Bombay High Court
Dashrath S/O. Keshavji Pande ... vs The High Court Of Judicature At ... on 4 May, 2016
Bench: B.R. Gavai
1 wp303.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 303 OF 2016
1. Dashrath s/o. Keshavji Pande,
Aged - Major, Occ. Service,
r/o. 166/A, Aazad Nagar,
Near Rajpal Kirana Store,
Gittikhadan, Nagpur, Tahsil
and District Nagpur.
2. Pramod Tejramji Kumbhre,
Aged - Major, Occ. Service,
r/o. 160/2, Permanent Quarter
No.4/53, Civil Lines, Nagpur,
Tahsil and District Nagpur.
3. Rahul Shrikrushna Gujarkar,
Aged - Major, Occ. Service,
r/o. Rajputpura, Daryapur,
Tahsil Daryapur, Distt. Amravati.
4. Ishwar Ramrao Kanire,
Aged - Major, Occ. Service,
r/o. Quarter No.2/6,
Government Normal School
Vasahat, Sitabuldi, Nagpur,
Tahsil and Distt. Nagpur.
5. Ravindra Sureshrao Fukte,
Aged - Major, Occ. Service,
r/o. 39, Navnath Society,
Maske Layout, Narendra Nagar,
Nagpur, Tahsil and Distt. Nagpur.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 :::
2 wp303.16.odt
6. Suryakant Vithobaji Yeole,
Aged - Major, Occ. Service,
r/o. 31, Dhangarpura, Tatya Tope
Nagar, Near R.B.I. Quarters,
Nagpur, Tahsil and Distt. Nagpur.
7. Anup Prataprao Hade,
Aged - Major, Occ. Service, r/o.
302, Mangalmurti Apartment,
Near Commissioner Colony Camp,
Amravati, Tahsil and Distt. Amravati.
8. Amol Haribhau Nachne,
Aged - Major, Occ. Service, r/o.
141, Building No.8, Type-1,
Ravinagar, Nagpur, Tahsil and
Distt. Nagpur.
9. Saneep Krushnarao Dhande,
Aged - Major, Occ. Service,
r/o. at Post Mahuli (Dhande),
Tahsil Daryapur, Distt. Amravati.
10.Yogesh Vithalrao Pimpalghare,
Aged - Major, Occ. Service,
r/o. 54, New Diamond Nagar,
Ramna Maroti Road, Behind
Jyoti School, Nagpur, Tahsil and
Distt. Nagpur.
11.Prashant Gunvantrao Mahake,
Aged - Major, Occ. Service,
r/o. 3B, Maa Jagdamba Nagri,
Behind Gajanan Maharaj Mandir,
Godhani, Nagpur, Tahsil and Distt.
Nagpur.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 :::
3 wp303.16.odt
12.Ravindra Gunvantrao Mahake,
Aged - Major, Occ. Service,
r/o. 38, Maa Jagdamba Nagri,
Behind Gajanan Maharaj Mandir,
Godhani, Nagpur, Tahsil and
District Nagpur.
13.Amol Champatrao Dolhare,
Aged - Major, Occ. Service,
r/o. Type-A, Building No.1/8,
Quarter No.3, Ravinagar Vasahat,
Ravinagar, Nagpur, Tahsil and
Distt. Nagpur.
14.Rajiv Ramsajiwan Shukla,
Aged - Major, r/o. 8, Kohale
Lay-out, Shrikrushna Nagar,
Godhani Road, Nagpur, Tq. and
Distt. Nagpur.
15.Nita Harish Pujari/Latkar,
Aged - Major, Occ. Service,
r/o. Quarter No.8/127,
Type-1, Ravinagar Vasahat,
Ravinagar, Nagpur, Tahsil
and District Nagpur.
16.Shailesh Sambhaji Bhange,
Aged Major, Occ. Service,
r/o. 141, Nisal Lay-out,
Patankar Chowk, Jaripatka,
Nagpur, Tahsil and Distt.
Nagpur.
17.Bhimrao Vasantrao Ganvir,
Aged Major, Occ. Service,
r/o. C/o. Suryabhan Jiwankar,
Rameshwari Road, Nagpur,
Tahsil and Distt. Nagpur.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 :::
4 wp303.16.odt
18.Akshay Chandrakant Landge,
Aged Major, Occ. Service,
r/o.163, Aadarsha Nagar,
Amravati Road, Wadi,
Nagpur, Tahsil and District
Nagpur.
19.Hashsyakant Gipalrao Kapse,
Aged Major, Occ. Service,
r/o. Chitra Bunglow, Out
House, Near Seven Day's School,
Sadar, Nagpur, Tahsil and District
Nagpur.
20.Yadav Madhukar Karokar,
Aged Major, Occ. Service,
r/o. Nandapur, Post Khairi
(Dhalgaon), Tahsil Saoner,
District Nagpur. ........ PETITIONERS
// VERSUS //
1. The High Court of Judicature
at Bombay, Nagpur Bench,
Nagpur, through its Registrar,
Civil Lines, Nagpur.
2. The Registrar (General),
High Court of Judicature at
Bombay, Fort, Mumbai.
3. The Hon'ble Chief Justice,
High Court of Judicature at
Bombay, Fort, Mumbai.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 :::
5 wp303.16.odt
4. The State of Maharashtra,
through its Secretary,
Department of Law and
Judiciary, Mantralaya,
Madam Cama Road,
Mumbai 400 032. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr.A.A.Naik, Adv. for the Petitioners.
Mr.A.S.Jaiswal, Sr. Cl. with Mr.F.T.Mirza, Adv. for
Respondent Nos. 1 to 3.
Mr.D.P.Thakare, A.P.P. for Respondent No.4/State.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
ig CORAM : B. R. GAVAI &
MRS.SWAPNA JOSHI, JJ.
DATE : 4.5.2016.
ORAL JUDGMENT (Per B. R. Gavai, J) :
1. Rule returnable forthwith. Heard finally by consent.
2. The petitioners, who are employees in Group "D" on the
establishment of Respondent No.1, have approached this Court
praying for quashing and setting aside that part of Rule 29(b) of the
Bombay High Court Appellate Side Service Rules, 2000 (hereinafter
referred as to "the Rules of 2000") which provides for upper age
6 wp303.16.odt
limit for promotion to the posts of Clerks, Section Writer/Typist and
the proviso thereto which restricts the number of promotees to 10 %
of the vacancies in any year of recruitment.
3. The facts are not much in dispute. Twenty petitioners
herein have been appointed on various posts in Group "D" category
on various dates. The petitioners contend that, if the provisions of
Rule 29 of the Rules of 2000 are read as it is, the petitioners and the
similarly circumstanced employees in Group "D" category would be
left at the mercy of the Registrar of the High Court and the Hon'ble
Chief Justice with regard to their promotions, irrespective of they
possessing requisite qualification. It is also the contention of the
petitioners that, by now, 'the right to promotion' has been held to be
'the fundamental right of an employee' and Rule 29 totally denies the
same to the petitioners. The petitioners also contend that they are
discriminated as against those who are similarly circumstanced.
4. We have extensively heard Mr.A.A.Naik, learned Counsel for
the petitioners, Mr.A.S.Jaiswal, learned Senior Counsel on behalf of
High Court Administration and Mrs.Bharti Dangre, learned
Government Pleader and Mr.D.P.Thakare, learned Additional
7 wp303.16.odt
Government Pleader on behalf of the respondent/State.
5. Mr.A.A.Naik, learned Counsel for the petitioners submits
that, perusal of sub-rule (b) of Rule 29, would reveal that the
Registrar, with the prior approval of the Hon'ble Chief Justice, may
promote any driver or employee from Group "D" post who has put in
minimum three years of continuous service in the post of Clerk,
Section Writer/Typist subject to fulfilment of eligibility conditions as
mentioned in clause (a) of Rule 29. The learned Counsel submits that,
as such, no procedure is prescribed as to in what manner the
promotions would be made. It is said that the matter is left at the
entire discretion of the Hon'ble Chief Justice and the Registrar. He
submits that, under Article 229 of the Constitution of India, absolute
powers are vested with the Hon'ble Chief Justice for making
appointment of Officers and staff of the High Court and the same is
done in order to prevent interference by the Executive. It is submitted
that, however, while exercising the power, the Hon'ble Chief Justice is
also required to follow mandate of Articles 14 and 16 of the
Constitution of India.
6. The learned Counsel for the petitioners further submits that the
8 wp303.16.odt
proviso which restricts number of promotions to 10% of the vacancies
in any restricted year is also violative of Article 14 of the Constitution
of India. The learned Counsel, relying on the Government Resolution
dt.10.5.2005, submits that the State Government itself, vide the said
Resolution, has provided that 25% of the posts in Group "C" category
be ear-marked for filling up the said by promotion from Group "D"
employees. It is submitted that, by subsequent resolution
dt.14.1.2016, the said 25 % reservation has now been increased to
50%.
7. The learned Counsel submits that the duties which are to
be exercised by the Clerks etc. in the High Court and by the Clerks
working in the State Government departments are almost identical
and there is no reason as to why the provisions which are made in
respect of the employees of the State Government and the High Court
should be discriminative. The learned Counsel submits that the salary
of both the set of the employees comes from the same public
exchequer and as such, there is no reason as to why they should not
be given equal treatment.
8. The learned Counsel further submits that the High Court
9 wp303.16.odt
on the Administrative Side has been changing its policy every now
and then. It is submitted that, vide Circular dt.19.1.2010, it was
decided that the Government Resolution of the State Government
dt.10.5.2005 would be applicable. However, the same is again
changed on 8.2.2010, wherein it was provided that the said
Government Resolution shall apply only to the subordinate Courts.
The learned Counsel for the petitioners further submits that, by
another Circular dt.9.3.2010, again change was made thereby
providing that, even in the subordinate Courts, promotions from
Group 'D" to Group 'C' category would be restricted only to 10 %. It
is, therefore, submitted that the High Court is not consistent with its
stand.
9. The learned Counsel further submits that the High Court
on the Administrative Side has, in fact, misled the Division Bench of
this Court at Aurangabad when Writ Petition No.1815 of 1997 came
up for hearing before the Division Bench. The learned Counsel
submits that, giving an impression to the Court that the High Court
Administration has accepted to give 25% of reservation for promotion
from Group 'D' to Group 'C' category, the High Court was misled to
dispose of the petition. However, subsequently, the same was said to
10 wp303.16.odt
be reviewed and ultimately, the petition was disposed of on 9th
September, 2014 holding it to be 'infructuous'.
10. The learned Counsel submits that though the Hon'ble
Chief Justice is high functionary, in the Constitutional Scheme, he is
also bound to follow the mandate of Articles 14 and 16 of the
Constitution of India. In support of this proposition, the learned
Counsel relies on the Judgment in the case of H. C. Puttaswamy and
Others .vs. The Hon'ble Chief Justice of Karnataka High Court,
Bangalore and Others reported in AIR 1991 SC 295.
11. The learned Counsel for the petitioners also relies on the
following Judgments in support of the proposition of denial of right
to promotion :
a) Food Corporation of India and Others .vs.
Parashotam Das Bansal and Others reported in (2008) 5
SCC 100.
b) Union of India and another .vs. Hemraj Singh
Chauhan and Others reported in (2010) 4 SCC 290.
c) Council of Scientific and Industrial Research
and another vs. K.G.S. Bhatt and another reported in AIR
1989 SC 1972.
11 wp303.16.odt
d) State of Tripura and Others .vs. K.K.Roy
reported in AIR 2004 SC 1249.
12. The learned Counsel, therefore, submits that, it is in the
interest of justice that this Court declares that entire Rule 29 of the
Rules of 2000 is violative of Article 14 and direct the High Court on
the Administrative Side to frame Rules in accordance with law.
13. Mr.A.S.Jaiswal, learned Senior Counsel for respondent nos.
1 to 3, on the contrary, began his submission, submitting that, as to
how much percentage of promotion is to be provided for promotion to
Group 'C' posts from Group 'D' posts is a matter which has to be
decided on the basis of requirement of the Administration and this
can be dealt with only by the High Court on its Administrative Side.
The learned Senior Counsel submits that, the High Court, sitting on its
Judicial Side, will not have powers to direct on the Administrative
Side to frame policy in a particular manner. The learned Senior
Counsel further submits that the contention of the petitioners that
there are no promotional avenues is itself without substance. The
learned Senior Counsel submits that each of the case cited by the
learned Counsel for the petitioners arose out of stagnation. It is,
12 wp303.16.odt
however, submitted that, in the present case, there is no stagnation.
The learned Senior Counsel pointed out two provisions. It is
submitted that the Group 'D' category employees are entitled to be
promoted as Deputy Librarian and Drivers in view of Rules 23 and 30
respectively of the Rules of 2000. The learned Senior Counsel further
submits that, even in Group 'D' category, there is no stagnation and an
employee from the post of Peon can be promoted to the higher post in
Class 'D' category. The learned Senior Counsel, therefore, submits that
the present petition is de hors substance and is liable to be dismissed.
14. The learned Government Pleader though admitted that the
State Government has provided for 25 % reservation in Group 'C'
category post to be promoted from Group 'D' category post and has
subsequently increased the said reservation to 50 %, she submits that
the State Government has no role to play insofar as the employee of
the staff of High Court is concerned, inasmuch as the matter is within
the exclusive domain of the Hon'ble Chief Justice under Article 229 of
the Constitution of India.
15. For appreciating the rival submissions, it would be relevant
to refer to Rule 229 of the Constitution of India, which is as under :
13 wp303.16.odt
" 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."
16. It could thus be seen that the appointment of the Officers
and Servants of a High Court are required to be made by the Hon'ble
Chief Justice of the Court or such other Judge or Officer of the Court
as the Hon'ble Chief Justice may direct. However, proviso thereto
provides that the Hon'ble Governor of the State may by rule require
that, in such cases as may be specified in the rule, no person not
14 wp303.16.odt
already attached to the Court shall be appointed to any office
connected with the Court save after consultation with the State Public
Service Commission. Clause (2) thereof provides that 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. Proviso thereto
requires that the rules made under the clause shall, so far as they
relate to salaries, allowances, leave or pensions, require the approval
of the Governor of the State. Clause (3) thereof provides that 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.
17. It cannot be in dispute that the Hon'ble Chief Justice has
been given entire control insofar as the appointment of the Officers
and Servants of the High Court are concerned. Undisputedly, this has
been done with an avowed principle enshrined in the Constitution of
15 wp303.16.odt
separation of three wings of Democracy i.e. Legislature, Executive and
Judiciary. Purpose of Article 229 of the Constitution of India is to
prevent any unwarranted interference by the Executive in the
administration of the High Court.
18. It will also be appropriate to refer to Rule 29 of the
Bombay High Court Appellate Side Rules, 2000, which reads thus :
'29.Clerks, Section Writer/Typist.
(a). Eligibility - The post shall be filled in from amongst the
candidates who, -
(i) are not less than 18 years and not more than 30
years age.
(ii) possess University Degree, preference being given
to the holders of Degree in Law;
(iii) possess speed at least of 40 w.p.m. in English
Typing.
(iv) possess knowledge in operating computer as may
be prescribed from time to time.
(b) The Registrar may, with prior approval of the
Chief Justice, promote any driver or employee from Group 'D'
posts, who has put in minimum 3 years of continuous service,
to the post of Clerk/Section writer subject to fulfillment of the
eligibility conditions mentioned in clause (a) except sub-
clause (i) above.
However, the driver and employees from Group 'D' posts, who
was recruited prior to coming into force of these rules and
are having minimum qualification for the post of
Clerk/Section writer as per the Rules of 1994, will be
16 wp303.16.odt
brought within the zone of consideration for the provisional
promotion to the post of Clerk/Section Writer even though
they may not be having the minimum qualification as per the
present Rules on the condition that they shall acquire the
minimum educational qualification within a period of five
academic years and the minimum qualification in respect of
typing and knowledge of operating computer within a period
of one academic year failing which they will be reverted to
their original post:
Provided that the total number of such promotees shall not
exceed 10% of the vacancies in any year recruitment. "
19. Perusal of the Rule shows that it provides for eligibility.
The eligibility provided is that a person to be appointed shall not be
less than 18 years and not more than 30 years of age. He shall possess
University degree, preference being given to the holder of degree in
law. He shall also possess speed atleast of 40 w.p.m. in English typing
and he shall possess knowledge of operating computer as may be
prescribed from time to time. Clause (b) of Rule 29 provides that the
Registrar may, with prior approval of the Chief Justice, promote any
driver or employee from Group 'D' posts, who has put in minimum 3
years of continuous service, to the post of Clerk/Section writer subject
to fulfillment of the eligibility conditions mentioned in clause (a)
except sub-clause (i) above. The second paragraph of said clause (b)
of Rule 29 would not be applicable to the facts of the present case as
17 wp303.16.odt
none of the petitioners is recruited prior to the said rules coming into
effect.
20. The proviso to the said Rule provides that total number of
such promotions shall not exceed 10 % of the vacancies in any year
of recruitment. By an amendment on 21st March, 2016, the
requirement of age limit has been done away and as such, the
challenge in that regard would not survive any more.
21. The Apex Court, way back in the year 1989 in the case of
Council of Scientific and Industrial Research and another (cited
supra), had an occasion to consider the case of the respondent therein
who was a Civil Engineer and who was not considered for any kind of
promotion for nearly two decades. The employee had approached the
learned Administrative Tribunal. The learned Tribunal, considering
one of the bye-laws which did not apply to the employees like the
petitioners therein, directed the Council of Scientific and Industrial
Research to give benefit of that bye-law, insofar as promotion is
concerned, to the applicant before the learned Tribunal. The same
was challenged by the said Council before the Apex Court. The Apex
Court in clear terms held that the said bye-law was not applicable to
18 wp303.16.odt
the case of respondent therein inasmuch as the category in which the
respondent was employee stood excluded from the purview of said
bye-law. However, even after observing thus, the Apex Court finds
thus :
"9. That then is the scope of bye-law 71(b)(ii). But that
does not mean that we should interfere with the relief
granted to respondent-1. By pointing out the error that
crept into the decision of the Tribunal, we need not to lake
to its logical end which will defeat justice. Respondent-1 is
not a lay-man. He is a highly qualified engineer. Although
joined service with a diploma in Engineering, he later
passed Bachelor of Engineering (B.E.) and also acquired M.
Tech. degree and one more diploma (D.P.M.). He was
however, left without opportunity for promotion for about
twenty years. This is indeed a sad commentary on the
appellant's management. It is often said and indeed,
abroitly, an organisation public or private does not 'hire a
hand' but engages or employees a whole man. The person is
recruited by an organisation not just for a job, but for a
whole career. One must, therefore, be given an opportunity
to advance. This is the oldest and most important feature of
the free enterprise system. The opportunity for advancement
is a requirement for progress of any organisation. It is an
incentive for personnel development as well. (See :
Principles of Personnel Management by Flipo Edwin B. 4th
Ed. p. 246). Every management must provide realistic
opportunities for promising employees to move upward.
"The organisation that fails to develop a satisfactory
procedure for promotion is bound to pay a severe penalty in
terms of administrative costs, misallocation of personnel,
low morale, and ineffectual performance, among both no
managerial employees and their supervisors". (See :
Personnel Management by Dr. Udai Pareek p. 277). There
cannot be any modern management much less any career
planning, man-power development, management
19 wp303.16.odt
development etc. which is not related to a system of
promotions. (See : Management of Personnel in Indian
Enterprises by Prof. N.N. Chatterjee, Chap. 12 p. 128). The
appellant appears to have overlooked this basic requirement
of management so far as respondent-1 was concerned till
N.R. & A.S. were introduced."
22. It could thus be seen that the Apex Court has in clear
terms observed that a person is recruited by an organisation not just
for a job, but for a whole career. It has been further observed that one
must, therefore, be given an opportunity to advance. It has been held
that this is the oldest and most important feature of the free
enterprise system. Their Lordships of the Supreme Court after
observing various Authorities on the subject of Personnel
Management came to the conclusion that there cannot be any modern
management much less any career planning, man-power
development, management development etc. which is not related to a
system of promotions. After observing this, the Special Leave Petition
filed by the said Council came to be dismissed.
23. Immediately, in the next year, Their Lordships in the case
of Dr. Ms. O.Z.Hussain (cited supra) had an occasion to consider the
case of Scientists in the Ministry of Health and Family Welfare who
20 wp303.16.odt
were denied promotional benefits and were subjected to large scale
stagnation. It will be relevant to refer to paragraph nos. 7 and 8 of the
said Judgment. They are thus :
"7.This Court, has on more than one occasion, pointed out that
provision for promotion increases efficiency of the public service
while stagnation reduces efficiency and makes the service
ineffective. Promotion is thus a normal incidence of service. There
too is no justification why while similarly placed officers in other
Ministries would have the benefit of promotion, the non-medical 'A'
Group scientists in the establishment of Director General of Health
Services would be deprived of such advantage. In a welfare State, it
is necessary that there should be an efficient public service and,
therefore, it should have been the obligation of the Ministry of
Health to attend to the representations of the Council and its
members and provide promotional avenue for this category of
officers. It is, therefore, necessary that on the model of rules framed
by the Ministry of Science and Technology with such alterations as
may be necessary, appropriate rules should be framed within four
months from now providing promotional avenue for the 'A'
category scientists in the non-medical wing of the Directorate."
"8. This Writ Petition is allowed and the following directions are
issued:
1. Within four months from today, the Ministry of Health and
Family Welfare of the Union of India shall frame a set of
appropriate rules, inter alia, providing suitable promotional avenue
for the 'A' Group scientists in the non-medical wing of the
establishment of Director General of Health Services;
2. These 'A' Group scientists shall be entitled to book allowance,
21 wp303.16.odt
higher degree allowance, risk allowance and conveyance allowance
at the same rate as is admissible to doctors in the medical wing in
the Directorate w.e.f. 1.4.1989.
3. Government shall examine the tenability of the claim of equal
pay scales for this category of officers within four months from
today.
24. Their Lordships thus observed that the provision for
promotion increases efficiency of the public service while stagnation
reduces efficiency and makes the service ineffective. It has been held
that promotion is a normal incidence of service. The Court has further
observed that when the similarly placed Officers in other Ministries
were entitled to get promotion then why the employees or Officers in
the Ministry of Health Department should be deprived of such benefit.
As such, Their Lordships directed the Ministry of Health and Family
Welfare of Union of India to frame a set of appropriate Rules, inter
alia, providing suitable promotional avenues for the Group 'A'
Scientists in the non-medical wing of the establishment of Director
General of Health Services within a period of four months.
25. In the case of State of Tripura and Others (cited supra),
the State had failed to take steps for providing promotional avenues
and as such, the employee therein approached before the High Court.
22 wp303.16.odt
The High Court allowed the petition and directed for providing 'graded
scale' to the respondent therein. Challeging the same, the State of
Tripura approached the Hon'ble Supreme Court contending therein
that when the employees had accepted the appointment knowing that,
under the Service Condition, there was no avenue of promotion, they
were not entitled to seek more than what was there in the rules.
Rejecting this contention, the Hon'ble Apex Court observed thus:
" It is not a case where there existed an avenue for
promotion. It is also not a case where the State intended to
make amendments in the promotional policy. The
appellant being a State within the meaning of Article 12 of
the Constitution should have created promotional avenues
for the respondent having regard to its constitutional
obligations adumbrated in Articles 14 and 16 of the
Constitution of India. Despite its constitutional obligations,
the State cannot take a stand that as the respondent herein
accepted the terms and conditions of the offer of
appointment knowing fully well that there was no avenue
of promotion, he cannot resile therefrom. It is not a case
where the principles of estoppel or waiver should be
applied having regard to the constitutional functions of the
State."
26. In the case of Food Corporation of India and Others
(cited supra), Their Lordships were considering the case of
respondents in the Food Corporation of India who were engineering
23 wp303.16.odt
staff in the appellant/Corporation and who were not granted
promotional avenues. The High Court of Calcutta held in favour of
the employees. The Food Corporation of India challenged the same
before the Hon'ble Apex Court. While dismissing the appeal filed by
the State Government, Their Lordships observed thus :
9. The appellant is a "State" within the meaning of
Article 12 of the Constitution of India. An employee of a
State although has no fundamental right of promotion, it
has a right to be considered therefor. What is necessary is
to provide an opportunity of advancement; promotion
being a normal incidence of service."
"12. When employees are denied an opportunity of
promotion for long years (in this case 30 years) on the
ground that he fell within a category of employees excluded
from promotional prospect, the superior Court will have
the jurisdiction to issue necessary direction."
"13. If there is no channel of promotion in respect of a
particular group of officers resulting in stagnation over the
years, the Court although may not issue any direction as
to in which manner a scheme should be formulated or by
reason thereof interfere with the operation of existing
channel of promotion to the officers working in different
departments and officers of the Government but the
jurisdiction to issue direction to make a scheme cannot be
denied to a Superior Court of the country."
27. It could thus be seen that Their Lordships in unequivocal
terms held that though an employee of a State has no fundamental
right of promotion, he has a right to be considered therefor. It has
24 wp303.16.odt
been held that what is necessary is to provide an opportunity of
advancement; promotion being a normal incidence of service. Their
Lordships further held that if there is no channel of promotion in
respect of a particular group of Officers resulting in stagnation over
the years, the Court although may not issue any direction as to in
which manner a Scheme should be formulated, but the Courts have
jurisdiction to issue directions to make a Scheme for providing
promotional avenues.
28. Perusal of Rule 29 would reveal that there is not even a
right to an employee of class 'D' category to be considered for
promotion. Perusal of the Rule would reveal that an absolute
discretion is vested with the Registrar. It is at the sweet will of the
Registrar as to whether to promote any driver or employee from
Group 'D" post who has put in minimum three years of continuous
service to the post of Clerks, Section Writer/Typist subject to the
fulfilment of eligibility as mentioned in clause (a) of Rule 29 of the
Rules of 2000. The only requirement is that there has to be a prior
approval of the Hon'ble Chief Justice.
29. As such, if the Registrar does not decide to put up
25 wp303.16.odt
anybody's case before the Hon'ble Chief Justice, then no such
employee would be entitled to be considered for promotion.
Similarly, if the Registrar finds that a candidate at Serial No.100 is
entitled to be promoted then, irrespective of the fact that there may
be various candidates between Serial Nos. 1 to 99 who possess
requisite qualification, it will be at his will to put up the case of the
candidate at Serial No.100. We, therefore, find that the Rule vests
absolute discretion in the hands of the Registrar. Nodoubt that the
Registrar of Courts are senior Judicial Officers. We are sure that there
might not have been any occasion or rather there would be no
occasion in future also where the discretion, has either been exercised
or would be exercised in an arbitrary manner.
30. However, in our Constitutional Scheme, merely because
there is no possibility of the high functionary abusing or misusing
powers, it cannot be a ground for validating the Rule, if such a Rule
provides absolute unchannelled and unguided discretion in such
Authority.
31. We are further of the view that providing slab of 10% of
the vacancies in any year of recruitment is also violative of Article 14.
26 wp303.16.odt
When the State Government had initially provided for 25 % of
reservation for promotion from Group "D" category to Group "C"
category and has now increased it to 50%, we see no reason as to
why the similar provision could not have been made in the said Rules.
32. Though it is contended by the learned Senior Counsel on
behalf of High Court Administration that the employees of the High
Court cannot be equated with the employees of the other State
Government departments, we are unable to accept the said argument.
We make it clear that, in the present case, we are considering the
aspect of promotion only to the post of Clerks, Section Writer/Typist
etc. and not to the posts of Registrars, Deputy Registrars or Assistant
Registrars, in case of whom one may understand that a specialized
knowledge of functioning of Court is a relevant factor. We fail to
understand as to what is the difference in the duties assigned to the
Clerks, Section Writers/Typists of the High Court as against those of
Government Pleader Officer, who are working in the same building.
We further fail to understand as to why the Group 'D' employees in
the High Court are denied right to promotion; whereas the employees
of the Government Pleader's Office, situated in the High Court
premises in the same building, are entitled to the benefit of said
27 wp303.16.odt
Government Resolution, which initially provided for 25% reservation
and now provides for 50 % reservation.
33. We may gainfully refer to the observations of Their
Lordships of the Apex Court in the case of H.C.Puttaswamy and
Others (cited supra). In the said case, the then Chief Justice of the
High Court, who was the Competent Authority, had appointed as
many as 398 candidates, as against 40 posts advertised. The same
came to be challenged on Judicial Side before the High Court of
Karnataka. The Division Bench of the High Court of Karnataka
allowed the petitions and set aside the appointments. The same was
challenged before the Hon'ble Supreme Court. Their Lordships of the
Apex Court observed thus :
" 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
28 wp303.16.odt
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 for the constitutional ethoes 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 standard of ethical and
intellectual rectitude. The public expectations do not seem
to be less exacting. "
34. It could thus be seen that Their Lordships in unequivocal
terms have held that the object of Article 229 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. Their Lordships
29 wp303.16.odt
further held that the High Court has a duty to ensure that, in carrying
out the administrative functions, the Chief Justice is actuated by the
same principles and values as those of the Court he is serving.
35. Undisputedly, the High Court is also a 'State' within the
meaning of Article 12 of the Constitution of India. While discharging
the Administrative duties including framing of Rules with regard to
recruitment, reservation etc., the High Court is also bound to follow
the mandate of Articles 14 and 16 of the Constitution of India. When
the Hon'ble Apex Court in unequivocal terms holds that the right to be
considered for promotion is a fundamental right and the right
providing for promotional avenues is also a fundamental right, we are
of the considered view that even the High Court is bound to follow
the said mandate.
36. Taking into consideration this aspect of the matter, we find
that Rule (b) of Rule 29 of the Rules of 2000, which bestows
unfettered discretion on the Registrar of the High Court to pick and
choose any one of the persons for promotion and which provides for
ceiling of 10%, that too, for vacancies in any recruitment, is violative
of mandate of Articles 14 and 16 of the Constitution of India.
30 wp303.16.odt
37. We make it clear that we are not impressed with the
argument advanced on behalf of the learned Counsel for the
petitioners that the said Rule bestows unfettered discretion on the
Hon'ble Chief Justice and therefore, it is liable to be set aside.
38. We find that, for the reasons we have recorded
hereinabove, Clause (b) of the said Rule 29 is ultra vires Articles 14
and 16 of the Constitution of India. The Rule does not provide an
opportunity to the similarly circumstanced candidates in Group 'D'
category to compete for promotion and is also capable of being
interpreted in the manner wherein the less meritorious candidate can
be preferred over the more meritorious candidate. We find that the
Rule as it stands does not provide for the procedure and manner in
which promotion should be granted to the employees from Group 'D'
category to Group 'C' category and it does not provide for ensuring
seniority and merit while granting promotion.
39. It is further to be noted that, while providing for
promotion to the employees from Group 'D' category to Group 'C'
category, nobody says that non-meritorious candidates should be
promoted. It is only a promotional avenue which is to be made
31 wp303.16.odt
available to the candidates who are already serving with the
establishment.
40. Insofar as the contention of the learned Senior Counsel
that there is no stagnation and there are promotional avenues
available is concerned, we find that the said argument is also without
substance. The promotional avenues that the learned Counsel points
out are from the posts of Peons to the posts of Naiks and from the
posts of Naiks to the posts of Chobdars and at the most, to the posts
of Drivers. Nodoubt, that the learned Senior Counsel pointed out
Rule 23 of the Rules of 2000, which provides that such a candidate
can also be promoted to the post of Assistant Librarian. We fail to
understand as to why, if a candidate from the post of Peon can be
considered for the post of Assistant Librarian which, undisputedly,
carries more responsibility than the posts of Clerks, Section
Writers/Typists, then why such employees should not be provided
adequate reservation for promotion to the said posts.
41. If the contention of the learned Senior Counsel is to be
accepted, then a Group 'D' employee who is also possessing degree in
Law along with other qualification like English typing, knowledge of
32 wp303.16.odt
operation of Computer etc. will have to retire as a 'Chobdar' only.
42. We cannot lose sight of the ground realities. The persons
who were working as Clerks, Section Writers on the establishment of
this Court or the District Courts, on getting opportunities, have been
selected as Judicial Magistrates, First Class and are discharging their
duties in an efficient manner. It is, thus clear that, if an opportunity is
made available to the employee to better his prospects, he can always
perform better.
43. In that view of the matter, we find that Clause (b) of Rule
29 of the Rules of 2000, as it stands today, is violative of Articles 14
and 16 of the Constitution of India.
44. We are aware that we cannot direct the employer to frame
a Rule in a particular manner. However, as held by the Hon'ble Apex
Court in the case of Food Corporation of India and Others (cited
supra), we can always direct the employer to frame a Scheme/Rules
which will provide for the avenues to be considered for promotion.
We can also direct the employer to conform to the mandate of Articles
14 and 16 of the Constitution of India. Though we are not directing
33 wp303.16.odt
the High Court on the Administrative Side to follow the Rules of the
State Government wherein they have initially provided for 25 % of
reservation of the total cadre strength and now have increased the
same to 50%; we are sure that, in the light of the observations made
by us hereinabove, that there is no difference in the nature of duties
performed by the Clerks, Section Writers/Typists etc. of the High
Court as well as the other departments of the State Government, the
rule making Authority will certainly take the same into consideration.
45. We, therefore, allow the present petition.
a) Clause (b) of Rule 29 of the Rules of 2000 is quashed and
set aside.
b) The High Court on the Administrative Side is requested to
frame Rules, therein providing for adequate reservation in the total
cadre strength of Group 'C' posts for promotion to the employees in
Group 'D' posts, in the light of the observations made by us
hereinabove. The said Rules shall be framed within a period of three
months from today.
c) It is further directed that the stay granted by this Court to
the process of appointments to the posts of Group 'C' by order
34 wp303.16.odt
dt.18.1.2016 shall continue to operate till the Rules are framed by the
High Court on the Administrative Side.
d) Needless to state that, after the Rules are framed,
respondent nos. 1 and 2 shall be free to make appointments to the
posts reserved for direct recruits and promotees as per the said Rules.
46. At this stage, Mr.A.S.Jaiswal, learned Senior Counsel
requests for grant of stay to this order for a period of twelve weeks
from today. However, in the light of the view we have taken, we are
not inclined to consider the said request. Hence, the same is rejected.
JUDGE JUDGE
jaiswal
