Citation Codes

Equivalent Citations

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Case Number

Special Appeal No. 563 of 2008, Special Appeal No. 1152 of 2007, Special Appeal No. 563 of 2008 and Special Appeal No. 1152 of 2007

Advocates

Mr. Amit Sthalekar.
Mr. C.L Pandey, Sr. Advocate, Mr. Arvind Srivastava, Mr. Somesh Khare.
Mr. C.L Pandey, Sr. Advocate, Mr. Arvind Srivastava, Mr. Somesh Khare, Mr. R.C Shukla, Mr. Krishnaji Khare, Mr. Arvind Tripathi, Mr. I.R Singh, & Mr. Pankaj Dubey.
Mr. Amit Sthalekar, Mr. Arvind Tripathi, Mr. V.P Mathur, & Mr. Pankaj Dubey.
(In Special Appeal No. 563 of 2008)
(In Special Appeal No. 1152 of 2007)

Judges

Hon’ble Mr. Justice Amitava Lala (ACJ)
Hon’ble Mr. Justice Ashok Srivastava

Acts

ARTICLE 229 CONSTITUTION OF INDIA
Rule 40(3) of the Rules, 1976
Rule 8 of the Rules, 1976

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Smart Summary

Judgment Summary (Amitava Lala, J.; concurred by Ashok Srivastava, J.)

Factual and Procedural Background

These two special appeals arise from a common Single Judge judgment and order dated 27 July 2007 in Civil Misc. Writ Petition No. 45922 of 2004 (Devendra Kumar Pandey v. Hon'ble High Court of Judicature at Allahabad). One appeal (Special Appeal No. 563 of 2008) was preferred by the High Court itself; the other (Special Appeal No. 1152 of 2007) was preferred by employees of the High Court.

In 2004 some persons (either appellants or respondents in these appeals) were appointed on an ad hoc basis by the then Chief Justice to posts described as Routine Grade Clerks. Prior to those appointments a public advertisement had been issued for recruitment to Routine Grade Clerk (Class-III) posts. The writ petitioner (Devendra Kumar Pandey), who had applied pursuant to that advertisement, challenged the ad hoc appointments by filing the writ petition.

The earlier advertisement was cancelled in view of amendment of the relevant Rules. A fresh advertisement was issued on 31 July 2006; the writ petitioner did not apply under that fresh advertisement. The Single Judge disposed of the writ petition on 27 July 2007, recording that because of the amendment to qualifications the petitioner was rendered ineligible to apply for the re-advertised post and had not amended the writ petition to challenge the amended qualifications or the fresh advertisement.

Although the Single Judge observed no relief could be granted to the petitioner, he relied on the Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi (2006 (4) SCC 1) to direct that the ad hoc appointees would be subject to regular selection by direct recruitment under Rule 8 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (“Rules, 1976”) and would not be confirmed or regularised. That part of the order was challenged by the High Court and its employees in these appeals.

Legal Issues Presented

Whether the Single Judge was justified in directing that the ad hoc appointees (appointed by the Chief Justice under Rules 41 and 45 of the Rules, 1976) would be subject to regular selection and would not be confirmed or regularised by applying the ratio of Uma Devi (2006 (4) SCC 1).
Whether appointments made by the Chief Justice under Rules 41 and 45 and under powers conferred by Article 229 of the Constitution can be regarded as illegal/irregular or fall within the scope of Uma Devi.
Whether the writ petitioner (who, by the Single Judge's own finding, was rendered ineligible by the amended qualifications and did not amend his petition to challenge those amendments or the fresh advertisement) had locus to obtain the relief granted in respect of other appointees.

Arguments of the Parties

Appellants' Arguments (High Court and employees)

If no relief could be granted to the writ petitioner (because he was ineligible and had not amended his petition), the writ petition should have been dismissed instead of granting relief adversely affecting other appointees.
The Single Judge erred in applying the ratio of Uma Devi to appointments made by the Chief Justice; appointments made by the Chief Justice under Rules 41 and 45 (and the powers conferred by Article 229) are sovereign, plenary and valid and cannot be abridged by Uma Devi.
The ad hoc appointments were not temporary/contractual/casual (as distinguished from the factual scenario in Uma Devi) and were made in accordance with the relevant Rules and the Chief Justice's powers; therefore they were neither illegal nor irregular.
Following a merger of the Routine Grade Clerk cadre into the Assistant Review Officer cadre (by order dated 19 October 2005 under Rule 40(3)), and cancellation of the earlier advertisement, holding of a regular selection to the now-dead Routine Grade Clerk cadre did not arise.

Respondent / Writ Petitioner (as recorded)

The respondent's counsel did not dispute the existence of the Chief Justice's power but contested the manner or use of that power. (The opinion records: “he has nothing to say with regard to availability of power of the Chief Justice but with regard to use of such power.”)
The writ petitioner had originally challenged the ad hoc appointments but did not amend his petition to challenge the amended qualifications or the fresh advertisement issued in 2006 and thus, by the Single Judge's own earlier observations, could not be granted relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCC 1	Criticism of courts/tribunals regularising service through “back door” and elimination of certain irregular/illegal appointments where courts had regularised such appointments.	The Single Judge relied upon Uma Devi to direct that the ad hoc appointees would be subject to regular selection and would not be regularised. The appellate court examined Uma Devi but held that its scope does not extend to appointments made by a Chief Justice under Article 229 and Rules framed thereunder.
Mohd. Shafi Pandow v. State of J&K, 2001 (10) SCC 447	Referenced as authority on related jurisprudence.	The court observed that the ratio propounded in this case (as cited) does not say that Uma Devi applies to appointments by the Chief Justice.
Chairman & MD, BPL Ltd. v. S.P. Gururaja, 2003 (8) SCC 567	Referenced as authority on related jurisprudence.	The court noted that the ratio in this case does not support extending Uma Devi to bar the Chief Justice's appointments.
Gurpreet Singh Bhullar v. Union of India, 2006 (3) SCC 758	Referenced as authority on related jurisprudence.	The court recorded that this decision does not say that the Chief Justice's appointments fall within the scope of Uma Devi.
K. Manjusree v. State of Andhra Pradesh, 2008 (3) SCC 512	Referenced as authority on related jurisprudence.	The court observed that this authority likewise does not indicate that Uma Devi applies to appointments made by the Chief Justice under Article 229.
Mukul Saikia v. State of Assam, 2009 (1) SCC 386	Referenced as authority on related jurisprudence.	The court noted that this case does not support the proposition that Uma Devi applies to the Chief Justice's appointments.
M. Gurumoorthy v. The Accountant General, Assam & Nagaland, AIR 1971 SC 1850	Constitution Bench holding that exclusive power is conferred on the Chief Justice by Clause (1) read with Clause (2) of Article 229 for appointments and prescribing conditions of service; Governor's approval limited to sub-rules concerning salaries/allowances/leave/pension.	The court relied on this Constitution Bench decision to hold that the Chief Justice's power of appointment under Article 229 is exclusive and that Uma Devi has not overruled or touched this ratio; accordingly the Chief Justice's appointment power is outside Uma Devi's scope.
High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, 1998 (3) SCC 72	Held that the Chief Justice has wide powers to run High Court administration independently and is not to brook interference.	The court invoked this ratio to support the proposition that the Chief Justice is vested with wide administrative powers, which should not be lightly interfered with by judicial orders affecting administrative decisions.
Union of India v. Kali Dass Batish, 2006 (1) SCC 779	Three-Judge Bench holding that Parliament reposed faith in the Chief Justice of India as paterfamilias and that it is not open to suggest concurrence was given without application of mind.	The court cited this decision by analogy to reinforce the view that when exclusive appointment power is vested in the Chief Justice (under Article 229), that power cannot be lightly abridged or impugned.

Court's Reasoning and Analysis

The court proceeded by examining the statutory and constitutional framework, the factual record and the precedents cited.

Rules and statutory framework: The court set out Rules 41 and 45 of the Rules, 1976, which confer residuary powers and specific powers on the Chief Justice to make orders in respect of recruitment, promotion, confirmation and other matters. The preamble to the Rules records they were made under Clause (2) of Article 229 of the Constitution.
Source of recruitment and factual status: The court noted that Rule 8 (as substituted in 1989) provides direct recruitment through competitive examination conducted by the Appointing Authority or in such manner as directed by the Chief Justice, and therefore the ad hoc appointments were made according to the rules as they stood.
Effect of merger and cancellation: The court recorded that by an order dated 19 October 2005 the cadre of Routine Grade Clerk was declared a dead cadre and merged with Assistant Review Officer cadre (under Rule 40(3)). Once the earlier advertisement for Routine Grade Clerk was cancelled, holding of a regular selection for the old cadre did not arise.
Scope of Uma Devi: The court analysed Uma Devi as a decision criticising the regularisation of services by courts/tribunals through a “back door” and eliminating irregular appointments in particular circumstances. However, the court concluded that Uma Devi was not intended to, and does not, eliminate or qualify the exclusive appointment power of a Chief Justice exercised under Article 229 and rules framed thereunder.
Reliance on M. Gurumoorthy: The court relied heavily on the Constitution Bench decision in M. Gurumoorthy which held that Clause (1) read with Clause (2) of Article 229 confers exclusive power on the Chief Justice over appointments and prescribing conditions of service, subject only to limited matters where Governor's approval is required. The court found that M. Gurumoorthy remains binding and has not been overruled by Uma Devi.
Administrative deference and restraint: The court emphasised institutional considerations — that the Chief Justice, as head of the High Court, is entrusted with administrative decisions about staffing and that judicial interference with such administrative actions requires restraint. The court invoked other authorities (e.g., Rajasthan v. Ramesh Chand Paliwal and Union of India v. Kali Dass Batish) to underline the wide discretionary administrative powers of a Chief Justice.
Locus and procedural posture: The court noted the Single Judge himself had observed the writ petitioner could not be granted relief (because of ineligibility and failure to challenge the amended qualifications or fresh advertisement). On that basis, and because the employer (High Court) and employees both challenged the Single Judge's direction, the appellate court found the Single Judge's direction (imposing Uma Devi consequences) to be perverse and unjustified in the circumstances.

Holding and Implications

Holding (core ruling): The appeals succeed and are allowed. The direction given by the Single Judge in Paragraph 21 of the impugned judgment dated 27 July 2007 (which applied the observations in Uma Devi to disallow confirmation/regularisation of the appointees) is set aside. The writ petition is treated as dismissed on the basis of the Single Judge's earlier observations.

Consequential and practical implications for the parties:

The Registrar General is directed to take appropriate steps regarding confirmation/regularisation and consequential relief of the employees concerned in accordance with the applicable rules.
No order as to costs was made.
The court concluded that the Chief Justice's power of appointment under Article 229 and the Rules, 1976 is outside the scope of Uma Devi as applied by the Single Judge; the judgment restores the administrative authority of the Chief Justice in the circumstances described.

The opinion does not state that it establishes a broad new precedent beyond its application to the facts; its effect is to reverse the Single Judge's direction in this case and to uphold the validity of the impugned appointments in the circumstances described.

Bench: Amitava Lala, J. (author). Justice Ashok Srivastava concurred.

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Hon'Ble High Court Of Judicature At Allahabad Through Its Registrar General And Another v. Devendra Kumar Pandey And Others S

Amitava Lala, J.—Both the aforesaid special appeals are arising out of selfsame judgement and order dated 27th July, 2007 passed by the learned Single Judge in Civil Misc. Writ Petition No. 45922 of 2004 (Devendra Kumar Pandey v. Hon'ble High Court of Judicature at Allahabad). When Special Appeal No. 563 of 2008 has been preferred by the High Court itself, the other one i.e Special Appeal No. 1152 of 2007 has been preferred by the employees of the High Court.

The brief facts giving rise to these appeals are that in the year 2004 some persons, who were respondents in the writ petition and either appellants or respondents in the present appeals, were appointed by the then Chief Justice on adhoc basis and they are continuing in service till date. Prior to such appointment, an advertisement was published by this High Court for appointment on the post of Routine Grade Clerks i.e Class-III posts as per the advertisement. The writ petitioner, who is respondent no. 1 in both the aforesaid special appeals and who had applied for selection pursuant to such advertisement, challenged the appointments made by the then Chief Justice by filing Civil Misc. Writ Petition No. 45922 of 2004. Subsequently, such advertisement was cancelled in view of the amendment of relevant Rules. Again fresh advertisement was issued by the High Court on 31st July, 2006, but the writ petitioner never applied pursuant to such advertisement. Such writ petition was disposed of by the learned Single Judge by impugned judgement and order dated 27 July, 2007. In the impugned judgement learned Single Judge himself has recorded that with the amendment of the Rules and the change of qualifications the petitioner was rendered ineligible to apply for the post re-advertised 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 can not be granted any relief in the writ petition. The writ petition could have been dismissed with the above observations but learned Single Judge felt otherwise and relying upon a Constitution Bench judgement of the Supreme Court reported in 2006 (4) SCC 1 [Secretary, State of Karnataka v. Uma Devi] held that appointments of the appointees will be subject to regular selection by direct recruitment in accordance with the Rule 8 and these appointees will not be confirmed and regularized. Such part of the order has been challenged by the High Court and its employees in these special appeals.

The contention of the appellants in the present appeals is that if no relief can be granted in favour of the writ petitioner, the writ petition is liable to be dismissed. The error of judgement of the learned Single Judge is that in spite of saying that the writ petitioner as such can not be granted any relief in the writ petition, observed that the ratio of Uma Devi (supra) is to be followed by all authorities in India including Hon'ble the Chief Justice of the High Courts, therefore, all appointments made by the 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 (hereinafter in short called as the “Rules, 1976”) will be subject to regular selection by direct recruitment in accordance with Rule 8 of the Rules, 1976 and that these appointees will not be confirmed and regularised. According to them, if the very foundation in the writ petition goes, no superstructure can remain.

In the instant case, High Court, which is the employer, and the employees, who have been appointed by the then Hon'ble the Chief Justice and whose appointments were challenged in the writ petition, both are aggrieved by the same order of the learned Single Judge and have preferred these appeals independently from the same order, therefore, it can be safely construed that there is no conflict of interest between the High Court as an employer and its employees. Against this background, we have to see whether passing of such order at the instance of the respondent/writ petitioner, who had no locus, was justified or not. At least the ratio propounded in 2001 (10) SCC 447 (Mohd. Shafi Pandow v. State of J&K), 2003 (8) SCC 567 (Chairman & MD, BPL Ltd. v. S.P Gururaja), 2006 (3) SCC 758 (Gurpreet Singh Bhullar v. Union of India), 2008 (3) SCC 512 (K. Manjusree v. State of Andhra Pradesh) and 2009 (1) SCC 386 (Mukul Saikia v. State of Assam) does not say so.

Admittedly, appointment of the appointees, who are either appellants or respondents in these appeals, were made on adhoc basis by the then Hon'ble the Chief Justice in the year 2004 under Rules 41 and 45 of the Rules, 1976. Rules 41 and 45 of the Rules, 1976, which are relevant for the purpose, are as follows:

“41. Residuary powers.—Nothing in these rules shall be deemed to affect the power of the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters, incidental or ancillary to these rules, not specifically provided for herein or in regard to matters as have not been sufficiently provided for:

Provided that if any such order relates to salaries, allowances, leave or pension, the same shall be made with the approval of the Governor of U.P”

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

The preamble of the Rules, 1976 speaks that in exercise of the powers conferred by Clause (2) of Article 229 of the Constitution of India, the Chief Justice of the High Court of Judicature at Allahabad makes the following rules with respect to the conditions of service of persons serving on the staff attached to the High Court of Judicature at Allahabad. The appointments under challenge made on adhoc basis appear to be on the post of Routine Grade Clerk. Source of recruitment on Class-III posts as per Rule 8(a)(i), substituted by notification dated 27 October, 1989, is that direct recruitment will be made through competitive examination conducted by the Appointing Authority or in any manner so directed by the Chief Justice. Therefore, the appointments of such employees are as per the respective rules.

So far as Constitution Bench judgement of the Supreme Court in Uma Devi (supra) is concerned, it criticised passing of orders by the Courts regularising the services through back door process making burden on the Union of India or the State only out of sympathy for the continuance of service ignoring the process of appointment. In this case employer and employees are not in dispute. Even the Supreme Court in Uma Devi (supra) has eliminated irregular appointments under certain circumstances from illegal appointments with the intervention of orders of the Courts or of tribunals.

Moreover, by an order of the then Chief Justice dated 19 October, 2005 the cadre of Routine Grade Clerk was declared as dead cadre as per Rule 40(3) of the Rules, 1976 and merged with the cadre of Assistant Review Officer (Lower Division Assistant in the pattern of civil secretariat). As a result whereof, the condition stipulated in the appointment letters of all the incumbents working as Routine Grade Clerk looses force. A deponent on the part of the Registry of the High Court has stated that by virtue of merger of the posts of Routine Grade Clerk with the Assistant Review Officer and the advertisement as made on 17 April, 2004 for 79 posts of Routine Grade Clerks having been cancelled, no recruitment can be made to such posts and accordingly, holding of any regular selection by direct recruitment to the post of Routine Grade Clerk does not arise. It has been contended by the appellants that the adhoc appointments as made in the case herein are neither temporary nor contractual nor casual, as was in the case of Uma Devi (supra). Moreover, such appointments are neither illegal nor irregular but in accordance with the relevant Rules and powers of the Chief Justice of a High Court. Such power is sovereign and plenary in nature, which can not be questioned with the reference of Uma Devi (supra). Learned Counsel appearing for the respondent-writ petitioner has only contended that he has nothing to say with regard to availability of power of the Chief Justice but with regard to use of such power of the Chief Justice.

Upon hearing the parties, it can be construed that when the Chief Justice is empowered to appoint a person under the Rules framed in exercise of powers conferred under Article 229(2) of the Constitution of India, the appointment of the person can not be said to be illegal or irregular. Against this background, for the purpose of satisfaction of our conscience another Constitution Bench judgement of the Supreme Court is seen. Such judgement is reported in AIR 1971 SC 1850 (M. Gurumoorthy v. The Accountant General, Assam and Nagaland). In such judgement the Constitution Bench of the Supreme Court has held that exclusive power is conferred on the Chief Justice by Clause (1) read with Clause (2) of Article 229 not only in the matter of appointments but also with regards to prescribing the conditions of service of officers and servants of a High Court by Rules. This is subject to any law of State Legislature but only in respect of conditions of services. The powers conferred on the Chief Justice under Clause (1) of Article 229 can not be abridged or modified in the matter of appointment. The approval of the Governor in the matter of Rules is confined only to sub-rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. This Constitution Bench judgement of the Supreme Court is apparently binding unless any contrary judgement of similar Bench to that extent is passed with regard to the power of the Chief Justice to appoint the employees of the High Court under Article 229 of the Constitution. We do not find that the ratio propounded by the Supreme Court in M. Gurumoorthy (supra) has been touched by the subsequent Constitution Bench judgement in Uma Devi (supra). Therefore, it can be safely presumed that in view of the ratio of M. Gurumoorthy (supra) the power of appointment by the Chief Justice is outside the scope and ambit of Uma Devi (supra), wherein the question arose at the instance of an employer with regard to regularisation of service by the Court or tribunal of the persons who were appointed following any back door process. It is also pertinent to mention hereunder that when the Chief Justice has taken a decision to appoint some persons to serve the High Court, it can be presupposed that such appointments are made consciously for the benefit of the institution and a faith is required to be kept by all the Judges upon him in taking such decision. The Chief Justice, being head of the institution, will be definitely worried about the necessity of appointment of employees in the Court. It is a clear case that the advertisement earlier made was cancelled and subsequent advertisement was made for the purpose of filling up the posts only in the year 2006 that too only in respect of Assistant Review Officer not with the dead cadre in which the appointees herein were appointed as Routine Grade Clerk, which subsequently in 2005 merged with Assistant Review Officer. Thus, if the Chief Justice of a High Court, being administrative head of the institution, feels pressure in respect of the workload of the High Court either in the judicial side or in the administrative side, he can not be debarred from making appointments as per the relevant Rules. Rule is categorical that manner of appointment will be as per the direction of the Chief Justice. Therefore, source of appointment is neither in dispute nor contrary to the available Rules. In the process, who has been appointed can not be the subject matter of discussion. It is absurd to believe that a Chief Justice without examining the candidature of Class-III staffs is swayed away with favouritism. Criticism of the Chief Justice in making appointment either in the judicial side or in the administrative side should be followed by the principle of “restraint’. We are bound by the ethics and judicial discipline. Merely because a judicial order of a Single Judge rule out even an administrative decision of the entire Full Court, such power should not be loosely applied. As per the ratio of 1998 (3) SCC 72 (High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal), the Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority. In dealing with the power of the Chief Justice of India a three Judges' Bench of the Supreme Court in 2006 (1) SCC 779 (Union of India v. Kali Dass Batish) has held that if Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence without application of mind or without calling for the necessary inputs. The argument, to say the least, deserves summary dismissal. Following the same analogy, when the exclusive power is given to the Chief Justice of a State, being head of the State judiciary, under Article 229 of the Constitution of India and the rules framed thereunder for appointment of his own employees being one of the sources of recruitment, the same can not be abridged or modified.

Moreover, when the writ petitioner, who has neither filed any application challenging the subsequent advertisement nor amended his writ petition, lost his case before the Single Judge himself, who did not grant any relief, there was no occasion to the learned Single Judge to take suo motu cognizance regarding appointments of others by abridging or modifying the powers of the Hon'ble the Chief Justice as per the Rules, 1976 framed in exercise of the powers conferred under Article 229 of the Constitution of India, which is sovereign and plenary in nature. Therefore, the impugned order of the learned Single Judge is per se erroneous and/or perverse. Though so many comments have been made before this Court with regard to jurisdiction of the learned Single Judge on the relevant date and time in considering the matter and keeping the matter part heard or tied up with the Bench, but one should not be critical on such issue since we have entered into the merit of the case, therefore, any discussion in this regard be dropped.

Thus, in totality, both the appeals succeed and are allowed. The direction given by the learned Single Judge in Paragraph-21 of the impugned judgement dated 27 July, 2007 following the observations of the Supreme Court judgement in Uma Devi (supra) stands set aside. The writ petition is treated to be dismissed on the basis of the observations of the learned Single Judge himself in the earlier paragraphs of the impugned judgement. Registrar General of this Court is hereby directed to take appropriate steps with regard to confirmation/regularisation and consequential relief of the employees hereunder.

However, no order is passed as to costs.

Justice Ashok Srivastava

I agree.

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