Satish Chandra Bajpai vs The Hon'Ble A.C.J. High Court Of ...
2015 Latest Caselaw 5550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved 
 
Court No.24 
 

 

 

 
Writ Petition No. 2585 (S/S) of 1990
 

 
Satish Chandra Bajpai                                        ......... Petitioner 
 

 
Versus 
 
Hon'ble the Acting Chief Justice and others           ....Respondents
 

 
                                                    
 
**** 
 

 
Hon'ble ( Dr) Devendra Kumar Arora, J. 

Heard Sri R.C. Saxena, learned Counsel for the petitioner and Sri Gaurav Mehrotra, Advocate appearing for the High Court.

Petitioner has filed instant writ petition inter-alia seeking for a writ of certiorari for quashing the order dated 24.7.1989 and to direct the respondents to immediately put the petitioner back on job and pay him full salary including the arrears w.e.f. 16.7.1987.

According to the Counsel for the petitioner, vide an order dated July 15, 1987 issued by the Registrar, High Court of Judicature at Allahabad under the orders dated 14.7.1987 of the Hon'ble the Chief Justice, the petitioner was appointed as officiating Routing Grade Assistant on the establishment of the Hon'ble Court at Lucknow in the pay scale of Rs. 354-550. Thereafter, petitioner completed all the formalities in terms of the order dated 15.7.1987 and gave joining to the learned Additional Registrar, Lucknow Bench but he did not allow joining by saying that joining on the post has been stayed till further orders.

It has been submitted by the petitioner's Counsel that as soon as the petitioner resumed his duties on 16.7.1987 within the stipulated and normal time in terms of the order dated 15.7.1987, he became a Government Servant and his service is to be regulated in accordance with law and not on the whimsical order passed by any authority. Further, on 16.7.1987 when the petitioner resumed his duties till today no order of termination has been passed by any competent authority and even it has not been served upon the petitioner meaning thereby that since 16.7.1987, the petitioner is continuing and holding his post of Routine Grade Clerk.

It appears from the record that when the petitioner was not allowed to join for quite some time, he preferred a representation dated 29.10.1987 and 2.11.1987 requesting therein to allow the petitioner to resume his duties in pursuance of the aforesaid letter of appointment. As no action was taken by the concerned authorities, the petitioner preferred a writ petition No. 7739 of 1987 which was decided on 1.8.1988. Aggrieved by the said judgment, he preferred a Special Leave Petition (Civil) No. 13761 of 1988 before the Hon'ble Supreme Court. The said Special Leave Petition was dismissed as withdrawn vide order dated 16th December, 1988. After withdrawal of the SLP, the petitioner made a representation dated 17.3.1989 to the Hon'ble the Chief Justice of the Allahabad High Court. The said representation dated 17.3.1989 of the petitioner was considered and rejected vide order dated 24.7.1989, which is impugned in this writ petition.

It has been contended by the learned Counsel for the petitioner that instead of deciding representations of the petitioner which were pending, the court has only referred the various contentions raised therein but has tactfully avoided to meet the contentions raised by the petitioner and has jumped over to decide the legality, validity and correctness of the order dated 14.7.2987 and 16.7.1987 passed by the then Chief Justice . Further, the Hon'ble the Acting Chief Justice was not competent to review and recall the order of his predecessor i.e. the Hon'ble the Chief Justice. Therefore, his order is against the public policy and administrative discipline.

Learned Counsel for the petitioner, on the strength of the decision rendered in 1991 SCC (Suppl.) 330 and1984 LCD Page 243; Govind Saran Dwivedi vs. Union of India, averred that the appointment order cannot be cancelled and if there was some defect or irregularity found in the appointment order in that event, it was mandatory to give show cause notice to the petitioner before passing or cancelling the appointment order in question. It has next been contended by the learned Counsel that the impugned order amounts to removal from service as envisaged under Article 311 of the Constitution of India. Therefore, it was incumbent upon the authorities to proceed and deal with the petitioner in accordance with the law by giving pre-decisional opportunity to put his case before the competent authority concerned.

As regard the competence of the Acting Chief Justice relying upon the decisions rendered in High Court of Judicature for Rajasthan vs. Ramesh Chandra Paliwal and another; AIR 1998 SC 1079, Ashok Tanwar and another vs. State of H.P. & others (2005) 2 SCC 1994 Chief Justice of A.P. and another vs. L.V.A. Dishitulu and others, AIR 1979 SC 193, learned Counsel for the petitioner vehemently argued that the power to appoint/power to cancel the appointment of the petitioner or any other candidate rest only with the Chief Justice and is not the same as the Acting Chief Justice can only discharge the duties of the Chief Justice when his office is vacant. Just as the Chief Justice of India is the supreme authority in the matter of Supreme Court Establishment including its office staff and officers, so also the Chief Justice of the High Court is the sole authority in these matters and no other Judge or Officer can legally usurp those administrative functions or powers. Further, it is a rule of prudence that the Acting Chief Justice may not take major decisions which otherwise could have been taken by the Chief Justice or which decisions could wait for a Chief Justice. Adding further, he submitted that in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc including the power to prescribe their conditions of service, is preserved with the Chief Justice and no extraneous executive authority can interfere with the exercise of that power by the chief Justice or his nominee except to a very limited extent indicated in the provisions. In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure the independence of the High Court. Therefore, the Acting Chief Justice is not competent to alter/modify or rescind the order passed by the Hon'ble the Chief Justice.

Learned Counsel for the petitioner next contended that the rejection of the representation without assigning any reason as to how the appointment was in violation of the Article 14 and 16 of the Constitution, is per se arbitrary, unfair and shows total non application of mind. Relying upon Sant Lal Gupta and others vs. Modern Cooperative Groups Housing Society Ltd and others; 2010(28) LCD SC 1688 and Sharda vs. District Dy. Director and others; 2011(29) LCD 1676, learned Counsel for the petitioner next argued that vide order dated 24.7.1989, the appointment has been cancelled without assigning any reason which is wholly unjustified. According to him, recording of reasons is one of the requirements of principles of natural justice even in administrative decisions. A pretense of reasons or 'rubber-stamp reason is not to be equated with a valid decision making process. Further, reasons in support of decision must be cogent, clear and succinct. Therefore, also the impugned order cannot be sustained.

The third contention of the learned Counsel for the petitioner,while attacking the impugned order, is that no opportunity of showing cause was afforded before passing the order canceling the appointment and as such it takes away the sole source of livelihood of the petitioner which cannot be taken away without following the procedure established by law guaranteed under Article 21 of the Constitution. In support of the above contention reliance has been placed upon Sharwan Kumar Jha vs. State of Bihar; AIR 1991 SC 309, Smt. Maneka Gandhi vs. Union of India and another; AIR 1978 SC 597, D.K.Yadav vs. J.M.A Industries Ltd.; 1993 (3) SCC 259, Olga Tellis vs. Bombay Municipal Corporation; AIR 1986 SC 180.

Lastly, learned Counsel for the petitioner contended that action of the respondents in canceling the appointment of the petitioner is discriminatory as other persons like petitioners, who were appointed in exercise of powers conferred under Rule 45 of the 1976 Rules by various other Chief Justices have been allowed to continue and they are still in service. Therefore, the petitioner is also entitled to work and as the petitioner always shown his willingness willing to work and was also no where employed gainfully, is entitled for full salary in view of the decisions of the Apex Court in Union of India & others vs. K.V. Jankiraman; 1991(4) SCC 109, Rabindra Kumar Battick & another vs. State of Orissa and others; 1999 SCC ( L & S) 281 and Commissioner, Karnataka Housing Board Vs. C.Muddaiah; 2007(7) SCC 689.

In contrast,Sri Gaurav Mehrotra, learned Counsel appearing for the High Court pointed out that on 14.7.1987, the then Hon'ble the Chief Justice passed the order for appointment of 21 Routine Grade Assistants on establishment of the Court. On 16.7.1987, the then Acting Chief Justice directed that the appointments made on 14th and 15th July, 1987 shall not be implemented nor are they be given charge until further orders. Thereupon some of the candidates including the petitioner went up in writ petitions [leading writ petition no. 7739 of 1987] before the Hon'ble High Court. All the said writ petition were dismissed on 1.8.1998 by the Bench though by separate judgment. Later on, the petitioner knocked the door of Hon'ble Apex Court under Article 136 of the Constitution but, admittedly, the Special Leave Petition was withdrawn by the petitioner. Thereafter, petitioner made a representation before the respondent on 17.3.1989 relying upon Rule 45 of the Allahabad High Court Officers and Staff (Condition of Service and Conduct) Rules 1976 [ in short referred to as the Service Rules of 1976].

Clarifying the position, learned Counsel for the respondent submitted that despite the fact that the petitioner as well as other 20 candidates do not have any legal right for appointment on the establishment of the Court in view of the result of his writ petition no. 7739 of 1987 but his representation dated 17.3.1989 was considered and rejected by the competent authority on 24.7.1989.In view of the above facts and in view of the judgment dated 1.8.1988 rendered in writ petition no. 7739 of 1987, the petitioner deserves no relief. Further, it has clearly been mentioned in the said order dated 24.7.1989 on which reliance have been placed, that claim of the petitioner cannot over-ride Article 14 and 16 of the Constitution.

Refuting the allegations of the petitioner with regard to incompetence of the Acting Chief Justice, learned Counsel for the respondents submitted that from Article 223 of the Constitution of India and decision of the Apex Court reported in (2005) 2 SCC 104 In Re: Ashok Tanwar Vs. State of Himachal Pradesh and others; when the Article 223 of the Constitution of India in specific terms confers powers upon the Acting Chief Justice of India to discharge the functions of the office of the Chief Justice without any limitation or rider, it cannot be accepted that Acting Chief Justice cannot perform duties expected to be performed by the Chief Justice.

In so far as the judgment reported in AIR 1967 Alld 506 In Re: Bishal Chandra Jain Vs. Chatur Sen and others is concerned, the aforesaid judgment has been considered by the Constitutional Bench in the matter Ashok Tanwar (Supra), Paragraphs No.24 and 25, which has been distinguished and clarified. The other judgment relied upon by the Petitioner reported in AIR 1979 SC 193 In Re: Chief Justice of Andhra Pradesh & Another Vs. L.V. A Dikshitulu & others is also of no avail, as the same is on a different subject altogether that no extraneous executive authority can interfere with the exercise of the power of the Hon'ble Chief Justice or his nominee. The instant matter is not at all the case of any interference by any executive authority.

It has been contended by the Counsel for the respondents that the order of appointment having been issued by the Registrar of the Court under the order of the Hon'ble the Chief Justice can very well be subjected to impugned order dated 24.07.1989. Clarifying the position, he submitted that any appointment made in violation of mandates of Article 14 and 16 of the Constitution of India is not only irregular, but also illegal and cannot be sustained. A Constitution Bench of Hon'ble Supreme Court in the matter reported in (2006) 4 SCC 1 In Re: Secretary, State of Karnataka and others Vs. Umadevi (3) and others, has been pleased to hold the appointment made in violation of constitutional scheme as a nullity. He further submitted that the decision of Hon'ble Constitution Bench will be squarely applicable although the cause of action of filing the instant Writ Petition arose in the year 1989, as judicial decision unless otherwise specified are retrospective in nature as held by the Hon'ble Supreme Court in (2009) 7 SCC 205 In Re: General Manager Uttranchal Jal Sansthan Vs. Laxmi Devi.

Thus it is crystal clear that powers under Article 229(2) of the Constitution of India cannot be exercised by the Hon'ble Chief Justice in an unfettered and arbitrary manner. Appointment should be made giving adherence to the provisions of the Article 14 and 16 of the Constitution of India. Similar view has been reiterated by a five Judges Bench in PIL No.54860/2009 In Re: Regularization of Class IV Employees of the High Court by Hon'ble 5 Judges Bench.

As regard the assertion of the petitioner that no reason has been indicated in the impugned order dated 24.07.1989,learned Counsel for the High Court, Sri Mehrotra says that the said assertion of the petitioner is absolutely misleading and misplaced, besides being incorrect. A bare perusal of the impugned order dated 24.07.1989, copy whereof is available at the Page No.71, to the Writ Petition, it is evident that the impugned order assigns reasons explicitly which inter-alia, are I) Rule 45 of the 1976, Rules, cannot over rider Articles 14 and 16 of the Constitution of India; II) such an interpretation should be placed on Rule 45 of the 1976, Rules, which does not violate the provisions of the Constitution of India; III) Articles 14 and 16 of the Constitution of India confer right of equality of opportunity in matter relating to employment or appointment to any office under the State.

In the instant matter the petitioner has failed to establish his legal right hence the court may not insist on adherence to principle of Audi Alteram Partem i.e. on compliance of useless empty formality as same would be futile exercise. In support of the said contention, reliance has been placed upon Ashok Kumar Sonkar In Re: (2007) 4 SCC 54 (Relevant Paragraphs No.26-32);Canara Bank Vs. V.K. Awasthi In Re: (2005) 6 SCC 321 (Relevant Paragraphs No.7, 8 to 10);Vivekanand Sethi Vs. Chairman, J.K. Bank Ltd. and others In Re: (2005) 5 SCC 337; (Relevant Paragraph No.22);Karnataka State Road Transport Corporation & Ors. Vs. S.G. Kotturappa & Another In Re: (2005) 3 SCC 409; (Relevant Paragraph No.24); & Mohd. Sartaj and another Vs. State of U.P. & Others In Re: (2006) 2 SCC 615.

While replying to the plea of violation of Article 14 and 16 of the Constitution, learned Counsel for the High Court submitted that the doctrine of discrimination is founded upon existence of an enforceable right. A wrong order cannot be allowed to perpetuate and it does not give any right to claim parity or equality. Two wrongs can never make a right; Reference can be had to para 3 of the judgment of the Hon'ble Supreme Court of India reported in (1997) 3 SCC 321 In Re: State of Haryana Vs. Ram Kumar Mann.

Lastly, while concluding his arguments, Sri Gaurav Mehrotra, appearing for the High Court submitted that since the appointment of the Petitioner was nullity and no legally enforceable right accrued to the Petitioner. The joining of the Petitioner although submitted was never accepted resultantly, the Petitioner did not perform any duty at all. The judgments relied upon by the Petitioner in support of this issue are not at all applicable on the facts of the instant matter, as in none of the aforesaid cases, issue was in respect of appointments made without following the due procedure established by law. The petitioner is not entitled for any relief as sought for by him and the writ petition is liable to be dismissed with exemplary costs.

First of all, I would like to mention that Article 217 of the Constitution of India deals with the appointment and conditons of the office of a Judge of a High Court and Article 223 deals with the appoitment of Acting Chief Justice, which reads as under:-

"Appointment of Acting Chief Justice:- When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judge of the Court as the President may appoint for the purpose."

From the perusal of the aforesaid Article, it comes out that there is no embargo upon the Acting Chief Justice and he could perform all the functions of the Chief Justice by virtue of Article 223 of the Constitution. No restriction or limitation in performance of duties by the Acting Chief Justice can be read into the said article. The Article does not indicate as to which of the duties of the Chief Justice can be performed of which of the duties cannot be performed by the Acting Chief Justice. My above view is countenanced by the decision of the Apex Court in the case of Ashok Tanwar's case [supra] wherein it has been observed that in some cases if appointment of Chief Justice of a High Court takes a longer time and the Acting Chief Justice cannot discharge the duties of the office of the Chief Justice, the work of the High Court or the State judiciary will result in anomalous position.

As much emphasis has been laid on Article 14 and 16 of the Constitution by the learned Counsel for the petitioner while attacking the impugned order, first of all, it would be apt to refer to Article 16 (1) of the Constitution, which provides for "equal opportunity for all citizens in matters relating to employment or appointment to any office under the State." Therefore, every appointment has to be made only after adhering to the process of advertisement and selection. Issuance of advertisement for appointment is a pre- condition as held by the Apex Court and the High Court in umpteen cases. [See: National Fertilizers Ltd. Vs. Somveer Singh; 2006(5) SCC 493, State of Bihar vs. Chandrewshwar Pathak; 2014(4) ESC 614 and Dr. Mahendra Shanker Singh Vs. Chancellor; 2014(2)UPLBEC 1593. Therefore, any appointment in government services, which is made without following advertisement and due process of selection, be it a regular appointment or an ad hoc appointment or whatever term can it be given, would be in violation of the provisions of Article 14 and 16 of the Constitution.

The law is well settled that Article 14 provides for positive equality and not negative equality and is not meant to perpetuate an illegality. The Court cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship; any action/order contrary to law does not confer any right upon any person for similar treatment and; and an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order.

The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly, judgment passed on wrong premise in favour of one individual does not entitle other to claim similar benefits.

To say that the Hon'ble Chief Justice can appoint a person without following the procedure provided under Article 14 and 16 of the Constitution of India, would lead to an indefinite conclusion that the Hon'ble Chief Justice can remove him without due process. Powers under Article 229(2) of the Constitution of India cannot be exercised by the Hon'ble the Chief Justice in an unfettered and arbitrary manner. To put it differently, appointment should be made giving adherence to provisions of the Article 14 and 16 of the Constitution.

A five Judges Bench of this Court, while considering the issue of regularization of Class IV employees in PIL No. 54860/2009 In Re;Regularization of Class IV employees of the High Court, also examined the issue with regard to the powers of the Hon'ble Chief Justice for making appointments under Rule 41 and 45 of the Rules of 1976 and disapproved the ratio laid down by the Division Bench in Devendra Kumar Pandey's case and observations in High Court of Judicature vs. Diwakar Singh; 2010 (9) ADJ 292 . The Full Bench held as under:

"Howsoever high a dignity may be, once the power conferred is governed by the Constitution, the laws made thereunder and the rules framed, then the authority is bound to act within the rules and not ascribe to himself an authority to act beyond it or else the exercise of power will be a camouflage to act arbitrarily in the solemn name of discretion."

Recently, a Division Bench of this Court while examining residuary powers as provided under Rule 41 read with Rule 45 vis-a vis the mandate of Article 14 read with Article 16 of the Constitution in Special Appeal No. 410 of 2015; Ajay Kumar Mishra vs. Hon'ble High Court of Judicature and others, opined as under:-

As is already noted above that not only the law makers but all the authorities deriving jurisdiction under law are bound to act by obeying to the mandate of Article 14 read with Article 16 of the Constitution of India, therefore, the appointing authority while exercising the powers under Article 229 of the Constitution of India or under the statutory rules framed thereunder is bound by the mandate of Constitution of India otherwise bye virtue of Article 13 (2), the consequences would be void.

Moreover, the appointing authority under Article 229 of the Constitution of India does appear to have some plenary residuary powers as provided under Rule 41 read with Rule 45 but all laws being subject to the mandate of Article 14 read with Article 16 of the Constitution, therefore, the exclusive power is neither absolute nor above the mandate of Part-III of the Constitution. The difficulty in the present case does not arise due to some anomaly in the interpretation of law but is rather attributable to the practice which ultimately stood sanctified under the Division Bench judgement dated 20.9.2011. The co-ordinate Bench having rendered the judgement in the light of Supreme Court judgement reported in AIR 1971 SC 1050, has laid down a far reaching proposition and even beyond the reach of Supreme Court judgement which decides a controversy on the determination of conditions of service. Going into the deeper analysis of Division Bench judgement leads us to a dead end and it is gainless to embark on those issues which would unduly enlarge the scope of present litigation. Confining to the dispute at hand, we are of the considered opinion that the appointment orders issued in any of the forms reproduced above do not have trappings of a regular selection, as conceived under Rule 8 (a) (ii) and (iii). The regular appointment is bound to precede by the prescribed mode of recruitment and the Chief Justice having himself framed the statutory rules is bound by the same and the discretion exercisable on the strength of exclusive residuary powers cannot be held to be permissible so as to do away with the conditions of recruitment.

The exclusive residuary powers, however, can be invoked to take stock of the emergent situations but any such action has not to be a permanent feature contrary to the mandate of law. The exercise of exclusive powers would create rights of temporary nature and life of any such rights is restricted within the outer limit of recruitment year beyond which it may continue under exceptional circumstances but would be defined as incapable of creating a perennial right of regular employment."

At this juncture, it is imperative to refer the Apex Court's judgment rendered in Renu vs. District and Sessions Judge, Tis- Hazari; AIR 2014 SC 2175. In this case the Apex 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. The Apex Court while observing that 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, held in paragraph 27 as under:-

"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."

The Apex Court further held in paragraph 29 as under:-

"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."

From the aforesaid legal proposition, it clearly emanates that in any way the Chief Justice cannot exercise such powers in contravention of the provisions of Article 14 and 16 of the Constitution while making appointments in the establishment of the High Court. Adherence to the rule of equality in public employment is a basic feature of our constitution and the Court cannot be compelled to pass an order upholding a violation of Article 14 and 16 of the Constitution of India. In these circumstances, assertions of the petitioners are wholly erroneous and unacceptable.

The argument regarding alleged violation of Article 21 of the Constitution of India, has appropriately been dealt with by the Constitutional Bench judgment of the Hon'ble Supreme Court of India in the matter of the Uma Devi (Supra) in paragraphs No.50 and 51. It has been held in explicit words that in such cases as the case in hand, Article 21 of the Constitution of India cannot be set to be violated hence, the judgment reported in AIR 1978 SC 597 In Re: Smt. Maneka Gandhi Vs. Union of India, (1993) 3 SCC 259 In Re: D.K. Yadav Vs. JMA Industries, AIR 1986 SC 180 In Re: Olga Telis Vs. Bombay Municipal Corporation are not at all applicable on the facts of the instant matter as has been summed up in Paragraph No.50 in the matter of Uma Devi (Supra) :-

"In the guise of upholding rights under the Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by the Article 21 of the Constitution of India, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of the Article 21 of the Constitution."

At this juncture, it would be apt to refer Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976 which were made by the Hon'ble the Chief Justice in exercise of the powers conferred by clause (2) of Article 229 of the Constitution of India with respect to the conditions of service of persons serving on the staff attached to the High Court of Judicature at Allahabad. Rule 2 is the definition clause and Rule 2(b) defines Registrar and it means the Registrar of the Allahabad High Court. Rule 2(n) defines 'Appointing Authority' and it means the Chief Justice of the court or such other Judge or Officer as he may direct.

Rule 8 deals with the recruitment through competitive examination conducted by the appointing authority or in any manner directed by the Chief Justice. Rule 10 is with regard to preparation of select list and its duration. Rule 30 provides for appointment both permanent and temporary from the list. Rule 45 is the residuary power of the Chief Justice. Rule 45 provides reads as under:-

"Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders, as he may be consider fit, in respect of recruitment promotion, confirmation or any other matter."

As indicated above, Rule 45 gives residuary power to the Chief Justice to issue orders relating to recruitment. It is, therefore, referable to Rule 8 only. Recruitment and appointment are not synonymous. The former connotes and clearly signifies enlistment, acceptance and selection or approval for appointment unless rules indicate otherwise. Further, in the scheme of staff rules, recruitment and appointment are dealt separately as would be evident from Rule 8, 10 and 30 of the Rules. Therefore, under Rule 45, the Chief Justice is empowered to issue orders relating to recruitment only.

In my considered opinion when in August, 1986 the Chief Justice having taken decision to hold competitive test, then in July, 1987 could not make appointment without first withdrawing or canceling Order of 1986. Further, the residuary power could be exercised, 'notwithstanding any rule' but it could not override the earlier order of the Chief Justice unless it was set-aside or recalled.

Apart from above, no permanent appointments can be made in respect of posts for which advertisement had been issued. As permanent appointment would amount to depriving of the applicants of their chance of being selected and will be against principles of fairness and equity. The exercise of exclusive powers create rights of temporary nature and life of any such rights is restricted within the outer limit of recruitment year beyond which it may continue under exceptional circumstances but would be defined as incapable of creating a perennial right of regular employment

In the instant case, there is no quarrel to the fact that the order of appointment in favour of the petitioner was issued without there being any advertisement and selection process. The records pertaining to the instant matter, which has been produced before the Court reveals that no procedure or selection was followed at the time of appointment of the Petitioner neither any advertisement, inviting applications from all eligible candidates was published nor competitive examination or interviews were conducted. There is no such averment in the writ petition that appointment of the Petitioner was made following due process.

On careful perusal of the writ petition and submission advanced by the Counsel for the petitioner, it seems that petitioner is primarily aggrieved by the order dated 24.7.1989 passed by the then Acting Chief Justice whereby the representations made by the petitioner and other persons, was rejected. It would be useful to reproduce the relevant extract of the order whereby the representation of the petitioner was rejected:

" Under Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976, on which reliance has been placed by the petitioners in support of their representations, cannot override Articles 14 and 16 of the Constitution. These Article confer right of equality of opportunity in matters relating to employment or appointment to any office under the State. Such an interpretation should be placed on Rule 45, which does not violate the provisions of The Constitution."

It may be noted that from the record pertaining to appointment of the petitioner and other candidates, which has been produced by the Counsel for the High Court, it transpires that even a three Judge Committee appointed to examine the propriety of the order made by the previous Chief Justice under Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976 t supported the view expressed by the Acting Chief Justice that the appointment orders should not be implemented. The committee after examining the record had also observed that on 12th August, 1976, the then Chief Justice had in exercise of power conferred by Clause (i) of Article 229 of the Constitution of India read with Rule 2(n) of the aforesaid Rules directed the Registrar, High Court at Allahabad to be appointing authority in respect of matters of appointments, promotions etc. to Class III and Class IV posts referred to in Rules 4 to 15. Therefore, Additional Registrar, Lucknow had nothing to do with appointments of Class II employees. Further, in view of 1976 delegation being specific the Additional Registrar Lucknow could not take any action or make recommendation directly to the Chief Justice.

It may be added that after scrutinizing material on record, in the light of Rule 8,10,30 and 45, the Committee also observed that in law where two alternative methods are provided, the authority concern may adopt one or the other. But both could not be resorted to simultaneously. In the case at hand, the Chief Justice had out of two methods of recruitment provided in Rule 8 adopted the former i.e. to held a competitive examination. Once this was done and applications were received pursuant to the advertisement and even the date of examination was fixed, then merely because the examination was stayed, the Chief Justice could not take recourse to other method, without canceling or withdrawing the first.

As indicated above, petitioner and other candidatures had earlier preferred writ petitions, namely, the writ petition no. 7739 of 1987 and connected writ petitions no. 8350/87, 2291/88, 1269/88 and 3082/88 on similar issue which were decided by judgment and order dated 1.8.1988. It would be useful to produce the relevant paragraph of the judgment dated 1.8.1988 passed in petitioner's writ petition no.7739 of 1987, which reads as under:-

"On a careful consideration of all the angles in this case, factual and legal. I am of the opinion that the petitioners have no legal right to force their appointment in consequence of the selection made under Orders dated 14th and 15th July, 1987 by the Chief Justice, that the said orders dated 14th and 15th July, 1987 are not valid, and that the Acting Chief Justice had proper reasons for refusing to implement these orders, and the appointments issued there under, by passing the impugned dated 16.7.1987."

From the records, it also transpires that against the aforesaid judgment dated 1.8.1988, the matter reached to the Hon'ble Supreme Court under Article 136 of the Constitution but, admittedly, the Special Leave Petition moved by the petitioner was withdrawn by him. Therefore, the aforesaid judgment dated 1.8.1988 has already attained finality.

In view of the legal position and discussions, made herein above, none of the grounds as urged by the petitioner is tenable in the eyes of law and there is no defect in the impugned order. The writ petition lacks merits and is liable to be dismissed.

Accordingly, the writ petition is dismissed. Costs easy.

Dated: 18th December, 2015

Ajit/HM