Rajasthan High Court - Jaipur
Vishnu Sharma And Ors vs The Secretary To His Excellence And Ors on 22 September, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8497/2020
1. Rajnikant S/o Late Shri Raghuvar Sahai, Aged About 38
Years, R/o Plot No. C-71, Bajaj Nagar, Jaipur
2. Seema Pal W/o Shri Bhola Nath D/o Shri D.N. Pal, Aged
About 40 Years, R/o Plot No. 177, Shyam Nagar Vishtar,
Girdharipura, Post Office, Vaishali Nagar, Jaipur
3. Gulab Singh S/o Shri Madan Singh Sisodia, Aged About
39 Years, R/o Plot No. 47, Vivek Vihar, Gandhi Path West,
Lalarpura, Near 200 Feet Bypass, Narayan Property,
Vaishali Nagar, Jaipur
----Petitioners
Versus
1. The Secretary To His Excellency The Governor Of
Rajasthan, Governors Secretariat, Raj Bhawan, Jaipur
2. State Of Rajasthan, Through Its Secretary, Department Of
Personnel And Administration, Govt. Secretariat, Jaipur
3. Deputy Secretary, Department Of Administrative Refrom
(Group-3), Government Of Rajasthan, Secretariat, Jaipur
4. Vishnu Sharma S/o Shri Bhanwar Lal Sharma, Aged
About 30 Years, R/o Old Telephone Exchange, Behind Ice
Factory, Vivekanand Colony, Deoli, Tonk (Raj)
5. Vinod Saini S/o Shri Mishrilal Saini, Aged About 39 Years,
R/o Plot No. B-12, Shiv Parvati Nagar, Behind Swarnpath,
Mansarover, Jaipur
6. Rajesh Sharma S/o Shri Arjun Lal Sharma, Aged About 36
Years, R/o Plot No. 40, Shanti Vihar Colony, Tonk Road,
Sanganer, Jaipur
7. Aakash Agrawal S/o Shri Damodar Prasad Agarwal, Aged
About 29 Years, R/o Plot No. 322, Shivaji Nagar, Shastri
Nagar, Jaipur
8. Neha Sharma W/o Vishnu Sharma, Aged About 28 Years,
R/o Plot No. 235, Joshi Farm House, Niwaru, Jhotwara,
Jaipur
9. Rajendra Prasad S/o Shri Suraj Bhan, Aged About 31
Years, R/o Plot No. 56, Shiva Nagar, 5Th Macheda,
Murlipura, Jaipur
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10. Ashok Kumar Raiger S/o Shri Bhagwan Shai Raiger, Aged
About 35 Years, R/o House No. 47, Mansinghpura, Tonk
Road, Jaipur
----Respondents
Connected With
S.B. Civil Writ Petition No. 15192/2017
1. Vishnu Sharma S/o Shri Bhanwar Lal Sharma, aged about
27 years, R/o Old Telephone Exchange, Behind Ice
Factory, Vivekanand Colony, Deoli, Tonk Raj.
2. Vinod Saini S/o Shri Mishri Lal Saini, aged about 37
years, R/o Plot No. B-12, Shiv Parvati Nagar, Behind
Swarnpath, Mansarovar, Jaipur
3. Rajesh Sharma S/o Shri Arjun Lal Sharma, aged about 33
years, R/o Plot No. 40, Shanti Vihar Colony, Tonk Road,
Sanganer, Jaipur
4. Aakash Agrawal S/o Shri Damodar Prasad Agrawal, aged
about 27 years, R/o Plot No. 322, Shivaji Nagar, Shastri
Nagar, Jaipur
5. Neha Sharma W/o Vishnu Sharma, aged about 25 years,
R/o Plot No. 235, Joshi Farm House, Niwaru, Jhotwara,
Jaipur
6. Rajendra Prasad S/o Shri Suraj Bhan, aged about 29
years, R/o Plot No. 56, Shiva Nagar, 5Th Macheda,
Murlipura, Jaipur
7. Ashok Kumar Raiger S/o Shri Bhagwan Shai Raiger, aged
about 33 years, R/o House No. 47, Mansinghpura, Tonk
Road, Jaipur
----Petitioners
Versus
1. The Secretary To His Excellency The Governor Of
Rajasthan, Governors Secretariat, Raj Bhawan, Jaipur
2. The Secretary, Department Of Personnel, Government
Secretariat, Jaipur.
3. Shri Rajkumar Swarnkar
4. Smt. Seema Devi Pal
5. Shri Rajnikant
6. Shri Rajkumar Pareek
7. Shri Gulab Singh,
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Private Respondents No. 3 to 7 are presently working on
the Post of L.D.D., Governor House, Civil Lines, Jaipur
Represented Through Secretary To His Excellency The
Governor
----Respondents
S.B. Civil Writ Petition No. 10057/2020
1. Rajkumar Pareek S/o Shri Madan Lal Pareek, Aged About
39 Years, R/o A-240, Jda Staff Colony, Opposite Nri
Colony, Tilawala, Jagatpura, Jaipur.
2. Rajkumar Swarnkar S/o Shri Chandmal Swarnkar, Aged
About 42 Years, R/o E-7, Staff Quarters, Raj Bhawan
Campus, Civil Lines, Jaipur.
----Petitioners
Versus
1. The Secretary To His Excellency The Governor Of
Rajasthan, Governors Secretariat, Raj Bhawan, Jaipur.
2. State Of Rajasthan, Through Its Secretary, Department Of
Personnel And Administration, Govt. Secretariat, Jaipur.
3. Deputy Secretary, Department Of Administrative Reform
(Group-3), Government Of Rajasthan, Secretariat, Jaipur.
4. Vishnu Sharma S/o Shri Bhanwar Lal Sharma, Aged
About 30 Years, R/o Old Telephone Exchange, Behind Ice
Factory, Vivekanand Colony, Deoli, Tonk (Raj.)
5. Vinod Saini S/o Shri Mishrilal Saini, Aged About 39 Years,
R/o Plot No. B-12, Shiv Parvati Nagar, Behind Swarnpath,
Mansarover, Jaipur
6. Rajesh Sharma S/o Shri Arjun Lal Sharma, Aged About 36
Years, R/o Plot No. 40, Shanti Vihar Colony, Tonk Road,
Sanganer, Jaipur
7. Aakash Agrawal S/o Shri Damodar Prasad Agarwal, Aged
About 29 Years, R/o Plot No. 322, Shivaji Nagar, Shastri
Nagar, Jaipur
8. Neha Sharma W/o Vishnu Sharma, Aged About 28 Years,
R/o Plot No. 235, Joshi Farm House, Niwaru, Jhotwara,
Jaipur.
9. Rajendra Prasad S/o Shri Suraj Bhan, Aged About 31
Years, R/o Plot No. 56, Shiva Nagar, 5Th Macheda,
Murlipura, Jaipur.
10. Ashok Kumar Raiger S/o Shri Bhagwan Shai Raiger, Aged
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About 35 Years, R/o House No. 47, Mansinghpura, Tonk
Road, Jaipur.
----Respondents
For Petitioner(s) : Mr. R.N. Mathur, Sr. Adv. assisted by
Mr. Shovit Jhajharia &
Mr. Hemant Singh Yadav (SB CWP
15192/2017)
Mr. Raghu Nandan Sharma
Mr. Harsh Goswami
Mr. Abhinav Shrivastava
For Respondent(s) : Mr. M.S. Singhvi, AG assisted by
Mr. Darsh Pareek
Mr. A.K. Sharma, Sr. Adv. assisted by
Mr. Prateek Khandelwal
Mr. Virendra Lodha, Sr. Adv. with
Mr. Rachit Sharma
Mr. Jai Lodha
Mr. Ganesh Meena, AAG with
Mr. Rupender Singh Rathore
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
22/09/2022
Since, these writ petitions share common facts and questions
of law, they have been heard together and are being decided vide
this common order.
In S.B. Civil Writ Petition No.8497/2020:Rajanikant & Ors.
vs. The Secretary to His Excellency, the Governor of Rajasthan &
Ors. and S.B. Civil Writ Petition No.10057/2020:Rajkumar Pareek
& Anr. vs. The Secretary to His Excellency, the Governor of
Rajasthan & Ors., the petitioners were initially appointed as Class-
IV employees in the office of the Governor of Rajasthan and were
later on promoted as LDC after being granted relaxation in the
reservation quota for promotion. In S.B. Civil Writ Petition
No.15192/2017:Vishnu Sharma & Ors. vs. The Secretary to His
Excellency, the Governor of Rajasthan & Ors., the petitioners are
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direct recruitees on the post of LDC and were appointed in the
office of the Governor of Rajasthan.
The facts necessary for disposal of these writ petitions are
being referred from S.B. Civil Writ Petition No.8497/2020.
The facts in brief are that the petitioners were initially
appointed as Class-IV employees on various dates in the office of
the Governor of Rajasthan (for brevity-`the Governor'). A file was
initiated on 14.8.2012 with a note put up by the then Governor
which stated that two of the Class-IV employees in the Raj
Bhawan are graduates with Computer knowledge and have been
working as such for over 12 years and their promotion against
first vacancies available in the Governor Secretariat or residence
was intended whereupon, a letter dated 17.9.2012 was sent by
the Secretary to the Governor to the Principal Secretary,
Department of Personnel (DoP) for increasing one time promotion
quota from 15% to 33% on the post of LDC from Class-IV
employees by granting relaxation under the relevant Rules. A
reminder letter dated 8.10.2012 was again sent. Vide its letter
dated 12.10.2012, the Deputy Secretary, DoP sought clarification
from the Governor's office as to the Rules applicable for promotion
of Class-IV employees to LDC. In pursuance thereof, the Secretary
to the Governor clarified that services of the Class-IV employees
working at Governor Secretariat are governed by the Rules of
1970. Request to grant one time relaxation to increase promotion
quota was reiterated by the Secretary to the Governor vide its
letter dated 27.11.2012. The DoP vide its order dated 20.12.2012
conveyed that there was no provision for relaxation and extending
the quota from 15% to 33% for promotion under the Rules of
1970 and such amendment may affect other Service Rules also. It
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was stated therein that the Rules of 1970 were inapplicable on the
Governor Secretariat which was free to frame its own Rules or
issue orders whereupon, the Governor Secretariat, vide order
dated 29.1.2013 prescribed the Guidelines for promotion of
working class-IV employees to the post of LDC in the Raj Bhawan
(in short-`the Guidelines'). Vide these Guidelines, promotion
quota from Class-IV to LDC was prescribed as 33% of the
sanctioned strength subject to fulfilment of the eligibility criteria
as prescribed under Clause-2 of the Guidelines. The petitioners
were promoted as LDC on the recommendations of the
Departmental Promotion Committee vide order dated 7.2.2013.
The Rajasthan Public Service Commission, Ajmer (for brevity-`the
RPSC'), vide its advertisement dated 17.5.2011, invited
applications for appointment as LDC through LDC Combined
Competitive Examination-2011 under the Rules of 1970 and
Rajasthan Public Service Commission (Ministerial and Subordinate
Service) Rules and Regulations, 1999 (for brevity-`Rules and
Regulations, 1999') for Government Secretariat and RPSC office.
Vide corrigendum dated 14.9.2011, the RPSC increased the
advertised posts by providing therein that the appointment on the
vacant 1366 posts in the Subordinate Offices under the Rajasthan
Subordinate and Ministerial Service Rules, 1999 (for brevity-`the
Rules of 1999'), was also to be made under the advertisement
dated 17.5.2011. The private respondents no.4 to 10 (petitioners
in S.B. Civil Writ Petition No.15192/2017), who were recruited in
pursuance of the advertisement dated 17.5.2011, were allotted,
vide order dated 4.1.2013, for appointment in the Governor
Secretariat in pursuance whereof, five of them were appointed by
the Governor Secretariat as LDC vide order dated 12.3.2013 and
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rest two were appointed vide order dated 20.3.2013. Vide order
dated 3.7.2017, the Governor Secretariat issued provisional
seniority list of the Clerk Gr.II working as on 1.4.2017 inviting
objections thereof. Rejecting the objections raised by the direct
recruitees to the provisional seniority list, the final seniority list
was published on 11.8.2017 whereby, they were placed below the
petitioners. This final seniority list along with the guidelines issued
by the Governor office vide order dated 29.1.2013 is challenged
by the direct recruitees in the writ petition no.15192/2017. In
their initial reply to the aforesaid writ petition, the official
respondents admitted that since the Rules of 1970 are inapplicable
on the Governor Secretariat, it was entitled to frame its own Rules
to govern the service conditions of the staff. Subject to the
decision in the writ petition no.15192/2017, the petitioners were
further promoted as Clerk Gr.I on the recommendations of the
Departmental Promotion Committee by the Governor Secretariat
vide order dated 16.1.2019. Vide impugned order dated
30.7.2020, the Governor's Secretariat has, reckoning the order
dated 29.1.2013 as bad in law, annulled and declared it void with
consequences to follow, which would be reversal of the petitioners
to Class-IV employees. Legality and validity of the order dated
30.7.2020 has been assailed primarily on the ground that since
the Rules of 1970 are inapplicable on the Governor Secretariat,
the Government has, vide its letter dated 20.12.2012, conveyed
to the Governor's office to frame its own Rules to govern the
service conditions of its staff in pursuance whereof, the guidelines
were issued for promotion of Class IV employees to the post of
LDC vide order dated 29.1.2013 which did not suffer from any
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infirmity or illegality. Therefore, it is prayed in the writ petition
that the order dated 30.7.2020 be quashed and set aside.
In its reply, the respondent no.1 has stated that the State
Government has, vide its letter dated 20.12.2012, conveyed that
relaxation in promotion quota was impermissible under the Rules
of 1970 and such relaxation would also affect the other Service
Rules. It is averred that the order dated 29.1.2013 is in the nature
of executive instructions which could not override the statutory
provisions and could not amend or supersede the statutory rules
which do not provide for any relaxation in the promotion quota
and therefore, the relaxation under the order dated 29.1.2013 is
dehors the Service Rules which put a cap of 15% reservation in
the promotion quota. It is further averred that if any amendment
is to be made out in the Service Rules, it is to be proposed by the
administrative department and thereupon, sent to the DoP which,
in turn, after evaluation, sends it to the Law Department and, if
the Cabinet and thereafter, if the Governor approves the same,
the DoP issues a formal order for the amendment of the Rules;
whereas, in the instant case, no such procedure has been followed
before issuing the order dated 29.1.2013 which, undoubtedly,
amends the Service Rules.
The private respondents have, in their reply to the writ
petition, stated that increase in the quota from 15% to 33% vide
order dated 29.1.2013 was contrary to all the Service Rules, i.e.,
Rules of 1970, the Rules of 1999 as also the Rajasthan Legislative
Assembly Secretariat (Recruitment and Conditions of Service)
Rules 1992 and the Rules and Regulations 1999 whereunder, a
capping of 15% of promotional quota is provided. It is averred
that all the instrumentalities of the State including the Governor
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Secretariat are subject to the Rule of law and any administrative
order contrary to the Rules applicable, is void ab initio. It is stated
that in the flurry of letters/reminders issued by the Governor's
office, the DoP, expressing its inability to relax the Rules
enhancing the promotion quota, stated that the Governor office
was free to frame its own Rules which could not have been
interpreted in the manner that promotion quota could be
enhanced by it dehors the statutory provisions.
The petitioners, in rejoinder to the reply filed by the
respondent no.1, submitted that they were not only promoted as
LDC vide order dated 7.2.2013; but, they have further been
promoted as Clerk Gr.I vide order dated 16.1.2019 and it would
not be in the interest of justice to revert them back to the post of
Class-IV at such belated stage. It is averred that before issuing
the order dated 30.7.2020, which takes away their substantial
rights, no opportunity of hearing was afforded to them.
Shri Raghu Nandan Sharma, the learned counsel for the
petitioners in S.B. Civil Writ Petition No.8497/2020, submitted that
the Rules of 1970 are inapplicable on the Governor's Secretariat
as is evident from the initial reply filed by the official respondents
in the writ petition no.15192/2017 as also from the other material
on record such as the letter dated 20.12.2012 issued by the DoP.
Elaborating his submission and drawing attention of this Court
towards the order dated 30.7.2020 issued by the Governor's
Secretariat, learned counsel submitted that it is categorically
mentioned therein that the Rules of 1970 are "practiced" in
Governor's Secretariat and, therefore, it can safely be assumed
that the same have not been adopted. He submitted that in view
thereof, the DoP vide its letter dated 20.12.2012 conveyed to the
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Governor's office that it was free to frame its own Rules/guidelines
granting relaxation in the promotion quota. He argued that the
DoP was competent authority to clarify the aforesaid position in
view of Rule 37 of the Rules of 1970 which provides that if any
doubt arises relating to the application and scope of these Rules, it
shall be referred to the Government in the Department of
Personnel whose decision shall be final. Learned counsel in this
regard also relied upon the letter dated 2.7.2019 issued by the
Council of Ministers' Secretariat to the Governor's Secretariat
reiterating that the DoP has already conveyed that the Rules
framed by the DoP were applicable only on the Government
Department and the Governor's Secretariat was free to grant
relaxation on its own. He also referred to a letter dated 2.9.2021
(Annexure-A/2 in S.B. Civil Writ Petition No.8497/2020) issued by
the Governor's Secretariat stating therein that a draft of the Rules
for the officers/employees working in the Governor's Secretariat
and household governing their service conditions has been
submitted with the DoP, State Government which was to be
submitted to the Council of Ministers for approval. Referring to the
various orders issued by the Governor's Secretariat from time to
time such as, dated 17.2.2001 prescribing guidelines for
recruitment on the post of Telephone Operators in Raj Bhawan,
dated 28.6.2002 prescribing the guidelines for recruitment on the
post of Drivers in Raj Bhawan, dated 10.12.2002 prescribing the
guidelines for recruitment on the post of House Keeper in Raj
Bhawan, dated 7.2.2004 prescribing the guidelines for recruitment
on the post of Washer-man in Raj Bhawan and dated
24/28.1.2013 prescribing the guidelines for recruitment on the
post of Drivers in Raj Bhawan, learned counsel submitted that in
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past also, the Governor Secretariat has been prescribing
guidelines governing service conditions of its staff. Shri Sharma
submitted that in the aforesaid circumstances, there was no
justification in withdrawing the guidelines framed vide order dated
29.1.2013 on the premise that it was issued without jurisdiction.
Learned counsel further submitted that impugned order
dated 30.7.2020 has been passed with retrospective effect
withdrawing the right vested in them with efflux of time without
giving any opportunity of hearing and hence, is, therefore, null
and void. Learned counsel submitted that in any case, since the
petitioners were promoted without any fault/misrepresentation on
their part and they have served on the promoted post for a
considerable period of time, they cannot be and should not be
demoted. He, in support of his submissions, relied upon following
judgements:
1) Dr. M.S. Mudhol & Anr Vs. S.D Halegkar & Ors, (1993)
3 SCC 591;
2) Hargovind Pant v. Dr.Raghukul Tilak & Ors.-(1979) 3
SCC 458;
3) Chandigarh Administration through the Director Public
Instructions (Colleges), Chandigarh vs. Usha Kheterpal
Waie & Ors.-(2011) 9 SCC 645;
4) Lal Mohammad vs. State of Rajasthan & Anr.-(2005) 4
RLW (Raj.) 2968.
Shri A.K. Sharma, learned senior counsel for the private
respondents in S.B. Civil Writ Petition No.15192/2017, drawing
attention of this Court towards the prayer made therein,
submitted that no relief has been sought to quash and set aside
the promotion order dated 12.3.2013. He submitted that initially
the official respondents have submitted reply supporting their
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case; but, it was withdrawn later on without any authority of law.
He submitted that vide order dated 12.3.2013, the Government
`allotted' the candidates to the Raj Bhawan for appointment as
LDC, rather than recommending them for appointment as is done
in the offices subordinate to the Government. Learned senior
counsel submitted that the guidelines dated 29.1.2013 prescribe
the same eligibility criteria for promotion of Class-IV employees to
LDC as were prescribed by the RPSC for direct recruitment on the
post of LDC vide its advertisement dated 17.5.2011.
Learned senior counsel submitted that the Governors
(Emoluments, Allowances and Privileges) Act, 1982 and Governors
(Allowances and Privileges) Rules, 1987 provide that the Governor
is authorised to frame its own Rules to govern the service
conditions of the staff working in the Governor's Secretariat. He,
in this regard, referred to the provisions of Sections 5, 6, 10 and
13 of the Act of 1982 and Rules 4 and 5 of the Rules of 1987.
Learned senior counsel submitted that the employees working in
the Governor's office are governed neither by the Rules of 1970,
nor, by the Rules of 1999. He submitted that the DoP itself has
clarified on various occasions that the Rules of 1970 are
inapplicable on the Governor's office. Referring to Rule 2(i) of the
Rules of 1999, learned senior counsel submitted that these Rules
apply to the offices under control of the Government and the
Governor's office not being under control of the Government,
these Rules have no applicability. He, inviting attention of this
Court towards the provisions of Article 158 read with Second
Schedule and Article 163 of the Constitution, submits that the
Governor enjoys a very high constitutional status and is
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empowered to lay down service conditions of the staff working in
its Secretariat/household.
Shri A.K. Sharma, learned senior counsel, defending the
order dated 29.1.2013, submitted that in absence of statutory
Rules governing the service condition of its staff, the
guidelines/administrative instructions could have been issued by
the Governor. He submitted that the Governor has taken a
conscious decision after considering the entire material on record
as is apparent from the note sheets no.266 and 270 of the
Governor's Secretariat, Rajasthan available on page 65 in the file
of S.B. Civil Writ Petition No.15192/2017. The learned senior
counsel contended that the respondents were promoted as LDC as
they possessed the requisite eligibility as per the guidelines dated
29.1.2013.
Learned senior counsel canvassed that since the private
respondents were not promoted on account of any
misrepresentation or fraud on their part, they could not be
demoted. He also relied upon a judgement of the Hon'ble
Supreme Court of India in case of Dr. M.S. Mudhol (supra) in
support of his submission.
Shri Mahendra Singh Singhvi, learned Advocate General,
inviting attention of this Court towards the provisions of Articles
154, 162, 163 & 166 of the Indian Constitution, asserted that the
Governor is the Executive Head of the State and, therefore, the
Governor's Secretariat is a subordinate office under the control of
the State Government and is, therefore, amenable to the Rules of
1999 which defines "subordinate office" as under:
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"Rule 2(i) "Subordinate office" means any office under the
control of Government other than the Secretariat or office of
the State Legislature or High Court and the Courts
subordinate there to or Public Service Commission."
Learned AG submitted that the guidelines dated 29.1.2013,
being contrary to the Rules of 1999 which puts a cap of 15% on
promotion quota from class-IV employees to LDC, are void ab
initio. He further submitted that guidelines have also been issued
in violation of Rules of Business framed by the Governor under
clauses (2) and (3) of Article 166 of the Constitution of India, Rule
31 whereof, provides that the matters pertaining to the Governor's
personal establishment and the Governor's house shall be
submitted to the Chief Minister before the issuance of orders. He
submitted that even otherwise also, it is a well established legal
principle that administrative orders cannot run against the
statutory Rules.
He submitted that the DoP's communication that Rules of
1970 are inapplicable to the Governor's Secretariat, is of no
consequence as the source of power is derived from the Rules of
1999. Elaborating his submissions, learned AG submitted that
mere mentioning of a wrong provision or no provision in the order
does not invalidate it if the power can be traced to a valid
statutory provision. He, in support of his submissions, placed
reliance upon a judgment of Hon'ble Supreme Court of India in the
case of State of Gujarat & Anr. vs. Justice R.A. Mehta (Retired) &
Ors.-(2013) 3 SCC 1 and a judgment of this Court in the case of
Bahujan Samaj Party vs. Hon'ble Speaker, S.B. Civil Writ Petition
No.8056/2020 decided on 24.8.2020.
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Learned AG submitted that wherever the Constitution
required a separate and independent Secretarial service to any
constitutional authority, appropriate provisions have been made in
it. He, in this regard, referred to Article 187 which lays down
provisions for Secretariat of State Legislature, Article 229 which
provides for service conditions of the Officers and Servants of a
High Court and Article 318 of the Constitution which provides for
power to make Regulations as to conditions of service of members
and staff of the Union Commission or the State Commission.
Learned AG submitted that there is no independent provision
under the Constitution of India providing for service conditions for
the Governor's Secretariat inasmuch as the Governor being
Executive Head of the State Government, it is also a part of the
State Government and is governed by the Rules framed in this
regard.
With regard to contention of the learned counsels for the
promotee employees that in its initial reply to S.B. Civil Writ
Petition No.15192/2017, the State Government has admitted that
the Rules of 1970 are inapplicable on the Governor's Secretariat
and the Governor was free to frame its own Rules, learned
Advocate General asserted that there cannot be any estoppel
against the law. Reliance, in this regard, has been made to the
following judgement:
"State of Rajasthan & Anr. Vs. Surendra Mohnot-(2014) 14
SCC 77."
Shri Singhvi submitted that since the guidelines dated
29.1.2013 are void ab initio, the promotee employees did not
have any right to claim any benefit thereunder and the principles
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of natural justice were not required to be followed before setting
aside the same. He, in this regard, placed reliance upon the
following judgements:
1) Ashok Kumar Sonkar vs. Union of India & Ors.-(2007)
4 SCC 54;
2) Bannari Amman Sugars Ltd. vs. CTO-(2005) 1 SCC
625;
3) Aligarh Muslim University vs. Mansoor Ali Khan-(2000)
1 SCC 625.
Lastly, Shri Singhvi canvassed that from the material on
record, it is apparent that whole exercise of relaxation was
undertaken to benefit only a few, otherwise, there were other
Class IV employees, at the relevant time, eligible and senior to the
petitioners for promotion as LDC. He would submit that even
otherwise also, this Court would not like to issue any writ which
may tantamount to perpetuate illegality. He submitted that the
guidelines dated 29.1.2013 being void ab initio, even if the order
dated 30.7.2020 results into withdrawing the benefit of promotion
without affording an opportunity of hearing to the promotee
employees, this Court should not set it aside as it would amount
to perpetuate illegality. He, in this regard, placed reliance upon
following judgements:
1) Mohd. Swalleh vs. IIIrd ADJ, AIR 1988 SC 94
2) Jagan Singh vs. State Transport Appellate Tribunal,
Rajasthan- AIR 1980 Rajasthan 1
Shri Singhvi, learned AG would further submit that since the
promotion of the petitioners was in violation of the statutory
provisions has marred the promotional avenues of not only the
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respondents, the direct recruitees; but also of other eligible and
senior Class-IV employees in the Governor's Secretariat at the
relevant time, they have no right to continue "on the promoted
post". He, in support of his submissions, relied upon following
judgements:
1) Arbind Kumar vs. State of Jharkhand & Ors.-(2018) 17
SCC 762;
2) The State of Gujarat & Ors. Vs. R.J. Pathan & Ors., Civil
Appeal No.1961 of 2022.
Learned senior counsel Shri Virendra Lodha for the
respondent no.1 in S.B. Civil Writ Petition No.8497/2020, adopting
the submissions made by learned AG, added that erroneous
promotion granted against the Service Rules applicable, can be
withdrawn/rectified at any moment. He, in support of his
submission, placed reliance upon a judgment of the Hon'ble
Supreme Court in the case of Indian Council of Agricultural
Research & Anr. v. T.K. Suryanarayan & Ors.-(1997) 6 SCC 766.
Learned senior counsel Shri R.N. Mathur appearing for the
private respondents in S.B. Civil Writ Petition No.8497/2020 and
for the petitioners in S.B. Civil Writ Petition No.15192/2017 i.e.,
the direct recruitees on the post of LDC, drawing attention of this
Court towards the prayer made in the writ petition filed by the
direct recruitees, submitted that in view of challenge to the
guidelines dated 29.1.2013, the basis of promotion of the
promotee employees, they were not required to challenge the
order dated 7.2.2013, the promotion order independently. Learned
senior counsel submitted that under none of the Service Rules; be
it the Rules of 1970, the Rules of 1999, the Rules and Regulations,
1999, the Rajasthan Legislative Assembly Secretariat
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(Recruitment and Conditions of Service) Rules, 1992 or the
Rajasthan Lokayukta Sachivalaya Ministerial Service (Conditions of
Service) Rules, 2013, the promotion quota from Class-IV
employees to the post of LDC exceeds 15%.
Shri Mathur submitted that no appointment in the public
service can be discretionary and its authority has to be derived
from a statutory provision. He submitted that issue as to whether
Rules of 1970 or the Rules of 1999 are applicable, is not relevant.
He further submitted that it is also irrelevant as to whether the
Governor's Secretariat is a subordinate office or not. The
employees working, whether in the Governor's Secretariat or in
any other government offices, are indisputably employees of the
State Government.
He submitted that office of the Governor is not separable
from the State Government as he is its Executive Head. The office
of the Governor and its status is not an issue and the issue in the
writ is the status of the staff attached with the Governor's
Secretariat.
Shri Mathur contended that the communication dated
20.12.2012 by the DoP could not be construed as authorising the
Governor to frame its own Rules governing service conditions of
the employees working in its Secretariat; rather, it was an opinion
of an officer only. Learned senior counsel further submitted that
the DoP has categorically informed the Governor's office that the
Rules of 1970 do not envisage any relaxation in promotion quota
and such relaxation may affect the other Service Rules also. He
submitted that this fact was even acknowledged by the Governor's
Secretariat, as is apparent from the note sheets no.213, 214 and
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215 placed on record as Annexure-10 in the S.B. Civil Writ Petition
No.15192/2017. Referring to the note sheet no.219, Shri Mathur
submitted that the increase in promotion quota from Class-IV to
LDC was proposed to 33% on the premise that it would bring it in
line with the other promotion quota, such as, from the State
Service to the All India Services which is pegged at 33%
presently, which was a wholly misconceived parallel.
Learned senior counsel submitted that the Governor's
Secretariat did not have its own independent Service Rules and it
assumed itself to be governed by the Rules of 1970 as is apparent
from clause (5) of the order dated 29.1.2013 which provides that
other conditions shall be applicable as per the Rules of 1970.
Shri Mathur submitted that the Constitution of India does not
envisage any separate or independent Secretariat of the Governor
of a State as provided for a Legislative Assembly or the Public
Service Commission; rather, under part VI of the Constitution of
India, a Governor, being Executive Head of the State, is part of the
Government.
Referring to the Entry No.56 of the Schedule appended to
the Rajasthan Civil Services (CCA) Rules, 1958, Shri Mathur
submitted that Secretary to the Governor is the head of the
department, who is provided by the State Government and the
appointment of ministerial staff in the Governor's Secretariat is
also done by the State Government. The office of the Governor
and the Secretariat to the office of the Governor are two different
entities. Household and Governor's Secretariat are statutorily
provided and the staff therein is provided by the State
Government.
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With regard to the Act of 1982 and the Rules of 1987 framed
thereunder, learned senior counsel submitted they are totally on
different subject. The Act of 1982 merely provides for the
emoluments, allowances, medical treatment, conveyance,
travelling allowance and other allowances to a Governor. Section 6
of the above Act provides that there shall be a household
establishment which will be provided to the Governor. It does not
say anything more than this and also does not say that the
recruitment in the household establishment will be independent.
Section 5 of the Act makes provision for a rent-free house.
He submitted that the Rules of 1987 are also with regard to
the facilities provided to the Governor. Its Rule 4 provides that the
number of officers and staff on household establishment shall be
as prescribed by the President. However, it further provides that
the emoluments and facilities of such staff shall be borne by the
state government and shall be same as is admissible to the
employees of the state government on the corresponding post.
Rule 4(2) further provides that household establishment shall be
entitled for rent free accommodation or the rent allowance. Rule 5
clinches the entire issue which provides that the secretarial staff of
the Governor shall be provided by the State Government. Learned
counsel submitted that the expression "shall be provided" in no
uncertain terms make it clear that it is the responsibility of the
state government to make available the staff. Thus, when the
allotment of the LDC is made by the state government from the
select list and the appointment is made by the Governor's
Secretary, who is the head of department under the State
Government, it leaves no room for any doubt that the service
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condition of the employees in the Governor's Secretariat are
governed by the Rules framed by the State Government. He,
therefore, prayed that the order dated 29.1.2013 be quashed and
set aside.
Heard. Considered.
First of all, this Court examines the status and position of a
Governor under our Constitution, i.e., whether he is an
independent entity from the State Government or a part of it.
Part VI Chapter II of the Constitution of India deals with the
Executive.
"Article 154 Executive power of State:
(1) The executive power of the State shall be vested in the
Governor and shall be exercised by him either directly or
through officers subordinate to him in accordance with this
Constitution
(2) Nothing in this article shall
(a) be deemed to transfer to the Governor any functions
conferred by any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from
conferring by law functions on any authority subordinate to
the Governor.
Article 162 Extent of executive power of State:
Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect to
which the Legislature of the State has power to make laws
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by
the Constitution or by any law made by Parliament upon the
Union or authorities thereof Council of Ministers.
Article 163 Council of Ministers to aid and advise
Governor:
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(1) There shall be a council of Ministers with the chief
Minister at the head to aid and advise the Governor in the
exercise of his functions, except in so far as he is by or
under this constitution required to exercise his functions or
any of them in his discretion
(2) If any question arises whether any matter is or is not a
matter as respects which the Governor is by or under this
Constitution required to act in his discretion, the decision of
the Governor in his discretion shall be final, and the validity
of anything done by the Governor shall not be called in
question on the ground that he ought or ought not to have
acted in his discretion
(3) The question whether any, and if so what, advice was
tendered by Ministers to the Governor shall not be inquired
into in any court.
Thus, under our constitutional scheme, a Governor is the
Executive Head of the State and all transactions of the State
Government are carried out under his authority and name. Thus,
it is axiomatic that the office of the Governor is part and parcel of
the State Government.
The next question which arises for consideration of this Court
is about the status of the Governor's Secretariat. Logically, once
the Governor is part of the State Government, as a natural
corollary, its Secretariat must also be part of the State
Government. However, this aspect is being examined as
hereinunder in the light of the contentions advanced by learned
counsel for the promotee-employees that the Governor Secretariat
is an independent office and is not part of the State Government.
The Indian Constitution does not envisage a separate and
independent secretarial service attached to a Governor office
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inasmuch as wherever it is so required, specific provisions in this
regard exist in it; such as, Article 98 provides that each house of
Parliament shall have a separate Secretarial staff and the
Parliament may, by law, regulate the recruitment and the
conditions of service of persons appointed to the Secretarial staff
of either house of Parliament, Article 146 lays down that
appointments of officers and servants of the Supreme Court shall
be made by the Chief Justice of India, or such Judge or Officer of
the Court as he may direct, Article 187 provides for Secretariat of
the State Legislature, Article 229 provides for service conditions of
the officers and servants of a High Court and Article 218 provides
for power to make regulations as to conditions of service of
members or staff of the Union Commission or the State
Commission. Thus, there is no constitutional provision providing
for a separate and independent Governor Secretarial Service.
However, Rule 4(1) of the Governors (Allowances and Privileges)
Rules of 1987 provides that the total number of officers and other
staff of household establishment at the official residence of a
Governor shall be as the President may prescribe from time to
time by an order and their scale or pay, allowances and other
emoluments and facilities shall be such as are admissible to the
State Government Officers and other employees of the
corresponding posts in the concerned State Government from time
to time. Its Rule 5 provides as under:
"5. Expenditure of Government Secretariat Etc.
(1) In addition to the household establishment, the
Governor shall be entitled to a separate Secretariat
staff which shall be provided by the concerned State
Government.
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(2) the expenditure incurred on the establishment of the
Governor's Secretariat and the expenditure on pension
and other retirement benefits including medical facilities
of the household medical establishment staff shall be
charged on the consolidated fund of the concerned State.
(3) the expenditure referred to in sub-rule (2) shall not
form part of the Governor's allowance."
Thus, the Rules of 1987 clinches the entire issue which make
a provision for a separate Secretarial staff for a Governor which
shall be provided by the concerned State Government and the
expenditure incurred on it shall be charged on the consolidated
fund of the concerned State which shall not form part of the
Governor's allowance. Further, as per the provisions of CCA Rules
of 1958, Secretary to the Governor of Rajasthan is the Head of
Department. Rule 15 of the Rules of 1958 provides that for the
employees under Subordinate and Ministerial Services, the Head
of the Department or the authority specially empowered with him
with the approval of the Government, shall be the disciplinary
authority. Under Rule 9 read with Schedule III appended with the
Rules, the employees governed by the Rules of 1970 as also the
Rules of 1999 are covered under the Ministerial Services. Thus,
the employees working in the Governor Secretariat are being
governed by the Rules of 1958 and the Secretary to the Governor
is the Head of the Department for this purpose and by virtue of
Rule 9 read with Schedule III and Rule 15 of the Rules of 1958, is
the disciplinary authority for the Ministerial cadre employees in the
Governor's Secretariat. From the conspectus of the aforesaid
constitutional and legal provisions, it is established beyond any
iota of doubt that the officers and staff in the Governor's
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Secretariat, who are provided by the State Government, are part
of the State Government.
The next germane question which falls for consideration is
which Service Rules govern the recruitment and other service
conditions of the staff working in the Governor's Secretariat;
whether the Rules framed by the State Government under Article
309 of the Constitution of India or are there any independent
Rules framed by the Governor's office which are applicable on
such staff. Unquestionably, the State being governed by Rule of
law, the public employment has to be governed by
Rules/Regulations framed within the constitutional framework and
cannot be left to unbridled discretion of any authority, be it the
constitutional or the statutory. No independent Rules except the
subject guidelines dated 29.1.2013, have been cited by the
petitioners in support of their contention that the Rules framed by
the State Government under Article 309 of the Constitution are
inapplicable on the staff in the Governor Secretariat. However, in
its letter dated 6.11.2012 written by the Governor's Secretariat to
the DoP in response to their query as to which Service Rules
govern the service conditions of the staff working therein, it is
stated that the Rules of 1970 are applicable in the Governor
Secretariat. Even under clause-5 of the guidelines dated
29.1.2013 whereby, 33% promotion quota has been prescribed, it
is stipulated that other conditions shall be applicable as per the
Rules of 1970. However, none of the parties is at variance on the
aspect that the Rules of 1970 do not govern the service conditions
of the staff working in the Governor Secretariat with which this
court also concurs. This Court finds substantial force in the
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submission of the learned Advocate General that the Governor's
Secretariat is an office under the State Government and hence,
the Rules of 1999 hold the field.
Rule 2(i) of the Rules of 1999 defines a "subordinate office"
as an office under the control of Government other than the
Secretariat or office of the State Legislature or High Court and the
Courts subordinate thereto or Public Service Commission. So far
as the offices of the State Legislature or the High
Court/Subordinate Court and Public Service Commission are
concerned, there are separate constitutional and statutory
provisions dealing with the same and so far as Government
Secretariat is concerned, it has its own independent Service Rules
of 1970. In view thereof and especially in view of Rule 5 of the
Rules of 1987, since, the staff of the Governor Secretariat is
provided by the State Government with their salary payable out of
the consolidated fund of the State, in the considered opinion of
this Court, the Rules of 1999 apply to it. It is trite that mere
reference of the Rules of 1970 in the order impugned dated
20.12.2012 or the impugned guidelines dated 29.1.2013, is of no
significance as mere mentioning of a wrong provision or no
provision is irrelevant, if the authority can be traced to a valid
statutory provision. The Hon'ble Apex Court has, in P.K.
Palanisamy vs. Arumugham & Anr.-(2009) 9 SCC 173, held
as under:
"27. It is a well settled principle of law that mentioning of
a wrong provision or non-mentioning of a provision does
not invalidate an order if the court and/or statutory
authority had the requisite jurisdiction therefor."
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Similarly, in the case of N. Mani vs. Sangeetha Theatre &
Ors.-(2004) 12 SCC 278, it was held:
"9. It is well settled that if an authority has a power under
the law merely because while exercising that power, the
source of power is not specifically referred to or a
reference is made to a wrong provision of law, that by
itself does not vitiate the exercise of power so long as the
power does exist and can be traced to a source available
in law."
Apprehension of the petitioners that holding the Governer's
Secretariat to be an office subordinate to the State Government,
may violate the inviolable independence and high constitutional
status of the office of the Governor, is wholly misconceived and
misplaced inasmuch as the Governor's office and its Secretariat
are two separate and independent entities.
Now, this court considers the legal sanctity of the
order/guidelines dated 29.1.2013, the basis of promotion of the
petitioners-Class IV employees to the post of LDC relaxing the
promotion quota from 15% to 33%.
The guidelines dated 29.1.2013 have been framed by the
Governor's office relying upon the letter of the DoP dated
20.12.2012 whereby, it was conveyed that the Rules of 1970 were
inapplicable on the Governor office and it was free to frame its
own Rules/guidelines relaxing the promotion quota. This Court is
not convinced that the DoP had authority to hold and convey that
in absence of applicability of the Rules of 1970, the Governor
office was free to frame its own Service Rules or lay down
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guidelines governing promotion of the Class-IV employees to the
post of LDC. Article 166 of the Constitution provides as under:
"Article 166 Conduct of business of the Government of
a State:
(1) All executive action of the Government of a State shall be
expressed to be taken in the name of the Governor
(2) Orders and other instruments made and executed in the
name of the Governor shall be authenticated in such manner
as may be specified in rules to be made by the Governor,
and the validity of an order on instruction which is so
authenticated shall not be called in question on the ground
that it is not an order or instrument made or executed by the
Governor
(3) The Governor shall make rules for the more convenient
transaction of the business of the Government of the State,
and for the allocation among Ministers of the said business in
so far as it is not business with respect to which the
Governor is by or under this Constitution required to act in
his discretion."
In pursuance of the aforesaid provisions, the Rajasthan Rules
of Business have been framed by the Governor. Rule 4 of the Rules
of Business provides that the business of the Government shall be
transacted in the Secretariat Departments specified in the First
Schedule and shall be classified and distributed between those
departments as laid down therein. Clause I(A) of the First
Schedule provides that the DoP shall deal with the Recruitment
Rules for all services including qualifications, relaxation in
qualifications, experience and age for various posts under the
State Government. Rule 14 lays down that all cases referred to in
the Second Schedule shall be submitted to the Chief Minister
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through the Secretary to the Council (Chief Secretary) after
consideration by the Minister-in-charge or the Minister of State-in-
charge, as the case may be, with a view to obtaining his orders for
circulation of the case under Rule 15 and for bringing it up for
consideration at a meeting of the Council or a Sub-Committee
thereof. The Second Schedule provides for proposals for the
making or amending the Rules, regulating the recruitment and
conditions of service of the persons appointed to the Public
Services and posts in question with the State (proviso to Article
309) besides others. Rule 31(I) provides that before issuance of
orders, including the proposals for appointment and posting of the
Heads of the Departments, the cases pertaining to the Governor's
personal establishment and the Governor's house matters, they
shall be submitted to the Chief Minister.
Thus, before framing or amending any Service Rules
regulating recruitment and conditions of service of persons
appointed to the Public Services and posts, the procedure as
prescribed under the Rules of Business has to be followed by the
DoP.
The aforesaid proposition stands fortified from the letter
dated 2.9.2021 (Annexure-A2) issued by the Governor Secretariat
stating therein that a draft of the Rules for the officers and
employees working in the Governor Secretariat or household
governing their service conditions has been submitted to the DoP,
the State Government which has to be submitted to the Council of
Ministers for approval.
Indisputably, the procedure prescribed under the Rules of
Business has not been followed either before issuance of the letter
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dated 20.12.2012 or before issuing the order dated 29.1.2013
laying down the guidelines prescribing the promotion criteria.
Their Lordships have held in the case of Justice R.A. Mehta
(supra) as under:
"41. Thus, where the Governor acts as the Head of the
State, except in relation to areas which are earmarked
under the Constitution as giving discretion to the
Governor, the exercise of power by him must only be upon
the aid and advice of the Council of Ministers, for the
reason that the Governor being the custodian of all
executive and other powers under various provisions of
the Constitution is required to exercise his formal
constitutional powers only upon and in accordance with
the aid and advice of his Council of Ministers. He is,
therefore, bound to act under the Rules of Business
framed under Article 166(3) of the Constitution."
In view of the aforesaid analysis, this Court has no hesitation
in holding that the letter dated 20.12.2012 issued by the DoP and
the guidelines dated 29.1.2013 issued by the Governor's office
dehors the statutory provisions are void ab initio & non-est.
Contention of the learned counsels for the petitioners that
the State was estopped from changing its stand which it has taken
in its initial reply to the writ petition no.15192/2017 wherein, it
has stated that since the Rules of 1970 were inapplicable on the
Governor Secretariat, it was at liberty to frame its independent
Rules to govern the service conditions of its staff, cannot be
countenanced as it is trite law that there can be no estoppel
against the law. It has been held by this Court that the Rules of
1970 are inapplicable on the Governor's Secretariat and also that
it had no authority to frame guidelines vide its order dated
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29.1.2013. In case of Surendra Mohnot (supra) it was held as
under:
"17. It is well settled in law that there can be no estoppel
against law. Consent given in a court that a controversy is
covered by a judgment which has no applicability
whatsoever and pertains to a different field, cannot estop
the party from raising the point that the same was
erroneously cited."
Another contention of the learned counsel for the petitioners
that the order dated 30.7.2020 withdrawing the benefit of promotion granted to them being violative of principles of natural justice cannot be sustained in the eye of law, does not merit acceptance in view of finding of this Court whereby, the basis of promotion of the petitioners, the promotee-employees, i.e., the guidelines dated 29.1.2013 have been held to be void ab initio & non-est. It is also revealed from the material on record that at the relevant time, i.e. on 29.1.2013, when the impugned guidelines were issued prescribing the higher qualification than those prescribed for promotion from Class-IV to LDC under the Rule of 1999, there were eligible and senior Class IV employees in the Governor's Secretariat than the petitioners who otherwise could have been promoted but for the guidelines dated 29.1.2013. In these circumstances, the court is not persuaded to hold that merely because the petitioners (promotee employees) were not afforded an opportunity of hearing before passing the order on 30.7.2020, it needs to be quashed and set aside. The Hon'ble Apex Court has, in the case of State of M.P. & Ors. vs. Shyama Pardhi & Ors.-(1996) 7 SCC 118, held as under:
(D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (32 of 41) [CWs-8497/2020,15192/2017&10057/2020] "5. It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents.
The question or violation of the principles of natural justice does not arise. The ratio of Shrawan Kumar Jha v. State of Bihar AIR 1991 SC 309, strongly relied on, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this Court interfered with, directed the Government to reinstate them into service and further directed them to send the appellants therein for training."
Their Lordships in Ashok Kumar Sonkar Vs. Union of India; 2007 (4) SC 54, held as under:-
"26. This bring us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given (D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (33 of 41) [CWs-8497/2020,15192/2017&10057/2020] an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well-settled that it cannot be put any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard."
In case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise Gauhati; (2015) 8 SCC 519, the Hon'ble Apex Court held as under:-
"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling - it is felt that a fair hearing 'would make no difference' - meaning that a hearing would (D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (34 of 41) [CWs-8497/2020,15192/2017&10057/2020] not change the ultimate conclusion reached by the decision-maker - then no legal duty to supply a hearing arises."
Even otherwise also, it is trite law that if setting aside an order which is found to be issued without jurisdiction/bad in law, results into restoration of another illegal order, the courts would be loathe in setting aside the later order as it would amount to perpetuate illegality. If the order dated 30.7.2020 is quashed and set aside being violative of the principles of natural justice, it would restore the promotion order of the promotee-employees based on the guidelines dated 29.1.2013 which have been held to be void ab initio and thus, non est. The Hon'ble Apex Court has, in the case of Mohd. Swelleh (supra), held as under:
"7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the (D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (35 of 41) [CWs-8497/2020,15192/2017&10057/2020] order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken."
A Full Bench of this Court has, in the case of Jagan Singh (supra), held as under:
"11. As we have already stated above, we do not feel inclined to decide this question in the facts and circumstances of this case; whether Sagruddin, non- petitioner No. 2, can be considered as a person aggrieved by the variation in the conditions of the petitioner's permit. We have already held above that the order of the Regional Transport Authority, whereby the variation in the conditions of the permit of the petitioner was allowed, was not legal and proper as it had been passed without following the procedure prescribed under Section 57, Sub- sections (3), (4) and (5). Assuming for argument's sake, that the non-petitioner No- 2, Sagruddin, had no locus standi to file an appeal or revision before the State Transport Appellate Tribunal against the order of the Regional Transport Authority dated May 27, 1978, the fact remains that the said order of the Regional Transport Authority is illegal and if we were to allow this writ petition and set aside the impugned order by the State Transport Appellate Tribunal, the result would be that the illegal order of the Regional Transport Authority would be restored. It may be noted that there has been no failure of justice in the present case and we would be justified in refusing to interfere unless we are satisfied that the justice of the case requires it. We are of opinion, that having regard to the facts of the case and the law bearing on the subject, we should decline to interfere.
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12. In Gani Mohammed v. State Transport Appellate Tribunal 1976 RLW 201, it was observed that while granting a writ of certiorari, this court would not exercise its discretion in such a manner which would have the effect of restoring an illegal order passed by the Regional Transport Authority. As we have already pointed out above, the effect of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G. Venkateswara Rao v. Govt. of Andhra Pradesh MANU/SC/0020/1965 : AIR 1966 SC 828 wherein the Supreme Court came to the conclusion that the State Government had no power under Section 72 of the Andhra Pradesh Panchayat Samitis & Zila Parishads Act to review its previous order, yet their Lordships refused to interfere with the order passed by the State Government upon such a review on the ground that quashing of that order would lead to restoration of an illegal order passed earlier by the State Government. In this connection, their Lordships further observed that the High Court rightly refused to exercise its extraordinary discretionary power under Article 226 of the Constitution of India. In this view of the matter, this writ petition deserves to be dismissed."
The judgement of a Constitution Bench in the case of Hargovind Pant (supra) relied upon by the learned counsel for the promotee-employees is of no help to them inasmuch as therein, the Hon'ble Apex Court considered the question of validity of the appointment of the Governor.
Now this Court considers as to whether the petitioners, the promoted employees are entitled to continue on the post on account of promotion granted under the guidelines dated 29.1.2013.
(D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (37 of 41) [CWs-8497/2020,15192/2017&10057/2020] Their Lordships has, in Dr. M.S. Mudhol (supra), held as under:
"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, inspite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequities to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same."
This Court has, in Lal Mohammad (supra), held as under:
"17. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxIt may be mentioned that in view of the principle laid down in M.A. Hameed's case (supra), by their Lordships of the Supreme Court, after such a long time, reversion of the petitioner from Helper to Class IV servant is wholly unjustified, as the settled position, cannot be allowed to be unsettled by the Department on account of their fault."
Their Lordships in Arbind Kumar (supra), held as under:
"5. On behalf of the Arbind Kumar, reliance has been placed on a judgment of this Court in the case of Arun Kumar Rout and Ors. v. State of Bihar and Ors.:1998 (9) (D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (38 of 41) [CWs-8497/2020,15192/2017&10057/2020] SCC 71, whereby this Court in the peculiar facts of that case directed for framing a scheme for absorption/regularisation of the appointees who were working as temporary or ad-hoc for a long number of years. The judgment itself makes it clear that the order was passed Under Article 142 of the Constitution of India with a specific observation that it shall not be treated as a precedent. Hence, we are not persuaded to follow that course of action in the present case. Although the Appellants have pleaded that they are mere victims of irregular or illegal action by the concerned police officials who appointed them to the post of Constable without following the procedure prescribed under the Police Manual and hence deserve sympathy, but we are not persuaded to accept such submission. In our considered view, the beneficiaries cannot blame the appointing authority alone and claim that the illegal appointment should be continued in perpetuity. To accept such plea would amount to giving premium to dishonest and illegal acts in matters of public appointments."
The Hon'ble Apex Court in R.J. Pathan (supra), held as under:
"6. The order passed by the learned Single Judge dismissing the writ petition was in the year 2011. The order passed by the learned Single Judge was challenged by the respondents by way of LPA. In the year 2011, the Division Bench granted the interim relief and directed to maintain status quo and pursuant to the said interim order, the respondents were continued in service with the Government. In the year 2021, when the said LPA was taken up for further hearing, it was submitted on behalf of the respondents that as by now the respondents have worked for seventeen years, the State may be directed to absorb them in the Government and their services may be regularised. By observing that as the respondents have (D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (39 of 41) [CWs-8497/2020,15192/2017&10057/2020] worked for a long time, i.e., for seventeen years, the Division Bench has directed the State to consider the cases of the respondents for absorption/regularisation and if required, by creating supernumerary posts. However, while issuing such a direction, the High Court has not at all considered the fact that the respondents were continued in service pursuant to the interim order passed by the High Court. The Division Bench has also not appreciated the fact and/or considered the fact that the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit - "Project Implementation Unit", which was created only for the purpose of rehabilitation pursuant to the earthquake for "Post-Earthquake Redevelopment Programme". Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government. Therefore, when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts."
(D.B. SAW/1120/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 09:21:32 AM) (40 of 41) [CWs-8497/2020,15192/2017&10057/2020] In T.K. Suryanarayan & Ors. (supra), their Lordships, held as under:
"8. We are, however unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee can not base him claim for promotion contrary to the statutory Service Rules in law courts. Incorrect promotion either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial order contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules."
Petitioners have been granted promotion relaxing the promotion quota vide guidelines issued vide order dated 29.1.2013 which have been held to be void ab initio and non est by this Court. It is also revealed that, but for the guidelines, other eligible and senior Class-IV employees in the Governor Secretariat at the relevant time, would have been promoted prior to promotion of the petitioners. In the aforesaid factual background and in view of the judgements of Hon'ble Apex Court wherein, it has been directed not to remove/terminate service of an employee who has worked on a post for a considerable period of time, though not eligible, for no fault of his own and to balance equity, the Court disposes off the writ petitions with following directions:
1) the order dated 20.12.2012 and the guidelines dated 29.1.2013 are quashed and set aside;
2) the order dated 30.7.2020 is upheld;
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3) promotion of the petitioners (promotee employees) on the post of Clerk Gr.I vide order dated 16.1.2019, which was subject to decision of the S.B. Civil Writ Petition No.15192/2017, is quashed and set aside. However, the salary, other emoluments or any other monetary benefit already paid and received by such petitioners shall not be recoverable;
4) the petitioners in S.B. Civil Writ Petition No.8497/2020 and S.B. Civil Writ Petition No. 10057/2020 shall continue as LDC; but, shall be placed in seniority list of LDC below the petitioners in S.B. Civil Writ Petition No.15192/2017 and shall be entitled for further promotion as and when their turn comes as per their seniority.
This Court refrains from passing any order/direction qua the Class-IV employees in the Governor's Secretariat at the relevant time, i.e., when the guidelines dated 29.1.2013 were issued, who were senior to the petitioners, the promotee employees and were otherwise eligible for promotion to the post of LDC as per their qualification, but for the guidelines, in view of pendency of a S.B. Civil Writ Petition No.769/2016: Pramod Rai & Anr. vs. State of Rajasthan & Ors. filed on behest of such Class-IV employees, as apprised by Shri A.K. Sharma, learned Senior Counsel.
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