Allahabad High Court
Ajay Kumar Misra And Ors. ... vs Hon'Ble High Court Of Judicature ... on 14 October, 2015
Bench: Rakesh Tiwari, Attau Rahman Masoodi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
(1) Case :- SPECIAL APPEAL No. - 410 of 2015
Appellant :- Ajay Kumar Misra and Ors. 5512(S/S)2013
Respondent :- Hon'ble High Court Of Judicature At Allahabad Thru. R.G.& Ors
(2) Case :- SPECIAL APPEAL No. - 411 of 2015
Appellant :- Ratnank Mishra and Ors.
Respondent :- High Court Of Judicature At Allahabad Thru. Registrar General
(3) Case :- SPECIAL APPEAL No. - 412 of 2015
Appellant :- Sanjeev Kumar Sharma
Respondent :- Hon'ble High Court Of Judicature At Allahabad Thro. R.G.& Ors
For the Appellants : Sri Jaideep Narain Mathur, Senior Advocate
Sri Sandeep Dixit, Sri Vijay Dixit
Sri Y. S. Lohit
For the respondents : Sri Upendra Nath Misra
C.S.C.
Hon'ble Rakesh Tiwari, J.
Hon'ble Attau Rahman Masoodi, J.
These special appeals directed against the judgement passed by learned Single Judge in a bunch of writ petitions, essentially assail the rejection of representations filed by the appellants seeking confirmation/regularisation of their services on the post of Routine Grade Clerk (RGC) under Rule 32 read with Rule 33 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976 in the light of Division Bench judgement rendered in special appeal no. 563 of 2008 on 20.9.2011 pursuant to which, it is alleged, the appointment committee on 31.5.2012 worked out a discriminatory treatment between the appellants and similarly situated persons while disapproving their claims and thereby committed a serious violation of Article 14 of the Constitution of India.
The impugned order giving rise to the writ petitions was issued on 6.6.2012 whereby representations were informed to be rejected on the basis of the order passed by the Chief Justice on 1.6.2012 and by a subsequent communication the appellants were allowed age relaxation to participate in the regular selection.
Sri Jaideep Narain Mathur, learned Senior Advocate, assisted by Sri Rajnish Kumar, Sri Sandeep Dixit assisted by Sri Vijay Dixit, Sri Y.S. Lohit, learned counsel, while assailing the judgement passed by learned Single Judge have essentially raised the following questions of law:
(a) Whether the appellants who were appointed within the scope of powers vested in Chief Justice by virtue of Rule 41 read with Rule 45 have acquired a right of continuance in service as regular appointees in the same manner in which other employees belonging to the same cadre having been initially appointed in the same manner though under different terms of appointment and are entitled to be treated as regularly appointed persons as per rule 8(a)(i) and consequently entitled to the same protection as has been advanced to them by virtue of Division Bench judgement rendered on 20.9.2011;
(b) Whether Rule 8 (a) of the Service Rules and Rule 41 read with Rule 45 for the purposes of making appointments on the post of Routine Grade Clerk in their scope and application are pari materia,with the mode of regular appointment, if not, as to what is the true scope of relevant service rules in the matter of recruitment and appointment by the appointing authority.
(c) Whether the learned Single Judge has upheld the position of law correctly while dismissing the writ petitions filed by the appellants; and
(d) Whether the appellants constituted a distinct class of appointees and, therefore, their services could be brought to an end in terms of the order of their appointments restricting their entitlement for regularisation in service to age relaxation alone.
The courts of law including the High Courts are looked at by the public as temples of justice, therefore, the establishment, as a model, is under a bounden duty to uphold the majesty of law not only for the purposes of imparting justice in the decision making process; but in the disputes related to its own employees as regards recruitment and determining the conditions of service, the duty is equally onerous. Recruitment, appointment and regularisation are distinct concepts in service jurisprudence, which have emerged with the passage of time. It is no more res integra that appointments in public services are bound to be made strictly in accordance with the spirit and mandate of Article 14 read with Article 16 of the Constitution of India, which clearly postulate equal opportunity and equal treatment in order to carry out the object of equality before law. The matters of recruitment and appointment are regulated under the provisions of the Constitution of India as well as the relevant service rules framed in this behalf. For the purposes of controversy at hand, Article 229 of the Constitution of India would be relevant and the same is reproduced below:
"229. Officers and servants and the expenses of High Courts.-- (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
In the spirit of Article 229 (2), rules have also been framed by the Chief Justice of Allahabad High Court which are known as Allahabad High Court Officers & Staff (Conditions of Service & Conduct) Rules, 1976. The mandate of Article 14 read with Article 16 of the Constitution so far as appointment on Class III posts is concerned, is said to be regulated in terms of Rule 8, 9 and 10 of the above rules, which are reproduced as under:
"8. Sources of recruitment to class III post-- The sources or recruitment to the various class III posts in the establishment shall be as follows.
General Office
(a) (i) Routine Grade
Clerks
(ii) Telephone Operators
and Telex Operators
(b) Assistant Review Officer
(Sahayak Samiksha Adhikari)
(c) Review Officer
(Samiksha Adhikari)
(i) By direct recruitment through competitive examination conducted by the appointing authority or in any manner so directed by Chief Justice.
(ii) By promotion from class IV employees.
(iii) By selection from amongst the persons who apply for such appointments.
(i) 50 per cent by direct recruitment through competitive examination or selections.
(ii)50 per cent by promotion from amongst permanent Routine Grade Clerks, permanent Telephone Operators and permanent Telex Operators:
(a) Provided that nothing in this rule shall be construed as affecting the promotion of Routine Grade Assistants and Typists appointed before the coming into force of this rule.
(b) Provided further that all available vacancies may, in the discretion of the Chief Justice, be filled from any of the above sources.
(c) Provided further that promotion of permanent Telephone Operators/ Permanent Telex Operators shall be subject to the conditions laid down under Rule 13 (A).
(i) By promotion from amongst permanent Assistant Review Officer (Sahayak Samiksha Adhikari), in accordance with the Rules.
(ii) By direct recruitment through competitive examination.
Note.-- In case of recruitment by both the above methods the number of vacancies to be filled in by each source be determined by the Chief Justice:
Provided that all available vacancies may, in the discretion of the Chief Justice, be filled from any of the above source.
Personal Assistant Department
(d) Personal Assistants
By direct recruitment through competitive examination or selection.
Bench Secretaries Department
(e) Bench Secretaries, Grade II.
By selection through competitive conducted by the Appointing Authority, open to the assistants having not less than 10 years continuous service in Class III posts.
Preference shall be given to candidates possessing a Law Degree.
9. Qualifications. -- Academic qualifications for direct recruitment to the various Class III posts in the establishment shall be as follows:
(i) Routine Grade Clerk
(i)(a) Telephone Operators
and Telex Operators
(ii)Assistant Review Officers
(Sahayak Samiksha Adhikari)
(iii)Review Officers
(Samiksha Adhikari)
(iv) Personal Assistants
(v) Chief Documentation
Officer-cum-Chief Librarian
(Class I)
Must have passed the Intermediate Examination of the Board of High School and Intermediate Education, U.P. or an examination declared by the Governor as equivalent thereto.
Must have passed the Intermediate Examination of the Board of High School and Intermediate Education U.P. or and examination declared by the Governor as equivalent thereto :
Provided that the minimum academic qualifications in respect of the candidates recruited before the enforcement of these rules shall be High School Certificate.
Must possess a Bachelor's degree of a University established by law in India or a qualification recognized as equivalent thereto.
Degree in law and diploma in Library Science from a recognized University :
Provided that in addition to the above qualifications, candidates for the following categories of posts must also possess the qualification mentioned below:
Provided further that with reference to Direct Recruitment on the post of Assistant Review Officer Diploma in Computer Science from a recognised institution/ University or 'O' Level Certificate awarded by DOEACC Society and the speed of 25 words per minute in English typing on computer will be the qualification for recruitment to the posts of Assistant Review Officer to be filled up by direct recruitment.
(a) Routine Grade Clerks
Must possess good knowledge of Hindi and English Type-writing:
Provided that nothing in this rule shall be construed as affecting or invalidating the appointments made or orders issued before the commencement and orders shall continue in force and shall be deemed to have been made or issued under the appropriate provisions of this rule.
(b) Personal Assistants
Must possess good knowledge of Hindi or English shorthand and typewriting with minimum speed of 40 words in English and 30 words in Hindi typewriting per minute and 100 words in English and 80 words in Hindi shorthand dictation per minute.
(c) Telephone Operators
Must possess sufficient experience of working as a Telephone Operator in some Government or Semi-Government undertaking.
(d) Telex operators
Diploma or certificate in Telex Operators from some recognized Institute of training. Must possess sufficient experience of working as Telex Operator in some Government or Semi- Government Undertaking.
"10. Method of selection for the posts of Routine Grade Clerks-- (1) The appointing authority shall ascertain the probable number of vacancies likely to occur in the post of Routine Grade Clerks during the course of the year of recruitment and determine the number of vacancies, if any, to be reserved for candidates belonging to the Scheduled Castes and others under Rule 23.
(2) The procedure and syllabus relating to the competitive examination shall be such as may be prescribed by the Appointing Authority from time to time.
(3) The candidates who qualify for interview in the written examination, according to the standard fixed by the Chief Justice, will be called for interview before the Selection Committee appointed by the Chief Justice.
(4) The total marks obtained by the candidates in the written examination and interview will determine their position and the merit list shall be prepared accordingly. If two or more candidates secure equal marks, the candidate securing higher marks in the written examination will be placed above. The select list shall hold good for three years or till the next selection is held whichever is earlier."
The recruitment year for the purposes of implementing the rules is defined as beginning from first day of July of a calender year. From the plain language and import of Rule 8 (a) referred to above, it is clear that the sources of recruitment on the post of Routine Grade Clerk are by direct recruitment and by promotion. For the present controversy, rules relating to direct recruitment are relevant and call for necessary interpretation. Rule 8 (a)(i) unequivocally makes it clear that direct recruitment against the post of Routine Grade Clerk is to be made by holding a competitive examination or in any manner as may be directed by the Chief Justice. The later part of the rule is conjunctive, meaning thereby that the Chief Justice though having an authority to determine the procedure of recruitment by any other process but such a process is bound to be fair, transparent and in consonance with Articles 14 and 16 of the Constitution of India.
Rule 8 (a) essentially contemplates a fair and equal opportunity of competition available to all irrespective of any distinction. The procedure evolved by the Chief Justice under Rule 8 (a) (i) by all means has to satisfy the tests envisaged under Article 14 read with Article 16 of the Constitution. These tests are all the more necessary for the reason that the conditions of recruitment as a process are not open to be relaxed under any circumstance whatsoever. The law makers and authorities vested with the statutory powers have always to bear in mind Article 13(2) of the Constitution of India which provides:
"13(2) - The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."
Having read Rule 8 (a) of the relevant service rules in the manner above, we proceed to deal with the dispute that has arisen in the present appeals and the background in which the whole issue has come to be dealt with by learned Single Judge.
It is nobody's case that recruitment process provided under Rule 8(a)(i) or (iii) read with Rule 10 was invoked on the basis of which selection was made and, therefore, the selection so held having trappings of regular selection be not read down in terms of the appointment letters issued to the appellants or alleged similarly situated persons. The process of regular selection undisputedly was not invoked in terms of Rule 8 (a)(i) or (iii) read with Rule 10 extracted above. The facts narrated in the writ petition bring out a cause of peculiar description and may be set out in brief as under:
The appellants allege to have been appointed on ad hoc basis by the appointing authority directly looking to their qualification as prescribed under the rules. There is no clear picture of any advertisement being made even on the notice board etc. but what is projected before us is that on coming to know about the availability of vacancies, appellants who had or were already working intermittently or continuously in different capacities applied for and were issued appointment order broadly of the following types:
Appointment Order - I
"Under the orders of Hon'ble the Chief Justice dated 26.10.2005 the following six candidates are hereby appointed as Hindi typist on ad hoc basis :
1. Sri Ajay Kumar Misra
2. Sri Rohit Kumar Singh
3. Sri Pawan Kumar Tewari
4. Sri Rafiq Ahmad Khan
5. Sri Ashutosh Shukla
6. Sri Affan Ahmad
The appointment of the above candidates shall be subject to the terms and conditions laid down vide order of Hon'ble the Chief Justice dated 27.5.2005, which envisaged as under:
"Let ad-hoc appointments be made; as necessity is apparently permanent; let the regular selection process also start, or go ahead with it if already started. Ad-hoc appointees to be given notice at the time of appointment that they may take part in regular selection process even during their ad-hoc tenure, but once regular entrants come in, they will be summarily terminated."
Sd/-
REGISTRAR GENERAL
27.10.05
Appointment Order - II
"Under the orders of Hon'ble the Chief Justice dated 27.11.2005 the following three candidates are hereby engaged as Hindi typists in the pay scale of Rs. 3050 - 4590 on ad hoc basis :
1. Sri Pravesh Kumar s/o Sri Dinesh Chand
2. Sri Ajeet Dixit s/o Sri S.K. Dixit
3. Sri Mahendra Misra s/o Sri C.S. Misra
The appointment of the above three candidates shall be subjected to the following terms and conditions :-
1. The appointment is on ad hoc basis and purely temporary and be terminated at any moment of time.
2. The ad hoc appointees be clearly told that their appointment shall be summarily terminated on the even new entrants come in.
3. They may be told that they shall have to take part in regular selection process even their ad hoc tenure."
Sd/-
REGISTRAR GENERAL
23.11.05
It is asserted that likewise appointment orders were issued to some other similarly situated employees and one such order is reproduced below:
Appointment Order - III
"With reference to his application for appointment on class-III posts in the establishment of this Court, Sri Sharad Kumar S/o Sri Haresh Chandra Srivastava, is hereby offered appointment as Routine Grade Clerk on ad hoc basis in the establishment of High Court at Allahabad in the pay scale of Rs.3050-75-3930-80-4590 per mensum plus usual allowances to the orders of the then Hon'ble Chief Justice with the condition that he is permitted to appear in the examination/test to be held for direct recruitment of Routine Grade Clerks and his appointment shall be regularised and confirmed only if he is selected in that examination/test. His appointment is purely temporary and is liable to be terminated as per rules. If he is willing to accept the offer, he should report for duty to the under signed within ten days here the date of receipt of this office memorandum, failing which he may forfeit his claim for appointment on the said post.
He should bring with him following papers:
1. Two character Certificates from the Member of Parliament of State Legislature or Gazetted Officer to the effect that he bears a good moral character and that he has never taken part in any act subversive of law and order.
2. A Medical Certificate from the Chief Medical Officer of his District to the effect that he is in good mental and bodily health and free from the physical defect likely to interfere with the efficient performance of his official duties.
All original certificates in support of qualification date of birth and caste etc.
Sd/-
(O.N.Khandelwal)
REGISTRAR GENERAL"
The authority for making appointments by the appointing authority of above description is demonstrated on the strength of residuary powers conferred on the Chief Justice by virtue of Rule 8 (a) (i) read with Rule 41 and 45.
Rule 8 (a) (i) is already extracted above and Rule 41 and 45 for ready reference are also extracted as under:
"41. Residuary powers--Nothing in these rules shall be deemed, to affect the power of the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters incidental or ancillary to these rules not specifically provided for herein or in regard to matters as have not been sufficiently provided for:
Provided that if any such order relates to salaries, allowances, leave or pension, the same shall be made with the approval of the Governor of U.P.
45. General rules- Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter."
The contention of learned counsel for the appellants in the light of statutory rules is that the Chief Justice being vested with the powers of appointments has a discretion to opt for any of the two methods of appointments i.e. through competitive test or at his discretion being head of a highly reputed constitutional establishment. The exercise of discretion in the present case is sought to be defended primarily on the strength of a Division Bench judgement rendered in Special Appeal No. 563 of 2008 on 20.9.2011. It is true that the appointments so made have not brought anything to the disrepute of the institution but the process of recruitment certainly did not go unnoticed by the young aspirants who are faced with the crisis of unemployment.
It is gathered from the record that appointments on ad hoc basis were made from time to time by overlooking the process of regular selection in accordance with rules. Some appointments made in the year 2004 and 2005 when the appellants were also appointed came to be challenged before the High Court at Allahabad in Writ Petition No. 45922 of 2004 which was ultimately decided in terms of the judgement dated 27.7.07, the operative part whereof reads as under:
"Following the observations of the Constitution Bench of the Apex Court, the Court expects that all appointments made by Hon'ble Chief Justice in exercise of his powers under Rule 41 and 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976, will be subject to the regular selection by direct recruitment in accordance with the Rule 8 of these Rules and that these appointees will not be confirmed and regularized.
The writ petition is disposed of with these observations."
Although the present appellants were not a party to the writ petition but relief in the writ petition as sought against was with respect to affected parties impleaded therein as respondents as well as with respect to similarly situated persons which according to the appellants is referable to them. The present appellants after the decision was rendered by learned Single Judge on 27.7.07, as mentioned above, did not choose to file any special appeal, however, the other affected parties being impleaded as respondents in the writ petition as well as the High Court feeling aggrieved against the judgement passed by learned Single Judge on 27.7.07, filed special appeals which was registered as Special Appeal No. 563 of 2008 and 1152 of 2007. Both the special appeals were heard together and were decided by a common judgement dated 20.9.2011. The appeals were allowed and operative part reads as under :
"Moreover, when the writ petitioner, who has neither filed any application challenging the subsequent advertisement nor amended his writ petition, lost his case before the Single Judge himself, who did not grant any relief, there was no occasion to the learned Single Judge to take suo motu cognizance regarding appointments of others by abridging or modifying the powers of the Hon'ble the Chief Justice as per the Rules, 1976 framed in exercise of the powers conferred under Article 229 of the Constitution of India, which is sovereign and plenary in nature. Therefore, the impugned order of the learned Single Judge is per se erroneous and/or perverse.
...........................................................................................................................Thus, in totality, both the appeals succeed and are allowed.
The direction given by the learned Single Judge in Paragraph-21 of the impugned judgement dated 27th July, 2007 following the observations of the Supreme Court judgement in Uma Devi (supra) stands set aside. The writ petition is treated to be dismissed on the basis of the observations of the learned Single Judge himself in the earlier paragraphs of the impugned judgement. Registrar General of this Court is hereby directed to take appropriate steps with regard to confirmation/ regularisation and consequential relief of the employees hereunder.
However, no order is passed as to costs."
The record reveals that on the basis of judgement passed by the Division Bench, the respective employees preferred representations before the competent authority of the High Court for being extended the benefits of confirmation/regularisation etc. In this sequence, the appellants also appear to have filed representations for being extended the benefit of confirmation/regularisation etc. on parity basis. The representation made by all such employees fell for consideration before the appointment committee duly constituted by the Chief Justice vide orders dated 30.9.2011 and 11.11.2011. The appointment committee in the light of observations made by the Division Bench in its judgement dated 20.9.2011 resolved to treat some employees as being appointed on probation of one year under Rule 32 of the Service Rules, who were granted the benefit of confirmation under Rule 33 of relevant rules, whereas, a distinction was drawn with respect to the appellants being appointed on ad hoc basis. The relevant extract of the report resolved by the appointment committee being heavily criticised on the touchstone of Article 14 with respect to two sets of employees deserves consideration and for ready reference the relevant part is reproduced below:
"We are, therefore, of the considered opinion that notwithstanding anything contained in Article 229 of the Constitution of India, the Representationists be given the benefit of the judgment dated 20.09.2011 passed by the Division Bench in the aforesaid two Special Appeals. As the Division bench has held that the condition stipulated in the appointment letters of all the incumbents looses force and at another place it has held that the cadre of Routine Grade Clerk was declared as 'dead cadre' and merged with the cadre of Assistant Review Officer, the Committee is of the view that these Representationists be treated as appointed on probation of one year under Rule 32 of the Allahabad High Court Officers And Staff (Conditions of Service And Conduct) Rules, 1976 and confirmed on the post on which they have been appointed after one year from the date of appointment under Rule 33 of the High Court Rules and they be given all consequential benefits including promotion from the date their juniors have been promoted.................................................................................................................................................
Sd/- Sd/-
31.05.2012 31.05.2012
Hon'ble the Chief Justice vide order dated 11.11.2011 has been pleased to refer the matter regarding representation dated 26.09.2011 made by S/Sri Sanjeev Sharma ( EMP No.6865), Affan Ahmad (EMP. No. 6868), Ajai Mishra (EMP No.6867), Rafiq Ahmad (EMP No. 6870) Ashutosh Shukla (EMP No.6869), Pawan Tiwari (EMP No.6871) Rohit Singh (EMP No. 6872), Mahendra Mishra (EMP No.6873), Pravesh Kumar (EMP No. 6874) and Ajeet Dixit(EMP No.6875) all adhoc Routine Grade Clerks seeking confirmation.
The committee finds that all these 10 persons have been appointed by Hon'ble the Chief Justice as adhoc Routine Grade Clerk on various dates in the year 2005. No Rule has been framed by the High Court for regularisation of ad hoc employees. Sub clause (2) of Rule 40 of the High Court Rules provides that in respect of all matters ( not provided for in these Rules) regarding the conditions of service of officers and servants of the Court, including matters relating to their conduct (wrongly mentioned in the report as 'product'), control and discipline, the Rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications variations and exceptions, if any, as the Chief Justice may, from time to time, specify.
There being no other provisions for regularisation of the ad hoc employees of this Court, the Rules made by the State Government in this behalf shall apply. The State Government has framed the U.P. Regularisation of Ad Hoc Appointments (on Posts Outside the Purview of The Public Service Commission) rules, 1979 (hereinafter referred to as the Regularisation Rules 1979). As the Hon'ble Chief Justice has not issued any order for modifications, variation and exceptions, the aforesaid Rule in terms without any modification would apply. In the said Regulation Rules 1979, cut off date provided in Rule 4 (i) is 30th June 1998.
The committee finds that as all those persons have been appointed only in the year 2005 i.e. much after the cut-off date i.e. 30th June 1998, they can not be given the benefit of U.P. Regularisation of Ad Hoc Appointments (on Posts Outside the Purview of The Public Service Commission) Rules, 1979.
The Committee recommends that their representation be rejected.
Their claim for regularisation can be considered only after Hon'ble the Chief Justice makes any Rule for Regularisation or pass any order varying the Regularisation Rules 1979.
Let the report be placed before Hon'ble the Chief Justice for passing appropriate orders."
Sd/- Sd/-
31.05.2012 31.05.2012
The aforesaid reports separately drawn by the appointment committee on the same day were implemented with respect to one set of employees treating their services on probation who were confirmed from the relevant date and were subsequently promoted further. On the contrary, the appellants who are alleged to be similarly situated, were informed by office memorandum dated 6.6.2012 that their joint representation dated 26.9.2011 for regularisation on the post of Routine Grade Clerk was considered and rejected by the appointing authority. Later on, the appellants in the month of August, 2013 were further informed that their representations on being considered, stand decided in terms of the order, as under:
"Those who have become over age be given relaxation in age in next examination provided they possess minimum qualification for appointment."
It is noteworthy that regular selection rarely took place particularly from the year 2004 up to the year 2013 when the appellants, in the month of September, 2013, filed writ petitions assailing the order dated 6.6.2012 as well as the order dated 1.6.2012 whereby their representations were rejected and, inter alia, a prayer for confirmation/regularisation and consequential service benefits was also made by the appellants. All the appellants appear to have filed writ petitions asserting similar facts and placing reliance upon the appointment orders of the type extracted above in form I and II. The appellants heavily relied upon the alleged similar appointment orders in respect of candidates appointed in terms of appointment order of type III, whose services were treated to be on probation and were considered for confirmation by the appointing authority on the basis of appointment committee report dated 31.5.2012. The counter affidavit was filed by the High Court to contest the writ petition by disputing the claims on the strength of resolution passed by the appointment committee having distinguished the cases of the appellants on the analogy of the report.
It appears that after filing of the writ petitions an advertisement for selection was also issued on 19.7.2014 which led to filing of applications for interim relief as well as amendment and after hearing the matter, an interim order was passed on 25.8.2014 whereby the selection was allowed to take place, however, result of the selection was stayed. Later on, the order passed by the High Court on 25.8.2014 was modified and the interim protection against last 16 posts in pursuance of the advertisement was made subject to the decision of the writ petitions. At the stage when the writ petitions came up for final hearing, the selection process pursuant to the advertisement dated 19.7.2014, in which the appellants did not participate due to change of qualifications or otherwise had reached a final stage and the result was declared. Ultimately, the writ petitions have been dismissed by the impugned judgement dated 31.8.2015 giving rise to the present special appeals.
During pendency of the writ petitions, three noticeable events having a bearing on the present controversy took place, namely, a five-judges Bench judgement came to be rendered on 18.9.2013 and a judgement by the Hon'ble Supreme Court in the case of Renu and others v. District and Sessions Judge, Tis Hazari (AIR 2014 SC 2175) also came to be rendered on 12.12.2014. Both these judgements, as mentioned above, have a bearing on the merit of the present controversy. There is yet another judgement which was rendered by learned Single Judge at Allahabad in respect of one person alleged to be similarly situated, in Writ-A No. 55500 of 2013 on 31.10.2014 whereby the benefit of Division Bench judgement dated 20.9.2011 was extended to the petitioner therein. The present dispute raised in the writ petitions cognizable by Single Judge appears to have come up for hearing in the year 2015 and the impugned judgement was rendered on 31.8.2015, dismissing all the writ petitions on merit.
Learned counsel for the appellants have argued vehemently on the questions framed as above so as to make out a case of accrual of rights within the exercise of exclusive powers by the Chief Justice.
Sri J.N. Mathur, learned Senior Advocate appearing for the appellants while making his submissions, has argued that the judgement rendered by learned Single Judge is bad in law primarily on the ground that the learned Single Judge was bound by the Division Bench judgement passed by this Court in Special Appeal No. 563 of 2008 on 20.9.2011on the basis of which the appointment committee had extended the benefit of regular appointment to the similarly situated persons and any discrimination, based on the terms of appointment having been done away with by the Division Bench, was no more relevant for creating a class within a class protected by the verdict of the Division Bench. The argument further proceeds that even the learned Single Judge while deciding the controversy in Writ-A No. 55500 of 2013 on 31.10.2014 has extended the same benefit of Division Bench judgement to a similarly situated person, therefore, learned Single Judge while passing the impugned judgement, was bound not to take a different view of the matter, being bound not only by the verdict of the Division Bench judgement but a judgement of the coordinate Bench as well.
On the application of the five-judges Bench judgement rendered on 18.9.2013, it was argued that the said judgement also supports the contention of the appellants for the reason that the five-judges Bench judgement has specifically laid down that protection of Article 14 of the Constitution of India cannot be discriminated against to a person who is similarly situated.
With regard to the application of the judgement rendered by the apex court, it was argued that the apex court judgement being prospective would not, in any view of the matter, take away the rights which stand finally determined by the Division Bench judgement in Special Appeal No. 563 of 2008 in its judgement dated 20.9.2011, which is a judgement in rem as well as in persona.
The judgement rendered by learned Single Judge has also been attacked on the ground of appreciating the position of law in a manner contrary to the well accepted notions of precedent and the five-judges Bench judgement though being per incurium, was wrongly applied to defeat the vested rights of the appellants, it was argued before us.
The other learned counsel for the appellants, taking us through the appointment orders issued to the appellants, have also attempted to impress upon the similarity of their cases with the cases decided by the Division Bench as well as by the learned Single Judge and have demonstrated that the High Court being one establishment could not adopt dual standards in the matter of treating the appellants vis-a-vis other similarly situated employees at variance. It was also argued that the High Court simply to set the house in order cannot ignore the valuable satisfactory services rendered by the appellants for nearly more than 10 years and render the appellants jobless all of a sudden.
Learned counsel for the appellants have argued that the appointments of the appellants made within the scope of Rule 8(a) (i) read with the residual powers under Rule 41 read with Rule 45 of the service rules, by no stretch of imagination and interpretation of law, stand on a different footing as compared to regular appointment, therefore, the dismissal of writ petitions is hit by the principles of equality embodied in Article 14 of the Constitution of India. The appellants cited the following case laws:
Sl.
Particulars
Citation
1.
Prof. C.D. Tase v. University of Bombay and others
1989 Supp. (1) SCC 273
2.
Director, SCTI for Medical Sciences & Technology & another v. M. Pushkaran
(2008) 1 SCC 448
3.
Commissioner, Karnataka Housing Board v. C. Muddaiah
(2007) 7 SCC 689
4.
Dr. Chandra Prakash & others v. State of U.P. & another
(2002) 10 SCC 710
5.
Hon'ble High Court of Judicature at Allahabad through its REgistrar General & another v. Diwakar Singh
Special Appeal No. 387 of 2010
decided on
7.10.2010
6.
Pratibha Mohan Das & others v. State of Orrisa & others
(2001) 2 SCC 480
7.
T. A. Hameed v. M. Vishwanathan
(2008) 3 SCC 243
8.
T.N. Godavarman Thirumulpad v. Union of India & others
(2009) 16 SCC 760
9.
Hari Bansh Lal v. Sahodar Prasad Mahto & others
(2010) 9 SCC 655
10.
P. Seshadri v. Mangati Gopal Reddy & others
(2011) 5 SCC 484
11.
Rudra Kumar Saini & others v. Union of India & others
(2000) 8 SCC 25
12.
All Manipur Regular Posts Vacancies Substitute Teachers' Association v. State of Manipur
AIR 1991 SC 2088
13.
R.N. Nanjundappa v. T. Thimmaiah and another
1972 AIR 1767
14.
Vijay Kumar Mahendra v. Registrar, Hon'ble High Court of Judicature at Allahabad & others
(1998) 1 UPLBEC 711
15.
Regional Manager v. Pawan Kumar Dubey
(1976) 3 SCC 334
16.
Bhawnagar University v. Palitana Sugar Mills (P) Ltd.
(2003) 11 SCC 584
17.
Ashwini Kumar Singh v. U.P. Public Service Commission & others
(2003) 11 SCC 584
18.
Managing Director, ECIL v. B. Karunakar
(1993) 4 SCC 727
19.
State of Bihar & another v. Dr. Radha Krishna Jha
(2002) 6 SCC 308
20.
Vice Chancellor, Lucknow University Lucknow, U.P. v. Akhilesh Kumar Khare & another
Civil Appeal No. 5731 of 2011
(Supreme Court)
decided on 8.9.2015
On the contrary, Sri Upendra Nath Misra, learned counsel appearing for the High Court, in order to defend the impugned judgement, has argued that the learned Single Judge has rightly dismissed the writ petitions filed by the appellants in view of the fact that the law, as regards recruitment in public services, stands well settled and any deviation from the statutory rules in any view of the matter being found established in the present case, accrual of vested rights is not made out in favour of the appellants and that being so, in the totality of the circumstances, the view taken by the learned Singe Judge cannot be faulted with. Following case laws were cited by Sri Upendra Nath Misra, to buttress his case:
Sl.
Particulars
Citation
1.
State of Karnataka Vs Uma Devi
2006 (4) SCC 1
2.
UPSEB Vs. Pooran Chandra Pande
2007 (11) SCC 92
3.
Official Liquidator Vs. Dayanand
2008 (10) SCC 1
4.
Renu Vs. D.J. Tis Hazari
AIR 2014 (SC) 2175
5.
State of Karnataka Vs. M.L. Kesari
2010 (9) SCC 247
6.
State of Haryana Vs. Ram Kumar Mann
1997 (3) SCC 321
7.
Secy., J.D.A. Vs . Daulat Mal Jain
1997 (1) SCC 35
8.
State of Bihar Vs. Kameshwar Pd. Singh
2000 (9) SCC 94
9.
Union of India Vs. International Trading Co.
2003 (3) SCC 437
10.
In re: Regularization of Class IV employees
(5 Judges Bench)
P.I.L. No. 54860 of 2004 (Allahabad High Court)
Decided on 18.09.2013
11.
Directorate of Films Festival Vs. G.A. Jain
2007 (4) SCC 737
12.
Ekta Shakti Foundation Vs. Govt. of N.C.T.
2006 (10) SCC 337
13.
Gurusharan Singh Vs. N.DM.C.
1996 (2) SCC 459
14.
Sneh Prabha Vs. State of U.P.
1996 (7) SCC 426
15.
Faridabad C.T. Scan Centre Vs. D.G. Helath
1997 (7) SCC 752
16.
Financial Commissioner Vs. Gulab Chand
2000 (10) SCC 656
17.
M.C.D. Vs. Gurnam Kaur
1989 (1) SCC 101
18.
State of U.P. Vs. Synthetics & Chemicals
1991 (4) SCC 139
19.
A.R. Antulay Vs. R.S. Nayak & Others
1988 (2) SCC 602
20.
Punjab Land Development Corp. Vs. Labour Court
1990 (3) SCC 682
21.
Union of India Vs Raghubir Singh
1989 (2) SCC 754
22.
V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Another
2010 (5) SCC 513
23.
Siddharam Satlingappa Mhetre Vs. State of Maharastra & Ors.
(2011) 1 SCC 694
24.
Union of India Vs. R.P. Singh
2014 (7) SCC 340
25.
K.P. Manu Vs. Chairman
2015 (2) LAWS (SC) 76
26.
Nirmal Jeet Kaur Vs. State of M.P.
2004 (7) SCC 558
Findings
In view of rival contentions and submissions advanced before us, we proceed to consider the questions framed as above in the ascending order and questions 'a' and 'b' being related to the scope and application of rules are being taken up first.
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.
In view of above, we hold that the appointments made otherwise than by holding competitive examination after due publication of advertisement though read in the exclusive residuary power of the Chief Justice under Article 229 of the Constitution/relevant rules are ad hoc and subject to termination on the event of regular selectees becoming available. The principle of last come first go immediately comes into play with respect to stopgap/ad hoc/temporary arrangement of any description.
We are not much impressed by the argument on the interpretation of rules based on the Division Bench judgement placed reliance upon and once it is held that all appointments held otherwise than by resorting to regular process of selection are incapable of creating a perennial right, the other argument of discrimination meted out by the appointment committee automatically fall and leaves no scope for any substantive relief being granted to the appellants contrary to what the learned Single Judge has ruled. Questions 'a' and 'b' are accordingly answered against the appellants and we are supported on this proposition by the apex court judgement rendered in Uma Devi's case reported in 2006 (4) SCC 1 [Secretary, State of Karnataka and others Vs. Uma Devi (3) and others] as well as the constitutional and statutory provisions referred to above.
Now coming to question 'c' viz. as to whether the learned Single Judge has applied the law correctly or the judgement so rendered suffers from any error of law, judicial indiscipline or impropriety. We are also not convinced on this aspect that the view taken by learned Single Judge suffers from any error of law and the submissions advanced by the learned counsel for the appellants being devoid of merit deserve rejection in the light of discussion recorded above.
Judicial indiscipline and propriety are the dimensions available to attack the validity of judicial pronouncements in a situation where the position of law is hazy. In our humble view, learned Single Judge having taken note of the large Bench judgement read with Renu's case (supra) in the light of apex court judgement in Umadevi's case (supra) was bound to take a view in the light of judgements which were binding, left unnoticed by the learned Single Judge and wrongly applied by the Division Bench. Once the judgements rendered by the higher courts were brought to the notice of learned Single Judge, the impact of such decisions was bound to be considered and applied within the framework of law.
We do not see the present case to be a case of any judicial indiscipline or impropriety as was impressed upon us keeping in view the position of law as held hereinabove.
Question 'd' of course, is an area of concern but was least argued. The issue needs to be addressed in the interest of justice. We have already noticed that the practice indulged into by the High Court in making appointments of the types mentioned above or in the like manner has been a disturbing feature throughout. Even in the State
services, such appointments on being continued for a long period have given rise to serious difficulties. The State Government in order to do justice to such appointments has brought about a concept of 'Regularisation in Service' under the statutory rules/schemes issued from time to time. The appellants are admittedly not covered under any scheme of regularisation or rules framed by the State Government, at present, therefore, they have neither developed their case on this premise nor have they challenged their discontinuance on any such ground. That being so, we need not delve into that aspect of the matter.
Since we have already held that all such appointments made otherwise than by way of regular selection, do not confer any perennial right of continuance on sanctioned posts and the principle of last come first go is applicable, the consequence of this judgement shall accordingly follow. We are also not convinced to interfere into the process of regular selection wherein the appellants for whatever reasons have themselves chosen not to participate in the examination for recruitment in the High Court. Therefore, all such employees, having been appointed without undergoing process of regular selection, have no right either to be regularized, confirmed or to be promoted. Services of all such employees stand terminated from the date when the regularly selected candidates are appointed and join the post.
However, we, looking to the facts and circumstances of the present case, grant relaxation to the appellants, as a one time measure, in the maximum age limit, as per rules, to appear in the next regular selection, provided they fulfill all the other requisite qualifications for the post on the date of applying for such future examination. We may clarify that this relaxation shall not be taken to be a precedence for any further selection.
In the result, all the special appeals are dismissed with no order as to cost.
Oct. 14, 2015
MFA
