Shravan Kumar Shukla And Others v. High Court Of Judicature At Allahabad And Others

Dilip Gupta, J. -

The respondent Nos. 1 to 3 are represented by Shri Amit Sthalekar, respondent No. 4 by the learned Standing Counsel, respondent No. 6 by Shri V.P. Mathur, respondent No. 11 by Shri Rishi Chaddha and respondent Nos. 13 to 16 by Shri Krishna Ji Khare, Advocate, respondent Nos. 5, 7, 8, 9,10 and 12 had been served through registered post at the address of the Registry of this High Court where they are working.

2. This special appeal has been filed against the impugned judgment and order dated 29.11.2006 of a learned Judge of this Court, by which the writ petitions of the petitioners-appellants have been dismissed.

3. The High Court issued an advertisement in 1999 to fill up 135 posts of Routine Grade Clerks (hereinafter called the "R.G.C."). A select list containing the panel of 165 candidates was prepared, out of which 135 candidates had been appointed.

4. The contention raised on behalf of the petitioners before the learned Judge was that as their names appeared in the waiting list, they should have been offered appointments in view of the provisions of Rule 10(4) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter called the 'Rules 1976') but the High Court arbitrarily appointed the private respondents without following the due procedure as not even the advertisement was issued. This contention was rejected by the learned Judge holding that as all the 135 vacancies advertised had been filled up, the selection process stood exhausted and waiting list could not be utilised thereafter; appointments of the private respondents were in accordance with the provisions of Rule 45 of the Rules, 1976 which empowers the Chief Justice to pass such orders, as he may deem fit, in respect of recruitment, promotion, confirmation or any other matter.

5. Shri K.M. Singh, learned Counsel for the appellants vehemently urged that the appointments of private respondents should be quashed on the ground that they had been appointed illegally and arbitrarily without even advertising the vacancies; appellants being the candidates in the waiting list ought to have been appointed in case the vacancies occurred during the life time of the said select list.

6. Shri Amit Sthalekar, learned Counsel for the High Court has placed a very reliance upon Rule 45 of the Rules, 1976, which confers unfettered powers upon Hon'ble the Chief Justice to make appointments without complying with the other provisions of the said Rules. He further submitted that the appointment could be made even without advertising the vacancies as the said rule contained non obstinate clause, which would prevail over all other rules contained therein. Further, only 135 posts had been advertised and all of them had been filled up, thus selection process stood exhausted and the appellants could not claim any relief. He further submitted that Rule 10(4) of the Rules, 1976 cannot be treated to be a reservoir to fill up the vacancies whenever the same occur in future, as it has categorically been held by the Hon'ble Apex Court that appointment cannot be made over and above the number of vacancies advertised. Petitioners/appellants could not maintain the writ petition for quashing the said appointments on the ground that the same had been made without advertising the vacancies, as they had no locus standi. In past, most of the vacancies in Class-TV and some in Class-Ill had been filled up in the same manner and nobody raised the finger to the said appointments made by the Chief Justice.

7. Thus, in view of the above, it has to be seen whether the provisions of Rule 45 of the Rules, 1976 can be read completely ignoring the provisions contained in Articles 14 and 16 of the Constitution, as the said rule gives unfettered power upon Hon'ble the Chief Justice to pass such order as he may consider fit in respect of recruitment and as to whether the consideration of Hon'ble the Chief Justice in a particular case is permissible in violation of mandate of Articles 14 and 16 of the Constitution. It has also to be seen whether the petitioners-appellants could claim appointment merely on the basis that their names appeared in the select list even though all the 135 posts that had been advertised have been filled up.

8. The other issues involved herein is as to whether the petitioners-appellants have any right to challenge the appointment of private respondents even if they had been appointed illegally and in case appointments had been made in the past in the same manner, whether it can be accepted to be binding on the Court.

9. Elaborating his arguments, Shri K.M. Singh, learned Counsel for the appellants submitted that any appointment made in violation of mandate of Articles 14 and 16 of the Constitution of India is not only irregular but illegal and cannot be sustained in view of the judgments rendered in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and others, AIR 1992 SC 789; State of Haryana v. Piara Singh, AIR 1992 SC 2130; Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (2) ESC 543 (FB); Prabhat Kumar Sharma v. State of UP., AR 1996 SC 2638; J.A.S. Inter College, Khurja v. State of U.P., (1996) 10 SCC 71; M.P. Housing Board and another v. Manoj Shrivastava, (2006) 2 SCC 702 and M.P. State Agro Industries Development Corporation Ltd. and another v. S.C. Pandey, (2006) 2 SCC 716, wherein it has been held that any appointment even on ad hoc or temporary basis, is to be made after advertising the vacancy.

10. In Suresh Kumar and others v. State of Haryana and others, 2001 AIR SCW 2545, the Hon'ble Supreme Court upheld the Full Bench judgment of the Punjab and Haryana High Court wherein 1600 appointments that had been made in the Police Department had been quashed as they were made without advertisement, though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.

11. In Binod Kumar Gupta and others v. Ram Ashray Mahoto and others, AIR 2005 SC 2103, the Supreme Court did not accept the contention that appointment could be made in the Class-TV employees in Subordinate Courts under the Civil Court Rules, without advertisement in the newspapers inviting applications for the posts as there was a lack of transparency and violated the provisions of Article 16 of the Constitution. The Court terminated the services of such appointees who had worked 15 years observing that the Court "would be guilty of condoning a gross irregularity in their initial appointment".

12. In H.C. Puttaswamy and others v. The Hon'ble Chief Justice of Karnatka High Court, Bangalore and others, AIR 1991 SC 295, while dealing with a similar situation and interpreting the provisions of Article 229 (2) of the Constitution and Karnataka State Civil Services (Recruitment to Ministerial Posts) Rules, 1966, the Hon'ble Apex Court held as under :

"While the administration of the Courts has perhaps, never been without its critics, the method of recruitment followed by the Chief Justice appears to be without parallel. The learned Judges of the High Court have in a considered judgment allowed the writ petitions and quashed all these appointments. They have expressed the view that the appointments made by the Chief Justice were very serious violation of statutory law and constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16(1). From the foregoing narration of events and by the rules of recruitment, it seems to us that there cannot be two opinions on the conclusion reached by learned Judges. The methodology adopted by the Chief Justice was manifestly wrong and it was doubtless deviation from the course of law which the High Court has to protect and preserve.

The judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute in our opinion, substantial part of the mosaic which represents the ordinary man's perception of what the Courts are and how the Judges go about their work. The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by the Chief Justice. The object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff and complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law; not in the neighborhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others, must necessarily maintain a higher standards of ethical and intellectual rectitude. The public expectations do not seem to be less exacting."

13. The aforesaid observations are in consonance with the phrase "Rule of Law" and they remind the famous words of Bract on - "The King is under no man but under God and the Law". No one is above law. Lord Denning's dictum - "Be you ever so high, the law is above you" is applicable to all irrespective of his status, religion, cast, creed, sex or culture. The Constitution is the supreme law. All the institutions, be it legislature, execution or judiciary, being created under the Constitution, cannot ignore it.

14. The grievance of the petitioners-appellants is that the private respondents had been appointed without following the procedure prescribed by law and their services have been regularised in contravention of the mandate of the Hon'ble Apex Court in Piara Singh (supra), wherein it has been observed that only those persons who have been appointed in accordance with law, can be considered for regularisation.

15. Similar view has been reiterated by the Hon'ble Apex Court in Secretary, State of Karnataka and others v. Umadevi and others, (2006) 4 SCC 1, observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourage the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.

16. In Union Public Service Commission v. Girish Jayanti lal Vaghela and others, 2006 AIR SCW 844, the Hon'ble Supreme Court held as under :

"..........The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted Committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made...........Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates arid without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution....."

17. In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others, (1996) 6 SCC 216, the Larger Bench of the Hon'ble Supreme Court reconsidered its earlier judgment in Union of India and others v. N. Hargopal and others, AIR 1987 SC 1227, wherein it had been held that insistence of requirement through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said articles of the constitution. Same view has been reiterated in Arun Tewari and others v. Zila Manaswavi Shikshak Sangh and others, AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapur and others, (2000) 9 SCC 405 and Subhas Chand Dhrupta and another v. State of H.P. and others, (2000) 10 SCC 82. Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.

18. It has been submitted by Shri Singh, learned Counsel for the appellants that the provisions of Rule 45 of the Rules, 1976 enables the Chief Justice to make appointment overriding the provisions of the Statute but such a course is not permissible if the procedure so adopted violates the mandate of the Constitution. The non obstante clause cannot be given effect in such a manner that it contravenes the scheme of the Constitution. This submission is required to be considered in view of the law laid down by the Hon'ble Apex Court in Aswini Kumar Ghose v. Arvinda Bose, AIR 1952 SC 369, wherein it was observed as under :

"The enacting part of a Statute must, where it is clear, be taken to control the non obstante clause, where both cannot be read harmoniously."

19. In A.G. Varadarajulu v. State of Tamil Nadu and others, AIR 1998 SC 1388, the Hon'ble Apex Court observed as under :

"It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a Section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the Section."

20. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and others v. Union of India, AIR 1971 SC 530, Hidayatullah, J., observed as under:

"The non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. "A search has, therefore, to be made with a view to determining which provision answers the description and which does not"."

21. Similar view has been reiterated in Naval Singh v. State of U.P., (2003) 8 SCC 117.

22. Shri Amit Sthalekar, learned Counsel appearing for the respondent Nos. 1 to 3, has submitted that it is not permissible for the appellants to challenge the appointment of the private respondents herein as they have no locus standi for the reason that their names appeared in the select list which stood exhausted as all the 135 advertised vacancies stood filled up and even a writ of quo warrant to cannot be entertained on their behalf as they had no locus. The submissions so made is to be considered in the light of the judgment of Hon'ble Apex Court in University of Mysore v. CD. Govinda Rao, AIR 1965 SC 491, wherein dealing with the nature and scope of writ of quo warranto, the Hon'ble Supreme Court observed as under :

"Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty is called up to show by what right he holds the said office........... In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions....... It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority and that necessarily leads to the enquiry as to whether the appointment of said alleged usurper has been made in accordance with law or not."

23. In a writ of quo warranto, challenge can be made on various grounds including on the grounds that the possessor of the office doc? not fulfill the required qualification or suffers from any disqualification and when such a writ is prayed, it is no defence to say Kit the appointment was made by the Competent Authority when, under the law, is not answerable to any Court for anything done in performance of duties of his office, if the allegations of breach of the Constitutional mandate is alleged.

24. In B.R. Kapur v. State of Tamil Nadu and others, AIR 2001 SC 3435, the appointment of Ms. Jai Lalitha as a Chief Minister of Tamil Nadu by the Governor of the said State was held to be arbitrary in violation of Article 14 of the Constitution as she stood disqualified for holding such a post.

25. Similar view has been reiterated in Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213.

26. In S.R. Chaudhury v. State of Punjab and others, AIR 2001 SC 2707, the appointment of one Tej Prakash Singh as a Minister without being an elected member of the legislature was challenged contending that he continued for a period of six months and after giving an artificial break of few days, he was again appointed and such a course was not permissible.

The Hon'ble Supreme Court accepted the submissions observing as under:

"The practice would be clearly derogatory to the Constitutional scheme, improper, undemocratic and invalid. Article 164(4) is at best only in the nature of an exception to the normal rule of only members of the Legislature being Minister, restricted to a short period of six consecutive months. This exception is essentially required to be used to meet a very extraordinary situation and must be strictly construed and sparingly used....... Democratic process which lies at the core of our Constitutional schemes cannot be permitted to be flouted in this manner."

27. A writ of quo warranto is maintainable provided it is proved that the appointment had been made contrary to the statutory rules or scheme of the Constitution. (Vide Mor Modern Cooperative Transport Society Ltd. v. Financial Commissioner, AIR 2002 SC 2513).

28. It is also submitted that writ of quo warranto or habeas corpus can be maintained by a person who may not be aggrieved at all. (Vide Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 1988; Vinay Kumar v. State of U.P., AIR 2001 SC 1739 and Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33).

29. It is well established rule of interpretation of a statute by reference to the exposition it has received from contemporary authority. However, the Apex Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous. Simi­larly, in Collector of Central Excise, Bombay and another v. M/s. Park Export (P) Ltd., AIR 1989 SC 644, the Hon'ble Supreme Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd., Cuttack v. The Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028, the Hon'ble Supreme Court has applied the same rule of interpretation by holding that

"contemporaneous ex position by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instru­ment."

Same view has been taken by the Hon'ble Supreme Court in State of Madhya Pradesh v. G.S. Daal and Flour Mills (supra) and Y.P. Chawla and others v. M.P. Tiwari and another, AIR 1992 SC 1360. In N. Suresh Nathan v. Union of India and others, 1992 (Suppl) 1 SCC 584 and M.B. Joshi and others v. Satish Kumar Pandey and others, 1993 (Suppl) 2 SCC 419, the Apex Court observed that construction in consonance with long standing practice prevailing in the concerned department is to be preferred.

30. In M/s. v. K. Cotton Spinning and Weaving Mills Ltd. and another v. Union of India and others, AIR 1988 SC 191, it has been held that the maxim is applicable in construing ancient statute but not to interpret Acts which are comparatively modern and an interpretation should be given to the words used in context of the new facts and situation, if the words are capable of comprehending them. Similar view had been taken by the Apex Court in Senior Electric Inspector and others v. Laxminarayan Chopra and another, AIR 1962 SC 159.

31. In Desh Bandhu Gupta and Co. and others v. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporaneous ex position, i.e., interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e., the contemporan­eous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune and another v. Bharat Forge Co. Ltd. and others, AIR 1996 SC 2856). In D. Stephen Joseph v. Union of India and others, 1997 (4) SCC 753, the Hon'ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules.

32. However, in Laxminarayan R. Bhattad and others v. State of Maharashtra and another, AIR 2003 SC 3502, the Apex Court held that

"the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of Law dealing with the matter"

.

33. Thus, in view of the above, it can be held that if the practice followed is contrary to law, it cannot be followed.

34. We have heard the learned Counsel for the parties at length and considered the aforesaid legal issues.

35. However, at this juncture, learned Counsel appearing for the parties prayed for some time to prepare the case further.

36. As we are adjourning the case as suggested by Shri Sthalekar, it would be appropriate that the un-represented respondents be served again through the Registry of this Court and for that purpose, learned Counsel for the appellants shall take appropriate steps to serve the said respondents by furnishing notices upon Shri Amit Sthalekar within five days from today and the said respondents shall be served within three days thereafter through the Registry of this Court and affidavit of service to that effect may be filed on the next date of listing.

37. List/put up this Special Appeal on 13.2.2007.

Order accordingly.