned counsel appearing for the
States as well as for the High Courts suggested that
the matter should be dealt with in a larger
perspective i.e. also for appointments of employees
in the High Court and courts subordinate to the
High Court which must include Class IV posts also.
A large number of instances have been pointed out
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on the basis of the information received under the
Right to Information Act, 2005 of cases not only of
irregularity but of favouritism also in making such
appointments. It has been suggested by the learned
counsel appearing in the matter that this Court has
a duty not only to check illegality, irregularity,
corruption, nepotism and favouritism in judicial
institutions, but also to provide guidelines to
prevent the menace of back-door entries of
employees who subsequently are ordered to be
regularised.
27. To say that the Chief Justice can appoint a
person without following the procedure provided
under Articles 14 and 16 would lead to an
indefinite conclusion that the Chief Justice can
dismiss him also without holding any inquiry or
following the principles of natural justice/Rules,
etc. for as per Section 16 of the General Clauses
Act, 1897, power to appoint includes power to
remove/suspend/dismiss. (Vide Pradyat Kumar
Bose v. High Court of Calcutta [AIR 1956 SC 285]
and Chief Justice of A.P. v. L.V.A. Dixitulu [(1979)
2 SCC 34 : 1979 SCC (L&S) 99].) But as no
employee can be removed without following the
procedure prescribed by law or in violation of the
terms of his appointment, such a course would not
be available to the Chief Justice. Therefore, the
natural corollary of this is that the Chief Justice
cannot make any appointment in contravention of
the statutory rules, which have to be in consonance
with the scheme of our Constitution.
This Court considered the modalities adopted by the High
Courts across the country in making recruitments and
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issued directions to ensure that appointments made by
judicial institutions are in accordance the principle of
equality of opportunity enshrined in Articles 14 and 16 of
the Constitution. Emphasizing the principle of
transparency in public appointment, this Court observed
that :
“Another important requirement of public
appointment is that of transparency. Therefore, the
advertisement must specify the number of posts
available for selection and recruitment. The
qualifications and other eligibility criteria for such
posts should be explicitly provided and the
schedule of recruitment process should be
published with certainty and clarity. The
advertisement should also specify the rules under
which the selection is to be made and in absence of
the rules, the procedure under which the selection
is likely to be undertaken. This is necessary to
prevent arbitrariness and to avoid change of
criteria of selection after the selection process is
commenced, thereby unjustly benefiting someone at
the cost of others.
Thus, the aforesaid decisions are an authority on
prescribing the limitations while making
appointment against public posts in terms of
Articles 14 and 16 of the Constitution. What has
been deprecated by this Court time and again is
“back-door appointments or appointments dehors
the rules”.
The power that is vested in the Chief Justice of the High
Court under Article 229(1) is, the Court held, subject to
Article 16:
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“the law can be summarised to the effect that the
powers under Article 229(2) of the Constitution
cannot be exercised by the Chief Justice in an
unfettered and arbitrary manner. Appointments
should be made giving adherence to the provisions
of Articles 14 and 16 of the Constitution and/or
such rules as made by the legislature”.
13. Four fundamental principles emerge from the
decision of this Court in Renu. The first principle is that
Article 235 enables the High Court to exercise complete
administrative control over the district judiciary which
extends to all functionaries attached to those courts,
including ministerial staff and employees on the
establishment. The purpose of superintendence would be
frustrated if the administrative control of the High Court
is not to be exercised over the administrative and
ministerial staff. However, the Chief Justice of the High
Court as a constitutional functionary is subject to the
mandate of Articles 14 and 16. No appointment can be
made in contravention of statutory rules. Moreover, the
rules themselves must be consistent with constitutional
principles.
The second principle is that employment in the High
Courts or in the courts subordinate to them constitutes
public employment. All recruitment in matters of public
employment must be made in accordance with prevailing
rules and orders:
“30. In today’s system, daily labourers and
casual labourers have been conveniently
introduced which are followed by attempts to
regularise them at a subsequent stage. Therefore,
most of the times the issue raised is about the
procedure adopted for making appointments
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indicating an improper exercise of discretion even
when the rules specify a particular mode to be
adopted. There can be no doubt that the
employment whether of Class IV, Class III, Class
II or any other class in the High Court or courts
subordinate to it falls within the definition of
“public employment”. Such an employment,
therefore, has to be made under rules and under
orders of the competent authority.”
Thirdly, the date on which the vacancies are likely to
occur are foreseeable with a reasonable amount of clarity
and precision. An exercise to fill up vacancies must be
undertaken in advance so as to ensure that there is no
occasion to appoint persons on an ad hoc basis:
“31. In a democratic set-up like ours, which is
governed by rule of law, the supremacy of law is to
be acknowledged and absence of arbitrariness has
been consistently described as essence of rule of
law. Thus, the powers have to be canalised and not
unbridled so as to breach the basic structure of the
Constitution. Equality of opportunity in matters of
employment being the constitutional mandate has
always been observed. The unquestionable
authority is always subject to the authority of the
Constitution. The higher the dignitary, the more
objectivity is expected to be observed. We do not
say that powers should be curtailed. What we want
to say is that the power can be exercised only to
the width of the constitutional and legal limits. The
date of retirement of every employee is well known
in advance and therefore, the number of vacancies
likely to occur in near future in a particular cadre
is always known to the employer. Therefore, the
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exercise to fill up the vacancies at the earliest must
start in advance to ensure that the selected person
may join immediately after availability of the post,
and hence, there may be no occasion to appoint
any person on ad hoc basis for the reason that the
problem of inducting the daily labourers who are
ensured of a regular appointment subsequently has
to be avoided and a fair procedure must be
adopted giving equal opportunity to everyone.”
The information before the Supreme Court indicated that
several High Courts have adopted a pattern of centralized
recruitment so as to ensure transparency and objectivity in
the appointment of ministerial staff both on the
establishment of the High Court and in the district courts.
Fourthly, while the High Court is an autonomous
constitutional authority whose status cannot be
undermined, it is equally necessary for it to strictly
comply with the rules framed in making recruitments :
“We would like to make it clear that the High Court
is a constitutional and an autonomous authority
subordinate to none. Therefore, nobody can
undermine the constitutional authority of the High
Court, and therefore the purpose to hear this case is
only to advise the High Court that if its rules are
not in consonance with the philosophy of our
Constitution then the same may be modified and no
appointment in contravention thereof should be
made. It is necessary that there is strict compliance
with appropriate rules and the employer is bound to
adhere to the norms of Articles 14 and 16 of the
Constitution before making any recruitment.”
The following directions have been issued in Renu for
observance by all the High Courts :
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“35.1. (i) All the High Courts are requested to reexamine
the statutory rules dealing with the
appointment of staff in the High Court as well as in
the subordinate courts and in case any of the rules
is not in conformity and consonance with the
provisions of Articles 14 and 16 of the Constitution,
the same may be modified.
35.2. (ii) To fill up any vacancy for any post either
in the High Court or in courts subordinate to the
High Court, in strict compliance with the statutory
rules so made. In case any appointment is made in
contravention of the statutory rules, the
appointment would be void ab initio irrespective of
any class of the post or the person occupying it.
35.3. (iii) The post shall be filled up by issuing the
advertisement in at least two newspapers and one of
which must be in vernacular language having wide
circulation in the respective State. In addition
thereto, the names may be requisitioned from the
local employment exchange and the vacancies may
be advertised by other modes also e.g. Employment
News, etc. Any vacancy filled up without advertising
as prescribed hereinabove, shall be void ab initio
and would remain unenforceable and unexecutable
except such appointments which are permissible to
be filled up without advertisement e.g. appointment
on compassionate grounds as per the rules
applicable. Before any appointment is made, the
eligibility as well as suitability of all the candidates
should be screened/tested while adhering to the
reservation policy adopted by the State, etc. if any.
35.4. (iv) Each High Court may examine and decide
within six months from today as to whether it is
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desirable to have centralised selection of candidates
for the courts subordinate to the respective High
Court and if it finds it desirable, may formulate the
rules to carry out that purpose either for the State or
on zonal or divisional basis.
35.5. (v) The High Court concerned or the
subordinate court as the case may be, shall
undertake the exercise of recruitment on a regular
basis at least once a year for existing vacancies or
vacancies that are likely to occur within the said
period, so that the vacancies are filled up timely, and
thereby avoiding any inconvenience or shortage of
staff as it will also control the menace of ad hocism.”
14. The judgment in Renu underlines the importance of
the High Court complying with statutory rules in matters of
recruitment. The judgment also emphasises the need to
abide by the principles of equality and equal opportunity
in Articles 14 and 16.”
Arbitrariness
Supreme Court in U.V. Mahadkar vs. Subhash Anand
Chavan and others, reported in (2016) 1 SCC 536 in paragraph no. 8 held
as under:-
“8. At the very outset, we are of the view that in the
matter of selection and promotion to the higher post, if a
Committee of Experts is constituted then normally, the
Court should not interfere in such decision unless mala
fides are attributed or allegations of arbitrariness are
proved.”
15. The judicial review of administrative actions will be based on
the grounds of (i) Illegality, (ii) Irrationality (iii) Procedural impropriety,
having chances of further addition according to the need of hour. Illegality
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covers the main substantive areas of ultra vires.
Illegality
The decision maker is expected to act for a purpose and for
that end he must apply correct tests, must taking into account relevant
factors, and disregard irrelevant factors. The Supreme Court in the case of
Centre for PIL vs. Union of India (2011) 4 SCC 1 made it clear that it is
not looking into the decision but the decision making process. The Court
said that the government “is not accountable to the Courts for the choice
made but the Government is accountable to the Courts in respect of
lawfulness / legality of its decision when impugned under the judicial
review jurisdiction.”
Irrationality
The decision of an administrative authority is also bad where
it is so perverse that no reasonable decision maker could have made such a
decision. Judicial review on this ground veers around the exercise of
discretion by a deciding authority, it is comparatively softer than illegality.
Irrationality may arise when the decision maker has not applied his mind
and acted mechanically by giving too much credence to the views of
subordinates or authority himself. Generally speaking, an authority
entrusted with a discretion must not, by adopting a rule or policy, disable
itself from exercising its discretion in individual cases. There is no
objection in its formulating a rule or policy. But the rule it frames or the
policy it adopts must not be based on consideration extraneous to those
contemplated or envisaged by enabling Act. It must not pre-determine the
issue, as by resolving to refuse all applications or all applications of a
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certain class or all applications except those of a certain class. In the case
of Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740, Supreme
Court held that the decision of an administrative authority based on
irrelevant consideration also renders the act or action bad. An
administrative action based on mala fide is also subject to judicial review.
De Smith explained the situation of dishonest and malicious action, thus:
“In relation to the exercise of statutory power it may be
said to comprise dishonesty (fraud) or malice. A power is
exercised maliciously if its repository is motivated by
personal animosity towards those who are directly
affected by its exercise. A power is exercise fraudulently if
its repository intends to achieve an object other than that
for which he believes the power to have been conferred.”
To sum up “irrationality” as a mode of judicial review of
administrative action covers cases of the exercise of a discretionary power,
where the power is exercised for an irrelevant consideration or for an
improper purpose or on dictate of a superior or in mala fide.
Procedural Impropriety
Procedural impropriety involves a failure on the part of the
decision maker to comply the rules of natural justice, where appropriate, to
act fairly, and to observe procedural norms established by the statute. It
produces a refinement of the principle of audi alteram partem. It can be
put in two folds: 1) Breach of principles of natural justice and, 2) not
affording a fair and reasonable opportunity to meet the case. One of the
important facets of judicial review of administrative actions is that
discretionary actions are inherently arbitrary and arbitrariness is the
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abnegation of equality clause. Arbitrariness and discrimination are but
different forms of irrationality. In the case of E.P. Royappa vs. State of
Tamil Nadu (1974) 4 SCC 3, it was observed as follows:-
“Equality is a dynamic concept with many aspects and
dimensions and it cannot be “cribbed, cabined and
confined” within traditional and doctrinaire limits. From
a positivistic point of view, equality is antithetic to
arbitrariness. In fact, equality and arbitrariness are
sworn enemies; one belong to the rule of law in a
republic while the other, to the whim and caprice of an
absolute monarch. Whereas an act is arbitrary, it is
implicit in it, that it is unequal both according to
political, logic and constitutional law and is therefore
violative of Article 14.”
In Associated Provincial Picture Houses Ltd. Wednesbury
Corporation Lord Green explained the test with reference to wednesbury
principle of reasonableness and violation of rule of natural justice as
under:-
“A person interested with the discretion must, so to
speak, direct himself properly in law. He must call his
own attention to the matters which he is bound to
consider. He must exclude from his consideration
matters which are irrelevant to what he has to consider.
If he does not obey those rules, he may truly be said, and
often he said, to be acting `unreasonably’. Similarly, he
may be something so absurd that no sensible person
could ever dream that is lay within the powers of the
authority.”
Legitimate Expectation
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In the case of Navjyati Cooperative Group Housing Society
vs. Union of India reported in (1992) 4 SCC 477, the Supreme Court has
held that the doctrine of “legitimate expectation, it was pointed out that it
imposes in essence a duty on public authority to act fairly; and within the
conspectus of fair dealing in case of legitimate expectation, the reasonable
opportunities to make representation by the parties likely to be affected by
any change of consistent past policy come in. Natural justice i.e. reasoned
decision is also appreciated by courts and they have been insisted upon
giving reasons for decisions affecting the rights and liabilities of citizens.
Supreme Court in the case of S.N. Mukherjee vs. Union of India,
reported in (1990) 4 SCC 594 held that it is mandatory as it reduces
chances of arbitrariness on part of authority because the reasons recorded
by him are subject to judicial review.
16. Articles 14 and 16 of the Constitution relates to equality of
opportunity in matters of public employment. Supreme Court in the case of
Union of India vs. S.C. Bagari (1999) 3 SCC 709, it was observed that
Article 16 does not bar reasonable classification of employees. Equality of
opportunity in employment or promotion means equality within a
class Articles 14 and 16 are not violated if differential treatment is
accorded in pay, perks and other privileges to different classes. Two
pay scales in the same posts based on experience and length of service are
valid under Articles 14 and 16. It was laid down by the Supreme Court
that the basic principle Articles 14 and 16 is the same i.e. equality and
prohibition against discrimination. Employment under Article 16(1)
includes promotion. Equality of opportunity is denied if direct
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recruitment to service is made without advertising the posts. As regards
the equality of opportunity in matters of promotion, it is laid down
that if all the posts are filled by promotion, there is no need to
advertise. However, if some posts are to be filled by promotion and some
by direct recruitment, advertising the posts is necessary. The Supreme
Court laid down that within the same cadre, educational qualification may
be laid down for the purpose of promotion. Fixation of seniority in
services was also brought under the rule of equality of opportunity in
public employment with certain exceptions under Article 336 and
under clauses (1) and (2) of Article 16.
Discretionary Power
Supreme Court in U.P. State Road Transport Corporation
and another vs. Mohd. Ismail and others reported in (1991) 3 S.C.C.,
239, in para no. 15 held as under:-
“15. These are, in our opinion, extreme contentions
which are not sustainable under law. There are two
aspects to be borne in mind in exercising the discretion.
Firstly, there are constraints within which the
Corporation has to exercise its discretion. The
Corporation is a public utility organisation where
mediating motion is efficiency and effectiveness of
public service. Efficiency and effectiveness of public
service are the basic concepts which cannot be
sacrificed in public administration by any statutory
corporation. The Corporation has to render this public
service within the resource use and allocation. It is
within these constraints the Corporation has to exercise
its discretion and perform its task. The second aspect
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relates to the manner in which statutory discretion is to
be exercised. The discretion allowed by the statute to the
holder of an office, as Lord Halsbury observed in
Susannah Sharp v. Wakefield, 1891 AC 173, 179: 64 LT
180 is intended to be exercised “according to the rules
of reason and justice, not according to private opinion;
… according to law and not humour. It is to be, not
arbitrary, vague, and fanciful, but legal and regular.
And it must be exercised within the limit, to which an
honest man competent to the discharge of his office
ought to confine himself”. Every discretion conferred by
statute on a holder of public office must be exercised in
furtherance of accomplishment of purpose of the power.
The purpose of discretionary decision making under
Regulation 17(3) was intended to rehabilitate the
disabled drivers to the extent possible and within the
abovesaid constraints. The Corporation therefore,
cannot act mechanically. The discretion should not be
exercised according to whim, caprice or ritual. The
discretion should be exercised reasonably and
rationally. It should be exercised faithfully and
impartially. There should be proper value judgment with
fairness and equity. Those drivers would have served the
Corporation till their superannuation but for their
unfortunate medical unfitness to carry on the driver’s
job. Therefore, it would not be improper if the discretion
is exercised with greater concern for and sympathetic
outlook to the disabled drivers subject of course to the
paramount consideration of good and efficient
administration. These are some of the relevant factors to
be borne in mind in exercising the discretion vested in
the Corporation under Regulation 17(3).”
Supreme Court in the case of Union of India vs. Kuldeep
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Singh, reported in (2004) 2 SCC 590 in Para nos. 20, 21 and 24 held as
under:-
“20. When anything is left to any person, judge or
Magistrate to be done according to his discretion, the law
intends it must be done with sound discretion, and
according to law. (See Tomlin’s Law Dictionary.) In its
ordinary meaning, the word “discretion” signifies
unrestrained exercise of choice or will; freedom to act
according to one’s own judgment; unrestrained exercise
of will; the liberty or power of acting without control
other than one’s own judgment. But, when applied to
public functionaries, it means a power or right conferred
upon them by law, of acting officially in certain
circumstances according to the dictates of their own
judgment and conscience, uncontrolled by the judgment
or conscience of others. Discretion is to discern between
right and wrong; and therefore, whoever hath power to
act at discretion, is bound by the rule of reason and law.
(See Tomlin’s Law Dictionary.)
21. Discretion, in general, is the discernment of what is
right and proper. It denotes knowledge and prudence, that
discernment which enables a person to judge critically of
what is correct and proper united with caution; nice
discernment, and judgment directed by circumspection;
deliberate judgment; soundness of judgment; a science or
understanding to discern between falsity and truth,
between wrong and right, between shadow and substance,
between equity and colourable glosses and pretences, and
not to do according to the will and private affections of
persons. When it is said that something is to be done
within the discretion of the authorities, that something is
to be done according to the rules of reason and justice,
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not according to private opinion; according to law and
not humour. It is to be not arbitrary, vague, and fanciful,
but legal and regular. And it must be exercised within the
limit, to which an honest man, competent to the discharge
of his office ought to confine himself (per Lord Halsbury,
L.C., in Sharp v. Wakefield 1891 AC 173 : (1886-90) All
ER Rep 651 (HL). (Also see S.G. Jaisinghani v. Union of
India AIR 1967 SC 1427).
24. Such discretion is usually given on matters of
procedure or punishment, or costs of administration
rather than with reference to vested substantive rights.
The matters which should regulate the exercise of
discretion have been stated by eminent judges in
somewhat different forms of words but with substantial
identity. When a statute gives a judge a discretion, what is
meant is a judicial discretion, regulated according to the
known rules of law, and not the mere whim or caprice of
the person to whom it is given on the assumption that he
is discreet (per Willes, J. in Lee v. Bude and Torrington
Junction Rly. Co. (1871) LR 6 CP 576 : 24 LT 827 and in
Morgan v. Morgan (1869) LR 1 P&M 644).”
Supreme Court in the case of Automotive Tyre
Manufacturers Association vs. Designated Authority and others,
reported in (2011) 2 SCC 258, in para nos. 77 to 80 held as under:
“77. It is trite that rules of “natural justice” are not
embodied rules. The phrase “natural justice” is also not
capable of a precise definition. The underlying principle
of natural justice, evolved under the common law, is to
check arbitrary exercise of power by the State or its
functionaries. Therefore, the principle implies a duty to
act fairly i.e. fair play in action. In A.K. Kraipak v. Union
of India, (1969) 2 SCC 262, it was observed that the aim
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of rules of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice.
78. In Mohinder Singh Gill v. Chief Election Commr.,
(1978) 1 SCC 405, upon consideration of several cases,
Krishna Iyer, J. in his inimitable style observed thus:
(SCC p. 434, para 48)
“48. Once we understand the soul of the rule as
fair play in action—and it is so—we must hold
that it extends to both the fields. After all,
administrative power in a democratic set-up is
not allergic to fairness in action and
discretionary executive justice cannot
degenerate into unilateral injustice. Nor is there
ground to be frightened of delay, inconvenience
and expense, if natural justice gains access. For
fairness itself is a flexible, pragmatic and
relative concept, not a rigid, ritualistic or
sophisticated abstraction. It is not a bull in a
china shop, nor a bee in one’s bonnet. Its
essence is good conscience in a given situation;
nothing more—but nothing less. The ‘exceptions’
to the rules of natural justice are a misnomer or
rather are but a shorthand form of expressing
the idea that in those exclusionary cases nothing
unfair can be inferred by not affording an
opportunity to present or meet a case. Textbook
excerpts and ratios from rulings can be heaped,
but they all converge to the same point that audi
alteram partem is the justice of the law, without,
of course, making law lifeless, absurd,
stultifying, self-defeating or plainly contrary to
the common sense of the situation.”
79. In Swadeshi Cotton Mills v. Union of India (1981) 1
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SCC 664, R.S. Sarkaria, J., speaking for the majority in a
three-Judge Bench, lucidly explained the meaning and
scope of the concept of “natural justice”. Referring to
several decisions, His Lordship observed thus: (SCC p.
666)
“Rules of natural justice are not embodied rules.
Being means to an end and not an end in
themselves, it is not possible to make an
exhaustive catalogue of such rules. But there are
two fundamental maxims of natural justice viz. (i)
audi alteram partem, and (ii) nemo judex in re
sua. The audi alteram partem rule has many
facets, two of them being (a) notice of the case to
be met; and (b) opportunity to explain. This rule
cannot be sacrificed at the altar of
administrative convenience or celerity. The
general principle—as distinguished from an
absolute rule of uniform application—seems to be
that where a statute does not, in terms, exclude
this rule of prior hearing but contemplates a postdecisional
hearing amounting to a full review of
the original order on merits, then such a statute
would be construed as excluding the audi alteram
partem rule at the pre-decisional stage.
Conversely if the statute conferring the power is
silent with regard to the giving of a predecisional
hearing to the person affected and the
administrative decision taken by the authority
involves civil consequences of a grave nature,
and no full review or appeal on merits against
that decision is provided, courts will be extremely
reluctant to construe such a statute as excluding
the duty of affording even a minimal hearing,
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shorn of all its formal trappings and dilatory
features at the pre-decisional stage, unless,
viewed pragmatically, it would paralyse the
administrative process or frustrate the need for
utmost promptitude. In short, this rule of fair play
must not be jettisoned save in very exceptional
circumstances where compulsive necessity so
demands. The court must make every effort to
salvage this cardinal rule to the maximum extent
possible, with situational modifications. But, the
core of it must, however, remain, namely, that the
person affected must have reasonable opportunity
of being heard and the hearing must be a genuine
hearing and not an empty public relations
exercise.”
(emphasis supplied by us)
80. It is thus, well settled that unless a statutory
provision, either specifically or by necessary implication
excludes the application of principles of natural justice,
because in that event the court would not ignore the
legislative mandate, the requirement of giving reasonable
opportunity of being heard before an order is made, is
generally read into the provisions of a statute,
particularly when the order has adverse civil
consequences which obviously cover infraction of
property, personal rights and material deprivations for
the party affected. The principle holds good irrespective
of whether the power conferred on a statutory body or
Tribunal is administrative or quasi-judicial. It is equally
trite that the concept of natural justice can neither be put
in a straitjacket nor is it a general rule of universal
application.”
Supreme Court in the case of State of West Bengal and
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others vs. Debasish Mukherjeet and others, reported in (2011) 14 SCC
187, in para no. 35 has held as under:-
“35. We may next consider the correctness of the
finding of the Division Bench that the order dated 13-2-
2003 of the Chief Justice is not justiciable and the State
Government cannot challenge it in a court of law. At the
outset, we may note that in a democracy, governed by
the rule of law, where arbitrariness in any form is
eschewed, no Government or authority has the right to
do whatever it pleases. Where the rule of law prevails,
there is nothing like unfettered discretion or
unaccountable action. Even prerogative power is
subject to judicial review, but to a very limited extent.
The extent, depth and intensity of judicial review may
depend upon the subject-matter of judicial review (vide
observation of the Constitution Bench in B.P. Singhal v.
Union of India (2010) 6 SCC 331).”
Supreme Court in Centre for Public Interest Litigation vs.
Union of India and others reported in (2016) 6 SCC 408 in para no.26
held as under:-
“26. It cannot be doubted that the primary and central
purpose of judicial review of the administrative action is
to promote good administration. It is to ensure that
administrative bodies act efficiently and honestly to
promote the public good. They should operate in a fair,
transparent, and unbiased fashion, keeping in forefront
the public interest. To ensure that the aforesaid dominant
objectives are achieved, this Court has added new
dimension to the contours of judicial review and it has
undergone tremendous change in recent years. The scope
of judicial review has expanded radically and it now
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extends well beyond the sphere of statutory powers to
include diverse forms of “public” power in response to
the changing architecture of the Government (See:
Administrative Law : Text and Materials (4th Edn.,
Oxford University Press, New York, 2011) by Beatson,
Matthews and Elliott.). Thus, not only has judicial review
grown wider in scope; its intensity has also increased.
Notwithstanding the same,
“it is, however, central to received perceptions of
judicial review that courts may not interfere with
exercise of discretion merely because they
disagree with the decision or action in question;
instead, courts intervene only if some specific
fault can be established—for example, if the
decision reached was procedurally unfair ibid”.
Supreme Court in the case of Satish Kumar vs. Karan Singh
and others, reported in (2016) 4 SCC 352 , in para no.10 held as under:-
“10. Exercise of discretionary power under Section 20
of the Specific Relief Act for granting a decree, this Court
in Parakunnan Veetill Joseph’s Son Mathew v.
Nedumbara Kuruvila’s Son, 1987 Supp SCC 340: AIR
1987 SC 2328 observed: (SCC p. 345, para 14)
“14. Section 20 of the Specific Relief Act, 1963
preserves judicial discretion of courts as to
decreeing specific performance. The court should
meticulously consider all facts and circumstances
of the case. The court is not bound to grant specific
performance merely because it is lawful to do so.
The motive behind the litigation should also enter
into the judicial verdict. The court should take care
to see that it is not used as an instrument of
oppression to have an unfair advantage to the
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plaintiff. The High Court has failed to consider the
motive with which Varghese instituted the suit. It
was instituted because Kuruvila could not get the
estate and Mathew was not prepared to part with it.
The sheet anchor of the suit filed by Varghese is the
agreement for sale, Ext. A-1. Since Chettiar had
waived his rights thereunder, Varghese as an
assignee could not get a better right to enforce that
agreement. He is, therefore, not entitled to a decree
for specific performance.”
Supreme Court in the case of State of U.P. and others vs.
Renusagar Power Co. and others, reported in (1988) 4 SCC 59, held as
under:-
“86. …….. The exercise of power whether legislative or
administrative will be set aside if there is manifest error
in the exercise of such power or the exercise of the power
is manifestly arbitrary. Similarly, if the power has been
exercised on a non-consideration or non-application of
mind to relevant factors the exercise of power will be
regarded as manifestly erroneous. If a power (whether
legislative or administrative) is exercised on the basis of
facts which do not exist and which are patently
erroneous, such exercise of power will stand vitiated.”
Supreme Court in U.V. Mahadkar vs. Subhash Anand
Chavan and others, reported in (2016) 1 SCC, 536 , in para no 16 held as
under:-
“16. Reference may also be made to a decision of this
Court in K. Samantaray v. National Insurance Co. Ltd
(2004) 9 SCC 286, observed as under: (SCC pp. 289-90,
para 7)
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“7. The principles of seniority-cum-merit and
merit-cum-seniority are conceptually different. For
the former, greater emphasis is laid on seniority,
though it is not the determinative factor, while in
the latter, merit is the determinative factor. In State
of Mysore v. Syed Mahmood AIR 1968 SC 1113 it
was observed that in the background of Rule 4(3)(b)
of the Mysore State Civil Services (General
Recruitment) Rules, 1957 which required promotion
to be made by selection on the basis of senioritycum-
merit; that the rule required promotion to be
made by selection on the basis of ‘seniority subject
to the fitness of the candidate to discharge the
duties of the post from among persons eligible for
promotion’. It was pointed out that where the
promotion is based on seniority-cum-merit the
officer cannot claim promotion as a matter of right
by virtue of his seniority alone and if he is found
unfit to discharge the duties of the higher post, he
may be passed over and an officer junior to him
may be promoted. But these are not the only modes
for deciding whether promotion is to be granted or
not.”
17. The petitioners argument is that promotion of respondent no.3
is in violation of Rules 12 and 30 of Rules 1973 since a method of
recruitment to the post of Superintendent Grade-II is seniority-cum-merit.
Petitioners are much seniors to respondent no.3 in the seniority list of
Senior Assistants. Further contention is under rule 38 of Rules 1973. Only
under circumstances where undue hardship arises in a case in such
circumstances, rule 38 is required to be invoked. No undue hardship is
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caused to the third respondent so as to invoke rule 38 and there is violation
of Articles 14 and 16 in promoting the third respondent. Invoking rule 38
of Rules 1973 to promote respondent no.3 is in violation of rule 20 of
Rules 1994. Further rule 19 provides for relaxation of any provision only
to a class of persons and not to an individual. The third respondent has not
questioned the validity of his ranking below the petitioners as long as
petitioners are seniors to the third respondent. Promotion of the third
respondent is contrary to Rules 12 and 30 of Rules 1973 and it is illegal
and arbitrary. The petitioners have relied on the administrative decision of
the present Chief Justice in the case of Ram Kumar, Joint Registrar, who
had sought for benefit on par with his superior Sham Lal Sharma wherein
detailed order has been passed while rejecting the claim of Ram Kumar,
stating that grant of benefit to Ram Kumar and others would be arbitrary.
18. The petitioners in support of the petition cited decision of
Satinder Singh Bajwa (supra). The Court has held that undue benefit
should not be given to the employees on the eve of Chief Justice’s
retirement. In the case of Renu (supra), powers of Chief Justice of the
High Court in extending service benefit to its employees should be in
consonance with the constitutional provision like Articles 14 and 16 of the
Constitution. In the case of H.C. Puttaswamy (supra), Court has held that
Chief Justice cannot depart from constitutional ethos and traditions of his
calling. Since the then Hon’ble Chief Justice invoked Rule 38 of Rules
1973 the contention of the petitioners would be appreciable to the extent of
violation of ingredients of above rule and violation of Articles 14 and 16
of Constitution.
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19. Learned counsel for respondents no.1 and 3 contended that
under Rule 38 of Rules 1973, Chief Justice has ample power, therefore,
rightly the then Hon’ble Chief Justice has invoked rule 38 while examining
the third respondent’s past record after due appreciation of his work and
ability by the Supreme Court Judges, Judges of this Court and Judges of
other High Courts. Therefore, after due satisfaction in the matter, all rules
have been relaxed insofar as granting promotion to the third respondent. In
other words, all the ingredients under Rule 38 has been complied.
20. It was further submitted that contention of the petitioners that
there is violation of rule 20 read with rule 19 of Rules 1994 in granting
promotion to the third respondent, is not tenable for the reasons that Rules
1994 were issued under Article 309, whereas rule 38 of Rules 1973 were
issued under Article 229(1) read with Article 231 of the Constitution. In
support of the power of the Chief Justice, both the counsels relied on
decisions of Satya Vir Singh, R.K. Sharma, Renu and High Court of
Judicature for Rajasthan vs. Ramesh Chand Paliwal and another
(supra). Insofar as violation of Rules 1994 is concerned, third respondent
relied upon in M. Gurumoorthy’s case (supra) where the Supreme Court
has held that in the matter of service conditions in the High Court even the
Legislative action abridge or modify the powers conferred under clause (1)
of Article 229 of the Constitution. It was further contended that Renu’s
case (supra) is not at all applicable in the present case as it relates to
service condition of the Subordinate staff Courts.
21. The following rules of Rules 1973 which are at the heart of
controversy in the present case reads as under:-
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“12. Superintendent Grade-II – The appointment to the post
of Superintendent Grade-II shall be made by promotion on
the basis of seniority-cum-merit from out of the Senior
Assistants having experience of a minimum period of three
years.
Provided that 10% (ten per cent) posts in the cadre of
Superintendent Grade-II shall be filled by direct recruitment
from amongst the candidates possessing a certificate of
passing State Accounts Service Examination of Punjab or
Haryana or who are qualified Chartered Accountant /
Company Secretary / Cost and Works Accountant. Such
candidates shall not be less than 35 years of age with two
years relevant experience in a Government Department or an
organization of repute.”
“16. Senior Assistant
The posts of Senior Assistants shall be filled in the following
ratio:-
(1) 80% – By Promotion from amongst the Junior
Assistants working on the establishment of this Court
on the basis of seniority-cum-merit.
(2) 20% – By Direct Recruitment.
Qualifications/Experience for direct recruitment:-
(i) Age: The candidate should not be less than 25 years
or more than 35 years of age on the last date of submission of
applications.
Provided that there shall be no age limit for the employees
working on the Establishment of the High Court.”
“30. Seniority (i) Seniority shall be determined separately for
each category of posts in the Establishment.
(ii) Upto the date of confirmation, seniority shall be
determined by the length of continuous service in the
particular category of posts.
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(iii) Within the same category seniority shall be determined
from the date of confirmation. In any particular category
seniority, between the persons confirmed on the same date
shall be determined on the basis of their seniority as
unconfirmed hands in that category.
Provided that notwithstanding anything contained in these
rules, the inter-se seniority of the existing members of the
establishment in any particular category, as already settled
by the Chief Justice or by any Judge or Judges prior to the
coming into force of these rules shall not be disturbed
because of anything contained in the rules;
(iv) In case of any dispute regarding seniority the same
shall be decided by the Chief Justice or any Judge nominated
by the Chief Justice for that purpose.”
“38. Power to relax rules in favour of individuals – Where
the Chief Justice is satisfied that the operation of any rule
causes undue hardship in any particular case, he may by
order dispense with or relax the requirements of that rule to
such extent and subject to such conditions as he may consider
necessary for dealing with the case in a just and equitable
manner provided that the case is not dealt with in a manner
less favourable to the officer or official concerned than in
accordance with the rules.”
22. Rule 38 of Rules 1973 play a heroic role in crisis between
equity and legalism.
Perusal of the records, it is evident that while promoting the
third respondent, the then Hon’ble Chief Justice has relaxed all the rules of
Rules 1973. In other words, Rule 12 relates to method of recruitment to the
post of Superintendent Grade-II. Even though the third respondent fulfills
stipulated condition for the post of Superintendent Grade-II except
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seniority. Seniority is a fundamental right held by the Supreme Court in the
case of Ajit Singh and others (II) vs. State of Punjab and others,
reported in (1999) 7 Supreme Court Cases, 209, para nos.22, 23 and 27
reads as under:-
“Articles 14 and 16 (1) : is right to be considered for
promotion a fundamental right.
22. Article 14 and Article 16(1) are closely connected.
They deal with individual rights of the person. Article 14
demands that the “State shall not deny to any person
equality before the law or the equal protection of the
laws”. Article 16(1) issues a positive command that
“there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State”.
It has been held repeatedly by this Court that clause (1)
of Article 16 is a facet of Article 14 and that it takes its
roots from Article 14. The said clause particularises the
generality in Article 14 and identifies, in a constitutional
sense “equality of opportunity” in matters of employment
and appointment to any office under the State. The word
“employment” being wider, there is no dispute that it
takes within its fold, the aspect of promotions to posts
above the stage of initial level of recruitment. Article 16
(1) provides to every employee otherwise eligible for
promotion or who comes within the zone of
consideration, a fundamental right to be “considered”
for promotion. Equal opportunity here means the right to
be “considered” for promotion. If a person satisfies the
eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his
fundamental right to be “considered” for promotion,
which is his personal right.
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“Promotion” based on equal opportunity and
“seniority” attached to such promotion are facets of
fundamental right under Article 16(1).
23. Where promotional avenues are available,
seniority becomes closely interlinked with promotion
provided such a promotion is made after complying with
the principle of equal opportunity stated in Article 16(1).
For example, if the promotion is by rule of “senioritycum-
suitability”, the eligible seniors at the basic level as
per seniority fixed at that level and who are within the
zone of consideration must be first considered for
promotion and be promoted if found suitable. In the
promoted category they would have to count their
seniority from the date of such promotion because they
get promotion through a process of equal opportunity.
Similarly, if the promotion from the basic level is by
selection or merit or any rule involving consideration of
merit, the senior who is eligible at the basic level has to
be considered and if found meritorious in comparison
with others, he will have to be promoted first. If he is not
found so meritorious, the next in order of seniority is to
be considered and if found eligible and more meritorious
than the first person in the seniority list, he should be
promoted. In either case, the person who is first
promoted will normally count his seniority from the date
of such promotion. (There are minor modifications in
various services in the matter of counting of seniority of
such promotees but in all cases the seniormost person at
the basic level is to be considered first and then the
others in the line of seniority.) That is how right to be
considered for promotion and the “seniority” attached to
such promotion become important facets of the
fundamental right guaranteed in Article 16(1).
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Right to be considered for promotion is not a mere
statutory right
27. In our opinion, the above view expressed in Ashok
Kumar Gupta (1997) 5 SCC 201: 1997 SCC (L&S) 1299
and followed in Jagdish Lal vs. State of Haryana (1997)
6 SCC 538 : 1997 SCC (L&S) 1550 and other cases, if it
is intended to lay down that the right guaranteed to
employees for being “considered” for promotion
according to relevant rules of recruitment by promotion
(i.e. whether on the basis of seniority or merit) is only a
statutory right and not a fundamental right, we cannot
accept the proposition. We have already stated earlier
that the right to equal opportunity in the matter of
promotion in the sense of a right to be “considered” for
promotion is indeed a fundamental right guaranteed
under Article 16(1) and this has never been doubted in
any other case before Ashok Kumar Gupta (1997) 5 SCC
201 right from 1950.”
Having regard to Rule 12 and the above decision, the
petitioners do have right of preference over the third respondent as they are
much seniors to the third respondent. Therefore, the then Chief Justice
relaxing rule 12 in promoting respondent no.3 would be contrary to
Articles 14 and 16 of the Constitution.
23. Under Rule 38 of Rules 1973, the Chief Justice can invoke
after satisfaction of undue hardship and just and equitable manner. Insofar
as third respondent is concerned, the principle of no undue hardship and
also just and equitable manner is not at all attracted. Undue hardship would
arise if a particular provision of law is coming in the way of extending
service condition to an employee without affecting the third party’s right
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like the petitioners in the present case. Further, Supreme Court in the case
of Union of India and another vs. Narendra Singh, reported in (2008) 2
SCC 750, held that normally there should not be any relaxation in
recruitment rules unless the eligible and qualified candidates are not
available; relaxation should not be exercised to perpetuate mistake. Further
it was held that power of relaxation should be exercised to the extent as
may be necessary to ensure satisfactory working or removing hardship in a
just and equitable manner but the Government cannot consciously and
deliberately deviate from the rules exercising the power of relaxation.
24. Supreme Court in the case of Shri Amrit Singh and others
vs. Union of India and others, (1980) 3 SCC 393 held that there must be
undue hardship and, further relaxation must promote dealing with the case
“in a just and equitable manner”. These are perfectly sensible guidelines .
What is more, there is implicit in the Rule, the compliance with natural
justice so that nobody may be adversely affected even by administrative
action without hearing.
25. Having regard to the above rulings of the Supreme Court
while exercising relaxation provision to an employee, such action should
in consonance with Articles 14 and 16 of the Constitution. Thus, the third
party’s right should not be affected, whereas in the present case, while
promoting the third respondent, Rules 12 and 30 of Rules 1973 and
Articles 14 and 16 of the Constitution are violated. Therefore, the third
respondent’s promotion is liable to be set aside.
26. The present Hon’ble Chief Justice had an occasion to consider
extension of certain service benefits to Ram Kumar on par with Sham Lal
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Sharma, who is stated to be junior to Ram Kumar. The Hon’ble Chief
Justice was pleased to observe as under:-
“I have not had the benefit of observing the work of the
three Joint Registrars. Their main grievance is that they
did not have the benefit of working with the Chief Justice.
They stated that if they had this opportunity they would
have been willing to work as hard as Mr. Sham Lal
Sharma did and would have been able to demonstrate to
the Chief Justice that they were as hard working and
efficient as him. Due to this lack of opportunity,
enormous injustice has been caused to them.” “I have
been informed that there are certain other out of turn
appointments as well and that other employees have also
been conferred benefits out of turn. Assuming that this is
true it enhances my reluctance to confer out of turn
benefits upon the three Joint Registrars even assuming
that they are equally, if not more, entitled to the benefits
conferred upon Shri Sham Lal Sharma. I am not inclined
to grant ad hoc benefits to the employees selectively. If I
grant this benefit to the three Joint Registrars, several
other employees of this Court in different cadres would
insist upon the same benefit in view their having been
overlooked or in view of the persons junior to them
having been conferred benefits of promotion out of turn
and / or any other benefits on an ad hoc basis”. “I am not
inclined to grant the request on principle for such a
decision would be arbitrary and the same would have
enormous adverse consequences upon the administration
of this Court.”
The above decision of the present Hon’ble Chief Justice is
crystal clear that giving out of turn promotion would lead to arbitrariness
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in the decision and the same would have enormous adverse consequences
upon the administration of the Court. The said decision supports the
petitioners’ claim, therefore, the third respondent’s out of turn promotion
under Rule 38 would be highly arbitrary, illegal and violation of Articles
14 and 16 of the Constitution.
27. Supreme Court extensively considered the power of Chief
Justice in the cited decisions on behalf of the petitioners as well as
respondents no.1 and 3. Ultimately, even though relaxation provision of
any rule vested with the Chief Justice would be exercised at the same time
such relaxation of provision in an individual case or class of persons that
should comply Articles 14 and 16 of the Constitution. In the present case,
the post of Superintendent Grade-II is required to be filled up by senioritycum-
merit, therefore, the then Hon’ble Chief Justice while promoting the
third respondent relaxing the seniority criteria is incorrect so also in not
complying Articles 14 and 16 of the Constitution. Petitioners’ contention
insofar as violation of rule 20 of Rules 1994 in promoting the third
respondent is concerned, is not tenable in view of decision of the Supreme
Court rendered in M. Gurumoorthy vs. Accountant-General, Assam
and Nagaland and others, reported in (1971) 2 S.C.C., 137, wherein it
has been held that Legislature cannot abridge or modify the powers
conferred under clause (1) of Article 229 of the Constitution. The decision
of the deciding authority can be quashed if it has abused its jurisdiction. It
can be said to have abused its jurisdiction when it exercises power for an
improper purpose, or an extraneous considerations, or in bad faith, or leave
out relevant consideration. In the present case, there is no consideration of
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Articles 14 and 16 read with Rules 12 and 30 of Rules 1973, while
promoting respondent no.3 to the post of Superintendent Grade-II on
22.07.2014.
28. To sum up the case, promoting the third respondent to the post
of Superintendent Grade-II there is a clear violation of Articles 14 and 16
of the Constitution even though rule 38 of Rules 1973 provides for
relaxation. Relaxation of Rules 1973 would be highly arbitrary, irrational
and illegal to the 3rd respondent’s case when the post of Superintendent
Grade-II is required to be filled up by seniority-cum-merit , when the third
respondent is much junior to the petitioners in the feeder cadre of Senior
Assistants i.e. petitioners are at Sr. Nos. 11, 14, 26, 30, 36, 45, 54, 58, 66,
69, 75, 109, 114, 125, 132, 147, 155 and 157 respectively, whereas the
third respondent’s name is at Sr. No. 172. Since respondent no.3 do not
fulfill the criteria of seniority as per Rule 12 read with Rule 30 of Rules
1973. Supreme Court in the case of State of Gujarat and others vs.
Arvindkumar T. Tiwari and another, reported in (2012) 9 SCC 545 held
as under:-
“14. A person who does not possess the requisite
qualification cannot even apply for recruitment for the
reason that his appointment would be contrary to the
statutory rules is, and would therefore, be void in law.
Lacking eligibility for the post cannot be cured at any
stage and appointing such a person would amount to
serious illegibility and not mere irregularity. Such a
person cannot approach the court for any relief for the
reason that he does not have a right which can be
enforced through court. (See: Prit Singh v. S.K. Mangal &
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Ors., 1993(1) SCC (Supp.) 714; and Pramod Kumar v.
U.P. Secondary Education Services Commission & Ors.,
AIR 2008 SC 1817)”.
29. Considering the factual and legal aspects of the case, coupled
with the reasons afore-mentioned, promotion order of the respondent no.3
dated 22.07.2014 (Annexure P/4) to the post of Superintendent Grade-II is
set aside. Consequently, 1st respondent is directed to fill up the vacancy of
Superintendent Grade-II in accordance with Rule 12 read with Rule 30 of
Rules, 1973 and promote eligible petitioner to the post of Superintendent
Grade-II from 22.07.2014 within a period of three months from today.
30. Writ petition stands allowed.
No order as to costs.
March 1st, 2017 [P.B. Bajanthri]
vkd Judge
Whether reasoned / speaking : Yes
Whether reportable : Yes
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