renu & ors. v. district & sessions judge, tis hazari & anr

8/13/2019 Renu & Ors. v. District & Sessions Judge, Tis Hazari & Anr.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 979 OF 2014

(Arisi! "#$ "% SLP (C& N". 2'090 "% 2011&

Renu & Ors. …Appellants

Versus

District & Sessions Judge, Tis Hazari & Anr. …Respondents

J U D M E N T

Dr. B. S. CHAUHAN) J.

1. The atter initiall! related to the appointent o" #lass $V

eplo!ees in the courts su%ordinate to Delhi High #ourt as the

dispute arose a%out the continuit! o" the eplo!ees appointed on

adhoc %asis "or '( da!s )hich stood e*tended "or the sae period

a"ter sae inter+al "ro tie to tie. The atter reached the Delhi

High #ourt and ultiatel! %e"ore this #ourt. This court +ide order

dated 1.-.1 too/ up the atter in a larger perspecti+e ta/ing

cognizance o" perpetual coplaints regarding irregularities and

illegalities in the recruitents o" sta"" in the su%ordinate courts



throughout the countr! and in order to ensure the "easi%ilit! o"

centralising these recruitents and to a/e the transparent and

trans"era%le. This #ourt suo motu issued notice to Registrar 0enerals

o" all the High #ourts and to the States "or "iling their response ainl!

on t)o points +iz. i2 )h! the recruitent %e not centralized3 and ii2

)h! the rele+ant rules dealing )ith ser+ice conditions o" the entire

sta"" %e not aended to a/e the as trans"era%le posts. All the States

and High #ourts ha+e su%itted their response and all o" the are

dul! represented in the court.

. This #ourt had appointed Shri 4.S. 5arasiha, learned senior

counsel as Aicus #uriae to assist the court. The atter )as heard on

'.1.16 and deli%erations too/ place at length )herein all the

learned counsel appearing "or the States as )ell as "or the High #ourts

suggested that the atter should %e dealt )ith in a larger perspecti+e

i.e. also "or appointents o" eplo!ees in the High #ourt and courts

su%ordinate to the High #ourt )hich ust include #lass $V posts also.

A large nu%er o" instances ha+e %een pointed out on the %asis o" the

in"oration recei+ed under the Right to $n"oration Act, - o"

cases not onl! o" irregularit! %ut o" "a+ouritis also in a/ing such



appointents. $t has %een suggested %! the learned counsel appearing

in the atter that this court has a dut! not onl! to chec/ illegalit!,

irregularit!, corruption, nepotis and "a+ouritis in 7udicial

institutions, %ut also to pro+ide guidelines to pre+ent the enace o"

%ac/door entries o" eplo!ees )ho su%se8uentl! are ordered to %e

regularised.

9. $t )as in +ie) o" the a%o+e that this #ourt +ide its earlier orders

had as/ed learned counsel appearing "or the States as )ell as the High

#ourts to e*aine the records o" their respecti+e States:#ourts and

report as to )hether a proper and "air procedure had %een adopted "or

e+aluating the candidates. A i*ed response )as recei+ed "ro

di""erent counsel on these issues.

6. $n +ie) o" the a"oresaid su%issions, )e do not thin/ it

necessar! to peruse the record in order to gauge the aount o"

irregularities or illegalities. Our %asic concern is that the appointents

in 7udicial institutions ust %e ade on the touchstone o" e8ualit! o"

opportunit! enshrined in Article 16 read )ith Article 1; o" the

#onstitution o" $ndia, 1(- hereina"ter re"erred to as the

<#onstitution=2 and under no circustance an! appointent )hich is

9



illegal should %e sa+ed "or the reason that the grie+ance o" the people

at large is that coplete dar/ness in the light house has to %e reo+ed.

The 7udiciar! )hich raises a "inger to)ards actions o" e+er! other

)ing o" the societ! cannot a""ord to ha+e this /ind o" accusations

against itsel".

-. Rule o" la) is the %asic "eature o" the #onstitution. There )as a

tie )hen R>? )as @>?. e no) see/ to sa! @>? is R>?. $t is

a*ioatic that no authorit! is a%o+e la) and no an is a%o+e la).

Article 192 o" the #onstitution pro+ides that no la) can %e enacted

)hich runs contrar! to the "undaental rights guaranteed under 4art

$$$ o" the #onstitution. The o%7ect o" such a pro+ision is to ensure that

instruents eanating "ro an! source o" la), peranent or

teporar!, legislati+e or 7udicial or an! other source, pa! hoage to

the constitutional pro+isions relating to "undaental rights. Thus, the

ain o%7ecti+e o" Article 19 is to secure the paraountc! o" the

#onstitution especiall! )ith regard to "undaental rights.

6. The a"oresaid pro+ision is in consonance )ith the legal

principle o" BRule o" @a)C and the! reind us o" the "aous )ords o"

the >nglish 7urist, Henr! de racton E BThe Fing is under no an %ut

6



under 0od and the @a)C. 5o one is a%o+e la). The dictu E Be !ou

e+er so high, the la) is a%o+e !ouC is applica%le to all, irrespecti+e o"

his status, religion, caste, creed, se* or culture. The #onstitution is the

supree la). All the institutions, %e it legislature, e*ecuti+e or

7udiciar!, %eing created under the #onstitution, cannot ignore it.

The e*ercise o" po)ers %! an authorit! cannot %e unguided or

un%ridled as the #onstitution prescri%es the liitations "or each and

e+er! authorit! and there"ore, no one, ho)soe+er high he a! %e, has

a right to e*ercise the po)er %e!ond the purpose "or )hich the sae

has %een con"erred on hi. Thus, the po)ers ha+e to %e e*ercised

)ithin the "rae)or/ o" the #onstitution and legislati+e pro+isions,

other)ise it )ould %e an e*ercise o" po)er in +iolation o" the %asic

"eatures o" the #onstitution i.e. 4art $$$ dealing )ith the "undaental

rights )hich also prescri%es the liitations.

G. Article 16 o" the #onstitution pro+ides "or e8ualit! o"

opportunit!. $t "ors the cornerstone o" our #onstitution.

$n I.R. C"*+," (-*-& %! @.Rs. /. S$$* "% Ti+ N-#, A$R

G S# ';1, the doctrine o" %asic "eatures has %een e*plained %! this

#ourt as under

-



“The doctrine of basic structure contemplates that there

are certain parts or aspects of the Constitution including

Article 15, Article 21 read with Articles 14 and 19 which

constitute the core values which if allowed to be

abrogated would change completel the nature of the

Constitution! "#clusion of fundamental rights would

result in nullification of the basic structure doctrine, the

ob$ect of which is to protect basic features of the

Constitution as indicated b the snoptic view of the

rights in %art &&&!'

'. As Article 16 is an integral part o" our s!ste, each and e+er!

state action is to %e tested on the touchstone o" e8ualit!. An!

appointent ade in +iolation o" andate o" Articles 16 and 1; o" the

#onstitution is not onl! irregular %ut also illegal and cannot %e

sustained in +ie) o" the 7udgents rendered %! this #ourt in D*+,i

D*/*+"*$ H"r$i#+$#r* E+"3**s Ui" /. D*+,i

A-iis$r$i") D*+,i 5 Ors.) A$R 1(( S# G'(3 S$$* "% Hr3

5 Ors. /. Pir Si!, 5 Ors. *$.*$.) A$R 1(( S# 193 Pr6,$

#r S,r 5 Ors. /. S$$* "% U.P. 5 Ors. , A$R 1((; S# ;9'3

J.A.S. I$*r C"++*!*) ,#r8) U.P. 5 Ors. /. S$$* "% U.P. 5 Ors. ,

A$R 1((; S# 963 M.P. H"#si! B"r- 5 Ar. /. M"8

S,ri/s$/) A$R ; S# 96((3 M.P. S$$* A!r" I-#s$ri*s

D*/*+"*$ C"r"r$i" L$-. 5 Ar. /. S.C. P-*3) ;2

;



S## G1;3 and S$$* "% M-,3 Pr-*s, 5 Ors. /. #. S-,3

T"r 5 Ar., JT 19 (2 S# 19(.

(. $n Eis* S#*ri$*-*$ M+:$) ris, Dis$ri$)

A.P. /. .B.N. Vis;*s,;r R" 5 Ors., 1((;2 ; S## 1;, a larger

ench o" this #ourt reconsidered its earlier 7udgent in Ui" "%

I-i 5 Ors. /. N. Hr!"+ 5 Ors. , A$R 1('G S# 1G, )herein it

had %een held that insistence o" re8uisition through eplo!ent

e*changes ad+ances rather than restricts the rights guaranteed %!

Articles 16 and 1; o" the #onstitution. Ho)e+er, due to the possi%ilit!

o" non sponsoring o" naes %! the eplo!ent e*change, this #ourt

held that an! appointent e+en on teporar! or ad hoc %asis )ithout

in+iting application is in +iolation o" the said pro+isions o" the

#onstitution and e+en i" the naes o" candidates are re8uisitioned

"ro >plo!ent >*change, in addition thereto, it is andator! on

the part o" the eplo!er to in+ite applications "ro all eligi%le

candidates "ro open ar/et as erel! calling the naes "ro the

>plo!ent >*change does not eet the re8uireent o" the said

Articles o" the #onstitution. The #ourt "urther o%ser+ed

“&n addition, the appropriate department(!!should call

for the names b publication in the newspapers having

G



wider circulation and also displa on their office notice

(and emploment news bulletins) and then consider the

case of all candidates who have applied! &f this

procedure is adopted, fair pla would be sub served! The

e*ualit of opportunit in the matter of emploment

would be available to all eligible candidates!'

>phasis added2

See also Ar# T*;ri 5 Ors. /. <i+ Ms/i S,i:s,: S!, 5

Ors.) A$R 1((' S# 9913 and is,"r* . P$i /. Dis$$. Is*$"r "%

S,""+s) Mi-#r 5 Ors., 2 ( S## 6-2.

1. $n S#r*s, #r 5 Ors. /. S$$* "% Hr3 5 Ors.) 92

1 S## G;, this #ourt upheld the 7udgent o" the 4un7a% & Har!ana

High #ourt )herein 1; appointents ade in the 4olice

Departent )ithout ad+ertiseent stood 8uashed though the 4un7a%

4olice Rules, 1(96 did not pro+ide "or such a course. The High #ourt

reached the conclusion that process o" selection stood +itiated %ecause

there )as " -/*r$is**$ - -#* #6+ii$3 %"r i/i$i!

+i$i"s %r" $,* *+i!i6+* -i-$*s $ +r!*.

11. $n Ui" P#6+i S*r/i* C"issi" /. iris, J3$i L+

V!,*+ 5 Ors.) A$R ; S# 11;-, this #ourt held

“!!!!!!!!The appointment to an post under the +tate can

only be made after a proper advertisement has been

'



made inviting applications from eligible candidates and

holding of selection b a bod of e#perts or a speciall

constituted committee whose members are fair and

impartial, through a written e#amination or interview or

some other rational criteria for $udging the inter se merit

of candidates who have applied in response to the

advertisement made((((( Any regular

appointment made on a post under the +tate or nion

without issuing advertisement inviting applications

from eligible candidates and 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.!!!'

>phasis added2

1. The principles to %e adopted in the atter o" pu%lic

appointents ha+e %een "orulated %! this #ourt in M.P. S$$* C"".

B: L$-.) B,"+ /. N#r =-/ 5 Ors., G2 ' S## ;6 as

under

“-1. The appointments made without following the

appropriate procedure under the rules/government

circulars and without advertisement or inviting

applications from the open mar0et would amount to

breach of Articles 14 and 1 of the Constitution of &ndia!

-2. egularisation cannot be a mode of appointment!

-3. An appointment made in violation of the mandator provisions of the statute and in particular, ignoring the

minimum educational *ualification and other essential

*ualification would be wholl illegal! +uch illegalit

cannot be cured b ta0ing recourse to regularisation!

(



-4. Those who come b bac0door should go through that

door!

-5. o regularisation is permissible in e#ercise of the

statutor power conferred under Article 12 of the

Constitution of &ndia if the appointments have been madein contravention of the statutor rules!

-. The court should not e#ercise its $urisdiction on

misplaced smpath!

-6. &f the mischief plaed is so widespread and all

pervasive, affecting the result, so as to ma0e it difficult to

pic0 out the persons who have been unlawfull benefited

or wrongfull deprived of their selection, it will neither be possible nor necessar to issue individual showcause

notice to each selectee! The onl wa out would be to

cancel the whole selection!

-7. 8hen the entire selection is stin0ing, conceived in

fraud and delivered in deceit, individual innocence has

no place and the entire selection has to be set aside!'

19. A siilar +ie) has %een reiterated %! the #onstitution ench o"

this #ourt in S*r*$r3) S$$* "% r$: 5 Ors. /. U-*/i 5

Ors.) A$R ; S# 1';, o%ser+ing that 3 "i$*$ -* in

+iolation o" the Statutor! Rules as also i /i"+$i" "% Ar$i+*s 14 -

1' "% $,* C"s$i$#$i" ;"#+- 6* #++i$3. BAdherence to Articles 16

and 1; o" the #onstitution is a ust in the process o" pu%lic

eplo!entC. The #ourt "urther re7ected the pra!er that ad hoc

appointees )or/ing "or long %e considered "or regularisation as such a

1



course onl! encourages the State to "lout its o)n rules and )ould

con"er undue %ene"its on soe at the cost o" an! )aiting to

copete.

16. $n S$$* "% Oriss 5 Ar. /. M$ M",$3, 112 9 S##

69;, this #ourt dealt )ith the constitutional principle o" pro+iding

e8ualit! o" opportunit! to all )hich andatoril! re8uires that +acanc!

ust %e noti"ied in ad+ance eaning there%! that in"oration o" the

recruitent ust %e disseinated in a reasona%le anner in pu%lic

doain ensuring a*iu participation o" all eligi%le candidates3

there%! the right o" e8ual opportunit! is e""ectuated. The #ourt held

as under

“Therefore, it is a settled legal proposition that no person can be appointed even on a temporar or ad hoc

basis without inviting applications from all eligible

candidates! &f an appointment is made b merel

inviting names from the emploment e#change or putting

a note on the noticeboard, etc! that will not meet the

re*uirement of Articles 14 and 1 of the Constitution!

+uch a course violates the mandates of Articles 14 and

1 of the Constitution of &ndia as it deprives the

candidates who are eligible for the post, from being considered! A person emploed in violation of these

provisions is not entitled to an relief including salar!

or a valid and legal appointment mandator

compliance with the said constitutional re*uirement is to

be fulfilled! The e*ualit clause enshrined in Article 1

re*uires that ever such appointment be made b an

11



open advertisement as to enable all eligible persons to

compete on merit!'

1-. here an! such appointents are ade, the! can %e challenged

in the court o" la). The 8uo )arranto proceeding a""ords a 7udicial

reed! %! )hich an! person, )ho holds an independent su%stanti+e

pu%lic o""ice or "ranchise or li%ert!, is called upon to sho) %! )hat

right he holds the said o""ice, "ranchise or li%ert!, so that his title to it

a! %e dul! deterined, and in case the "inding is that the holder o"

the o""ice has no title, he )ould %e ousted "ro that o""ice %! 7udicial

order. $n other )ords, the procedure o" 8uo )arranto gi+es the

Judiciar! a )eapon to control the >*ecuti+e "ro a/ing appointent

to pu%lic o""ice against la) and to protect a citizen "ro %eing

depri+ed o" pu%lic o""ice to )hich he has a right. These proceedings

also tend to protect the pu%lic "ro usurpers o" pu%lic o""ice )ho

ight %e allo)ed to continue either )ith the conni+ance o" the

>*ecuti+e or %! reason o" its apath!. $t )ill, thus, %e seen that %e"ore a

person can e""ecti+el! clai a )rit o" 8uo )arranto, he has to satis"!

the #ourt that the o""ice in 8uestion is a pu%lic o""ice and is held %! a

usurper )ithout legal authorit!, and that ine+ita%l! )ould lead to an

en8uir! as to )hether the appointent o" the alleged usurper has %een

ade in accordance )ith la) or not. Ior issuance o" )rit o" 8uo

1



)arranto, the #ourt has to satis"! that the appointent is contrar! to

the statutor! rules and the person holding the post has no right to hold

it. Vide T,* Ui/*rsi$3 "% M3s"r* 5 Ar. /. C.D. "/i- R" 5

Ar.) A$R 1(;- S# 6(13 S,ri #r P- Prs- /. Ui" "%

I-i 5 Ors.) A$R 1(( S# 1193 B.R. #r /. S$$* "% Ti+

N-# 5 Ar.) A$R 1 S# 969-3 T,* M"r M"-*r C">"*r$i/*

Trs"r$ S"i*$3 L$-. /. Fii+ C"issi"*r - S*r*$r3

$" "/$.) Hr3 5 Ar.) A$R S# -193 Ar# Si!, /. S$$*

"% Bi,r 5 Ors.) A$R ; S# 16193 Hri Bs, L+ /. S,"-r

Prs- M,$" 5 Ors.) A$R 1 S# 9-1-3 and C*$r+ E+*$rii$3

S#+3 U$i+i$3 "% O-is, /. D,"6*i S,"" 5 Ors.) 162 1 S##

1;12.

1;. Another iportant re8uireent o" pu%lic appointent is that o"

transparenc!. There"ore, the ad+ertiseent ust speci"! the nu%er

o" posts a+aila%le "or selection and recruitent. The 8uali"ications and

other eligi%ilit! criteria "or such posts should %e e*plicitl! pro+ided

and the schedule o" recruitent process should %e pu%lished )ith

certaint! and clarit!. The ad+ertiseent should also speci"! the rules

under )hich the selection is to %e ade and in a%sence o" the rules,

the procedure under )hich the selection is li/el! to %e underta/en.

1



This is necessar! to pre+ent ar%itrariness and to a+oid change o"

criteria o" selection a"ter the selection process is coenced, there%!

un7ustl! %ene"iting soeone at the cost o" others.

1G. Thus, the a"oresaid decisions are an authorit! on prescri%ing the

liitations )hile a/ing appointent against pu%lic posts in ters o"

Articles 16 and 1; o" the #onstitution. hat has %een deprecated %!

this #ourt tie and again is B%ac/door appointents or appointent

de hors the rulesC.

$n S$$* "% U.P. 5 Ors. /. U.P. S$$* L; O%%i*rs

Ass"i$i" 5 Ors., A$R 1((6 S# 1;-6, this #ourt )hile dealing

)ith the %ac/door entries in pu%lic appointent o%ser+ed as under

“The method of appointment is indeed not calculated toensure that the meritorious alone will alwas be

appointed or that the appointments made will not be on

the considerations other than merit! &n the absence of

guidelines, the appointment ma be made purel on

personal or political consideration and be arbitrar!

This being so those who come to be appointed by such

arbitrary procedure can hardly complain if the

termination of their appointment is equally arbitrary.

Those who come by the back-door have to go by thesame door (!rom the inception some engagements and

contracts ma be the product of the operation of the

spoils sstem! There need be no legal an#iet to save

them!' >phasis added2

1



1'. $n S" R8 5 Ors. /. S$$* "% Hr3 5 Ors., A$R 1((

S# 11G;, this #ourt held as under

“The absence of arbitrar power is the first postulate of rule of law upon which our whole constitutional edifice

is based! &n a sstem governed b ule of :aw, discretion

when conferred upon an e#ecutive authorit must be

confined within clearl defined limits! The rules provide

the guidance for e#ercise of the discretion in ma0ing

appointment from out of selection lists which was

prepared on the basis of the performance and position

obtained at the selection! The appointing authorit is to

ma0e appointment in the order of gradation, sub$ect to

an other relevant rules li0e, rotation or reservation, if an, or an other valid and binding rules or instructions

having force of law! &f the discretion is e#ercised without

an principle or without an rule, it is a situation

amounting to the antithesis of ule of :aw! ;iscretion

means sound discretion guided b law or governed b

0nown principles of rules, not b whim or fanc or

caprice of the authorit!'

1(. $n a/ing the appointents or regulating the other ser+ice

conditions o" the sta"" o" the High #ourt, the #hie" Justice e*ercises

an adinistrati+e po)er )ith constitutional %ac/ing. This po)er has

%een entrusted to the sa"e custod! o" the #hie" Justice in order to

ensure the independence o" the Judiciar!, )hich is one o" the +ital

organs o" a 0o+ernent and )hose authorit! is to %e aintained. The

discretion e*ercised %! the #hie" Justice cannot %e open to challenge,

1



e*cept on )ell /no)n grounds, that is to sa!, )hen the e*ercise o"

discretion is discriinator! or ala "ide, or the li/es2.

. >+en under the #onstitution, the po)er o" appointent granted

to the #hie" Justice under Article ( 12 is su%7ect to Article 1; 12,

)hich guarantees e8ualit! o" opportunit! "or all citizens in atters

relating to eplo!ent. Opportunit!= as used in this Article eans

chance o" eplo!ent and )hat it guaranteed is that this opportunit!

o" eplo!ent )ould %e e8uall! a+aila%le to all.

1. As a sa"eguard, the #onstitution has also recognized that in the

internal adinistration o" the High #ourt, no other po)er, e*cept the

#hie" Justice should ha+e doain. $n order to ena%le a 7udicial

inter+ention, it )ould re8uire onl! a +er! strong and con+incing

arguent to sho) that this po)er has %een a%used. $" an authorit! has

e*ercised his discretion in good "aith and not in +iolation o" an! la),

such e*ercise o" discretion should not %e inter"ered )ith %! the courts

erel! on the ground that it could ha+e %een e*ercised di""erentl! or

e+en that the courts )ould ha+e e*ercised it di""erentl! had the atter

%een %rought %e"ore it in the "irst instance or in that perspecti+e.

1



. Article 9- o" the #onstitution pro+ides "or po)er o" the High

#ourt to e*ercise coplete adinistrati+e control o+er the

Su%ordinate #ourts. This control, undou%tedl!, e*tends to all

"unctionaries attached to the Su%ordinate #ourts including the

inisterial sta"" and ser+ants in the esta%lishent o" the Su%ordinate

#ourts. $" the adinistrati+e control cannot %e e*ercised o+er the

adinistrati+e and inisterial sta"", i.e. i" the High #ourt )ould %e

denuded o" its po)ers o" control o+er the other adinistrati+e

"unctionaries and inisterial sta"" o" the District #ourt and

Su%ordinate #ourts other than Judicial O""icers, then the purpose o"

superintendence pro+ided therein )ould stand "rustrated and such an

interpretation )ould %e )holl! destructi+e to the haronious, e""icient

and e""ecti+e )or/ing o" the Su%ordinate #ourts. The #ourts are

institutions or organis )here all the li%s coplete the )hole

s!ste o" #ourts and )hen the #onstitutional pro+ision is o" such

)ide aplitude to co+er %oth the #ourts and persons %elonging to the

Judicial O""ice, there )ould %e no reason to e*clude the other li%s o"

the #ourts, nael!, adinistrati+e "unctionaries and inisterial sta""

o" its esta%lishent "ro the scope o" control. Such control is

e*clusi+e in nature, coprehensi+e in e*tent and e""ecti+e in

1



operation. Vide T,* S$$* "% ?*s$ B*!+ 5 Ar. /. Nri*-r

N$, B!,i, A$R 1(;; S# 66G3 S,ri Br-:$ Mis,r /.

R*!is$rr "% Oriss Hi!, C"#r$ 5 Ar., A$R 1(G6 S# G13

="!i$, D. B!-* /. S$$* "% M,rs,$r 5 Ar., A$R 1((( S##

9G963 S#6*-r Si!, 5 Ors. /. Dis$ri$ J#-!*) Mir@#r 5 Ar.,

A$R 1 S# 13 Hi!, C"#r$ "% J#-i$#r* %"r R8s$, /. P.P.

Si!, 5 Ar., A$R 9 S# 1(3 and R*!is$rr **r+) Hi!,

C"#r$ "% J#-i$#r* $ M-rs /. R. P*r,i 5 Ors., A$R 1 S#

92.

9. $n M. #r#""r$,3 /. T,* A"#$$ **r+) Ass -

N!+- 5 Ors.) A$R 1(G1 S# 1'-, the #onstitution ench o" this

#ourt held

“The une*uivocal purpose and obvious intention of the

framers of the Constitution in enacting Article 229 is that

in the matter of appointments of officers and servants of

a <igh Court it is the Chief =ustice or his nominee who is

to be the supreme authorit and there can be no

interference b the e#ecutive e#cept to the limited e#tent

that is provided in the Article((Thus, Article 229 has a

distinct and different scheme and contemplates full freedom to the Chief =ustice in the matter of

appointments of officers and servants of the <igh Court

and their conditions of service!'

1



6. $n this #ase, this #ourt spelt out the po)ers o" the #hie" Justice

o" the High #ourt in the atters o" appointent o" sta"" o" the High

#ourt, %ut this #ourt did not la! do)n in an! )a! that the #hie"

Justice can e*ercise such po)ers in contra+ention o" the pro+isions o"

Articles 16 and 1; o" the #onstitution )hile a/ing appointents in

the esta%lishent o" the High #ourt.

-. $n H.C. P#$$s;3 5 Ors. /. T,* H"6+* C,i*% J#s$i* "%

r$: Hi!, C"#r$) B!+"r* 5 Ors., A$R 1((1 S# (-, )hile

dealing )ith a siilar situation and interpreting the pro+isions o"

Article ( 2 o" the #onstitution and Farnata/a State #i+il Ser+ices

Recruitent to Kinisterial 4osts2 Rules, 1(;;, this #ourt held the

appointents ade %! the #hie" Justice o" the High #ourt )ithout

ad+ertising the +acancies as in+alid %eing +iolati+e o" Articles 16 and

1;12 o" the #onstitution. The #ourt cae to the said conclusion as

the appointents )ere ade )ithout "ollo)ing the procedure

prescri%ed in the Rules. The #ourt "urther o%ser+ed

“8hile the administration of the Courts has perhaps,

never been without its critics, the method of recruitment

followed b the Chief =ustice appears to be without

parallel(!!((The methodolog adopted b the Chief

=ustice was manifestl wrong and it was doubtless

1



deviation from the course of law which the <igh Court

has to protect and preserve!

The $udiciar is the custodian of constitutional

principles which are essential to the maintenance of rule

of law! &t is the vehicle for the protection of a set of values which are integral part of our social and political

philosoph! =udges are the most visible actors in the

administration of $ustice! Their case decisions are the

most publicl visible outcome! >ut the administration of

$ustice is $ust not deciding disputed cases! &t involves

great deal more than that! An realistic analsis of the

administration of $ustice in the Courts must also ta0e

account of the totalit of the $udges behaviour and their

administrative roles! The ma appear to be onl minor

aspects of the administration of $ustice, but collectivelthe are not trivial! The constitute in our opinion, a

substantial part of the mosaic which represents the

ordinar man?s perception of what the Courts are and

how the =udges go about their wor0! The Chief =ustice is

the prime force in the <igh Court! Article 229 of the

Constitution provides that appointment of officers and

servants of the <igh Court shall be made b the Chief

=ustice or such other =udge or officer of the Court as

ma be directed b the Chief =ustice! The ob$ect of this Article was to secure the independence of the <igh Court

which cannot be regarded as full secured unless the

authorit to appoint supporting staff with complete

control over them is vested in the Chief =ustice! There

can be no disagreement on this matter! There is

imperative need for total and absolute administrative

independence of the <igh Court! ut the Chief !ustice

or any other Administrative !udge is not an absolute

ruler. "or he is a free wheeler. #e must operate in the

clean world of law$ not in the neighbourhood of sordid atmosphere. #e 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. #e cannot depart from and indeed must

remain committed to the constitutional ethos and

traditions of his calling. &e need hardly say that those



who are e'pected to oversee the conduct of others% must

necessarily maintain a higher standards of ethical and

intellectual rectitude. The public e#pectations do not

seem to be less e#acting!' >phasis added2

See also S$$* "% Ass /. B,#6, C,-r D$$ 5 Ar., A$R

1(G- S# ''(2.

;. $n Bi"- #r #$ 5 Ors. /. R As,r3 M,"$" 5

Ors.) A$R - S# 19, this #ourt did not accept the contention that

appointent could %e ade to #lass$V post in Su%ordinate #ourts

under the #i+il #ourt Rules )ithout ad+ertiseent in the ne)spapers

in+iting applications "or the posts as that )ould lead to +: "%

$rsr*3 and +iolation o" the pro+isions o" Article 1; o" the

#onstitution. The #ourt terinated the ser+ices o" such appointees

)ho had )or/ed e+en "or 1- !ears o%ser+ing that the #ourt other)ise

B)ould %e guilt! o" condoning a gross irregularit! in their initial

appointent.C

G. To sa! that the #hie" Justice can appoint a person )ithout

"ollo)ing the procedure pro+ided under Articles 16 and 1; )ould lead

to an inde"inite conclusion that the #hie" Justice can disiss hi also

)ithout holding an! in8uir! or "ollo)ing the principles o" natural



7ustice:Rules etc., "or as per Section 1; o" 0eneral #lauses Act, 1'(G

po)er to appoint includes po)er to reo+e:suspend:disiss. Vide

Pr-3$ #r B"s* /. T,* H"6+* C,i*% J#s$i* "% C+#$$

Hi!, C"#r$) 1(-; S# '-3 and C,i*% J#s$i* "% A-,r Pr-*s, 5

Ar. /. L.V.A. Di:s,i$#+# 5 Ors., A$R 1(G( S# 1(92.

ut as no eplo!ee can %e reo+ed )ithout "ollo)ing the

procedure prescri%ed %! la) or in +iolation o" the ters o" his

appointent, such a course )ould not %e a+aila%le to the #hie"

Justice. There"ore, the natural corollar! o" this is that the #hie" Justice

cannot a/e an! appointent in contra+ention o" the Statutor! Rules,

)hich ha+e to %e in consonance )ith the schee o" our #onstitution.

'. $n S$$* "% ?*s$ B*!+ 5 Ors. /. D*6sis, M#:,*r8** 5

Ors., A$R 11 S# 9;;G, this #ourt again dealt )ith the pro+isions o"

Article ( o" the #onstitution and held that the #hie" Justice cannot

grant an! relie" to the eplo!ee o" the High #ourt in an irrational or

ar%itrar! anner unless the Rules pro+ide "or such e*ceptional relie".

The order o" the #hie" Justice ust a/e re"erence to the e*istence o"

such e*ceptional circustances and the order ust a/e it so clear

that there had %een an application o" ind to those e*ceptional



circustances and such orders passed %! the #hie" Justice are

7usticia%le. hile deciding the atter, the court placed reliance on its

earlier 7udgent o" the #onstitution ench in S$$* "% U.P.5 Ors. /.

C.L. A!r;+ 5 Ar., A$R 1((G S# 691.

(. Thus, in +ie) o" the a%o+e, the la) can %e suarised to the

e""ect that the po)ers under Article ( 2 o" the #onstitution cannot

%e e*ercised %! the #hie" Justice in an un"ettered and ar%itrar!

anner. Appointents should %e ade gi+ing adherence to the

pro+isions o" Articles 16 and 1; o" the #onstitution and:or such Rules

as ade %! the legislature.

9. $n toda!=s s!ste, dail! la%ourers and casual la%ourers ha+e

%een con+enientl! introduced )hich are "ollo)ed %! attepts to

regularise the at a su%se8uent stage. There"ore, ost o" the ties

the issue raised is a%out the procedure adopted "or a/ing

appointents indicating an iproper e*ercise o" discretion e+en )hen

the rules speci"! a particular ode to %e adopted. There can %e no

dou%t that the eplo!ent )hether o" #lass $V, #lass $$$, #lass $$ or

an! other class in the High #ourt or courts su%ordinate to it "all )ithin

the de"inition o" Bpu%lic eplo!entC. Such an eplo!ent,



there"ore, has to %e ade under rules and under orders o" the

copetent authorit!.

91. $n a deocratic set up li/e ours, )hich is go+erned %! rule o"

la), the supreac! o" la) is to %e ac/no)ledged and a%sence o"

ar%itrariness has %een consistentl! descri%ed as essence o" rule o" la).

Thus, the po)ers ha+e to %e canalised and not un%ridled so as to

%reach the %asic structure o" the #onstitution. >8ualit! o" opportunit!

in atters o" eplo!ent %eing the constitutional andate has al)a!s

%een o%ser+ed. The un8uestiona%le authorit! is al)a!s su%7ect to the

authorit! o" the #onstitution. The higher the dignitar!, the ore

o%7ecti+it! is e*pected to %e o%ser+ed. e do not sa! that po)ers

should %e curtailed. hat )e )ant to sa! is that the po)er can %e

e*ercised onl! to the )idth o" the constitutional and legal liits. The

date o" retireent o" e+er! eplo!ee is )ell /no)n in ad+ance and

there"ore, the nu%er o" +acancies li/el! to occur in near "uture in a

particular cadre is al)a!s /no)n to the eplo!er. There"ore, the

e*ercise to "ill up the +acancies at the earliest ust start in ad+ance to

ensure that the selected person a! 7oin iediatel! a"ter a+aila%ilit!

o" the post, and hence, there a! %e no occasion to appoint an!



person on adhoc %asis "or the reason that the pro%le o" inducting the

dail! la%ourers )ho are ensured o" a regular appointent

su%se8uentl! has to %e a+oided and a "air procedure ust %e adopted

gi+ing e8ual opportunit! to e+er!one.

9. $t has %een rightl! said

B4er"ection consists not in doing e*traordinar! things,

%ut in doing ordinar! things e*traordinar! )ell.C

99. e had the ad+antage o" the response gi+en %! the High #ourts

and the State. Soe o" the States li/e Jhar/hand, Ferala, Kadh!a

4radesh, Orissa, Si//i and Lttra/hand ha+e pointed out in their

respecti+e a""ida+its that the recruitent o" ost o" the posts are ade

%! centralised selection and soe o" those posts are trans"era%le.

Soe States li/e Jhar/hand ha+e pointed out that there is a centralised

recruitent o" all the posts %ut di+ision )ise and are trans"era%le

)ithin the di+ision. Soe o" the States li/e 4un7a% & Har!ana and

Lttar 4radesh ha+e pointed out that the! ha+e alread! dra"ted the rules

pro+iding "or centralised recruitent. The State o" Hiachal 4radesh

and the High #ourt thereo" ha+e sho)n inclination to)ards the

centralised recruitent. $n the State o" Kadh!a 4radesh, though rules



do not pro+ide "or centralised recruitent %ut it is so done under the

adinistrati+e order o" the #hie" Justice o" the High #ourt. Other

States and the High #ourts ha+e also ade suggestions that it is the

need o" the hour to pro+ide "or centralised recruitent.

96. e )ould li/e to a/e it clear that the High #ourt is a

constitutional and an autonoous authorit! su%ordinate to none.

There"ore, no%od! can underine the constitutional authorit! o" the

High #ourt, and there"ore the purpose to hear this case is onl! to

ad+ise the High #ourt that i" its rules are not in consonance )ith the

philosoph! o" our #onstitution and the sae a! %e odi"ied and no

appointent in contra+ention thereo" should %e ade. $t is necessar!

that there is strict copliance )ith appropriate Rules and the

eplo!er is %ound to adhere to the nors o" Articles 16 & 1; o" the

#onstitution %e"ore a/ing an! recruitent.

9-. $n +ie) o" the a%o+e, the appeal stands disposed o" )ith the

"ollo)ing directions

i2 All High #ourts are re8uested to ree*aine the statutor! rules

dealing )ith the appointent o" sta"" in the High #ourt as )ell

as in the su%ordinate courts and in case an! o" the rule is not in



con"orit! and consonance )ith the pro+isions o" Articles 16

and 1; o" the #onstitution, the sae a! %e odi"ied.

ii2 To "ill up an! +acanc! "or an! post either in the High #ourt or

in courts su%ordinate to the High #ourt, in strict copliance o"

the statutor! rules so ade. $n case an! appointent is ade in

contra+ention o" the statutor! rules, the appointent )ould %e

void abinitio irrespecti+e o" an! class o" the post or the person

occup!ing it.

iii2 The post shall %e "illed up %! issuing the ad+ertiseent in at

least t)o ne)spapers and one o" )hich ust %e in +ernacular

language ha+ing )ide circulation in the respecti+e State. $n

addition thereto, the naes a! %e re8uisitioned "ro the local

eplo!ent e*change and the +acancies a! %e ad+ertised %!

other odes also e.g. >plo!ent 5e)s, etc. An! +acanc!

"illed up )ithout ad+ertising as prescri%ed hereina%o+e, shall %e

void abinitio and )ould reain unen"orcea%le and

ine*ecuta%le e*cept such appointents )hich are perissi%le to

%e "illed up )ithout ad+ertiseent, e.g., appointent on

copassionate grounds as per the rules applica%le. e"ore an!

appointent is ade, the eligi%ilit! as )ell as suita%ilit! o" all



candidates should %e screened:tested )hile adhering to the

reser+ation polic! adopted %! the State, etc., i" an!.

i+2 >ach High #ourt a! e*aine and decide )ithin si* onths

"ro toda! as to )hether it is desira%le to ha+e centralised

selection o" candidates "or the courts su%ordinate to the

respecti+e High #ourt and i" it "inds it desira%le, a! "orulate

the rules to carr! out that purpose either "or the State or on

Monal or Di+isional %asis.

+2 The High #ourt concerned or the su%ordinate court as the case

a! %e, shall underta/e the e*ercise o" recruitent on a regular

%asis at least once a !ear "or e*isting +acancies or +acancies

that are li/el! to occur )ithin the said period, so that the

+acancies are "illed up tiel!, and there%! a+oiding an!

incon+enience or shortage o" sta"" as it )ill also control the

enace o" adhocis.

9;. e"ore parting )ith the case, )e record our deep appreciation to

Shri 4.S. 5arasiha, learned senior counsel "or rendering in+alua%le

assistance to the court as Amicus Curiae.



#op! o" the 7udgent %e sent to the Registrar 0eneral:Registrar

Adinistration2 o" all the High #ourts %! this Registr! directl! and

the said o""icer is re8uested to place the sae %e"ore the Hon=%le

#hie" Justice "or in"oration and appropriate action.

......................J.

(Dr. B.S. CHAUHAN&

.........................J. (J. CHELAMES?AR&

.........................J.

(M.=. EBAL&

N*; D*+,i

F*6r#r3 12) 2014.

renu & ors. v. district & sessions judge, tis hazari & anr

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