Service matter - appointment on daily basis - to avoid 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. - Apex court issued some guidelines to all High courts =
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.
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.
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.
2014 judis.nic.in/supremecourt/filename=41221
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
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.
-----------------------
29
menace of back-door entries of employees who subsequently are ordered to be regularised. - Apex court issued some guidelines to all High courts =
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.
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.
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.
2014 judis.nic.in/supremecourt/filename=41221
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
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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