REPORTABLE
IN THE SUPREME COURT
OF INDIA
CIVIL APPELLATE
JURISDICTION
CIVIL APPEAL NO. 979
OF 2014
(Arising out of SLP
(C) No. 26090 of 2011)
Renu & Ors.
…Appellants
Versus
District &
Sessions Judge, Tis Hazari & Anr.
…Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
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.
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 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.
3.
It was in view of the above that this
Court vide its
earlier
orders had asked learned counsel
appearing for the States as well as
the
High Courts to
examine the records
of their respective
States/Courts and report as to whether a
proper and fair procedure had
been adopted for evaluating the
candidates. A mixed
response was
received from different counsel on these
issues.
4.
In view of the aforesaid
submissions, we do
not think it
necessary to peruse the record
in order to
gauge the amount
of
irregularities or
illegalities. Our basic
concern is that
the
appointments in judicial institutions
must be made on the touchstone
of equality of opportunity enshrined in
Article 14 read with Article
16 of the Constitution of India, 1950
(hereinafter referred to as the
`Constitution’) and under no
circumstance any appointment
which is
illegal should be saved for the reason
that the grievance
of the
people at large is that complete darkness
in the light house has to be
removed.
The judiciary which raises a finger towards actions of every
other wing of
the society cannot
afford to have
this kind of
accusations against itself.
5.
Rule of law is the basic feature of the Constitution. There was
a time when REX was LEX. We now seek
to say LEX
is REX. It is
axiomatic that no authority is above law
and no
man is above
law.
Article 13(2) of the Constitution
provides that no law can be enacted
which runs contrary to the fundamental
rights guaranteed under
Part
III of the Constitution. The object of such a provision is to ensure
that instruments emanating from
any source of
law, permanent or
temporary, legislative or judicial or any
other source, pay homage to
the constitutional provisions relating to
fundamental rights. Thus,
the
main objective of Article 13 is to secure the paramountcy of the
Constitution especially with regard to fundamental rights.
6.
The aforesaid provision
is in consonance
with the legal
principle of “Rule of Law” and they remind
us of the famous words of
the English jurist, Henry de Bracton –
“The King is under no man but
under God and the Law”. No one is above
law. The dictum – “Be you ever
so high, the law is above you” is
applicable to all, irrespective of
his status, religion, caste, creed, sex
or culture. The Constitution
is the supreme law. All the institutions,
be it legislature, executive
or judiciary, being created under the
Constitution, cannot ignore it.
The exercise of powers by an
authority cannot be
unguided or
unbridled as the Constitution prescribes
the limitations for each and
every authority and therefore, no one,
howsoever high he may be, has a
right to exercise the power beyond the
purpose for which the same has
been conferred on him. Thus, the powers
have to be exercised
within
the
framework of the
Constitution and legislative
provisions,
otherwise it would be an exercise of
power in violation of the basic
features
of the Constitution
i.e. Part III
dealing with the
fundamental rights which also prescribes
the limitations.
7.
Article 14 of the Constitution
provides for equality
of
opportunity. It forms the cornerstone of our Constitution.
In I.R. Coelho (dead) by L.Rs. v.
State of Tamil Nadu,
AIR 2007
SC 861, the doctrine of basic
features has been
explained by this
Court as under:
“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 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
Administration,
Delhi & Ors., AIR 1992 SC 789; State
of Haryana
& Ors. v. Piara Singh
& Ors. etc.etc., AIR 1992 SC 2130;
Prabhat Kumar Sharma
& Ors. v.
State of U.P. & Ors., AIR 1996 SC
2638; J.A.S. Inter College, Khurja,
U.P. & Ors. v. State of U.P. & Ors., AIR
1996 SC 3420; M.P.
Housing
Board & Anr. v. Manoj Shrivastava,
AIR 2006 SC 3499; M.P. State Agro
Industries Development Corporation Ltd.
& Anr. v. S.C. Pandey, (2006)
2 SCC 716; and State of Madhya Pradesh & Ors. v. Ku.
Sandhya Tomar &
Anr., JT 2013 (9) SC 139.
9.
In Excise Superintendent Malkapatnam, Krishna District, A.P. v.
K.B.N. Visweshwara Rao & Ors., (1996)
6 SCC 216, a larger
Bench of
this Court reconsidered its earlier
judgment in Union of India & Ors.
v. N. Hargopal & Ors., AIR 1987 SC
1227, wherein it had been held that
insistence of requisition 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 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:
“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
case of all candidates who have
applied. If this procedure is
adopted, fair play would be sub
served. The equality of opportunity
in the matter of employment
would be available to all eligible candidates.”
(Emphasis added)
(See also: Arun Tewari & Ors. v. Zila
Mansavi Shikshak Sangh & Ors.,
AIR 1998 SC 331; and Kishore K. Pati v.
Distt. Inspector of Schools,
Midnapur & Ors., (2000) 9 SCC 405).
10.
In Suresh Kumar & Ors. v. State of Haryana & Ors., (2003) 10 SCC
276, this Court upheld the judgment of
the Punjab & 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 Union Public Service Commission v. Girish Jayanti Lal Vaghela
& Ors., AIR 2006 SC 1165, this Court
held:
“........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
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
added)
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., Bhopal v. Nanuram Yadav & Ors., (2007) 8
SCC 264 as under:
“(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.
(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 Secretary, State of
Karnataka & Ors. v. Umadevi &
Ors.,
AIR 2006 SC 1806, 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 & Anr. v. Mamata Mohanty, (2011) 3 SCC
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:-
“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
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:
The
University of Mysore & Anr. v. C.D.
Govinda Rao & Anr., AIR 1965
SC
491;
Shri Kumar Padma Prasad v. Union of
India & Ors., AIR 1992
SC
1213; B.R. Kapur v. State of Tamil Nadu
& Anr., AIR 2001 SC 3435; The
Mor
Modern Co-operative Transport
Society Ltd. v.
Financial
Commissioner and Secretary to Govt.,
Haryana & Anr., AIR 2002 SC 2513;
Arun Singh v. State of Bihar & Ors., AIR 2006 SC 1413; Hari
Bansh Lal
v. Sahodar Prasad Mahto
& Ors., AIR
2010 SC 3515;
and Central
Electricity Supply Utility of Odisha v.
Dhobei Sahoo & Ors., (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
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.
17.
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 “backdoor
appointments or appointment
de hors the rules”.
In State of U.P. & Ors. v. U.P. State
Law Officers Association &
Ors., AIR 1994 SC 1654, this Court while
dealing with the
back-door
entries in public appointment observed as
under:
“The method of appointment is indeed
not calculated to
ensure
that the meritorious alone will
always be appointed or that the
appointments made will not be on the
considerations other than
merit. In the absence of guidelines, the
appointment may be
made purely on
personal or political
consideration and be
arbitrary. This being so those who come to be appointed
by such
arbitrary procedure can hardly
complain if the termination
of
their appointment is equally
arbitrary. Those who come by the
back-door have to go by the same
door….From the inception some
engagements and contracts may be the
product of the operation of
the spoils system. There need
be no legal
anxiety to save
them.” (Emphasis
added)
18.
In Som Raj & Ors. v. State of Haryana & Ors., AIR 1990 SC 1176,
this Court held as under:
“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.”
19.
In making the appointments or
regulating the other
service
conditions of
the staff of
the High Court,
the Chief Justice
exercises an administrative power
with constitutional backing.
This
power has been entrusted to the safe
custody of the Chief Justice in
order to ensure the independence of the
Judiciary, which is one of the
vital organs of a Government and whose
authority is to be maintained.
The discretion exercised by the
Chief Justice cannot
be open to
challenge, except on well known grounds,
that is
to say, when
the
exercise of discretion is discriminatory
or mala fide, or the like(s).
20.
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 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.
21.
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 it
differently had the matter
been brought before
it in the first
instance or in that perspective.
22.
Article 235 of the Constitution provides for power of the
High
Court to exercise complete administrative
control over the Subordinate
Courts.
This control, undoubtedly,
extends to all
functionaries
attached to the Subordinate Courts
including the ministerial staff and
servants in the establishment of
the Subordinate Courts.
If the
administrative control cannot be
exercised over the administrative and
ministerial staff, i.e. if the
High Court would be
denuded of its
powers of control over the
other administrative functionaries
and
ministerial staff of the District Court
and Subordinate Courts other
than Judicial Officers, then the purpose
of superintendence provided
therein would stand frustrated and
such an
interpretation would be
wholly destructive to the harmonious,
efficient and effective working
of the Subordinate Courts. The
Courts are institutions
or organism
where all the limbs complete the whole
system of Courts and when the
Constitutional provision is of such wide
amplitude to cover both the
Courts and persons belonging to the
Judicial Office, there would be no
reason
to exclude the
other limbs of
the Courts, namely,
administrative functionaries and
ministerial staff of
its
establishment from the scope of control.
Such control is exclusive in
nature, comprehensive in extent and
effective in operation. (Vide: The
State of West Bengal & Anr. v. Nripendra Nath Bagchi,
AIR 1966 SC
447; Shri Baradakanta Mishra v. Registrar
of Orissa High
Court &
Anr., AIR 1974 SC 710; Yoginath D. Bagde v. State of Maharashtra &
Anr., AIR 1999 SCC 3734; Subedar Singh
& Ors. v.
District Judge,
Mirzapur & Anr., AIR 2001 SC
201; High Court
of Judicature for
Rajasthan v. P.P. Singh & Anr.,
AIR 2003 SC
1029; and Registrar
General, High Court of Judicature at Madras v. R. Perachi &
Ors., AIR
2012 SC 232).
23.
In M. Gurumoorthy v. The Accountant General, Assam
and Nagaland
& Ors., AIR 1971 SC 1850, the
Constitution Bench of this Court held:
“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……Thus, Article 229 has a
distinct and different scheme
and contemplates full freedom to the
Chief Justice in the matter
of appointments of officers and
servants of the High Court and
their conditions of service.”
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 the
High Court.
25.
In H.C. Puttaswamy &
Ors. v. The
Hon’ble Chief Justice
of
Karnataka High Court, Bangalore &
Ors., AIR 1991 SC 295, while dealing
with a similar situation and interpreting
the provisions of
Article
229 (2)
of the Constitution
and Karnataka State
Civil Services
(Recruitment to Ministerial Posts) Rules,
1966, this Court held
the
appointments made by the Chief Justice
of the High
Court without
advertising the vacancies as invalid
being violative of Articles
14
and 16(1) of the Constitution. The Court came to the said conclusion
as
the appointments were
made without following
the procedure
prescribed in the Rules. The Court
further observed:
“While the administration of the
Courts has perhaps, never been
without its critics, the method of
recruitment followed by the
Chief Justice appears to be without
parallel…..……The methodology
adopted by the Chief Justice was
manifestly wrong and
it was
doubtless deviation from the course
of law which the High Court
has to protect and preserve.
The judiciary is the custodian
of constitutional principles
which are essential to the
maintenance of rule of law. It is the
vehicle for the protection of a set
of values which are integral
part of our social and political
philosophy. Judges are the most
visible actors in the administration of
justice. Their case
decisions are
the most publicly
visible outcome. But
the
administration of justice is just
not deciding disputed cases.
It involves great deal more than
that. Any realistic analysis of
the administration of justice in
the Courts must
also take
account of the totality
of the judges
behaviour and their
administrative roles. They may
appear to be only minor aspects
of the administration of justice,
but collectively they are not
trivial. They constitute in our
opinion, a substantial part of
the mosaic which represents the ordinary
man’s perception of
what the Courts are and how the
Judges go about their work. The
Chief Justice is the prime force in
the High Court. Article 229
of the Constitution provides that
appointment of officers
and
servants of the High Court shall be
made by the Chief Justice or
such other Judge or officer of the
Court as may be directed by
the Chief Justice. The object of
this Article was to secure the
independence of the High Court which
cannot be regarded as fully
secured unless the authority to
appoint supporting staff
with
complete control over them is vested
in the Chief Justice. There
can be no disagreement on
this matter. There is imperative need
for total and absolute
administrative independence of the High
Court. But the Chief Justice or any
other Administrative Judge
is not an absolute ruler. Nor 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 standards
of ethical and
intellectual rectitude. The public
expectations do not seem to
be less exacting.” (Emphasis added)
(See also: State of Assam v.
Bhubhan Chandra Datta & Anr., AIR 1975 SC
889).
26.
In Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto
& Ors., AIR
2005
SC 2103, this
Court did not
accept the contention
that
appointment could be made to Class-IV
post in Subordinate Courts under
the Civil Court Rules without
advertisement in the newspapers inviting
applications for the posts as that would
lead to lack of transparency
and
violation of the provisions of Article 16 of the Constitution. The
Court terminated the services of such
appointees who had worked even
for 15 years observing that the Court
otherwise “would be guilty
of
condoning a gross irregularity in their
initial appointment.”
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 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.
28.
In State of West Bengal
& Ors. v. Debasish Mukherjee & Ors., AIR
2011 SC 3667, this Court again dealt with
the provisions of
Article
229 of the Constitution and held that the Chief Justice cannot grant
any relief to the employee of the High
Court in an
irrational or
arbitrary manner unless the Rules provide
for such exceptional relief.
The order of the Chief Justice must make
reference to the existence of
such exceptional circumstances and the
order must make it
so clear
that there had been an
application of mind
to those exceptional
circumstances and
such orders passed
by the Chief
Justice are
justiciable. While deciding the matter,
the court placed reliance on
its earlier judgment of the Constitution
Bench in State of U.P.& Ors.
v. C.L. Agrawal & Anr., AIR 1997 SC
2431.
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
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 fall
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
appointment subsequently has to be
avoided and a fair procedure must
be adopted giving equal opportunity to
everyone.
32.
It has been rightly said:
“Perfection consists not in doing
extraordinary things, but in
doing ordinary things extraordinary
well.”
33.
We had the advantage of the response given by the
High Courts
and the State. Some of the
States like Jharkhand,
Kerala, Madhya
Pradesh, Orissa, Sikkim
and Uttrakhand have
pointed out in
their
respective affidavits that the
recruitment of most of the posts are
made
by centralised selection
and some of
those posts are
transferable. Some States like Jharkhand have pointed out
that there
is a centralised recruitment of all the
posts but division wise
and
are transferable within the
division. Some of the States like Punjab
& Haryana and Uttar Pradesh have
pointed out that they have
already
drafted the rules providing for
centralised recruitment. The State of
Himachal Pradesh and the High Court thereof
have shown inclination
towards the centralised recruitment. In the State of Madhya Pradesh,
though rules do not provide for
centralised recruitment but it is so
done under the administrative order of the Chief Justice of
the High
Court.
Other States and the High Courts have
also made suggestions
that
it is the
need of the
hour to provide
for centralised
recruitment.
34.
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 and 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 & 16 of the
Constitution before making any
recruitment.
35.
In view of the above, the appeal stands
disposed of with
the
following directions:
i) All High Courts are requested to
re-examine 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 rule is not
in conformity and consonance with
the provisions of Articles 14
and 16 of the Constitution, the same
may be modified.
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) 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 inexecutable
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 candidates should be
screened/tested while adhering to
the reservation policy adopted
by the State, etc., if any.
iv) Each High Court may examine and
decide within six months
from
today as
to whether it
is 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.
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.
36.
Before parting with the case, we record our deep appreciation to
Shri P.S. Narasimha, learned
senior counsel for rendering invaluable
assistance to the court as Amicus Curiae.
Copy of the judgment be sent to the
Registrar General/Registrar
(Administration) of all the High Courts
by this Registry directly and
the said officer is requested to place
the same
before the Hon’ble
Chief Justice for information and
appropriate action.
…………......................J.
(Dr. B.S. CHAUHAN)
……….........................J.
(J. CHELAMESWAR)
……….........................J.
(M.Y. EQBAL)
New
Delhi;
February 12, 2014.
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