Gujarat High Court
Rajeshbhai Chhaganbhai Chokhaliya & 3 vs Director General Of Police Gujarat ... on 1 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/20979/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20979 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21028 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21030 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21084 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21086 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21091 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21110 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21114 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21115 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21122 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21124 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21129 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20623 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20626 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21168 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20997 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21003 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21164 of 2015
With
Page 1 of 65
HC-NIC Page 1 of 65 Created On Sat Sep 03 03:28:08 IST 2016
C/SCA/20979/2015 CAV JUDGMENT
SPECIAL CIVIL APPLICATION NO. 21165 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21166 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21201 of 2015
With
SPECIAL CIVIL APPLICATION NO. 105 of 2016
With
SPECIAL CIVIL APPLICATION NO. 106 of 2016
With
SPECIAL CIVIL APPLICATION NO. 107 of 2016
With
SPECIAL CIVIL APPLICATION NO. 108 of 2016
With
SPECIAL CIVIL APPLICATION NO. 109 of 2016
With
SPECIAL CIVIL APPLICATION NO. 110 of 2016
With
SPECIAL CIVIL APPLICATION NO. 126 of 2016
With
SPECIAL CIVIL APPLICATION NO. 127 of 2016
With
SPECIAL CIVIL APPLICATION NO. 176 of 2016
With
SPECIAL CIVIL APPLICATION NO. 178 of 2016
With
SPECIAL CIVIL APPLICATION NO. 181 of 2016
With
SPECIAL CIVIL APPLICATION NO. 182 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1358 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1349 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1471 of 2016
With
SPECIAL CIVIL APPLICATION NO. 179 of 2016
Page 2 of 65
HC-NIC Page 2 of 65 Created On Sat Sep 03 03:28:08 IST 2016
C/SCA/20979/2015 CAV JUDGMENT
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order NO
made thereunder ?
==========================================================
RAJESHBHAI CHHAGANBHAI CHOKHALIYA & 3....Petitioner(s)
Versus
DIRECTOR GENERAL OF POLICE GUJARAT POLICE DEPARTMENT &
2....Respondent(s)
==========================================================
Appearance:
M/S. Y.N.RAVANI, SUHAIL SAIYED, M.M.TIRMIZI, ANVESH V VYAS,
R.J.GOSWAMI, H.B.CHAMPAVAT, MIG MANSURI, BIPIN I.MEHTA,
(A.Y.KOGJE), MS.NIMISHA PAREKH, ADVOCATES for the Petitioners.
MS. MANISHA LAVKUMAR SHAH, GOVT. PLEADER, with MS.VACHA
DESAI, MR.UTKARSH SHARMA AND MR.K.M.ANTANI, AGPs., for the
Respondents.
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/09/2016
CAV JUDGMENT
Since the issues raised in all the captioned writ- applications are more or less the same, those were heard analogously and are being disposed of by this common Page 3 of 65 HC-NIC Page 3 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT judgment and order.
By these writ-applications, the writ-applicants, serving as the Head Constables (Unarmed), Class-III, and the Assistant Sub-Inspectors of Police (Unarmed), Class-III, respectively, have prayed for the following reliefs :
"(A) Be pleased to allow/admit this petition.
(B) Be pleased to direct the respondent no.2 to consider the application of the petitioner for the post of PSI (Unarmed) (Mode-III) and be pleased to permit the petitioners to appear in the recruitment procedure which is going to be held by the respondent no.2 in view of the communication dated 07/12/2015 Sheet-1/unarmed, PSI-
promotion/mode3/ 3618/2015.
(C) Pending admission and hearing of this petition, be pleased to direct the respondent no.2 to accept the application of the petitioners in view of the communication dated 07/12/2015 being No.Sheet- 1/unarmed, PSI-promotion/mode3/3618/2015.
(D) Be pleased to pass any such or further order/s as it may deem fit by this Hon'ble Court."
The writ-applicants seek to challenge the constitutional validity of Rule 2(1)(a) of the Police Sub-Inspector (Unarmed), Class-III, Recruitment Rules, 2008 as unconstitutional being arbitrary and violative of Articles 14 and 16 of the constitution of India. The challenge to the constitutional validity is substantially on the ground that Rule 2(1)(a) of the Rules, 2008, is arbitrary, unreasonable and irrational. In exercise of the powers conferred by clause (b) of Section 5 of the Bombay Police Act, 1951 (Bombay XXII of 1951) and in supersession of all the rules made in this behalf, the Government of Gujarat framed rules to provide for regulating the recruitment to the Page 4 of 65 HC-NIC Page 4 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT post of Police Sub-Inspector (Unarmed), Class-III, in the Gujarat State Police Service called "the Police Sub-Inspector (Unarmed), Class-III, Recruitment Rules, 2008". Rule 2 thereof provides for the manner of appointment. Rule 2 reads as under
:
"2. Manner of Appointment.- Appointment to the post of Police Sub-Inspector (Unarmed) Class III, in the Gujarat State Police Service shall be made either -
(1) by promotion of a person of proved merit and efficiency from amongst the persons who -
(a) have worked for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed), Class III, in the Gujarat State Police Service :
Provided that where the appointing authority is satisfied that a person having the experience as specified above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two-thirds of the period specified above;
(b) have passed the departmental examination as prescribed under rule 165 of the Gujarat Police Manual, 1975 (Part I);
(c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006; and
(d) have fulfilled the minimum requisite standards of physical efficiency test, as may be prescribed by the Government from time to time in this behalf;
Or (2) by promotion of a person on the basis of merit rank Page 5 of 65 HC-NIC Page 5 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT obtained in the Special Competitive Examination conducted in accordance with the rules prescribed by Government in that behalf and who-
(a) have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III, in the Gujarat State Police Service;
(b) have passed the prescribed departmental examination as prescribed under rule 165 of the Gujarat Police Manual, 1975 (Part I);
(c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006;
(d) have fulfilled the minimum requisite standards of physical fitness, as may be prescribed by Government from time to time in this behalf; and
(e) have passed the Higher Secondary School Certificate Examination (Standard XII, 10+2 pattern) or Secondary School Certificate Examination (Standard XI old pattern) conducted by the State's Secondary and Higher Secondary Examination Board or possess an equivalent qualification recognised as such by the Government;"
We are concerned with Rule 2(1)(a), which provides that for the purpose of seeking promotion to the post of Police Sub- Inspector (Unarmed), Class-III, the person should have worked for not less than five years in the cadre of Assistant Sub- Inspector (Unarmed), Class-III, in the Gujarat State Police Service.
It is the case of the writ-applicants that this stipulation of the period of five years is arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India.Page 6 of 65
HC-NIC Page 6 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT It is the case of the writ-applicants that they should be considered for promotion to the post of Police Sub-Inspector (Unarmed), Class-III without insisting for the completion of the period of five years in the cadre of Assistant Sub-Inspector (Unarmed), Class-III.
I. Submissions on behalf of the writ-applicants :
All the learned counsel appearing for the respective writ- applicants vehemently submitted that their clients have a right to be considered for promotion irrespective of the fact whether they have worked for a minimum period of five years in the cadre of Assistant Sub-Inspector (Unarmed), Class-III, or not.
It is submitted that Rule 2(1)(a) of the Rules 2008 is unconstitutional as the same is arbitrary and has no reasonable nexus with the object sought to be achieved.
It has been vehemently submitted that many of the writ- applicants serving as the Head Constables have been granted the benefit of the higher pay-scale which is as good as a promotion to the post of the Assistant Sub-Inspector. If that be so, then they could be said to have completed more than five years of service in the cadre of the Assistant Sub-Inspector (Unarmed), Class-III.
It was also submitted that the cadre of the Police Constable is a district cadre. The promotional post for a Police Constable is the Head Constable which is also a district cadre. The promotion is on the basis of the seniority and no Page 7 of 65 HC-NIC Page 7 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT examination is provided. Similarly, for the post of the Assistant Sub-Inspector, there is no examination and the promotion is on the basis of the seniority subject to the availability of the posts in a particular district. However, the cadre of the Police Sub- Inspector is a State cadre. It is pointed out that under the fortuitous circumstances all the Police Constables having been appointed in a particular district against the Police Constables appointed in the other districts may get promoted to the posts of Head Constable and Assistant Sub-Inspector over a period of time. In few districts, a person may be able to get the promotion within 6 to 7 years, while in other districts, it would take about 20 to 25 years.
It has been submitted that all the Assistant Sub- Inspectors should be permitted to appear for the posts of Police Sub-Inspector in Mode-3 examination without insisting for minimum five years of experience on the post of the Assistant Sub-Inspector.
The learned counsel further submitted that the doctrine of legitimate expectation would also apply to the cases in hand. The learned counsel have placed reliance on the following decisions :
(1) Mohd. Usman and others v. The State of A.P., AIR 1971 SC 1801;
(2) Jagdish Prasad Sinha and others v. Bhagwat Prasad and others, AIR 1989 SC 1794;
(3) State of Rajasthan v. Fateh Chand Soni, (1996)1 SCC 562;
(4) State Bank of India etc. v. Kashinath Kher and others, AIR 1996 SC 1328.Page 8 of 65
HC-NIC Page 8 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT According to the learned counsel, all the writ-applications merit consideration and those be allowed and the reliefs as prayed for be granted.
On the other hand, all the writ-applications have been vehemently opposed by Ms.Manisha Lavkumar Shah, the learned Government Pleader appearing for the respondents. She submitted that no case worth the name could be said to have been made out to declare Rule 2(1)(a) of the Rules, 2008, as unconstitutional on the ground of being arbitrary or violative of Articles 14 and 16 of the Constitution of India.
Ms.Shah, the learned Government Pleader, submitted that the grant of the higher pay-scale by itself would not amount to promotion within the meaning of Rule 2(1)(a) of the Rules 2008. The grant of the higher pay-scale at best would amount to promotion to a higher pay-scale but not to a higher post. She submitted that the intention of the Legislature is quite clear. The plain reading of Rule 2(1)(a) of the Rules 2008 makes it abundantly clear that the incumbent concerned should have worked for a minimum period of five years in the cadre of the Assistant Sub-Inspector (Unarmed), Class-III, for the purpose of seeking promotion to the post of the Police Sub- Inspector (Unarmed).
According to the learned Government Pleader, there is always a presumption in favour of the constitutionality of a statute and the burden is on the person asserting to establish that the same is unconstitutional.
Page 9 of 65HC-NIC Page 9 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT The learned Government Pleader further pointed out that the submission canvassed on behalf of the writ-applicants that in some districts the promotions from the posts of the Constable to the Head Constable and the Head Constable to the Assistant Sub-Inspector are granted within a period of five to six years, whereas so far as the writ-applicants are concerned, having regard to their place of work, the position is not so, is without any merit. The learned Government Pleader explained that all the three posts are district cadre posts and each district maintains its own seniority list. Even the number of posts would differ from district to district. In such circumstances, according to the learned Government Pleader, no person can claim as a matter of right that he should be given the uniform treatment so far as the promotion is concerned.
The learned Government Pleader Ms.Shah has placed reliance on the following averments made in the affidavit-in- reply duly affirmed by one Shri V.K.Mall, Additional Director General of Police (Administration), State of Gujarat :
"6. It is submitted that the present controversy revolves around promotion to the post of Police Sub-Inspector (unarmed) Class0 III. The promotional channel so far as persons, who are appointed in unarmed wing list concerned as are under :-
1. Constable Head Constable Assistant Sub Inspector Page 10 of 65 HC-NIC Page 10 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT Police Sub Inspector
2. It is submitted that, the lowest cadre in police department is constable. So far as the State of Gujarat is concerned, there are two separate cadres as armed and unarmed. Any person who is appointed in a particular cadre has/have own promotional channel which in present case is the unarmed wing.
7. It is submitted that, for recruitment to the post of Police Sub-Inspector (unarmed), Class- III is concerned, there are three modes:
I. Direct selection, II. By special competitive examination (mode-II) and III. By way of promotion from A.S.I. i.e. mode-III.
Recruitment rules to the post of Police Sub-Inspector (unarmed), Class- III were formulated in the year 2003 by way of a notification dated 22/08/2003.
8. It is submitted that, the 2003 Recruitment Rules are superseded as 2008 recruitment rules come into the force. A notification on that effect was issued on 27/08/2008.
9. It is submitted that so far as departmental promotion to the post of Police Sun-Inspector (unarmed), Class - III by way of Mode- III is concerned, Rule 2 (1) (a) of the 2008 recruitment rules will governed case are inter alia provides that a person, who has worked as ASI (unarmed) not less than 5 years, would be eligible to be considered for promotion to the post of Police Sub-
Inspector.
11. It is submitted that, it is a well-known that as far as feeder posts in any department, they will be large in numbers. But as one goes up the hierarchy in posts, there will be less in numbers. Thus, all persons, who are appointed in the feeder cadre can't be promoted to higher post, even though they may be eligible.
Page 11 of 65HC-NIC Page 11 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT
12. It is submitted that with a view to see that a person who is stagnant at a post and is not granted promotion due to lack of promotional posts or any administrative reasons, does not fell disregarded policy of higher pay scale is formed.
13. It is submitted that, the policy of higher pay scale prescribes that if a person who has worked for number of years on a particular post and if he/she is not granted promotion, then he/she is granted the pay-scale of his immediate "promotional post" which is known as "higher pay scale" in service jurisprudence.
14. It is submitted that, for grant of higher pay-scale, there are 2 basic requirements i.e. (1) There has to be a promotional post.
(2) Person have to be eligible for promotional post.
15. It is submitted that, thus, with a view to see that a person who is working on a post for number of years, who is not granted promotion is being granted "pay scale" of the promotional post. Thus the person remains to work in lower cadre, but he is granted the "pay scale"
of promotion post. BY grant of higher pay-scale, the status of a person in terms of his holding post is concerned does not changes, neither he starts discharging duty of higher post. It is only the pay-scale of promotional post is granted.
16. It is submitted that, thus, grant of higher pay-scale cannot be termed as promotion. The Hon'ble Apex Court had distinguished between promotion and higher pay- scale....
17. It is submitted that, as far as promotion is concerned, there are various things which are required to be taken into consideration such as number of posts, seniority, merit etc. But as far as grant of higher pay-scale is concerned, any of the above referred factors are not required to be taken into consideration. It is only length of service and other eligibility for promotional post, which is required to be taken into consideration.
18. It is submitted that, while granting higher pay scale Page 12 of 65 HC-NIC Page 12 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT one of the condition which is attached is that the concerned employee has to give an undertaking that in the event when actual promotion is granted to him and at that stage if he refuses to accept promotion the higher pay scale which is granted to him will be withdrawn. This condition further clarifies that grant of higher pay scale is not actual promotion.
19. It is submitted that, there is one more eligibility criteria for promotion to the post of PSI that is a person of having worked for not less than 5 years, as ASI.
20. Thus, a person for being eligible he/she has to actually worked as five years as ASI i.e. he/she has to actually perform duty and functions of the post of ASI.
21. It is submitted that, any of the petitioners have not actually worked as an ASI for five years which is the mandatory eligible criteria.
22. It is submitted that, a contention is raised that in some districts promotions from Constable to Head Constable and Head Constable to ASI are granted, where as in cases of petitioners regular promotions are not granted and therefore also they should be considered as eligible. It is required to be noted that all 3 above referred posts are district cadre posts and all districts have their own seniority. Even number of posts differs from district to district. Thus it cannot be claimed as a matter of right that since a person who is working in some other district is being granted promotion same treatment should have been accorded to him/her also and if that would have been granted the petitioners would have become eligible.
23. It is submitted that, thus only because promotion is not granted to petitioners either from constables to head constables and from head constables to ASI can not be a ground to claim eligibility for promotion to post of PSI dehorse the statutory framed rules for promotion."
The learned Government Pleader has placed reliance on the decision of the Supreme Court in the case of Bharat Sanchar Nigam Ltd. v. R.Santhakumari Velusamy and others, Page 13 of 65 HC-NIC Page 13 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT AIR 2011 SC 3793.
The learned Government Pleader would submit that there being no merit in any of the writ-applications, they may be rejected.
ANALYSIS :
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the writ-applicants are entitled to any of the reliefs prayed for in the writ-applications.
On 23rd December 2015, the following order was passed :
"Petitioners have challenged action of the respondent authorities of non inclusion of the petitioners and others for the recruitment in the cadre of Police Sub Inspectors [Unarmed] by way of Mode III which is promotional post from the cadre of Asstt. Police Sub Inspectors [Unarmed] for those employees who have worked for not less than five years in the cadre of Assistant Police Sub Inspectors [Unarmed] Class III in the Gujarat State Police Service. In otherwords, only those who have completed five years of service in the cadre of ASI are eligible as per the Rules to apply under the said mode.
It is the case of the petitioners that they have already been given higher pay-scale on their having fulfilled the eligibility criteria for being promoted to the post of Asstt. Police Sub Inspector. For want of availability of the posts or for any other reason, the actual posting was not given to some of the petitioners who have been already promoted to such post and thus, they have not completed the period of five years as required under the rules. Whereas, some of them who have not been posted, but have already awarded higher pay scale have approached this Court with a request that grant of higher Page 14 of 65 HC-NIC Page 14 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT pay scale for want of availability of the post would entitle them under the Rules to be considered for the post of Police Sub Inspectors by way of Mode III.
Both the sides have been heard. Learned Assistant Government Pleader Mr. Rindani appearing for the State, on being served with an advance copy of the memo of petitions and on issuance of due service of the notice in some of the petitions, has pressed into service the decision of the Apex Court rendered in case of Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy & Ors., reported in AIR 2011 SC 3793 where the Court has held thus;
"21. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge :
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity.
Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is advancement to a higher position and advancement to a higher pay scale - are described by the common term `promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale Page 15 of 65 HC-NIC Page 15 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(v) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does Page 16 of 65 HC-NIC Page 16 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.
Whether in the instant case, the process is an up- gradation simplicitor or it had involved selection process, and therefore, a promotion, requires closure scrutiny. These matters since require consideration, hence RULE.
Bearing in mind the urgency, rule is made returnable on 6th January 2016. As the date of inviting applications in some of the Districts is 23rd December 2015 ie., today, and in some 31st December 2015, it is directed that such date shall be extended till 31st January 2016.
All the matters shall be heard peremptorily for final disposal on the returnable date."
II. Constitutional validity of Rule 2(1)(a) of the Rules 2008 :
It is a settled position of law that a statute can be invalidated or held unconstitutional -
(i) if it is ultra vires the Parent Act;
(ii) if it is contrary to the statutory provisions other than those contained in the Parent Act;
(iii) if law making power has been exercised in bad faith;
(iv) if it is not reasonable and it goes against the legislative policy; and
(v) if it does not fulfill the object and purpose of the enabling Act.
I find it appropriate to refer to and rely on a decision of Page 17 of 65 HC-NIC Page 17 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT the Apex Court in the case of Government of Andhra Pradesh and others v. P.Laxmi Devi, (2008)4 SCC 720. In the case before the Apex Court, the challenge was to the constitutional validity of Section 47-A of the Stamp Act. Before the Apex Court, the argument was that under Section 47-A, a party is required to deposit 50% of the deficit stamp duty as a condition precedent for a reference to the Collector under Section 47-A and that the estimate which is made by the Registering authority is only provisional and would attain finality only after the Collector on a reference under Section 47-A adjudicates the same, and for the reference for such adjudication, no obligation could be imposed to deposit 50% of the deficit duty. The contention before the Apex Court was that the said provision contained in the proviso to Section 47-A of Stamp Act was arbitrary and unreasonable violating the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution. Negativing such contention, the Supreme Court held as under :-
"29. In our opinion in this situation it is always open to a party to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to Section 47-A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47-A of the Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi Vs. Union of India. Hence, the party is not remediless in this situation.
30. However, this would not mean that the proviso to Section 47-A becomes unconstitutional. There is always a difference between a statute and the action taken under Page 18 of 65 HC-NIC Page 18 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT a statute. The statute may be valid and constitutional, but the action taken under it may not be valid. Hence, merely because it is possible that the order of the registering authority under the proviso to Section 47-A is arbitrary and illegal, that does not mean that the proviso to Section 47-A is also unconstitutional. We must always keep this in mind when adjudicating on the constitutionality of a statute."
As a matter of fact, in the case of the Government of Andhra Pradesh (supra), the Apex Court has dealt with very exhaustively the issue as to whether the Courts have the power to declare the Act of the Legislature to be invalid. While answering the question in the affirmative, the Supreme Court has exhaustively explained as to how and when the power of the Court to declare the statute as unconstitutional be exercised. The observations contained in paras 32 to 68 are relevant. Those are elicited as under :
A. Do Courts have the power to declare an Act of the Legislature to be invalid?
The answer to the above question is : Yes. The theoretical reasoning for this view can be derived from the theory in jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law).
According to Kelsen, in every country there is a hierarchy of legal norms, headed by what he calls as the Grundnorm' (The Basic Norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail (see Kelsen's The General Theory of Law and State').
In India, the Grundnorm is the Indian Constitution, and the hierarchy is as follows:Page 19 of 65
HC-NIC Page 19 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT
(i) The Constitution of India;
(ii) Statutory law, which may be either law made by Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.;
(iv) Purely executive orders not made under any Statute.
If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non enforceable).
The first decision laying down the principle that the Court has power to declare a Statute unconstitutional was the well-known decision of the US Supreme Court in Marbury v. Madison, 5 U.S. (1Cranch) 137 (1803). This principle has been followed thereafter in most countries, including India.
B. How and when should the power of the Court to declare the Statute unconstitutional be exercised?
Since, according to the above reasoning, the power in the Courts to declare a Statute unconstitutional has to be accepted, the question which then arises is how and when should such power be exercised.
Page 20 of 65HC-NIC Page 20 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT This is a very important question because invalidating an Act of the Legislature is a grave step and should never be lightly taken. As observed by the American Jurist Alexander Bickel "judicial review is a counter majoritarian force in our system, since when the Supreme Court declares unconstitutional a legislative Act or the act of an elected executive, it thus thwarts the will of the representatives of the people; it exercises control, not on behalf of the prevailing majority, but against it." (See A. Bickel's The Least Dangerous Branch') The Court is, therefore, faced with a grave problem. On the one hand, it is well settled since Marbury v. Madison (supra) that the Constitution is the fundamental law of the land and must prevail over the ordinary statute in case of conflict, on the other hand the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The Court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances.
I have observed above that while the Court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection. This requires clarification, since, sometimes Courts are perplexed as to whether they should declare a statute to be constitutional or unconstitutional.
The solution to this problem was provided in the classic essay of Prof James Bradley Thayer, Professor of Law of Harvard University entitled 'The Origin and Scope of the American Doctrine of Constitutional Law' which was published in the Harvard Law Review in 1893. In this article, Professor Thayer wrote that judicial review is strictly judicial and thus quite different from the policy- making functions of the executive and legislative branches. In performing their duties, he said, judges must take care not to intrude upon the domain of the other branches of government. Full and free play must be Page 21 of 65 HC-NIC Page 21 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT permitted to that wide margin of considerations which address themselves only to the practical judgment of a legislative body. Thus, for Thayer, legislation could be held unconstitutional only when those who have the right to make laws have not merely made a mistake (in the sense of apparently breaching a constitutional provision) but have made a very clear one, so clear that it is not open to rational question. Above all, Thayer believed, the Constitution, as Chief Justice Marshall had observed, is not a tightly drawn legal document like a title deed to be technically construed; it is rather a matter of great outlines broadly drawn for an unknowable future. Often reasonable men may differ about its meaning and application. In short, a Constitution offers a wide range for legislative discretion and choice. The judicial veto is to be exercised only in cases that leave no room for reasonable doubt. This rule recognizes that, having regard to the great, complex ever-unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the Constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the Constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is not clearly in violation of a constitutional provision is valid even if the Court thinks it unwise or undesirable. Thayer traced these views far back in American history, finding, for example, that as early as 1811 the Chief Justice of Pennsylvania had concluded:
"For weighty reasons, it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this Court, and every other Court of reputation in the United States, that an Act of the legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt" vide Commonwealth ex. Rel. O'Hara v. Smith, [4 Binn. 117] (Pg.1811).
Thus, according to Prof. Thayer, a Court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question. In other words, the Court can declare a statute to be unconstitutional only when there can be no manner of Page 22 of 65 HC-NIC Page 22 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT doubt that it is flagrantly unconstitutional, and there is no way of avoiding such decision. The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the State the legislature, the executive and the judiciary, must respect each other and must not ordinarily encroach into each other's domain. Also the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people, and in a democracy this will is not to be lightly frustrated or obstructed.
Apart from the above, Thayer also warned that exercise of the power of judicial review "is always attended with a serious evil", namely, that of depriving people of "the political experience and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors" and with the tendency "to dwarf the political capacity of the people and to deaden its sense of moral responsibility".
Justices Holmes, Brandeis and Frankfurter of the United States Supreme Court were the followers of Prof. Thayer's philosophy stated above. Justice Frankfurter referred to Prof Thayer as "the great master of constitutional law", and in a lecture at the Harvard Law School observed "if I were to name one piece of writing on American Constitutional Law, I would pick Thayer's once famous essay because it is the great guide for judges and therefore, the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions". (vide H. Phillip's Felix Frankfurter Reminisces' 299-300, 1960).
In my opinion, there is one and only one ground for declaring an Act of the Legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways, e.g. if a State legislature makes a law which only the Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the Page 23 of 65 HC-NIC Page 23 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Mark Netto v. Government of Kerala and others, AIR 1979 SC 83 (para 6). Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.
In a dissenting judgment in Bartels v. Iowa, 262 US 404 412(1923), Justice Holmes while dealing with a state statute requiring the use of English as the medium of instruction in the public schools (which the majority of the Court held to invalid) observed "I think I appreciate the objection to the law but it appears to me to present a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the United States prevents the experiment being tried".
The Court certainly has the power to decide about the constitutional validity of a statute. However, as observed by Justice Frankfurter in West Virginia v. Barnette, 319 U.S. 624 (1943), since this power prevents the full play of the democratic process it is vital that it should be exercised with rigorous self restraint.
In this connection, I may quote from the article titled, 'The Influence of James B Thayer Upon the Work of Holmes, Brandeis & Frankfurter' by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978), which is as follows:
"If, then, the Thayer tradition of judicial modesty is outmoded if judicial aggression is to be the rule in policy matters, as in the 1930's some basic issues remain. First, how legitimate is government by judges ? Is anything to be beyond the reach of their Page 24 of 65 HC-NIC Page 24 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT authority ? Will anything be left for ultimate resolution by the democratic processes for what Thayer called "that wide margin of considerations which address themselves only to the practical judgment of a legislative body" representing (as courts do not) a wide range of mundane needs and aspirations ? The legislative process, after all, is a major ingredient of freedom under government.
Legislation is a process slow and cumbersome. It turns out a product laws that rarely are liked by everybody, and frequently little liked by anybody. When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp as the only alternative way of life, the compromises of legislation appear but another name for hat we call civilization and even revere as Christian forbearance.
Let philosophy fret about ideal justice. Politics is our substitute for civil war in a constant struggle between different conceptions of good and bad. It is far too wise to gamble for Utopia or nothing to be fooled by its own romantic verbiage. Above all, it knows that none of the numerous clashing social forces is apt to be completely without both vice and virtue. By give and take, the legislative process seeks not final truth, but an acceptable balance of community interests. In this view the harmonizing and educational function of the process itself counts for more than any of its legislative products. To intrude upon its pragmatic adjustments by judicial fiat is to frustrate our chief instrument of social peace and political stability.
Second, if the Supreme Court is to be the ultimate policy-making body without political accountability how is it to avoid the corrupting effects of raw power? Can the Court avoid the self-inflicted wounds that have marked other episodes of judicial imperialism? Can the Court indeed satisfy the expectations it has already aroused?Page 25 of 65
HC-NIC Page 25 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT A third cluster of questions involves the competence of the Supreme Court as a legislative body. Can any nine men master the complexities of every phase of American life which, as the post 1961 cases suggest, is now the Court's province? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions. If courts are to rely upon social science data as facts, they must recognize that such data are often tentative at best, subject to varying interpretations, and questionable on methodological grounds. Moreover, since social science findings and conclusions are likely to change with continuing research, they may require a system of ongoing policy reviews as new or better data become available. Is the judiciary capable of performing this function of supervision and adjustment traditionally provided by the legislative and administrative processes?
Finally, what kind of citizens will such a system of judicial activism produce a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law. Such are the problems addressed by and at least in the minds of jurists like Holmes, Brandeis, and Frankfurter resolved by Thayer's doctrine of judicial restraint".
I respectfully agree with the views expressed above, and endorse Thayer's doctrine of self restraint.
In my opinion, judges must maintain judicial self-restraint while exercising the power of judicial review of Page 26 of 65 HC-NIC Page 26 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT legislation. "In view of the complexities of modern society", wrote Justice Frankfurter, while Professor of Law at Harvard University, "and the restricted scope of any man's experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and expressed in memorable language:
"It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong."
(See Frankfurter's 'Mr. Justice Holmes and the Supreme Court') In my opinion, the Legislature must be given freedom to do experimentations in exercising its powers, provided of course it does not clearly and flagrantly violate its constitutional limits.
As observed by Mr.Justice Brandeis of the U.S. Supreme Court in his dissenting judgment in New State Ice Co. v. Liebmann, 285 U.S. 262 (310-11) :
"The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and in situations to meet changing social and economic needs.
To stay experimentation in things social and Page 27 of 65 HC-NIC Page 27 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation."
In writing a biographical essay on the celebrated Justice Holmes of the U. S. Supreme Court in the dictionary of American Biography, Justice Frankfurter wrote:
"It was not for him (Homes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic route of skepticism by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest."
(See 'Essays on Legal History in Honour of Felix Frankfurter' edited by Morris D. Forkosch) In this connection, Justice Frankfurter while Professor of Law at Harvard University wrote in 'The Public and its Government' --
"With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people."
In the same book Justice Frankfurter also wrote "In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who Page 28 of 65 HC-NIC Page 28 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT interpret. That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship."
In Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 (vide para 1547) Khanna J. observed: "In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error."
In my opinion, adjudication must be done within the system of historically validated restraints and conscious minimization of the judges personal preferences. The Court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step. As observed by this Court in State of Bihar v. Kameshwar Singh, AIR 1952, SC 252(274) :
"The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence".
In my opinion, the Court should, therefore, ordinarily defer to the wisdom of the Legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality.
As observed by the Constitution Bench decision of this Court in M. H. Quareshi v. State of Bihar, AIR 1958 SC 731 (vide para 15) :
"The Court must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest, and finally that in order Page 29 of 65 HC-NIC Page 29 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, common report, the history of the times, and may assume every state of facts which can be conceived existing at the time of the legislation."(See also Moti Das v. S.P. Sahi, AIR 1959 SC 942(947).
In the light of the above observations, the impugned amendment is clearly constitutional. The amendment was obviously made to plug a loophole in the Stamp Act so as to prevent evasion of stamp duty, and for quick collection of the duty. There are other statutes e.g. the Income Tax Act in which there are provisions for deduction at source, advance tax, etc. which aim at quick collection of tax, and the constitutional validity of these provisions have always been upheld.
C. Application of Thayer's Doctrine by the Courts :
In America, after the activist period of the U.S. Supreme Court which was at one time declaring Act after Act of the U.S. Congress to be invalid on the ground that it violated the due process clause in the U. S. Constitution or the right to liberty of contract, there was a realization by the Judges of the U.S. Supreme Court that they were following a confrontationist path vis-a-vis the U.S. Congress which was causing all kinds of major problems. Hence in 1937 the U.S. Supreme Court accepted Thayer's doctrine of judicial restraint, and the same was followed thereafter (except for the period of the Warren Court).
The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. This view was adopted by the Constitution Bench of this Court in Charanjit Lal Chowdhury v. Union of India and others, AIR 1951 SC 41 (para 10), which observed :
"Prima facie, the argument appears to be a Page 30 of 65 HC-NIC Page 30 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT plausible one, but it requires a careful examination, and while examining it, two principles have to be borne in mind : (1) that a law may be constitutional even through it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American Courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton v. Texas Power and L. Company, (248 U.S. 152 and 157), in which the relevant passage runs as follows :
"It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by expression and that its discriminations are based upon adequate grounds."
and this view has been consistently followed thereafter.
Thus in M/s. B. R. Enterprises v. State of U.P. and others, AIR 1999 SC 1867 this Court observed :
"Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment, vide Charanjit Lal Chowdhury v. Union Page 31 of 65 HC-NIC Page 31 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT of India 1950 SCR 869: AIR 1951 SC 41); State of Bombay v. F.N. Bulsara, 1951 SCR 682: (AIR 1951 SC 318), Mahant Moti Das v. S.P. Sahi (AIR 1959 SC
942)".
The following passage in Seervai, Constitutional Law of India (3rd Edn.) page 119 found approval in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 (Supp) 1 SCC 600: (AIR 1991 SC 101). The Court held:
"Seervai in his book Constitutional Law of India (3rd Edn) has stated at page 119 that:
"the courts are guided by the following rules in discharging their solemn duty to declare laws passed by a legislature unconstitutional:
(1) There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; 'to doubt the constitutionality of a law is to resolve it in favour of its validity'.
*** *** *** (6) A statute cannot be declared unconstitutional merely because in the opinion of the court it violates one or more of the principles of liberty, of the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution"
Similarly in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others, AIR 2001 SC 724 (vide para
9), a Constitution Bench of this Court observed:
"9.....There is always a presumption that the Page 32 of 65 HC-NIC Page 32 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will Shell Company of Australia v. Federal Commissioner of Taxation, 1931 AC 275(Privy Council). The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of construction that if one construction being given the statute will become ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the Court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction."
In State of Bihar and others v. Bihar Distillery Ltd., AIR 1997 SC 1511 (vide para 18), a Constitution Bench of this Court observed :
"17. ... The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly Page 33 of 65 HC-NIC Page 33 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT established before an enactment is declared as void."
The same view has been taken by the Constitution Bench of this Court in Hamdard Dawakhana and another v. Union of India, AIR 1960 SC 554 (vide para 9) which observed :
"9.... Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people, that the laws it enacts are directed to problems which are made manifest by experience, and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. Charanjit Lal v. Union of India, 1950 SCR 869: (AIR 1951 SC 41); State of Bombay v. F.N. Baulsara, 1951 SCR 682 at p.708; (AIR 1951 SC 318 at p. 326); AIR 1959 SC
942."
As observed by the Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation, (1931) AC 275 (298) :
"Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will."
Hence if two views are possible, one making the provision in the statute constitutional, and the other making it unconstitutional, the former should be preferred vide Kedarnath v. State of Bihar, AIR 1962 SC
955. Also, if it is necessary to uphold the constitutionality of a statute to construe its general words narrowly or widely, the Court should do so vide G.P.Singh's Principles of Statutory Interpretation, 9th Edition, 2004 page 497'.
Page 34 of 65HC-NIC Page 34 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT Thus the word Property' in the Hindu Women's Right to Property Act, 1937 was construed by the Federal Court in In re Hindu Women's Right to Property Act, AIR 1941 FC 72 to mean property other than agricultural land', otherwise the Act would have become unconstitutional.
The Court must, therefore, make every effort to uphold the constitutional validity of a Statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the Court declare a statute to be unconstitutional.
Thus, the law is well-settled that the courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and the courts do not examine the wisdom of the legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of "substantive due process" employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. Therefore, it is not permissible for this Court to declare a statute unconstitutional on the ground that it is "arbitrary". (see Rajbala and others v. State of Haryana and others (Writ Petition (Civil) No.671 of 2015 decided on 10th December 2015.
In the case of State of Andhra Pradesh and others v. McDowell and Co. and others, (1996)3 SCC 709, a three-Judge Bench of the Supreme Court observed as under :
"In other words, say, if an enactment is challenged as Page 35 of 65 HC-NIC Page 35 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary** or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (See Council of Civil Services Union v. Minister for the Civil Services, (1985 AC 374), which decision has been accepted by this Court as well). The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for the Home Department Ex-parte Brind, (1991 AC 696 at 766-7 and 762. It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal (1995 AIR SCW 355), we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 as violative of Articles 14, 19 and 300-A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as Page 36 of 65 HC-NIC Page 36 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT compared to the procedure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of compensation in installments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed:
"7. When a statute is impugned under Article 14 what the Court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
Only by virtue of the fact that the chances of promotion of the writ-applicants are getting marred by the condition imposed of minimum of five years of service in the cadre of the Assistant Sub-Inspector by itself will not render the rule in question as violative of Articles 14 and 16 of the Constitution of India.
In regard to the aforesaid, I may profitably refer to and rely on the decision of the Supreme Court in the case of Jagdish Lal and others v. State of Haryana and others, AIR 1997 SC 2366. The observations as contained in para 11 are relevant. Those are elicited as under :
"11....In State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130 : (AI 1981 SC 1990), another Bench of three Judges in paragraph 16 at page 141 had held that :
"(M)ere chances of promotion are not conditions of service, and the fact that there was reduction in the Page 37 of 65 HC-NIC Page 37 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT chances of promotion did not tantamount to a change, in the conditions of service." In K. Jagadeesan v. Union of India, (1990) 2 SCC 228 at 230 : (AIR 1990 SC 1072 at p. 1074), in para 6, it was held that " a right to be considered for promotion is a term of service. But mere chances of promotion are not"; so also the eligibility for promotion. Passing of the departmental examination is nothing but a mere chance of promotion. In Ashok Kumar Gupta v. State of U. P. (1997) (3) Scale 289 at 299, para 22, this Court comprising all the three of us, had held that "in service jurisprudence, a distinction between a right and interest had always been maintained. Seniority is a facet of interest. When the Rules prescribe the method of selection/recruitment, seniority is given as per the ranking given and governed by such rules as was laid in the rules."
Similar view taken in A.K.Bhatnagar v. Union of India, (1991) 1 SCC 544, was upheld by this Court. In Akhil Bhartiya Soshit Karamchari Sangh v. Union of India, (1996) 6 SCC 65 : (1996 Air SCW 3691), to which two of us, K.Ramaswamy and G.B.Pattanaik, were members, this Court had held that no member of the service has a vested right to promotion or seniority but an officer has an interest in seniority acquired by working out the rules. In Md. Shujat Ali v. Union of India, (1975) 1 SCR 449 :
(AIR 1974 SC 1631), a constitution Bench had held that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing conditions of service. In Mohd. Bakar v. Krishan Reddy, 1970 Serv LR 768, a Bench of three Judges had held that any rule which affects the promotion of a person, relates to conditions of service. In State of Mysore v. G. N. Purohit, 1967 Serv LR 753, a Bench of two Judges had held that rule which merely affects chances of promotion cannot be regarded as varying the condition of service. Chances of promotion are not conditions of service. In Syed Kahlid Rizvi v. Union of India, 1993 Supp (3) SCC 575, to which one of us K. R. S., J. was a member, it was held in para 31 that no employee has a right to promotion; the only right is that he is entitled to be considered for promotion according to rules. Chances of promotion are not conditions of service which are defeasible in accordance with the rules. Thus, it is settled Page 38 of 65 HC-NIC Page 38 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT principle in the service jurisprudence that mere chances of promotion are not conditions of service and a candidate appointed in accordance with the rules can steal a march over his erstwhile seniors in the feeder/lower cadre."
Since mere chances of promotion are not the conditions of service, therefore, the writ-applicants cannot question the vires of the Recruitment Rules.
I take notice of the fact that there are two categories of writ-applicants before me. First, those who are actually promoted to the posts of the Assistant Sub-Inspector and are working as the Assistant Sub-Inspector but yet to fulfill the minimum prescribed years of service, i.e. five years as the Assistant Sub-Inspector, and secondly, those set of the writ- applicants who have not been promoted as the Assistant Sub- Inspector but have been granted the higher pay-scale equivalent to that of the Assistant Sub-Inspector.
I am not impressed by the submission canvassed on behalf of the writ-applicants that the grant of the higher pay- scale equivalent to that of the Assistant Sub-Inspector amounts to promotion and, therefore, some of the writ-applicants could be said to have been promoted to the posts of the Assistant Sub-Inspector, and having completed five years of service from the date of such grant of the higher pay-scale, they are entitled to seek promotion to the posts of the Police Sub- Inspector (Unarmed).
At this stage, let me look into the decision of the Supreme Court in the case of Fateh Chand Soni (supra), on which strong reliance has been placed by the learned counsel Page 39 of 65 HC-NIC Page 39 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT appearing for the writ-applicants. In this case, a common question fell for the consideration of the Supreme Court, whether the seniority in the selection scale in the Rajasthan Police Service was to be fixed on the basis of the date of the appointment to the selection scale or on the basis of the seniority in the senior scale irrespective of the date on which the appointment is made to the selection scale. The Supreme Court, after considering the relevant rules governing the seniority, observed in para 8 as under :
"The High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word "promote" means "to advance to a higher position, grade, or honour". So also "promotion"
means "advancement or preferment in honour, dignity, rank, or grade". [See : Webster's Comprehensive Dictionary, International Edition, p. 1009]. "Promotion" thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression "promotion" has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post". [See : Union of India & Anr. v. S.S. Ranade, 1995 (4) SCC 462 at p. 468]."
Relying on the observations made by the Supreme Court in para 8 referred to above, it is sought to be argued that the grant of the higher pay-scale equivalent to that of the Assistant Sub-Inspector amounts to promotion within the meaning of Rule 2(1)(a) of the Rules 2008. I am afraid, the observations of the Supreme Court should not be torn out of the context. In the peculiar facts of the case and more particularly having regard to the issue raised therein such observations were made. The language employed in Rule 2(1)(a) of the Rules 2008 is plain Page 40 of 65 HC-NIC Page 40 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT and clear. The intention of the Legislature also seems to be very clear. The person should have actually worked in the cadre of the Assistant Sub-Inspector for a minimum period of five years. Mere grant of the higher pay-scale without having actually worked in the cadre of the Assistant Sub-Inspector will not amount to promotion to the cadre of the Assistant Sub- Inspector.
The observations of the Supreme Court in para 8 in the case of Fateh Chand Soni (supra) are made relying on the decision in the case of the Union of India and another v. S.S.Ranade, (1995)4 SCC 462.
In the case of S.S.Ranade (supra), the Supreme Court had examined an identical issue. In S.S.Ranade (supra), the issue was, whether a Commandant (Selection Grade) could be considered as holding a "rank" higher than that of a Commandant for the purposes of Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. The argument before the Supreme Court was that since a Commandant who becomes a Commandant (Selection Grade) secures a promotion to a higher pay scale, the Commandant (Selection Grade) could be said to be holding a higher post than the Commandant. To put it in other words, the contention canvassed on behalf of the respondent therein was that the rule clearly provided that a Commandant is eligible for promotion to the rank of Commandant (Selection Grade) and a Commandant (Selection Grade) alone was eligible for promotion to the rank of Additional Deputy Inspector General. While allowing the appeal filed by the Union of India and negativing the contention canvassed on behalf of Page 41 of 65 HC-NIC Page 41 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT the respondent, viz. S.S.Ranade, the Supreme Court observed as under :
"9. This submission is based on a misunderstanding of what is meant by Selection Grade. Undoubtedly, a Commandant who becomes a Commandant (Selection Grade) secures a promotion to a higher pay scale. But it is a higher pay scale in the same post. The use of the word 'promotion' in Rule 6 and the constitution of a Departmental Promotion Committee for selection of Commandant (Selection Grade) in Rule 7, do not necessarily lead to the conclusion that the promotion which is contemplated there is necessarily a promotion to a higher post. Promotion can be either to a higher pay scale or to a higher post. These two Rules and the use of the word 'promotion' there do not conclude the issue.
10. The respondent has also relied upon Rule 3 of the said Rules dealing with the seniority of officers. In the seniority list, all Commandants (Selection Grade) are placed above Commandants. According to the respondent, this would indicate that the Commandants (Selection Grade) hold a higher post than Commandants.
This submission also must be rejected. In the seniority list, a higher rank may be allotted to an officer for various reasons. One cannot, however, say that a person who holds a higher rank in the seniority list thereby occupies a higher post. In our view, Rules 3, 6 and 7 must be read in the context of a selection grade providing promotion to a higher pay scale in the same post. These Rules are consistent with the interpretation of a Selection grade post as granting the benefit of higher pay to the officers holding the same post.
11. Rule 9 provides a hierarchy of posts. Holders of all posts up to and including the level of Commandant retire at the age of 55 years. Holders of posts above that of a Commandant retire at the age of 58 years. In order to decide whether a post is either equivalent or is higher or lower than another post, one cannot look only at the pay scale for that post. One must also look at the duties and responsibilities that attach to such posts.
12. In the case of Lalit Mohan Deb v. Union of India, Page 42 of 65 HC-NIC Page 42 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT (1973) 3 SCC 862 : (AIR 1972 SC 995), this Court considered the position of Assistants in the Civil Secretariat, Tripura as against the position of Assistants (Selection grade). This Court held that the administration can provide two scales of pay in the same category of posts. Provision of Selection grade in the same category of posts is not a new thing. It is normally done with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts. It has observed (at Page 866) (of SCC) : (at P. 997 of AIR) :-
"It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency."
The ratio of this case applies directly to the present case where the raison detre for creating selection grade posts in the cadre of Commandants is identical, namely, prevention of stagnation and providing an incentive to employees or officers who do not have any outlet or have very limited outlets for promotion to higher posts because of the special circumstances set out earlier.
13. In the case of Dayaram Asanand Gursahani v. State of Maharashtra, (1984) 3 SCC 36 : (AIR 1984 SC 850), this Court was required to consider, inter alia, the position of District Judge (Selection Grade) in the cadre of District Judges in the State of Maharashtra. This Court held that the selection grade post did not constitute a separate cadre from that of the District Judge, nor was it a post to which promotion had to be made, nor did it involve an element of selection.
14. In the present case, an element of selection is involved in granting selection grade because there is no automatic promotion to the selection grade pay scale. But this factor is not decisive. In the present case also, as in the above cases, Selection Grade posts are created Page 43 of 65 HC-NIC Page 43 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT entirely for the purpose of granting some relief to those who have very limited avenues of getting promotion to a higher post. That is why a higher pay or pay scale is granted in the same post. Thus, by its very nature, a selection grade post cannot be considered as a higher post for the purposes of Rule 9.
15. The High Court in its impugned judgment has referred to Article 311 (2) of the Constitution. It has considered how different posts in the Civil service of the Union or the States or All-India services are compared or ranked with reference to one another in order to ascertain whether, in a given case, there is reduction in rank under Article 311 (2) by transfer from one post to another post. In this connection the High Court has emphasised that posts carrying different designations and different duties may be considered equivalent in rank if they are in the same pay scale. In this context pay scale may be a good yardstick for measuring rank. But this has no application to selection grade posts. Because the creation of a selection grade in the same post stands on a very different footing. By its very nature a selection grade provides a higher pay or a higher pay scale in the same post. The beneficiary of a selection grade does not thereby occupy a post which is higher in rank than the post earlier occupied by him.
16. It is also pointed out by the appellants that if a selection grade is considered as a different post of a higher rank, and a higher age of retirement is prescribed for a Selection Grade post, that would defeat the very purpose of creating such posts. A higher retirement age would add to stagnation at that level and block promotions for others. The appellants have also relied upon a direction issued by them on 17th of September, 1981 in which it is pointed out that an officer of the rank of Commandant (Selection Grade) is entitled to wear the State Emblem with one star and not with two stars. So is a Commandant. We are informed that in this connection, litigation is pending in the J and K High Court. Pursuant to certain interim orders, a Commandant (Selection Grade) is permitted to wear two stars. In the Border Security Force Manual for 1991, paragraph 26 which deals with badges of rank, provides as follows "26. Badges of Rank.
Page 44 of 65HC-NIC Page 44 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT ..........................
(d) Ads. HQ The State Emblem and two stars. DG BSF Frontiers and DISG and Comdts (SG) of BNs (Entitled to wear) ............................."
The appellants have explained that only those Commandants (Selection Grade) are permitted to wear two stars who are entitled to wear the same. The appellants have explained that officers from the Army, Indian Police Service and State Police were taken on deputation for manning senior posts in the Border Security Force. Those officers who were entitled to wear two stars and State Emblem in their parent organisation are permitted to wear them. The Manual does not provide for the wearing of two stars and the State Emblem by Commandants (Selection Grade) who are otherwise not entitled to do so. In any event, looking to the instructions issued as far back as in 1981 and the resultant litigation, this aspect throws little light on the question before us.
17. In the premises, for the reasons which we have set out above, a Commandant (Selection Grade) does not get the benefit of a higher age of retirement under Rule 9. The appeal is allowed. The judgment and order of the High Court dated 25-8-1994 is set aside. The appellants are entitled to retire the respondent on his completing the age of 55 years. The appellants, however, shall not recover from the respondent any emoluments received by him during his continuance beyond the age of 55 years as a result of any orders of this Court or the Delhi High Court. There will be no order as to costs."
Thus, as to whether grant of higher pay scale is a promotion or not, would depend upon particular Rules/ Government Orders/Circulars, etc. The case of S.S.Ranade (supra) makes the picture more Page 45 of 65 HC-NIC Page 45 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT clear.
The right to be considered for promotion may be a fundamental right as laid down by the Supreme Court in the case of Union of India and others v. Sangram Keshari Nayak, (2007)6 SCC 704, but consideration for promotion has to be made in an effective manner and the mere denial of promotion on the basis of a valid rule cannot be a ground to say that the promotion rules are ultra vires. That apart, in the matter of creation of avenues for promotion and laying down criteria for promotion including the feeder cadre and number of posts to be filled up by promotion, action is taken by the executive authority based on various administrative considerations and the same cannot be subject to challenge or scrutiny, unless the statutory rules and regulations or constitutional provisions are violated. Mere absence of avenues of promotion or delay likely to be caused is not by itself a ground to hold that the rules are ultra vires.
I am also not impressed by the submission as regards the doctrine of legitimate expectation.
Legitimate in legal parlance means that which is lawful, legally recognized by law or according to law Expectation means the act or the instance of expecting or looking forward something expected or hoped for probability of an event and expectation is most often relatable to ones prospects. In Halsburys Laws of England, Fourth Edition, Volume-I(I) 151, legitimate expectations finds mention of the following :
"A person may have a legitimate expectation of being treated in a certain way of an administrative authority Page 46 of 65 HC-NIC Page 46 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat persons legitimate expectation, it must afford him an opportunity to make representations on the matter. The Courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not do so, and may therefore be entitled to greater procedural protection than a mere applicant for grant."
The Supreme Court in the case of Union of India v. Hindustan Development Corporation, [AIR 1994 SC 988] has pointed out that the concept of legitimate expectation first stepped into the English Law in Schmidt v. Secretary of State for Home Affairs, (1969) 2 Ch 149, wherein it was observed that an alien who had been given leave to enter the United Kingdom for a limited period had a legitimate expectation of being allowed to stay for the permitted time and if that permission was revoked before the time expires, that alien ought to be given an opportunity of making representations. Thereafter the concept has been considered in a number of cases. In A.G. of Hong Kong v. Ng Yuen Shiu, (1983) 2 AC 629, Lord Fraser said that the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the Page 47 of 65 HC-NIC Page 47 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT undertaking given by the Government of Hong Kong to the respondent that each case would be considered on its merits. In Council of Civil Services Union v. Minister for the Civil Service, (1984) 3 All ER 935, a question arose whether the decision of the Minister withdrawing the right to Trade Union membership without consulting the staff which according to the appellant was his legitimate expectation arising from the existence of a regular practice of consultation, was valid. It was contended that the Minister had a duty to consult the staff as per the existing practice and that though the employee did not have a legal right, he had a legitimate expectation that the existing practice and that though the employee did not have a legal right, he had a legitimate expectation that the existing practice would be followed. On behalf of the Minister on the basis of the evidence produced, it was contended that the decision not to consult was taken for reasons of national security. The Court held as under:-
"An aggrieved person was entitled to invoke judicial review if he showed that a decision of a public authority affected him by depriving him of some benefit or advantage which in the past he had been permitted to enjoy and which he could legitimately expect to be permitted to continue to enjoy either until he was given reasons for its withdrawal and the opportunity to comment on those reasons or because he had received an assurance that it would not be withdrawn before he had been given the opportunity of making representations against the withdrawal.
Noticing, however, Of late the doctrine of legitimate expectation is being pressed into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law, Page 48 of 65 HC-NIC Page 48 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT The Supreme Court has proceed to add, Since we have not come across any pronouncement of this Court on this subject explaining the meaning and scope of the doctrine of legitimate expectation, we would like to examine the same a little more elaborately at this stage, and put the questions, who is the expectant and what is the nature of the expectation? When does such an expectation become a legitimate one and what is the foundation for the same? What are the duties of the administrative authorities while taking a decision in cases attracting the doctrine of legitimate expectation.
The Supreme Court has thereafter answered the above as follows:-
28. Time is a three fold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right.
However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law of custom or an establishment procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.
29. It has to be noticed that the concept of legitimate expectation in administrative law has now, undoubtedly, gained sufficient importance. It is stated that Legitimate expectation is the latest recruit to a long list of concepts Page 49 of 65 HC-NIC Page 49 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT fashioned by the courts for the review of administrative action and this creation takes it place beside such principles as the rules of natural justice, unreasonableness, the fiduciary duty of local authorities and in future, perhaps, the principle of proportionately. A passage in Administrative Law, Sixth Edition by H.W.R. Wade page 424 reads thus:-
These are revealing decisions. They show that the courts now expect Government department to honour their published statements or else to treat the citizen with the fullest personal consideration. Unfairness in the form of unreasonableness here comes close to unfairness in the form of violation of natural justice, and the doctrine of legitimate expectation can operate in both contexts. It is obvious, furthermore, that this principle of substantive, as opposed to procedural, fairness may undermine some of the established rules about estoppel and misleading advice, which tend to operate unfairly. Lord Scarman has stated emphatically that unfairness in the purported exercise of a power can amount to an abuse or excess of power, and this seems likely to develop into an important general doctrine.
Another passage at page 522 in the above book reads thus:
It was in fact for the purpose of restricting the right to be heard that legitimate expectation was introduced into the law. It made its first appearance in a case where alien students of Scientology were refused extension of their entry permits as an act of policy by the Home Secretary, who had announced that no discretionary benefits would be granted to this sect. The court of Appeal held that they had no legitimate expectation of extension beyond the permitted time and so no right to a hearing, though revocation of their permits within that time would have been contrary to legitimate expectation. Official statements of policy, therefore, may cancel legitimate expectation, just as they may create it, as seen above. In a different context, where car-hire drivers had habitually offended against Airport Bye-laws, with many convictions and unpaid fines, it was held that they had not legitimate expectation of being heard before being banned by the Airport authority.Page 50 of 65
HC-NIC Page 50 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT There is some ambiguity in the dicta about legitimate expectation, which may mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case; absence of legitimate expectation will absolve the public authority from affording a hearing."
In some cases a question arose whether the concept of the legitimate expectations is an impact only on the procedure or whether it also can have a substantive impact and if so to what extent. Att.Gen. for New South Wales v. Quin, (1990)64 Australian Law Journal Reports 327 is a case from Australia in which this aspect is dealt with. In that case the Local Courts Act abolished Courts of Petty Sessions and replaced them by Local Courts. S. 12 of the Act empowered the Governor to appoint any qualified person to be a Magistrate in the new Courts system. Mr.Quin, who had been a Stipendiary Magistrate in charge of a Court of Petty Sessions under the old system applied for, but was refused, an appointment under the new System. That was challenged. The challenge was upheld by the appellate Court on the ground that the Selection Committee had taken into account an adverse report on him without giving a notice to him of the contents of the same. In the appeal by the Attorney General against that order before the High Court, it was argued on behalf of Mr.Quin that he had a legitimate expectation that he would be treated in the same way as his former colleagues considering his application on its own merits. Coming to the nature of the substantive impact of the doctrine, Brennan, J. observed that the doctrine of legitimate expectations ought not to unlock the gate which shuts the Court out of review on the merits. and that the Courts should not trespass into the forbidden filed of the Page 51 of 65 HC-NIC Page 51 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT merits by striking down administrative acts or decisions which failed to fulfill the expectations. In the same case Mason, C.J., was of the view that if substantive protection is to be accorded to legitimate expectations that would encounter the objection of entailing crucial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances.
In R.V. Secretary of State for the Home Department, ex parte Redudock, [(1987) 2 All ER 518], Taylor, J. after referring to the ration laid down in some of the above cases held thus:-
"On these authorities I conclude that the doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned, as Lord Roskill said, with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesi there is no right to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a Minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power. I accept the submission of counsel for the secretary of State that the respondent cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy, it could be incumbent on him in dealing fairly to publish the new policy, unless again that would conflict with his duties. Had the criteria here needed changing for national security reasons, no doubt the respondent could have changed them. Had those reasons prevented him also from publishing the new criteria, no doubt he could have refrain from doing so. He had even decided to keep the criteria but depart from them in this single case for national security reasons, no doubt those reasons would have afforded him a defence to judicial review as in the GCHQ case."Page 52 of 65
HC-NIC Page 52 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT In Breen v. Amalgamated Engineering Union, [(1971) 2 Queen Bench Division 175], Lord Denning observed as under:
"If a man seeks a privilege to which he has no particular claim such as an appointment to some post or other then he can be turned away without a word. He need not to be heard. No explanation need be given; see the cases cited in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, 170-171. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is man who has some right or interest, or some legitimate expectation of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand."
When a challenge is made on the basis of the doctrine of legitimate expectation, the Supreme Court pointed out, that the same would not give scope to claim relief straight way from the administrative authorities in the absence of any crystallized right. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise or the position changes at the last minute e.g. change in the policy, amendment in the rules and regulations etc. In other words, where a persons legitimate expectation is not fulfilled by taking a particular decision then the decision-maker should justify the denial of such expectation by showing some overriding public interest. In the present case no public interest is being projected for the purpose of deleting the names of the petitioners from the select list but the decision rendered by the Division Bench of this Court is being made the Page 53 of 65 HC-NIC Page 53 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT basis for denial of such expectation.
A person who puts forward his claim on the doctrine of legitimate expectation, in the first instance, most satisfy that there is a foundation and thus has the locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of the policy, the Court may refuse to interfere with such decision. In a given case whether there are such facts and circumstances, giving rise to the legitimate expectation, would be primarily a question of fact. If these tests are satisfied and if the Court is satisfied that a case of legitimate expectation is made out then the next question would be whether the failure to give an opportunity of hearing before the decision of affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which would be dependent on the several factors.
The Supreme Court in the case of Union of India (supra) has quoted from Schmidts case (1969(2) Ch149):-
"..........If a denial of legitimate expectation in a given case amounts to denial of rights guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to Page 54 of 65 HC-NIC Page 54 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT consider but of the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. If follows that the concept of legitimate expectation is not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits, particularly when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New South Wales case the Courts should restrain themselves and restrict such claims duly to the legal limitations. It is a well-meant caution. Otherwise a resourceful litigant having vested interests in contracts, licences etc., can successfully indulge in getting welfare activities mandated by a directive principles thwarted to further his own interest. The caution, particularly in the changing scenario, becomes all the more important."
A Constitution Bench of the Supreme Court in the Secretary, State of Karnataka v. Umadevi, [2006 (4) SCC 1] referred to the circumstances in which the doctrine of legitimate expectation can be invoked thus:
"The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without Page 55 of 65 HC-NIC Page 55 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."
Another Constitution Bench, referring to the doctrine, observed thus in the Confederation of Ex-servicemen Associations v. Union of India, [2006 (8) JT 547] :
"No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue."
"In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised."
Thus, from the above at least one thing is clear that no relief can be granted solely on the basis of the doctrine of legitimate expectation. It is true that anyone who joins a service has a legitimate expectation of some promotional Page 56 of 65 HC-NIC Page 56 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT avenues. However, the doctrine of legitimate expectation can be brought in aid with the other circumstances emerging from the record of the case including some right if not a indefeasible right.
At this stage, let me deal with the submission that the constitutional validity of Rule 2(1)(a) of the Rules 2008 may be upheld by applying the principle of "reading in" or "reading down". This submission proceeds on the footing that in Rule 2(1)(a) of the Rules 2008 the grant of the higher pay-scale equivalent to that of the Assistant Sub-Inspector should be read as promotion in the cadre of the Assistant Sub-Inspector for the purpose of calculating the minimum five years of service as the Assistant Sub-Inspector.
I am not impressed by such submission because there is no ambiguity in the rules as such. In such circumstances, the Court should read the rule as it is without "reading in" or "reading down" anything.
In Lt. Col. Prithi Pal Singh Bedi v. Union of India, [(1982) 3 SCC 140] at pages 404 - 405, it was observed as follows: (See :
SCC page 150 para 8):
"The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity, in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in. Rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need Page 57 of 65 HC-NIC Page 57 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates, examination of the broad features of the Act."
Thus, the doctrine of "reading down" or "reading in" can be applied in limited situations. It is essentially used, first, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible -- one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. Secondly, where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when a rule is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience.
The another significant factor which leans towards the interpretation put forward by the State of the rules is the stance of the State, which militates against the views canvassed on behalf of the writ-applicants. The Government being the author of the rules, its view is entitled to great Page 58 of 65 HC-NIC Page 58 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT weight and the burden of the writ-applicants to lift that weight, an uphill task by all means, has remained unfulfilled [See :
Ajeet Singh Singhvi v. State of Rajasthan, (1991) Supl (1) SCC 343].
Let me now look into the other decisions relied upon on behalf of the writ-applicants.
In Jagdish Prasad Sinha (supra), the appeal before the Supreme Court was directed against the decision of the Patna High Court quashing the notification under which in terms of the Subordinate Education Service (Teaching Branch) Determination of Seniority Rules framed under the proviso to Article 309 of the Constitution of India, the hitherto single cadre known as "the Secondary Education Service" was bifurcated. While affirming the judgment of the High Court, the Supreme Court observed in para 3 and 4 as under :
"3. The High Court considered matter at great length and with care. The legal position as settled by Several decisions of this Court was noticed. Towards the end of the judgment the High Court has said (1989 Lab IC 117 at p. 131) "We have referred to the judgment of the Supreme Court in K.S.Vora v. State of Gujarat (AIR 1987 SC 2348). only to illustrate that the courts have at no time ignored the interest of the employees and questioned the authority of the State to frame rules in terms of the proviso to Art. 309 of the Constitution of India, but the courts have always taken notice of the fact that those who stood together and fell in line to proceed further have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order. so that one who ranks higher in the grade may not go down in due course of service. It is in Page 59 of 65 HC-NIC Page 59 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT this context that we have no hesitation in holding that rules in the notification dated 18-11-1985 are ultra vires Arts. 16(1) and 14 of the Constitution.
We do not propose to predicate into what is alleged to be the mala fide of the respondent State inasmuch as after the judgment of this Court, in C.W.J.C. No. 2956 of 1975, the Minister of State decided to find means to disintegrate the already integrated cadre or the Chairman of the Legislative Council, having no apparent role in the process of making rules in terms of proviso to Art. 309 of the Constitution appeared and influenced the process. We refrain from going into this aspect, for we think, with our conclusion as above, the upper division of the Subordinate Education Service shall continue to have the same respect as it got from the judgment of this Court in C.W.J.C. No. 2956 of 1975 and 40 one in the Government shall in future again attempt to deny to the members of the said service their due rights for promotion to the selection grade and other higher posts."
4. In course of hearing of the matter, counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who wore lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. The High Court, in our opinion, rightly found fault with such action."
In my view, this decision has no application at all and is of no avail to the writ-applicants.
In the case of Mohd. Usman (supra), the issue before the Supreme Court was with regard to the constitutional validity of Rule 5 of the Andhra Pradesh Registration Subordinate Service Special Rules. The High Court struck down the rule on the ground that the same was violative of Article 14 of the Page 60 of 65 HC-NIC Page 60 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT Constitution of India. As a result of the same, it also quashed the recruitment of some of the respondents for being posted as the Sub-Registrar, Grade-II. The rules provided for the promotion to the posts of Sub-Registrar as well as for recruitment to those posts. Rule 2 provided that a post of Sub- Registrar, Grade-I should be filled up by promotion from the Sub-Registrars, Grade-II. So far as the Sub-Registrars, Grade-II, were concerned, they were to be appointed either by promotion from the reserved Sub-Registrars or by "recruitment by transfer from the Clerks of the Registration and Stamps Department including the office of the Registrar General of Birth, Deaths and Marriages and the office of the Registrar of the Firms". The Supreme Court, while allowing the appeal and holding that the High Court committed an error in declaring rule 5 as ultra vires Article 14 of the Constitution of India, observed in paragraphs 4 to 8 as under :
"4. It was urged that this rule is violative of Article 14 of the Constitution because though among the clerks there are U.D.Cs. as well as L.D.Cs., yet all of them had been put in one class for the purpose of recruitment. As per the Ministerial Service Rules the U.D.Cs. had to be selected from the L.D.Cs. after the L.D.Cs. had put in certain number of years of service and after they had passed the Accounts Test as well as the Registration Test. A. U.D.C. holds superior post to that of an L.D.C. His salary is higher and his conditions of service are better than that of an L.D.C. Hence, it was urged that as Rule 5 treats U. D. Cs, as well as L.D.Cs. as equal for the purpose of recruitment for the post of a Grade II Sub- Registrar, the rule violates the doctrine of equality. According to the petitioners the equality doctrine is attracted not only when equals are treated as unequals but also where unequals are treated as equals. It was contended on behalf of the petitioners that a statuary provision may offend Article l4 of the Constitution both by finding differences where there are none and by making no difference where there is one. The proposition Page 61 of 65 HC-NIC Page 61 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT of law advanced on behalf of the petitioners is unexceptionable. This Court ruled in Kunnathat Thathunni Moopil Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552) that when the statute obliged every person who held land to pay tax at the flat rate prescribed, whether or not he made any income out of the property, or whether or not the property was capable of yielding any income, them being no attempt at classification in the provisions of the statute, the Statute denied equality before law because of lack of classification. Similar views have been expressed by this Court in other decisions. It is not necessary to refer to those decisions.
5. On the other hand it was argued on behalf of the 'contesting respondents that before considering the vires of Rule 5 we must first ascertain the reason behind the rule to find out whether in fact there is discrimination. The contesting respondents do not deny that the position of an U.D.C. is superior to that of a L.D.C. But according to them it became necessary for the State to pool together the U.D.Cs. as well as the L.D.Cs. for the purpose of recruitment in question for the following reasons:-
6. The Grade II Sub-Registrars are in a State-wise cadre whereas the U.D.Cs. and L.D.Cs. belong to a district-wise cadre. Promotion from L.D.C. to U.D.C. is made district-
wise. The chances of promotion from L.D.C. to U.D.C. in one district materially differs from another district. It depends on the number of posts available in a particular district. In one district a L.D.C. may be promoted as an U.D.C. as soon as he puts in a service if 5 years, whereas in another district a L.D.C. possessing the same or better qualifications as well as efficiency may not be promoted as an U.D.C. for 15 years or more. That being so while making recruitment to a State-wise cadre it was not possible for the State to make distinction between the L.D.Cs. and the U.D.Cs. The only reasonable basis that could have been adopted was to treat the U.D.Cs. and L.D.Cs. as one class for the purpose of recruitment. But at the same time the rule provides for giving preference to the U.D.Cs. who had put in a service of 5 years or more. There is force in these contentions though there may he some anomaly in the case of L.D.Cs. and U.D.Cs. serving in the same district. But that anomaly cannot be Page 62 of 65 HC-NIC Page 62 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT avoided. The validity of a rule has to be judged by assessing its over-all effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.
7. On the facts before us we are unable to agree that for the purpose of recruitment with which we are concerned herein the State should have classified the U.D.Cs. and L.D.Cs. separately. If the State had treated the U.D.Cs. as being superior to the L.D.Cs. for the purpose of that recruitment it would have resulted in a great deal of injustice to a large section of the clerks. The fortuitous circumstance of an officer in a particular district becoming an U.D.C. would have given him an undue advantage over his seniors who might have been as efficient or even more efficient than himself, merely because they chanced to serve in some other district. For the reasons mentioned above, we do not think that in the present case the State can be said to have treated unequals as equals. The rule of equality is intended to advance justice by avoiding discrimination. In our opinion the High Court by overlooking the reason behind Rule 5 came to the erroneous conclusion that the said rule violated Article 14 of the constitution.
8. We agree with the High Court that there is no substance in the petitioners' contention that the impugned recruitments were not made in accordance with Rule 5. It is clear from the affidavit filed on behalf of the State and the Registrar that the Registrar had considered the case of all the qualified clerks, but the Registrar thought that the best basis for, recruitment was to prepare a list of all the clerks, U.D.Cs. as well as L.D.Cs. arranging the names in the order of seniority as L.D.Cs. and thereafter consider each name and reject the unfit. In other words; the selection was made on the basis of seniority-cum-merit; the seniors among the clerks were selected subject to suitability. Those persons who were entitled to be given preference under the rules were considered separately and recruited at the first instance. Only thereafter the other recruitment were made. The rules do not prescribe that the recruitment should be made on the basis of merit and merit alone. Bearing in mind the fact that the recruitment with which we are concerned in this case is a recruitment by transfer Page 63 of 65 HC-NIC Page 63 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT which means recruitment from among the ministerial officials. the method adopted by the Registrar appears to us to be the most reasonable one."
The facts of this case were altogether different and the principle enunciated therein has no application to the cases in hand.
I have also gone through the decision of the Supreme Court in the case of State Bank of India (supra) and I am of the view that the same would not help the writ-applicants herein in any manner.
For the foregoing reasons, all the writ-applications fail and are hereby rejected. Rule in each of the writ-applications stands discharged. Ad-interim orders, if any, in any of the writ- applications stand vacated forthwith.
In view of the order passed in the main matters today, the connected Civil Applications, if any, stand disposed of.
(J.B.PARDIWALA, J.) After the judgment is pronounced, the learned counsel appearing for the writ-applicants pray for continuation of the ad-interim order earlier granted.
By virtue of the ad-interim order, the examination has been stayed.
Since the writ-applications have been rejected, the Page 64 of 65 HC-NIC Page 64 of 65 Created On Sat Sep 03 03:28:08 IST 2016 C/SCA/20979/2015 CAV JUDGMENT request is declined.
(J.B.PARDIWALA, J.) /MOIN Page 65 of 65 HC-NIC Page 65 of 65 Created On Sat Sep 03 03:28:08 IST 2016