Delhi High Court
P.K. Bhasin vs Union Of India And Ors. on 19 April, 1991
Equivalent citations: ILR1992DELHI116, 1991LABLC1904
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT Santosh Duggal, J.
(1) The petitioners in the two writ petitions are practicing advocates at Delhi. the High Court of Delhi (respondent No. 3) issued an advertisement (AnnexureB-l) in December, 1987 inviting applications from practicing advocates for filling up vacancies in the Delhi Higher Judicial Service (for short 'the Service'), falling in the quota of direct recruits. The vacancies advertised were four in number, two of which were stated to be reserved for Scheduled Castes and two for Scheduled Tribes; one of the vacancy of Scheduled Tribes being exchangeable to a candidate belonging to Scheduled Castes. Alternatively, it was notified that these vacancies would also be open to general category candidates, who would be considered for appointment in the event of suitable candidates not being available in the reserved category. Both the petitioners state to have applied in response to the aforesaid advertisement and were called for interview on 7th October, 1988 before the Selection Committee constituted by the High Court.
(2) The pica in both the writ petitions is that only one candidate belonging to Scheduled Castes category, namely, Shri L.D. Maul has been appointed to the Service, against one of the four advertised vacancies in September, 1989. It is alleged that no other candidate belonging to the reserved category, whether Scheduled Caste or Scheduled Tribes, was found suitable for appointment to the Service. They contend that their performance was very satisfactory, and they have every reason to believe that they had been selected along with one other general category candidate, for appointment against the remaining three reserved vacancies.
(3) Before proceeding further with the contentions raised in these writ petitions, which we propose to dispose of by one common judgment as these raise common questions of facts and law, we find it expedient to set out a few facts, so as to facilitate proper appreciation of the contentions being raised in these petitions.
(4) Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as, the 'Rules') which govern the recruitment, promotion, confirmation, seniority and other conditions of service turn officers appointed to the said Service, were framed vide Notification issued on 27th August, 1970, The preamble indicates. that these were issued by the Lt. Governor of Delhi in exercise of the powers conferred by proviso to Article 309 of the Constitution, in consultation with the High Court of Delhi. After initial recruitment, the regular recruitment is governed by rules 7 to 11 of the Rules. Rule 7 lays down two sources for recruitment--(a) by promotion from amongst the officers of the Delhi Judicial Service and (b) by direct recruitment from the Bar with the rider that the quota for direct recruitment shall not at any time exceed more than one third the total cadre strength of the Service. The petitioners are concerned with the category known as 'direct recruits'. Besides the provisions of rules 7 to Ii, another rule which has a bearing on the question of recruitment is rule 22, which falls under the heading "Other Provisions", and reads as under: "THE reservation of posts for the Scheduled Castes and Scheduled Tribes shall be in accordance with the orders issued by the Central Government from time to time."
(5) The Delhi High Court from the very inception of the Service, has been, in consonance with rule 22, following the model roster provided in the Brochure for reservation of Scheduled Castes and Scheduled Tribes candidates in services (hereinafter referred to as the 'Brochure'). It is Seventh Edition one, which has been referred to by both sides, during hearing. The first year of direct recruitment was 1971. Thereafter, appointments were being made to the Service by way of direct recruitment, as and when vacancies arose in. the quota meant for direct recruits, with due regard to the vacancies, falling in the reserved categories of Scheduled Castes and Scheduled Tribes, and whenever suitable Scheduled Castes candidates were available, they were appointed. However, at no point of time a candidate belonging to Scheduled Tribes became available, with the result that the vacancy of the share of the Scheduled Tribes, which according to the model roster fell at point No. 4, was carried forward after appointment of a candidate of general category against the said point, lifter obtaining approval, for deservation, wherever found necessary in terms of instructions, contained ia the Brochure. This went on up to 1987, the carried forward point of Scheduled Tribes candidate having shifted to point No. 8.
(6) In April 1987. the High Court issued an advertisement, notifying that the likely number of available vacancies was 10, out of which two were reserved for Scheduled Castes and two for Scheduled Tribes candidates, further setting out that one of the two vacancies reserved for Scheduled Tribes was open to general candidate also, which would be only in case no suitable Scheduled Tribes candidate was available. The copy of this advertisement is Annexure B. Neither of the two petitioners had applied at that time because they fell below the minimum age of recruitment namely, 35 years.
(7) In the interviews held, five candidates of general category were recommended for appointment. All five of them were duly appointed on 6th January, 1988. No suitable candidate belonging to Scheduled Castes and Scheduled Tribes became available in that selection. Although as per the vacancy position at that time. one more candidate of general category could have been appointed in his own right, but in its anxiety that the post, having shifted to point 8, meant for Scheduled Tribes candidate may not lapse, the High Court sent a proposal for de-reservation cf this Scheduled Tribes vacancy and recommended name of the sixth candidate of.general category, namely, Shri S.L. Bhayana for appointment, adding that in the event of de-reservation, and appointment of Shri S.L. Bhayana against that vacancy, the Schedule Tribes vacancy would be carried forward to the next available point.
(8) This proposal for de-reservation was forwarded by Delhi Administration to the Department of Personnel and Training, Government of India but no approval came forward and eventually a reply came on l6th March, 1989 declining the proposal for de-reservation. Mr. Bhayana was thereafter appointed in August. 1989 against the vacancy available to general category candidate.
(9) Pending reply of Government of India to the proposal for de-reservation, the Delhi High Court issued a second Notification in the recruitment year 1987, as per instructions contained in the Brochure, in order to fill up four vacancies of the Scheduled Castes and Scheduled Tribes candidates. It was against this advertisement that the petitioners had applied and appeared before the Selection Committee in October 1988. As already noted, only one out of these four vacancies could be filled up by a Scheduled Castes candidates, as no other suitable candidate came forward. Shri L.D. Mual was that candidate.
(10) As second attempt to fill up available vacancies by candidates of reserved category failed in the recruitment year 1987, it was decided to appoint three general category candidates against them, after seeking de-reservation in terms of the instructions contained in the Brochure. Accordingly a proposal was sent by the High Court to that effect on 16th November, 1988 but it appears that the Delhi Administration did not forward it to Government of India, presumably for the reason that reply to the earlier proposal for dereservation of one Scheduled Tribes vacancy against which name of Shri S. L. Bhayana had been recommended, was still awaited.
(11) However, on 25th April, 1989 the Department of Personnel and Training, Government of India, issued an office memorandum of general application (Annexure A) effective from 1st April, 1989. It is loosely referred to as : general ban on de-reservation. The substance of this memorandum is that the Government of India was anxious to ensure that the posts reserved for Scheduled Castes and Scheduled Tribes communities are filled only by candidates belonging to these communities and it had been decided that even where sufficient number of such candidates was not available, the vacancies shall not be filled up by candidates belonging to other communities. This ban on de-reservation was applicable to vacancies of services of group A, B, C and D and was to apply not only to vacancies which arose after 1st April, 1989 but also to the vacancies reserved for Scheduled Castes and Scheduled Tribes communities in earlier years, and which had not yet been filled up by other community candidates, whether these vacancies had been de- reserved or not.
(12) It appears that on receipt of this ban on de-reservation, neither the High Court nor the Delhi Administration pursued the proposal sent earlier on 16th November, 1988 for de-reservation of the there posts of Scheduled Castes ar.d Scheduled Tribes candidates, and against which the petitioners contend that their appointment along with one other candidate was recommended.
(13) On the other hand, another advertisement in the spirit of ban on de-reservation was issued in August/September 1989 (Annexure M). This was characterised as "Special drive for recruitment of SC/ST candidates," clearly notifying that the likely vacancies were three in number, two of which were reserved for Scheduled Tribes and one for Scheduled Castes, further stating that one of the vacancies reserved for Scheduled Tribes will be exchangeable to Scheduled Castes, if no Scheduled Tribes candidate was available or found suitable. Interviews for selection were held pursuant to this advertisement. Whereas no candidate of the Scheduled Tribes was available, two candidates belonging to Scheduled Castes were selected for appointment, as a result of interviews held on 12th and 13th February, 1990. They have been imp leaded as respondents No. 6 and 7 in these writ petitions, filed soon after the aforesaid interviews were held.
(14) The petitioners seek their appointment to the Service, and have raised manifold contentions in the writ petitions, graying that rule 22 of the Rules be quashed or struck down as unconstitutional as also the office memorandum issued by the Department of Personnel and Training on 25th April. 1989 and further that the advertisement issued by the High Court in August 1989 whereby the four vacancies were exclusively notified for Scheduled Castes and Scheduled Tribes candidates, and the resultant selection of respondents No. 6 an 7, reportedly made by the High Court be also quashed. The petitioners further pray that appropriate orders be issued directing the respondents to de-reserve the refinancing three reserved vacancies and that writ of mandamus be issued directing appointment of the petitioners against the said vacancies Along with the third general category candidate, as selected in the interviews held in October 1988, in accordance with the seniority as per selection panel.
(15) As noted above, number of contentions have been canvassed in the writ petitions but the one most vociferously pressed at the time of hearing was a challenge to rule; 22 where by the Brochure as well as orders, memorandum and instructions issued by the Government of India from time to time in the matter of reservation for Scheduled Castes and Scheduled Tribes candidates are taken into consideration by the High Court, while making appointment to the Service.
(16) Mr. Mukul Rohatgi appearing for one of the writ petitioners ( Civil Writ No. 6(3 of 1990) contended in the first instance that there could be no reservation of posts in so far as this Service is concerned for the reason that reservation of posts was contemplated under Article 16(4) of the Constitution to be only for those services which were, "under the State". His contention in short was that subordinate judiciary which includes the cadre of District Judge and Additional District Judges was under the scheme of things absolutely free from State control as is manifest from a reading of Article 235 of the Constitution. He contended that the entire control over this Service is under the High Court, and that no provision could be incorporated in the recruitment rules in respect to this Service, which impinges upon this constitutional supremacy of the High Court and turn that reason alone rule 22 would be ultra vires of the Constitution.
(17) Mr, Rohatgi placed reliance on a number of decisions to buttress his argument that a cumulative reading of Articles 233 to 235 makes it clear that all powers of disciplinary and other control over the Judiciary, vests in the High Court, and thus this Service cannot be treated, as being, "under the Slate"..
(18) The first case cited by him, , Baldev Raj Guliani v. The Punjab & Haryana High Court and others (1) related to a member of Judicial Service of State of Haryana, where it was held that under Article 235 the High Court was the sole custodian over the discipline of the judicial officers and that there was no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer, and that the judicial officers although holding posts in civil capacity are not serving under the Government of a State. Drawing support from this observation, Mr. Rohatgi contended that there could be no manner of doubt in staling that the Judicial Service is not a service under the State within the contemplation of Article 16(4) of the Constitution, which is the only provision under which reservations can be saved from charge of discrimination, and impinging against the rule of equality as enshrined in Articles 14 and 16(1) of the Constitution.
(19) The other cases to which reference in this regard was made are , Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, , Union of India v. Shankalchand Himatlal Sheth and another and , Chief Justice Of Andhra Pradesh and another etc. v. L. V. A. Dikshitulu and others etc.,which according to the learned counsel reiterate the same principle.
(20) Mr. Vaze appearing for the Union of India, countered this argument by urging that the Court ought to adopt a broad and harmonious approach, and take a holistic view of the Constitution. He argued that the word "State" is used in different meanings in different contexts, and was not an easy word to define. He emphasised that it was an amorphous body and, in any case, does not mean the Government or the Executive. Mr. Vaze argued that whereas it may be said that Judicial Service is not under the Government of a State, but it would not be correct to say that it is not even under the State, and that the term "State" as understood in a legal context would denote the organs of the Government of a national community. He placed reliance in support of his contention in this respect on House of Lords judgment reported in (1962) 3 All England Reports 142, Chandler and others v. Director of Public Prosecution. He also pointed out that barring one case of Baldev Raj Guliani (supra), none of the cases cited by Mr. Rohatgi pertained to the Judicial Services as such but only to employees and officers of the High Court and there obviously different considerations would prevail by virtue of the provisions of Article 229 of the Constitution.
(21) We find ourselves unable to accept petitioners' contention as it clearly suffers from a basic fallacy, inasmuch at it proceeds on the assumption as if the term "State" is analogous with the entity known as : 'Government'. Whereas, there can be no gainsaying the fact that the members of the Service are, in view of the provisions of Article 235 of the Constitution, completely independent of the control of the Government, but this position cannot be stretched, so as to say that the Service can be treated to be a 'Service not under the State'.
(22) It is to be remembered that our Constitution has consciously departed from the concept of absolute separation of powers in so far as the three organs of the State; Executive, legislature and Judiciary are concerned, and it can be observed from a reading of a number of provisions of the Constitution there by the principle of separation of powers, as known to the Constitution of United States, has been diluted. That apart, it is to be noted that Judiciary is one of the organs of the State, and thus it cannot be legitimately urged that it is not a service under the State. The independence of Judiciary lies, in our Constitution, in the manner of its working, in the sense that once the appointment to the Service is made, the incumbent works totally free from the interference of the Government, and during the course of his tenure, remains entirely under the control, disciplinary and otherwise, of the High Court, as envisaged in Article 235, except at the stage where he is to be dismissed or removed from service, where again the Executive steps in. The cases cited by Mr. Rohatgi, as already noted, are mostly of employees and officers of the High Court covered by Article 229. The control, envisaged by Article 235 does not extend to every fact of the system : Particularly when in the matter of appointment Article 233 is the governing provision. The facts of the case of Baldev Raj Guliani (supra) were entirely distinguishable, and there also all that was held was that judicial officers are not under the control of a Government.
(23) Mr. Vaze was right in contending that the Court should take a holistic and well integrated view of the Constitution, and then determine as to whether the Judicial Service can be considered to be a service under the State or not, within the meaning of Article 16(4) of the Constitution.
(24) We find support for this line of approach in one of the cases cited by Mr. Rohatgi himself, the case of L. V. A. Dikshitulu (supra). That case pertained both to judicial officers as well as officers and employees of the High Court and on the facts of the case it was held that by virtue of Article 229 and Article 235. vesting of disciplinary jurisdiction in respect to a judicial officer in the High Court is subject only to the powers of the Governor in the matter of appointment, dismissal, removal and reduction in rank and also initial posting and promotion to the cadre of District Judges. It was nevertheless held that different interpretations of the term, whether Judicial Service is a service under the State, or of the State, arise in relation to different Articles of the Constitution. It was noticed in that very judgment that for the purpose of Article 311, the phrase "a person who is a member of a civil service of a State, shall include officers and servants of the High Court as also judicial officers".
(25) On this parity of reasoning, it can very well be said that a provision like Article 16(4) of the Constitution, which advances one of the salient principles enshrined in the Constitution, namely, special treatment to certain categories of citizens, and Scheduled Castes and Scheduled Tribes being one of those categories as provided in Article 335, which falls in Part Xvi of the Constitution headed : "SPECIAL Provisions Relating To Certain CLASSES", has to be read in context of the Constitutional Scheme.
(26) We draw support for this view from the observations made by the Supreme Court in the case of Shankalchand Himatlal Sheth (supra) that "the words used in a statute cannot be read in isolation : their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context".
(27) We have thus no hesitation in rejecting his specious argument of the petitioners that there can be no provision for reservation in the Service for the reason that Judicial Service is not a service under the State; particularly, when, as we have held that Judiciary is one of the organs of the State, just as Executive and Legislature are other two organs. We are also firmly of the view that 'State' as an entity, is distinct from 'Government' of a State.
(28) This argument otherwise also is academic in nature in so far as the question of reservation for Scheduled Castes and Scheduled Tribes is concerned because the more specific source for this reservation is Article 15(4), which provides as under : "15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth : (1).................................... (2) .................................... (3).................................... (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."
(29) This removes all impediments in the way of the State, from making special provision for the advancement of, inter alia, Scheduled Castes and Scheduled Tribes. we have already noticed that the provision for reservation for these categories of citizens full within the Chapter captioned Special Provisions Relating To Certain Classes and thus reservation for Scheduled Castes and Scheduled Tribes in the Service is a matter which is beyond constitutional challenge.
(30) PETITIONERS' next challenge is to rule 22 itself. Here the argument is, that this provision suffers from the vice of impermissible delegation of its functions by the High Court. Mr. Rohatgi rather described it as a complete surrender or abdication of its powers by the High Court vested in its under Article 233. He argued that the appointments of District Judges which includes Additional District Judges under Article 233 are to be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State and thus no third functionary could come in between this process, and accordingly this rule, which makes all orders issued by the Central Government, automatically apply to the Service is ultra vires. He placed reliance on a judgment of the Supreme Court reported as Air 1966 Sc 1987, Chandra Mohan v. State of Uttar Pradesh and others laying down that constitutional mandate of Article 233 was very clear, and that this contemplates that the powers of appointment is to be exercised by the Governor in consultation with the High Court and that in case the Governor consults any other authority or body besides the High Court, then he violates the mandate given by Article 233.
(31) According to the learned counsel, on parity of reasoning, rule 22 also stands vitiated on account of the infirmity that the appointing authority, has made provision for abiding by the orders of the Central Government in matters of reservation for Scheduled Castes and Scheduled Tribes, while making appointment to the Service, whereas Article 233 contemplated consultation only with the High Court. He placed reliance on a judgment of the Supreme Court, , Vasanlal Maganbhai Sanjanwala v. The State of Bombay, in which it was held that in dealing with the challenge to the vires of any statute on the ground of excessive delegation, it is necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power. He argued that the entire matter of appointment to the Service was within the constitutional authority of the (governor, Administrator in the present case, and High Court was the' second constitutional body that was to be associated with this matter, and and provision made for entrusting this decision making, to a third authority would be ultra vires. Mr. Rohtagi cited another case of the Supreme Court , M/s. Devi Das Gopal Krislinan, etc. v. State of Punjab and others, where also a provision was struck down for reason of excessive delegation.
(32) The whole line of argument, as set forth by the petitioners, we regret to say, suffers from a manifest fallacy, namely, it proceeds on the assumption that rule 22 is an instance of delegation, whereas on a reading of the rules we find that it is not so. Rule 22 has already been extracted in the preceding portion of this judgment. A bare reading makes it obvious that there is no element of delegation on the part of rule making authority, which is the appointing authority, namely, the Administrator of Union Territory of Delhi, and all that this rule provides is that in the matter of reservation of posts for Scheduled Castes and Scheduled Tribes, the appointment shall be in community with the orders issued by the Central Government from time to time. We find this to be a case of referential incorporation of the orders issued by the Central Government from time to time on the subject of reservation of posts. This mode adopted by the rule making authority, in our view, docs not suffer from any vice. The reason is simple.
(33) Legislation by reference or incorporation is a device, which is well recognised. This mode of legislation was approved by the Supreme Court in the case : Bhajva s/o Shyama Kanbi v. Gopikabai and another etc., , where it was held that even where a statute incorporates by general reference the law concerning a particular subject, as a genus, the exercise is permissible provided the subject so adopted was within its legislative competence. On the authority of this judgment alone, we can say that rule 22 becomes fortified against all. attack in this respect because what it did was to incorporate by general referenda all the orders issued by the Central Government, present as well as future, on the subject of reservation (34) There can be no gainsaying the fact that it was the constitutional mandate binding on the appointing authority to provide for reservation of posts for members of Scheduled Castes and Scheduled Tribes, in view of the provisions of Article 15(4), 16(4) and 335 of the Constitution. One way of doing so, was to sit every time an appointment was to be made, and formulate a policy to carry out this constitutional mandate, which would have been too impractical and time consuming besides being cumbersome. There was no bar in the way of rule-making authority, which also happened to be the appointing authority, to decide to avoid the wholly needless exercise, when the convenient and expeditious mode of incorporation of the orders, and instructions issued by the Central Government in this respect was available.
(35) Mr. Vaze pointed out that this mode of adoption was approved by the Supreme Court even where a Municipal Corporation adopted, the Government Resolution, on the matter of reservation for backward classes by passing a resolution, as seen in the case reported as Air Sc 2115, Municipal Corporation of Greater Bombay and others v. Mrs. Kalpana Sadhu Kamble and others. He argued that the maxim delegates non protest delegate is invoked as if it embodied some general principle that made it legally impossible for statutory to be delegated. He argued quoting from Administrative Law by Hwr Wade, fifth edition, page 319 that, in fact, in reality there was no such principle; and that the maxim plays no real part in the decision of cases though it is sometimes used as a convenient label. According to him the observation made by the Court during hearing that Rule 22 was not a case of delegation at all but incorporation and this cannot be faulted with as legislation by reference was a well-known mode, adopted by draftsman, stated the correct position. He placed reliance on principles of Statutory Interpretation by Far Bennion, (1984 edition), where it is observed that, "it is a common device of draftsmen to incorporate earlier statutory provisions by reference rather than setting out similar provisions in full. This device saves space and also attracts the case law and other learning attached to the earlier provisions."
(36) A notable illustration of legislation by incorporation for the sake of expediency, is furnished by the High Court Judges (Conditions of Serivce) Act, 1954 where Section 17 and 17-A (3) provides as under :- "17. The rules for the time being in force with respect to the grant of extraordinary pensions and gratuities in relation to an officer of the Central Civil cervices, Class I who has entered service on or after the 1st April, 1937 and who may suffer injury or die as a result of violence, shall apply in relation to a Judge, subject, however, to the modification that references in those rules to tables of injury gratuities and pensions, and of family gratuities and pensions, shall be construed as references to the tables in the second schedule." "17-A. (1) ............ (2) ......... (3) The rules, notifications and orders for the time being in force with respect to the grant of death-cum-retirement gratuity benefit to or in relation to an officer of the Central Civil Services, Class I (including the provisions relating to deductions from pension for the purpose) shall apply to or in relation to the grant of death-cum-retirement gratuity benefit to or in relation to a Judge who being in service on or after the 1st day of October 1974, retires or dies in circumstance to which Section 17 does not apply, subject to the modifications that .......
(37) The Judges of the High Court enjoy incomparably higher constitutional status than members of the Service, who are governed by Recruitment Rules framed under Article 30") of the Constitution. If these provisions of referential, incorporation exist in a statute pertaining to conditions of service to a High Court Judge, there can possibly be no objection being taken in the Rules such as Rule 22, and also Rule 27, pertaining to this Service.
(38) Mr. Vaze contended that once this was done, the principle of verba relate hoc examine operator per referential in business venture applies which means that words to which reference is made in an instrument have the sama operation a3 if they were inserted in the instrument referring to them.
(39) The learned counsel stated that apart from legal jugglery and academic aspect; the matter should be beyond the pale of controversy so far as the vires of Rule 22 is concerned, because a rule skin to that, namely. Rule 28 of the Delhi Judicial Service Rules, 1970 has been found to be of full constitutional validity, and operational by the Supreme Court, in a case relating to recruitment to Delhi Judicial Service, , Prem Prakash etc. v. Union of India and others, We find Mr. Vaze entirely right in his submissions because the aforesaid Rule 28 reads as under :-- "Appointment made to the service by competitive examination shall be subject to orders regarding specie representation in the service fcr Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time."
(40) There was reliance in the above case on a number of provisions based on office memoranda issued by the Department of Personnel and Training, Government of India, as contained in the Brochure. The decision proceeded on the footing that all these orders and instructions as incorporated in the Brochure, and made applicable by virtue of Rule 28, while making appointment to Delhi Judicial Service were binding on the appointing authority and the High Court, and the reservations of post, and appointments to that Service have to proceed in conformity with the administrative instructions and notifications issued by the Ministry of Home Affairs, Department of Personnel and Training, Government of India, issued from time to time. It was clearly held that in case rules on the subject do not make specific provisions in this respect, the High Court cannot ignore the administrative instructions and this was despite the place on behalf of the High Court that administrative instructions cannot be allowed to prevail over the statutory rules. This argument was repelled on the view that Rule 28 made appointments to the judicial service by competitive examinations, subject to orders regarding special representation for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time and that argument of any inconsistency or clash of powers did net arise.
(41) In the context of the Union Territory of Delhi, we find the challenge to Rule 22 on the contention of impermissible delegation to be unsustainable for another very obvious reason It is to be noticed that Rules have been framed by the Administrator appointed under Article 239 of the Constitution. This appointee acts as an agent of the President, and the present rules have been framed by the Administrator under Article 309 also under delegated powers of the President by means of specific notifications issued on the subject, which find reference in the preamble to the rules. In so far as the Union Territory is concerned, the Central Government by virtue of Section 3(8) of the General Clauses Act, 1897 means the President and includes, inter alia. Administrator of a Union Territory acting within the scope of the authority given to him under Article 239 of the Constitution. Further under Section 3(60) of the General Clauses Act, State Government also means in so far as a Union Territory is concerned, the Central Government. The position thus boils down to this that "in so far as a Union Territory is concerned, such as Delhi, the Administrator acting within the scope of the authority given to him by the President under Article 239 of the Constitution is equated with the Central Government." We are fortified in this view by the judgment of the Supreme Court , Goa Sampling Employees Association v. General Superintendent Co. of India Pvt. Ltd. and others where it was held that the appropriate Government within the meaning of Section 10(l)(d) of the Industrial Disputes Act, 1947 in relation to a Union Territory' is the Central Government.
(42) It is to be noted that in our constitutional scheme, the President acts through the Council of Ministers. Under section 3(8) of the General Clauses Act, as already noted, Central Government means the President in so far as the Union Territory of Delhi is concerned. In view of this, when the Administrator while framing rules, provided in rule 22 by incorporation that all orders issued by the Central Government on the question of reservation of posts for Scheduled Castes and Scheduled Tribes shall apply, there is no violation of any principle, constitutional or otherwise.
(43) Mr. Vaze rightly argued that it is not a case where an authority has been entrusted or made over to an agency, which had no constitutional sanction or was non-statutory or private body of persons, as was the case in the case of Ellis v. Dubowski and others, 1921) All Er Rep. 272 and in the famous case known as Associated Provincial Picture House Ltd. v. Wednesday Corporation, (1947) 2 All E.R. 680.
(44) On a conspectus of the whole law on the subject, we hold that the challenge to rule 22 is not sustainable, and that the arguments of impermissible delegation are not attracted in this case nor can it be said that it is a case of abdication of their power and constitutional duty by the Administrator or the High Court to the Executive, because in this case that agency is none other than the Department of Personnel and Training of the Central Government, which exercised its authority and jurisdiction on the subject of reservation of posts for Scheduled Castes and Scheduled Tribes under constitutional authority vested in it by allocation of business rules issued under Article 77 of the Constitution, and the appointing authority, namely, the Administrator is a delegate of the self same Central Government.
(45) Another contention, very vehemently advanced by Mr. Rohatgi, proceeded on the basis that there were no Scheduled Tribes, notified under the Presidential Order issued under Article 342 in so far as the Union Territory of Delhi is concerned. The learned counsel placed emphatic reliance on the principles laid down by the Supreme Court in a very recent judgment in the case of Marri Chandra Shekhar Rao v. The Dean, Seth .G. S. Medical College and others, , and. also on some cases that had come up before certain High Courts, , K. Appa Rao v. Director of Posts and Telegraphs, Orissa and others, , Tapan Kumar Roy v. The Convener, Engineering, Agricultural and Medical Common Entrance Test-87 Andhra Pradesh University, Visakhapatnam and another and , M. S. Malathi v. The Commissioner, Nagpur Division and others.
(46) The argument proceeds that Articles 341 and 342 very clearly envisaged that President shall specify the persons to be treated as members of Scheduled Castes and Scheduled Tribes as the case may be, in respect to each State or union territory and that the Presidential Order has reference to Scheduled Castes or Scheduled Tribes, "in relation to that State or union territory, as the case may be". The underlying principle is that persons belonging to certain class or group in a given geographical area require special protection under the constitutional provisions of reservation and that that benefit should be accorded to them or to be made available only when they seek that Protection in that particular State or union territory.
(47) Mr. Rohatgi read extensively from various Presidential Orders issued in respect to various States or union territories separately and pointed out that there (48) The learned counsel urged, as a corollary to this argument, that for the reason that no Scheduled Tribes candidate could be accommodated against reserved post of this category by virtue of rule 22, it is obvious that no Scheduled Castes candidate can avail of this benefit on the rule of exchangeability or interchangeability, under provision the Brochure because exchangeability would be permissible only if initially the post was available to a Scheduled Tribes candidate, and if the post goes, then the question of anyone coming in lieu thereof does nut arise. He argued that for the matter of that, even members of Scheduled Castes, not notified in the Presidential Order relating to the Union Territory of Delhi, issued under Article 341, could not come from outside and seek benefit of reservation under Article 22 with the result that such a candidate, who cannot otherwise be denied benefit of seeking appointment in the Union Territory of Delhi by virtue of freedom granted to him under Articles 19 and 21 of the Constitution, will have to compete with candidates of general category and cannot claim any special privilege as a reserved category candidate. -
(49) The consequential agument by way of necessary inference, according to the learned counsel is that the appointment of respondents 6 and 7 is open to challenge because one of them has come in exchange for a Scheduled Tribes vacancy of point 8. and the other, according to him, did not belong to the Scheduled Castes as notified turn the Union Territory of Delhi. He even went to the extent of stating that the entire 40 point roster required to be recast by removing points kept for Scheduled Tribes: and making provision only of reservation for Scheduled Castes candidates in accordance with the instructions contained in the Brochure.
(50) This argument hus a beguiling simplicity in so far as it goes but is of no avail to the petitioners in so far as Union Territory of Delhi is concerned We have already held that rule 22 is a valid provision. As a consequence the entire Brochure becomes part of the rules. This Brochure provides at pages 62 and 314 that in so far as Delhi is concerned "roster as prescribed for recruitment on all-India basis to be followed". "It is (thus) clear that Union Territory of Delhi, has been treated, on a footing different than other States, and union territories, and here the roster prepared on all-India basis is to apply. That roster is the 40 point roster as given in appendix 2 appearing at pages 48 and 311, in so far as direct recruitment made on all-India basis otherwise than by open competition is concerned, as is the case in the appointment to the Service, because the Brochure clarifies that, any appointment net made by the Union Public Service Commission and not made through written competitive test held by any other authority would mean direct recruitment otherwise than by open competition. These rosters, provide specific points for members of Scheduled Tribes. Delhi High Court has thus acted with full legal and constitutional authority in following the 40 point roster, and keeping points reserved for Scheduled Tribes as provided therein. That being so, the rule contained in the Brochure, regarding exchangeability providing that the point reserved for Scheduled Tribes shall go to Scheduled Castes candidates, after attempts to find suitable Scheduled Tribes candidate for a given number of recruitment years fail, shall apply.
(51) It is further to be noted that under "rule 3 of the rules, the Delhi Higher Judicial Service has been defined to be a civil service, and under sub-rule (b), "the posts included in the service shall be Central Civil Posts, Class I, Gazetted". This makes it clear that the Service is a Class I Central Civil Service, and for that reason also, the roster as for posts on all India basis shall apply". We say so, on the strength of an office memorandum issued by Ministry of Home Affairs, being No. 42/21/49/NGS dated 13th September, 1950. We extract the relevant portion as under: "Under the Constitution all citizens of India are eligible for consideration for appointment to posts and services under the Central Government irrespective of their domicile or place of birth, and there can be no recruitment to any Central Service which is confined by rule to the inhabitants of any specified area", (vide page 7 of the Brochure).
(52) For all these reasons, the ratio of the decision in Marri Chandra Shekhar Rao's case (supra) is not attracted. Selection and the proposed appointment of both the respondents No. 6 and 7, is thus beyond challenge on this account.
(53) After making multi-pronged attack on the validity of rule 22, Mr. Rohatgi argued, so far as this service is concerned, there could be no reservation. He set forth two reasons for ibis contention. In the first instance, he contended that members of the Service enjoy a near parity with Judges of the Supreme Court and the High Court in the manner of appointment, inasmuch as just like Article 124(2) in respect to a Judge of the Supreme Court and Article 217 in respect to a Judge of the High Court, members of the Service are also appointed by the Governor of the State under Article 233, in consultation with the High Court, and to that extent they are to be treated as constitutional appointees in the same manner as Judges of the Supreme Court and the High Court. The argument was developed further to urge that just as there is no provision for reservation for members of Scheduled Castes and Scheduled Tribes for Judges in the Supreme Court and the High Court, there was no justification for this reservation being extended in the matter of appointments to the Service.
(54) This argument, like many preceding arguments, again suffers from an inherent fallacy, in contending that members of the Service are constitutional appointees, and should be given parity of treatment with the Judges of the Supreme Court and the High Court. It is to be noted that there is no comparison between the members of the Service appointed under Article 233 in so far as constitutional status is concerned vis-a-vis the Judges of the Supreme Court and the High Court, for the short reason that whereas Judges of the Supreme Court and the High Court enjoy full constitutional status from the very date of appointment till they relinquish office, and in all matters regarding not only appointment but tenure of service, emoluments, transfer etc. are governed by the provisions of the Constitution; members of the Service appointed under Article 233 form a cadre like any other civil service under the State, and are governed by the recruitment rules framed under Article 309, and enjoy no more protection in the matter of tenure than guaranteed by the said rules and the provisions of Article 311 of the Constitution. To our mind, therefore, it is too presumptuous for the aspirants of entry to the Service To content that they should be deemed to be constitutional appointees, like Judges of the Supreme Court and the High Court.
(55) The second line of-argument in this respect was that the officers manning the Service, namely, incumbents of the various posts of District Judge and Additional District Judges are called upon to deal with very complicated questions of law, including matters pertaining to life and death of citizens as well as valuable property rights and that there should be no scope for reservation of posts for members of the Scheduled Castes and Scheduled Tribes who do not have to compete with rigorous standards, on merits, as candidates of general category are subjected to, and that it was in the interest of the Service that it is kept free of persons of reserved category. We consider it outrageous, to the spirit of the Constitution to even project an Idea, that members of the Scheduled Castes and Scheduled Tribes should be shut out from the Service on the assumption that they are less meritorious and not fit toy man the posts included in the Service, because the matter of amelioration of people belonging to backward classes and tribes, who are best identified in a way as members of the Scheduled Castes and Scheduled Tribes, is one of the basic tenets of our Constitution, as enjoined in Articles 15(4), 16(4), 46 and 335 of the Constitution. We are constrained to deal with this argument because it was quits earnestly put forward, and pressed.
(56) We cannot do better than quote from the judgment of Crinnapp Reddy, J. in the case of K. C. Vasanth Kumar and another v. State of Karnataka, : "One of the results of the superier, elitist approach is that the question of reservation is invariably viewed as the conflict between the merit arian principle and the compensatory principle. No, it is not so. Efficiency is very much on the lips of the privileged whenever reservation is mentioned. There is neither statistical basis nor expert evidence to support the assumption that efficiency will necessarily be impaired if reservation exceeds 50%, if reservation is carried forward or if reservation is extended to promotional posts. In view of Arts. 15(4) and 16(4), the socalled controversy between the meritar an and compensatory principles is not of any great significance, though, it is true thaT efficiency should not be sacrificed."
(57) We also and supper. for the observation wade above that backward classes are best identified by taking up the categories known ?s Scheduled Castes and Scheduled Tribes from this very judgment where it was noted : "If poverty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a person's caste."
(58) Even in the well-known judgment in the case of T. Devadasan v Union of India and another, , it was held that the provision dealing with reservation will not be bad simply because there will be some deterioration in the standard of service.
(59) We can also not be unmindful of the fact that the appointments to the Service are made by process of selection through a Selection Committee which comprises of Judges of the High Court and also representatives of the Administrator, who is the appointing authority under Article 233, such as Chief Secretary and the Secretary (Law & Judicial) of Delhi Administration The fact that a number of times candidates belonging to reserved category have not been found fit. though they appeared for interview is clear indication of the fact that the Selection Committee keeps a certain minimum standard in view and ensures that persons who are reasonably fit and considered suitable are appointed to the Service. Thus, it is not a ease where members of the Scheduled Castes and Scheduled Tribes found entry to the Service )ust by virtue of their being so, but only after competing amongst themselves, and satisfying the test of suitability to the satisfaction of the Selection Committee. The fact that the Committee has been selective in this respect is apparent from the fact that during number of recruitment years, although Scheduled Castes candidates applied and appeared for interview, they were rejected as being not suitable for the post, and instead candidates of the general category were appointed through the machinery of de-reservation and carving forwards (60) We are, therefore, not impressed with this argument that the 40 point roster, as contained in the Brochure, ought not to have been adopted in the matter of appointments to the Service and there should have been no reservation for the members of Scheduled Castes and Scheduled Tribes in the Service.
(61) Keeping in view the spirit of the Constitution, the remedy is not to eradicate the provisions of reservation from the Rules regarding appointment to the Service, but to ensure that proper selection is made for which we can trust judgment of the Selection Committee and, thereafter to ensure that candidates belonging to Scheduled Castes and Scheduled Tribes when selected an given a more intensive training as well as guidance after their entry to the Service, so that they come up to the standards, if any wanting in the beginning as expected of incumbents of posts in the Service.
(62) Mr. Rohatgi then argued that the petitioners got selected pursuant to the interview held in October 1988 and they acquired the vested right for appointment in accordance with Rules, then prevailing, and that right cannot be taken away by any subsequent order or circular issued by Department of Personnel and Training, such as office memorandum dated 25th April, 1989. generally understood as "ban on de-reservation".
(63) It is true that although there is no published result, bat in view of the absence of denial by the High Court to petitioners assertion that they were selected for appointment, it can be taken that it was so. The question still remains as to whether the selection was unconditional or subject to any further requirement. It is to be noted that the advertisement in response to which the petitioners applied, issued in December 1987, mentioned clearly, the number of vacancies was four, two of which were reserved for Scheduled Castes and two for Scheduled Tribes, and that the two vacancies reserved for Scheduled Castes will bo open to general category candidates, only if suitable Scheduled Castes candidates did not become available. In so far as the two vacancies meant for Scheduled Tribes candidates was concerned, one was exchangeable to Scheduled Castes, if no Scheduled Tribes candidate became available; failing both, it could go to general category. The second Scheduled Tribes vacancy was open to general category candidates if a suitable Scheduled Tribes candidate did not become available.
(64) The appointment of the general category candidates, as the petitioners are, was thus dependant on the non-availability of suitable candidates of Scheduled Castes category or Scheduled Tribes category, as the case may be. It is true that the Selection committee did not find a suitable candidate of either of the reserved category in that selection, and the petitioners along with one other general category candidate were empanelled for appointment, but this was again subject to the approval of the Department of Personnel and Training for de-reservation. It was, thus, not a case of selection, which did not require any further condition to be satisfied, or requirement to be fulfillled. If in the meantime before permission for de-reservation is accorded by the concerned department, which we have already noted, is a valid constitutional authority turn the purpose, further policy has been evolved in the form of circular of 25th April. 1989 to ensure that the provision for reservation for members of Scheduled Castes and Scheduled Tribes does not become illusory by allowing de-reservation, as and when asked for by the concerned department, and that some further provision be made to make this reservation real and effective; petitioners' selection gets jeopardized.
(65) A cumulative reading of the various memoranda issued by the Department of Personnel and Training on the question of carrying forward and de-reservation, which form part of the Brochure reveals that the concerned department has been, from time to time, trying to tighten the hold in so far as de-reservation and exchangeability of posts is concerned, with the object of ensuring that the posts 'meant to be reserved for members of Scheduled Castes and Scheduled Tribes category actually go to them, and the Constitutional Scheme of reservation is not negated through the machinery of de-reservation. This is the spirit that permeates this Order of 25th April, 1989.
(66) This being a matter of policy with the Government, and the object being to advance the process of upliftment of members of Scheduled Castes and Scheduled Tribes by making them part of the main mainstream in various government services, we do not think that this Court can embark upon the process of judicial review of this policy For.we cannot be oblivious of the fact. that it is within the realm of the Executive to formulate policies, to carry out the Schemes of the Constitution or other statutes, and unless there is some manifest case of mala fide exercise of power or inherent lack of authority, the courts cannot sit over. the judgment of the Executive, as if it were an appellate authority.
(67) This principle is best enunciated in the case of Puhlhofct and another v. Hillingdon London Borough Council, (1986) 1 All Er 467, where it was held that where Parliament intended a certain authority to be the judge of fact, then it was not appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of the local authorities under the Act, save in exceptional cases, such as abuse of power or misconstruction of the provisions of the statute or some action verging on perversity. We cannot loose sight of the fact that .in the case before us it is the Department of Personnel and Training, with the constitutional authority under Allocation of Business Rules, framed under Article 77 that has issued the office memorandum of 25th April, 1989 with the object, and quite justifiably, to ensure that the reservation provided for members of Scheduled Castes and Scheduled Tribes operates effectively, and the provision is not rendered illusory.
(68) Mr. Vaze placed reliance on another judgment of House of Lords, as reported in (1986) I All Er 199(2) Nottinghamshire County Council v. Secretary of State for the environment and another appeal in support of his plea that office memorandum dated 25th April, 1989 was a valid exercise of power, and pleaded that courts would not intervene to review the exercise of such power on the ground of unreasonableness lineless there was some element of receipt or mala fide in the exercise of such power.
(69) Another judgment of the Supreme Court cited by Mr. Vaze, Judgments Today 1988 (2) S.C. 548, Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors. is very instructive where limits of the powers of the Court vis-a-vis the scheme of separation of powers. as envisaged in our Constitutions was highlighted, and it was held that : "While exercising powers 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 sermonizes qua any matter which under the constitution lies within the sphere of legislature or executive provided these authorities do not transgress their constitutional limits or statutory powers (70) The judgment quoted, and which we feel tempted to reproduce, from the judgment of Frankfurter. J. in the case of Trop v. Dulles, (356 Us 86) (24), where it was held, inter alia, that: it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own. notions of what is wise or politic ............. . . . . . the Constitution has not authorised the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do."
(71) He also placed reliance on a judgment of House of Lords reported as (1984) 3 All Er 935 Council of Civil Service Unions and others v. Minister for the Civil Service, to advance the same plea, where it was held that administrative action is subject to control by judicial review under three heads : "(1) illegality, where the decision-making authority has been guilty of an error of law, e.g. by purporting to exercise a power it does not possess; (2) irrationality, where the decision-making authority has acted so unreasonably that no reasonable authority would have made the decision; (3 procedural impropriety, where the decision-making authority has failed in its duty to act fairly."
(72) The learned Counsel argued that the impugned order does not suffer from any such illegality or infirmity, and has been issued in valid exercise of power by the Department of Personnel and Training, which is an impersonal entity and has acted with the sole desire of ensuring that the matter of reservation of posts for Scheduled Castes and Scheduled Tribes does not become unreal by allowing laxity in the matter of de-reservation.
(73) 'WE (find ourselves in agreement with the plea advanced by Mr. Vaze, and) do not think that the order of 25th April, 1989 is liable to challenge, on the ground that it takes away the rights of general category candidates, because we are of the view that those rights were not absolute, but were at sufferance. We also do not find-any element of discrimination or arbitrariness, in this order against the general category candidates because the underlying object in issuance of this order is manifestly to ensure against disadvantageous operation of the 40 point roster qua the reserved category candidates." We again quote from the judgment in T. Devadasan's case (supra) that where the State makes a rule providing for the reservation of appointments and posts for such backward classes, like the members of Scheduled Castes and Scheduled Tribes, it cannot be said to have violated Article 14 merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or more meritorious than the members of such reserved classes, or merely because such reservation is not made in every kind of service under the State.
(74) In , State of Kerala and another v. N. M. Thomas and others, which was relied upon by the petitioners' counsel also, it was held that the provisions of Articles 15(4) and 16(4) are in the nature of proviso to provisions of Articles 15(1) and 16(1) respectively, and any instructions issued in this respect on the question of reservations is not liable to challenge on the ground that it violates the principle of equality, as contained in Article 14, or vitiates against Article 21 or it vitiates against the rule prohibiting discrimination, as envisaged in Article 16(1) of the Constitution. All that was held in this judgment was that the reservation should be within the permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and that the State cannot be allowed to indulge in excessive reservation as to change the policy contained in Article 16(1). But this very judgment observed that as to what would be suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down nor can this matter be reduced to a mathematical formula so as to be adhered to, in any event, and that where the dominant object of a provision is to take steps to make an inadequate representation adequate, then there can be no challenge to such a provision.
(75) We would also like to dispose of one other contention of the petitioners, at this stage, namely, that the operation of this order of 25th April, 1989 would operate as monopoly for members of the Scheduled Castes and Scheduled Tribes, and thus there is violation of the constitutional principles as contained in Article 16(1). We do not agree, for the reason that the working of the 40 point roster in the matter of this Service so far makes it clear that at no point of time there can be any such excessive representation of members of the Scheduled Castes and Scheduled Tribes, as can be hit by the principles laid down in T. Devadasan's case (supra), as also in Vasanth Kumar's case (supra). We note that so far, out of 17 appointments made of direct recruits to the Service, it was possible to fill up only there posts by members of the Scheduled Castes including the appointment of Mr. L. D. Mual made on 1st September, 1989. Even in the advertisement of 1987, there were ten vacancies notified, six of which were to go to general category candidates even on the existing rules and only four to members of Scheduled Castes and Scheduled Tribes. This is apparently less than 50% of the maximum limit envisaged by Devadasan's case (supra). We do not think that in any foreseeable future a situation would reach, when this order of 25th April, 1989 operates, in such a way, where not to speak of monopoly, even 50% of the total posts available to direct recruits shall go to members of the reserved category. This order, therefore, cannot be assailed at this stags en the apprehension of a situation which is not likely to occur in reality in so far as we can see. The question can be raised and examined, if an occasion arises at the time such a situation really arises.
(76) It has been held in , Hira Lal v. The District Judge, Ghaziabad and others that the appointment should be made as per the provisions of the roster prevailing at the time, and that mere fact that the total percentage of the candidates of reserved category may increase the percentage provided for them in the whole cadre would not entitle the Administrative Department to deny the appointment to the reserved category candidates, entitled to be posted as per terms of the roster for that recruitment year.
(77) The principles laid down in Air 1984 Supreme Court 1301, A. L. Kalra v. The Project and Equipment Corporation of India Ltd., relied upon by Mr. Rohtagi also are not attracted in the present case because that was a case involving some discrimination in administrative rules and thus hit by Article 14 of the Constitution on the principle that they violated the fundamental rights as contained in Article 14. That case did not involve any question of reservation, in the spirit of Articles 335 or 15(4) or 16(4) or Article 46.
(78) We further note that insofar as Group A services are concerned, to which category the present Service belongs, the ban is not absolute, but there is a clear provision that : "In case of direct recruitment to the vacancies in Group 'A' services, there may be rare and exceptional cases where after the non-availability of suitable Sc and/ or St candidates, posts cannot be allowed to remain vacant in public interest. In such situations, the administrative Ministry/Department under which the recruitment is being made shall make a proposal for dereservation giving full justification for such action. . . . . ."
(79) It is thus obvious that the impugned order makes abundant provision for the situation where no suitable Scheduled Castes and Scheduled Tribes candidate comes forward in a recruitment year, and the Administrative Department, the High Court in the present case, finds that the post cannot be kept vacant in public interest, then the recommendation can certainly be made for dereservation giving justification, for such proposal, and after following the procedure as provided therein. There is nothing to prevent the High Court to take recourse to this provision, whenever exigency of the situation so requires.
(80) The principles, propounded by the Supreme Court, in the case of Comptroller and Auditor-General of india, Gian Prakash New Delhi and another, v. K. S. Jagannathan and another, , lay guidelines in respect to matters such as reservation, where it was held that : "Where legislation or subordinate legislation deals with human rights of exploited and backward class of people, construction should be placed in the light of constitutional protection, available to them." It was further held that : "The interpretation to be placed upon the Office Memorandum dated January 21, 1977, must be in keeping with Articles 16(4), 46 and 335 and not as if the said office memoranda were an entry in a tariff schedule or a notification levying import duty upon goods." end that "The treatment meted out to the members of the Scheduled Castes throughout the ages was an affront to Human Rights. It was in a spirit of atonement for the wrongs dons to them and to make restitution for the injury and injustice inflicted upon them that the framers of the Constitution enacted Article 16(4) placing them in a separate class in matters relating to employment or appointment to any office under the State, formulated the Directive Principles embodied in Article 46, and proclaimed the great constitutional mandate set out in Article 335."
(81) We are in respectful agreement, and find the order dated 25th April, 1989 not liable to challenge, on the contentions raised by the petitioners.
(82) It was then argued that this order of 25th April, 1989 suffers from the vice of retrospectivity, inasmuch as it applies not only to vacancies, which are to occur after the issuance of this memorandum, but also to existing vacancies, which have not so far been filled up. There can be no disputing the proposition as advanced by Mr. Rohatgi that administrative instructions by delegated authority cannot operate retrospectively, but the question to be seen is, is it really so ? All that the impugned order dated 25th April, 1989 says is that: "It is further clarified that this ban will apply not only to vacancies which arise after 1-4-89 but also to the vacancies reserved for SC/ST communities of earlier years which have not yet been filled up by other community candidates whether such vacancies have been dereserved or not."
(83) As we read this provision, we feel that this order which has been issued, as the opening portion will show, in order to protect the interest of Scheduled Castes and Scheduled Tribes communities, and to ensure that the posts reserved for them are filled by such candidates, it was decided that there should be no dereservation, as was the practice hereinbefore. In view of the fact. That mere selection of a general category candidate whose appointment was subject to orders of dereservation, did not create any vested rights in his or her favor till the dereservation was allowed, we are of the view that the fact that this order clarifies that ihe decision now contained in this office memorandum shall apply also to existing vacancies, which have not yet been filled up, does not make it vulnerable on account of any vice of retrospectivity because those vacancies were not open vacancies available to general category candidates as a matter of right, but only subject to orders of dereservation, and if in the meantime the administrative policy is changed and dereservation is made more strict, and permissible only in exceptional cases, on justification being furnished by Administrative Department, then it cannot be said that its provisions per se are of retrospective operation. We, therefore, do not think that this order can be impeached on the plea of retrospectivity.
(84) As a result of the foregoing conclusions, we hold that neither rule 22 nor the principle of reservation of posts in the Service nor the latest office memorandum, namely, of 25th April, 1989 on the subject of dereservation are open to any constitutional challenge or otherwise. We also do not find in this office memorandum any evidence of unfavorable bias against the candidates of general category of the type envisaged in , Kathi Raning Rawat v. State of Saurashtra, for the reason that this order is issued with entirely different object and to make the constitutional provision of reservation real and effective, and to ensure that the posts meant for reserved category candidates go to them and are not ordinarily filled by general category candidates through the machinery of dereservation.
(85) The petitioners, however, insist on their right of appointment for another reason, namely, that on account of having been selected and empanelled for appointment to the Service and recommendation for dereservation, as per existing provisions, having already gone from the High Court, there was no justification for issuing the advertisement for holding another selection exclusively for members of Scheduled Castes and Scheduled Tribes. It is true, as held in , Prem Prakash etc. v. Union of India and others, which was a case pertaining to Delhi Judicial Service, that once a panel is prepared for appointment to a post in Service, then it is incumbent upon the Administrative Department to exhaust that panel. This was on the basis of Government of India Notification dated 8th February, 1982 issued by the Ministry of Home Affairs to the effect that: ". . . .if selected candidates are available from the previous list there should either be no further recruitment until those candidates are absorbed or in the alternative vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates. There should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Once a person is declared successful according to the merit list of selected candidates the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes .a change after his name is included in the list of selected candidates."
(86) This principle was reiterated in another case by the Supreme Court in Civil Appeal No. 1900 of 1987, Union of India v. Ishwar Singh Khatri & others, decided on August 4, 1989, pertaining to appointments in the Directorate of Education, Delhi Administration, where the order passed by the Central Administrative Tribunal to the following effect was upheld : "The petition is allowed and the letter No. F. 20-3 (a)/ 85-Coord dated 5-3-1985 issued by the Directorate of Education in so far as it restricts the operation of panels of selected candidates to the extent of the actual notified vacancies is hereby quashed with the direction that all the candidates included in the panels of selected candidates prepared till June 19 84 for the posts of Trained Graduate Teachers, shall be appointed against the existing or future vacancies and that the persons in the said panels shall have precedence in appointment over persons included in any subsequent panel and not so far appointed and further that no fresh panel for the appointment on the posts of trained Graduate Teachers in the categories covered by the said panels, shall be prepared until the said panels are exhausted and offers for appointment have been made to all persons included in the said panels."
(87) It was held that when the selection was made on the basis of existing vacancies and candidates selected and panel prepared, it was incumbent on the Administration to fill up the vacancies from amongst the candidates from that panel and that the panel of selected candidates should be valid till the candidates are offered appointment.
(88) Mr. Rohatgi submitted that by this judgment, delivered on August 4, 1989, it was held that the panel prepared in June 1984 should be exhausted by accommodating all selected candidates forming part of that panel against the vacancies with the Department. He pleaded that on this principle the petitioners, who were selected and whose names were recommended for appointment after dereservaticn, should be considered against the existing vacancies and that the action of the High Court ins issuing another advertisement for Scheduled Cast's and Scheduled Tribes candidates in the spirit of the ban on dereservation issued on 25th April, 1989 and the consequential selection and. appointment of respondents No. 6 and 7 is not sustainable.
(89) He placed reliance in support of his arguments on Y. V. Rangaith and others v. J. Sreenivasa Rao and others, holding that vacancies which occur prior to amended rules would be governed by old rules and not by new rules. Although we find justification in the plea of the petitioners [on the strength of Prem Prakash's case (supra)] that' having been once empanelled for selection, they acquired a right to be exhausted against vacancies which exist or might occur, but in a case like this, where right to appointment, even after selection was not absolute, but subject to dereservation, we do not think that this principle [as laid down in Prem Prakash's case (supra)] will be attracted It is also not a case where office memorandum dated 25th April, 1989 brings about any amendment to the rules. This only affects evolution of policy by the concerned department to see that constitutional provision of reservation for Scheduled Castes and Scheduled Tribes does not become meaningless by the convenient modes of dereservation, as has been hitherto done.
(90) That being so, we are of our considered view that when the list is between the general category candidates vis-a-vis reserved category, the position acquires an altogether different complexion.
(91) We feel that in view of the scope kept in the office memorandum of 25th April, 1989, it is for the Administrative Department to make a special recommendation for dereservation in the case of Group "A" services, if the circumstances so require, in public interest, and that the posts do not remain unfulfilled. The High Court on the administrative side would have been well advised, thus not to automatically accept the ban on dereservation as contained in the order of 25th April, 1989, particularly when three candidates of general category had been selected and recommended for appointment with proposal of dereservation, by means of communication sent on 16th November, 1988 i.e. prior to issuance of this ban, and press for acceptance of its proposal for dereservation, in view of the fact that the vacancies against which three general category candidates including the petitioners, had been selected were vacancies advertised in 1987 and which included the point 8 reserved vacancy of Scheduled Tribes which could not be filled up even in 1985, and was being carried forward with effect from 1980. But the High Court in its administrative wisdom chose to go by the office memorandum issued on 25th April, 1989 and issued an advertisement in August/September, 1989 to the following effect: "IN The High Court Of Delhi At New DELHI. Special drive for recruitment of SC/ST Candidates. Applications are invited from practicing Advocates belonging to the Scheduled Caste and Scheduled Tribe communities, possessing the qualifications and satisfying the conditions enumerated below for direct recruitment to the Delhi Higher Judicial Service in the time-scale of Rs. 4500-150-5700 plus allowances as are admissible to officers working under the Delhi Administration:- The candidate must: (a).............. ... (b) ..................... (c)..................... (d) must have attained the age of 35 years and must not have attained the age of 50 years on the 1st January, 1989."
(92) Respondents No. 6 and 7 herein applied in response to this advertisement and were selected for appointment in the interview held sometime in January 1990. The fact that these two candidates have been selected and recommended for appointment emerges from the pleadings and has thus taken to be an established position. These respondents thus became also empanelled for appointment against vacancies meant exclusively turn them in the 40 point roster whether in their own right as Scheduled Caste candidates or in exchange for Scheduled Tribes candidates vacancies in terms of the instructions contained in the Brochure. This confrontation between the candidates selected by two Selection Committees successively resulted as a matter of administrative action of the High Court. Considering the fact that the candidates selected in the latter selection belonged to reserved category and meant to man posts reserved for them, vis-a-vis the rights of the general category candidates who claimed to have been selected and recommended for appointment in accordance with the earlier advertisement, presents the court with Hobson's choice, and we do not find it possible keeping in view the ratio of different Supreme Court judgments discussed above, to say that the respondents No. 6 and 7 should make Way to the petitioners.
(93) Faced with this situation, the petitioners came up with another plea during the pendency of the hearing and moved even for an amendment of the writ petition, which was allowed, taking up an additional point that the respondents No. 6 and 7 exceeded the age of 45 years in January 1990, when they were selected for appointment, and this selection is vitiated, as being in contravention of rule 9 of the rules which read as under: "9. The qualification for direct recruit shall be as under: (1)..................... (2)..................... (3) must have attained the age of 35 years and not attained the age of the 45 years on the first January of the year in which his appointment is made."
(94) Mr. Rohatgi argued that these rules are undisputably statutory rules, and no administrative instruction or action can be justified which operates contrary to Rule 9. He contended that a bare reading of this rule makes it clear that the minimum age for entry to Service is 35 years and the maximum that of 45 years, which is to be taken into reckoning in the year from the 1st January of the year in which the appointment is made and that this rule does not provide for any relaxation for the candidates -, of reserved category, such as respondents No. 6 and 7. It is ' contended that there was no denial by respondents No. 6 and 7 who were present in Court throughout the hearing and were served with the copy of the amended petition, that they were above the age of 45 years in January 1990. He vehemently argued that relaxation of age, if not provided in the recruitment rules, cannot be permitted by administration action, as has been done in the present case.
(95) Mr. Rohatgi placed reliance in support of his contention on the judgment of the Andhra Pradesh High Court (Division Bench), reported as 1981 (3) Services Law Reporter 614, Pvs Janardhan Rao and others v. Union of India and others. where administrative instructions of reservation inconsistent with the statutory rules were held to be liable to be quashed. This was based on the authority of the Supreme Court judgment in the case , The Accountant General and another v. S. Doraiswamy and others, , where it was held that where rules having the force of statute existed, having been made under the powers conferred by the Constitution, any administrative instruction inconsistent with the said rules cannot be given effect to. He also placed reliance on another Supreme Court decision arising out of the recruitment to Delhi Judicial Service, , Umesh Chandra Shukla v. Union of India and others, where certain candidates were selected for appointment by allotting additional marks so as to enable them to come within the qualifying limit prescribed for the aforesaid examination, by adopting the principle of moderation. The action was struck down by the Supreme Court on the view that since recruitment rules did not provide for such moderation, the same could not be resorted to.
(96) Mr. Rohatgi also placed reliance, to fortify his arguments that relaxation in age limit has to be specifically provided' for Scheduled Castes and Scheduled Tribes and other special category of persons by the recruitment rules on the subject, on an office memorandum No. 4/1/55-RPS dated 12th February, 1955. ".... .relaxation of age limit should normally be made only where the recruitment rules provide for such relaxation."
(97) He contended that intention is thus clear that wherever relaxation is intended to be provided for members of the Scheduled Castes and Scheduled Tribes, the relevant recruitment rules should make a provision for that, and that if it was not so, by administrative action, this cannot be resorted to.
(98) Mr. Vaze, on the other hand, argued that the power of relaxation including that of age limit in the matter of Scheduled Castes and Scheduled Tribes candidates was inherent in the general provision of the Constitution providing for reservation for them and that in given cases the Courts have held, wherever candidates of Scheduled Castes and Scheduled Tribes were involved, that relaxation ought to be the rule even though it amounted to working out the recruitment rules, in a manner, at variance with their provisions. He further argued that here tussle was between the members of the general category candidates qua those of the reserved category, and the rules should be interpreted in such a manner as can save the selection of respondents No. 6 and 7. He contended that the expression "reservation of posts for Scheduled Castes and Scheduled Tribes" occurring in rule 22 is an expression of plentitude and includes all incidental matters, such as relaxation of age. He placed reliance on a Supreme Court judgment reported as 1990 (2) All India Services Law Journal 92. Miss Shinda Hasan v. State of Uttar Pradesh and others, where even though an appointment had been initially made of a Principal to the College by relaxation of qualification as prescribed in the recruitment rules, but it was held that since the candidate had served the Institution for a number of years, it was a fit case where relaxation should operate ex post facto, and the defect, if any, in the initial appointment be condoned.
(99) Mr. Vaze further argued that in the present case it is noteworthy that the Administrative Department, namely, the High Court, has always held out that relaxation of five years in the upper age limit was allowable to members of the Scheduled Castes and Scheduled Tribes, as would be evident from the advertisements issued from time to time whenever there was a Scheduled Castes or Scheduled Tribes vacancy. That was even at the time when Mr. G. S. Dhaka, Additional District Judge, Delhi was appointed in the year 1978, when he was also in excess of 45 years at the time of his appointment. This fact was not controverter by the High Court. He further referred to advertisements issued in 1979, 1981, 1985 and then in December 1987 when the High Court notified that the upper age limit of members of Scheduled Castes/Tribes was relaxable by five years. He pointed out that the advertisement issued in 1989, meant exclusively for Scheduled Castes and Scheduled Tribes candidates, against which respondents No. 6 and 7 applied, was even more specific to the effect that the candidate must have attained the age of 35 years and must not have attained the age of 50 years on the 1st January, 1990.
(100) He argued that besides the applicability of the principle of contemplated expositio, it is very pertinent to bear in mind as to how the High Court, which was issuing the advertisement inviting applications for recruitment understood the recruitment rules, and this has been the settled practice right from the beginning when the first vacancy for Scheduled Castes was advertised for the first time in 1978. Mr. Vaze pleaded that there was no reason for this Court to unsettle that understanding which has been accepted, and which prevailed for all these years and particularly when the advertisement in response to which respondents No. 6 and 7 were selected, especially advertised the upper age limit to be 50 years because this was the advertisement meant only for Scheduled Castes and Scheduled Tribes candidates and that principles of equitable estoppel would also apply, and that there would be no justification to say now that these candidates were not eligible for selection being in excess of the maximum age limit as contemplated in rule 9.
(101) We have given our very careful thought to this matter for the reason that a very delicate issue, such as selection of Scheduled Caste candidates is involved, and we have no hesitation in saying that under the existing rules there could be no variation from the upper age limit of 45 years as provided by rule 9, and that general rule 22 would not cover this matter, but in view of the consistent practice of the High Court right from 1978 to treat the upper age limit for Scheduled Castes/Tribes candidates to be relaxable by five years, and having specifically advertised in 1989 notification, when the vacancies were meant to be filled by only Scheduled Castes and Scheduled Tribes candidates, that the upper age limit was 50 years; we would not be inclined to hold the selection of respondents No. 6 and 7 as liable to be set aside for reasons of over age because, as already noted, the principle of equitable estoppel applies and the understanding of the Administrative Department, namely, the High Court was the governing factor, in so far as the candidates, who applied in response to the advertisement, are concerned. This Court cannot be privy to such an interpretation of the rules which unseats the selected candidates of reserved category particularly when after 1985, these two candidates have now become available, and who are practicing advocates, and have certainly after being selected, been in expectation of appointment, and in the process must have ignored their professional work. We, therefore, do not feel inclined to say that these candidates, namely, respondents No. 6 and 7, are liable to be disqualified from entry into service on account of being over age, simply because the High Court acted beyond its administrative competence in notifying relaxation of five years beyond the maximum age, without undertaking amendment to the recruitment rules.
(102) This, however, does not mean that we endorse the interpretation of the High Court on the administrative side. We would expect that an administratively conscious decision is taken in accordance with law, as to whether in future to give relaxation of five years to candidates of reserved category or not, keeping in view the fact that the range of the age limit of candidates for direct recruitment is already 35 to 45 years, and whether it would be advisable to allow entry into service to persons who have already reached the age of 50 years when the retirement age at present is 58 years. We leave this matter, however, for administrative decision by the High Court, whether to undertake amendment of the recruitment rules in this respect, in terms of the office memoranda No. 36011/9/76-Estt. (STC) dated 14th July, 1976 and No. 36011/9/76-Estt. (STC) dated 7th March, 1978, but so far as respondents No. 6 and 7 are concerned, in view of what has been discussed above, we do not think that their selection or proposed appointment can be undone, at this stage, for this reason, or that we would be instrumental to such an undoing of their selection, in exercise of our extraordinary and discretionary jurisdiction under Article 226.
(103) Before parting with the case, we would like to put on record that action for filling up of vacant posts in the District Court is a matter which does not brook any delay in view of the heavy pendency before the courts, which fact was highlighted pointedly by the Supreme Court in the case of R. L. Gupta & another vs. Union of India and others, . Even otherwise it can be a matter for Judicial notice that delay in disposal of cases due to reasons, inter alia, paucity of officers manning the judicial posts in district courts affects mostly the weaker sections of the society, because it is they who are mostly involved in litigation there, and any insistence on the part of the Government not to consider request for dereservation is bound to adversely affect the interest of the weaker and poor sections of the society, to serve whose interest the policy of reservation has been adopted, and is sought to be made more stringent by means of the office memorandum of 25th April, 1989.
(104) In view of our preceding findings, we hold that respondents No. 6 and 7 are entitled to be appointed against the two reserved vacancies ; one, which was meant for Scheduled Castes candidates, and other in exchange for Scheduled Tribes of point 8, and direct that they be appointed accordingly without further delay so that the posts which are lying vacant since long are filled up in the interest, if nothing else, of the litigant public.
(105) In so for as the general category candidates who were recommended for appointment by letter dated 16th November, 1988 subject to dereservation, which included two petitioners also are concerned, we issue a direction to the appointing authority that one of them be adjusted in order of seniority against the remaining Scheduled Castes vacancy advertised in 1989, and pending since 1987, by making a proposal for dereservation in the manner contemplated by office memorandum dated 25th April, 1989, giving full justification in the proposal. We further issue a writ of mandamus to the respondents particularly Department of Personnel and Training that this proposal of dereservation be considered on merit and allowed within a month of receipt of the proposal from Delhi Administration, pursuant to recommendation of the High Court.
(106) We were also informed during hearing that one vacancy of a direct recruit belonging to general category has arisen during pendency of the writ petitions. We direct, on the authority of the Supreme Court in the case of Prem Prakash (supra) that candidates once selected, and empanelled, must be accommodated. that this vacancy be filled up by one of the three general category candidate who had already been selected in 1988. This vacancy shall go to the first candidate in order of seniority in the panel of three names, the second name from this penal be recommended for appointment with proposal of dereservation. as directed above, against the remaining Scheduled Castes vacancy.
(107) We are not aware if any other vacancy of a direct recruit is available. So we are constrained to hold that the third candidate in the panel of 1988, in order of seniority, whosoever may be among the two petitioners in the writ petitions cannot be considered, and his writ petition is liable to be dismissed and shall stand dismissed accordingly.
(108) We may note that though we were informed that one vacancy is likely to arise in April 1991 pursuant to retirement of Mr. G. S. Dhaka, but we are deliberately refraining from issuing any direction for adjusting the third candidate against that vacancy because that is reserved category post and we do not think ourselves competent to deprive a prospective Scheduled Caste candidate, who might have a right to apply and get selected against this vacancy, by making direction that a general category candidate be adjusted against that vacancy arising in future, as was suggested during arguments, because apart from the reasons given above, otherwise also this third candidate was selected against the existing Scheduled Caste vacancy which we have held as having rightly gone to a Scheduled Castes candidate He, therefore, cannot have any vested right to be considered against future vacancy of the reserved category.
(109) We also learn that in the panel that was prepared by the High Court, Shri S. N. Aggarwal was placed senior to Mr. P. K. Bhasin. As a result of our findings, and in view of the seniority position in the selection panel, writ petition of Mr. S. N. Aggarwal, being Civil Writ No. 2590 of 1990 is allowed in the terms set out above, and that of Mr. P. K. Bhasin, being Civil Writ No. 613 of 1990 is dismissed.
(110) No order as to costs.