Rajasthan High Court - Jaipur
Renu Sharma vs State Of Rajasthan And Others on 12 February, 2001
Equivalent citations: 2002(1)WLN97
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER Chauhan, J.
(1). In these writ petitions and the writ petitions mentioned in the Schedule annexed to this judgment and order, common questions of facts and law are involved, therefore, all these petitions were heard together and they are being disposed of by this common judgment/order, taking the Writ Petition No. 1722/2000, Renu Sharma vs. State of Rajasthan & Ors., as the leading case.
(2). The instant writ petition has been filed for quashing the Notification dated 16.11.1999 making amendment in rule 296 of the Rajasthan Panchayati Raj Rules, 1996 (for short, "the Rules, 1996") and other consequential orders; for issuing direction to offer appointment to the petitioner as she stood over and above contesting respondents No. 3 and 4 in the merit list prepared in pursuance of the advertisement No. 1/96 for the posts of Teacher Grade III from the date the said respondents have been appointed with all consequential benefits; and to quash the appointments of the private respondents.
(3). Respondent No. 2 had issued an advertisement No. 1/96 inviting applications for 93 vacancies on the post of Teacher Grade III in district Sawai Madhopur with a stipulation that number of vacancies may be increased or decreased. Last date for submitting the application forms was fixed as 30.10.96 but was further extended upto 20.12.1996. Directions were issued to prepare the merit list in pursuance of the criteria fixed by the Government as per the Circular dated 24.7.95 which had been issued in exercise of powers under Rule 17(2) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (for short, "the Act, 1959"), which provided the assessment of merit of the candidates on the basis of the marks secured in Secondary + B.S.T.C. or B. Ed., as the case may be. Subsequently, the merit criteria was changed before finalisation of the selection process and, thus, litigation started and writ petition of Radhey Shyam Sharma vs. State of Rajasthan & Ors. (1), was filed before this Court and the selection process could not be finalised. The said writ petition was decided vide judgment and order dated 6.11.1997 issuing direction to the respondents to prepare the merit list in accordance with the Circular dated 24.7.95. The matter was agitated before the Division Bench, wherein the writ petition itself was allowed to be withdrawn as the Government had arrived at the conclusion that the merit list was to be prepared as per the criteria fixed by the Circular dated 24.7.95. When litigation came to an end, a select list was prepared on 7.3.1998 but it was not given effect to for a period of one and half years and another select list was prepared in September, 1999 and against 93 vacancies advertised for the year 1996, in all 232 persons were given appointment upto 1.3.2000. In addition thereto, vide order dated 9/10th March, 2000, the contesting respondents No. 3 and 4 were also appointed ignoring the claim of more than one thousand candidates in case of respondent No. 3 and seven hundred candidates in respect of respondent No. 4, including the petitioners who stood higher to them in the merit list as the Government relaxed the Rules in exercise of its power under rule 296 of the Rules, 1996 and directed to appoint the said respondent. Dharmendra Kumar, respondent No. 3, at Serial No. 1249 and Mad an Lal, respondents. No. 4, at Serial No. 944 in the merit list. Hence these petitions.
(4). The main ground in the petition of Renu Sharma has been that as Rule 296, as amended, confers arbitrary and unfettered power upon the Executive to put the constitutional and statutory rights of the eligible candidates at naught, the amended rule be declared ultra vires and unconstitutional. In other petitions, the relief of appointment had been sought on the ground that appointing the persons who were much below them in the merit list, amounts to hostile discrimination and is not permissible, therefore, they are also entitled to be appointed.
(5). Rule 296 of the Rules, 1996 read as under:-
"Power to relax rules: On a reference by the Panchayat Samiti/Zila Parishad concern, in an exceptional case, where the Administrative Department is satisfied that operation of the rules relating to age or regarding requirement of experience for recruitment, if any, causes undue hardship in any particular case or where the Government is of the opinion that it is necessary, or expedient to relax any of the provisions of these Rules with respect to age or experience of any person, it may, with the concurrence of the Department of Personnel & Administrative Reforms, relax the relevant provision of these Rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner......."
(6). The said provision enabled the State Government to relax the age and experience in a particular appropriate case to a particular extent. In Indian Air Lines Ltd. vs. S. Gopal Krishanan (2), the Hon'ble Supreme Court explained that there should be no confusion regarding the requisite qualification and experience as experience is required after gaining the requisite qualification. The said Rule did not provide for relaxation in other eligibility, i.e. educational qualification, nor it enabled the Government to pick and choose any person from the merit list and offer him appointment ignoring the claim of persons over and above him in the merit list.
(7). The Government issued Notification dated 16.11.1999 amending the provisions of rule 296, reading as under:-
"The State Government, on a reference by the Panchayat Samiti/Zila Parishad concerned, or on its own motion, in an exceptional case where the administrative department is satisfied that operation of the Rules relating to any provision for recruitment, if any causes undue hardship or where the Government is of the opinion that it is neces-
sary or expedient to relax any of the provision of these Rules, may, with the concurrence of the Department of Personnel & Administrative Reforms, relax the relevant provisions of these Rules to such extent and subject to such condition, as may be considered necessary for dealing with the case in a just and equitable manner."
(8). -The validity of this amendment is under challenge on the ground that it confers unbridled powers upon the Executive, which may make the statutory provisions redundant and in the instant case, the appointments had been made after expiry of the select list; to a larger extent than vacancies advertised; and respondents No. 3 and 4 have been appointed ignoring the merit of others.
(9). Sec. 102 of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act, 1994") enables the State Government to frame the Rules in respect of service matters also. However, Sub- section (3) thereof reads as under:-
"All rules made under this Sec. shall be laid, as soon as may be after they are so made, before the House of the State Legislature, while It is in Session, for a period of not less than fourteen days, which may be comprised in one session or in two successive sessions and, if before the expiry of the session in which they are laid or of the session immediately following the House of the State Legislature, makes any modification in any of such rule or resolve that any such rule should not be made, such rule shall thereafter have effect only in such modified form or be of no effect as the case may be, howsoever, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder."
(10). So far as amendment of the Rules is concerned, it has to be examined in the light of the provisions of Sec. 23 of the General Clauses Act, 1955 (for short, "the Act, 1955"), which contains a provision anologous to Sec. 21 of the General Clauses Act, 1897 as it provides that Rules can be amended in a like manner and subject to like sanction, as the original Rules stood framed.
(11). Thus, amendment in the Rules is permissible only if the Government follows the same procedure which has been followed at the time of enacting the Rules. The natural corollary comes to that the amendment of the rule is permissible only if the amendment is placed before the House of the State Legislalure and it is approved by the House. (Vide Kamla Prasad Khetan vs. Union of India (3); Scheduled Caste and Weaker Section Welfare Association (Regd.) & Ors. vs. State of Karnataka & Ors (4); M/s. Hanant Lal Agrawal vs. State of Bihar & Ors. (5); Dharam Singh vs. State of Haryana & Ors. (6); and-M/s. Sohanlal Loonkaran vs. State of Rajasthan & Ors. (7).
(12). In D.S. Nathawat vs. State of Rajasthan (8), decided on 28.10.85, this Court examined the validity of the Rules, prescribing conditions for admission courses of training for nurses, mid-wives and health visitors, framed under the provisions of the Raj. Nurses, Midwives, Auxiliary Nurses and Midwives Registration Act, 1964, and declared the said rules void and unenforceable as the same had not been placed before the House which was mandatorily required therein. The Court held that as Sec. 34 of the Act, 1964 clearly stipulated that the rules framed under the Act would be laid before the State Legislature and the same had not been placed, they cannot be enforced.
(13). In the instant case, the impugned notification was issued on 16.11.99 but the same was placed before the House on 3.4.2000. The aforesaid judgment in Nathawat's case (supra) may not had any application for the reason that the Rules have never been placed before the House but in the instant case the Rules have been placed before the house subsequent to the notification amending the rules.
(14). Thus, the question has been raised on behalf of the petitioners that the notification could not have been published in the gazette unless the amendment stood approved by the House. The language of Sub-sec. (3) of Sec. 102 does not suggest such an interpretation. It provides that the rules may be made and placed before the House. If the rules are disapproved or modified such annulment or modification shall be without prejudice to the validity of anything previously done thereunder. Thus, it clearly stipulates that the rules may be made first and be enforced, it may be acted upon, but in case it is disapproved by the House or modified, after such disapproval or modification, the rules may not be applicable, or will apply in amended form as the case may be, but the action taken prior to that under the amended rules shall not become void or illegal. This view stands fortified by the Constitution Bench judgment of the Hon'ble Supreme Court in Jan Mohammad Noor Mohammad Bagban vs. State of Gujarat & Ors. (9), wherein the Apex Court observed that it is true that the legislature has pr. scribed that the rules shall be placed before the House of the Legislature, but failure to place the rules before the House of Legislature does not affect the validity of the rules merely because they have not been placed before the House of Legislature and the rules may be made first and then can be placed before the House of Legislature. The Hon'ble Supreme Court held that the rules do not get validity from the date of its approval by the House but from the date on which they were enacted. In fact, validity of the action in such a case would depend whether the Legislature, in the Act itself, has Imposed a condition of prior approval of the subordinate legislation or amendment thereto or it makes it clear that it will come into force and then approval can be sought. There may be cases where the legislature directs the laying of the rules before the House without providing for the consequence of non-compliance of laying of the rules. In such a case, the condition to lay the rule before the House is directory inspite of the fact that it may provide that the rules shall be laid before the House for the reason that for the failure of the authority concerned responsible for placing the rules before the House should not be made to have affected on the members of the public governed by the Rules. (Vide D.K. Krishnan vs. Secretary, Regional Transport Authority, Chittoor (10).
(15). Similar view has been reiterated by this Court in State vs. Kama (11); Mathura Prasad Yadav vs. Inspector General, Railway Protection Force, Railway Board, New Delhi (12) and Krishna Khanna vs. State of Punjab (13).
(16). In a recent judgment in Quarry Owner's Association vs. State of Bihar & Ors.
(14), the Hon'ble Apex Court had explained the purpose of laying the Rules before the House as under;-
"In a democratic set up, every State Government is responsible to its State Legislature. When a statute requires mere laying of any notification or rule before the legislature its Executive, viz., the State Government comes under the scrutiny of the legislature concerned. Every function and every exercise of power by the State Government is under one or the other Ministry which in turn is accountable to the legislature concerned. Where any document, rule or notification requires placement before any House or when placed, the said House inherently gets the jurisdiction for the same, each Member of the House, subject to its procedure, gets the right to discuss the same, they may put questions to the Ministry concerned. Irrespective of the fact that such rules or notifications may not be under the purview of its modification, such members may seek explanation from such Ministry of their inaction, arbitrariness, transgressing limits of their statutory orbit or any such other matters. Short of modification itself, it has a right even to condemn the Ministry. No doubt, in the case where the house is entrusts d with power to annul, modify or approve any rule, it plays a positive role and has full control over it, but even where the matter is merely placed before any House, its positive control over the executive makes even mere layhing to play a very vital and forceful role which keeps a check over State Government concerned."
(17). Thus, in view of the above, it cannot be held that the notification dated 16.11.99 can be declared invalid only on the ground that it had been published before being approved by the House of the Legislature.
(18). It is next contended that even if it has been approved by the House, it is ultra vires and unconstitutional being hit by Articles 14 and 16 of the Constitution, as it confers ungulded and unfettered powers on the State. The order passed by the State Government dated 9/10th March, 2000 provides that in pursuance of the advertisement No. 1/96, 232 posts had been filled up and it further provided to fill up two more vacancies by appointing contesting respondents No. 3 and 4. Admittedly, the said respondents have not been appointed in accordance with the order of merit nor there is an explanation (reasoned order) as how the Government felt it necessary to fill up two more posts and on what basis the Administration has ignored the merit of more than one thousand candidates over and above them in the same panel and belonging to the same category. The amended rule 296 confers unbridled and unlimited power to the Administration even to make appointment by picking and choosing, ignoring the merit of other candidates, which cannot be permitted to be sustained in the eyes of law. Appointment of the said contesting respondents is a glaring example of abuse of power under the garb of amended rule 296. Conferring such unbridled and unlimited power on the Executive is not permissible. Such a wide power would create problems for the reason that Rule 263 of the Rules, 1996 provides for determination of vacancies year-wise, which permits the inclusion of anticipated vacancies. Only 93 posts had been advertised taking note of anticipated vacancies also. The State made it clear that while filling of the vacancies arising upto April 1997, only 232 posts could have been filled up. In the affidavit filed by the respondent No. 2, it has been stated that upto 1.4.1997, 232 vacancies were available In districts Sawai Madhopur and Karauli. Respondent No. 2 applied for permission from the State Government to fill up the said vacancies and the said request was accepted vide order dated 29.10.1999. Rule 274 provides for preparation of a merit list by the Committee as per the provisions of Rule 261 of the Rules, 1996. The select list shall contain the names of candidates one and half times of number of vacancies actually available at the time of preparation of such merit list. It further mandates that appointments shall be offered to the candidates from the select list in the order in which their names occur in the merit. The merit list of the candidates so prepared shall remain valid, in case of teacher, only upto the end of academic session and at that point of time, the list shall be deemed to have lapsed.
(19). In the instant case, select list was prepared on 7.3.1998 but was not given effect to and another list was prepared without giving any explanation. There is nothing on record to show as what prevented the Executive to make appointments from the said list and if it stood expired, how the other list could be prepared. Conferring such wide powers is not permissible as it may lead to a situation which may be violative of Constitutional rights of an Individual.
(20). It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
(21). In Sirsi Municipality vs. Cecelia Kom Francis Tellis (15), the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities.
(22). Similarly, a Constitution Bench of the Hon'ble Supreme Court, in Sukhdeo Singh & Ors. vs. Bhagatram Sardar Singh Raghuvanshi & Anr., (16), has observed as under:-
"The statutory authorities cannot deviate from the conditions of service, Any deviation will be enforced by legal sanction or declaration by Courts to invalidate actions in violation of rules and regulations. The existencew of rules and regulation's under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions..... In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies..... the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duly to observe the rules of natural justice and compliance with rules and regulations imposed by statute."
(23). Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. vs. State of Gujarat & Ors. (17) and Commissioner of Police vs. Gordhandas Bhanji (18). In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius vs. Lord Bishop of Oxford (19), wherein it was observed as under:-
"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duly of the person in whom the power is reposed, to exercise that power when called upon to do so."
(24). In Commissioner of Police (supra), the Apex Court observed as under;-
"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders, are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order...... An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled.
(25). In Dr. Mecra Massey vs. Dr. S.R. Mehrotra & Ors. (20) the Apex Court observed as under:-
"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits.....
wrong channel adopted ...... If there is any erosion or descending by those who control the activities all expectations and hops are destroyed. If the institutions perform dedicated and sincere services with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy."
(26). The Supreme Court has taken the same view in Ram Chand & Ors. vs. Union of India & Ors. (21), and held that "the exercise of power should not be made against the spirit of the provisions of the slatute, otherwise it would tend towards arbitrariness."
(27). In Purshottam vs. Chairman, Maharashtra State Electricity Board & Anr. (22), the Hon'ble Supreme Court has held that appointment should be made strictly in accordance with the statutory provisions and a candidate who is entitled for appoint-
ment, should not be denied the same on any pretext whatsoever as usurption of the post by somebody else in any circumstance is not possible.
(28). A Conslitution Bench of the Hon'ble Supreme Court, in Ajit Singh (II) vs. State of Punjab & Ors. (23), has observed as under:-
"Article 14 and Article 16(1) are closely connected. They deal with the individual rights of the persons. Article 14 demands that 'State shall not deny to any person equality before the law or the equal protection of law.' Article 16(I) issues a positive command that 'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' It has been held repeatedly by this Court that Clause (1) of Article 16 is a facet of Article 14 that it takes its roots from Article 14. The said Clause particularises the generality in Article 14 and identifies, in a Constitutional Sense 'equality of opportunity' in matter of employment and appointment to any office under the State ...... The right to equal opportunity in the matter of promotion in the sense of a right to be 'considered' for promotion is, in deed, a fundamental right guaranteed under Article 16(1) and this has never been doubted in any case before Ashok Kumar Gupta vs. State of U.P. (1997 (5) SCC 2001 right from 1950."
(29). Thus, the right of consideration for appointment/promotion is not merely a statutory right but is a fundamental right.
(30). In Indra Sawhney vs. Union of India & Ors. (24), the Hon'ble Supreme Court reiterated the law laid down by it lime and again that Articles 14 and 16(1) of the Constitution of India provide for rule of equality which is the basic feature of the Constitution and, therefore, there can be no deviation from the principles enshrined therein while making the appointments. Rule of equality is an antithesis of any kind of arbitrariness or private gain, whim or caprice of any individual. Even if the State has the discretionary power to issue executive instructions, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also "satisfy the mandatory requirement of the statute." (Vide A.P. Aggarwal vs. Government (of N.C.T.) of Delhi & Ors. (25). In Kumari Shrilekha Vidyarthi etc. etc. vs. State of U.P. & Ors. (26), the Apex Court held that every State act, in order to survive, must not be succeptible to vice of arbitrariness which is a crux ot Article 14 of the Constitution and basis to the rule of law.
(31). In the State of Andhra Pradesh & Anr. vs. Nalla Raja Reddy & Ors. (27), the Constitution Bench of the Apex Court has observed as under:-
"Official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. Inspite of statutory discrimination, one knows where he stands but the wand of the official arbitrariness can be waved in all directions indiscriminately."
(32). Similarly, in S.G. Jaisinghani vs. Union of India & Ors (28), the Constitution Bench of the Apex Court has observed as under:-
"In this context it is important to emphasise that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is based. In a system governed by rule of taw, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance wish the rule of law."
(33). In the said judgment, the Apex Court has referred to the judgment in United States vs. Wunderlich (29), wherein it has been observed as under:-
"Law has reached its finest moments, when it has freed men from the unlimited discretion of some ruler..... where discretion is absolute, man has always suffered."
(34). Therefore, Rule of Law may he said to be the sworn enemy of caprice. Every law/rule must intend to achieve social and economic justice and must conform to the mandate of equality clause enshrined under Article 14 of the Constitution for the reason that if law does not do so, it is opposed to public policy and requires to be adjudged void. If a rule leads to uncertainty, anxiety and harassment and it is opposed to public policy, it has to be declared ultra vires and unconstitutional.
(35). In West Bengal State Electricity Board vs. D.B. Ghosh (30), the Hon'ble Apex Court considered the validity of the rules authorising the termination of service of a permanent employee by serving three months' notice or on payment of salary for the corresponding period in lieu thereof and held that it was ex facie tally arbitrary and capable of vicious discrimination and was declared to be ultra vires and unconstitutional as it offended Article 14 of the Constitution.
(36). In Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly (31), the Apex Court struck down a similar rule, holding it to be violative of Article 14 of the Constitution, inter alia, in as much as it was capable of being selective applied in vicious manner by recourse of pick and choose formula.
(37). In O.P. Bhandari vs. Indian Tourism Development Corporation Ltd. (32), the Apex Court considered a similar provision authorising the termination of the services without holding an enquiry merely by giving notice, The Hon'ble Court observed as under:-
"This rule cannot co-exist with Articles 14 and 16(1) of the Constitution of India, The said rule must therefore die, so that the fundamental rights guaranteed by the aforesaid constitutional provisions remain alive. For, otherwise, the guarantee enshrined in Articles 14 and 16 of the Constitution can be set at naught simply by framing a rule authorizing termination of an employee by merely giving a notice. In order to uphold the validity of the rule in question, it will have to be held that the tenure of service of a citizen who takes up employment with the State will depend on the pleasure or whim of the competent authority unguided by any principle or policy. And that the services of an employee can be terminated even though there is no rational ground for doing so, even arbitrarily or capriciously. To uphold this right is to accord a 'magna carta' to the authorities invested with these powers to practise uncontrolled discrimination at their pleasure and caprice on considerations not necessarily based on the welfare of the organisation but possibly based on personal likes and dislikes, personal preferences and prejudice. An employee may be retained solely on the ground that he is a sycophant and indulges in flattery, whereas the services of one who is meritorious (but who is wanting in the art of sycophancy and temperamentally incapable of indulging in flattery) may be terminated. The power may be exercised even on the unarticulated ground that the former belongs to the same religious faith or is the disciple of the same religious teacher or holds opinions congenial to him. The power may be exercised depending on whether or not the concerned employee belongs to the same region (religion) or to the same caste as that of the authority exercising the power ..... Such a rule is capable of robbing an employee of his dignity, and making him a supine person whose destiny is at the mercy of the concerned authority (whom he must humour) notwithstanding the constitutional guarantee enshrined in Articles 14 and 16 of the Constitution of India. To hold otherwise is to hold that the fundamental right embedded in Articles 14 and 16(1) is a mere paper tiger and that it is so ethereal that it can be nullified or eschewed by a simple device of framing a rule which authorizes termination of the services of an employee by merely giving a notice of termination. Under the circumstances the rule in question must be held to be unconstitutional and void."
(38). In Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & Ors. (33), the Hon'ble Supreme Court held that Legislature cannot confer arbitrary and unfettered powers on the authority as it would fall within the ambit of Article 14 of the Constitution and such a course is applicable not only to quasi-judicial functions but to administrative functions also as such orders may affect prejudiciously a party which has not been even heard. The Court observed as under:-
"The occasion for exercise of power must be delimited with precision and quality. Further, there should be adequate reason for the use of such a power and a decision in this regard has to be taken in a manner which should show fairness, avoid arbitrariness and evoke credibility and this .... is possible only when the law lays down detailed guidelines in unambiguous and precise terms so as to avoid the danger of misinterpretation of the situation. The amendment of uncertainty is likely to lead to create an undesirable consequence. Clarity and precision are, therefore, essential for the guidelines."
The Court further observed as under:-
"There is need of minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of individuals, however, high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the right of life, liberty and properly to the vagaries of the individual whims and fancies. It is trite to say that Individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however, high they may be. There is only a complainant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law."
(39). The another Hon'ble Judge made the following observations:-
"Therefore, when the Constitution asures dignity of the individual and the right to livelihood the exercise of the power by the executive should be cushioned with adequate safeguards for the rights of the employees against any arbitrary and capricious use of those powers,"
(40). There can be no dispute to the settled legal proposition that the principle of equality enshrined in Article 14 always guides every State action and, therefore, any illegal, irrational or arbitrary action or decision, whether in the nature of legislative administrative or quashi judicial exercise of power, is liabel to be quashed being violative of Article 14. (Vide Neelima Misra vs. Harinder Kaur Pental (34).
(41). Every Authority is bound to ensure compliance of the statutory provisions and the provisions contained in the Constitution and if the same are not complied with, the order becomes bad. (Vide M/s. Narinder Chand Ham Raj vs. Lt. Governor (35) and M/s. Chhugamal Rajpal vs. S.P. Chaliha (36).
(42). Therefore, it is not necessary that the rule may be valid and power has not been exercised properly by the authority. The legislature itself has to provide the clear and precise limit and cannot confer unlimited powers to the authority to do whatever it wants to do. In the instant case, unfettered powers have been conferred without any precision or limitation, therefore, it does not meet the requirement of law.
(43). In Suraj Parkash Gupta & Ors. vs. State of J & K & Ors. (37), the Apex Court has clearly held that power to relax the rules does not include the power to relax recruitment rules. Moreso, the rules can be relaxed on the ground of hardship in individual cases for the reasons to be recorded. Moreso, the recruitment rules themselves cannot be treated to be producing hardship and cannot be permitted to be by-passed on that ground. The Hon'ble Supreme Court explained the scope of the words "any particular case" as it did not mean a particular person but meant "pertaining to an even, situation or circumstances.' (44). It is settled proposition of law that even in administrative matter, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Ku. Shrilekha Vidyarthi (supra), the Apex Court has observed as under:-
"Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always."
(45). In State of West Bengal vs. Atul Krishna Shaw (38), the Supreme Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
(46). In S.N. Mukherjee vs. Union of India (39), it has been held that the object underlying the rules of natural justice is to prevent mis-carriage of justice and secure fair play in action. The expanding horizen of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
(47). In Krishna Swami vs. Union of India & Ors. (40), the Apex Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason staled in the order or borne-out from the record. The Court further observed that "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and there rational nexus and syntheses with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21."
(48). Similar view has been reiterated in Institute of Chartered Accountants of India vs. L.K. Ratna & Ors. (41); Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni & Ors (42); and Rameshwari Devi Mewara vs. State of Rajasthan & Ors. (43). In Vesant D. Bhavsar vs. Bar Council of India & Ors. (44), the Apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based.
(49). In the instant case, nothing has been placed before the Court showing that reasons had been recorded by the Authority for appointing respondents No. 3 and 4. Thus, at least their orders of appointment are liable to be quashed.
(50). Every action of the State or its instrumentality or agency is subject to the constitutional limitation and its action must be judged in the light of the fundamental rights guaranteed by Part III of the Constitution. In Sukhvinder Singh vs. Bhagatram Sardarsingh Raghunanshi (supra); Ramana Dayaram Shetty vs. International Air Port Authority of India and Ors. (45); Ajay Hasia etc. vs. Khalid Mujib Sehravardi and Ors. etc. (46); Union of India & Ors. vs. Tulsiram Patel (47); and Indra Sawhney etc. vs. Union of India & Ors. etc. etc. (48), the Hon'ble Apex Court has held that every aqction of the State must meet the requirement of the provisions contained in Article 14 and 16 of the Constitution and if not, even the rules which are not in consonance thereof, cannot be held to be valid.
(51). Every eligible candidate not only have a right of being considered for appointment but he can have legitimate expectation that his rights guaranteed under Part III of the Constitution shall be protected. The legitimate expectation, though has to be under the framework of law. (Vide Bihari Chowdhary & Anr. vs. State of Bihar & Ors (49); A. Mahudeswaran & Ors. vs. Government of Tamil Nadu & Ors. (50); Dr. Meera Massey (supra); National Buildings Construction Corporation vs. S. Raghunathan & Ors. (51); and Punjab Communications Ltd. vs. Union of India & Ors. (52).
(52). Undoubtedly, the legitimate expectation does not create any legal right in favour of a candidate, but it is the doctrine on the basis of which the arbitrariness of an authority or State can be examined. (Vide State of West Bengal & Ors. vs. Niranjan Singha (53).
(53). In case the appointments made are found to be protected of injudicious selection, that can be termed as abuse of power by the Appointing Authority. (Vide Santosh Kumar Verma & Ors. vs. State of Bihar & Ors. (54). But where the rules itself confer arbitrary, unfettered and unguided powers upon the authority, the Rules are liable to be declared ultra vires.
(54). So far as the life of the select list is concerned, the State Government cannot -be permitted to extend its life by relaxing the rules, exercising its powers under rule 296, as it would flagrantly violate the mandate of Article 16 of the Constitution and the select list can be extended only in exceptional circumstances where the Competent Court stays the process of selection. The Government may be justified in extending the life of the select list equivalent to the period for which the selection process remained stayed for the reason that the Court can harm no one. (Vide Mohammed Gazi vs. State of M.P. & Ors. (55).
(55). The mixim "Actus Curiae neminem gravabit" is applicable in such a case, which means that the act of the Court shall prejudice no-one. In such a situation the Court is under an obligation to undo the wrong done by a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Dr. A.R. Sircar vs. State of U.P. & Ors (56); Shiv Shanker & Ors. vs. Board of Directors, U.P.S.R.T.C. & Anr. (57); M/s. Kannoriya Chemicals and Industries Ltd. vs. U.P. Electricity Board (58); and Ugam Singh vs. State of Rajasthan & Ors. (59).
(56). Rule 274 of the Rules 1996 also mandatorily requires to fill up the vacancy from the merit list in the order in which their names occur in the list. In the instant case, the respondents have taken the benefit of the amended rule 296 and picked up respondents No. 3 and 4 from the bottom of the merit list ignoring the merit of more than one thousand candidates above them. Such a course under the garb of exercise of the power under rule 296 does not merely amount to abuse of power by the authority but it also tentamounts to playing fraud upon the Constitutional provisions.
(57). In the instant case, as the select list expired long back, no appointment can be made now, Moreso, making such appointment would be violative of Article 16 of the Constitution as it would amount to filling the future vacancy over and above the posts advertised. (Vide Jitender Kumar & Ors. vs. State of Punjab & Ors (60); State of Bihar & Ors. vs. Secretariat Asstt. Successful Examinees Union & Ors. (61); Gujarat State Dy. Executive Engineers Association vs. State of Gujarat & Ors, (62); State of Bihar & Anr. vs. Madan MohanSingh (63); K. Jayamohan vs. State of Kerala & Ors. (64); Sanjoy Bhattarcharjee vs. Union of India & Ors. (65); Surinder Singh vs. State of Punjab & Ors. (66) and Pradip Gogoi & Ors. vs. State of Assam & Ors, (67).
(58). In all these petitions, the relief has been sought to issue directions to the respondents, i.e. the State and the District Establishment Committee to appoint them also as they stood higher than the respondents No. 3 and 4 in order of merit. It is settled proposition of law that Art. 14 is not meant to perpetuate an illegality or give benefit of a wrong order nor illegality once committed can be pleaded to legalise other illegal acts as held by the Hon'ble Supreme Court in Harpal Kaur Chahal vs. Director, Punjab Instructions and Anr. (68); Sneh Prabha (Smt.) and Ors. vs. State of U.P. & Anr. (69); State of Haryana and Others vs. Ram Kumar Mann (70); M/s. Faridabad Ct. Scan Centre vs. D.G. Health Services and Others (71); and Jalandhar Improvement Trust vs. Sampuran Singh (72).
(59). Therefore, the petitioners in all these cases can not claim that as the respondents No. 1 and 2 have appointed the contesting respondents No, 3 and 4 by pick and choose, they are entitled for appointment for the reason that they stood above them In the merit list, is not acceptable. Moreso, no appointment can be made after expiry of the select list as it would amount to filling up the future vacancies. (Vide J. Ashok Kumar vs. State of Andhra Pradesh (73); State of Bihar vs. Mohd, Kalimuddin (74); State of Uttar Pradesh vs. Harish Chandra (75); and Dr. Surinder Singh Jamwal vs. State of J&K (76).
(60). It may be a fit case where the services of the respondents No. 3 and 4 may be terminated as their appointments have been made in violation of Articles 14 and 16 of the Constitution. Merely because had some other criteria of assessing the merit been adopted, they could have been placed higher in the merit list, cannot be a ground of such hostile discrimination that they have been appointed ignoring the merit of one thousand candidates over and above them. The reply filed by the respondents No. 1 and 2 that they had been appointed just to compromise the position as they had been agitating the issue from the very beginning and had also filed the Special Appeal against the judgment in Radhey Shyam Sharma (supra) could not be a ground for committing such illegality.
(61). It is settled legal proposition that any appointment made dehors the Rules violates the Public Policy enshrined In the rules and thus being void, cannot be enforced. (Vide Smt. Ravindra Kaur Sharma vs. State of Rajasthan (77); Smt. Harpal Kaur Chahal (supra); State, of Madhya Pradesh vs. Shyama Pardhi (78); State of Rajasthan vs. Hitendra Kumar Bhatt (79); Patna University vs. Dr. Amita Tiwari (80); Madhya Pradesh Education Board vs. Modh & Ors. (81); and Bhagwan Singh vs. State of Punjab & Ors. (82).
(62). Thus, in view of the above, the relief of direction to appoint the petitioners cannot be granted. As the appointments of respondents No.3 and 4 are liable to be quashed, the grievances of the petitioners do not survive at all.
(63). In the instant case, the amended rule 296 gives unfettered powers to the State to relax the eligibility criteria including the qualification, age and experience. It enables the Executive to make appointment by pick and choose of the candidates from the bottom of merit list ignoring the claim of large number of candidates over and above them; there may be no inhibition to appoint the candidate who had not even applied in response to the advertisement or even to make appointment without advertising the vacancies; the Competent Authority may choose to fill up the vacancies by giving appointment to the candidates of his own caste, religion or resident of his own village or it may reduce the fundamental rights guaranteed under Part III of the Constitution to an iotos and may reduce the entire system to a mockery; persons who can leak the boots of the competent authority would succeed in their mission of getting appointments and eligible and meritorious persons may be forced to commit suicide out of frustration; such an anarchy may breed nepotism and open the flood-gates of corruption.
(64). The State and the Executive Officers could not furnish any explanation as on what ground/criteria the respondents No. 3 and 4 have been appointed. If such a situation is permitted to continue, there will be a rule of thumb instead of rule of law, which is anethama to the rule of equality. A rule providing unfettered powers to the Executive to do whatever it wants to do, cannot be held to be constitutionally valid. Therefore, I am of the candid view that the Notification dated 16.11.1999 is liable to be declared ultra vires and unconstitutional and is struck down accordingly. Appointments of respondents No. 3 and 4 are also hereby quashed.
(65). The Advertisement No. 1/96 had been issued five years ago and the select list was prepared on 3.9.98 but without any reason it has not been acted upon. At that relevant time, there was no amended rule 296. Thus, the select list stood expired automatically by virtue of provisions of Rule 274 of the Rules, 1996. There was no justification for preparing another select list in September, 1999. Moreso, as 93 vacancies had been advertised and as per the statistics given by the respondent No. 2 only 232 vacancies were available upto 1st April 1997. Initially, 232 persons were offered appointments strictly in accordance with the order of merit, out of which thirty candidates did not join. Therefore, the appointments were offered to thirty more candidates whose names appeared upto 262 in the merit list. Respondents No. 3 & 4, whose names appeared at Serial No. 1249 and 944 respectively, could not have been appointed under any circumstance. The appointments had been offered misusing the power under amended rule 296 of the Rules, 1996.
(66). The said amended rule is capable of mis-interpretation and apprehension of arbitrary exercise of power is not a mere wishful contemplation but has been experienced with concrete example that rule has been used in a most flagrant manner and exercise of power of relaxation in such a manner is bound to reflect on the fairness of the Authority making the appointments. The rule is not confined within clearly defined limitation. Nor decisions, which may be taken under the said Rule, can be predictable. A candidate whose name appeared in the select list may not be knowing what would happen to him and even if he is at No. 1 in the merit list, whether he will be offered appointment or not. The amended rule is capable to lead such uncertainty and anxiety, being selectively applied in vicious manner by recourse of pick and choose formula as persons may be appointed on extraneous consideration and, therefore, the rule cannot be held to be valid.
(67). Thus, in view of the above, S.B. Civil Writ Petition No. 1722/2000, Reenu Sharma vs. State of Rajasthan & Ors. succeeds and is allowed, the impugned rule 296, as stood amended, is hereby struck down being ultra vires and unconstitutional conferring unbridled power upon the Executive. The appointments of respondents No. 3 and 4 are hereby quashed and as the grievance of the petitioner that she stands over and above the respondents No. 3 and 4, disappears because of quashing of their appointment. She cannot seek appointment being over and above them in the merit list. Moreso, as fresh advertisement has been issued in 1998 and appointments have been made in pursuance thereof, question of filling up the vacancies in pursuance of Advertisement 1/96 does not arise.
(68). In all other petitions, as the relief of seeking appointment and quashing of appointments of respondents No. 3 and 4 had been sought, they also stand disposed of in view of the order passed in the case of Renu Sharma. In the facts and circumstances of the case, there shall be no order as to costs.