Delhi High Court
Praveen Srivastava & Ors. vs Union Public Service Commission & ... on 26 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 6205/2014
% Reserved on : 13th February, 2017
Date of decision: 26th May, 2017
PRAVEEN SRIVASTAVA & ORS. ..... Petitioners
Through: Mr. V.K. Garg, Sr. Advocate with
Mr. Ajay Jain, Ms. Noopur Dubey and Ms. Astha
.Chopra, Advocates.
Versus
UNION PUBLIC SERVICE COMMISSION & ORS....Respondents
Through: Mr. Naresh Kaushik and Mr. Joymoti
Mize, Advocates for UPSC/ respondent no.1, Mr.
Maninder Singh, Additional Solicitor General, Mr.
Kirtiman Singh, Central Government Standing
Counsel, Mr. Waize Ali Noor, Mr. Prateek
Dhanda and Mr. Pranav Agarwal, Advocates for
respondents Nos.2 and 3.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J.
1. There is a plethora of case law relating to seniority disputes between
direct recruits and promotees. The present litigation exposits another
facet of conflict relating to the stage of induction, i.e., the
appointment of direct recruits and promotion of in service officers.
2. The unusual feature of the present litigation is that the Union Public
Services Commission; and the Ministry of Law and Justice and the
Department of Personnel & Training (Ministry of Personnel, Public
Grievances, and Pensions) have taken divergent positions. The Union
Public Service Commission (for short „Commission‟) though statedly
neutral, to some extent supports the petitioners who had applied for
selection and appointment to the post of Deputy Legal Advisor
(DLA) in the open category, whereas the Ministry of Law and Justice
(also referred to as the Ministry) and the Department of Personnel &
Training (DoP&T) support the promotees and are opposing the
petition.
3. The post of DLA is the second post in the hierarchy, above the post of
Assistant Legal Advisor (ALA) in the Indian Legal Service.
Recruitments and appointments to the Indian Legal Service are
governed by the Indian Legal Service Rules 1957 (for short „Rules‟)
framed under the proviso to Article 309 of the Constitution of India.
As per Rule 6(2) of the Rules, posts in the cadre of DLA have to be
filled up alternatively by direct recruitment and by promotion from
the cadre of ALA.
4. Pursuant to the advertisement published in the employment news and
leading newspapers on 3rd September, 2011, the six petitioners had
applied for selection and appointment to the post of DLA. The
petitioners had appeared in the written examination conducted on 27 th
November, 2011. They were declared successful along with others in
the results declared by the Commission on 3 rd February, 2012. The
Commission had thereafter conducted interviews between 28th May,
2012 to 30th May, 2012. On 13th June, 2012, the Commission
declared the final results and eleven candidates, including the six
petitioners were declared successful. On 13th March, 2013, the
Commission issued notice cancelling the entire recruitment for eleven
vacancies. This prompted petitioner Nos. 1 to 3 before us to file OA
No. 1925/2013 and petitioner Nos. 4 to 6 to file OA No. 1165/2013.
The common impugned order dated 29th August, 2014 dismisses the
aforesaid OAs along with OA Nos. 3602/2013, 1165/2013 and
3816/2013.
5. Earlier, on 14-20/7/2007, the Ministry of Law and Justice had
initiated the process of filling up six posts of DLA, then known as
Deputy Government Counsel, under 50% direct recruitment quota.
This selection process was struck down by the Central Administrative
Tribunal vide order dated 24th February, 2011 in OA No.86/2010,
filed by O.P. Bagri and others and OA No 150/2010 filed by G.K.
Chakraborty. The order dated 24th February, 2011 records that out of
516 applications received, 63 candidates were shortlisted at the first
instance for interview. Thereafter, the Ministry of Law and Justice
had sent names of six candidates who were working as ALAs to the
Commission. These candidates were interviewed between 8th and
12th June, 2009. Another 280 candidates were added and interviewed
between 11th to 15th January, 2010 by the Board that was different
from the earlier Board, which had met in June 2009. The Tribunal
observed that there was no justification to include six ALAs as
suggested by the Ministry of Law and Justice especially when these
candidates did not meet the eligibility criteria, on the pretext that
some ALAs, who were working in the said Ministry had represented
that they were senior to the candidates, who were shortlisted earlier.
Ultimately, none of the 63 first shortlisted candidates were declared
successful. Setting aside the selection, it was directed that the whole
selection process should be scrapped and the authorities, after issuing
fresh advertisement, would make selections and appointments to the
post of DLA.
6. Notwithstanding the aforesaid directions, Mahesh Tyagi, the fourth
respondent before us, an ALA had filed OA No. 746/2012, which was
dismissed by the Tribunal vide order dated 7th March, 2012 recording
as under:-
"3. We have heard the learned counsel representing the
applicant and with his assistance examined the records of the
case. The applicant admittedly, as pleaded by him, has not
chosen to compete for the posts advertised, which are to be filled
by way of direct recruitment. Learned counsel representing him
has not been able to show any embargo in the rules for the
respondents to hold a written test and interview thereafter for
making appointment on the post of DLA by way of direct
recruitment. The plea that at this age when the applicant is 50, it
would be difficult for him to compete in the examination, as the
counsel has urged before us during the course of hearing, has no
merit whatsoever. If the applicant wants to come on the post
under contention by way of direct recruitment, he has to compete
with others, and once there is no prohibition under the rules for
making direct recruitment by way of selection through a written
test and interview, we find nothing wrong in that. We could
imagine if it was to be the case of the applicant that against the
sanctioned strength when 50% posts are to be filled up by way of
promotion, he should have been given regular promotion instead
of giving the same on ad hoc basis, but such is not even the prayer
of the applicant. We may reproduce para 8 of the prayer clause,
which reads as follows:
"a. To declare the selection process initiated by the
respondent No.1 on the basis of the advertisement issued in
Sept., 2011 as null and void being illegal and arbitrary.
b. Direct the respondents to abide by the rule 7 (1A) of ILS
rules, in making appointments to the post of Deputy Legal
Adviser.
c. To allow the OA with cost of the litigation.
d. To pass such other and further order, which this Hon‟ble
Court deem fit and proper in existing circumstances of the
case."
4. Even if one is not to go strictly by the prayers made by
the applicant, as the pleadings are often found before the Tribunal
to be inapt, but there is no proper material even in the body of the
Application, which may show that direct recruitment on the 11
posts, would, in any way, impinge upon the rights of the
applicant. What is pleaded is that the total sanctioned strength of
the posts of DLA is 19, and that 50% posts have to be filled by
way of promotion. If one is to go by the averment as mentioned
above, surely, recruitment of 11 persons by way of direct
recruitment would be in excess of their quota, but in the same
very para wherein the applicant has mentioned that the sanctioned
strength is 19, he has mentioned that 13 persons are working on
ad hoc basis similarly as the applicant. If that be so, the total
strength cannot be 19, and it has to be more. For lack of proper
particulars, it is not possible to make out if the applicant may
have grievance as regards recruitment of 11 persons by way of
direct recruitment.
5. In totality of the facts and circumstances of this case,
whereas we dismiss this Original Application insofar as the
prayers of the applicant, as reproduced above, are concerned, we
will still permit him to file a fresh Application as regards his
promotion on regular basis by giving correct and proper material
on that behalf. Ordered accordingly."
Mahesh Tyagi in the aforesaid OA had pleaded that he had
been promoted to the post of DLA on ad hoc basis, but pursuant to
the setting aside of the recruitment process the authorities, instead of
issuing a fresh advertisement, had clubbed the 6 vacancies with 5
subsequent vacancies for the post of DLA and the same were to be
filled on the basis of direct recruitment by holding oral and written
examinations. Thirteen officers were working at the post of DLA on
ad hoc basis against the sanctioned strength of nineteen. Mahesh
Tyagi having completed more than ten years as ALA should be given
a preferential right of appointment as DLA, being eligible for
promotion to the said post as he had already worked for three years at
the post of ALA. A written test would curtail his and other ALAs'
chances for promotion. These contentions challenging the direct
recruitment were substantially rejected, albeit giving liberty to file a
fresh OA regarding promotion on regular basis.
7. Shortly, thereafter on 2nd April, 2012, the fourth respondent-Mahesh
Tyagi filed OA No. 1110/2012 on somewhat similar grounds and
pleas as were raised in OA No. 746/2012. The pretext was that
Mahesh Tyagi and other ALAs had already completed more than 10
to 12 years of service at the said post. The Rules had been changed
by introducing requirement of qualifying written examination. Direct
recruitment was a brazen attempt to secure appointment of outsiders.
There were 19 posts in the cadre of DLA and, therefore, the total
number of posts to be filled by direct recruits cannot be more than 10,
whereas 11 posts had been advertised. By the order dated 3rd April,
2012, the Tribunal issued notice in OA No. 1110/2012 returnable on
21st May, 2012. In the meanwhile, it was directed that selection if
made, shall be subject to the outcome of the OA.
8. On 16th May, 2012, a note was prepared by the Ministry of Law and
Justice for filling up of vacancies in Indian Legal Service cadre
stating that out of 121 sanctioned posts in different grades, only 62
incumbents were in position and there were 59 vacancies in different
grades. These vacancies could not be filled up for a long time due to
different administrative reasons. The Secretary (Law) convened a
meeting in his Chamber on 13th May, 2012 to discuss the matter in
which other officers were also present. It was observed and recorded
that certain officers in the Law Commission and Central agency
section in the grade of Joint Secretary, LO, and Senior Government
Advocate were not selected/appointed to the post of Additional
Secretary for last few years. It was felt that action should be taken to
ensure that injustice was undone and the officers were accorded the
higher post of Additional Secretary though on a personal basis. The
note discussed filling up of 14 vacancies in the grade of DLA.
9. This note was approved by Joint Secretary and Legal Adviser on 16 th
May, 2012 with an observation "it is proposed to fill up vacancies, as
far as possible, by promotion of officers in the feeder grades, if necy
(sic. necessary) by seeking relaxation of the Rectt. (sic. Recruitment
Rules). The vacancies resulting to promotions in various grades due
to proposed promotions will be filled in the lowest grades
(ALA/ALO) to the extent possible by direct recruitment after
promoting the eligible officers".
10. On the basis of approval of this note, the Director of the Ministry of
Law and Justice had sent a letter dated 21 st May, 2012 to the
Secretary of the Commission stating that on re-consideration of the
matter, the said department had decided to withdraw the proposal for
direct recruitment of the eleven DLA vacancies. It was requested that
the proposal under reference be treated as withdrawn and no further
action be taken.
11. The Commission, however, did not agree and vide their letter dated
25th May, 2012 informed the Ministry that their proposal for
withdrawal of recruitment for 11 posts of DLA was not found feasible
since recruitment process was at an advance stage and interviews
were scheduled to be held from 28th May, 2012 to 30th May, 2012.
12. Relying upon the letter dated 21st May, 2012, Mahesh Tyagi, the
fourth respondent before us, filed MA No. 1608/2012 in OA No.
1110/2012. The Tribunal, vide order dated 31st May, 2012, after
referring to the letter dated 21st May, 2012 and 25th May, 2012,
directed that declaration of the results would be stayed till 1 st August,
2012. In the meanwhile, the matter could be sorted out by the
Ministry of Law and Justice and the Commission.
13. The Commission, however, was not communicated this stay order
and on 13th June, 2012 declared the results of direct recruits.
14. On 14th June, 2012, the Ministry of Law and Justice informed the
Commission about the stay order and asked them to withdraw the said
result. In view of the stay order, the Commission withdrew the result
declared on 13th June, 2012, vide order dated 22nd June, 2012.
15. Simultaneously, on 20th June, 2012 a detailed note was prepared for
filling up vacant posts in the grade of Deputy Law Officers,
Additional Legal Advisors, Additional Law Officers and DLAs
granting promotion by seeking one-time relaxation of the
Recruitment Rules. The relevant portion of the note dated 20th June,
2012, reads as under:
"3. Deputy Legal Adviser (DLA):
3.1 At present, out of 19 sanctioned posts, there are 14
regular vacancies in the grade of DLA, out of which 13 are
meant for DR and 1 for Promotion.
3.2 Rule 6(2) of RRs of ILS provides that "the post of DLA
shall be filled alternatively by direct recruitment and by
promotion of a member of the Service in ALA."
3.3 Rule 8(1)(iii) of RRs of ILS provides that "a personal
shall not be eligible for promotion to the grade of DLA
unless he has held the duty post in ALA (Grade IV) for a
total period of not less than 3 years".
3.4 Presently, there are 14 regular vacancies in the grade of
DLA which could not be filled up for a long time. It may be
pertinent to mention that 6 vacancies in the grade of DLA were
reported to UPSC in 2005 for filling up through DR. In the
meanwhile, the Government Advocate Cadre was merged into
ILS w.e.f. 28.12.2005 which resulted in a number of court
cases. In pursuance to the Hon‟ble CAT‟s order dated
17.4.2007 in this regard, the ILS cadre was de-merged into
three different cadres i.e. Legal Advisers Service Cadre,
Government Advocates Service Cadre and Law Officers
Service Cadre w.e.f. 10.5.2008. Thereafter, 2 candidates were
appointed as DLA on DR basis on recommendation of UPSC.
However, Hon‟ble CAT, vide their order dated 24.2.2011,
quashed the said selection made for the post of DLA and
directed to make the selection for the post of DLA by issuing
fresh advertisement. In pursuance of this, the services of the
appointed candidates were terminated vide notification dated
1.3.2011. Consequent thereupon, 11 vacancies meant for DR
were reported to UPSC. Subsequently, 2 more vacancies were
reported to UPSC for DR in the grade of DLA. Now, this
Department feels that being a senior level post the officers
with experience in this Department will be more suitable
for appointment to DLA posts to discharge the duties
attached to the post. It has, therefore, been decided with
the approval of Hon'ble MLJ, to fill up the vacant post of
DLAs by promotion rather than by direct recruitment and
to seek one-time relaxation from DOPT / UPSC regarding
the mode of recruitment from DR to promotion as well as
the nature of qualifying service. In view of this decision, we
have requested the UPSC vide our letter dated 25.5.2012
that the proposal of direct recruitment to the post of DLA
may be treated as withdrawn.
3.5. In view of the above, under Rule 14A of RRs, we may
send a proposal to DOPT as well as to UPSC for seeking one-
time relaxation to the RRs for filling up the vacant posts of
DLAs by promotion instead of by Direct Recruitment.
Following is the list of officers in the grade of Assistant Legal
Adviser, who have completed more than five years service in
the grade as on 1.1.2012:
Sl. Name & designation Date of Total
No. of the officers appointment as strength of
(S/Shri) ALA on regular service as
basis ALA/ DLA
(ad-hoc)
1 S.D.B. Chenji 02.08.2000 11 years
2 Dr.V.K. Singh 31.10.2000 11 years
3 G.K. Chakraborty 19.09.2001 10 years
4 R.K. Srivastava 31.08.2001 10 years
5 Mahesh Tyagi 28.08.2001 10 years
6 P.K. Behra 15.10.2001 10 years
7 Devkant 03.09.2001 10 years
8 R.J.R. Kasibhati 17.07.2002 10 years
9 O.P. Bagri 16.01.2003 09 years
10 Ramesh Chander 13.09.2002 09 years
11 O. Venkateswarlu 03.06.2002 10 years
12 Ms.Poonam Suri 04.06.2003 09 years
13 R.S. Verma 11.03.2004 08 years
14 T.K. Malik 13.12.2004 07 years
15 M.N. Singh 13.07.2005 07 years
16 D.K. Behra 23.02.2006 06 years
17 R. Jayalakshmi 04.10.2006 05 years
18 Dr.D.V. Rao 28.09.2006 05 years
3.6 Out of the above officers in the zone of consideration,
the officers mentioned against Sl.No.1 to 7 (who are already
working as DLAs on ad-hoc basis) are likely to be promoted as
Addl. Las by promotion through DPC after relaxation of the
RRs. Therefore, the officers mentioned against Sl.NO.8 to 18
may be considered for promotion as DLAs after one-time
relaxation of RRs from DOPT and UPSC. The remaining
vacancies in the grade may be filled as per normal provisions
of RRs. Of ILS.
3.7. One time relaxation is required for changing the
mode of recruitment from Direct Recruitment to promotion
in the grade of DLA in respect of 11 posts. The concerned
officers have been stagnating in the lower grade for a pretty
long time and are feeling de-motivated and frustrated. This
proposal will remove the causes or frustration and enthuse
them to work with greater motivation and efficiency."
(emphasis supplied)
Under the heading Additional Legal Adviser, it was
mentioned that there were 12 vacancies in the said grade out of which
11 vacancies were meant for promotion and one by direct
recruitment. As no eligible officers were available in the feeder
cadre, the vacancies had been advertised twice. However, there
response to the advertisement from the eligible officers was poor. It
was proposed that vacancies in the cadre of Additional Legal
Advisers would be filled by promotion, rather than by deputation or
direct recruitment from amongst regular as well as ad hoc DLAs by
counting their ad hoc service as DLA and as ALA also if required.
With regard to the posts of Additional Law Officer, it was noticed
that there was only one vacancy in the grade of Additional Law
Officer, which was meant for promotion. Under the heading Deputy
Law Officer, it was stated that there were three sanctioned posts and
there were two regular vacancies and one vacancy was likely to
occur. It was suggested/proposed that vacant post of Deputy Law
Officer may be filled by promotion instead of direct recruitment. The
note was approved at different stages, between 20th June, 2012 and
28th June, 2012.
16. However, when the note was sent to the DoP&T, the same was
returned vide note dated 18th July, 2012 observing that the proposal
submitted was unclear and the Ministry should bring out clearly the
eligibility requirement for appointment to vacant posts in various
grades, particulars of the officers in the feeder grade, the date of the
appointment of the officers in the feeder grade (on ad hoc basis as
well on regular basis separately) for consideration.
17. Thereafter another note was prepared in the month of August, 2012
and sent to DOP&T.
18. The DOP&T accorded their concurrence for relaxation vide the note
dated 9th October, 2012. With reference to the post of DLA, it was
observed:-
"(iii) Deputy Legal Advisors: The Rules prescribed that the post
shall be filled alternatively by DR and the promotion of the
member of the service (Grade-IV). All the 18 officers meet the
requirement of 3 years in ALA. The relaxation to fill up 14
vacancies in the grade of DLA by promotion in relaxation of the
provisions in the method of requirement prescribed in the Rules is
accorded."
19. It is pertinent to mention here that DOP&T vide OM dated 31 st
December, 2010 on the question of amendments and relaxation had
issued the following guidelines:-
"AMENDMENTS AND RELAXATIONS
4.1 Amendment proposals should be sent to this Department
and UPSC in the format as given in Annexure-III. The reasons
for making amendments should be clearly indicated. A copy of
the Recruitment Rules in which amendments are made should
always be enclosed, duly referenced and flagged.
4.2 All Recruitment Rules should contain a "Power to relax"
clause in the covering notification or in the body itself (in the case
of organised services).
4.3 Relaxation of Recruitment Rules is to be resorted to in
respect of a class or category of persons. Relaxation should not
be resorted to in respect of an individual except in cases where an
individual can be treated as a Class or Category of persons.
4.4 Relaxation of rules is to be resorted to on rare occasions.
Such a relaxation should not be a regular feature.
4.5 Before resorting to relaxation of Recruitment Rules, the
Ministries/Departments should explore the feasibility of filling up
a post by other methods of recruitment provided in the rules. In
the case of deputation, the vacancies should have been circulated
in the employment News before consideration of relaxation.
4.6 Relaxation proposals should be sent to this Department
in Annexure-IV after obtaining the approval of at least Joint
Secretary level officer in the Ministry/Department concerned."
The aforesaid guidelines state that relaxation of Rules was to be
resorted on rare occasions and should not be a regular feature. More
importantly, it was stated before resorting to relaxation, the
Ministry/Departments must explore the feasibility of filling up the
posts by other methods of recruitment provided in the Rules. This
aspect and the guidelines were ignored while according concurrence.
Appositely, the selection process for direct recruitment for the vacant
posts of DLA had commenced, the written examination and
interviews had been held, and by mistake, even the final result had
been declared. In spite of repeatedly being asked, counsel appearing
for the Union of India could not justify and explain how the
conditions stipulated in paragraph 4.5 of the OM dated 31 st
December, 2010 were satisfied. Indeed, no such explanation is
possible and can be given.
20. After obtaining concurrence of DOP&T, proposal dated 17th October,
2012 was sent by the Ministry to the Secretary of the Commission.
The said letter reads as under:-
"Subject: One-time relaxation of the ILS Rules, 1957 in
connection with filling up of vacancies in the grade of Additional
Legal Adviser, Additional Law Officer, Deputy Legal Adviser
and Deputy Law Officer.
Sir,
I am directed to state that, with the approval of Hon‟ble
Minister of Law and Justice, a proposal was sent to DoPT on the
subject mentioned above. DoPT raised some queries stating that
the said proposal is not clear. Accordingly, a clarification was
furnished to DoPT and the DoPT conveyed the following
approvals in filling up vacancies in the grade of Addl. L.A., Addl.
L.O., DLA and DLO by promotion during 2012-13 with one-time
relaxation of the ILS Rules, 1957. Copies of the correspondences
(ID Notes) made with the DoPT are enclosed for ready reference:-
(i) Additional Legal Adviser: The relaxation in residency period in
respect of officers at S.No.1 to 5 [of para 3(I) of page 7/notes],
who have been regularly appointed as DLA is approved. Officers
at Sr. No. 6 to 18 are appointed as DLA on ad-hoc basis and
therefore not eligible for promotion to the grade of Additional
Legal Adviser as per extent Rules. Ministry of Law may in the
first instance take action to regularize the services of these
officers in the grade of DLA.
(ii) Additional Law Officer: The relaxation in eligibility service in
respect of Shri A.K. Upadhyay, DLO, to consider him for
promotion against the vacancy in the grade of Additional Law
Officer is approved.
(iii) Deputy Legal Adviser: The Rules prescribed that the post shall be
filled alternatively by DR and by promotion of the member of the
service (Grade-IV). All the 18 officers meet the requirement of 3
years in ALA. The relaxation to fill up 14 vacancies in the grade
of DLA by promotion in relaxation of the provisions in the
method of recruitment prescribed in the Rules is accorded.
(iv) Deputy Law Officer: The proposal to consider the two officers in
the grade of ALO to consider them for promotion to the two
vacancies in the grade of DLO in relaxation of the provisions of
the Rules is approved.
2. Rule 14-A of the RRs of ILS Rules, 1957 (Annexure-II)
provides that "where the Central Government is of the opinion
that it is necessary or expedient so to do, it may, by order, for
reasons to be recorded in writing and, in consultation with the
Union Public Service Commission relax any of the provisions of
these rules with respect to any class or category or persons or any
posts.
3. Hence, UPSC is requested to convey their concurrence to the
proposal for one-time relaxation of the ILS Rules, 1957 for filling
up the vacancies in the grade of Addl.L.A., Addl. L.O., DLA and
DLO, as agreed to by the DoPT vide their I.D. Note No.
AB.14107/34/2010-Estt. (RR), dated the 9th October, 2012."
21. The case was processed by the Commission and on the question of
relaxation in the case of DLA, it was observed and recorded by the
Commission as under:-
"3. Deputy Legal Adviser - PB-3-Rs.15600-39100 + Pay of
Rs.7600/-
3.1 Rule 6(2) of the ILS Rules provides that the post of Deputy
Legal Adviser shall be filled alternatively by direct recruitment
and promotion of a member of the service. In terms of Rule
81(iii) of the ILS Rules, a person shall not be eligible for
consideration for promotion to the Grade of Deputy Legal
Adviser unless he has held the duty post in the grade of Assistant
Legal Adviser (Grade-IV) for a total period of not less than 3
years.
3.2 At present, out of 19 sanctioned posts, there are 14
regular vacancies in the grade of Deputy Legal Adviser out of
which 13 are meant for direct recruitment and 01 for promotion.
These vacancies could not be filled up for a long time. 06
vacancies were reported to UPSC in 2005 which resulted in a
number of court cases. In pursuance of the Hon‟ble CAT‟s order
dated 17.4.2007, the ILS cadre was de-merged into different
cadres i.e. Legal Advisers Service Cadre, Government Advocates
Service cadre and Law Officers Service cadre w.e.f. 10.5.2008.
Thereafter 6 candidates were appointed as DLA on DR basis on
the recommendations of the UPSC. However, the Hon‟ble CAT
vide order dated 24.2.2011 quashed the said selection and
directed to make the selection for the post of DLA by issuing a
fresh advertisement. In pursuance of this, the services of the
appointed candidates were terminated vide notification dated
1.3.2011. Consequent thereupon 11 vacancies meant for DR were
reported to the UPSC. Subsequently 2 more vacancies were
reported to UPSC for DR. Now, the department feels that being a
senior level post, the officers with experience in the department
will be most suitable for appointment to the post of DLA to
discharge the duties attached to the post. It has, therefore, been
decided with the approval of the Hon‟ble Minister for Law &
Justice to fill up the vacant posts of DLA by promotion rather
than by direct recruitment and to seek one time relaxation from
DOPT /UPSC regarding the mode of recruitment from DR to
promotion as also the relaxation in the qualifying years of service.
In view of this decision, the Commission was requested vide
letter dated 25.05.2012 to treat the Ministry‟s proposal for direct
recruitment of 13 vacancies in the grade of DLA as withdrawn.
In the circumstances, the Ministry has requested for relaxation in
the mode of recruitment from direct recruitment to promotion and
has furnished the details of 18 officers who are to be considered
for promotion to the grade of Deputy Legal Adviser. All these
officers have completed the qualifying years of service in the
grade of Assistant Legal Adviser."
In the summing up paragraph the Commission had stated with
reference to the post of DLA as under:
"(iii) Division of 14 vacancies in the grade of Deputy Legal
Adviser from direct recruitment quota to promotion quota in view
of the fact that the feeder category officers in the grade of
Assistant Legal Adviser have put in more than eight years of
service against the three years qualifying service prescribed in the
RRs and have been stagnating for quite some time and the
Ministry has failed to fill the DR quota vacancies. The above is
covered under items 3(a)(i) and (ii) of the Policy Guidelines
decided upon by the Commission."
22. Thereafter, the Commission issued a formal order dated 23rd
November, 2012 granting one-time relaxation of the Rules for filling
up vacancies in the grade of Additional Legal Advisor, Additional
Law Officer, DLA and Deputy Law Officer.
23. By advertisement dated 13th March, 2013, the Commission informed
the petitioner and other candidates that recruitment to 11 posts of
DLA vide advertisement published in the employment newspaper and
in the leading newspapers dated 3rd September, 2011 had been
cancelled. The petitioners herein thereupon filed an OA
Nos.1925/2013 and 1165/2013 praying for quashing of the
cancellation notice dated 13th March, 2013 published by the
Commission, and withdrawal of requisition dated 21 st May, 2012 sent
by the Ministry of Law and Justice and issued by the Commission.
They had also challenged the order dated 7th December, 2012 passed
by the Commission granting one time relaxation and for direction that
the vacant posts of the DLA under the direct recruitment quota should
be filled as per the Rule position without granting one time relaxation.
24. The officers of the Commission, who had granted the permission or
approval for grant of relaxation, were not aware of the fact that their
recruitment unit had initiated process of direct recruitment for
selection and appointment to the 11 vacant posts of DLA. When this
factum came to their notice, they took up the said issue and had raised
objections by writing to the Ministry. In the note dated 16th April,
2013 written by the Commission, it was stated as under:-
"1. This files(sic) relates to convening of a DPC to consider
promotions to the post of Deputy Legal Adviser (Grade III of
Indian Legal Services). Group A, PB-3, Rs.15600-39100+Grade
Pay of Rs.7600.
2. In this case, Hon‟ble Member, Shri A.P. Singh stands
nominated to preside over the meeting of the DPC. The DPC was
fixed on 14.3.2013 and has since been postponed in view of the
order of the Hon‟ble CAT Chandigarh Bench at Page 115/Cor. In
this case, the Ministry has sought the approval of the Commission
to the diversion of 14 direct recruitment vacancies to promotion
quota. The Commission approval, inter alia, to the diversion of
14 direct recruitment vacancies to promotion quota in the
Communicated(sic) to the Ministry Vide communicated (sic)
letter No.11/4/(4)/2012-AP-4 dated 7th December, 2012.
3. It would be relevant to point out in this connection that the
Ministry had withdrawn the direct recruitment requisition
furnished by them at a very late stage i.e. after the interviews
for the posts were held and recommendations were
communicated to the Ministry and the selected candidates. It
is also pointed out that the Ministry at the time of seeking
relaxation of RRs did not place the full facts of the case i.e. the
fact of the Ministry withdrawing the direct recruitment
proposal after the selection to the post was made. Had this
fact been brought to the notice of the Commission, perhaps,
the Commission may not have approved the relaxation to the
diversion of vacancies from direct recruitment quota to
promotion quota.
4. FR is a letter received from the Ministry in response to our
letter dated 19th March, 2013 informing the Ministry about the
postponement of the DPC meeting fixed for 14th March, 2013 in
view of the court direction. The Ministry has stated that perusal
of the Hon‟ble CAT, Chandigarh Bench order dated 14th
February, 2013 indicates that the Tribunal has observed that "the
Respondents may consider the advisability of refraining from
making any promotion in the meantime." This(sic), there is no
stay order passed. The Ministry has, therefore, requested the
Commission to convene a meeting of the DPC at any early date.
A view will be taken whether to seek leave of the Tribunal for
making promotions to the post of DLA subject to final outcome to
the OA at the appropriate stage after recommendations of the
commission are available.
The contention of the Ministry that there is no stay order in the
case is not correct the Hon‟ble Tribunal‟s Observation is a
polished language directing the Respondent not to make any
promotion in the meantime. If the DPC is held. The same may
attract contempt of court and as such the DPC may not be
convened till the OA is finally decided by the Hon‟ble Tribunal.
It would be worthwhile to note that the OA has been filed by one
of the candidates recommended for appointment to the post on the
basis direct recruitment proposal after the selection in the case
had attained finality.
7. In light of the foregoing, it is suggested that was(sic) may
inform the Ministry that the DPC cannot be held till the OA
No.191/CH/2013 is finally decided by the Hon‟ble Tribunal."
(emphasis supplied)
25. Thereafter, letter dated 7th May, 2013 was written by the
Commission, which reads:-
"I, am directed to refer to your letter No. A-600011/23/2013-
Admn.I(LA) dated 4th April, 2013 on the above subject and to
state that in OA No. 1110/2012 filed before Hon‟ble CAT,
Principal Bench, New Delhi in the matter of recruitment to the
post of Deputy Legal Adviser, the Ministry of Law and Justice
had taken a stand before the Hon‟ble Tribunal that the requisition
for direct recruitment to the post of Deputy Legal Adviser had
been withdrawn by the Ministry specifically when the
Commission vide their letter dated 25.05.2012, had not agreed to
such withdrawal of requisition by the Ministry. The
Commission's displeasure in this regard has been conveyed to
the Ministry vide D.O. letter No. 1/25(41)2012-Spl.II dated
26.02.2013.
2. It is also brought out in this connection that at the time of
seeking approval of the Commission to the relaxation of the
Recruitment Rules for filing up various posts by promotion in
the Indian Legal Service, the Ministry had not apprised the
Commission of the full facts of the case i.e. the fact of having
placed a requisition to the Commission's office for direct
recruitment to the post and the details of OA No. 1110/2012
filed before Hon'ble CAT Principal Bench.
3. The O.A. No. 191/CH/2013 has been filed by Shri Rajinder
Singh Sra, one of the recommended candidates for appointment to
the post of Deputy Legal Adviser by direct recruitment wherein
he has challenged the diversion of vacancies from direct
recruitment quota to promotion quota.
4. In the light of the foregoing, it has been decided by the
Commission not to hold the DPC for considering promotion
to the post of Deputy Legal Adviser pending final
adjudication of OA No. 191/CH/2013 by the Hon'ble CAT,
Chandigarh Bench."
(emphasis supplied)
26. Earlier the Secretary of the Commission had written letter dated 26th
February, 2013 to the Secretary Ministry of Law and Justice, which
reads:-
"Please refer to the OA No. 1110/2012 filed in CAT, Principal
Bench, New Delhi with respect to the recruitment of Deputy
Legal Adviser.
2. I wish to draw your attention to Hon‟ble CATs order dated
19.12.2012 wherein the Hon‟ble Tribunal had observed as
follows:
"4. In view of the above and also keeping in view that after
the requisition being withdrawn by the second respondent,
this application has lost its efficacy. The application, is,
therefore, dismissed as withdrawn with the above order."
3. The Commission, keeping in view the fact that the Ministry of
Law & Justice was not interested in recruiting the Deputy Legal
Advisers and because of the Hon‟ble Tribunal‟s above mentioned
order, has decided to cancel the recruitment.
4. The Commission is of the view that the Ministry of Law &
Justice should not have taken a stand before the Hon'ble
Tribunal that the requisition for recruitment to DLA had
been withdrawn by the Ministry especially when the
Commission, vide letter dated 25.5.2012, had not agreed to
such withdrawal of requisition by your Ministry. The
Ministry also did not think it proper to refer back to the
Commission your disagreement with the Commission's view.
I have accordingly been directed by the Commission to
communicate to you their displeasure about the manner in
which the Ministry of Law & Justice had dealt with the
matter."
(emphasis supplied)
27. This was answered by letter dated 6th March, 2013 written by the
Joint Secretary and Legal Adviser of the Law Ministry to the
Commission stating that as per the Constitution, in case of
disagreement with the recommendation of the Commission, Article
323(1) of the Constitution would be applicable. Once the Law
Ministry had written the letter withdrawing their proposal for direct
recruitment, nothing was required.
28. In these circumstances, the Commission in their reply to OA No.
1925/2013 filed by Praveen Srivastava had stated:-
"3. That in this connection, it is stated that UPSC was in the
midst of selection process for recruitment to 11 posts of Deputy
Legal Advisor Ministry of Law & Justice vide it‟s letter dated 21 st
May, 2012 (copy enclosed) conveyed the decision of the
Government to withdraw the proposal and requested that the
proposal under reference may be treated as withdrawn and no
further action be taken on the requisition for filling up the
aforesaid posts by Direct recruitment. It was further informed
that this decision has been taken by the Government after due
deliberations to fill up the vacancies of DLA falling for Direct
Recruitment Quota by promotion in view of the acute stagnation
in the grade of Assistant Legal Advisor. The matter was
considered in the Commission and UPSC vide letter dated 25th
May, 2012 (Copy enclosed) regretted to accede to the request for
withdrawal of the requisition as the date of interview were fixed.
The Commission also expressed displeasure about the manner in
which the matter has been handled by Ministry of Law & Justice,
Department of Legal Affairs. The result of the interview was
declared by the Commission on 13th June, 2012. However, the
Commission had to withdraw the result considering that no
purpose would be served as the concerned Department withdrawn
the proposal and requested that the proposal under reference may
be treated as withdrawn and no further action be taken on the
requisition for filling up the aforesaid posts by Direct recruitment.
4. That meanwhile the Ministry of Law & Justice, Department of
Legal Affairs, had sought the approval of the Commission inter
alia for diversion of 14 DR vacancies to promotion quota in the
Grade of Deputy Legal Adviser (Gr.III of the ILS) PB3-15600-
39100-GP of 7600. After examination of the proposal approval
of the Commission to the diversion of vacancies from DR quota
to promotion quota was conveyed to the Ministry vide
Commission‟s letter dated 7.12.2012 (Copy enclosed).
5. Subsequently, a proposal was received from Ministry of Law
and Justice for convening a meeting of the DPC to consider
promotion to the post of Deputy Legal Adviser against the
diverted vacancies. The DPC in this case was fixed on 14.3.2013.
However, on receipt of copy of the order dated 14.2.2013 of the
Hon‟ble CAT Chandigarh in OA No.191/CH/2012 filed by Shri
Baljinder Sra staying the promotion till further orders, the
meeting of the DPC has been postponed till further orders. The
Ministry of Law and Justice have been provided a copy of the
order of the Hon‟ble Tribunal while intimating the postponement
of the DPC. It is pertinent to mention here that Ministry of
Law and Justice did not make any reference to the requisition
placed by them separately for making direct recruitment to
the post nor did they intimate that they have withdrawn the
direct recruitment requisition after the selection to the post by
way of direct recruitment have been made."
(emphasis supplied)
29. Realising the stand taken by the Commission, the Ministry of Law
and Justice by their letter dated 30th September, 2013 had called upon
the Secretary of the Commission to suitably modify their reply filed
to OA No. 1925/2013 and 1165/2013. This did not happen and the
Commission has stuck to their stand. Even before us, the
Commission has filed an affidavit and written synopsis reiterating
their position. It is stated that the Commission had expressed their
displeasure and the manner in which the issue had been handled by
the Ministry of Law and Justice.
30. We also have before us a copy of the joint minutes of meeting dated
9th December, 2015 in the chamber of the Joint Secretary of the
Commission in compliance with the order dated 26th November, 2015
passed by the High Court in the present writ petition. The
Commission in their stand has recorded in the said minutes that they
should not be made a party to any arrangement or mechanism, which
were contrary to and beyond the mandate of the Rules and procedure
prescribed. It was restated that the Ministry at the time of asking for
relaxation had not made any reference to the requisition placed by
them separately for making direct recruitment to the posts nor did
they intimate that they had withdrawn the direct recruitment
requisition after the selection to the posts by way of direct recruitment
had been made. The minutes finally record that no consensus could
be reached in the matter as proposal to adjust six petitioners against
direct recruitment vacancies by the Department, was not covered
under the notified Recruitment Rules and was beyond the binding
mandate and prescribed procedure adopted by the Commission.
31. It is in the light of the aforesaid that we have to determine and decide
whether the petitioners are entitled to any relief, which they have
prayed for in the OAs and which have been rejected.
32. The impugned order holds that the cancellation notice dated 13 th
March, 2013 issued by the Commission was valid as the Government
had exercised the power of relaxation under Rule 14A of the Rules
and the posts which were to be filled by way of direct recruitment
were to be filled by way of promotion from those in the cadre of
ALAs. The power of relaxation under Rule 14-A having been
exercised in view of the stagnation, amounts to relaxation of
condition of service and relaxation of the relevant eligibility
conditions. The said relaxation was based upon internal exercise
leading to the decision that 14 vacant posts of DLAs need to be filled
up by promotion. It was not for the tribunal to decide whether or not
the decision to relax Rules, to enable promotion of internal candidates
was justified or not. At the same time it was observed that relaxation
was necessary due to stagnation, even if the select list of direct
recruits was published. Once relaxation was granted in accordance
with the Rules the same could not be challenged. The power of
relaxation itself was not exercised arbitrarily and in violation of
Articles 14 and 16 of the Constitution. The petitioners herein did not
have any right to seek appointment but only right to consideration and
once the requisition itself was withdrawn by the Ministry of Law and
Justice, appointments could not have been made. The Commission
had erred as declaration of results was stayed vide order dated 31 st
May, 2012 passed in MA No. 1608/2012 in OA No. 1110/2012 filed
by the fourth respondent-Mahesh Tyagi. Such invalid declaration of
result would not confer any rights on the petitioners to seek
appointment.
33. It is not disputed and under challenge that many of the promotee
ALAs in whose favour relaxation was granted had either not appeared
in the open selection or having appeared did not qualify and get
selected. As per Rule 6(2) of the Rules, the posts in the cadre of DLA
have to be filled up alternatively by direct recruitment and by
promotion from the cadre of ALA. As per Rules, but for the
relaxation granted under Rule 14A, the private respondents, i.e.,
promotee ALAs were not eligible and had not qualified and could not
have been appointed as DLA. There is case law that quota prescribed
in the Recruitment Rules must be strictly adhered to and followed. In
V.B. Badami and Others versus State of Mysore and Others, (1976)
2 SCC 901 referring to the quota rule, the Supreme Court had
elucidated that where the Rules prescribe quota between direct
recruits and promotees, confirmation or substantive appointments can
only be in respect of clear vacancies in the permanent strength of the
cadre. Further, direct recruitment is possible only by a competitive
examination, which is a prescribed procedure and promotional
vacancies can be filled either by selection or on the principle of
seniority-cum-merit. Promotions in excess by promotional quota
which may not be illegal but irregular, would not confer upon the
promotees right to claim or hold the promotional post unless
vacancies fall in their quota. Promotees, who occupy vacancies
within the quota of direct recruits, either will be reverted or absorbed
in the vacancies within their quota. The Constitution Bench in Direct
Recruit Class-II Engineering Officers' Association and Others
versus State of Maharashtra and Others, AIR 1990 SC 1607,
affirmed that when the Rules provide for appointment from more than
one source, it is permissible to fix ratio of recruitment from different
sources and ordinarily this must be strictly followed. If it becomes
impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the ends of situation. This
judgment also dealt with the situation where the quota rule breaks
down with which we are not concerned in the present case.
34. This brings us to the core issue and the question relating to power of
relaxation and exercise of the said power in the present case. Rule
14A reads as under:-
"14-A. POWER TO RELAX: Where the Central
Government is of the opinion that it is necessary or
expedient so to do, it may, by order, for reasons to be
recorded in writing and, in consultation with the Union
Public Service commission relax any of the provisions of
these rules with respect to any class or category or persons
or any posts."
The aforesaid Rule incorporates a relaxation clause, which is to
be found in many a service rules. There are several decisions which
draw a distinction between power to relax "conditions of service" and
"rules of recruitment" holding that the former is permissible but
attempts to relax "rules of recruitment" would fall foul for it would
result in abrogation or amendment of the Rules. (See Keshav
Chandra Joshi and Others etc. versus Union of India and Others,
(1992) Supp. 1 SCC 272 and a decision of a Division Bench of this
Court in Om Prakash and Others versus Union of India and Others,
LPA No. 71/1973, decided on 26th August, 1980).
35. In Suraj Prakash Gupta and Others etc. versus State of Jammu and
Kashmir and Others, AIR 2000 SC 2386, referring to the power of
relaxation it was observed that some relaxation rules permit
relaxation of "conditions of service" and others permit "relaxation of
Rules". Relaxation when permissible in a particular case, does not
refer to a particular person, but is meant to pertain to an event,
situation or circumstances. Power of relaxation could be therefore
exercised in favour of a group. This decision again emphasises that
the courts would require strict conformity with the recruitment rules
for both direct recruits and promotees. Relaxation is an exception and
not the norm to be resorted to as a matter of routine.
36. The respondents, on the other hand, have referred to a Division Bench
decision of this Court in Central Engineering Service Class-I(DR.)
Association and Others versus Union of India and Others, 156
(2009) DLT 300 (DB) wherein after referring to power of relaxation
given under Rule 25 of the Central Engineering Service Group A
Recruitment Rules, 1954, it was observed that the said power was
extremely wide and enabled the Central Government to relax the
provisions in respect of a category or class of persons, though only in
consultation with UPSC. Albeit relaxation power must be
distinguished from the right and power to amend. Whether relaxation
of quota was possible by executive instructions without amendment
of the recruitment rules, it was held, was difficult to answer in the
absolute yes or no. The Division Bench observed that a middle path
might be justified and power of relaxation as a one-time measure
could be given in the exigencies of the given situation. The
respondents have similarly made reference to judgments in Kuldeep
Kumar Gupta and Others versus HPSEB and Others, (2001) 1 SCC
475, Indian Railways Class-II Officers Federation and Another
versus Anil Kumar Sanghi and Others, (2002) 8 SCC 98, H.L.
Bhasin and Others versus A.K. Das and Others, (1983) 4 DRJ 206
and Dinesh Kant Srivastava versus State of U.P., (2006) 6 AWC
5865 All.
37. In the present factual matrix, we are not inclined to go into the
question of amendment vis-à-vis relaxation, but would base our
decision on the exercise of power of relaxation. The decisions quoted
above highlight that power of relaxation cannot be used wantonly and
arbitrarily. This power has to be exercised in a reasonable manner for
just and good reasons and in accordance with law, i.e., by following
and adhering to the prescribed procedure. Pertinently Rule 14A
requires reasons to be recorded in writing and consultation with the
Commission, i.e., Union Public Service Commission, before the
decision is taken to relax any of the provisions of the Rules. Power of
relaxation is granted to enable the Government to deal with difficult
and egregious situations, and is not a power to be exercised to
appease one class or group at the expense of the another. It is not a
tool or enabling provision to placate those who can be heard and have
the benefit of airing their grievance, to rob and deny appointments to
those who are yet to enter the service, and are in that way outsiders
and, therefore, unable to have equal access to voice their grievance
and cause.
38. In Keshav Chandra Joshi (supra), the Supreme Court emphasised on
two aspects. Firstly, consultation with the Commission when statedly
required was mandatory by construing the word "may" to mean
"shall". This consultation must be before granting exemption or
relaxing operation of the Rule. Secondly, it must be shown that the
relaxation was just and equitable and not exercised arbitrarily,
whimsically, and capriciously. It should be shown that the operation
of the Rules regarding "conditions of service" was causing undue
hardship in particular cases. The courts, no doubt, cannot substitute
their satisfaction for the satisfaction of the Government, but they
would exercise the power of judicial review in case there is an error
or fault in the decision making process, for all administrative
decisions are amenable to judicial scrutiny.
39. Consultation has to be meaningful and should serve the intended
purpose. Consultation involves process in which the material facts
and points are referred to and considered to evolve and reach a
satisfactory answer. If a power can be exercised only after
consultation, then, the consultation should be informed, conscious,
effective, and purposeful. The efficacy and mandate of consultation
is negated and denied when the relevant and material facts for due
deliberation are not disclosed by one party to the other. The
consultee must express his opinion after due consideration of the
matter on relevant facts and quintessence (see State of Gujarat and
Another versus Gujarat Revenue Tribunal Bar Association and
Another, (2012) 10 SCC 353 and other cases referred to in paragraph
34 of the said decision). The word "consult" means discussion and
deliberation and when consultation is between two different
authorities, there is an implied requirement which stipulates that
necessary information must be given to the consultee to enable him to
render advice. Correct and informed advice and opinion cannot be
expressed unless necessary facts relevant to the issue and question are
disclosed. The Supreme Court in Union of India versus
Sankarchand Himmatlal Sheth and Anothe, (1977) 4 SCC 193
referred to the judgment of the Madras High Court in R. Pushpam
and Another versus State of Madras, AIR 1953 Madras 392 to
observe that the word "consult" implies a conference of two or more
persons and an impact of two or more minds in respect of a topic. It
confers and produces a mutual impact, which is not possible unless
upon consideration of full and informed facts for the said facts,
constitute the source and the foundation of the final decision.
40. For the reasons, which are apparent from the facts and discussions
above, the exercise of power of relaxation in the present case would
faulter and has to be struck down on the ground of error in the
decision making process. The relaxation granted in the present case
is arbitrary and whimsical. We would, at the risk of some repetition,
like to elaborate. As noticed above, selection for six posts of DLA by
direct recruitment was initiated in July, 2007. ALAs had then
obstructed and intervened in the selection process though they were
not eligible, when their names were recommended by the Ministry on
the pretext that they were better qualified than the shortlisted
candidates. This selection process was struck down by the Tribunal
with the direction that a fresh advertisement be issued for selection to
the post of DLA. On the basis of the requisition made by the
Ministry, advertisement dated 3rd September, 2011 was published by
the Commission for filling up 11 posts of DLA through direct
recruitment. The Commission had conducted the written examination
on 27th November, 2011 and results were declared on 3rd February,
2012. Several ALAs had participated and were unsuccessful in the
open competition.
41. Immediately on start of the process for direct recruitment, attempts
were made to stall the said selection by filing of repeated OAs before
the Tribunal. OA No. 746/2012 filed by Mahesh Tyagi, the fourth
respondent before us, was substantially dismissed by the Tribunal
vide order dated 7th March, 2012. Pursuant to liberty granted, the said
respondent filed another OA No. 1110/2012 on similar grounds.
42. Simultaneously, after the open selection process had commenced and
even the results of the written examination were declared on 3 rd
February, 2012, pursuant to a written note in May 2012 a cadre
restructuring exercise was started by the Ministry of Law and Justice
perceptively not only for the post of DLA, but for other posts like
Additional Legal Adviser, Additional Law Officer and Deputy Law
Officer. To restrict such exercise to the posts of DLA would have
raised questions. Albeit, the objective was clear, for attempt was
made to stop the selection process by writing letter dated 21 st May,
2012 to the Commission, which was declined and rejected by the
Commission on 25th May, 2012. The letter dated 21st May, 2012 was
written even before relaxation under Rule 14A was approved and
granted. Till then, the Commission had not been consulted or even
sounded. Ministry wrote to the DoP&T for the first time for
relaxation under the Rule 14A on 23rd June, 2012. The DoP&T did
not agree and had asked the Ministry to clearly bring out the
eligibility requirement for appointment to vacant posts in various
grades, particulars of officers in feeders grade, etc. Thereafter,
another note was prepared in August, 2012. DoP&T gave their
concurrence for relaxation vide note dated 9th October, 2012
observing that relaxation was granted to fill up 14 vacancies in the
grade of DLA by promotion. What is missing from the said
discussion and notes is reference to the DoP&T‟s OM dated 31 st
December, 2010, which has been quoted above and relates to the
question of amendment and relaxation. In paragraphs 4.4 and 4.5, the
O.M. stipulates that relaxation has to be resorted to on rare occasions
and before resorting to relaxation, the Ministry/Departments should
explore feasibility of filling up of the posts by other methods of
recruitment provided in the Rules. OMs are executive instructions
which ensure objectivity and fairness and strike at arbitrary decisions
and actions, which favour one class and deprive or impinge on the
rights of others. They ensure uniformity and curtail favouritism and
nepotism.
43. It is apparent and clear that consideration for grant of relaxation under
Rule 14A with the Commission in the present case did not take into
account and consider the most important and relevant factor, i.e., the
process for direct recruitment had reached its final stage after holding
the written examination, interviews etc., and in fact the Commission
had declared the final select list. The factum that the Commission by
mistake had declared the said results for the Tribunal had issued a
restraint order, would not make any difference for the issue is not
whether the results were declared but whether the selection by way of
direct recruitment was possible and eminent and, therefore, this
aspect and circumstance was required to be considered and given
weightage before power of relaxation was exercised. The failure and
absence of consideration of the said factual position would be an error
in the decision making process, for a relevant and important factor
which was germane and apposite for reaching the right decision in
terms of the OM dated 31st December, 2010 was deliberately and
intentionally ignored. It is in this context that we have referred to the
correspondence exchanged between the Commission and the Ministry
and the disbelief and angst expressed by the Commission. For the
sake of clarity, we record that the Commission during consultation
process while examining the question of relaxation was not told and
informed about the process for direct recruitment which had
commenced in 2011 and had reached the stage of declaration of
results. This fact was concealed and withheld from the relevant
unit/department of the Commission even though it had a vital and an
significant bearing. The Commission may not have accepted the
recommendation for relaxation made by the Ministry in the aforesaid
circumstances especially in light of their letter dated 25 th May, 2012
refusing to stop and rejecting the request of withdrawal of the
recruitment process.
44. The contention of the respondents relying upon Article 315 to the
effect that Commission is recommendatory body or their decisions
are not binding and at best in case of disagreement, Article 323(1) of
the Constitution would become applicable, is neither here nor there.
We are not concerned with these aspects, when we examine the
question of error in the decision making process. What is relevant and
of significance is whether relevant factors were taken into
consideration or were deliberately withheld and not informed for
effective and an informed consultation and decision. Failure to reveal
and state the relevant facts on record have deprived and denied a
consultative decision, which takes into account relevant facts and thus
renders the decision of relaxation vulnerable and bad in law. The
Rule conferring the power of relaxation posits and requires
consultation which is mandatory and not merely a formality.
45. The respondents have highlighted that there was stagnation in ALA
cadre and, therefore, the official respondents were justified in
exercising power of relaxation. This argument would not carry
weight as we are not examining the aforesaid reason and indeed the
Court would not substitute its own opinion, but are concerned with
the question whether the procedure followed and the decision for
grant of relaxation was in accordance with law. We have referred to
the file notings in some detail to examine the issue of erroneous
"decision making process". The noting in paragraph 14 above would
indicate that ALAs who were working as DLAs on an ad hoc basis
were likely to be promoted as Additional Law Officers after
relaxation of Rules. The officers, i.e. the ALAs, mentioned at serial
Nos. 8 to 18 were being granted direct benefit by withdrawing the
process for direct recruitment and thereby encroaching upon the right
of the petitioners for being considered for appointment. We would
accept the argument that the stagnation of ALAs working as ad hoc
DLAs and their promotion is connected with the relaxation which has
been granted. However, it would be wrong to ignore to refer to
stagnation and the years or length of service of ALAs in isolation,
without reference to the past history, including the litigation etc.
stalling the recruitment process initiated in 2007 and 2011. The
ALAs were involved and parties to the said litigation. These facts
which were vital and relevant and should have been given due
weightage and consideration were not mentioned and recorded in the
consultative process of relaxation, which became a one-sided affair.
Stagnation etc. was an aspect to be considered with the mandate and
stipulations mentioned in the OM dated 31st December, 2010 and
other facts, for a just and reasonable decision.
46. For the same reason, the contention of the respondents that the
petitioners have no right or claim for appointment is misconceived for
the petitioners do not claim any such right. The petitioners claim
right to be considered for appointment, which cannot be denied by the
State acting in an arbitrary manner. Constitution Bench in
Shankarsan Dash versus Union of India, (1991) 3 SCC 47, has held
that it is not necessary for the State to fill up the notified vacancies
even when adequate number of candidates are found fit, for the
candidates have no indefeasible right to appointment. The
notification or advertisement is only an invitation to qualified
candidates to apply for selection. However, this does not mean that
the State has a licence to whimsically deny appointment by not filling
up vacancies. The decision not to fill up a vacancy should be for
appropriate and good reasons. It has to be taken bonafidely. We have
followed and applied the aforesaid ratio and find that the case of the
respondents would falter and fail, as the power of relaxation has not
been exercised in accordance with law. Thus, the foundation and
basis for non-appointment collapses. The petitioners would be
covered by the said ratio and are entitled to be considered for
appointment as DLAs.
47. The said legal position cannot be doubted and is not in debate. In
East Coast Railway and Another versus Mahadev Appa Rao and
Others, (2010) 7 SCC 678, the Supreme Court had observed:-
"13. A Constitution Bench of this Court in Shankarsan
Dash v. Union of India[(1991) 3 SCC 47 : 1991 SCC (L&S) 800 :
(1991) 17 ATC 95] had an occasion to examine whether a
candidate seeking appointment to a civil post can be regarded to
have acquired an indefeasible right to appointment against such
post merely because his name appeared in the merit list of
candidates for such post. Answering the question in the negative
this Court observed: (SCC pp. 50-51, para 7)
"7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of candidates are
found fit, the successful candidates acquire an indefeasible right
to be appointed which cannot be legitimately denied. Ordinarily
the notification merely amounts to an invitation to qualified
candidates to apply for recruitment and on their selection they do
not acquire any right to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal duty to fill up all or
any of the vacancies. However, it does not mean that the State has
the licence of acting in an arbitrary manner. The decision not to
fill up the vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled up, the
State is bound to respect the comparative merit of the candidates,
as reflected at the recruitment test, and no discrimination can be
permitted. This correct position has been consistently followed by
this Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC
220 : 1973 SCC (L&S) 488] , Neelima Shangla v. State of
Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder
Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S)
174] ."
14. It is evident from the above that while no candidate acquires
an indefeasible right to a post merely because he has appeared in
the examination or even found a place in the select list, yet the
State does not enjoy an unqualified prerogative to refuse an
appointment in an arbitrary fashion or to disregard the merit of
the candidates as reflected by the merit list prepared at the end of
the selection process. The validity of the State's decision not to
make an appointment is thus a matter which is not beyond judicial
review before a competent writ court. If any such decision is
indeed found to be arbitrary, appropriate directions can be issued
in the matter.
XXXXX
16. Applying these principles to the case at hand there is no
gainsaying that while the candidates who appeared in the
typewriting test had no indefeasible or absolute right to seek an
appointment, yet the same did not give a licence to the competent
authority to cancel the examination and the result thereof in an
arbitrary manner. The least which the candidates who were
otherwise eligible for appointment and who had appeared in the
examination that constituted a step-in-aid of a possible
appointment in their favour, were entitled to is to ensure that the
selection process was not allowed to be scuttled for mala fide
reasons or in an arbitrary manner.
17. It is trite that Article 14 of the Constitution strikes at
arbitrariness which is an antithesis of the guarantee contained in
Articles 14 and 16 of the Constitution. Whether or not the
cancellation of the typing test was arbitrary is a question which
the Court shall have to examine once a challenge is mounted to
any such action, no matter the candidates do not have an
indefeasible right to claim an appointment against the advertised
posts.
18. What then is meant by arbitrary/arbitrariness and how far can
the decision of the competent authority in the present case be
described as arbitrary?
19.Black's Law Dictionary describes the term "arbitrary" in the
following words:
"Arbitrary.--1. Depending on individual discretion; specif.,
determined by a judge rather than by fixed rules, procedures, or
law. 2. (Of a judicial decision) founded on prejudice or preference
rather than on reason or fact. This type of decision is often
termed arbitrary and capricious."
20. To the same effect is the meaning given to the expression
"arbitrary" by Corpus Juris Secundum which explains the term in
the following words:
"Arbitrary.--Based alone upon one's will, and not upon any
course of reasoning and exercise of judgment; bound by no law;
capricious; exercised according to one's own will or caprice and
therefore conveying a notion of a tendency to abuse possession of
power; fixed or done capriciously or at pleasure, without adequate
determining principle, non-rational, or not done or acting
according to reason or judgment; not based upon actuality but
beyond a reasonable extent; not founded in the nature of things;
not governed by any fixed rules or standard; also, in a somewhat
different sense, absolute in power, despotic, or tyrannical; harsh
and unforbearing. When applied to acts, „arbitrary‟ has been held
to connote a disregard of evidence or of the proper weight
thereof; to express an idea opposed to administrative, executive,
judicial, or legislative discretion; and to imply at least an element
of bad faith, and has been compared with „willful‟."
21. There is no precise statutory or other definition of the term
"arbitrary". In Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC
212 : 1991 SCC (L&S) 742 : AIR 1991 SC 537] this Court
explained that the true import of the expression "arbitrariness" is
more easily visualised than precisely stated or defined and that
whether or not an act is arbitrary would be determined on the
facts and circumstances of a given case. This Court observed:
(SCC p. 243, para 36)
"36. The meaning and true import of arbitrariness is more
easily visualised than precisely stated or defined. The question,
whether an impugned act is arbitrary or not, is ultimately to be
answered on the facts and in the circumstances of a given case.
An obvious test to apply is to see whether there is any discernible
principle emerging from the impugned act and if so, does it
satisfy the test of reasonableness. Where a mode is prescribed for
doing an act and there is no impediment in following that
procedure, performance of the act otherwise and in a manner
which does not disclose any discernible principle which is
reasonable, may itself attract the vice of arbitrariness. Every State
action must be informed by reason and it follows that an act
uninformed by reason, is arbitrary. The rule of law contemplates
governance by laws and not by humour, whims or caprices of the
men to whom the governance is entrusted for the time being. It is
trite that „be you ever so high, the laws are above you‟. This is
what men in power must remember, always."
22. Dealing with the principle governing exercise of official
power Prof. De Smith, Woolf and Jowell in their celebrated book
on Judicial Review of Administrative Action emphasised how the
decision-maker invested with the wide discretion is expected to
exercise that discretion in accordance with the general principles
governing exercise of power in a constitutional democracy unless
of course the statute under which such power is exercisable
indicates otherwise. One of the most fundamental principles of
the rule of law recognised in all democratic systems is that the
power vested in any competent authority shall not be exercised
arbitrarily and that the power is exercised that it does not lead to
any unfair discrimination. The following passage from the above
is in this regard apposite:
"We have seen in a number of situations how the scope of an
official power cannot be interpreted in isolation from general
principles governing the exercise of power in a constitutional
democracy. The courts presume that these principles apply to the
exercise of all powers and that even where the decision-maker is
invested with wide discretion, that discretion is to be exercised in
accordance with those principles unless Parliament clearly
indicates otherwise. One such principle, the rule of law, contains
within it a number of requirements such as the right of the
individual to access to the law and that power should not be
arbitrarily exercised. The rule of law above all rests upon the
principle of legal certainty, which will be considered here, along
with a principle which is partly but not wholly contained within
the rule of law, namely, the principle of equality, or equal
treatment without unfair discrimination."
23. Arbitrariness in the making of an order by an authority can
manifest itself in different forms. Non-application of mind by the
authority making the order is only one of them. Every order
passed by a public authority must disclose due and proper
application of mind by the person making the order. This may be
evident from the order itself or the record contemporaneously
maintained. Application of mind is best demonstrated by
disclosure of mind by the authority making the order. And
disclosure is best done by recording the reasons that led the
authority to pass the order in question. Absence of reasons either
in the order passed by the authority or in the record
contemporaneously maintained is clearly suggestive of the order
being arbitrary hence legally unsustainable."
The East Coast Railway (supra) was a case wherein the
selection process had been cancelled because of some complaints
received from unsuccessful candidates. The factual similar matrix is
not identical. But the legal position, which has been elucidated and
referred to is appropriate and befitting.
48. In view of the aforesaid discussion, we would allow the present writ
petition and set aside the impugned order dated 29th August, 2014 in
the case of the six petitioners, who have challenged the said order.
They alone would be entitled to benefit of this judgment. It is stated
that one of the petitioners may not be interested in joining the post of
DLA. If that be the case, he would not be appointed.
49. Accordingly, the OAs filed by the six petitioners would be treated as
allowed with a direction that their results would be declared by the
Commission, and on being considered eligible and fit for
appointment, appointment letters will be issued to them for the post of
DLAs. They would not be entitled to back wages. For the purpose of
seniority and pay fixation, they would be treated as notionally
appointed on the date they would have been appointed in the normal
course on declaration of result in June, 2012. Inter se seniority
between the petitioners-DLAs and promotee ALAs appointed as
DLAs as per the Recruitment Rules would be fixed in accordance
with the Rules and applicable OMs.
50. The present litigation has remained pending in the Tribunal/Court for
the last 5-6 years. We have struck down the relaxation granted in the
case of appointments to the post of DLA. In view of the above
circumstances and the lapse of time, we would observe that the
Ministry, in consultation with the Commission, would examine the
question of relaxation and appointment of ALAs to the remaining
vacant posts of DLAs in the direct recruitment quota and accordingly
fill up the same from those who were in the cadre of ALAs. However,
ALAs so appointed as DLAs in the direct recruitment quota would be
junior in seniority to the appointed petitioners.
51. The writ petition is accordingly disposed of. In the facts of the case,
there would be no order as to costs.
SANJIV KHANNA
(JUDGE)
CHANDER SHEKHAR
(JUDGE)
MAY 26, 2017
VKR/SSN
