Punjab-Haryana High Court
Satya Vir Singh vs The Punjab And Haryana High Court on 26 April, 2011
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P. No. 19772 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.W.P. No. 19772 of 2010
Date of Decision : April 26, 2011
Satya Vir Singh
.... PETITIONER
Vs.
The Punjab and Haryana High Court
..... RESPONDENT
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
* * *
Present : Mr. Rajiv Atma Ram, Sr. Advocate,
with Mr. Nikhil Chopra, Advocate,
for the petitioner.
Ms. Radhika Suri, Advocate,
for the respondent.
* * *
AUGUSTINE GEORGE MASIH, J.
Petitioner, who is presently working as a Reader in High Court of Punjab and Haryana, has, through this writ petition, challenged the decision of the Committee dated 28.04.2010 (Annexure P-19) and 30.08.2010 (Annexure P-22) approved by the Chief Justice, whereby the claim of the petitioner for promotion to the post of Court Secretary and thereafter, Special Secretary stands declined with a further prayer for issuance of a writ of mandamus directing the High Court to count the experience of the petitioner as Reader w.e.f. 03.02.2005 (the date of his C.W.P. No. 19772 of 2010 2 notional appointment) and to promote the petitioner to the post of Court Secretary and thereafter, Special Secretary w.e.f. the date when his batch mates were promoted with all consequential benefits and if required, to invoke the provisions of Rule 38 of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 (hereinafter referred to as 'the 1973 Rules'), which provides for dispensing with or relaxation for the purpose of counting the experience.
The undisputed facts, as per the pleadings of the parties, are that the petitioner was appointed as a Clerk by direct recruitment in the District Courts on 05.08.1981. He was promoted to the post of Assistant on 16.12.1998 and thereafter, as Superintendent on 13.05.2005, on which post he joined on 18.05.2005 in the office of the District and Sessions Judge, Ambala. The High Court, vide Memo dated 27.07.2002, invited applications for the post of Reader to the Hon'ble Judges, which were to be filled up on the basis of a competitive examination, which consisted of written test and interview. The written test was conducted in the year 2003 and the interview in the year 2004. The petitioner participated in the selection process and was placed at Sr. No. 7 in the select list. As six vacancies were available, candidates placed at Sr. No. 1 to 6 of the select list were appointed as Readers on 27.11.2004 (hereinafter referred to as 2004 Batch). Thereafter, 7th vacancy arose on 03.02.2005 but the petitioner was not offered the appointment on the ground that CWP No. 3250 of 2005 stood filed in the High Court by Baljinder Singh Teja and another, who were unsuccessful candidates, challenging the selection. The said writ petition was dismissed as withdrawn on 20.09.2005 with liberty to file another writ petition by impleading the necessary parties. CWP No. 16345 of 2005 was thereafter filed. But the petitioner was not C.W.P. No. 19772 of 2010 3 impleaded as a respondent and was thus not party to the litigation. It would not be out of way to mention here that no order restraining the respondent- High Court to appoint the selected candidates was passed in the said case. The petitioner enquired from the office as to why he was not being appointed despite there being a vacancy, to which he was informed by the office that it was because of the pendency of the writ petition that no appointment letter was being issued to him.
In the month of October, 2005, the High Court issued another notification for recruitment to the post of Reader. The petitioner, at that stage, when the selection process for fresh recruitment was in progress, submitted a representation dated 23.03.2006. His request for appointment as a Reader was based on the ground that there was no stay of appointment and at the most, the appointment of the petitioner may be made subject to the final outcome of the said writ petition and as the result of the writ petition would affect all the candidates of the batch, there was no justification to withhold his appointment. He further stated that he was being discriminated against as his other batch mates stood on same footing were working as Readers in the High Court. He stated that the High Court had issued a fresh notification and if the fresh batch is appointed, the interest of the petitioner would be prejudiced. No reply was received by him. He again submitted a representation dated 01.05.2006 but with no result. The High Court proceeded to appoint 7 fresh Readers on 10.05.2006 (hereinafter referred to as 2006 Batch). Petitioner No. 1- Baljinder Singh Teja in CWP No. 16345 of 2005 was one of the appointed candidates.
Another selection to the post of Reader in the High Court was initiated and 18 fresh Readers were appointed on 10.12.2007 (hereinafter C.W.P. No. 19772 of 2010 4 referred to as 2007 Batch) but the petitioner was not issued the appointment letter. During the pendency of CWP No. 16345 of 2005, on 20.02.2007, the batch mates of the petitioner i.e. 2004 Batch were promoted to the post of Officiating Court Secretary. Then on 08.08.2008, 2006 Batch was promoted by the High Court as Court Secretary.
Ultimately, on the dismissal of CWP No. 16345 of 2005 on 18.1.2008 challenging the selection of the 2004 Batch, in which the petitioner was also selected, the District and Sessions Judge, Jind, vide letter dated 09.08.2008, informed the petitioner that vide letter dated 06.08.2008 of the High Court, he had been directed to inform the petitioner that an offer of appointment by promotion as Officiating Reader on the establishment of the High Court has been given and if the petitioner is interested, he may give his consent.
The petitioner submitted a representation dated 13.08.2008 seeking extension of time for joining on medical grounds. He further requested that he be given appointment from the date the 7th vacancy arose i.e. 03.02.2005 and corresponding seniority be granted to him without any arrears of pay. A clarification dated 01.10.2008 was issued by the High Court informing the petitioner that his seniority would be regulated by Rule 30 of the 1973 Rules. The petitioner made a representation dated 30.10.2008 and 18.10.2008 seeking specific clarification as to whether on joining the post of Reader his seniority would be above 26 candidates appointed on the post of Reader in the years 2006 and 2007. These representations of the petitioner were duly considered by the Committee on 08.01.2009 and the petitioner was informed that his appointment would relate back to the date on which the 7th vacancy occurred in the cadre of Readers i.e. 03.02.2005 and his seniority would be regulated by Rule 30 of C.W.P. No. 19772 of 2010 5 the 1973 Rules and accordingly, the petitioner was offered appointment to the post of Reader w.e.f. 03.02.2005 vide letter dated 06.02.2009.
The petitioner joined service as Reader in the High Court on 14.05.2009 after relinquishing his charge of the post of Superintendent to the District and Sessions Judge, Jind on 13.05.2009. On joining, the petitioner submitted a representation dated 18.05.2009 requesting for promotion to the post of Court Secretary w.e.f. 07.02.2007, the date on which his other batch mates were so promoted. The High Court issued notification dated 22.05.2009, according to which, the date of appointment of the petitioner as Officiating Reader was shown to be w.e.f. 14.05.2009. He submitted a representation dated 26.05.2009 requesting to rectify his date of appointment as 03.02.2005 in terms of the letter dated 06.02.2009 but no immediate decision was taken thereon and the representation remained pending. On 12.01.2010, 17 out of 18 candidates of 2007 batch were also promoted from the post of Reader to the post of Court Secretary.
The representations dated 18.05.2009 and 26.05.2009 submitted by the petitioner were considered by the Committee on 28.04.2010 wherein his representation dated 26.05.2009 seeking rectification of the notification dated 22.05.2009 in which his date of appointment as Officiating Reader was mentioned as 14.05.2009 instead of 03.02.2005, was accepted. However, his representation dated 18.05.2009 claiming promotion as Court Secretary w.e.f. 07.02.2007 i.e. the date when his other batch mates were promoted, was rejected on the ground that the petitioner lacked the three years working experience on the post of Reader, which was mandated under Rule 8 (iii) of the 1973 Rules for promotion to the post of Court Secretary with a further observation that his case for promotion to the post of Court Secretary shall be considered as and when C.W.P. No. 19772 of 2010 6 he completes his three years experience on the post of Reader (Annexure P-19). It requires mention here that all selectees of the 2004, 2006 and 2007 Batch were promoted as Court Secretaries and Special Secretaries by invoking the provisions of Rule 38 of the 1973 Rules, which vests power in the Chief Justice to by order dispense with or relax the requirements of any rule, as none of them fulfilled the mandate of Rule 8 (iii) as regards requirement of experience. In the light of the acceptance of the representation of the petitioner dated 26.05.2009, notification dated 10.05.2010 was issued modifying the earlier notification dated 22.05.2009 stating therein that the appointment of the petitioner as Officiating Reader was w.e.f. 03.02.2005.
Two of the batch mates of the petitioner, namely, Ish Kumar and Mam Raj were promoted as Special Secretary on 16.05.2009 and Satish Kumar Vig, Dinesh Mohan and Sushil Gupta on 26.02.2010. The petitioner submitted representation dated 03.05.2010 requesting to be promoted as Court Secretary and Special Secretary from the date when the candidates of his batch i.e. 2004 Batch stood promoted to the said posts and before the date of promotion of the selected Readers of his subsequent batches i.e. 2006 and 2007 Batches. In this representation, the petitioner referred to instructions dated 13.06.1996 issued by the Government of Punjab, which dealt with cases where promotion was made subsequent to the date of promotion of the junior, as to whether the experience has to be counted from the date of actual promotion or from the date his junior was promoted. These instructions stated that whenever a senior official was given promotion from the date of junior official i.e. the promotion is given from the retrospective date, in that case for giving next promotion, the working experience of the senior official has to be treated C.W.P. No. 19772 of 2010 7 from the promotion given from the retrospective date and not from the date of actual promotion.
In the meanwhile, when the representation of the petitioner was under consideration, Sh. Onkar Singh, who belongs to the selected candidates of 2006 batch, was promoted as Officiating Special Secretary on 27.08.2010. In this order of promotion, it was specifically mentioned that his promotion would be subject to the claim of the petitioner. The representation dated 03.05.2010 of the petitioner was considered by the Committee in its meeting dated 30.08.2010 and rejected the same again on the ground that the petitioner lacked three years experience for promotion to the post of Court Secretary (Annexure P-22). Faced with this situation, the petitioner has challenged the decision of the Committee of this Court dated 28.04.2010 (Annexure P-19) and 30.08.2010 (Annexure P-
22), vide which the claim of the petitioner for promotion to the post of Court Secretary and Special Secretary has been declined.
Counsel for the petitioner contends that the petitioner is a victim of the judicial process with no fault of his. He was duly selected as Reader in pursuance of the Memo dated 27.07.2002, for which the selection process stood completed in the year 2004 and six of his batch mates were appointed on 27.11.2004. The 7th vacancy arose on 03.02.2005, on which date the petitioner was available for appointment being a duly selected candidate and should have been issued appointment letter but was not appointed merely on the ground that the selection was challenged firstly in CWP No. 3250 of 2005, which was withdrawn on 20.09.2005 as there were certain defects therein with liberty to file another one. Thereafter, another CWP No. 16345 of 2005 was filed and was finally dismissed on 18.01.2008. There was no stay on appointment of the C.W.P. No. 19772 of 2010 8 petitioner but merely because the writ petition was pending, he was not issued an appointment letter. Ultimately, the petitioner was given his due when he was, vide letter dated 06.02.2009, offered appointment to the post of Reader w.e.f. 03.02.2005 when the 7th vacancy arose but despite giving the said benefits, the consequential benefits have been denied to him. The only claim, which the petitioner had foregone, was the financial benefits, thus, the petitioner was entitled to be considered for promotion along with his batch mates to the post of Court Secretary and Special Secretary.
He contends that Court can do no wrong and the act of Court cannot harm the interest of any deserving person and if it does happen, the same needs to be rectified. To deal with such contingencies, Rule 38 of the 1973 Rules stands enacted which deals with powers of the Chief Justice to relax the Rules in favour of the individuals where the operation of any Rules causes undue hardship in any particular case. This Rule not only provides for relaxation but gives the power to the Chief Justice to dispense with the requirement of the Rule, which causes such undue hardship. His contention is that the said Rule has not been taken into consideration by the Committee in its true spirit and ambit. The claim of the petitioner stands rejected merely on the ground that the petitioner does not possess the minimum experience of three years as Reader and it has further been observed in the impugned decisions that his case would be considered for promotion as and when he completes three years experience on the post of Reader. The Committee has not taken into consideration the fact that even the batch mates of the petitioner and the officials of the subsequent selected batches have been granted promotion by invoking the relaxation Clause of Rule 38 of the 1973 Rules. This he submits on the basis of the proceedings of the meeting attached by the High Court in reply to the writ C.W.P. No. 19772 of 2010 9 petition. Referring to the instructions of the Punjab Government dated 13.06.1996, he submits that the said instructions are applicable to the case of the petitioner and, therefore, he is entitled to the counting of the experience from the date of his notional date of appointment for the post in question. Reliance has been placed on a judgment of the Supreme Court in the case of Union of India vs. Sadhana Khanna, 2008 (2) SCT 628 and a judgment of this Court in the case of Hawa Singh Sangwan vs. Union of India and others, 1991 (6) SLR 753, to contend that delay in appointment due to procedural difficulties cannot be made a reason for denying the selected candidate the benefit which he would have been entitled to, if he would have been appointed on his selection along with others.
On the other hand, counsel for the respondent-High Court has argued that mandate of Rule 8 of 1973 Rules cannot be waived. The claim of the petitioner was duly considered by the Committee and on due consideration, it was found that the petitioner did not fulfil the requirement of three years working experience as Reader and, therefore, cannot be promoted as a Court Secretary. In support of this contention, she placed reliance upon the judgments of the Supreme Court in Union of India and another vs. M. Bhaskar and others, JT 1996 (5) SC 500, A. Madhudeswaran and others vs. Government of Tamil Nadu and others, JT 1996 (5) SC 506, wherein it has been held that a person promoted to a higher grade cannot gain experience from the date of notional promotion and the experience has to be taken from the date of actual promotion. Since the petitioner has been notionally appointed on an earlier date, he is not entitled to the benefit of the said appointment as for experience, he would have to work on the said post which the petitioner C.W.P. No. 19772 of 2010 10 has not and thus, the decision of the High Court is in accordance with law. Reliance has further been placed on a judgment of this Court passed in CWP No. 12174 of 2008 titled as Shamsher Singh vs. High Court of Punjab and Haryana, Chandigarh and others, decided on 17.12.2009.
I have heard the counsel for the parties and have gone through the records of the case.
A perusal of the above facts lead to a conclusion that the right of the petitioner for appointment to the post of Reader with effect from the date of occurrence of the 7th vacancy i.e. 03.02.2005 stood acknowledged and recognized by this Court as is apparent from the minutes of the meeting of the Committee which considered the representation of the petitioner as Reader by granting him seniority in accordance with the merit list of 2004 Batch held on 08.01.2009 (Annexure P-12). On consideration of the representation and detailing the facts, it was noted that after the dismissal of CWP No. 16345 of 2005 on 18.01.2008, wherein selection of the 2004 Batch was under challenge, there was no obstacle in the way of the claim of the petitioner for appointment against the post. In fact, the appointment of the petitioner had remained stalled for the solitary reason of pendency of the aforesaid writ petition. The relevant portion of the minutes of the meeting reads as follows:-
" Intervening the selection of Shri Satya Vir Singh in the year 2004, and the disposal of the pending litigation on 18.1.2008, two further processes of selection were conducted. In the first process of selection held in the year 2006, 8 further appointments were made to the post of Reader. Thereafter, 18 more Readers were appointed in a process of selection C.W.P. No. 19772 of 2010 11 conducted in the year 2007. Justice will be deemed to be done to the representationist only if his appointment relates back to the date when the 7th vacancy in the cadre of Readers against which he was selected in the year 2004 is given to him specially when the said vacancy was kept vacant for him. And additionally on account of the fact that the selection of the representationist was made well before the selection of 8 and 18 candidates during the years 2006 and 2007 respectively.
The committee accordingly recommends that the representationist Shri Satya Vir Singh be offered appointment against the post of Reader with effect from the date of the arising of the vacancy in the cadre of Readers against which he was selected. He will however, not be entitled to any arrears in terms of his own undertaking. He be also informed that his seniority will be regulated under Rule 30 of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 on the basis of the date of his appointment, referred to herein above."
It would not be out of way to mention here that the recommendation of the Committee was accepted by the Chief Justice and in pursuance thereto, appointment letter dated 06.02.2009 was issued to the petitioner to the post of Reader. A perusal of the above would leave no manner of doubt that the appointing authority accepted that the petitioner deserved to be appointed from the date the 7th vacancy arose and specially when the vacancy was kept vacant for him despite there being subsequent selections in the years 2006 and 2007. It further shows that the petitioner C.W.P. No. 19772 of 2010 12 was granted the benefits from the said date but was not entitled to any arrears in terms of his own undertaking. The petitioner thereafter, claimed his other consequential rights i.e. promotion to the post of Court Secretary and Special Secretary from the date his batch mates were promoted and if not, then from the date the members of the subsequent batches i.e. 2006 and 2007 were given promotions as such. The claim of the petitioner for promotion was denied only on the ground that the petitioner did not fulfill the minimum three years experience as Reader as mandated under Rule 8
(iii) of the 1973 Rules. It needs mention here that all selectees of the 2004, 2006 and 2007 batch were promoted as Court Secretaries and Special Secretaries by granting relaxation in the experience as provided in Rule 8 (1) (i) (a) and 8 (iii) of the 1973 Rules by invoking Rule 38 of these Rules, which empowers the Chief Justice to dispense with or relax the requirement of any Rule by order where he is satisfied that the operation of any Rule causes undue hardship in any particular case.
At this stage, reference to Rule 8 (1) (i) (a) and 8 (iii) of the 1973 Rules, as it existed at the relevant time, would be necessary, which reads as follows:-
" 8 (1) (i) (a). Special Secretary " Appointment to the post of Special Secretary shall be made by way of selection from amongst the Secretaries and Court Secretaries, having experience as such for a minimum period of three years and who are graduates."
" Secretaries
8 (i) & (ii) xxx xxx xxx xxx
8 (iii) By selection from out of the Private Secretaries and Readers to the Judges, who have experience of working as C.W.P. No. 19772 of 2010 13 Private Secretary or Reader for a minimum period of three years and who are graduates.
(a) The persons selected from the cadre of Private Secretaries shall be designated as Secretaries and the persons selected from the cadre of Readers shall be designated as Court Secretaries;
(b) The Persons who are already promoted as Assistant Registrars or Deputy Registrars or serving elsewhere from cadre of Private Secretaries/Readers but not confirmed, shall be eligible to give their options for being considered to the posts of Secretaries within fifteen days from the date of the notification.
(c) The inter-se seniority of the Secretaries and Court Secretaries shall not be disturbed and shall not be interchangeable."
The Committee constituted by the Chief Justice under Article 229 of the Constitution of India i.e. High Court Estt.-I Committee in its meeting held on 28.04.2010 (Annexure P-19) while considering the representation dated 18.05.2009 of the petitioner for promotion, did not take into consideration Rule 38 of the 1973 Rules which was invoked while promoting the batch mates of the petitioner i.e. 2004 Batch as also the subsequent 2006 and 2007 Batch selectees. Similar was the situation when the representation of the petitioner dated 03.05.2010 was considered by the Committee in its meeting held on 30.08.2010.
C.W.P. No. 19772 of 2010 14
Reference, at this stage, to Rule 38 of the 1973 Rules would be necessary, which reads as follows:-
" Power to relax rules in favour of individuals:
38. Where the Chief Justice is satisfied that the operation of any rule causes undue hardship in any particular case, he may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner provided that the case is not dealt with in a manner less favourable to the officer or official concerned than in accordance with the rules."
This Rule, when read, gives the power to the Chief Justice to do complete justice befitting to the office held by him. His power to do justice has been given precedence over the shackles and restrictions as imposed by these Rules. As per this rule, the satisfaction is his while dealing with the case of an individual that the operation of any Rule causes undue hardship. Once such satisfaction is reached, the Rule envisages that the Chief Justice may by order dispense with or relax the requirements of that Rule to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. It further qualifies that the case be not dealt with in a manner less favourable to the officer or official concerned than in accordance with the Rules. This Rule thus, is required to be invoked and exercised by the Chief Justice for the benefit of an officer or official where in his opinion and satisfaction, any Rule has put an officer or official in a disadvantageous C.W.P. No. 19772 of 2010 15 position by its operation and to deal with the case in a just and equitable manner, he may by order dispense with or relax the requirement of that Rule. Keeping in view the high office of the Chief Justice, this exceptional power has been conferred on him so that no officer or official by virtue of operation of any Rule is put in an disadvantageous position causing undue hardship and justice can be done to the employee where the Chief Justice is so satisfied. Present is a case where such hardship has, as a matter of fact, been caused due to no fault of the petitioner where the power under Rule 38 deserves to be invoked which has not been considered by the Committee.
The facts need not be repeated again and as it is apparent therefrom that despite selection of the petitioner in the 2004 Batch and vacancy for him arising on 03.02.2005, which was kept reserved for him, he was not offered appointment letter as the selection was challenged by two unsuccessful candidates, namely, Baljinder Singh Teja and another by filing CWP No. 3250 of 2005, which was got dismissed as withdrawn on 20.09.2005 with liberty to file another writ petition by impleading the necessary parties. Thereafter, CWP No. 16345 of 2005 was filed. The petitioner was not made a party to the litigation. There was no restraint order on the appointment of the selected candidates by the Court. Despite that, the petitioner was not issued the appointment letter although there was a vacancy available which was actually kept reserved for him. On enquiry, the petitioner was informed that he was not being issued the appointment letter because of the pendency of the writ petition and he was asked to wait. The petitioner moved a representation dated 23.03.2006 requesting for appointment as the subsequent selection process was on and the fresh selection was on the anvil but no response was received by him. Another representation dated C.W.P. No. 19772 of 2010 16 01.05.2006 was submitted but with no result. The High Court proceeded to finalize the selection and appointed 7 Readers on 10.05.2006. Baljinder Singh Teja-petitioner No. 1 in CWP No. 16345 of 2005 was one of the selectees and was appointed. Another selection ensued and 18 fresh Readers were appointed on 10.12.2007 but still the petitioner was not issued the appointment letter merely because of the pendency of CWP No. 16345 of 2005. This writ petition was finally dismissed on 18.01.2008 and it is only thereafter that the petitioner was informed that he has been offered appointment by promotion as Officiating Reader on the establishment of the High Court in August, 2008. On representation made by the petitioner, finally the appointment letter dated 06.02.2009 was issued granting him appointment as a Reader stating therein that his appointment would relate back to the date on which the 7th vacancy occurred in the cadre of Reader i.e. 03.02.2005. In the meanwhile, the batch mates of the petitioner i.e. 2004 Batch were promoted to the post of officiating Court Secretary on 20.02.2007. Thereafter, on 08.08.2008, selectees of 2006 Batch were promoted as Court Secretaries. These promotions were made by granting relaxation in experience as mandated under Rule 8 (iii) by invoking the powers by the Chief Justice under Rule 38 of the 1973 Rules.
The petitioner made a representation claiming the said benefits but the same was rejected on the ground that the petitioner lacked the requisite experience of three years in terms of Rule 8 (iii) to be eligible for promotion to the post of Court Secretary as his notional appointment as Reader w.e.f. 03.02.2005 does not grant him the benefit of experience which can only be acquired by actually working on the post. It was however, observed that the case of the petitioner shall be considered for C.W.P. No. 19772 of 2010 17 promotion to the post of Court Secretary as and when he completes three years experience on the post of Reader. This decision was taken by the Committee in its meeting held on 28.04.2010 (Annexure P-19). It needs mention here at the cost of repetition that his batch mates and selectees of subsequent selections were also not having the mandated period of experience as per Rule 8 (iii) but were promoted by invoking the powers under Rule 38. The petitioner stands discriminated here.
Before the decision of the Committee came, batch mates of the petitioner i.e. 2004 Batch were promoted as Special Secretaries on 16.05.2009 and 26.02.2010. The petitioner submitted a representation dated 03.05.2010 requesting therein to be promoted as Court Secretary and Special Secretary from the date when his batch mates were promoted to the said posts but this representation also was rejected by the Committee in its meeting held on 30.08.2010 on the same ground that he did not fulfill the requisite experience of three years for promotion to the post of Court Secretary. It would not be out of way to mention here that Baljinder Singh Teja, who was petitioner No. 1 in CWP No. 16345 of 2005 and because of the pendency of the said writ petition, the petitioner was not issued the appointment letter and who was subsequently selected in the 2006 Batch as Reader, was promoted as Court Secretary on 08.08.2008 and Special Secretary vide order dated 27.11.2010 after relaxing the Rule qua experience in exercise of powers under which benefit was not granted to the petitioner. Rather a perusal of the minutes of the meeting dated 28.04.2010 (Annexure P-19) and 30.08.2010 shows that the Committees did not take into consideration Rule 38 of the 1973 Rules as was done while considering the case of 2004, 2006 and 2007 Batches for promotion to the post of Court Secretary and Special Secretary. A perusal C.W.P. No. 19772 of 2010 18 of the representations made by the petitioner, which were considered and decided by the Committees, would clearly shows that the petitioner had craved the indulgence of the Chief Justice for invoking the powers under Rule 38 of the 1973 Rules to grant him the benefit so as to remove the hardship in the peculiar facts of the case of the petitioner caused to him due to the operation of Rule 8 (1) (i) (a) and 8 (iii) of the 1973 Rules.
The stand of the respondent that the mandate of Rules 8 (1) (i)
(a) and 8 (iii) prescribing three years experience for promotion cannot be waived, may have been correct if these Rules are read in isolation but in the light of the earlier decision in the case of similarly placed employees, where Rule 38 of the 1973 Rules had been invoked for relaxing the vigor of Rule 8 (1) (i) (a) and 8 (iii) as also non-consideration of the ambit, scope and effect of Rule 38 by the Committees while considering the claim of the petitioner, cannot be accepted. Similarly, the reliance placed on the judgments by the counsel for the respondent during the course of hearing i.e. M. Bhaskar and others (supra), A. Madhudeswaran and others (supra) and Shamsher Singh (supra) also would not be of much use as in these cases merely the scope of the Rule in question has been considered by the Courts and there is no reference to any Rule which provided for the power with the competent authority to dispense with or relax the requirements of the Rule which, in the present case, is available in the form of Rule 38 of the 1973 Rules.
The facts of the case in hand depict a picture of an employee, who has been made to suffer because of no fault of his nor there being any reason why he should have not been appointed at the first place. The facts reveal a story where a helpless employee had been knocking at the doors of temple of justice for claiming his right on the administrative side. May be C.W.P. No. 19772 of 2010 19 due to overcautious approach of the High Court or to avoid complications, despite there being no hitch or impediment in giving the appointment to the petitioner, merely because of the pendency of the writ petition, the petitioner was deprived of his right of appointment despite being selected in accordance with law. An employee, who is ready and willing to work, is deprived of his right to work none other than by the High Court itself and above all, when he is not a party to the litigation. Despite representations, his claim is kept pending and thereafter when that right of appointment has been acknowledged and accepted from the date the vacancy arose, he is being deprived of his consequential benefits.
It is a settled preposition of law based on the maxim actus curiae neminem gravabit, which means that the act of the Court shall prejudice no one. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of justice. A person cannot be penalized for no fault of his. In a case where merely because of pendency of the writ petition, a person is deprived of his right despite there being no legal impediment, the Court is under an obligation to undo the wrong done. It may not be a direct act of the Court but a consequence thereof, for which the sufferer can, in no manner, be held responsible. Similarly, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. Concept of restitution becomes applicable in such cases otherwise the party would continue to get benefit by merely instituting the litigation despite losing the case in the Court. In such a situation, the Court cannot sit as a mute spectator but should pass order, which would expressly neutralize the effect of such unmerited C.W.P. No. 19772 of 2010 20 litigation. As far as possible, Courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose. Another basic principle of jurisprudence is " ubi jus ibi remedium", which means where there is a right, there is a remedy. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice and, therefore, needs to be adopted, followed and enforced by the Courts of law.
In Kalabharati Advertising vs. Hemant Vimalnath Narichania, 2011 (1) RCR (Civil) 216, the Hon'ble Supreme Court while considering the effect of the ultimate dismissal or withdrawal of a case and the consequence of the effect of the interim relief in para-15 held as follows:-
"15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair C.W.P. No. 19772 of 2010 21 advantage gained by a party invoking the jurisdiction of the Court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. xxx xxx xxx xxx xxx"
In paras 18 and 21, it was held as follows:-
"18. In South Eastern Coalfields Ltd. vs. State of M.P. & Ors., AIR 2003 SC 4482, this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would C.W.P. No. 19772 of 2010 22 lead to unjust if not disastrous consequences. xxx xxx xxx"
xxx xxx xxx xxx xxx "21. In Badrinath vs. State of Tamil Nadu & Ors., 2000 (4) S.C.T. 832: AIR 2000 SC 3243, this Court observed that once the basis of a proceeding is gone, all consequential acts, action, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders."
Although in the present case, there was no interim order passed by this Court in the writ petition i.e. CWP No. 16345 of 2005 preferred by Baljinder Singh Teja restraining further appointment, but mere pendency of the writ petition was the basis for deprival of the appointment to the petitioner which resulted in hardship and the prejudice due to no fault of his and he has been penalized merely because of the pendency of the case in the Court and the petitioner had suffered due to delay of the Court in deciding the case. It may be noted here that Baljinder Singh Teja, who``` was selected in 2006, was appointed as Reader on 10.05.2006, promoted as Court Secretary on 08.08.2008 along with his batch mates and Special Secretary vide order dated 27.11.2010 and some of his batch mates prior thereto by invoking the provisions of Rule 38 of the 1973 Rules.
Under such circumstances, will it not be a fit case where the Chief Justice should exercise its powers under Rule 38 of the 1973 Rules?
Without going any further or stating anything more and leaving it open to the competent authority to consider and decide, the present writ petition is allowed by setting aside the decision of the Committee dated C.W.P. No. 19772 of 2010 23 28.04.2010 (Annexure P-19) and 30.08.2010 (Annexure P-22) with a further direction to the Registrar General of the High Court to place the matter before the competent authority for reconsideration of the representations of the petitioner dated 18.05.2009 and 03.05.2010 within a period of three weeks from the date of receipt of a certified copy of this order for an early decision.
(AUGUSTINE GEORGE MASIH )
April 26, 2011 JUDGE
pj