Gujarat High Court
Khemraj Hakraji Dayma & 15 vs Registrar General Of The High Court Of ... on 6 May, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/88/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 88 of 2016
In
SPECIAL CIVIL APPLICATION NO. 17091 of 2015
With
CIVIL APPLICATION NO. 1107 of 2016
In
LETTERS PATENT APPEAL NO. 88 of 2016
With
LETTERS PATENT APPEAL NO. 89 of 2016
In
SPECIAL CIVIL APPLICATION NO. 17145 of 2015
With
CIVIL APPLICATION NO. 1108 of 2016
In
LETTERS PATENT APPEAL NO. 89 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
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C/LPA/88/2016 CAV JUDGMENT
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
KHEMRAJ HAKRAJI DAYMA & 15....Appellant(s)
Versus
REGISTRAR GENERAL OF THE HIGH COURT OF GUJARAT &
1....Respondent(s)
==========================================================
Appearance in both the appeals :
MR.J S.SADHWANI, ADVOCATE for the Appellants.
Ms.MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER assisted by
Mr.DHAWAN JAYSWAL, ASSISTANT GOVERNMENT PLEADER for
respondent no.2.
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date :06/05/2016
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) These appeals are preferred under Clause 15 of the Letters Patent, by the petitioners in Special Civil Applications No.17091 of 2015 and 17145 of 2015 aggrieved by the common judgment dated 11.12.2015 and 14.12.2015. As both these appeals arise in similar set of facts and on identical questions of law call for consideration, they are heard together and disposed of by this common judgment. Page 2 of 18 HC-NIC Page 2 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT
2. All the appellants/ petitioners are appointed on the posts of Peon and Computer Operator in the establishment of the High Court of Gujarat services, which constitute Class IV and III under the High Court of Gujarat (Conduct, Discipline and Appeal) Rules, 2011. All the appellants-original petitioners have submitted individual applications to the Registrar General and basing on such applications, without giving any public advertisement, without inviting applications in general for such recruitment, they were given appointment on the posts, on the approval made by the then Acting Chief Justice (The Hon'ble Mr. Justice V.M. Sahai) of the High Court of Gujarat. For the persons who were appointed on the post of Computer Operator, which constitutes Class-III service, as per rules, computer test was conducted confining to them, they were appointed. It is the say of the appellants-petitioners that having come to know about such vacancies in the establishment of the High Court of Gujarat, they applied for respective posts, their applications were scrutinized, having found that they are qualified for the appointment to the posts, they were appointed on the post of Computer Operator and Peon and their appointments were approved by the then Acting Chief Justice (The Hon'ble Mr. Justice V.M. Sahai). They were given appointment orders on different dates.
3. Subsequent to their appointment, some of the learned Judges of this Court have addressed to the then Acting Chief Justice (The Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT Hon'ble Mr. Justice Jayant M. Patel) bringing to his notice that such appointments are illegal as they were made without following legal procedure of issuing public advertisement and inviting applications in general. Pursuant to the same, the then Acting Chief Justice (The Hon'ble Mr. Justice Jayant M. Patel) has constituted a Committee and the appellants- petitioners were given Show Cause Notices calling upon them to show cause why their appointments should not be terminated as their appointments were made without issuing any public advertisement and without inviting all the eligible candidates to apply for the posts in question and the same is contrary to the decision of the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175, and such appointments are contrary to the Constitutional mandate under Articles 14 and 16 of the Constitution of India. All the appellants herein have submitted their replies. However, the Committee of the Hon'ble Judges recommended that the appointments made are illegal and contrary to the mandate as per the directions issued by the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175. Subsequently, individual orders are passed terminating the services of the appellants- petitioners as they were on probation.
4. Such orders were challenged by the appellants herein in Page 4 of 18 HC-NIC Page 4 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT Special Civil Applications No.17091 of 2015 and 17145 of 2015, with the prayers which read as under.
Special Civil Application No.17091 of 2015 :
"7 (A) Your Lordships may be pleased to admit and allow this Special Civil Application.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order of the respondent being Office Order No.B.1303 of 2015 dated 24.9.2015 (Annexure E) to the petition and be further pleased to reinstate the petitioners on the post of Peon at their original seniority and be further pleased to direct the respondents to pay full arrears of salary, as if the petitioners' services were never terminated.
(C) Your Lordships may further be pleased to stay the operation and implementation of the order Office Order No.B.1303 of 2014 (sic., 2015) dated 24.9.2015 passed by the Registrar General, High Court of Gujarat during the pendency and hearing of this petition and direct the respondent authority to take the petitioners on duty forthwith and direct the respondent to restore status quo ante as on 24.9.2015.
(D) Pending hearing and final disposal of this petition, Your Lordships may be further pleased to restrain the respondent from filling up the posts of Peons, which had fallen vacant on account of termination of the services of the petitioner.Page 5 of 18
HC-NIC Page 5 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT (E) Any other reliefs which this Honourable Court may deem fit and proper in the interest of justice." Special Civil Application No.17145 of 2015 :
"7 (A) Your Lordships may be pleased to admit and allow this Special Civil Application.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order of the respondent being Office Order No.B.1304 of 2014 (sic., 2015) dated 24.9.2015 (Annexure E) to the petition and be further pleased to reinstate the petitioners on the post of Computer Operator at their original seniority and be further pleased to direct the respondents to pay full arrears of salary, as if the petitioners' services were never terminated.
(CI) Your Lordships may further be pleased to stay the operation and implementation of the order Office Order No.B.1304 of 2015 dated 24.9.2015 passed by the Registrar General, High Court of Gujarat during the pendency and hearing of this petition and direct the respondent authority to take the petitioners on duty forthwith and direct the respondent to restore status quo ante as on 24.9.2015.
(D) Pending hearing and final disposal of this petition, Your Lordships may be further pleased to restrain the respondent from filling up the posts of Computer Operator, which had fallen vacant on account of termination of the services of the petitioner.Page 6 of 18
HC-NIC Page 6 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT (E) Any other reliefs which this Honourable Court may deem fit and proper in the interest of justice."
5. In the Special Civil Applications, mainly it was the say of the petitioners that when appointments were made by the Chief Justice in exercise of powers under Article 229 of the Constitution of India, it is not open for the Judges to make inquiry and terminate their services based on the findings recorded by the Committee of Judges. It was also their case that once they are appointed their services could not have been terminated without following regular procedure as provided under the High Court of Gujarat (Conduct, Discipline and Appeal) Rules, 2011; without conducting regular inquiry as contemplated under the rules, their services were terminated. It was also their say that at the relevant point of time the Chief Justice was empowered to make appointments by way of nomination as per the rules, as such when appointments are made in exercise of such power as per rules, such appointments cannot be termed as 'illegal'.
6. In the above said Special Civil Applications, affidavit in replies were filed in detail. In the affidavit in reply filed on behalf of the Registrar General, High Court of Gujarat, while denying various allegations made by the petitioners it is stated that the petitioners are appointed by way of nomination; neither public advertisement was issued nor publicity was given before posts were filled up, nor selection process was undertaken by giving opportunity to all the Page 7 of 18 HC-NIC Page 7 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT eligible candidates, as such the action on the part of the High Court is contrary to the ratio laid down by the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra). It is further pleaded that even appointments to the High Court establishment made in exercise of powers under Article 229 of the Constitution of India would have to conform to the equality principles flowing from Articles 14 and 16(1) of the Constitution of India. Reference is also made in the affidavit in reply to the case of Secretary, State of Karnataka and others Vs. Umadevi and others, reported in (2006) 4 SCC 1, wherein the Hon'ble Supreme Court has held that selection made without holding proper selection be treated as back-door entries. Referring to a clause in appointment order to the effect that such appointments are purely temporary and can be terminated at any point of time, it is pleaded that they have not acquired any right so as to continue in the posts. In the affidavit in reply it is categorically stated that suo motu cognizance taken by the then Acting Chief Justice in Writ Petition (PIL) No.163 of 2015 has nothing to do with illegal appointments made to various posts. Referring to the Minutes of the Standing Committee dated 24.08.2015 and further final report of the Committee, wherein the committee has recorded finding that appointments are illegal and recommended for termination of services, stated that the petitioners have not been able to make out any case warranting interference under Article 226 of the Page 8 of 18 HC-NIC Page 8 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT Constitution of India.
7. Rejoinders were filed on behalf of the petitioners, and further Affidavit in Sur-rejoinder is also filed on behalf of respondent no.1. On the strength of the pleadings and submission made by both the parties and also considering the law on the subject the learned Single Judge has formulated the following questions for consideration, namely :
(i) Whether the Chief Justice of the High Court has supreme authority and unfettered powers in appointment of officers and staff of the High Court under the scheme of Article 229 of the Constitution of India?
(ii) Whether the powers of the Chief Justice to nominate staff members continue unhampered even after the judgment of the Apex Court in the case of Renu and others (supra), reported in A.I.R 2014 SC 2175?
(iii) Whether such actions under Article 229 of the Constitution are immune from scrutiny of the incumbent in the office of the Chief Justice as a constitutional actor or he would have powers to correct the decision of his predecessor on administrative side even when no challenge is made on the judicial side to such decision?Page 9 of 18
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(iv) To what extent, the principles of natural justice should be employed when actions are initiated to terminate the appointments made under Article 229 of the Constitution of India?
8. The learned Single Judge by considering the contentions of the parties at length and discussing the case law on the subject extensively has answered the issues as under:
"52. All the issues raised and discussed hereinabove, thus, are answered in the summarized manner :
(i) The Chief Justice has the supreme powers in appointment of staff and officers of the High Court under the scheme of Article 229 of the Constitution of India, subject to the restrictions provided under Article 229 of the Constitution itself and as circumscribed by the mandate of Articles 14 and 16 of the Constitution of India.
(ii) The powers of the Chief Justice to nominate the staff members do not continue unhampered, but are subjected to the mandates of the Constitution and the ratio laid down in the case of Renu and others (supra) and other such judgments.
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(iii) Such actions under Article 229 of the Constitution of India in post Renu's (supra) period are not immune from scrutiny of the incumbent Chief Justice, if exercise of powers under Article 229 is in contravention of constitutional mandates.
(iv) As discussed in paragraphs 36, 37, 41, 42 and 46 and other relevant paragraphs of the present judgment, the principles of natural justice are required to be followed."
By recording the aforesaid findings the learned Single Judge dismissed the petitions by common order dated 11.12.2015 and 14.12.2015.
9. In these appeals it is contended by the learned counsel for the appellants that they were not provided an opportunity of hearing, before orders of termination were passed, as such orders are illegal arbitrary and in violation of principles of natural justice. It is further contended that appointments were made in accordance with rules, which were in force during relevant time and one of the modes which empowered the Chief Justice to appoint was by way of nomination. Having regard to such rules which were in force at the time of their appointment the Hon'ble Chief Justice was empowered to appoint officers as per rules and the same was in Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT conformity with Article 229(1) of the Constitution of India. It is submitted that when appointments are approved by the Chief Justice in exercise of powers under Article 229(1) of the Constitution of India, it is not open for the Committee of the Judges or any other authority to recommend termination of services of the petitioners. On the other hand the learned counsel appearing for the respondents brought to our notice about the judgments of the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra).
10. At this stage, we refer to certain facts which are not in dispute.
10.1 Appointments of the petitioners in various posts of Peon and Computer Operator were made on the establishment of this Court, pursuant to their applications submitted to the Registry of this Court; they say that having come to know about the vacancies by word of mouth, such requests were made seeking appointment. It is also their say that during the relevant time as per the High Court of Gujarat (Conduct, Discipline and Appeal) Rules, 2011 there was a provision for making appointments by way of nomination, as such their appointments were in conformity with law.
10.2 On their representations, orders of appointment were issued Page 12 of 18 HC-NIC Page 12 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT to the petitioners stating that such appointments are temporary and can be terminated at any point of time, without issuing any notice. It is not in dispute that various posts which were vacant on the establishment of this Court were never notified by way of public notice inviting applications from eligible persons and no requisition was also sent to the Employment Exchange for sponsoring names of eligible candidates before making appointments.
11. The issues which arose for consideration were extensively dealt with by the learned Single Judge by discussing the latest law on the subject, we would not like to reiterate the entire case law on the subject which was referred to in the order passed by learned Single Judge. In the very Show Cause Notices issued to the petitioners before terminating the services it is indicated that such appointments given to the petitioners are contrary to the judgment of the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra). At this stage, it is apposite to refer to paras 19, 20, 21 and 29 of the aforesaid judgment, which reads as under:
"19. In making the appointments or regulating the other service conditions of the staff of the High Court, the Chief Justice exercises an administrative power with constitutional backing. This power has been entrusted to the safe custody of the Chief Justice in order to ensure the independence of the Judiciary, Page 13 of 18 HC-NIC Page 13 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT which is one of the vital organs of a Government and whose authority is to be maintained. The discretion exercised by the Chief Justice cannot be open to challenge, except on well known grounds, that is to say, when the exercise of discretion is discriminatory or mala fide, or the like(s)."
"20 Even under the Constitution, the power of appointment granted to the Chief Justice under Article 229 (1) is subject to Article 16 (1), which guarantees equality of opportunity for all citizens in matters relating to employment. 'Opportunity' as used in this Article means chance of employment and what it guaranteed is that this opportunity of employment would be equally available to all."
"21. As a safeguard, the Constitution has also recognized that in the internal administration of the High Court, no other power, except the Chief Justice should have domain. In order to enable a judicial intervention, it would require only a very strong and convincing argument to show that this power has been abused. If an authority has exercised his discretion in good faith and not in violation of any law, such exercise of discretion should not be interfered with by the courts merely on the ground that it could have been exercised differently or even that the courts would have exercised it differently had the matter been brought before it in the first instance or in that perspective."
"29. Thus, in view of the above, the law can be summarized to the effect that the powers under Article 229 (2) of the Constitution cannot be exercised by the Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT Chief Justice in an unfettered and arbitrary manner. Appointments should be made giving adherence to the provisions of Articles 14 and 16 of the Constitution and/or such Rules as made by the legislature."
From the aforesaid judgment it is clear that the power conferred under Article 229(1) of the Constitution of India is subject to Article 16(1) of the Constitution of India, which guarantees equality of opportunity in matters of public employment. Expression 'equality of opportunity' is used in this Article. In the judgment in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra), reference is made to decision of the Hon'ble Supreme Court in the case of H.C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore & Ors., AIR 1991 SC 295, wherein power under Article 229 (2) of the Constitution of India was interpreted and held that appointments made by the Chief Justice of High Court without advertising the vacancies as invalid being violative of Articles 14 and 16(1) of the Constitution.
12. Appointment to various posts on the establishment of the High Court of Gujarat is covered by High Court of Gujarat (Conduct, Discipline and Appeal) Rules, 2011. The word 'nomination' which was not there in the original rules was inserted by way of amendment, before appointment orders were issued. While it is true that such power of nomination was mentioned in Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT the rules, but at the same time even by that time judgment of the Hon'ble Supreme Court rendered in Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra) was in force. In view of the said judgment of the Hon'ble Supreme Court, which is binding on this Court in view of the provisions of Article 141 of the Constitution of India it is necessary to test the appointments in light of the judgment of the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra). As rightly held by the learned Single Judge that in view of the aforesaid judgment such provision is to be treated as nullity and appointments are void ab initio as they are contrary to the mandate of the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175 (supra).
13. Further, it is clear from the perusal of the appointment orders, that such orders were issued terming them as 'temporary' and the same can be terminated at any time, without assigning any reasons. As per Rules applicable, there is a provision for probationary period of two years. Orders of termination are issued terminating the services of the appellants during the period of probation. In absence of termination on the ground of misconduct, we are of the view that there is no need to follow regular procedure Page 16 of 18 HC-NIC Page 16 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT for terminating the services, as contemplated under the High Court of Gujarat (Conduct, Discipline and Appeal) Rules, 2011. Having regard to the wordings in the orders of termination, it is clear that such orders are termination simpliciter, but not by attributing any misconduct. As the appointments are per se illegal and contrary to the judgment of the Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and another, reported in A.I.R. 2014 SC 2175, no rights are accrued to the appellants, as the very appointments are contrary to the Constitutional mandate under Articles 14 and 16(1) of the Constitution of India. In spite of the same, when it was brought to the notice of the Acting Chief Justice, a Committee of Judges was constituted, which has issued Show Cause Notices, and after considering replies filed by the appellants, the constituted Committee has submitted its report. Based on such findings of the Committee, orders of termination were passed terminating the probation of the appellants without any allegation. As this Court is of the view that as no rights accrued to the appellants- petitioners, and further the order of termination is termination simpliciter without alleging any misconduct, the appellants are not entitled for any regular inquiry, before orders of termination are passed. It is also time and again held by this Court and the Hon'ble Apex Court that any interference by entertaining petition under Article 226 of the Constitution of India results in restoration of another illegal order, it is not necessary to invoke such power under Article 226 of Page 17 of 18 HC-NIC Page 17 of 18 Created On Tue May 10 02:10:07 IST 2016 C/LPA/88/2016 CAV JUDGMENT the Constitution of India, to interfere with the order impugned therein.
14. For the aforesaid reasons, and having regard to the findings recorded by the learned Single Judge, we are in agreement with the view taken by the learned Single Judge and there is no merit in the appeals so as to interfere with the order of the learned Single Judge. The Letters Patent Appeals are dismissed. No order as to cost.
15. Consequently, no orders on the Civil Applications. The same are disposed of accordingly.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) karim Page 18 of 18 HC-NIC Page 18 of 18 Created On Tue May 10 02:10:07 IST 2016