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Case Number

Civil Miscellaneous Writ Petition No. 45922 of 2004

Attorney(S)

Sri Mahesh Prasad Pandey, Sri Neelam Tyagi, Sri Arvind Tripathi, Sri G.S Mishra and Sri Pankaj Dubey.
Sri Ashok Khare, Sri Shashi Nandan, Sri K.R Sirohi, Sri U.N Sharma, Sri Amit Sthalekar, Smt. Komal Khare, Sri Arvind Srivastava, Sri Neeraj Tiwari, Sri Krishna Ji Khare, Sri Somesh Khare and Standing Counsel.

Judges

Sri Sunil Ambwani, J.

Acts

Rule 8 (a) of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (Rules of 1976)
Rule 45 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976,
Conduct) Rules, 1976 read with Art. 226 of the Constitution of India
Rules 41 and 45 of the Rules of 1976 read with Art. 229
relief.16. Rule 41 and Rule 45 of the Rules of 1976
Rule 45 of the Rules of 1976,
Rule 8 of these Rules
Rule 45 of the Rules

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner applied for selection to the post of Routine Grade Clerk (R.G.C.) pursuant to Advertisement No. 3/2004 dated 17 April 2004 for 79 posts issued by the Registrar General of the Allahabad High Court. While the advertised direct recruitment process was pending (the written examination had not yet been held and selections were delayed), respondent Nos. 3 to 14 were appointed by orders attributed to the Hon'ble Chief Justice (signed by the Registrar General) on dates in July and September 2004. The petitioner challenged these appointments by a writ petition seeking certiorari to quash the appointments on grounds of arbitrariness and favouritism and for violation of the selection procedure prescribed under Rule 8(a) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 ("Rules of 1976").

On 24 May 2005 the Single Judge exchanged affidavits, issued notices to some private respondents and directed that the appointments of respondents 3 and 5–14 be made subject to the result of the writ petition; those appointments were ordered not to be regularised or confirmed until disposal of the writ petition unless the appointees appeared and were selected in the advertised examination/test.

The High Court and private respondents filed counter-affidavits, relying on the residuary and extraordinary powers of the Hon'ble Chief Justice under Rules 41 and 45 of the Rules of 1976 and challenging the petitioner's standing. Some private respondents challenged the interim order in a special appeal; that appeal was disposed of by a Division Bench on 4 September 2006, which observed that subsequent events (including cancellation of the earlier advertisement on 6 December 2005) had rendered the interim order unworkable.

Later developments included cancellation of the 2004 advertisement, amendment of the Rules, and issuance of a fresh advertisement (No. 1.ARO of 2006 dated 31 July 2006) for the differently‑named post "Assistant Review Officer" with changed qualifications and pay-scale. The fresh recruitment process was also pending at the time of the opinion. The writ petition was disposed of by the Court with observations concerning the proper exercise of the Hon'ble Chief Justice's powers and the status of the ad hoc appointments.

Legal Issues Presented

Whether the appointments made by the Hon'ble Chief Justice of the High Court under Rules 41 and 45 of the Rules of 1976 during the pendency of an advertised direct recruitment (advertised under Rule 8) were lawful and whether those powers could be exercised to make ad hoc direct appointments while selections were pending.
Whether the ad hoc appointments were arbitrary, tainted by favouritism or nepotism, and thereby violative of principles of fairness under Articles 14 and 16 of the Constitution.
Whether the petitioner had locus/standing to challenge the ad hoc appointments (including whether the writ petition was rendered infructuous by subsequent events such as cancellation of the advertisement and the issuance of fresh advertisement with amended qualifications).
Whether ad hoc appointees who were given appointments subject to the condition of appearing in the advertised test could be regularised or confirmed without selection in the normal recruitment process.

Arguments of the Parties

Petitioner's Arguments

The appointments of respondent Nos. 3 to 14 were made without following the selection procedure required under Rule 8(a) of the Rules of 1976 and, therefore, are arbitrary and tainted by favouritism.
The Hon'ble Chief Justice misused residuary powers under Rules 41 and 45 to appoint persons who were close to him or to appease the employees' association and office-bearers of the Bar Association while the regular selections were pending.
The petitioner, being an applicant in the advertised selection, was deprived of the opportunity for selection by these ad hoc appointments and claims violation of rights under Articles 14 and 16 of the Constitution.
After the Rules were amended and the post nomenclature and qualifications changed (Assistant Review Officer advertisement of 2006), the petitioner was rendered ineligible; however he remained aggrieved by the prior appointments and the sequence of events.

High Court and Private Respondents' Arguments

The High Court and private respondents relied on the residuary and extraordinary powers of the Hon'ble Chief Justice under Rules 41 and 45 read with Article 229 to make ad hoc appointments in exigencies of service, and they contended those powers validly authorised the appointments even while selections were pending.
The High Court stated that some ad hoc appointments were subject to the appointees appearing in the routine grade clerk examination/test and would be regularised only upon qualification in that test; the appointments were said to have been made in the interest of government work because the regular recruitment process was likely to take more time.
They challenged the petitioner's standing to sue, and some private respondents contended the writ had become infructuous due to cancellation of the advertisement and re-advertisement with altered nomenclature and qualifications (i.e., the petitioner was no longer eligible).
Private respondents relied upon prior judgments (Ashwini Khare and Shravan Kumar Shukla) to argue that appointments under Rule 45, when not shown to be arbitrary or beyond Rule 45, are not necessarily vulnerable to challenge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka High Court, 1991 (1) L.L.N 352	The opinion notes the Supreme Court held that independence under Art. 229 is for protecting the institution and that those powers are not to be misused by usurping powers for appointments contrary to rules.	The Court relied on this authority to emphasise that Art. 229 powers must not be misused to make appointments inconsistent with the rules framed for that purpose.
M. Gurumoorthy v. A.G. Assam, (1971) 2 SCC 137 : AIR 1971 SC 1850	The opinion quotes authorities to show that those expected to oversee others must maintain higher standards and that orders passed by the Chief Justice on administrative side can be challenged under Article 226 (reference to Mahesh Prasad).	The Court invoked these principles to support the proposition that administrative orders by a Chief Justice are amenable to judicial review and must be exercised with rectitude.
Mahesh Prasad v. Hon'ble High Court Allahabad, AIR 1971 All. 205	Referenced for the proposition that administrative orders by the Chief Justice can be challenged under Article 226.	The Court cited this case to confirm that administrative acts of the Chief Justice are subject to judicial review under Article 226.
V.K. Mahendra v. Hon'ble High Court, Allahabad, 1998 (1) U.P.L.B.E.C 711	The opinion lists the citation with a para reference but does not set out the rule or principle in the provided text.	This opinion was cited by the petitioner; the Court did not record a detailed application of its specific principle in the provided text.
V.T. Khanzode v. Reserve Bank of India, 1982 (1) L.L.N 564	Listed with a para reference in the opinion; no discrete rule text is reproduced in the provided opinion.	The case is among authorities relied upon by the petitioner; the Court did not elaborate a specific application beyond listing the citation in the opinion.
Mongol Sain v. Hon'ble High Court, 1987 L. & I.C 330	Listed with a paragraph reference; the opinion does not state the principle within the provided text.	Cited by the petitioner; no distinct application text appears in the provided opinion beyond citation.
Dronam Raju v. N.T. Ramarao, AIR 1988 A.P. 69	Listed with a para reference; the provided opinion does not quote the rule or principle.	Included among cited authorities; the Court did not expressly set out how it applied this decision in the provided text.
Tamil Nadu Covery v. Union of India, (1990) 3 S.C.C 440	Listed with a para reference only in the opinion; no specific principle text is reproduced.	One of the cases cited by the petitioner; the opinion does not elaborate its concrete application in the decision text provided.
Paramatama Saran v. V.N. Singh, AIR 1964 Raj. 13	Listed with paragraph references; the principle is not stated in the provided text.	Cited in the list of authorities relied upon by the petitioner; no discrete application is recorded in the provided opinion excerpt.
Umesh Chandra Sinha v. V.N. Singh, AIR 1968 Pat. 3	Listed with a paragraph reference; the opinion does not reproduce the principle.	Cited by the petitioner; the Court did not record a specific application of this precedent in the provided text.
Sri Krishna v. Gujarat University, AIR 1962 Guj. 88	Listed with a paragraph reference; the principle is not reproduced in the opinion excerpt.	Included among authorities cited by the petitioner; no detailed application is set out in the provided text.
Datta v. State of West Bengal, AIR 1982 Cal. 225	Listed with a paragraph reference; the opinion does not reproduce the principle.	Cited by the petitioner; no explicit application is recorded in the provided excerpt.
Sumer Singh v. S.T.A Tribunal, AIR 1976 Raj. 144	Listed with a paragraph reference; the specific rule is not reproduced in the provided opinion text.	Cited as one of the petitioner’s authorities; the Court's text does not elaborate its application in this opinion excerpt.
A.K. Nair v. Election Commissioner, AIR 1972 Ker. 5	Listed with a paragraph reference; no principle is quoted in the provided text.	Mentioned among authorities; the opinion does not state a detailed application in the provided excerpt.
Union of India v. Kali Dass Batish, 2006 (1) L.L.N 503	Referred to in the special appeal: passages (Para. 14) were placed for re-examination; the provided opinion does not quote the principle.	The Division Bench noted that this authority was urged for re‑examination of the Single Judge's observations, but the provided opinion does not record detailed reliance upon or application of this case to the final decision.
Ashwini Khare v. State of Uttar Pradesh (Writ Petition No. 21353 of 2004) and Shravan Kumar Shukla v. High Court of Judicature at Allahabad, 2007 (1) U.P.L.B.E.C 652	These cases concerned appointments under Rule 45 when petitioners were on waiting lists; Shravan Kumar Shukla noted that quo warranto may be maintainable even by persons not individually aggrieved when appointments are contrary to statutory rules.	The opinion referred to these cases when respondents argued that appointments under Rule 45 have been upheld; the Court recorded that a Division Bench in Shravan Kumar Shukla found writ for quo warranto could be maintainable in appropriate circumstances.
Secretary, State of Karnataka v. Umadevi, 2006 (3) L.L.N 78 (Constitution Bench)	The Constitution Bench held that temporary/contractual engagements not based on proper selection cannot give rise to legitimate expectation of permanency and cannot be invoked to claim permanent absorption; paras. 47–48 were quoted in the opinion.	The Court followed the law in Umadevi, applying its principle that temporary/ad hoc appointees cannot claim permanence or a legitimate expectation of regularisation where the rules prescribe regular selection. The opinion placed reliance on Umadevi to state that ad hoc appointments should not be regularised except by regular selection and that the theory of legitimate expectation does not entitle ad hoc appointees to permanency.

Court's Reasoning and Analysis

The Court proceeded through the following analytical steps (as stated in the opinion):

Recognition of authority: The Court accepted that Rules 41 and 45 of the Rules of 1976 confer residuary and extraordinary powers on the Hon'ble Chief Justice in matters incidental or ancillary to the Rules, and that such powers permit the Chief Justice to make orders as he may consider fit in respect of recruitment, promotion and related matters. These powers are conferred for smooth administration and to maintain the independence of the High Court.
Limitation on powers: The Court emphasised that these extraordinary powers are not unguided or unlimited. They must be exercised fairly, reasonably and for the purposes for which the Rules were made and in consonance with constitutional rights of citizens. The Chief Justice cannot violate rules or use these powers for purposes other than exigency of service.
Prima facie illegitimacy of ad hoc appointments while selection pending: The Court found prima facie substance in the petitioner's contention that once an advertisement for direct recruitment has been made, it is appropriate to await the results of selections and not to make ad hoc appointments, because such ad hoc appointments discriminate among applicants and cause concern about delay and fairness in selection.
Specific findings on record and favouritism: The petitioner had placed material on record (not denied in the counter-affidavit) suggesting that several ad hoc appointees were close relatives or connected to staff or office-bearers of employees' unions and the Bar Association. The Court observed that ad hoc appointments lacking any stated criteria and appearing to benefit kith and kin and office bearers raised suspicion of favouritism and arbitrariness.
Maintainability of writ petition: The Court held that the writ petition (in the nature of certiorari and quo warranto) challenging the validity of the appointments made during pending selections was maintainable, even though the petitioner might not obtain individual relief in the changed circumstances.
Consideration of delay and alternatives: The Court noted the unexplained long delay in holding selections (last selection held in 1999 for Class III posts) and observed that if selection by examination was difficult to complete, the High Court could have entrusted the process to a specialised agency or formed a special cell to expedite recruitment rather than make numerous ad hoc appointments.
Application of Supreme Court authority (Umadevi): The Court relied on the Constitution Bench decision in Secretary, State of Karnataka v. Umadevi to underline that temporary or ad hoc engagements not based on proper selection cannot give rise to legitimate expectation of permanency and that rights under Articles 14 and 16 cannot be invoked by temporary appointees to claim absorption in regular service.
Effect of subsequent events: The Court recorded that amendments to rules and the fresh advertisement with changed nomenclature and qualifications rendered the petitioner ineligible for the re-advertised post and that the petitioner did not amend the writ petition to challenge the amendments or the fresh advertisement; thus the petitioner could not be granted relief in respect of those subsequent changes.
Conclusion on regularisation: In view of the above, the Court concluded that appointments made by the Hon'ble Chief Justice under Rules 41 and 45 should be subject to regular selection by direct recruitment in accordance with Rule 8 and that such appointees should not be confirmed or regularised except pursuant to the regular selection process.

Holding and Implications

Holding:

Writ petition disposed of.

The Court's operative direction and core ruling (as recorded in the opinion) is that appointments made by the Hon'ble Chief Justice in exercise of powers under Rules 41 and 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, must be subject to the regular selection process by direct recruitment under Rule 8 and that such ad hoc appointees shall not be regularised or confirmed unless they are selected in the regular examination/test.

Implications:

The immediate practical effect on the parties is that the ad hoc appointments discussed in the writ petition are to be treated as contingent upon the outcome of proper selection processes; they are not to be regularised or confirmed except by selection in the advertised examination/test.
The petitioner was not granted substantive relief in relation to the later re-advertised post (Assistant Review Officer with amended qualifications) because the petitioner became ineligible after rule amendments and did not amend the writ petition to challenge those amendments or the fresh advertisement.
The Court reiterated and applied existing constitutional and precedential guidance (including the Constitution Bench decision in Umadevi) that temporary or ad hoc appointments do not give rise to a legitimate expectation of permanent regularisation and that extraordinary powers must be exercised in accordance with the Rules and constitutional principles. The opinion does not purport to lay down a novel legal principle beyond applying these authorities to the facts before it.

Note: This summary is strictly confined to and derived from the text of the provided opinion. No facts or conclusions beyond those expressly contained in the opinion have been added.

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Devendra Kumar Pandey v. Hon'Ble High Court Of Judicature At Allahabad And Others

Sri Sunil Ambwani, J.:— Heard Sri Arvind Tripathi, learned counsel appearing for the petitioner; Sri Amit Sthalekar appears for the High Court-respondent Nos. 1 and 2; Sri Krishna Ji Khare for respondent Nos. 2, 13 and 14; Sri Arvind Srivastava for respondent Nos. 5 to 8 and Sri Neeraj Tiwari for respondent No. 9.

2. The petitioner applied for selections to the post of Routine Grade Clerk (R.G.C) in the establishment of the High Court at Allahabad in pursuance of advertisement No. 3/2004, dated 17 April, 2004 for 79 posts, published by the then Registrar General of the Court. By this writ petition, the petitioner has prayed for writ of certtorari calling the record and setting aside the appointments of respondent Nos. 3 to 14 made by order of Hon'ble Chief Justice, singed by Registrar General on 26 July, 2004, 1 September, 2004 and 2 September, 2004 without holding any recruitment as process of selections as provided under Rule 8 (a) of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (Rules of 1976) through competitive examination and promotion from Class IV employees. The appointments were made at the time when the selections to 79 posts of R.G.C vide advertisement, dated 17 April, 2004, was pending.

3. The petitioner has challenged these appointments on the ground of arbitrariness, and favourtism during the pendency of the regular selections by direct appointments. He submits that while the regular selections were kept pending, Hon'ble Chief Justice went on filling up these posts in exercise of his residuary and extraordinary powers under Rules 41 and 45 of the Rules of 1976 to favour the employees, who are close to him and to appease the employees association and the office bearers of the Bar Association including President. It is submitted that the powers vested in Hon'ble Chief Justice under Rules 41 and 45 are to be used for extraordinary and emergent circumstances and should not be exercised for making appointments of the wards of persons close to him and thereby misusing the trust created in his office.

4. On 24 May, 2005, the Court, after exchange of counter and rejoinder-affidavits of respondent No. 1, passed following orders issuing notices to respondents No. 3, 5 to 14 and made the appointments subject to the result of the writ petition. A further direction was issued that these appointments shall not be regularised or confirmed until the disposal of the writ petition, unless they are appeared or selected in the examination/test which has been advertised.

“Counter and rejoinder-affidavits have been exchanged between the petitioner and respondents 1 and 2. Notices have not been issued to the remaining respondents so far.

The establishment of the High Court had advertised 79 vacancies of Routine Grade Clerks with a note that these may increase or decrease, vide advertisement No. 3104, dated 17 April, 2004. Sri Amit Sthalekar, learned counsel for the respondents 1 and 2 informs that 32556 applications have been received (para 8 of the counter-affidavit of Sri Pramod Kumar Goel, HJS, Joint Registrar (Inspection), High Court of Judicature at Allahabad). The written examination has not been held so far and that the selections have been delayed. The petitioners have prayed for expediting the recruitment process, it is contended that in the meantime, the respondents 3 to 14 have been appointed without following any procedure of selection and without adopting any criteria or method for ad hoc appointments and thus these appointments be quashed and that during the pendency of the writ petition these appointments may be kept in abeyance.

Sri Amit Sthalekar has not given any reason either in the counter-affidavit or in oral submission as to why the examination process has been delayed, and has not given any indication of the period within which the recruitment may be finalized. He submits and has produced the original record of the appointment of respondents 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.

A perusal of this record shows that these respondents namely Sri Ajit Kumar Srivastava, Sri Anand Pal Singh, Sri Sarad Kumar, Sri Tej Singh, Sri Abhlishek, Sri Barmeshwar Pandey, Sri Sandeep Kumar Ojha, Smt. Shushma Singh (who was earlier appointed as Class IV employee) Sri Samyadeep Goswami, Sri Santosh Kumar, Sri Vikas Tanu Goshwani had applied for appointment as Routine Grade Clerk. These appointments have been made under the orders of the Hon'ble the Chief Justice under Rule 45 of the Allahabad High Court Officers and Staff Rules, 1976. The Hon'ble the Chief Justice by his orders in May and August, after the advertisement was issued has appointed these persons under Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, on ad hoc basis. Whereas the appointment of Sri Ajit Kumar Srivastava, Sri Anand Pal Singh, Santosh Kumar Tiwari and Abhlshek have been made on the condition that these appointments are ad hoc and they will be permitted to appear in the direct recruitment of Routine Grade Clerk, their services shall be regularised and confirmed only if they are selected in the examination/test, no such condition precedes the other appointments.

Prima facie I find substance in the contention of learned counsel for the petitioner that once an advertisement has been made. It is appropriate to await the result of the selections and not to make any ad hoc arrangement. Any ad hoc appointment made during the process of scrutiny of application and selection discriminates the persons who have applied, and causes concern over the reasons of delay in the process of selection.

In the present case, it is alleged that some of these ad hoc appointees are near relatives of the employees and persons having connection with the High Court. In the counter-affidavit the contents of Para. 11 of the writ petition are not denied. In this paragraph it is stated that Sri Anand Pal Singh is the son of Sri Balwant Singh, section officer of Account Section; Sri Santosh Kumar is the son of Sri Anmol Tiwari, Assistant Registrar (Protocol). Sri Sharad Kumar is son of Sri Harish Kumar Srivastava, Stamp Reporter; Sri Sandeep Kumar Ojha is son of Sri Kashi Dhar Ojha, Joint Private Secretary to the Chief Justice, one Sri Samya Deep Goswami is son of Sri P.K Ganguli, Joint Private Secretary to Hon'ble the Chief Justice, Sri Barmeshwar Pandey is close relative of Sri C.L Pandey, President Bar Association High Court and Sri Tej Singh is brother of Sri Hem Singh. Junior Vice President of Employees Union, Sri Ajit Kumar Srivastava is the brother-in-law of Sri Yogesh Kumar Srivastava, Senior Vice President of Employee Association and Sri Abhishek is close relative of Sri Nishith Verma, Joint Secretary of the Employees Union. The Court is not concerned with the appointment of Abha Khare who was appointed on compassionate ground and Sri R.P Patel, the respondent No. 5, who was appointed as officiating section officer (cash) as these persons are appointed by a separate procedure and are not the candidates to the post of routine grade clerks, for which applications have been invited.

Allahabad High Court officers and staff (Conditions of Service and Conduct) Rules, 1976 provides for appointment of routine grade clerk through competitive examination by the Committee constituted by the Hon'ble the Chief Justice. The power of Hon'ble the Chief Justice to make ad hoc appointments cannot be questioned, counsel for the petitioner is, however, correct in submitting that all the statutory powers vested in authorities must be exercised fairly and reasonably and in accordance with Rules. Once the selections have been advertised and there is no explanation for delay in holding the selections, the scope of this power for ad hoc appointments, pending such selection requires to be considered and decided in this writ petition.

Having regard to the facts and circumstances, let notice be issued to the respondents 3 and 5 to 14 to be served through the Registrar General of the Court. They shall file counter-affidavits within four weeks. Rejoinder-affidavit may be filed within one week thereafter. The matter shall be listed for admission on 19 July, 2005. In the meantime it is provided that the appointment of respondents 3, 5 to 14 shall be subject to the result of this writ petition. They shall not be regularised or confirmed until the disposal of this writ petition unless they appear and are selected in the examination/test which has been advertised.”

5. The High Court and the private respondents have filed their counter-affidavits in which they have relied upon the residuary and extraordinary powers of Hon'ble Chief Justice under Rules 41 and 45 of the Rules of 1976, to make appointments irrespective of the pending selections. They have also challenged the standing of the petitioner to file the writ petition.

6. The interim order, dated 24 May, 2005, was challenged by Sri Barmeshwar Pandey and 4 others (respondents in this writ petition) in a special appeal on the ground that with the cancellation of the selections advertised on 17 April, 2004, the writ petition has become infructuous. The Special Appeal No. 987 of 2006 was heard by Hon'ble Chief Justice, (whereas he was impleaded as the party to the special appeal) and that the Bench hearing the special appeal passed the following orders:

“The appeal from the interim order, dated 24 May, 2005, is summarily disposed of.

The appellants before us, who were the materially affected private respondents in the writ, had been given ad hoc appointments as routine grade clerks and that was the grievance of the writ-petitioner.

In the impugned interim order the Hon'ble Single Judge laid down that even powers under Art. 229 are to be exercised by the Hon'ble the Chief Justice fairly and reasonably. Sri Pandey for the appellants submits that the position might need re-examination in view of the case Union of India v. Kali Dass Batish. [2006 (1) L.L.N 503], and he placed passages, specifically, Para. 14 thereof.

His Lordship also ordered that the ad hoc appointments would not be regularised or confirmed until disposal of the writ petition unless the appellants-private respondents ‘appear and are selected in the examination/test which has been advertised.’

Several developments have taken place which appear to have rendered the writ petition infructuous or out of date now. The writ-petitioner-respondent submits before us that the mandamus prayer in the writ petition permitting him to appear in the examination has become infructuous but according to him the other prayers are still alive. We have our doubts in this regard also.

By a proclamation, dated the 6 December, 2005 the then learned Registrar General has cancelled the advertisement No. 10 of 2004, which was at the root of the interim order in operation which is the impugned order before us.

As such, it is declared that the impugned interim order has become unworkable because of the changed circumstances and as on date all parties are free to proceed in accordance with law and no workable restraint can be spelt out from the interim order which ties down the hands of anybody to any extent at all.

Regarding the further progress of the matter the appellants submitted that the writ petition should not have been treated as heard in part on 19 July, 2005, which was two months after the passing of the detailed order and on a date when the appellants, i.e, the affected parties had not been served. We are of the opinion that an Hon'ble Single Judge has discretion in the matter and the discretion can hardly be interfered with by anybody; we are also of the respectful opinion that in general matters are not treated as heard in part until at least all parties appear, or at least substantially all parties appear and more often a not the tying up of the case is ordered only after the pleadings are complete and the matter is ripe for final disposal, and is then heard for a sufficient length of time.

With these orders and observations, the appeal is finally disposed of.

Dt. 4 September, 2006 Ajoy Nath Ray, C.J Ashok Bhushan, J.”

7. The matter came back to the Court to be heard with the developments namely that on 6 December, 2005, the Registrar cancelled the advertisement No. 3 of 2004 and that the Rules of the Court were amended. The fresh advertisement No. 1.ARO of 2006, dated 31 July, 2006, was issued for filling 150 vacant posts of “Assistant Review Officer” in the pay-scale of Rs. 4,500-125-7,000 plus allowances with amended higher qualification of Bachelors' Degree of a University established by law in India (in place of intermediate), and with knowledge of computer. More than 30,000 persons have applied for this selection, which is still pending at the stage of preparing a data base of the applicants. At present there are more than 300 vacant posts of Class III employees in the establishment.

8. Sri Arvind Srivastava, appearing for respondents Nos. 5 to 8, submits that with the changed nomenclature, pay-scale and qualification of the post and with fresh advertisement in pursuance to which petitioner is neither eligible, nor has applied, the writ petition has become infructuous. He submits that the petitioner, was not serious in pursuing his cause and is not left with the competence to challenge the appointments made by Hon'ble Chief Justice. According to Sri Arvind Srivastava, the appointments made by Hon'ble Chief Justice under his residuary and extraordinary powers in the exigency of service, cannot be challenged by a person, who is not a candidate for appointment and that no public interest petition is maintainable in service matter. He has also relied upon a judgment in Writ Petition No. 21353 of 2004, Ashwini Khare v. State of Uttar Pradesh and two other connected petitions in which learned Single Judge of this Court repelled the challenge made by petitioners placed in waiting list of the selections of the year 1999, to the appointments made by Hon'ble Chief Justice on the post of R.G.C in exercise of his powers under Rule 45 of the Rules of the Court. Learned Single Judge held that Rules 41 and 45 of the Rules of 1976 were not challenged. The appointments made in exercise of such powers cannot be said to be arbitrary or in violation of Act and Rules. The judgment was taken in appeal and that in Shravan Kumar Shukla v. High Court of Judicature at Allahabad, [2007 (1) U.P.L.B.E.C 652]. A Division Bench of this Court prima facie found that a writ petition for quo warranto can be maintained by a person, who may not be aggrieved by the appointments at all, when the appointments have been made contrary to the statutory rules or the scheme of the Constitution. With regard to other legal issues the Court adjourned the matter and directed the special appeal to be listed on 13 February, 2007. The special appeal is still pending.

9. The issue involved in the case of Ashwani Khare (vide supra) and Shravan Kumar Shukla (vide supra), was the appointment made by Hon'ble Chief Justice under Rule 45 of the Rules of 1976, when the petitioners placed in the waiting list of the examination for R.G.C of 135 posts in the establishment of the High Court in the year 1999, were still awaiting appointments. In that case the waiting list stood exhausted and in any case it was confined to vacancies of the selections held in 1999. A waiting list cannot be a perennial source of recruitment to any establishment.

10. It is submitted by Sri Arvind Tripathi that the subject appointments were made during the pendency of the selection in which the petitioner was applicant. The nomenclature of R.G.C was changed to “Assistant Review Officer” and that the qualifications were also changed depriving him a chance for selections. He is however still aggrieved by the orders of Hon'ble Chief Justice in making appointments of the kith and kin of the staff of the Court, who were close to him and to appease members of the office-bearers of the employees association and bar association and thereafter cancelling the selection. He submits that the constitutional authorities are trustees of the powers vested in them. They cannot utilise the powers, as in the present case, to violate the rights of citizens, for purposes other than they are created. The petitioner was cheated by firstly advertising the post to which he was qualified and applied, in making appointment of favoured persons on same posts without following any procedure and for the purposes other than the purpose for which the Rules 41 and 45 of Rules of 1976 were made, and thereafter cancelling the examination and announcing fresh selections with amended qualifications. The petitioner as a citizen of India is discriminated by the action of the Hon'ble Chief Justice. He claims that his rights under Arts. 14 and 16 of the Constitution of India has been violated by the keeper and guardian of these rights.

11. In support of his submissions the counsel for the petitioner has relied upon judgments in—

(1) H.C Puttaswamy v. Hon'ble Chief Justice of Karnataka High Court, [1991 (1) L.L.N 352],

(2) M. Gurumoorthy v. A.G Assam, [(1971) 2 SCC 137 : A.I.R 1971 S.C 1850], Paras. 3, 4, 6 and 8;

(3) Mahesh Prasad v. Hon'ble High Court Allahabad, [A.I.R 1971 All. 205] Para. 12;

(4) V.K Mahendra v. Hon'ble High Court, Allahabad, [1998 (1) U.P.L.B.E.C 711], Para. 19:

(5) V.T Khanzode v. Reserve Bank of India, [1982 (1) L.L.N 564], Para. 15;

(6) Mongol Sain v. Hon'ble High Court, [1987 L. & I.C 330] Para. 12;

(7) Dronam Raju v. N.T Ramarao, [A.I.R 1988 A.P 69], Para. 14;

(8) Tamil Nadu Covery v. Union of India, [(1990) 3 S.C.C 440] Para. 6;

(9) Paramatama Saran v. V.N Singh. [A.I.R 1964 Raj. 13] Paras. 8 and 9;

(10) Umesh Chandra Sinha v. V.N Singh. [A.I.R 1968 Pat. 3] Para. 12;

(11) Sri Krishna v. Gujarat University, [A.I.R 1962 Guj. 88] Para. 6;

(12) Datta v. State of West Bengal, [A.I.R 1982 Cal. 225] Para. 13;

(13) Sumer Singh v. S.T.A Tribunal, [A.I.R 1976 Raj. 144] Para. 3; and

(14) A.K Nair v. Election Commissioner, [A.I.R 1972 Ker. 5], Para. 17.

12. In H.C Puttaswami, [1991 (1) L.L.N 352] (vide supra), the Supreme Court held that the independence of the High Court secured under Art. 229 was with a purpose of protecting the institution. These powers, however, are not to be misused by usurping the powers for appointment to be made in accordance with the rules.

13. In M. Gurumoorthy (vide supra), the Hon'ble Supreme Court observed:

“the need hardly was that those who are expected to oversee the conduct of the others must necessarily maintain a higher standard of ethical and intellectual rectitude. In Mahesh Prasad (vide supra), this Court held that orders passed by Hon'ble Chief Justice on administrative side can be challenged under Art. 226 of the Constitution of India.”

14. Sri Amit Sthalekar appearing for the High Court has filed counter-affidavit of Sri Promod Kumar Goel, Joint Registrar (Inspection) High Court of Judicature at Allahabad stating therein that Hon'ble Chief Justice in exercise of his powers under Rules 41 and 45 of the Rules of 1976 read with Art. 229 appointed the respondents No. 5 to 11 on ad hoc basis subject to condition that they will appear in the routine grade clerk's examination/test and their services shall be regularised when they will qualify the examination of R.G.C Para 5 of the counter-affidavit relevant for the purpose of the case is quoted as below:

“5. That the facts stated in Para. 4 of the writ petition are incorrect and are denied. It is submitted that the appointment of respondent No. 4 as Officiating Section Officer (Cash) High Court of Judicature at Allahabad has been made by the Hon'ble the Chief Justice in exercise of his power under Rules 41 and 45 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 read with Art. 226 of the Constitution of India and the appointments of respondent Nos. 5 to 11 of the writ petition have been made on ad hoc basis by the Hon'ble the Chief Justice under Rule 45 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, subject to condition that they will appear in the Routine Grade Clerk's Examination/test and their services shall be regularized when they will qualify the examination of outine grade clerk. The Hon'ble the Chief Justice had passed such kind of orders in the interest of Government work due to the fact that the regular recruitment process is likely to take more time for filling the vacant posts. It is stated that the respondent No. 4 has been appointed on officiating basis on account of temporary vacancy that arose due to disciplinary proceedings pending against Sri V.K Gaur the incumbent appointed on the post of Section Officer (Cash) who is under suspension. It is further stated that the appointment of respondent No. 4 as officiating Section Officer (Cash) has been challenged in Writ Petition No. 5400 (S/S) of 2004, Mahesh Kumar Saxena v. Hon'ble High Court, that is pending in the Lucknow Bench of this Hon'ble Court.”

15. In the present case, the writ petition challenging the appointment pending selections is both in the nature of writ of certiorari and also in the nature of quo warranto in which the validity of these appointments and the right of private respondents to hold these posts is challenged, as it is found by the Division Bench in Shravan Kumar Shukla (vide supra). The writ petition as such is maintainable, though the petitioner may not be entitled to individual relief.

16. Rule 41 and Rule 45 of the Rules of 1976 clothe Hon'ble Chief Justice with residuary and extraordinary powers in all the matters incidental and ancillary to the Rules or where such matters are not sufficiently provided. In all such cases Hon'ble Chief Justice may make such orders as he may consider fit in respect of recruitment, promotion, confirmation or any other matters. These powers vested in the Hon'ble Chief Justice with an exception of approval of Government when such order relate to salaries, allowances, leave and pension or the powers which are to be found under Art. 229, are conferred upon him for smooth functioning and administration of justice maintaining independence of the High Court. These powers, however, are not unguided and unlimited, and have to be exercised keeping in view the constitutional rights of the citizens and in inconsonance for the purposes for which the rules are made by him and all other rules in this behalf. Having framed the rules for appointment Hon'ble Chief Justice may not violate them for the purposes other than the exigency of service which may vary from time to time. It will not be prudent for the Court under Art. 226 to define such exigencies. It is sufficient to observe that such powers are conferred with great trust and confidence. It is difficult to conceive that a high constitutional functionary vested with the powers to protect the right of the citizen of the State would violate these rights in exercise of his extraordinary powers. All such powers are conferred to carry out the purpose of the rules and must be used only for that purpose.

17. In the present case the counsel for the High Court is not in a position to explain as to why the selections have been delayed for such a long period of time. The last selection of Class III posts of the direct recruitment in the establishment of the High Court was held in 1999. Thereafter the sanction of fresh posts in pursuance of directions issued by this Court and Hon'ble Supreme Court and the vacancy has created alarming shortage of staff. The High Court however has not been able to fill up these posts. The advertisement issued in 2004 was cancelled and fresh advertisement was issued for filling up 150 posts on 31 July, 2006. The selections are still pending. If it is really so difficult to select the clerical staff by holding examination, the High Court could have considered to hand over this task to a specialised agency keeping the supervision to itself or to appoint a special cell to complete the process of selection.

18. The fact remains that for last eight years the Registry of the High Court has not been able to fill up the vacancies in Class III posts by direct recruitment and in the meantime large number of appointments have been made by Hon'ble Chief Justice. These appointments made under Rules 41 and 45 of the Rules of 1976 in such unexplained exigencies are likely to raise apprehensions in the minds of the aspirants to these posts and to believe that the only method of appointments in the High Court is to gain proximity to Hon'ble Chief Justice. In the present case the petitioner has succeeded in bringing on record that the beneficiaries of the ad hoc appointments are only the kith and kin of the staff of the Court, office-bearers of the employees unions and office-bearers of the Bar Association. The petitioner has proved on record that these ad hoc appointments were not made by following any process of selection and were secured only by pleasing the then Hon'ble Chief Justices. There was no other criteria nor any such criteria has been placed on the record to inspire confidence in the merit of these ad hoc appointments. Ad hocism raises suspicion and ad hocism laced with favouritism confirms arbitrariness.

19. With the amendment of the rules and the change of qualifications the petitioner was rendered ineligible to apply for the post, readvertised by the High Court on 31 July, 2006. The petitioner has not cared to amend the writ petition by either challenging the amendment in the qualifications to the post of assistant review officer or the fresh advertisement. The writ-petitioner as such cannot be granted any relief in the writ petition.

20. The Court however will fall in its duty, if it does not observe that the public confidence in the administration of justice can be maintained by following the high traditions of judicial ethics, morality and strict observations to the rules. The law laid down by Constitution Bench in Secretary, State of Karnataka v. Umadevi, [2006 (3) L.L.N 78], is to be followed by all authorities in India including Hon'ble the Chief Justice of the High Courts. The Supreme Court has held in Paras. 47 and 48, at pages 100 and 101, as follows:

“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

48. It was then contended that the rights of the employees thus appointed, under Arts. 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daliy wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daliy wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since a regular appointment could be made only by making appointments consistent with the requirements of Arts. 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on dally wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Arts. 14 and 16 of the Constitution are therefore overruled.”

(emphasis supplied)

21. Following the observations of the Constitution Bench of the Apex Court, the Court expects that all appointments made by Hon'ble Chief Justice in exercise of his powers under Rules 41 and 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, will be subject to the regular selection by direct recruitment in accordance with the Rule 8 of these Rules and that these appointees will not be confirmed and regularised.

22. The writ petition is disposed of with these observations.

Devendra Kumar Pandey v. Hon'Ble High Court Of Judicature At Allahabad And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

High Court and Private Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Devendra Kumar Pandey v. Hon'Ble High Court Of Judicature At Allahabad And Others

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