Bombay High Court
Dashrath S/O. Keshavji Pande Nagpur And ... vs The High Court Of Judicature At Bombay, ... on 4 May, 2016
Author: B. R. Gavai
Bench: B. R. Gavai, Swapna Joshi
1 wp303.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 303 OF 2016
1. Dashrath s/o. Keshavji Pande,
Aged - Major, Occ. Service,
r/o. 166/A, Aazad Nagar,
Near Rajpal Kirana Store,
Gittikhadan, Nagpur, Tahsil
and District Nagpur.
2. Pramod Tejramji Kumbhre,
Aged - Major, Occ. Service,
r/o. 160/2, Permanent Quarter
No.4/53, Civil Lines, Nagpur,
Tahsil and District Nagpur.
3. Rahul Shrikrushna Gujarkar,
Aged - Major, Occ. Service,
r/o. Rajputpura, Daryapur,
Tahsil Daryapur, Distt. Amravati.
4. Ishwar Ramrao Kanire,
Aged - Major, Occ. Service,
r/o. Quarter No.2/6,
Government Normal School
Vasahat, Sitabuldi, Nagpur,
Tahsil and Distt. Nagpur.
5. Ravindra Sureshrao Fukte,
Aged - Major, Occ. Service,
r/o. 39, Navnath Society,
Maske Layout, Narendra Nagar,
Nagpur, Tahsil and Distt. Nagpur.
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6. Suryakant Vithobaji Yeole,
Aged - Major, Occ. Service,
r/o. 31, Dhangarpura, Tatya Tope
Nagar, Near R.B.I. Quarters,
Nagpur, Tahsil and Distt. Nagpur.
7. Anup Prataprao Hade,
Aged - Major, Occ. Service, r/o.
302, Mangalmurti Apartment,
Near Commissioner Colony Camp,
Amravati, Tahsil and Distt. Amravati.
8. Amol Haribhau Nachne,
Aged - Major, Occ. Service, r/o.
141, Building No.8, Type-1,
Ravinagar, Nagpur, Tahsil and
Distt. Nagpur.
9. Saneep Krushnarao Dhande,
Aged - Major, Occ. Service,
r/o. at Post Mahuli (Dhande),
Tahsil Daryapur, Distt. Amravati.
10.Yogesh Vithalrao Pimpalghare,
Aged - Major, Occ. Service,
r/o. 54, New Diamond Nagar,
Ramna Maroti Road, Behind
Jyoti School, Nagpur, Tahsil and
Distt. Nagpur.
11.Prashant Gunvantrao Mahake,
Aged - Major, Occ. Service,
r/o. 3B, Maa Jagdamba Nagri,
Behind Gajanan Maharaj Mandir,
Godhani, Nagpur, Tahsil and Distt.
Nagpur.
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12.Ravindra Gunvantrao Mahake,
Aged - Major, Occ. Service,
r/o. 38, Maa Jagdamba Nagri,
Behind Gajanan Maharaj Mandir,
Godhani, Nagpur, Tahsil and
District Nagpur.
13.Amol Champatrao Dolhare,
Aged - Major, Occ. Service,
r/o. Type-A, Building No.1/8,
Quarter No.3, Ravinagar Vasahat,
Ravinagar, Nagpur, Tahsil and
Distt. Nagpur.
14.Rajiv Ramsajiwan Shukla,
Aged - Major, r/o. 8, Kohale
Lay-out, Shrikrushna Nagar,
Godhani Road, Nagpur, Tq. and
Distt. Nagpur.
15.Nita Harish Pujari/Latkar,
Aged - Major, Occ. Service,
r/o. Quarter No.8/127,
Type-1, Ravinagar Vasahat,
Ravinagar, Nagpur, Tahsil
and District Nagpur.
16.Shailesh Sambhaji Bhange,
Aged Major, Occ. Service,
r/o. 141, Nisal Lay-out,
Patankar Chowk, Jaripatka,
Nagpur, Tahsil and Distt.
Nagpur.
17.Bhimrao Vasantrao Ganvir,
Aged Major, Occ. Service,
r/o. C/o. Suryabhan Jiwankar,
Rameshwari Road, Nagpur,
Tahsil and Distt. Nagpur.
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18.Akshay Chandrakant Landge,
Aged Major, Occ. Service,
r/o.163, Aadarsha Nagar,
Amravati Road, Wadi,
Nagpur, Tahsil and District
Nagpur.
19.Hashsyakant Gipalrao Kapse,
Aged Major, Occ. Service,
r/o. Chitra Bunglow, Out
House, Near Seven Day's School,
Sadar, Nagpur, Tahsil and District
Nagpur.
20.Yadav Madhukar Karokar,
Aged Major, Occ. Service,
r/o. Nandapur, Post Khairi
(Dhalgaon), Tahsil Saoner,
District Nagpur. ........ PETITIONERS
// VERSUS //
1. The High Court of Judicature
at Bombay, Nagpur Bench,
Nagpur, through its Registrar,
Civil Lines, Nagpur.
2. The Registrar (General),
High Court of Judicature at
Bombay, Fort, Mumbai.
3. The Hon'ble Chief Justice,
High Court of Judicature at
Bombay, Fort, Mumbai.
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4. The State of Maharashtra,
through its Secretary,
Department of Law and
Judiciary, Mantralaya,
Madam Cama Road,
Mumbai 400 032. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr.A.A.Naik, Adv. for the Petitioners.
Mr.A.S.Jaiswal, Sr. Cl. with Mr.F.T.Mirza, Adv. for
Respondent Nos. 1 to 3.
Mr.D.P.Thakare, A.P.P. for Respondent No.4/State.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
ig CORAM : B. R. GAVAI &
MRS.SWAPNA JOSHI, JJ.
DATE : 4.5.2016.
ORAL JUDGMENT (Per B. R. Gavai, J) :
1. Rule returnable forthwith. Heard finally by consent.
2. The petitioners, who are employees in Group "D" on the establishment of Respondent No.1, have approached this Court praying for quashing and setting aside that part of Rule 29(b) of the Bombay High Court Appellate Side Service Rules, 2000 (hereinafter referred as to "the Rules of 2000") which provides for upper age ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 ::: 6 wp303.16.odt limit for promotion to the posts of Clerks, Section Writer/Typist and the proviso thereto which restricts the number of promotees to 10 % of the vacancies in any year of recruitment.
3. The facts are not much in dispute. Twenty petitioners herein have been appointed on various posts in Group "D" category on various dates. The petitioners contend that, if the provisions of Rule 29 of the Rules of 2000 are read as it is, the petitioners and the similarly circumstanced employees in Group "D" category would be left at the mercy of the Registrar of the High Court and the Hon'ble Chief Justice with regard to their promotions, irrespective of they possessing requisite qualification. It is also the contention of the petitioners that, by now, 'the right to promotion' has been held to be 'the fundamental right of an employee' and Rule 29 totally denies the same to the petitioners. The petitioners also contend that they are discriminated as against those who are similarly circumstanced.
4. We have extensively heard Mr.A.A.Naik, learned Counsel for the petitioners, Mr.A.S.Jaiswal, learned Senior Counsel on behalf of High Court Administration and Mrs.Bharti Dangre, learned Government Pleader and Mr.D.P.Thakare, learned Additional ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 ::: 7 wp303.16.odt Government Pleader on behalf of the respondent/State.
5. Mr.A.A.Naik, learned Counsel for the petitioners submits that, perusal of sub-rule (b) of Rule 29, would reveal that the Registrar, with the prior approval of the Hon'ble Chief Justice, may promote any driver or employee from Group "D" post who has put in minimum three years of continuous service in the post of Clerk, Section Writer/Typist subject to fulfilment of eligibility conditions as mentioned in clause (a) of Rule 29. The learned Counsel submits that, as such, no procedure is prescribed as to in what manner the promotions would be made. It is said that the matter is left at the entire discretion of the Hon'ble Chief Justice and the Registrar. He submits that, under Article 229 of the Constitution of India, absolute powers are vested with the Hon'ble Chief Justice for making appointment of Officers and staff of the High Court and the same is done in order to prevent interference by the Executive. It is submitted that, however, while exercising the power, the Hon'ble Chief Justice is also required to follow mandate of Articles 14 and 16 of the Constitution of India.
6. The learned Counsel for the petitioners further submits that the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 ::: 8 wp303.16.odt proviso which restricts number of promotions to 10% of the vacancies in any restricted year is also violative of Article 14 of the Constitution of India. The learned Counsel, relying on the Government Resolution dt.10.5.2005, submits that the State Government itself, vide the said Resolution, has provided that 25% of the posts in Group "C" category be ear-marked for filling up the said by promotion from Group "D"
employees. It is submitted that, by subsequent resolution dt.14.1.2016, the said 25 % reservation has now been increased to 50%.
7. The learned Counsel submits that the duties which are to be exercised by the Clerks etc. in the High Court and by the Clerks working in the State Government departments are almost identical and there is no reason as to why the provisions which are made in respect of the employees of the State Government and the High Court should be discriminative. The learned Counsel submits that the salary of both the set of the employees comes from the same public exchequer and as such, there is no reason as to why they should not be given equal treatment.
8. The learned Counsel further submits that the High Court ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:12 ::: 9 wp303.16.odt on the Administrative Side has been changing its policy every now and then. It is submitted that, vide Circular dt.19.1.2010, it was decided that the Government Resolution of the State Government dt.10.5.2005 would be applicable. However, the same is again changed on 8.2.2010, wherein it was provided that the said Government Resolution shall apply only to the subordinate Courts.
The learned Counsel for the petitioners further submits that, by another Circular dt.9.3.2010, again change was made thereby providing that, even in the subordinate Courts, promotions from Group 'D" to Group 'C' category would be restricted only to 10 %. It is, therefore, submitted that the High Court is not consistent with its stand.
9. The learned Counsel further submits that the High Court on the Administrative Side has, in fact, misled the Division Bench of this Court at Aurangabad when Writ Petition No.1815 of 1997 came up for hearing before the Division Bench. The learned Counsel submits that, giving an impression to the Court that the High Court Administration has accepted to give 25% of reservation for promotion from Group 'D' to Group 'C' category, the High Court was misled to dispose of the petition. However, subsequently, the same was said to ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 10 wp303.16.odt be reviewed and ultimately, the petition was disposed of on 9th September, 2014 holding it to be 'infructuous'.
10. The learned Counsel submits that though the Hon'ble Chief Justice is high functionary, in the Constitutional Scheme, he is also bound to follow the mandate of Articles 14 and 16 of the Constitution of India. In support of this proposition, the learned Counsel relies on the Judgment in the case of H. C. Puttaswamy and Others .vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Others reported in AIR 1991 SC 295.
11. The learned Counsel for the petitioners also relies on the following Judgments in support of the proposition of denial of right to promotion :
a) Food Corporation of India and Others .vs. Parashotam Das Bansal and Others reported in (2008) 5 SCC 100.
b) Union of India and another .vs. Hemraj Singh Chauhan and Others reported in (2010) 4 SCC 290.
c) Council of Scientific and Industrial Research and another vs. K.G.S. Bhatt and another reported in AIR 1989 SC 1972.
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d) State of Tripura and Others .vs. K.K.Roy
reported in AIR 2004 SC 1249.
12. The learned Counsel, therefore, submits that, it is in the interest of justice that this Court declares that entire Rule 29 of the Rules of 2000 is violative of Article 14 and direct the High Court on the Administrative Side to frame Rules in accordance with law.
13. Mr.A.S.Jaiswal, learned Senior Counsel for respondent nos.
1 to 3, on the contrary, began his submission, submitting that, as to how much percentage of promotion is to be provided for promotion to Group 'C' posts from Group 'D' posts is a matter which has to be decided on the basis of requirement of the Administration and this can be dealt with only by the High Court on its Administrative Side.
The learned Senior Counsel submits that, the High Court, sitting on its Judicial Side, will not have powers to direct on the Administrative Side to frame policy in a particular manner. The learned Senior Counsel further submits that the contention of the petitioners that there are no promotional avenues is itself without substance. The learned Senior Counsel submits that each of the case cited by the learned Counsel for the petitioners arose out of stagnation. It is, ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 12 wp303.16.odt however, submitted that, in the present case, there is no stagnation.
The learned Senior Counsel pointed out two provisions. It is submitted that the Group 'D' category employees are entitled to be promoted as Deputy Librarian and Drivers in view of Rules 23 and 30 respectively of the Rules of 2000. The learned Senior Counsel further submits that, even in Group 'D' category, there is no stagnation and an employee from the post of Peon can be promoted to the higher post in Class 'D' category. The learned Senior Counsel, therefore, submits that the present petition is de hors substance and is liable to be dismissed.
14. The learned Government Pleader though admitted that the State Government has provided for 25 % reservation in Group 'C' category post to be promoted from Group 'D' category post and has subsequently increased the said reservation to 50 %, she submits that the State Government has no role to play insofar as the employee of the staff of High Court is concerned, inasmuch as the matter is within the exclusive domain of the Hon'ble Chief Justice under Article 229 of the Constitution of India.
15. For appreciating the rival submissions, it would be relevant to refer to Rule 229 of the Constitution of India, which is as under :
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 :::13 wp303.16.odt " 229. Officers and servants and the expenses of High Courts :
(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court. save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
16. It could thus be seen that the appointment of the Officers and Servants of a High Court are required to be made by the Hon'ble Chief Justice of the Court or such other Judge or Officer of the Court as the Hon'ble Chief Justice may direct. However, proviso thereto provides that the Hon'ble Governor of the State may by rule require that, in such cases as may be specified in the rule, no person not ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 14 wp303.16.odt already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. Clause (2) thereof provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of Officers and Servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purpose. Proviso thereto requires that the rules made under the clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. Clause (3) thereof provides that the administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the Officers and Servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.
17. It cannot be in dispute that the Hon'ble Chief Justice has been given entire control insofar as the appointment of the Officers and Servants of the High Court are concerned. Undisputedly, this has been done with an avowed principle enshrined in the Constitution of ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 15 wp303.16.odt separation of three wings of Democracy i.e. Legislature, Executive and Judiciary. Purpose of Article 229 of the Constitution of India is to prevent any unwarranted interference by the Executive in the administration of the High Court.
18. It will also be appropriate to refer to Rule 29 of the Bombay High Court Appellate Side Rules, 2000, which reads thus :
'29.Clerks, Section Writer/Typist.
(a). Eligibility - The post shall be filled in from amongst the candidates who, -
(i) are not less than 18 years and not more than 30 years age.
(ii) possess University Degree, preference being given to the holders of Degree in Law;
(iii) possess speed at least of 40 w.p.m. in English Typing.
(iv) possess knowledge in operating computer as may be prescribed from time to time.
(b) The Registrar may, with prior approval of the Chief Justice, promote any driver or employee from Group 'D' posts, who has put in minimum 3 years of continuous service, to the post of Clerk/Section writer subject to fulfillment of the eligibility conditions mentioned in clause (a) except sub-
clause (i) above.
However, the driver and employees from Group 'D' posts, who was recruited prior to coming into force of these rules and are having minimum qualification for the post of Clerk/Section writer as per the Rules of 1994, will be ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 16 wp303.16.odt brought within the zone of consideration for the provisional promotion to the post of Clerk/Section Writer even though they may not be having the minimum qualification as per the present Rules on the condition that they shall acquire the minimum educational qualification within a period of five academic years and the minimum qualification in respect of typing and knowledge of operating computer within a period of one academic year failing which they will be reverted to their original post:
Provided that the total number of such promotees shall not exceed 10% of the vacancies in any year recruitment. "
19. Perusal of the Rule shows that it provides for eligibility.
The eligibility provided is that a person to be appointed shall not be less than 18 years and not more than 30 years of age. He shall possess University degree, preference being given to the holder of degree in law. He shall also possess speed atleast of 40 w.p.m. in English typing and he shall possess knowledge of operating computer as may be prescribed from time to time. Clause (b) of Rule 29 provides that the Registrar may, with prior approval of the Chief Justice, promote any driver or employee from Group 'D' posts, who has put in minimum 3 years of continuous service, to the post of Clerk/Section writer subject to fulfillment of the eligibility conditions mentioned in clause (a) except sub-clause (i) above. The second paragraph of said clause (b) of Rule 29 would not be applicable to the facts of the present case as ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 :::
17 wp303.16.odt none of the petitioners is recruited prior to the said rules coming into effect.
20. The proviso to the said Rule provides that total number of such promotions shall not exceed 10 % of the vacancies in any year of recruitment. By an amendment on 21st March, 2016, the requirement of age limit has been done away and as such, the challenge in that regard would not survive any more.
21. The Apex Court, way back in the year 1989 in the case of Council of Scientific and Industrial Research and another (cited supra), had an occasion to consider the case of the respondent therein who was a Civil Engineer and who was not considered for any kind of promotion for nearly two decades. The employee had approached the learned Administrative Tribunal. The learned Tribunal, considering one of the bye-laws which did not apply to the employees like the petitioners therein, directed the Council of Scientific and Industrial Research to give benefit of that bye-law, insofar as promotion is concerned, to the applicant before the learned Tribunal. The same was challenged by the said Council before the Apex Court. The Apex Court in clear terms held that the said bye-law was not applicable to ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 18 wp303.16.odt the case of respondent therein inasmuch as the category in which the respondent was employee stood excluded from the purview of said bye-law. However, even after observing thus, the Apex Court finds thus :
"9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent-1. By pointing out the error that crept into the decision of the Tribunal, we need not to lake to its logical end which will defeat justice. Respondent-1 is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma in Engineering, he later passed Bachelor of Engineering (B.E.) and also acquired M. Tech. degree and one more diploma (D.P.M.). He was however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, abroitly, an organisation public or private does not 'hire a hand' but engages or employees a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See :
Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both no managerial employees and their supervisors". (See : Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man-power development, management ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 :::
19 wp303.16.odt development etc. which is not related to a system of promotions. (See : Management of Personnel in Indian Enterprises by Prof. N.N. Chatterjee, Chap. 12 p. 128). The appellant appears to have overlooked this basic requirement of management so far as respondent-1 was concerned till N.R. & A.S. were introduced."
22. It could thus be seen that the Apex Court has in clear terms observed that a person is recruited by an organisation not just for a job, but for a whole career. It has been further observed that one must, therefore, be given an opportunity to advance. It has been held that this is the oldest and most important feature of the free enterprise system. Their Lordships of the Supreme Court after observing various Authorities on the subject of Personnel Management came to the conclusion that there cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system of promotions. After observing this, the Special Leave Petition filed by the said Council came to be dismissed.
23. Immediately, in the next year, Their Lordships in the case of Dr. Ms. O.Z.Hussain (cited supra) had an occasion to consider the case of Scientists in the Ministry of Health and Family Welfare who ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 20 wp303.16.odt were denied promotional benefits and were subjected to large scale stagnation. It will be relevant to refer to paragraph nos. 7 and 8 of the said Judgment. They are thus :
"7.This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate."
"8. This Writ Petition is allowed and the following directions are issued:
1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services;
2. These 'A' Group scientists shall be entitled to book allowance, ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 :::
21 wp303.16.odt higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. 1.4.1989.
3. Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.
24. Their Lordships thus observed that the provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. It has been held that promotion is a normal incidence of service. The Court has further observed that when the similarly placed Officers in other Ministries were entitled to get promotion then why the employees or Officers in the Ministry of Health Department should be deprived of such benefit.
As such, Their Lordships directed the Ministry of Health and Family Welfare of Union of India to frame a set of appropriate Rules, inter alia, providing suitable promotional avenues for the Group 'A' Scientists in the non-medical wing of the establishment of Director General of Health Services within a period of four months.
25. In the case of State of Tripura and Others (cited supra), the State had failed to take steps for providing promotional avenues and as such, the employee therein approached before the High Court.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 :::22 wp303.16.odt The High Court allowed the petition and directed for providing 'graded scale' to the respondent therein. Challeging the same, the State of Tripura approached the Hon'ble Supreme Court contending therein that when the employees had accepted the appointment knowing that, under the Service Condition, there was no avenue of promotion, they were not entitled to seek more than what was there in the rules.
Rejecting this contention, the Hon'ble Apex Court observed thus:
" It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State."
26. In the case of Food Corporation of India and Others (cited supra), Their Lordships were considering the case of respondents in the Food Corporation of India who were engineering ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 23 wp303.16.odt staff in the appellant/Corporation and who were not granted promotional avenues. The High Court of Calcutta held in favour of the employees. The Food Corporation of India challenged the same before the Hon'ble Apex Court. While dismissing the appeal filed by the State Government, Their Lordships observed thus :
9. The appellant is a "State" within the meaning of Article 12 of the Constitution of India. An employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service."
"12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the superior Court will have the jurisdiction to issue necessary direction."
"13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country."
27. It could thus be seen that Their Lordships in unequivocal terms held that though an employee of a State has no fundamental right of promotion, he has a right to be considered therefor. It has ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 24 wp303.16.odt been held that what is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. Their Lordships further held that if there is no channel of promotion in respect of a particular group of Officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a Scheme should be formulated, but the Courts have jurisdiction to issue directions to make a Scheme for providing promotional avenues.
28. Perusal of Rule 29 would reveal that there is not even a right to an employee of class 'D' category to be considered for promotion. Perusal of the Rule would reveal that an absolute discretion is vested with the Registrar. It is at the sweet will of the Registrar as to whether to promote any driver or employee from Group 'D" post who has put in minimum three years of continuous service to the post of Clerks, Section Writer/Typist subject to the fulfilment of eligibility as mentioned in clause (a) of Rule 29 of the Rules of 2000. The only requirement is that there has to be a prior approval of the Hon'ble Chief Justice.
29. As such, if the Registrar does not decide to put up ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 25 wp303.16.odt anybody's case before the Hon'ble Chief Justice, then no such employee would be entitled to be considered for promotion.
Similarly, if the Registrar finds that a candidate at Serial No.100 is entitled to be promoted then, irrespective of the fact that there may be various candidates between Serial Nos. 1 to 99 who possess requisite qualification, it will be at his will to put up the case of the candidate at Serial No.100. We, therefore, find that the Rule vests absolute discretion in the hands of the Registrar. Nodoubt that the Registrar of Courts are senior Judicial Officers. We are sure that there might not have been any occasion or rather there would be no occasion in future also where the discretion, has either been exercised or would be exercised in an arbitrary manner.
30. However, in our Constitutional Scheme, merely because there is no possibility of the high functionary abusing or misusing powers, it cannot be a ground for validating the Rule, if such a Rule provides absolute unchannelled and unguided discretion in such Authority.
31. We are further of the view that providing slab of 10% of the vacancies in any year of recruitment is also violative of Article 14.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 :::26 wp303.16.odt When the State Government had initially provided for 25 % of reservation for promotion from Group "D" category to Group "C"
category and has now increased it to 50%, we see no reason as to why the similar provision could not have been made in the said Rules.
32. Though it is contended by the learned Senior Counsel on behalf of High Court Administration that the employees of the High Court cannot be equated with the employees of the other State Government departments, we are unable to accept the said argument.
We make it clear that, in the present case, we are considering the aspect of promotion only to the post of Clerks, Section Writer/Typist etc. and not to the posts of Registrars, Deputy Registrars or Assistant Registrars, in case of whom one may understand that a specialized knowledge of functioning of Court is a relevant factor. We fail to understand as to what is the difference in the duties assigned to the Clerks, Section Writers/Typists of the High Court as against those of Government Pleader Officer, who are working in the same building.
We further fail to understand as to why the Group 'D' employees in the High Court are denied right to promotion; whereas the employees of the Government Pleader's Office, situated in the High Court premises in the same building, are entitled to the benefit of said ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 27 wp303.16.odt Government Resolution, which initially provided for 25% reservation and now provides for 50 % reservation.
33. We may gainfully refer to the observations of Their Lordships of the Apex Court in the case of H.C.Puttaswamy and Others (cited supra). In the said case, the then Chief Justice of the High Court, who was the Competent Authority, had appointed as many as 398 candidates, as against 40 posts advertised. The same came to be challenged on Judicial Side before the High Court of Karnataka. The Division Bench of the High Court of Karnataka allowed the petitions and set aside the appointments. The same was challenged before the Hon'ble Supreme Court. Their Lordships of the Apex Court observed thus :
" The Judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 28 wp303.16.odt they are not trivial. They constitute, in our opinion, a substantial part of the mosaic which represents the ordinary man's perception of what the Courts are and how the judges go about their work. The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by the Chief Justice. The object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed for the constitutional ethoes and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting. "
34. It could thus be seen that Their Lordships in unequivocal terms have held that the object of Article 229 was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. Their Lordships ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 29 wp303.16.odt further held that the High Court has a duty to ensure that, in carrying out the administrative functions, the Chief Justice is actuated by the same principles and values as those of the Court he is serving.
35. Undisputedly, the High Court is also a 'State' within the meaning of Article 12 of the Constitution of India. While discharging the Administrative duties including framing of Rules with regard to recruitment, reservation etc., the High Court is also bound to follow the mandate of Articles 14 and 16 of the Constitution of India. When the Hon'ble Apex Court in unequivocal terms holds that the right to be considered for promotion is a fundamental right and the right providing for promotional avenues is also a fundamental right, we are of the considered view that even the High Court is bound to follow the said mandate.
36. Taking into consideration this aspect of the matter, we find that Rule (b) of Rule 29 of the Rules of 2000, which bestows unfettered discretion on the Registrar of the High Court to pick and choose any one of the persons for promotion and which provides for ceiling of 10%, that too, for vacancies in any recruitment, is violative of mandate of Articles 14 and 16 of the Constitution of India.
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37. We make it clear that we are not impressed with the argument advanced on behalf of the learned Counsel for the petitioners that the said Rule bestows unfettered discretion on the Hon'ble Chief Justice and therefore, it is liable to be set aside.
38. We find that, for the reasons we have recorded hereinabove, Clause (b) of the said Rule 29 is ultra vires Articles 14 and 16 of the Constitution of India. The Rule does not provide an opportunity to the similarly circumstanced candidates in Group 'D' category to compete for promotion and is also capable of being interpreted in the manner wherein the less meritorious candidate can be preferred over the more meritorious candidate. We find that the Rule as it stands does not provide for the procedure and manner in which promotion should be granted to the employees from Group 'D' category to Group 'C' category and it does not provide for ensuring seniority and merit while granting promotion.
39. It is further to be noted that, while providing for promotion to the employees from Group 'D' category to Group 'C' category, nobody says that non-meritorious candidates should be promoted. It is only a promotional avenue which is to be made ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 31 wp303.16.odt available to the candidates who are already serving with the establishment.
40. Insofar as the contention of the learned Senior Counsel that there is no stagnation and there are promotional avenues available is concerned, we find that the said argument is also without substance. The promotional avenues that the learned Counsel points out are from the posts of Peons to the posts of Naiks and from the posts of Naiks to the posts of Chobdars and at the most, to the posts of Drivers. Nodoubt, that the learned Senior Counsel pointed out Rule 23 of the Rules of 2000, which provides that such a candidate can also be promoted to the post of Assistant Librarian. We fail to understand as to why, if a candidate from the post of Peon can be considered for the post of Assistant Librarian which, undisputedly, carries more responsibility than the posts of Clerks, Section Writers/Typists, then why such employees should not be provided adequate reservation for promotion to the said posts.
41. If the contention of the learned Senior Counsel is to be accepted, then a Group 'D' employee who is also possessing degree in Law along with other qualification like English typing, knowledge of ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 32 wp303.16.odt operation of Computer etc. will have to retire as a 'Chobdar' only.
42. We cannot lose sight of the ground realities. The persons who were working as Clerks, Section Writers on the establishment of this Court or the District Courts, on getting opportunities, have been selected as Judicial Magistrates, First Class and are discharging their duties in an efficient manner. It is, thus clear that, if an opportunity is made available to the employee to better his prospects, he can always perform better.
43. In that view of the matter, we find that Clause (b) of Rule 29 of the Rules of 2000, as it stands today, is violative of Articles 14 and 16 of the Constitution of India.
44. We are aware that we cannot direct the employer to frame a Rule in a particular manner. However, as held by the Hon'ble Apex Court in the case of Food Corporation of India and Others (cited supra), we can always direct the employer to frame a Scheme/Rules which will provide for the avenues to be considered for promotion.
We can also direct the employer to conform to the mandate of Articles 14 and 16 of the Constitution of India. Though we are not directing ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 33 wp303.16.odt the High Court on the Administrative Side to follow the Rules of the State Government wherein they have initially provided for 25 % of reservation of the total cadre strength and now have increased the same to 50%; we are sure that, in the light of the observations made by us hereinabove, that there is no difference in the nature of duties performed by the Clerks, Section Writers/Typists etc. of the High Court as well as the other departments of the State Government, the rule making Authority will certainly take the same into consideration.
45. We, therefore, allow the present petition.
a) Clause (b) of Rule 29 of the Rules of 2000 is quashed and set aside.
b) The High Court on the Administrative Side is requested to frame Rules, therein providing for adequate reservation in the total cadre strength of Group 'C' posts for promotion to the employees in Group 'D' posts, in the light of the observations made by us hereinabove. The said Rules shall be framed within a period of three months from today.
c) It is further directed that the stay granted by this Court to the process of appointments to the posts of Group 'C' by order ::: Uploaded on - 07/05/2016 ::: Downloaded on - 08/05/2016 00:00:13 ::: 34 wp303.16.odt dt.18.1.2016 shall continue to operate till the Rules are framed by the High Court on the Administrative Side.
d) Needless to state that, after the Rules are framed, respondent nos. 1 and 2 shall be free to make appointments to the posts reserved for direct recruits and promotees as per the said Rules.
46. At this stage, Mr.A.S.Jaiswal, learned Senior Counsel requests for grant of stay to this order for a period of twelve weeks from today. However, in the light of the view we have taken, we are not inclined to consider the said request. Hence, the same is rejected.
JUDGE JUDGE
jaiswal
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