Punjab-Haryana High Court
Reva Abrol vs The Central Administrative Tribunal ... on 4 February, 2014
Bench: Hemant Gupta, Fateh Deep Singh
Rathore Poonam
C.W.P.No.26202 of 2013 -1- 2014.02.13 11:16
I attest to the accuracy and
integrity of this document
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P.No.26202 of 2013
Date of Decision:-04.02.2014
Reva Abrol ....Petitioner
vs.
The Central Administrative Tribunal and others ....Respondent(s)
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CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
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Present:- Ms. Savita Saxena, Advocate,
for the petitioner.
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Hemant Gupta, J. (Oral)
The challenge in the present writ petition is to an order passed by the Central Administrative Tribunal on 22.1.2013 whereby the Contempt Petition No.33 of 2008 was dismissed for the reason that there is no violation of the directions given in OA No.287-CH of 2006 filed by the petitioner and decided on 23.8.2007.
It has been noticed that the petitioner was declared unfit for the post as she does not possess the requisite qualifications as also being over-
age as per the relevant Recruitment Rules. Still, the petitioner was called for interview on 8.10.2012 and was placed at Sr. No.6 and one Mrs. Bindia at Sr. No.1 against one post meant for General Category. It was, thus, held that the directions contained in the order dated 23.8.2007 have been complied with in true letter and spirit.
Rathore PoonamC.W.P.No.26202 of 2013 -2- 2014.02.13 11:16 I attest to the accuracy and integrity of this document The operative part of the directions in the Original Application filed by the petitioner reads as under:
"We notice that though these vocational courses are being run for a number of years, yet the respondent UT Administration has not framed any Recruitment Rules. They are, therefore, directed to frame and notify Recruitment Rules for these courses within a period 6 months and fill the post in accordance with the rules. In the meantime, the applicant in this OA shall be continued in the post she is holding. Once Recruitment Rules are notified and selection process is started, the applicant in this OA will also be considered for the post even if it requires giving her relaxation in age, as permissible under the rules. They should also identify the posts of Vocational Lecturers which have continued to exist for more than 8- 10 years and consider the possibility of filling the same on regular basis."
It may be stated that the petitioner is a diploma holder and working as part-time Lecturer in Dress Designing. The petitioner had challenged the selection and appointment of respondent No.5 as Lecturer on contract basis and prayed for quashing the same in the original application, in which the above order was passed. The writ petition filed by respondent No.5 against the said order was dismissed on October 01, 2007.
It is thereafter the petitioner filed the contempt petition which has been now disposed of vide order impugned in the writ petition.
Learned counsel for the petitioner vehemently argued that Recruitment Rules have yet not been notified, therefore, the directions of the Tribunal have not been complied with.
Needless to say that to frame and notify the Recruitment Rules is not within the jurisdiction of the Tribunal. In a recent judgment reported Rathore Poonam C.W.P.No.26202 of 2013 -3- 2014.02.13 11:16 I attest to the accuracy and integrity of this document as V.K. Naswa v. Union of India, (2012) 2 SCC 542, the Supreme Court has consolidated the entire precedents, when it said to the following effect:
"6. It is a settled legal proposition that the court can neither legislate nor issue a direction to the legislature to enact in a particular manner.
7. In Mallikarjuna Rao v. State of A.P. (1990) 2 SCC 707 and V.K. Sood v. Deptt. of Civil Aviation 1993 Supp.(3) SCC 9, this Court has held that the writ court, in exercise of its power under Article 226, has no power even indirectly to require the executive to exercise its law-making power. The Court observed that it is neither legal nor proper for the High Court to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. The power under Article 309 of the Constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State, as the case may be. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its law-making power in any manner. The courts cannot assume to themselves a supervisory role over the rule-making power of the executive under Article 309 of the Constitution. While deciding the said case, the Court placed reliance on a large number of judgments, particularly Narinder Chand Hem Raj v. UT, H.P. (1971) 2 SCC 747, where it has been held that legislative power can be exercised only by the legislature or its delegate and none else.
8. In State of H.P. v. Parent of a Student of Medical College (1985) 3 SCC 169, this Court deprecated the practice adopted by the courts to issue directions to the legislature to enact a legislation to meet a particular situation observing: (SCC p. 174, para 4) "4. ... The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the Chief Secretary on behalf of the State Government that the Government will Rathore Poonam C.W.P.No.26202 of 2013 -4- 2014.02.13 11:16 I attest to the accuracy and integrity of this document introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. Thus the Division Bench was clearly not entitled to do. It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation."
9. In Asif Hameed v. State of J&K 1989 Supp. (2) SCC 364 this Court while dealing with a case like this at hand observed: (SCC p. 374, para 19) "19. ... While doing so the court must remain within its self- imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive."
(...emphasis added)
10. In Union of India v. Deoki Nandan Aggarwal (2001) 7 SCC 358, this Court similarly observed: (SCC p. 332, para 14) "14. ... It is not the duty of the court either to enlarge the scope of the legislation.... The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts."
11. Similarly in Ajaib Singh v. Sirhind Coop. Marketing-cum- Processing Service Society Ltd. (1999) 6 SCC 82, this Court held that the court cannot fix a period of limitation, if not fixed by the legislature, as "the courts can admittedly interpret the law and do not make laws". The court cannot interpret the statutory provision in such a manner "which would amount to legislation intentionally left over by the legislature".
12. A similar view has been reiterated by this Court in Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294 observing that the court cannot issue direction to the legislature for amending Rathore Poonam C.W.P.No.26202 of 2013 -5- 2014.02.13 11:16 I attest to the accuracy and integrity of this document the Act or Rules. It is for Parliament to amend the Act or Rules. In District Mining Officer v. TISCO (2001) 7 SCC 358, this Court held that function of the court is only to expound the law and not to legislate.
13. Similarly, in Supreme Court Employees' Welfare Assn. v. Union of India (1989) 4 SCC 187, this Court held that the court cannot direct the legislature to enact a particular law for the reason that under the constitutional scheme Parliament exercises sovereign power to enact law and no outside power or authority can issue a particular piece of legislation. (See also State of J&K v. A.R. Zakki 1992 Supp. (1) SCC 548.)
14. In Union of India v. Prakash P. Hinduja (2003) 6 SCC 195, this Court held that if the court issues a direction which amounts to legislation and is not complied with by the State, it cannot be held that the State has committed the contempt of court for the reason that the order passed by the court was without jurisdiction and it has no competence to issue a direction amounting to legislation.
15. The issue involved herein was considered by this Court in University of Kerala v. Council of Principals of Colleges (2010) 1 SCC 353. The Court elaborately explained the scope of separation of powers of different organs of the State under our Constitution; the validity of judicial legislation and if it is at all permissible, its limits; and the validity of judicial activism and the need for judicial restraint, etc. The Court observed: (SCC p. 361, para 13) "13. ... '19. At the outset, we would say that it is not possible for this Court to give any directions for amending the Act or the statutory rules. It is for Parliament to amend the Act and the rules.'*"
16. In State of U.P. v. Jeet S. Bisht (2007) 6 SCC 586, this Court held that issuing any such direction may amount to amendment of law which falls exclusively within the domain of the executive/legislature and the court cannot amend the law.
17. In Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers (2011) 8 SCC 568, this Court while dealing with the issue made the observation that in exceptional Rathore Poonam C.W.P.No.26202 of 2013 -6- 2014.02.13 11:16 I attest to the accuracy and integrity of this document circumstances where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field. (See also Vishaka v. State of Rajasthan (1997) 6 SCC 241; Common Cause v. Union of India (2008) 5 SCC 511 and Destruction of Public and Private Properties v. State of A.P. (2009) 5 SCC 212)
18. Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.
19. In view of the above, the petition lacks merit. Facts of the case do not warrant any interference by this Court. In such a fact situation, no relief can be granted to the petitioner. The writ petition is, accordingly, dismissed."
Thus, we find that no contempt would be maintainable for not complying with a direction, which was not within the jurisdiction of the Tribunal. Even if the Rules are not being notified, in terms of the directions of the Tribunal, the Petitioner is continuing in service. Thus the delay in notifying the Rules does not prejudice her. Thus, we do not find that any contempt in the said circumstances is made out when the petitioner has been considered twice after the order was passed by the Tribunal.
( HEMANT GUPTA )
JUDGE
February 04, 2014 ( FATEH DEEP SINGH)
poonam JUDGE