Central Administrative Tribunal - Hyderabad
Hyder Bin Akbar vs Dept Of Posts on 16 March, 2022
OA 21/258/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/021/00258/2021 & MA 559/2021
Date of CAV: 15.02.2022
Date of Pronouncement: 16.03.2022
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr.B.V.Sudhakar, Admn. Member
Between:
Hyder Bin Akbar, S/o. Akbar Bin Ahmed,
Aged 28 years, Occ: Driver,
R/o. H. No. 9-10-83/5/1,
Shajahaan Nagar, Banjari Darwaza,
Golconda, Hyderabad - 500 008 (TS).
...Applicant
(By Advocate: Mr. B. Gurudas)
And
1. Union of India,
Rep. by its Secretary,
MoC & IT,
Department of Post,
Dak Bhavan, Sansad Marg,
New Delhi - 110 001.
2. The Chief Post Master General,
Telangana Circle, Abids, Hyderabad - 500001.
3. The Chief Post Master General,
West Bengal Circle, Kolkata - 700 001.
4. The Post Master General,
Hyderabad Hqrs Region,
Hyderabad - 500 001, TS.
5. Manager Mail Motor Service,
Kothi, Hyderabad.
6. C.K. Balchander,
Mail Motor Service, Kolkata, West Bengal.
7. Irdvia Raj,
Mail Motor Service, Kolkata, West Bengal.
....Respondents
(By Advocate : Mrs. K. Rajitha, Sr. CGSC)
Page 1 of 67
OA 21/258/2021
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed in regard to the selection and appointment to the post of Staff Car Driver (Ordinary Grade), General Central Service, Group C, Non - Gazetted & Non Ministerial.
3. Brief facts of the case are that the applicant has been working in the respondents' organization as Driver since 2017 on outsourcing basis.
Respondents issued a notification dated 21.7.2020 to fill up 5 posts of Staff Car Driver (Ordinary Grade) with communal break up of 2 UR, 1 OBC and 2 EWS (Economically Weaker Sections). Applicant applied under EWS category and appeared in all the tests conducted against the notification cited. His claim is that he has qualified to be appointed as Staff Car Driver for having scored the highest marks in the EWS category. OC & OBC vacancies were filled up, but not those of EWS. Applicant, though meritorious in the EWS category, was not selected and hence, the OA.
4. The contentions of the applicant are that he was shown under UR category instead of EWS. Applicant secured 88.75% and having been the most meritorious candidate in the EWS category, was eligible to be appointed against the EWS vacancies. However, no candidate was selected for the 2 notified EWS vacancies, which is incorrect. Respondents are irregularly considering the transfer of R-6 & R-7 from West Bengal Circle under Rule 38 of Postal Manual, Vol. IV (for short Rule 38) against EWS vacancies. Before undertaking any recruitment, the procedure to be Page 2 of 67 OA 21/258/2021 followed is to process transfer requests and thereafter, issue the notification for the remaining vacancies.
5. Respondents filed a reply statement wherein they state that due to administrative reasons the vacancies notified for selection to the post of Staff Car Driver against notification dated 21.7.2020, had to be reduced from 5 vacancies with breakup of 2 UR, 1 OBC & 2 EWS to 3 vacancies with breakup of 2 UR & 1 OBC by invoking the clause in the notification available under 'Special Instructions to the Candidates', wherein it is provided for altering the vacancies without assigning any reasons. The applicant was considered against UR vacancies, though he applied under EWS category, since vacancies for EWS category have been subsequently reduced. Against the UR vacancies, the applicant was not meritorious and hence was not selected. Hall tickets were issued to all the UR and OBC categories and not to the EWS category. Applicant accepted his candidature under UR category and after appearing in the exam with unsuccessful outcome he cannot turnaround and challenge the selection. No EWS candidates were called for attending the tests. In the hall ticket, it was mentioned that candidates have to attend the tests under the particular category for which they were permitted though they belong to a different category.
When the matter came up for admission on 25.03.2021, this Tribunal directed that till the finalization of the OA, the post of Staff Car Driver shall not be filled up.
Respondents filed MA 559/2021 for vacation of stay orders passed on 25.3.2021, wherein they reaffirm the fact that hall tickets were issued to Page 3 of 67 OA 21/258/2021 UR & OBC and not for EWS category since there were no EWS vacancies. Before participating in the exam, applicant did not raise any objection for not considering him under EWS category.
6. Heard both the counsel and perused the pleadings on record. 7 Dispute - Appointment to the post of Staff Car Driver (Ordinary Grade) I. The issue relates to selection of the applicant as Staff Car Driver in the respondents organization against notification dated 21.7.2020. There were 5 vacancies with the breakup of 2 UR, 1 BC & 2 EWS. Applicant applied against EWS vacancies as a EWS candidate with requisite documents but was allowed to appear under UR category since the respondents decided not to fill up the 2 EWS vacancies after the notification was published. Consequently, 2 UR and 1 OBC vacancies were filled up and the applicant though qualified after clearing the exam held in 3 stages, with an aggregate of 88.75%, which is the highest scored in the EWS category, was not selected. Respondents claim that there were no EWS vacancies to consider the selection of the applicant and that he was not meritorious in the UR category. Non filling of EWS vacancies was in terms of the clause in the notification where in it was stated that the vacancies notified are subject to change without assigning any reasons. Applicant alleges that the intention to keep the EWS vacancies unfilled was to fill them up by granting Rule 38 transfers to private respondents, thereby eliminating his scope to get selected even though he was meritorious in the said category.
Page 4 of 67
OA 21/258/2021 Essential facts II. The factual matrix reveals that the notification appended as Annexure A-I does indicate the number of vacancies to be filled up as 5 with the breakup of 2 UR, 1 OBC and 2 EWS. The applicant has applied under the reserved category of EWS as evidenced from column 9 of the application form at page 19 of the OA (Annexure A-II) by submitting the EWS certificate. Respondents have reduced the total vacancies from 5 to 3 by taking cover of the clause provided in the 'special instructions to the candidates' at page 14 of the OA wherein it is adduced that the 'Vacancies notified are subject to change without assigning any reasons and Department reserves the right to cancel the recruitment if so warranted'. Consequently, respondents under this clause decided not to fill up the EWS vacancies. The question, therefore, that requires scrutiny is as to whether the respondents can reduce the reserved vacancies on their own without putting the candidates on notice and under what rules/policy/law. Infringement of Rule 38 norms and the interim order of the Tribunal III. The dispute undoubtedly revolves around filling up EWS vacancies as declared in the notification. Applicant sought interim relief to restrain the respondents from filling up the EWS vacancies under Rule 38 from West Bengal Circle till the disposal of the OA. Considering the facts and submissions of both the counsel, an interim order was passed on 25.3.2021 to not to fill up the post of Staff Car Driver till the OA is finalized. The order reads as under:
"Heard Mr. B. Gurudas, learned counsel for the applicant.
2. Mrs. K. Rajitha, learned Sr. Central Govt. Standing counsel takes notice for Respondents and prays for some time for filing reply statement. Time granted Page 5 of 67 OA 21/258/2021 as prayed for filing reply statement with an advance copy on the other side, who may file rejoinder, if any.
3. Till the finalization of the OA, the post of Staff Car Driver shall not be filled up. List the case on 03.06.2021 before Bench."
The interim order was clear that the post of staff driver was not to be filled up, implying that the selection to the very class of Staff Car Driver shall not be taken up. Ld. applicant counsel submits that the respondents violating the interim order, have advised W. Bengal postal Circle in June 2021 to relieve R-6 belonging to SC community under Rule 38 as per letter dated 23.3.2021, extracted here under, and he joined at Hyderabad in Aug-2021 on having been relieved from Kolkata. The respondents were answerless to this contention nor did they file any additional reply to disprove it. The letters referred to are extracted hereunder chronologically:
Letter No.MMS/MSE/Rule -38 Transfers/2020-21 dated 23.3.2021 "In pursuance of the orders contained in Chief Postmaster General, Telangana Circle Memo nos. ST/Rule-38/Trfs/2020/I dated 02.12.2020, the following officials are posted to the MMS Division, Hyderabad against the vacancy year 2020 consequent on Inter Circle transfer to Telangana Circle under Rule-38 of Postal Manual Volume-IV without TA/TP with immediate effect.
Sl. Name and Category/ Division in Division to which
No. Designation of the Selected which presently posted
official against working
community
1 Sri Ch. Kumar DR/SC Mail Motor Mail Motor
Balachander, Service, Service,
Driver Kolkata, West Hyderabad,
Bengal Circle Telangana Circle
2 Sri Irudia Raj, DR/OBC Mail Motor Mail Motor
Driver Service, Service,
Kolkata, West Hyderabad,
Bengal Circle Telangana Circle
Necessary charge reports may please be sent to all concerned.
Sd/xxxx Senior Manager Mail Motor Service, Hyderabad - 500 095."Page 6 of 67
OA 21/258/2021 "To The Chief Postmaster General, West Bengal Circle, Kolkata-700 001.
No.ST/OA No. 21/258/2021 dated at Hyderabad -1 the 22.06.2021 Sub: Request for relieving Sri Ch. Kumar Balachander, Driver, MMS, Kolkata to MMS, Hyderabad under Rule-38 transfer - regd.
Ref: This office letter No.ST/OS No.21/258/2021 dated 09.04.2021 The letter dated 09.04.2021 issued by this office referred to above may be treated as withdrawn and Sri Ch. Kumar Balachander, Driver, MMS, Kolkata may be relieved under Rule-38 transfer, (which is approved vide this office memo No.ST/Rule-38/Trfs/2020/I dated 02.12.2020), to MMS, Hyderabad.
This issues with the approval of the Competent Authority.
Sd/xxxx Assistant Director (Staff) O/o. CPMG, Telangana Circle, Hyderabad - 500001."
"Date:09.08.2021 To The Assistant Director-1, O/o. Postmaster General, Headquarters Region, Hyderabad - 500 001.
Sub: Request for relieving Sri Ch. Kumar Balachander, Driver, MMS, Kolkata to MMS, Hyderabad under Rule-38 transfer - regd.
Ref: 1) RO email dated 03.08.2021
2) CO letter No. ST/OA No.21/258/2021 dated 22.06.2021 It is to intimate that Sri Ch. Kumar Balachandar, Gr. III Driver, MMS, Kolkata, West Bengal Circle has joined in this office on the forenoon of 03.08.2021 consequent on approval of Inter-Circle Rule-38 transfer from West Bengal Circle to Telangana Circle by the competent authority under Rule-38 of Postal Manual Volume-IV vide CO Letter No. ST/OA No.21/258/2021 dated 22.06.2021 and RO email dated 03.08.2021. The date of joining of the above official was already communicated through email to the RO on 03.08.2021.
The necessary charge reports were already obtained from the official and kept on record.
Sd/xxxx Senior Manager Mail Motor Service Hyderabad - 500 095"
Page 7 of 67
OA 21/258/2021 As per clauses (viii) and (xiv) of Rule 38 transfer guidelines, extracted hereunder, vide Postal Directorate letter dated 17.1.2019, firstly transfer of an SC community employee under Rule 38 has to be granted against an SC vacancy and secondly before announcing vacancies for a particular recruitment year the Rule 38 transfer requests received have to be considered and thereafter the remaining vacancies are to be announced.
"(viii) Transfer under Rule 38 shall be permitted only against similar type/ categories vacancy i.e. Director Recruit shall be transferred against Direct Recruitment vacancy and promote against a promotion vacancy.
Further Unreserved (UR) candidate shall be transferred against UR vacancy, OBC candidate against OBC vacancy, SC candidate against SC vacancy and ST candidate against ST vacancy.
[Explanation: SC/ST/OBC candidate recruited against UR vacancy shall be considered as SC/ST/OBC for transfer under Rule 38.] Xxxx "(xiv) Before announcing vacancies for a particular recruitment year whether under Direct Recruitment, Departmental Examination or Promotion, requests received under Rule 38 shall be considered first. Only after considering all such requests vacancies shall be announced for different modes of recruitment."
Respondents even after there being an interim order to not to fill up the staff car driver post, have gone ahead with the Rule 38 transfer cited from Kolkata to Hyderabad to fill up the EWS vacancy infringing the rules on the subject and the Tribunal order.
Unequivocal responsibility of the statutory bodies to abide by statutory norms/law IV. It requires no reiteration that under law it is mandatory that the Rules and regulations have to be followed by statutory authorities. Rules do define the duties and responsibilities of the employees and give the employee a statutory status. Respondents enacting the role of statutory Page 8 of 67 OA 21/258/2021 authorities are obliged to act within the frame work of rules. The Tribunal would assume that the decisions of the respondents would be in conformity with the rules and if found not to be, a duty is cast upon the Tribunal to intervene and abrogate the arbitrary and unlawful decision to render justice. We are backed by the observations of the Hon'ble Apex Court in Sukhdev Singh v. Bhagat Ram [1975] 3 SCR 619 as under, in making the above remarks.
Regulations defining duties, conduct and conditions of its employees framed by statutory bodies have the force of law. The form and content of contract with a particular employee being prescriptive and statutory, the statutory bodies have no free hand in framing the terms and conditions of service to their employees, but are bound to apply them as laid down in the regulations. The regulations give the employees a statutory status and impose obligations on the statutory authorities, and that they cannot deviate from the conditions of service laid down therein. There is no personal element in public employment and service. Whenever employees rights are affected by a decision taken under statutory powers the court would presume the existence of a duty to observe the rules of natural justice and compliance by the statutory body with rules and regulations imposed by the statute.
In addition, Hon'ble Supreme Court has not taken to kindly in regard to rule violations by observing that any deviation from the rules has to be curbed and snubbed in a cornucopia of judgments as under:
The Hon‟ble Supreme Court observation in T.Kannan and ors vs S.K. Nayyar (1991) 1 SCC 544 held that "Action in respect of matters covered by rules should be regulated by rules". Again in Seighal‟s case (1992) (1) Supp 1 SCC 304, the Hon‟ble Supreme Court has stated that "Wanton or deliberate deviation in implementation of rules should be curbed and snubbed." In another judgment reported in (2007) 7 SCJ 353, the Hon‟ble Apex court held "The court cannot de hors rules."
Further, respondents have brazenly violated the interim order dated 25.3.2021 by filling up the EWS vacancy under Rule 38. Once a direction is given by the court, it has to be implemented without any second thought. Page 9 of 67
OA 21/258/2021 If not done, there will be an end to the rule of law. However, if the respondents were aggrieved by the interim order, the option open to them was to move the Hon'ble High Court for suitable relief of stay/suspension of the order. When there is no such order from the Hon'ble High Court respondents have committed contempt of Court under the provisions of the Contempt of Courts Act 1971 by disobeying the interim direction of this Tribunal. Any order of the Court, be it right or wrong, has to be implemented in the absence of any suspension/stay of the order by the superior judicial fora. We take support of the observations of the Hon'ble Supreme Court in the following judgments, while making the above remarks.
a. The Commissioner, Karnataka ... vs C. Muddaiah on 7 September, 2007 Appeal (civil) 4108 of 2007
31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
b. Director of Education v. Ved Prakash Joshi, (2005) 6 SCC 98 The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order..... Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt.
(Emphasis supplied) It is, therefore, evident that the respondents have desecrated their own rules in issuing the notification without finalizing the Rule 38 transfer but affecting them after the notification was issued and that too, in an irregular Page 10 of 67 OA 21/258/2021 manner against the 2 EWS vacancies notified in the notification. The intention, it appears, was to fill up the 2 EWS vacancies after the notification was issued, with the private respondents 6 & 7 in the OA. Accordingly, they went ahead to fill up one EWS vacancy with R-6. From the above, it is thus clear that the notification under reference was issued against the rules coupled with the unlawful action of filling up the EWS vacancies under dispute, hurting the legitimate interests of the applicant. Indeed, the course open to the respondents was to seek permission of the Tribunal to fill up the EWS vacancies under reference as per rules espousing expedient administrative grounds or seek clarification about the interim order if it was ambiguous by moving an appropriate application but not unilaterally take a decision defying the order of the Tribunal. No such action was taken by the respondents, which, we are of the view germinates the need to pull up the respondents for the contumacious conduct by suo motu taking up the breach of the interim order under the Contempt of the Courts Act. However, we desist to do so, by giving an opportunity to the respondents to mend themselves and do not come up for adverse notice once again. Nevertheless, while holding the view that the decision of the respondents to float a notification deviating from the rules/law and finalizing the selection as erroneous, we would like to examine this aspect in more depth from different angles of law as we proceed with the adjudication of the dispute.
Emergence of EWS reservations and its application V. As the entire dispute is about providing reservation to EWS category as a well thought out policy, it would be ideal to look at the Page 11 of 67 OA 21/258/2021 emergence of the same. On 7th January 2019, Union Council of Ministers approved 10% reservation in government jobs and educational institutions for the EWS in the General category. The cabinet decided that this would be over and above the existing 50% reservation for SC/ST/OBC categories. Consequently, on 8/9.1.2019, The Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019, was passed by both the houses of the Parliament with the Hon'ble President assenting the Bill on 12 January 2019, thereby making it into a law. It came into force on 12 January 2019 with the One Hundred and Third Amendment of the Constitution of India inserting clause (6) to Article 15 and also inserting clause (6) to Article 16 of the Constitution of India to permit 10% reservations to the EWS category. The EWS reservation policy when challenged before the Hon'ble Apex Court, on 25.01.2019 the Hon'ble Supreme Court refused to stay the 10% reservation given to GEN-EWS category in government jobs and educational institutions. Subsequently, vide order dt. 05.08.2020 WP (C) No.55/2019 & batch, the Hon'ble Supreme Court referred the matter to a Larger Bench of 5-Judges. Thereafter, in WP (C) No.961 of 2021 & batch, vide order dt. 20.01.2022, the Hon'ble Supreme Court allowed 10% EWS reservation in NEET UG & PG seats for 2021-2022 and posted the matter to third week of March 2022.
VI. Pursuant to passing of the EWS bill, the nodal ministry namely DOPT has issued elaborate instructions as to how to go about implementing the EWS reservation policy by issuing OM dated 31.1.2019. The relevant paras of the OM available on DOPT website, are extracted here under: Page 12 of 67
OA 21/258/2021
2. QUANTUM OF RESERVATION The persons belonging to EWSs who, are not covered under the scheme of reservation for SCs, STs and OBCs shall get 10% reservation in direct recruitment in civil posts and services in the Government of India. xxxx
6. EFFECTING RESERVATION - MAINTENANCE OF ROSTERS:
6.1 Department of Personnel and Training had circulated Office Memorandum No.36012/2/96-Estt (Res) dated July 2, 1997 regarding implementation of post based reservation roster. The general principles for making and operating post based reservation roster would be as per the principles laid down in the said Office Memorandum.
6.2 Every Government establishment shall now recast group-wise post-based reservation roster register for direct recruitment in accordance with format given in Annexure II, III, IV and V, as the case may be, for effecting 10% reservation for EWSs interpolating them with the SCs, STs and OBCs. While fixing roster point, if the EWS roster point coincides with the roster points of SCs/STs/OBCs the next available UR roster point has been allotted to the EWSs and also the principle of "squeezing" has been kept in view. While drawing up the rosters, the cadre controlling authorities may similarly "squeeze" the last points of the roster so as to meet prescribed 10% reservation. 6.3 Where in any recruitment year any vacancy earmarked for EWS cannot be filled up due to non- availability of a suitable candidate belonging to EWS, such vacancies for that particular recruitment year shall not be carried forward to the next recruitment year as backlog.
6.4 Persons belonging to EWS selected against the quota for persons with benchmark disabilities/ex-servicemen shall be placed against the roster points earmarked for EWS.
7. ADJUSTMENT AGAINST UNRESERVED VACANCIES:
A person belonging to EWS cannot be denied the right to compete for appointment against an unreserved vacancy. Persons belonging to EWS who are selected on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation.
8. FORTNIGHTLY/ANNUAL REPORTS REGARDING REPRESENTATION OF EWS:
The Ministries/Departments shall send single consolidated fortnightly report including their attached/subordinate offices beginning from 15.2.2019 as per format at Annexure-VL -.From 01.01.2020, the Ministries/Departments shall upload data on representation of EWSs in respect of posts/services under the Central Government on the URL i.e. www.rrcps.nic.inas on 1st January of every year. All Ministries/Departments have already been provided respective user code and password with guidelines for operating the URL.
9. MAINTENANCE OF REGISTER OF COMPLAINTS BY THE GOVERNMENT ESTABLISHMENT:
9.1 Every Government establishment shall appoint a senior officer of the Department as the Grievance Redressal Officer.
9.2 Any person aggrieved with any matter relating to discrimination in employment against any EWS may file a complaint with the Grievance Redressal Officer of the respective Government establishment. The name, designation and contact details of the Grievance Redressal Officer may be displayed prominently on the website and in the office of the concerned establishment.Page 13 of 67
OA 21/258/2021
10. LIAISON OFFICER:
Ministries/Departments/Attached and Subordinate Offices shall appoint Liaison Officer to monitor the implementation of reservation for EWSs.
11. The above scheme of reservation will be effective in respect of all direct recruitment vacancies to be notified on or after 01.02.2019. Further, Annexure III of the cited OM a model roster has been prescribed to fill up direct recruit vacancies when their number is up to 13. The importance of the EWS reservation is evident from the fact that there has to be a Liaison Officer and a Grievance Redressal Officer exclusively identified for the purpose of implementing the EWS policy. There is nothing said on this aspect in the reply statement. We are surprised that the respondents have cared not to touch upon the core issue of the dispute namely implementing EWS policy which is a Constitutional requirement. The EWS reservation applies to direct recruitment and is squarely applicable to the case on hand. The maintenance of post based register as spelt out in para 6 of the OM cited is a mandatory requirement under the Constitution. The Ld. Counsel for the applicant has submitted that there are 40 Driver posts at the Hyderabad Mail Motor Service unit of the respondents' organization and therefore as per EWS reservation policy 10% has to be reserved for EWS category, ie 4 posts are to be allocated for the EWS category and notified accordingly. The Ld. Applicant counsel asserted that the 4 vacancies have not been filled up since the EWS reservation policy came into vogue from 2019 onwards. There is no denial of the same from the respondents in any of the submissions made by them. Respondents, as per the notification have notified only 2 vacancies against the constitutional mandate of 4. The reasons for not notifying the EWS vacancies over the last few years in the Hyderabad MMS unit are not Page 14 of 67 OA 21/258/2021 forthcoming from the respondents. Therefore, their stoic silence in not explaining as to why only 2 vacancies were notified against 4, by way of an additional reply, raises a doubt as to whether the new concept of EWS reservation has sunk in the minds of the respondents. In fact, as per letter dated 07.02.2022, details of which are extracted hereunder, the number of Driver vacancies are as many as 57, which indicates that the EWS vacancies have further increased to around 6. Particularly, when there is no whisper in the reply statement as to whether they are maintaining the modified post based roster applying the squeezing principle for EWS wherever required.
"No.Estt./DTE/Staff Car Drivers/2019 dated at Hyderabad - 01 Sub:- Sanctioned strength of Drivers in r/o. DPC for drivers - Reg. Ref:- Your section email dated 27.01.2022 With reference to your email cited under reference the sanctioned particulars of staff car drivers in Telangana Circle are furnished below Region/unit wise for information.
Sl. Post HQR HR DA(P) EE Civil CO Total
No. Grade
1 Grade-I 15 04 0 00 0 49
2 Grade-II 12 02 0 00 0 14
3 Grade-III 12 03 0 00 0 15
4 Spl. Grade 03 00 0 00 0 03
5 Group "C" Drivers 03 02 0 01 0 01
6 Total 45 11 0 01 0 57
Sd/xxx Asst. Director (Estt.)
O/o. The Chief PMG,
Telangana Circle, Hyderabad-1."
Hence the notification itself lacks legal validity for disregarding the Govt.
policy and the instructions of DOPT on the subject as expounded above. To be precise, there were specific and clear instructions vide DOPT letter dated 31.1.2019 to ensure that the EWS reservation norms are followed at the time of publishing the notification in question to fill up the driver posts. It is a well laid down legal principle that the rules prevalent at the time of issue Page 15 of 67 OA 21/258/2021 of notification are to be followed. Any rules/ amendments or deviations subsequent to the notification cannot be applied to the recruitment after the notification was published. Hon'ble Apex Court has opined so in the case of Sonia v. Oriental Insurance Co. Ltd., (2007) 10 SCC 627 wherein it was held as under:-
10. In N.T. Devin Katti v. Karnataka Public Service Commission this Court has held that where selection process has been initiated by issuing an advertisement inviting applications, selection should normally be regulated by the rule or order then prevalent and also when advertisement expressly states that the appointment shall be made in accordance with the existing rule or order, subsequent amendment in the existing rule or order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated.
Having failed to follow the extant rules in DOPT memo dated 31.1.2019, the decision to not fill up the EWS vacancies after the publication of the notification, is incorrect as per the legal principle extracted above. Violation of Recruitment Rules of Drivers, 2015 VII. The allied aspect that covers the contours of the dispute are the Recruitment Rules (for short RR - 2015 of drivers wherein Rule 6 of the RR stipulates as under:
6. Saving .-- Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Ex-serviceman and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.
The Rule makes it explicit that the reservations provided by the Central Government from time to time to different categories are to be adhered to. Accordingly, respondents have to follow the instructions laid down in OM dated 31.1.2019 issued by DOPT in respect of EWS reservations. Thus, it is Page 16 of 67 OA 21/258/2021 clear that as per the Recruitment Rules, the respondents have to follow the reservation policy and therefore, they do not have the competency to not to fill up the notified vacancies of the EWS category nor do they have the right to fill up only a few as per their will and wish. The respondents have seriously defaulted on both counts by not filling up the notified 2 EWS vacancies and also for not being in a position to explain as to why they could not fill up 4 vacancies due to be filled after the EWS policy has come into existence. We are astonished as to why the respondents did not heed to the statutory provision laid down in the recruitment rules. It is also not placed on record by the respondents any statutory rule vesting them with the power to change the EWA vacancies as envisioned in the EWS policy after the vacancies were notified. We are, therefore, of the view that there appears to be lack of application of mind in conducting the selection process. Any decision taken without the application of mind is invalid as per settled principles of law. Hon'ble Supreme Court has held that any decision bereft of application of mind lacks validity in Civil Appeal No.4964 of 2010 arising out of SLP (Civil) No.27153 of 2008 East Coast Railway & Anr. vs. Mahadev Appa Rao & Ors. as under:
"20. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.."
In State of Uttar Pradesh vs. Ashok Kumar Nigam [(2013) 3 SCC 372], the Supreme Court observed in para 14 as under:
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OA 21/258/2021 Total non-application of mind and the order being supported by no reason whatsoever would render the order passed as „arbitrary‟.
Arbitrariness shall vitiate the administrative order..."
Legal prerequisite to uphold the rule of law VIII. Administration is the art of implementing the rules in order to achieve the objective for which they were framed. Therefore the statutory requirement as laid down in RR -2015 and DOPT memo cited, cannot be flouted. Statutory provisions are framed so that the rule of law is upheld and the result thereof can be no evil. Neither the respondents nor the Tribunal can transcend the statutory norms. Upholding the decision of the respondents is permitting the respondents to violate rules/law. In sum and substance, statutory rules cannot be scuttled as held by the Hon'ble Apex Court in Martin Burn Ltd vs The Corporation Of Calcutta on 19 August, 1965 Equivalent citations: 1966 AIR 529, 1966 SCR (1) 543 "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not."
The State Government is under obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules nor the Court can direct the Government to act contrary to rules. No Mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No court can issue Mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law A supplementing observation can also be seen in the observation of the Hon'ble Supreme Court of India in Commissioner of Municipal Administration & Anr vs M.C. Sheela Evanjalin on 22 August, 2019, civil appeal no. 6565 of 2019, (arising out of SLP (Civil) No.18330 of 2017), as under, emphasizing the need to adhere to the rules framed under Article 309 of the Constitution. The EWS Rules laid down in the DOPT Page 18 of 67 OA 21/258/2021 memo referred to, as well as those in RR-2015 have been framed under Article 309 and the actions of the respondents have to be in conformity with them. Unfortunately respondents have paid a deaf ear to this fundamental requirement and are therefore found to foul the legal principle referred to, by taking a decision to not to fill up the EWS vacancies.
Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India IX. Our experience in the Tribunal while dealing with the disputes related to the respondents are that they are mostly found wanting in acting by their own rules giving room for a flurry of litigation. The case on hand is one such classic example. In the context of recruitment/ appointments, Hon'ble Apex Court has extensively remarked in innumerous judgments the significance of adherence to the rules so that the outcome is fair and just. It has been unqualifiedly held that appointments made dehors the rules are illegal. Following the rule of equality in public employment is a basic feature of the constitution and in essence the core of the constitution. In the instant case the applicant's case was not considered as per the EWS reservation policy whereas others belonging to other categories were considered and thereby, the rule of equality has been belittled. The constitutional philosophy is to implement the principle of equality in its true sense in regard to public employment. The Tribunal has to make sure that appointments to public office are made as per the constitutional scheme of things envisaged for the EWS in terms of the constitutional amendments cited and in accordance with the procedure laid down under Articles 14, 16 Page 19 of 67 OA 21/258/2021 and 309 of the Constitution. We observe that the respondents have not lived up to this expectation in denying relief sought by the applicant. Article 16 provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The focus is to create a Constitutional right to equality of opportunity and employment in public offices. The equality of opportunity for employment was disfigured in the case of the applicant by selectively applying the norms of reservation to the OBC category but not to the EWS category though provided under the Constitution thereby violating the guarantee enshrined under Article 16. Besides, the precious period of early life of the applicant is being spent in the respondents' organization as an outsourced driver. The same would be wasted and he would be rendered 'age barred' for securing a job elsewhere, for the reason of illegality committed by the respondents in different spheres which have been covered and would be covering as we proceed with the resolution of the dispute. We are of the view that it is unfair to use him, generate hope/security in him, attune his family to live within his earnings and then suddenly find him ineligible when he has competed as per the constitutional scheme of things. More so when he was found to be eligible as per rules/law and such conduct would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. The respondents by taking a decision to not to fill up the EWS vacancies have done exactly what is not to be done by under the Constitution. While expressing the above we have copiously relied on the verdicts of the Hon'ble Apex court in the following cases.
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(i). R.S. Garg v. State of U.P.,(2006) 6 SCC 430 , An appointment dehors the Rules would render the same illegal and not irregular as has been held in Umadevi (2006) 4 SCC 1 in the following terms:
(SCC p. 36, para 43) 43 . Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.
When statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.
(ii) Accounts Officer (A&I), A.P. SRTC v. P. Chandra Sekhara Rao,(2006) 7 SCC 488 wherein it has been held:
7. The Constitution Bench in its judgment approved another Division Bench decision of this Court in A. Umarani v. Registrar, Coop. Societies (2004) 7 SCC 112 wherein this Court opined: (SCC p. 126, para 45) " 45 . No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
(iii) Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad,(2006) 7 SCC 684 wherein it has been held as under:-
37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.
38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment.
39. In view of clear enunciation of law laid down in the recent judgment of the Constitution Bench and other judgments, we do not find any infirmity in the impugned judgment of the High Court. The appeal being devoid of any merit is Page 21 of 67 OA 21/258/2021 accordingly dismissed. However, in the facts and circumstances of the case, we direct the parties to bear their own costs.
(iv) Union Public Service Commission v. Girish Jayanti Lal Vaghela,(2006) 2 SCC 482 wherein it has been held:
Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment or appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute (2983) 4 SCC 582)
(v) Jacob M. Puthuparambil and others vs Kerala Water Authority and others (1991) 1 SCC 28 , at page 46wherein the Apex Court has held as under:-
15 . xxx Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered „age barred‟ for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. (The above case had been distinguished in the case of 2009(3) SCC 179 - C Balachandran vs State of Kerala. Umadevi's case holds the fort as on date) Arbitrariness evident in changing the category of the applicant from UR to EWS X. The respondents harp on the aspect that the applicant was issued the hall ticket under UR category and after appearing in the exam under the said category he cannot turn back and claim to be considered as Page 22 of 67 OA 21/258/2021 EWS candidate. We have perused the hall ticket of the applicant and found the claim of the respondents that there was an instruction in the hall ticket that the candidates were informed to attend the tests under the particular category they were allowed even though they belong to different categories, such as UR,SC,ST, OBC and EWS, is not true.
Further, we need to observe that the respondents have admitted that the applicant has applied under EWS category as per the notification by enclosing the relevant documents and the same was processed accordingly. Ld. Applicant Counsel has submitted that there were only 2 candidates under the EWS category and was not denied by the respondents. The number being too small the respondents on having decided to change the category they need to have put the applicants on notice as required under the Principles of Natural Justice. Such an opportunity was not given to the applicant. Besides, in the DOPT memo dated 31.1.2019 cited, at clause 7 it is stated that the EWS candidates cannot be denied to compete against UR vacancies. Therefore, EWS candidates are eligible to compete both for UR and EWS vacancies and can be considered for both the categories. Consequently, the argument of the respondents that the applicant having appeared against UR vacancies he cannot turn back and make a plea for consideration under EWS vacancies; lacks rationality since appearing under one category does not exclude him from being considered for the other category. Importantly, the unresolved aspect that comes to the forefront is as to why the applicant was not given an opportunity to be heard before changing the category as per Principles of Natural Justice. The special instructions referred to in the notification and banked upon by the Page 23 of 67 OA 21/258/2021 respondents only speaks of changing the number of vacancies but does not permit the respondents to change the category of the potential candidates. A sensitive issue like recruitment cannot be done based on assumptions in an arbitrary manner. Further, the DOPT instruction about considering EWS candidates for both EWS & UR category has not been followed in letter and spirit. More over any interpretation of the respondents which denies a benefit to the applicant permitted under the rules would have to be undone to render justice by the Tribunal without causing any loss to others. In the present case, the EWS norms make the applicant eligible for the EWS vacancies declared and since he was the topper, he would have to be considered for appointment and such consideration does not harm the interests of any third party. Therefore the argument of the respondents that he was given a hall ticket with UR and therefore, cannot be considered for EWS vacancies does not have any legal substance in the light of the Hon'ble Apex Court judgment in Nirmala Chandra Bhattacharjee and Ors in U.O.I and Ors in JT 1991 (5) SC 35 delivered on 19.9.1990 as under:
No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other.
XI. Furthermore, respondents cannot change the category of the applicant on their own when they have not specified any such condition in the notification and for the reason that respondents have not come up with any rule authorizing them to do so. Strictly speaking, the options open for the respondents was put the applicant on notice for change of category or Page 24 of 67 OA 21/258/2021 cancel the notification and issue a fresh one. The rules to be followed in regard to EWS reservation are those in the DOPT memo date 31.1.2019 and not anything else as per the whims and fancies of the respondents. The rules were framed after the EWS reservation had got the parliamentary approval by DOPT under Article 309 of the Constitution. The rules are therefore bound to be followed without bringing in any extraneous legally non maintainable clauses like special instruction clause and considering the applicant as UR candidate without his assent, to reject the case of the applicant, as held by the Hon'ble Apex Court in Durgacharan Misra vs State Of Orissa & Ors on 27 August, 1987, 1987 AIR 2267, 1987 SCR (3)1097, while delivering a judgment in respect of recruitment as under:
2.1 The Orissa Judicial Service Rules, 1964 framed under the proviso to Article 309 read with Article 234 of the Constitution, have been made by the Governor of the State after consultation with the State Public Service Commission and the State High Court. The Commission, which has been constituted under the Rules must, therefore, faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability.
Deprecatory decision based on unapproved policy extinguishing the future of unemployed.
XII. A close reading of the developments in the case would make it evident that the respondents after issue of notification have suddenly brought in a new factor of doing away with 2 EWS vacancies which is against the Govt. policy of EWS reservations and the RR of 2015 for Drivers, as brought out in the preceding paras. It requires no detailed elaboration that the respondents are duty bound to follow the policy laid down. There is unequivocal admission by the respondents that due to Page 25 of 67 OA 21/258/2021 administrative reasons the EWS vacancies were not filled up. The reasoning is very general since it does not elaborate as to what were the compelling administrative grounds to keep the EWS vacancies vacant against the well laid down reservation policy. It is nowhere declared by the respondents as to why all of a sudden such a decision had to be taken against rules/policy. The reason given we find, is thus vague given the sensitivity/ importance of the issue and unambiguously smacks of colorable exercise of power. From the subsequent developments it is seen that one EWS vacancy was filled up by Rule 38 transfer of R-6, infringing the rules as referred to in the preceding paras. Thus under the garb of an administrative reason respondents have violated the relevant rules to accommodate an ineligible official in the EWS vacancy. The reply statement is devoid of any answer in regard to the illegality committed by respondents in accommodating one SC candidate against EWS vacancy under Rule 38 in total violation of the rules & law. Filling up the EWS vacancy with other categories would prejudice the cause of the EWS candidates since they are the ones who have a legally rightful claim over the same. The decision of the respondents was thus the outcome of an unapproved policy, which is not permitted under administrative law. The Ld. Applicant counsel has submitted that the respondents proposed to fill up the 2 EWS vacancies by Rule 38 transfers by throwing the rules to the wind, but for the timely intervention of the Tribunal through an interim order to keep the post of Driver vacant till the OA is disposed. At least one post has been kept vacant though both the vacancies were not to be filled up. Considering the facts so far elaborated, but for the irregular decision to not to fill up the EWS vacancies violating the policy and that too without notice, the applicant would have got selected Page 26 of 67 OA 21/258/2021 against the EWS vacancy being the most meritorious in the said category as claimed by him and not refuted by the respondents.
XIII. We need to remember that in our country whenever any posts are advertised to be filled up by the Govt., there would be many unemployed youth who would apply because of the job security Govt. positions offer. It requires lot of effort to prepare for the exam and travel to the exam centers as many times as is required. Besides, the burden of paying the fees with no income to the unemployed youth is a known reality. Those who are successful have a reasonable expectation that they will be considered for appointment. Albeit it is not a vested right, yet the respondents must give justifiable, non-arbitrary reason for not filling up the posts. Respondents, being a State under Article 12 of the Constitution, are bound to act according to Article 14 of the Constitution. They cannot arbitrarily decide not to fill up the posts and are obligated to give justification which invariably should not be capricious or a whimsical exercise of discretion vested in the State. In respect of the case under dispute no specific reason is forthcoming from the respondents on their own volition except to make a very general averment that it is for administrative reasons. The applicant alleges ill motive to fill them up with Rule 38 transfers and factually it is found to be true. This sort of approach of the respondents not coming up with a plausible non arbitrary reason is not to be encouraged in the legal domain and indeed would be looked down. The above remarks are backed by the opinion expressed by the Hon'ble Apex Court in Dinesh Kumar Kashyap vs South East Central Railway in Civil appeal no.11360¬11363 of 2018, as under:
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7. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination.
They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State.
XIV. The defense taken by the respondents that there is a clause that the respondents can change the vacancies would not stand to reason since there is no clause in the notification that the respondents have the right to change the category of the candidate without his knowledge after accepting and processing his application under EWS category. This is an additional norm, although irrelevant, brought into operation by the respondents without the support of any rule relevant to the aspect under dispute. Hence the decision to not to fill up the EWS vacancies is non-est in law. The essence of the above remarks is backed by the observations of the Hon'ble High Court of Sikkim, Gangtok (Civil Appellate Jurisdiction) in The Sikkim University, v Dr. Vaidyanahan Krishnta Ananth, in W.A. No. 02 of 2018 on 27.2.2020, as under:
36. It is virtually the admitted position that but for the additional criterion stated to have been laid down by the University, the writ petitioner had qualified in terms of the UGC regulations. Annexure-1 of the counter-affidavit of the respondents no. 1 and 2 is not dated. Given the importance of the issue, it is, to say the least, very surprising. Content of the same is very vague. It is not indicated when such an additional norm was "established‟ by the Vice Chancellor. All that is said is that the norm was "established‟ since 2015. That is the only document that was brought on record by the appellants relating to laying down of additional norm. There is an unequivocal admission in Annexures-A1 and A2 that the additional norm was not notified by the Page 28 of 67 OA 21/258/2021 University. It is also admitted therein that Executive Council approved the above policy only on 29.06.2018. In view of the above, this Court is of the unhesitant opinion that even if a policy laying down additional norm was formulated, without notifying the same and without due approval, it could not have been acted upon. It was in that context the learned Single Judge had noted that the same was non-est in law. The appellants have also failed to reconcile how Circular No.13/2017 dated 07.03.2017, wherein while inviting applications for promotion under CAS, additional criterion of experience of guiding research scholars to Ph.D. was not mentioned, and Annexure-1 of the counter-affidavit of the appellants can stand together.
Respondents decision found to be Malafide as well as malice in fact and law XV. Going further we have no hesitation to observe that the decision to not to fill up the EWS vacancies notified is malafide. The determination of a plea of mala fide is to be decided by reckoning as to whether there was personal bias/ oblique motive, and whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. It is incumbent on an administrative authority not to take a decision contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercise discretion to achieve some ulterior purpose. Malafide refers to a decision based on an ulterior purpose and lacks good faith. An administrative decision has to be taken in good faith for a bonafide purpose. In the instant case, though there is a constitutional provision for 10% reservation to EWS and a clear cut policy was evolved by DOPT by issuing OM dated 31.1.2019 to fill up EWS vacancies and the RR -2015 for Drivers does specify that reservations policy has to be followed, respondents flagrantly violated the policy/ rules to accommodate a candidate against the notified EWS vacancies under Rule 38. Interestingly, by overriding the Rule 38 yardsticks which ought to be followed, as stated in the paras supra. Page 29 of 67
OA 21/258/2021 Therefore, the decision to not to fill up the EWS vacancies was with an ulterior motive of adjusting an employee under rule 38 disrespecting the relevant rules/ reservation policy. The decision was obviously not bonafide since it was not taken with good faith and therefore has come under the cloud. Hence the decision is unquestionably established to be malafide for the reasons discussed supra. To reiterate mala fide exercise of power implies exercise of statutory power for 'purposes foreign to those for which it is in law intended'. It is a conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. A malafide decision therefore, cannot be allowed to stand.
A deeper analysis of the dispute would bring forth the fact that the decision to not to fill up the EWS vacancies is malice in fact and law. The legal meaning of 'malice' is 'ill will or spite towards a party and any indirect or improper motive in taking an action'. In the case on hand the decision to not to fill up the notified EWS vacancies with an improper motive to issue a Rule 38 transfer against rules/policy to ineligible employees is malice. The respondents were factually aware of the Rule 38 rules/EWS reservation policy and yet, they ventured to dishonour them causing grave injury to the cause of the applicant. Hence, it is Malice in fact. Any deliberate act in disregard of the rights of others is Malice in law. The law regarding EWS reservation is well known to the respondents by its publication in the official Gazette and through the cited DOPT memo dealing with EWS reservations. Being aware of the law in regard to EWS reservation and yet disregarding the right of the applicant to be considered Page 30 of 67 OA 21/258/2021 against the notified EWS vacancies, by taking a decision to not to fill them up, is malice in law. However, as the decision was taken on behalf of the State, we would not state that there was personal ill will on part of the State but we would definitely rate it as an act committed with an oblique motive of helping unentitled employees with rule 38 transfers. Such a decision does qualify to be categorized as pure malice in the legal sense. A decision which is credited to be malafide and has traits of Malice in law and fact has no legal sanctity whatsoever. Therefore, the decision to not to fill up the notified EWS vacancies by the respondents is forthrightly unlawful. Our above remarks only echo the observations of the Hon'ble Supreme Court of India in Ramjit Singh Kardam vs Sanjeev Kumar on 8 th April, 2020 in CIVIL Appeal no.2103 of 2020 (Arising out of SLP(C) No. 35373 of 2013) as under:
XXXXXXXXXXXXXXXX 26.1. In State of Bihar v. P.P. Sharma, 1992 Supp. (1) SCC 222, this Court summed up the law on the subject in the following words:
(SCC p. 260, paras 50-51) "50. „Mala fides‟ means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. XXX If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand." (emphasis supplied)xxx XXX
61. The present is not a case of malice in fact. The "malice in fact" and "malice in law" are two well- known concepts in law. In Ratnagiri Gas Page 31 of 67 OA 21/258/2021 and Power Private Limited (supra), this Court has dealt with both the concepts, i.e., "malice in fact" and "malice in law". Dealing with the conceptual difference between "malice in fact" and "malice in law", this Court laid down following in paragraphs 30, 31 and 32:-
"30. ............................The conceptual difference between the two has been succinctly stated in the following paragragh by Lord Haldane in Shearer v. Shields, 1914 AC 808 (HL) quoted with approval by this Court in ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521: (SCC p. 641, para 317) "317. ...
„Between "malice in fact" and "malice in law" there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of "malice in law", although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently.
"Malice in fact" is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.‟" (Shearer case, 1914 AC 808 HL, AC pp. 813-14) XXXX
31. Reference may also be made to the decision of this Court in State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739 where the difference between "malice in fact" and "malice in law" was summed up in the following words: (SCC p. 744, paras 12-13) "12. The legal meaning of „malice‟ is „ill will or spite towards a party and any indirect or improper motive in taking an action‟. This is sometimes described as „malice in fact‟. „Legal malice‟ or „malice in law‟ means „something done without lawful excuse‟. In other words, „it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others.‟ (See Words and Phrases Legally Defined, 3rd Edn., London, Butterworths, 1989.)
13. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object." (emphasis supplied)
32. To the same effect is the recent decision of this Court in Ravi Yashwant Bhoir v. Collector, (2012) 4 SCC 407 wherein this Court observed: (SCC p. 431, paras 47-48) "Malice in law
47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State.
„Legal malice‟ or „malice in law‟ means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an Page 32 of 67 OA 21/258/2021 act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for „purposes foreign to those for which it is in law intended‟. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts.
Passing an order for unauthorised purpose constitutes malice in law. (See ADM, Jabalpur v.Shivakant Shukla, (1976) 2 SCC 521, Union of India v. Ramakrishnan, (2005) 8 SCC 394 and Kalabharati Advertising v.Hemant Vimalnath Narichania, (2010) 9 SCC 437.)"
XVI. More importantly, it is to be noted that the reservation to the EWS category has been brought about by amending the Constitution. Therefore, DOPT has come out with a model roster to fill up the EWS vacancies. Hence, when certain number of Driver vacancies are advertised to be filled up, then 10% of the vacancies are to be apportioned to the EWS category. In the instant case, respondents were expected to declare 4 vacancies under EWS quota, but wrongfully they have shown as 2 and indicated the total number of vacancies to be filled up as 5 with breakup of 2 OC, 1 OBC and 2 EWS in the notification. The OBC and EWS vacancies have to be shown as per the relevant reservation acts. Respondents have a constitutional responsibility to achieve the objective of reservations for EWS. Respondents have no liberty under the EWS Act/policy/rules to nullify EWS vacancies that ought to be notified and filled up under the constitutional provisions. There could be some changes in the category wise allocation if there is some wrong calculation in providing reservations as per the relevant Acts. In the case on hand, the respondents have shown 2 instead of 4, which probably could have been corrected, if proper attention Page 33 of 67 OA 21/258/2021 was paid. The calculation involved would have enhanced the vacancies and not nullify them. The calculation gains significance particularly in the context of the proviso that EWS vacancies cannot be carried forward to the next year if kept unfilled in the relevant recruitment year unlike in the case of SC/ST/OBC vacancies.
Hence, all the more, care was necessitated to fill up the EWS vacancies so that they do not lapse. Such care was absent and on the contrary there was reduction of all the EWS vacancies making it zero for a questionable reason as discussed in the above paras. The change in the number of reserved vacancies for EWS has to be in tune with the EWS Act/Policy but surely not with the purpose to defeat the objective of the reservation policy and rules thereof. The respondents have changed the EWS vacancies to nil defeating the objective of the relevant reservation act. Be it as it may, there also cannot be a change in the total number of vacancies after the notification has been published. In the instant case the total number of vacancies has been reduced from 5 to 3 which is not permitted under law. It would indeed mean changing the rules of the game after the game has started and the same is impermissible as per settled principles of law. The RR-2015 for Drivers has a statutory clauses expounded as part of our observations, insisting on adherence with respect to reservations for different categories. Executive provision incorporated in the notice to change the total number of vacancies cannot supersede the statutory provisions contained in the relevant reservation acts/statutory rules. The decision to not to fill up the EWS vacancies has adversely impacted the genuine interest of the EWS candidates. The theme of our Page 34 of 67 OA 21/258/2021 above narration has support of the observation of the Hon'ble Apex Court in Anupal Singh. vs The State Of Uttar Pradesh Through ... on 30 September, 2019 in Civil Appeal No. 4815 OF 2019, as under:
32. Revising the number of vacancies in OBC category as 2030 does not violate the right of the General category candidates because the State Legislature has enacted the Reservation Act No.4 of 1994 providing for reservation, keeping in mind the parameters of Article 16(4) of the Constitution of India. By revising requisition, the State has endeavored to achieve the object of the reservation by working out the vacancy for selection of the posts in question without causing any prejudice to the General category candidates. The revised requisition so made was within the purview of the competency of the State in order to achieve the object of the UP Reservation Act, 1994. Moreover, as rightly contended by the appellants, the total number of vacancies have not been changed or modified.
Principles of Natural Justice given a go by XVII. The Ld Counsel for the respondents has argued that since the applicant having participated in the selection after having been granted with a hall ticket under UR category without any demur or protest, he is estopped from challenging the selection. True it is a well settled principle that after participating in the selection process one cannot turn around questioning the selection process for having not been selected. However, the application of the principle depends on the facts and circumstances of each case. In the case on hand there were 2 UR, 1 OBC and 2 EWS vacancies notified. After the notification was published and applications were received from the candidates under each category, respondents took a decision to not to fill up the 2 EWS vacancies without putting the EWS candidates on notice. The change of the category from UR to EWS would prejudice the cause of the applicant. Had any notice was given to the applicant about the change of category by following the Principles of Natural Justice, the respondents could have been made known Page 35 of 67 OA 21/258/2021 about the onerous responsibilities on their shoulders to implement the EWS act/policy/ rules. This would have enabled the respondents to review their decision and take corrective measures. Any decision taken without following the Principles of Natural justice becomes vitiated as observed in the Hon'ble Apex Court in Canara Bank v. Debasis Das,(2003) 4 SCC 557:
14. The expressions "natural justice" and "legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant‟s defence.
15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated.
We observe that the respondents have not given any notice to the applicant before changing his category from the applied one of EWS to UR, as per records on file. Therefore the stand of the respondents that since the applicant was not meritorious and hence was not selected under UR category would stand vitiated in terms of the aforesaid observation. Moreover principles of natural justice have now come to be recognized as being a part of the Constitutional guarantee contained in Article 14. Any violation of the Principles of Natural justice results in arbitrariness leading to discrimination and the latter is a direct affront to the cause of equality Page 36 of 67 OA 21/258/2021 guaranteed under Article 14. The natural corollary that flows from the said analysis is that the violation of the Principles of Natural Justice by a State action is equivalent to violation of Article 14 with a few exceptions based on the circumstances.
Besides, Article 39 aims at securing the right to adequate means of livelihood and Article 41 requires the State, to make provision for securing the right to work. An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the scope for achieving a reasonable standard of means of livelihood by lawfully competing in a selection process. The actions of the respondents in banking upon the special instructions cited in the notification and the change of the category without notice to disregard the claim of the applicant, are therefore not only violative of Principles of Natural justice/ Article 14 but would also be contrary to the Directive Principles of State Policy contained in Article 39 and Article 41 of the Constitution. Therefore, the decision of the respondents to not to fill up the EWC vacancies based on indefensible grounds discussed is unconstitutional. In stating the above, we rely on the observations of the Hon'ble Supreme Court in Central Inland Water ... vs Brojo Nath Ganguly & Anr on 6 April, 1986 in Equivalent citations:
1986 AIR 1571, 1986 SCR (2) 278 as under:
In Tulsiram Patel's Case this Court said (at page 476) :
"The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them Page 37 of 67 OA 21/258/2021 will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter."
Xxxx Article 39 provides that the State shall, in particular, direct its policy towards "securing that the citizens, men and women, equally have the right to adequate means of livelihood." Article 41 requires the State, within the limits of its economic capacity and development, to "make effective provision for securing the right to work". An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the means of livelihood. The mode of making "effective provision for securing the right to work" cannot be by giving employment to a person and then without any reason throwing him out of employment. The action of an instrumentality or agency of the State, if it frames a service rule such as clause (a) of Rule 9 or a rule analogous thereto would, therefore, not only be violative of Article 14 but would also be contrary to the Directive Principles of State Policy contained in clause (a) of Article 39 and in Article 41.
Rules of the game analyzed XVIII. At this juncture, we need to add that the legal principle relied upon by the Ld. Respondent Counsel has been distinguished by the Hon'ble Supreme Court of India in Dr. (Major) Meeta Sahai v State of Bihar & Ors in Civil Appellate Jurisdiction in Civil Appeal no. 9482 of 2019 [Arising out of Special Leave Petition (Civil) No. 12245 of 2017]
17. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar4, observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed Page 38 of 67 OA 21/258/2021 procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
By telescoping the above legal principle to the case on hand it is obviously evident that there was illegality committed by the respondents in not following the EWS law/Policy in conducting the selection process. Illegality cannot be allowed to be perpetuated merely on the ground that the applicant participated in the selection process and it has therefore to be necessarily assailed. In the instant case, we see procedural lapses and innumerous legal lacunae. When the applicant has applied under EWS category and it was processed so, as admitted by the respondents, it was for them to check the rules and issue the hall ticket under EWS category and in case they could not for any legally valid reason, if there was one and from the case history we find none, it was open to the respondents to cancel the notification and go for a fresh one. Besides, the EWS vacancy was filled up by granting Rule 38 transfer irregularly to R-6 in June 2021 in the guise of administrative grounds. Statutory rule in the RR-2015 was infringed. Ld. Applicant counsel pleaded that R-5 has brought to the notice of the competent authority that the Rule 38 transfer of an SC and an OBC candidate cannot be effected against EWS vacancy as per rules and yet R-2 took an irregular decision. However, the pleading is not backed by any document. Nevertheless, the fact remains that the Rule 38 transfer was arbitrarily and illegally granted at the back of the applicant. It is also abundantly clear that the applicant has been discriminated by applying the reservation norms to the OBC candidate but not when it came to his case, Page 39 of 67 OA 21/258/2021 though law/policy/ rules were in his favour. The EWS reservation is constitutionally sacrosanct and taking no notice of it is impermissible. Law expects fair play and reasonableness in decision making. Anything done without a rational reason is arbitrary, as seen in the instant case. Arbitrariness is anathema to Article 14 and hence has no place to survive under law. The applicant would not have any locus standi to challenge the illegal decision of the respondents to not to fill up the EWS vacancies since he would not have come to know of all the illegalities/ rule violations cited unless he participated. Therefore, the legal principle banked upon by the Ld. Counsel for the respondents would not be of any assistance to the respondents for reasons elaborated as at above.
XIX. A little more effort if made to analyze the dispute, would make it explicit that it is well settled that norms of selection cannot be altered after commencement of selection process. The norm was to select the applicant against the EWS category which has a special clause of 10% reservation. Under this category the applicant was meritorious which was not denied by the respondents. By changing the category of the applicant to UR from EWR arbitrarily and deciding not to fill up the EWS vacancies by the respondents after the notification, respondents have changed the rules of the game after the selection commenced. As pointed out, the respondents have not indicated any statutory rule under which they can do so. Therefore, the settled law has been violated as was duly voiced by the Ld. Counsel for the applicant. Furthermore, to reiterate the above views, we depend on the observations made by the Hon'ble Apex Court in the under mentioned verdict.
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OA 21/258/2021 In Secy. A.P. Public Service Commission v B. Swapna (2005) 4 SCC 154, at para 14, it was held by this Court that norms of selection cannot be altered after commencement of selection process and the rules regarding qualification for appointment, if amended, during continuation of the process of selection do not affect the same. Further at para 15 it was held that the power to relax the eligibility condition, if any, to the selection must be clearly spelt out and cannot be otherwise exercised. The said observations are extracted herein below:-
14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable.
Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka and Gopal Krushna Rath v. M.A.A. Baig XX. It is also well settled in law that if a candidate applies under a specific category, then he is not permitted to change his category during the selection or after the selection process is over. Specific reference is found in the observation to this effect by the Hon'ble Apex Court in Rajasthan High Court Jodhpur vs Neetu Harsh on 29 August, 2019, Civil appeal no. 6696 of 2019 (Arising out of SLP (Civil) No.18973 of 2017) wherein it was held that „The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim‟. Law is a double edged knife which works on both sides and therefore the same legal principles applies to the respondents too. The applicant did not seek change of category. It was the respondents who did without his consent. Applying the legal principle discussed, they cannot change the Page 41 of 67 OA 21/258/2021 category of the applicant from EWS to UR by colorable exercise of power on their own after the selection process commenced. If they wanted to, they could have, after hearing the applicant or cancel the notification lock stock and barrel and gone for a new one with appropriate vacancies being declared.
Unconscionable terms nailed in to reject relief XXI. Delving deeper into the controversy, we must mention that the ld. Respondents' Counsel repeatedly pleaded that the applicant has accepted the candidature as UR candidate without any protest. True he did because he has no real choice before him. If he had refused to accept the Hall ticket with UR category and protested to write the exam conditionally, respondents would have not allowed him to appear in the exam and that would have doomed his future. It was worth to be docile and meekly accept the dominance of the mighty respondents and see if lady luck were to smile on him in the UR category which, alas, was not to be. As per rule he can be considered for both UR & EWS. From facts, it is seen that the applicant is eligible to be considered for appointment under EWS quota being meritorious , but for the illegal decision of the respondents to not to fill up the EWS vacancies in contravention of the rules framed by DOPT in the cited memo and constitutional provisions in respect of EWS policy. The respondents cannot cling to the outmoded approach to defend their stand despite it being faulty rather than being fair to accept their folly and review the decision. It requires boldness and impeccable intellectual honesty to take such decisions. This is what modern administration demands. A recent Page 42 of 67 OA 21/258/2021 example is the GOI withdrawing gracefully the 3 farm laws in Dec 2021 relating to agriculture produce/ Minimum support price, in response to farmers protest. The respondents could have taken a similar stand by cancelling the notification in view of the infirmities in the selection process or could have reviewed their decision and decided to fill up the EWS posts as per prevailing rules/policy. Gone are the days of mediocre bureaucratic approach to stick to the decision even if it is wrong by inventing plausible reasons which cannot be substantiated. Ostensibly, on grounds to save the skin of those involved in processing the case. One another reason for doing so, from our point of view is that the respondents are stronger and the applicant who is a weak party is pushed to the wall by riding rough shod on his legitimate claim for being considered for selection. When such situations arise the Tribunal cannot supinely watch and allow the respondents who are immensely strong to trample under their feet the right of applicant who is weak and meek forced by circumstances in which he is placed. We, in the Tribunal, have to uphold the constitutional provisions guaranteed for the EWS category through the elaborate process of legislation involving considerable time. The reservation for EWS was legislated to bring about socio-economic justice. Article 14 guarantees equality before law and equal protection of the laws. In the case on hand, the respondents went ahead to follow the reservation policy in respect of the OBC candidate but when it came to the EWS candidates they developed amnesia to the constitutional mandate in regard to EWS reservations and the related policy/ rules. Hence it is pure discrimination by the respondents in selectively applying the prevalent laws to the OBC candidates but not to the EWC candidates. Nonetheless, respondents have gone ahead with their Page 43 of 67 OA 21/258/2021 irrational decision as they are the stronger of the two contending parties. When there is injury caused to Article 14 by an administrative decision the said decision has to be struck down for being unfair and unreasonable. Indeed, the applicant had no choice as observed earlier, or rather no meaningful choice, but to accept hall ticket under UR category though it was unfair, unreasonable and an unconscionable clause was thrusted on him by the respondents' with all the power they enjoy. It was livelihood to the applicant and for the respondents, it was just another routine decision without caring to look at the extant rules and law that are applicable to the case in question.
There is no doubt that the State is an abstract entity and it can, therefore, only act through its agencies or instrumentalities, whether such agency or instrumentality be human or juristic. Therefore, when the respondents are discharging their duties on behalf of the State they have all the more responsibility to abide by the rules and law to set an example as a model employer in dealing with matters of public employment. Woefully we found them to be lacking in the instant case.
Moreover, the law of EWS reservations was enacted to be in wavelength with the heartbeats of the society and in tune with the needs and aspirations of the people. With the social changes, the law cannot remain immutable and therefore, keeping in view the large scale unemployment in the country, the Govt. in its best wisdom had thought of providing livelihood to the poor from those not belonging to SC/ST/OBC category for whom reservations in recruitment for govt. jobs has been decided with a certain percentage. Consequently, the law on EWS reservations has emerged by amending the Page 44 of 67 OA 21/258/2021 Constitution. It was, therefore, the intrinsic responsibility of the respondents to abide by the law brought about in regard to 10% reservation for the EWS class. However, we are disturbed to note that the respondents have been oblivious to the historically significant social legislation and have taken a decision, which is not in congruence with the law passed reflecting the changing social dynamics in the society. Therefore, it is for the Tribunal to put the respondents on the right track to cause recruitment as per the EWS legislation and be in tandem with the thinking/ policy of the Govt. by directing them appropriately.
Also we have to hold that the incorporation of the special instruction clause of changing the vacancies without assigning reasons as an unconscionable one. It shows no regard to what is right and reasonable as discussed in different parts of the operative portions of the judgment. In fact the clause speaks of changing the vacancies but not the category from UR to EWS. Changing the category of the applicant from EWS to UR without his knowledge and forcing it on him since he is devoid of any bargaining power being a weak party in the dispute, as well as incorrectly applying the special instruction clause are indeed unconscionable and hence the decision based on such unconscionable terms has to be jettisoned. Being on the subject, we are reminded of the most popular saying of Lord Acton in the Appendix to his "Historical Essays and Studies", that "Power tends to corrupt, and absolute power corrupts absolutely." We have no hesitation to hold that the saying applies to the case on hand in all its hues, given the approach espoused by the respondents in handling the entire episode.
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OA 21/258/2021 We spoke our mind on the dispute in the above paragraphs in consonance with the extensive observations of the Hon'ble Supreme Court of India in Central Inland Water ... vs Brojo Nath Ganguly & Anr on 6 April, 1986 in Equivalent citations: 1986 AIR 1571, 1986 SCR (2) 278 as under:
Xxxx 2.1 The word "unconscionable" is defined when used with reference to actions as "showing no regard for conscience; irreconcilable with what is right or reasonable". An unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable. If a contract or term thereof is unconscionable at the time the contract is made, the Court may refuse to enforce the contract. An unconscionable bargain could be brought about by economic duress even between parties who may not in economic terms be situate differently. [355 A; 360 A-B] 288 Pickering v. IIfracombe, [1868] L.R. 3 C.P. 235; Occidental Worldwide Investment Corpn. v. Skibs A/S Avanti, [1976] 1 Llyod's Rep. 293; North Ocean Shipping Co. Ltd. v. Hynddai Construction Co. Ltd., [1979]Q.B. 705; Pao On v. Lau Yin Long, [1980] A.C. 614; and Universe Tankships of Manrovia v. International Transport workers Federation, [1981] 1 C.R. 129 reversed in [1981] 2 W.L.R. 803 referred to.
Xxxxx The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations Of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, 'Then I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time-consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society.
Xxxx The State is an abstract entity and it can, therefore, only act through its agencies or instrumentalities, whether such agency or instrumentality be human or juristic.
Xxxx Should then our courts not advance with the times?
Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering Page 46 of 67 OA 21/258/2021 in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.
Xxx The said Rules as also the earlier rules of 1970 were accepted by the contesting Respondents without demur. Here again they had no real choice before them. They had risen higher in the hierarchy of the Corporation. If they had refused to accept the said Rules, it would have resulted in termination of their service and the consequent anxiety, harassment and uncertainty of finding alternative employment.
Xxxx It also overlooks the well-known saying of Lord Acton, which has now almost become a maxim, in the Appendix to his "Historical Essays and Studies", that "Power tends to corrupt, and absolute power corrupts absolutely." Page 47 of 67
OA 21/258/2021 Constitutional responsibility has to be carried out XXII. Behind the back of the applicant respondents went ahead to fill up the EWS vacancies by granting Rule 38 transfers from Kolkata to Hyderabad to an ineligible employee violating the rules which has been cited in previous paras, but repeated for the sake of justice. There are two distinct rules of Rule 38 which have been infringed by the respondents namely vacancies are to be notified only after the Rule 38 transfers are granted and that Rule 38 transfer has to be granted to the appropriate SC/ST/OBC/OC category to which the employee belongs to. In case of R-6, to whom the rule 38 transfer was granted and implemented he belonged to SC category but he was adjusted against the EWS vacancies notified in notification dated 21.7.2020. This is grossly irregular and illegal since the rules have been dishonored and the law in regard to adhering to the rules as laid down by Hon'ble Supreme Court cited supra, has been desecrated. In addition respondents have glossed over their inexorable responsibility to implement the objective of providing reservations to the EWS as per constitutional provisions and the EWS act/policy/ rules that flowed thereon. Providing reservations to EWS is a policy that evolved by amending the constitution and therefore the respondents cannot tinker with it by deciding to not to fill up the EWS vacancies. For that matter, even the courts cannot interfere in policy matters as observed by the Hon'ble Apex Court in BSNL v. Mishri Lal, (2011) 14 SCC 739 : (2014) 1 SCC (L&S) 387 at page 743, as under:
14. In the present case, a conscious decision was taken in 2005 providing that all the posts in question should be filled up by limited internal competitive examination. This was a policy decision and we cannot see how the High Court could have found fault with it. It is well settled that the Court cannot ordinarily interfere with policy decisions.Page 48 of 67
OA 21/258/2021 We are surprised that the respondents have failed to implement the policy laid down and defacto trespassed it by committing an irregular act of granting Rule 38 transfer cited. Respondents' frequent defense is that they have changed the vacancies invoking the clause of special instructions to the candidates wherein it was mentioned that the vacancies are subject to change without assigning reasons. Any executive instruction in the notification not in consonance with the RR-2015 and not in accordance with the relevant acts is not maintainable. The RR-2015 makes it abundantly clear that the reservations are to be provided as per the Central Govt. orders received from time to time. The DOPT memo dated 31.1.2019 has a direction to implement the reservation for EWS up to the extent of 10% as provided for by amending the Constitution. Hence, any clause inserted in the notification which is in defiance of the statutory provisions and the relevant Act is void in law. The reservation for the EWS was a considered decision of the GOI. The Cabinet approved it and President gave accent to the Bill after both the Houses passed it. The objective was to have proper representations of the needy sections of the society in Govt. jobs. DOPT in turn issued instructions to implement the reservations by prescribing 10% quota to EWS and the model roster defining the methodology. Once the quota is fixed, it cannot be changed by the respondents as observed by the Hon'ble Supreme Court in a catena of judgments. One such judgment is cited here under to support our point of view.
Nageshwar Prasad v. Union of India, 1995 Supp (4) SCC 718
2. The learned counsel for the appellants contended before us that the question is squarely covered by three decisions of this Court reported in (1) Roop Chand Page 49 of 67 OA 21/258/2021 Adlakha v. DDA, (2) Govt. of A.P. v. P. Dilip Kumar and (3) P. Murugesan v. State of T.N.. However, the learned counsel for the diploma-holders placed reliance on the decision of this Court in Mohd. Shujat Ali v. Union of India. He particularly relied on the observations made in that case We have examined these decisions and we may also state that the decision in Shujat Ali case was considered in all the three cases with particular reference to the observations on which the learned counsel for the appellants has placed reliance in the first and the last cases. We are, therefore, of the opinion that the decisions on which the learned counsel for the appellants placed reliance cannot be distinguished on the observations made in Shujat Ali case to which our attention was drawn by the learned counsel for the diploma-holders as those very observations were explained in para 24 of Roop Chand case and para 16 of Murugesan case. We are also not impressed by the submission that 50 per cent quota rule is violative of Articles 14/16 of the Constitution. The prescription of the quota rule is obviously to ensure that in the immediate promotion cadre there is a fair mix of both degree-holders and diploma-holders because the vertical movement from that stage and upwards in the hierarchy is restricted to degree-holders and if they are not available in sufficient number in the feeding channel the said channel would be virtually dry and sufficient number of degree-holders would not be available for promotion to the next higher cadre. The efficacy of diploma- holders has been recognised up to a particular stage in the hierarchy and thereafter it is realised that for manning higher posts a degree in Engineering is a must. We, therefore, do not see how prescription of the 50 per cent quota is in any manner arbitrary.
3. We, therefore, agree with the submission of the learned counsel for the appellants that the impugned decision of the Tribunal striking down the 50 per cent quota rule is clearly inconsistent with the ratio of the three decisions of this Court on which counsel for the appellants placed reliance. We, therefore, allow these appeals and set aside the order of the Tribunal striking down the quota rule. We may also state that at the time of admission of these appeals we had indicated that pending disposal there will be stay of reversion and all promotions will abide by the result of these appeals. It would be for the authorities to give effect to the said interim order of this Court consistent with this decision.
XXIII. To summarize, the applicant has no knowledge that the respondents would grant the Rule 38 transfer against an EWS vacancy irregularly and illegally to challenge the notification. Just because they have implanted a clause in the notification about change of vacancies assigning no reasons, it does not mean they have a free run to do what they want without following the relevant provisions of law/ policy and rules. Law applies equally to the respondents and to the applicant as opined by the Hon'ble Punjab and Haryana High Court in Post Graduate Institute of Page 50 of 67 OA 21/258/2021 Medical Education and Research, Chandigarh in CWP No. 8910 of 2015, decided on May 7, 2015 as under:
20. The audit has deliberately or otherwise overlooked the fact that the employees were asked to exercise option to adopt the Punjab pay pattern or AIIMS pattern. They had opted for the Punjab pattern. Not only this, when the Institute at a later stage on their retirement wanted the employees to switch over the Central Government pattern for better retiral benefits, it was the Central Government who objected to it on the ground that once an option was exercised, it could not be reviewed or revoked. The same principal which the authorities applied against the employees, is enforceable against the authorities too.
The illegal criteria adopted by the respondents to not to fill up EWS vacancies was not known to the applicant to challenge the selection until the Rule 38 transfer order from Kolkata to Hyderabad was issued. Therefore, when the applicant is not aware of the illegal changed criteria adopted he cannot be shut from challenging the notification. Indeed applicant approached the Tribunal to forestall rule 38 transfers from W. Bengal and on hearing both sides, this Tribunal has directed the respondents vide interim order referred to not to fill up the post of Staff car driver. Disrespecting the interim order respondents, as expounded in the preceding paras, have irregularly granted the Rule 38 transfer, thus committing a patent illegality. Therefore, there was no fairness and reasonableness in the selection process embraced by the respondents. True to speak, respondents action being illegal with malice in fact and law enwombed in their decision to not to fill up the EWS vacancies, to the extent described above and in paras supra, the legal principle cited by the Ld. Counsel for the respondents referred to above, would be of no assistance to further the cause of the respondents. When glaring illegalities have been committed in the procedure for selection by the respondents by overstepping the EWS Act and the associated reservation policy as well as Page 51 of 67 OA 21/258/2021 the rules of EWS reservation coupled with turning a blind eye to the rules of Rule 38 transfers, the principle of estoppel by conduct or acquiescence of the clauses of the notification, has no application to the facts of the present case. While making the above remarks, we take support of the Hon'ble Apex Court observations in Ramjit Singh Kardam vs Sanjeev Kumar on 8 April, 2020 in CIVIL APPEAL NO.2103 OF 2020 (Arising out of SLP(C) No. 35373 of 2013), as under:
39. XXX When Commission had not published any criteria on the basis of which candidates were going to be subjected for selection process and the candidates participated in the selection without knowing the criteria of selection, they cannot be shut out from challenging the process of selection when ultimately they came to know that Commission step by step has diluted the merit in selection. When candidate is not aware of the criteria of selection under which he was subjected in the process and the said criteria for the first time is published along with final result dated 10.04.2010, he cannot be estopped from challenging the criteria of selection and the entire process of selection. Further when the written examination as notified earlier was scrapped and every eligible candidate was called for interview giving a go bye to a fair and reasonable process for shortlisting the candidates for interview, that too only by Chairman of the Commission whereas decision regarding criteria of selection has to be taken by Commission, the candidates have every right to challenge the entire selection process so conducted. This Court in Raj Kumar and Others Vs. Shakti Raj and Others, (1997) 9 SCC 527 held that when glaring illegalities have been committed in the procedure to get the candidates for examination, the principle of estoppel by conduct or acquiescence has no application. Referring to judgment of this Court‟s judgment in Madan Lal (supra), this Court laid down following in paragraph 16:-
"16. ................................................The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K, (1995) 3 SCC 486 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."Page 52 of 67
OA 21/258/2021 XXIV. Going further, we need to address the oft repeated objection of the Ld. Counsel of the respondents that once a provision is there in the notification that the respondents can alter the vacancies without assigning reasons, the decision of the respondents to nullify the EWS vacancies and to not to fill them up, cannot be questioned. The clause referred to by the Ld. Respondents Counsel is a general provision, usually found in most of the notifications. However, when the said general provision is in conflict with the special provisions found in the relevant Act, Policy & statutory rules, then as per law, it is the special provisions which prevail over the general provision. In the instant case the special provisions under the EWS act, policy & rules as well as those contained in the RR- 2015 of Drivers, touched upon in paras supra, stipulating implementation of EWS reservations in direct recruitment selections would prevail over the general provision cited by the Ld. Counsel for the respondents. We are backed by the Hon'ble Supreme Court Judgment in Managing Director, Chhattisgarh State Cooperative Bank, Maryadit vs. Zila Sahakari Kendriya Bank, Maraydit Citation : 2020 Latest Caselaw 239 SC Judgment Date : 04 Mar 2020, as under, in stating the above.
31 xxx Where two provisions conflict, courts may enquire which of the two provisions is specific in nature and whether it was intended that the specific provision is carved out from the application of the general provision. The general provision operates, save and except in situations covered by the specific provision. The rationale behind this principle of statutory construction is that were there appears a conflict between two provisions, it must be presumed that the legislature did not intend a conflict and a subject-specific provision governs those situations in exclusion to the operation of the general provision. 32 xxx Consequently, where an enquiry was pending under Clause 23, an application under Clause 5(a) was barred. The Court held:
"9...We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule Page 53 of 67 OA 21/258/2021 cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.
10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that clause 5(a) has no application in a case where the special provisions of clause 23 are applicable."
33. XXX
29...It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant..." Xxx The principle that the general provision excludes the more specific has been consistently applied by this Court in South Indian Corporation (P) Ltd. v. Secretary, Board of Revenue, AIR 1964 SC 207, Paradip Port Trust v. Their Workmen, AIR 1977 SC 36, Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupesh Kumar Sheth, (1984) 4 SCC 27, CCE v. Jayant Oil Mills, (1989) 3 SCC 343 P S Sathappan v. Andhra Bank Ltd, (2004) 11 SCC 672, Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417 and Pankajakshi v. Chandrika, (2016)6 SCC 157.
XXV. Further, the Tribunal has to articulate and accept an interpretation which would be in favour of constitutionality, rather than an approach which would render the law unconstitutional. The EWS reservation brought about by constitutional amendments cited supra is to be upheld and not make it invalid by agreeing to the provision of special instructions referred to by the respondents authorizing them to change the vacancies without assigning reasons. We have to read down the special instruction referred to, in order to safeguard the interest of the EWS Page 54 of 67 OA 21/258/2021 candidates as mandated under the constitution. Besides, we have to bridge the gap between the elements of the policy of EWS and its implementation by reading down unnecessary irritants lacking legal force like the special instructions clause banked upon by the respondents. Otherwise we would not be tilting towards a proper interpretation of the EWS policy having constitutional patronage. We have stated what we did above, by relying on the observations of the Hon'ble Supreme Court of India in Namit Sharma vs. Union Of India on 13 September, 2012, WRIT PETITION (CIVIL) NO. 210 of 2012
58. It is a settled principle of law, as stated earlier, that courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like „reading into‟ and/or „reading down‟ the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective.
XXVI. We are aware that the it is always open to the respondents to not to fill up all the vacancies for a valid reason, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. The vacancies were 5 and the respondents selected only 3. In the instant case the reason given is a general one of administrative grounds to not to fill up the 2 EWS vacancies, without revealing as to what exactly were the reasons. Capitalizing on the general reason given respondents committed a serious irregularity of filling up the EWS vacancies by Rule 38 transfer violating the policy, rules related and the interim order of the Tribunal as discussed supra. There were 2 EWS vacancies which ought to Page 55 of 67 OA 21/258/2021 be filled up as per the EWS reservation policy and the applicant was meritorious in the EWS category to be considered for appointment as Driver in the said category. Thus, by stating an invalid and vague word of 'administrative reason' respondents have denied the appointment to the applicant though there were EWS vacancies and the applicant was qualified. The respondents do not have a license to act in an arbitrary manner and the decision not to fill up the vacancies was not taken for bona fide and appropriate reasons. The respondents were selective in applying the relevant reservation policy as brought out in the previous paras, ushering in the aspect of discrimination. Any decision taken which is discriminative is injurious to Article 14 of the Constitution and is void in the eyes of law. There is a definite obligation on part of the respondents to act fairly and they cannot reduce the exercise of selection to a mere farce by ignoring the law/rules. We have made the above remarks by taking support of the observations of the Hon'ble High Court of H.P in Robin Singh v. State of Himachal Pradesh, 2020 SCC OnLine HP 2998, decided on 12- 11-2020, as under, where in judgments of the Hon'ble Apex Court were cited.
Observation:
With respect to claims regarding seniority the Court referred the case of, C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, and said, "It is more than settled that if a candidate has been wrongly excluded from the process of appointment on account of illegal and arbitrary action on behalf of the State, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed. Accordingly, the claims of the petitioners in first category are allowed and these petitioners are held entitled for grant of seniority from the date when respondents No. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e. 15-12-2018."
Allowing the second category of claims as well, Court considered the case of Neelima Shangla v. State of Haryana, (1986) 4 SCC 268, wherein the Supreme Court observed that it is always open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability Page 56 of 67 OA 21/258/2021 of qualified candidates. The ratio laid down in the said judgment was further substantiated as well as elaborated by Shankarsan Dash v. Union of India, (1991) 3 SCC 47, wherein it was held that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, still the successful candidates acquire an indefeasible right to be appointed. According to the Supreme Court, notification merely amounts to an invitation to qualified candidates to apply or recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, the Court also stated that it does not mean that the State has the license of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. It was declared that if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. Reliance was also placed on Asha Kaul v. State of Jammu and Kashmir, (1993) SCC 2 573, where the Supreme Court again said that "mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment. It was further stated, that there is obligation of the Government to act fairly and the whole exercise cannot be reduced to a mere farce".
XXVII. We must add that Administrative power is subject to fairness, reasonableness and justness as pointed out by the Hon'ble Supreme Court of India in Anoop Kumar vs. State Of Haryana on 15 January, 2020 in Civil Appeal no.315 OF 2020 (Arising out of SLP(C) no.18321 of 2011 as under:
It cannot be disputed that the administrative power exercised by the DGP is subject to the requirement of fairness, reasonableness and justness.
We found none of the 3 aspects in the decision of the respondents to not to fill up the EWS vacancies after they were notified for the reasons discussed at length in paras supra. Indeed good administration and an honest or bona fide decision requires not merely impartiality or merely bringing one's mind to bear on the problem, but act fairly as well. The fundamental principles of substantive justice in democracy is that the statutory functions are to be discharged in a fair and just manner. Necessity to take a fair decision is incumbent in service law. Our views are supported by the observations Page 57 of 67 OA 21/258/2021 made by the Hon'ble Apex Court in Swadeshi Cotton Mills vs Union Of India on 13 January, 1981 in Equivalent citations: 1981 AIR 818, 1981 SCR (2) 533, as under:
In A. K. Kraipak's case, the Court also quoted with approval the observations of Lord Parker from the Queens Bench decision in In re H. K. (An Infant) (ibid), which were to the effect, that good administration and an honest or bona fide decision require not merely impartiality or merely bringing one's mind to bear on the problem, but acting fairly. Thus irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi- judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied, because the presumption is that in a democratic polity wedded to the rule of law, the state or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly.
The constitutional mandate as reflected in the EWS policy circulated by DOPT vide memo dated 31.1.2019 intended that the EWS reservation has to be effected to the extent of 10% of the vacancies. DOPT has taken pains to bring out the model roster register ushering in the principle of squeezing in, where ever required. The directions of the DOPT memo cited was that the EWS reservations are to be implemented whenever recruitment is taken up. Without appreciating the objective contained in the OM referred to, respondents are referring to a legally invalid clause in the notification referred to above, for claiming that their action was correct. The Tribunal therefore has to step in to articulate that the powers assigned to the respondents under EWS provisions are to be exercised in a manner that are legal and not in a manner to violate the right of the applicant to be considered for appointment as per law/rules. Respondents' approach is thus against the spirit of the observations of the Hon'ble Supreme Court of India, in Delhi Transport Corporation vs D.T.C. Mazdoor Congress Page 58 of 67 OA 21/258/2021 on 4 September, 1990,Equivalent citations: 1991 AIR 101, 1990 SCR Supl. (1) 142 as extracted hereunder:
We have been tempted to read down in the path of judicial law making on the plea that legislature could not have intended to give powers to the authorities or employers which would be violative of fundamental rights of the persons involved in the exercise of those powers and, therefore, should be attributed those powers on conditions which will only make these legal or valid.
We have been reminded that judges should not make laws. But the question is--can the judges articulate what is inarticulate and what can be reasonably and plainly found to be inherent on the presumption that a legislature or a law making body with the limited authority would act only within limitations so as to make the legislation or law valid and the legislature must be presumed to act with certain amount of knowledge and fairness protecting the rights of people concerned and aiming at fairness in action.
XXVIII. After traversing the length and breadth of the dispute we gain an impression that the respondents were inclined to grant Rule 38 transfers rather than follow the rules and law in implementing the EWS reservations after the notification was issued. However, they could not do so directly by being transparent but instead used the all-encompassing word of 'administrative' reason without revealing what the compelling underlying reasons were, to justify their irregular action. They achieved what they could not directly but by an indirect manner using the general word referred to. This is impermissible and that too when law/rules were given a go-by, as opined by the Hon'ble Apex in a series of judgments as under:
State of Haryana v. M.P. Mohla,(2007) 1 SCC 457 , 'What cannot be done directly, cannot be done indirectly. { Also see Subhash Chandra v. Delhi Subordinate Services Selection Board,(2009) 15 SCC 458, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas,(2008) 11 SCC 753 Babulal Badriprasad Varma v. Surat Municipal Corpn.,(2008) 12 SCC 401, Shiv Kumar Sharma v. Santosh Kumari,(2007) 8 SCC 600 Ram Preeti Yadav v. Mahendra Pratap Yadav,(2007) 12 SCC 385 State of Haryana v. M.P. Mohla,(2007) 1 SCC 457, BSNL v. Subash Chandra Page 59 of 67 OA 21/258/2021 Kanchan,(2006) 8 SCC 279 Ram Chandra Singh v. Savitri Devi (2004) 12 SCC 713 }' XXIX. Respondents have appointed 3 candidates against UR/OBC category vide notification dated 22.7.2020 as admitted by the respondents. Ld. Applicant counsel stated that they have joined service.
Hence even though we are of the view that the notification legally lacks credibility and requires to be cancelled, we would not venture to do so, since the applicant has not arrayed the selected candidates as necessary parties. Without hearing them any decision taken to cancel the notification would affect their interests adversely. Therefore, we desist, in compliance with the observation of the Hon'ble Apex Court in Anupal Singh. vs The State Of Uttar Pradesh Through ... on 30 September, 2019 in Civil Appeal No. 4815 OF 2019 , as under:
65. When the selection of successful candidates is challenged, depending upon the facts and circumstances of the case, the successful candidates ought to be put on notice about the filing of writ petition by impleading them by issuance of notice in accordance with law vide Poonam v. State of Uttar Pradesh and others (2016) 2 SCC 779.
Direct relief when injustice is writ large by committing wrong and public interest is compromised, with mistakes galore on part of the respondents.
XXX. All said and done there is no iota of doubt in our mind that the respondents have taken a wrong decision to not to fill up the EWS vacancies by infringing rules and law on the subject, thereby rendering injustice to the applicant. The applicant as per rules and law is eligible for all the benefits that would be due to him from the date he was due to be selected. Allowing the respondents to take advantage of their wrong and inflict injustice on the applicant is an unacceptable preposition. Therefore, Page 60 of 67 OA 21/258/2021 if the relief sought is not extended by the Tribunal it would tantamount to perpetuating injustice rather than doing justice to the applicant who has been wronged, if in case the unsustainable pleas of the respondents are reckoned, as held by Hon'ble Supreme Court in Somesh Tiwari v U.O.I & Ors reported in CA 7308 of 2008, as under:
"27. This Court in Commissioner, Karnataka Housing Board v. C. Muddaiah, [(2007) 7 SCC 689 ] laid down the law, thus :-
"32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."
XXXI. We also observe that the applicant has been working for the respondents since 2017 and has gained nearly 5 years of practical experience. Practical experience aids a person to effectively discharge the duties assigned as held by the Hon'ble Supreme Court of India in Bhagwati Prasad And Ors vs Delhi State Mineral Development ... on 15 December, 1989 in Equivalent citations: 1990 AIR 371, 1989 SCR Supl. (2) 513, as under:
Practical experience would always aid a person to effectively discharge the duties and is a sure guide to Assess his suitability.Page 61 of 67
OA 21/258/2021 Respondents have conducted the multistage tests and found the applicant eligible in all of them. But for their erroneous decision, the applicant could have been in the select list. In fact, a candidate with experience in the same organization and in job advertised would be better placed to handle the job straightway, without any further training, on being regularly recruited.
XXXII. It is not out of place to observe that if the respondents commit a mistake in the selection it is for the Tribunal to interfere and render justice to right the wrong committed. We observe that the respondents have acted in a patently unfair manner as explained in the preceding paras. The Tribunal is a Court of justice and has to interpret law to enable justice to blossom and injustice is discarded. From the factual analysis and from the legal point of view the respondents have misdirected themselves with irrelevant considerations. Having been clear that injustice has been done to the applicant it would not be fair to remand the case back since it would prolong the pain and harassment by unwarranted procrastination. Therefore, it is our considered view to put a quietus to the dispute by directing the respondents to consider the case of the applicant for the appointment as Driver (Ordinary Grade) having regard to his merit under EWS quota, which is admitted by the respondents. We are supported by the observations of the Hon'ble Allahabad High Court in Dr. Sangita Srivastava vs University Of Allahabad And Ors. on 22 May, 2002 in Equivalent citations: 2002 (3) AWC 2088, (2002) 3 UPLBEC 2502 in stating the above.Page 62 of 67
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34. Ordinarily, suitability is to be judged by the Executive Council and not by this Court. But what are we to do when the Executive Council acts in a patently unfair manner, as it has done in this case? This Court is a Court of Justice. No doubt it has to do justice based on law, but the Court will interpret law in a way that leads to justice and not injustice.
35. On the facts of this case, and in view of the fact that the Executive Council has acted on irrelevant considerations and has misdirected itself, and since a remand to it would lead to further delay and harassment of the petitioner, we ourselves have Judged the petitioner's suitability and we find her suitable to be appointed as regular lecturer, and we hold that she fulfills all the requirements of Section 31 (3) (c) of the Act.
36. In the circumstances, a mandamus is issued to the respondents to regularise the petitioner as lecturer in Home Science forthwith and pay her salary of regular lecturer. The petition is allowed. No order as to costs.
XXXIII. The wrong application of rules and law is not the mistake of the applicant and therefore he should not be penalized for no fault of his. It is the own mistake of the respondents to have decided to not to fill up the EWS posts, albeit it is obligatory upon them under rules/law to fill them up and therefore, for their folly the applicant should not suffer the adverse consequences of not being offered the appointment as driver for which he was legally titled to in all respects. We rely on a sequence of judgments rendered on the aspect touched upon, by the Hon'ble Apex court, as under, to support our view:
(a). It is settled law that no one should be penalized for no fault of his. (See Mohd. Ghazi vs State of M.P. 2000(4) SCC 342.
(b) A.K. Lakshmipathy v. Rai Saheb Pannalal H. Lahoti Charitable Trust,(2010) 1 SCC 287 "they cannot be allowed to take advantage of their own mistake and conveniently pass on the blame to the respondents."Page 63 of 67
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(c) Rekha Mukherjee v. Ashis Kumar Das,(2005) 3 SCC 427 :
36. The respondents herein cannot take advantage of their own mistake.
XXXIV. Recruitment to Government posts is a keenly contested affair. Those appointed would be called upon to render public service. The Government in order to bring about social and economic progress of the different sections of the society has ushered in the EWS legislation in public interest and public good. The respondents have failed to realize and appreciate that every decision of the State has to be in public interest. Larger public interest calls for strict adherence of the rules. On both the counts stated respondents faltered inexplicably. Their decision to not to fill up the EWS vacancies is thus not in Public interest. We have drawn the above remarks from the annotations of the Hon'ble Apex Court in the following verdicts.
a. Supreme Court of India in Nidhi Kaim vs State Of M P And Ors Etc on 12 May, 2016 in Civil Appeal No. 1727 OF 2016 No doubt, that the overarching requirement of Constitution is that every action of the State must be informed with reason and must be in public interest b. Karnataka Public Service Commission & Ors v B.M. Vijaya Shankar & Ors, AIR 1992 SC 952:(1992) 2 SCC 206 Page 64 of 67 OA 21/258/2021 "Larger public interest demands of observance of instruction rather than its breach".
XXXV. Coming to the fag end of the dispute we would like to remind the respondents that providing EWS reservations is a promise made to the Nation by the Govt. and on their part have fulfilled it by bringing in the requisite legislation. It is the respondents who played the role of the spoiler by not understanding the repercussions of their irrational, arbitrary and discriminative decision to not to fill up the EWS posts. Having participated in the selection process and being successful in the EWS category it is but natural that applicant had an indefeasible substantive legitimate expectation of being selected which has been belied by the respondents specious decision and hence is against the legal principle laid down by the Hon'ble Apex Court in Kerala State Beverages (M And M) Corporation Ltd vs. P. P. Suresh And Ors. Etc. Etc. on 4 October, 2019, in Civil Appeal Nos.7804-7813 of 2019. The legitimate expectation of the applicant was dashed off by a decision to not to fill up EWS posts as well as rubbing salt over the wound by granting the rule 38 transfer to R-6 against EWS vacancy irregularly violating the rules in the rule book. Notice was served on R-6 and there has been no reply. However, since R-6 has joined some time back it may be too late in the day to cancel the transfer. Nevertheless, respondents have to take due notice of the serious lapse for avoidance of recurrence of the folly in the future.
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OA 21/258/2021 Relief granted XXXVI. To sum up, we observe that the respondents failed in following important provisions pertaining to the Rules and law, as given hereunder:
1) They did not uphold the Constitutional provisions pertaining to EWS reservation/ RR-205;
2) Rules regarding Rule 38 transfer were violated;
3) Principles of natural justice were not adhered to;
4) Decision was found to be malafide as well as malice in fact and law;
5) Penalizing the applicant for the mistake of the respondents;
6) Law regarding rules of the game was given a go-bye;
7) Many other legal principles pointed out were not abided by;
Therefore, the decision of the respondents to not to fill up the EWS vacancies is not sustainable under rules and law. Consequently, the respondents are directed to consider:
i. The applicant for appointment to the post of Driver (Ordinary) Non-ministerial against one EWS vacancy reported to be kept vacant in pursuance of the interim order of the Tribunal.
ii. The seniority of the applicant will be fixed on a notional basis on par with those selected against the notification dated 21.7.2020 as per his merit.
iii. The applicant will not be eligible for any back wages for the period from the date of appointment till he joins the post Page 66 of 67 OA 21/258/2021 iv. Time allowed to implement the judgment is 3 months from the date of receipt of copy of this order.
XXXVII. With the above direction, the OA is allowed with no order as to costs. Accordingly, MA No. 559/2021 stands disposed.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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