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.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.
Dr. B. S. CHAUHAN, J.
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
Page 1
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
15.
open advertisement as to enable all eligible persons to
compete on merit.”
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
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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.
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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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