Allahabad High Court
Mahjabeen Fatima Ahmad And 8 Ors. vs High Court Of Judicature At Allahabad ... on 28 May, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 17.05.2019 Delivered on: 28.05.2019 Court No. - 6 Case :- WRIT - A No. - 12683 of 2015 Petitioner :- Mahjabeen Fatima Ahmad And 8 Ors. Respondent :- High Court Of Judicature At Allahabad And 18 Ors. Counsel for Petitioner :- Siddharth Khare,Ashok Khare,Ashutosh Srivastava Counsel for Respondent :- Manish Goyal,Chandra Bhan Gupta,S.C. Hon'ble Yashwant Varma, J.
The Court has heard Sri Ashutosh Srivastava and Sri Siddharth Khare on behalf of the petitioners. Sri Manish Goel appeared for the High Court. The private respondents were represented by Sri C.B. Gupta learned counsel on record who, however, stated that he had no instructions. No other counsel appeared on behalf of these respondents.
The petitioners, who are Class -IV employees working in the establishment of this Court, have preferred the instant writ petition assailing a promotion exercise undertaken by the High Court for appointment of Routine Grade Clerks. The principal challenge is to the procedure for promotion as adopted by the respondents, with the petitioners contending that promotion was to be effected on the basis of merit as obtained by candidates in a competitive examination and not on the principle of inter se seniority of candidates, the norm which was ultimately adopted and implemented by the High Court.
Post the order of the Court permitting amendment of the reliefs claimed and as the petition stood when finally heard, challenge is laid to the following:-
a) The order of the Chief Justice dated 30 July 2014 approving the decision of the Recruitment Committee dated 22 July 2014 stipulating the norm for selection to be the inter se seniority of candidates;
b) Resolution of the Recruitment Committee dated 12 September 2014 reiterating the above principle for selection
c) Order of the Chief Justice dated 23 September 2014 approving the resolution of the Recruitment Committee dated 22 August 2014 rejecting the objection of Class IV employees to seniority being made the criteria for selection;
d) Office Memorandum of 8 October 2014 communicating the decision of the Chief Justice of 23 September 2014;
e) Office Memorandum of 13 January 2015 apprising the petitioners of the rejection of similar objections by the Chief Justice by his order of 10 January 2015, and
f) The promotion order dated 30 January 2015 made in favour of the private respondents.
Before proceeding to deal with the submissions addressed it would be relevant to notice the following essential facts. On 18 January 2013, the Establishment Section of the Court issued a notice [the original recruitment notice] inviting applications from Class-IV employees of the Court having 5 years of regular, continuous and satisfactory service for promotion as Routine Grade Clerks. The notice stated that selection would be made on the basis of a written examination and interview. It further provided that the written examination would comprise of one Question Paper divided into two Parts namely General Knowledge and an Essay in Hindi. Both the parts were allocated 15 marks each. The notice further provided that candidates would be assessed in an interview and thereafter on the strength of their character roll entries for which 10 marks each were allocated. Merit, in terms of this notice, was to be assessed on the basis of marks obtained by each candidate across the different components of the evaluation process comprising of written examination, interview and the assessment of character rolls. The petitioners are stated to have applied in response to this notice issue by the Court.
From the disclosures made in the Counter Affidavit, it appears that before any further steps in pursuance of the notice of 18 January 2013 could be taken, the Recruitment Committee met on 22 July 2014 and took the following decision:
" The Committee has perused the office note dated 21.07.2014 of S.O. Establishment, qua promotion of class IV employees to the Seventeen (17) posts of RGC. It was resolved that the procedure of such promotion be as follows * A written examination may be conducted comprising of 50 maximum marks on objective type questions with multiple choice answers.
* A candidate, who has been awarded adverse entry or has been punished in last three years, shall not be eligible for promotion. If representation against the adverse entry is pending, the same be considered by the Committee alongwith the entry. Last date for submission of application be fixed as 13th of August, 2014. Written examination shall be held in first week of September 2014. On achieving the minimum cut of marks i.e. 17 out of 50, appointment shall be offered on the basis of inter-se-seniority of such candidates and not on the basis of marks obtained in the examination.
The Committee was informed that Shri Abhisek Kumar, System Analyst, NIC has been appointed as Technical Expert for liaisoning with the CBSE in respect of recruitment of ARO and RGC." (emphasis supplied) The decision of the Committee was approved by the Chief Justice on 30 July 2014. On 7 August 2014 another notice came to be issued by the Establishment Section [the second recruitment notice] again inviting applications from existing Class -IV employees for promotion on the post of Routine Grade Clerks. The notice provided that those who had already submitted applications in response to the original recruitment notice need not apply afresh. This notice further stipulated that selection would be made on the basis of an examination containing objective type questions with multiple choice answers. It further provided that the Question Paper would consist of 50 questions with a total of 50 marks.
It becomes pertinent to note that promotion of Class -IV employees to the position of Routine Grade Clerks was admittedly governed by the Allahabad High Court Officers and Other Staff (Conditions Of Service And Conduct) Rules, 19761. Rule 8(a)(ii) originally envisaged two sources for recruitment and appointment of Routine Grade Clerks. It envisaged the appointment of Routine Grade Clerks either by way of direct recruitment through a competitive examination or by promotion of existing Class -IV employees. The provision as it originally stood did not specify the procedure to be adopted for promotion. However, on 1 August 2013, the aforesaid Rule was amended and upon amendment read thus:
(a)(i) Routine Grade Clerks (I) 80% by direct recruitment through competitive examination conducted by the appointing authority or such manner as directed by Chief Justice.
(ii) 20% by promotion from class IV employees who have completed five years continuous satisfactory service as on 01st July of the year of recruitment on merit through competitive examination.
This amendment is of significance since it mandated that recruitment of Routine Grade Clerks from amongst Class -IV employees was to be made on the basis of merit through a competitive examination. The Recruitment Committee, as noticed above, in its decision taken on 22 July 2014, had however provided that appointment would be offered on the basis of inter se seniority of candidates and not on the basis of marks obtained in the competitive examination. Significantly, although Rule 8 had been amended with effect from 1 August 2013, its amended provisions do not appear to have been noticed by the Recruitment Committee. This decision of the Recruitment Committee was approved by the Chief Justice by his order of 30 July 2014.
The petitioners and other Class IV employees made a representation on 13 August 2014 drawing the attention of the Recruitment Committee to the provisions made in amended Rule 8. The aforesaid representation was considered by the Committee in its meeting held on 22 August 2014 and rejected in the following terms:
(v) Representation dated 13.08.2014 submitted by Shri Anil Kumar Pandey & 49 Other Class-IV employees - Establishment Section has placed Office-Note dated 14.08.2014 along with the Representation dated 13.08.2014.
The Representationists have stated that in the Departmental Examination for promotion from Class-IV to Class-III Post, the Committee has decided that the Select-List be prepared by placing all the candidates scoring more than 33% marks in order of seniority.
They have quoted Rule-8 (a) (i) (ii) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 providing that 20% post of R.G.C. Be filled by promotion from Class-IV Employees on merit through competitive examination.
They have prayed that the Departmental Examination from Class-IV to Class-III Post be conducted on the basis of above mentioned rule.
The Committee has considered the matter and it is resolved that the change in the matter of promotion through competitive examination has been approved by Hon'ble The Chief Justice.
Therefore, in view of Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct Rules, 1976 the same will hold the field.
The Representation is rejected.
This decision of the Committee was approved by the Chief Justice on 23 September 2014.
It is further disclosed before this Court that pursuant to the notices issued a written examination was conducted on 7 September 2014. In paragraph -16 of the writ petition, the petitioners have disclosed the marks obtained by each of them individually. Since the petitioners were aggrieved by the change in the procedure for preparation of the merit list, they are stated to have made yet other representation on 4 December 2014. By means of this representation, they again raised an objection to the select list being drawn up on the basis of seniority rather than merit as contemplated under Rule 8. On 13 January 2015, they were informed that their representation had been rejected by the Chief Justice by an order dated 10 January 2015. On 30 January 2015, the Registrar General notified the names of 17 Class -IV employees who were declared successful in the promotional exercise. It is these 17 persons who have been arrayed as the respondents 3 to 19 in the instant writ petition. In paragraph 21 of the writ petition, the petitioner have disclosed the marks obtained by the respondents 3 to 19. From the disclosures as made, it is evident that all the private respondents had obtained marks lower than the petitioners. These essential facts are not disputed by the respondents.
Before recording the rival submissions which have been addressed it would be relevant to note that the respondents 3 to 19 were put to notice of these proceedings and were also represented by Sri C.B. Gupta, learned counsel of the Court. Although this petition remained pending on the board of this Court since 2015, no Counter Affidavit has been filed by these respondents. On the date when the matter was taken up for final disposal although Sri C.B. Gupta, learned counsel appeared, he stated that he no longer had instructions to appear on behalf of these respondents. No other counsel appeared on their behalf either. The Court consequently proceeded to hear the submissions addressed by learned counsels for parties.
The petitioners principally contend that the entire promotional exercise has been undertaken in stark violation of Rule 8. According to the petitioners, the Rule clearly mandates the merit list being prepared on the basis of marks obtained by candidates in the competitive examination. It is in that light urged that the resolution of the Recruitment Committee passed on 22 July 2014 was clearly ultra vires the 1976 Rules. It was contended that the Recruitment Committee had no authority to fundamentally alter or change the basis of promotion as prescribed in the statutory rule which governed. According to the petitioners, the mere fact that the decision of the Committee was approved by the Chief Justice cannot confer on that decision any additional legitimacy. It was further submitted that although the statutory position was made known to the Recruitment Committee, it arbitrarily proceeded to reject the representation made in that behalf on 22 August 2014. The petitioners submit that the view of the Committee that the change in the matter of promotion having been approved by the Chief Justice would be saved and preserved in view of Rule 45 of the 1976 Rules is not only incorrect but also unsustainable in light of the decision rendered by Five learned Judges of the Court in Public Interest Litigation No. 54860 of 2004 (In Re; Regularization of Class IV Employees Of The High Court of Judicature At Allahabad)2. The petitioners contend that the residual power conferred on the Chief Justice under Rule 45 cannot be read as empowering him to sanction action in violation of the statutory procedure mandated under the 1976 Rules. The thrust of the submission was that the residual powers, as conferred on the Chief Justice in terms of Rules 41 and 45, cannot be read as investing in him the power to supplant or override a particular provision made in the 1976 Rules. It was further contended that the action as taken by the respondents clearly amounts to changing the rules of the game after the selection procedure had commenced. This contention is addressed in the backdrop of the two notices dated 18 January 2013 as well as 7 August 2014 which clearly contemplated promotion being made on the basis of merit assessed on the strength of the performance of candidates in a written examination. It was urged that neither of these notices contemplated promotion being effected on the basis of seniority. According to the petitioners, the private respondents have been accorded promotion even though admittedly they obtained marks lesser than all the petitioners.
Counter these submissions, Sri Goel, learned counsel appearing for the High Court has contended that the submission of the rules of the game having been changed in the course of the selection process cannot be countenanced. It was submitted that the original notice was issued on 18 January 2013 whereas Rule 8 came to be amended only on 1 August 2013. According to Sri Goel, at the time when the original notice of 18 January 2013 had been issued, Rule 8, as it then stood, only provided that appointment of Routine Grade Clerks would also be made by way of promotion of Class -IV employees. However, according to learned counsel, the rule was silent with respect to the modalities and basis of promotion. According to Sri Goel, it was consequently open for the Recruitment Committee to formulate the norms for promotion as it justifiably did in terms of its decision taken on 22 July 2014. Sri Goel submits that the Recruitment Committee had clearly resolved that all candidates who were able to obtain 17 marks out of 50 would be offered appointment on the basis of their inter se seniority and not on the strength of marks in the written examination. Sri Goel submits that this decision was clearly equitable and took into consideration the interests of all Class -IV employees working in the establishment of the High Court. Sri Goel then submitted that Rule 41 confers adequate authority on the Chief Justice to make orders in regard to incidental and ancillary matters. According to Sri Goel the approval by the Chief Justice to the decisions taken by the Committee is clearly traceable and saved by the provision made in Rules 41 and 45. It is these submissions which now fall for determination.
Having noticed the salient facts, it is evident that although the original recruitment notice was issued on 18 January 2013, the modalities of the selection process were significantly changed with the issuance of the subsequent notice of 7 August 2014. The change in the modalities of the recruitment process appear to have been ushered in as a consequence of the decision taken by the Recruitment Committee on 22 July 2014. To highlight the significant amendments made in the recruitment process, it is pertinent to note that while the original notice contemplated merit being assessed on the basis of the performance of candidates in the written examination, interview and upon an assessment of their character roll entries, by the time the notice of 7 August 2014 came to be published, all that was prescribed was the inter se merit being evaluated on the basis of an examination comprising of an objective type question paper with multiple choice answers of a total of 50 marks. The syllabus for the examination was prescribed to comprise of General Knowledge, General English and awareness of the working of the High Court. The essay in Hindi, Interview and assessment of character roll entries envisaged under the original recruitment notice was dropped. The Committee in its resolution of 22 July 2014 had prescribed that appointment would be offered on the basis of inter se seniority and not on the basis of marks obtained in the examination. The only stipulation in this decision relatable to the written examination was of candidates achieving the minimum marks of 17 out of 50.
In essence, therefore, the second recruitment notice was not and cannot be recognized to be in continuance of the original recruitment notice. In any case after the decision of the Committee of 22 July 2014, the recruitment was mandated to be made on the basis of inter se seniority subject to eligible candidates obtaining a minimum of 17 marks out of 50. This was an apparent and significant departure from the procedure which was envisaged under the original recruitment notice. The process ultimately adopted and implemented was in tune with this decision of the Recruitment Committee and consequently it would be this facet which must be recognised as being determinative of the commencement of the promotion process. In this view of the matter, this Court is of the firm view that the process of recruitment would be deemed to have commenced only upon the issuance of the subsequent notice of 7 August 2014.
The crucial issue which then arises is the impact of the amendments introduced in Rule 8. As noticed hereinabove, the Rule stood amended with effect from 1 August 2013 and unambiguously mandated promotions being effected on the basis of merit adjudged in the course of a competitive examination. The resolution of the Recruitment Committee of 22 July 2014 was in this sense manifestly ultra vires. There is an apparent and evident disconnect between the decision taken by the Committee on 22 July 2014 and Rule 8 as it stood then. It is also relevant to highlight here that even the notice of 7 August 2014 which came to be published after the decision of the Committee referred to above did not specifically spell out that promotions would be effected on the basis of inter se seniority. It would be apposite to recollect that the Committee in its decision had clearly specified the principle of selection to be inter se seniority. While not commenting further, it is apparent that the decision of the Committee was in clear and manifest violation of the provisions made in amended Rule 8.
Significantly, Rule 8 as it evidently stood on the statute book was not noticed by the Recruitment Committee at all while passing its resolution on 22 July 2014. The fact that it had come to be amended after the issuance of the original recruitment notice was neither alluded to nor considered by the Recruitment Committee in its meeting of 22 July 2014. The decision of the Recruitment Committee is stated to have been approved by the Chief Justice on 30 July 2014. The respondents have not placed on the record any material to either evidence or establish that the statutory amendments introduced with effect from 1 August 2013 were brought to the attention of the Chief Justice. This aspect assumes added significance since, as noted herein above, the Recruitment Committee completely ignored the statutory position which held the field. It was, therefore, all the more imperative that this issue should have, at least, been brought to the attention of the Chief Justice.
When the petitioners raised an objection to the decision taken by the Committee to select persons on the basis of inter se seniority, it came to be rejected with the Committee observing that the change in the selection process had been duly approved by the Chief Justice and therefore in view of Rule 45 it would hold the field. This, in the considered view of this Court, was clearly begging the question which was raised. The attention of the Recruitment Committee was specifically drawn to the provisions of Rule 8, which mandated promotion of Class-IV employees to be affected on merit through a competitive examination. The petitioners and other Class -IV employees who had joined in that representation had prayed that the departmental examination be conducted on the basis of that rule. This was perfunctorily rejected by the Recruitment Committee by seeking to secure and conserve its decision of 22 July 2014 on the strength of its approval by the Chief Justice.
However, significantly the Committee failed to bear in mind that the evident departure from the procedure mandated by Rule 8 was an aspect which was neither noticed nor alluded to in its resolution of 22 July 2014. It also did not record any legal justification for the evident departure from the procedure prescribed by statute. In any case, the Recruitment Committee also failed to bear in mind that it had not even brought this aspect to the notice of the Chief Justice. The validity of the order of approval as made by the Chief Justice on 30 July 2014 must necessarily be tested and considered in light of this salient aspect.
The seminal question which therefore arises is whether this radical deviation from the statutory provision was saved by Rule 45, even if it be assumed for the time being that the Chief Justice could, in exercise of powers conferred by this Rule, mandate or permit a procedure in violation of a specific provision made in respect of the subject in question under the 1976 Rules. This Court is of the firm view that the decision of the Committee as embodied in its resolution of 22 August 2014 was clearly illegal and unsustainable in law. Even if the Court were to presently proceed on the assumption that the Chief Justice in exercise of powers conferred by Rule 45 could mandate a departure from the procedure prescribed under the 1976 Rules, the issue itself would essentially depend on whether the Chief Justice was in the first place apprised of the proposed departure from the procedure prescribed by statute. As noted hereinbefore, the Committee in its resolution of 22 July 2014 neither considered Rule 8 as it stood then nor did it record any reasons in justification of a digression from the procedure prescribed thereunder in its decision. There was thus no occasion for the Chief Justice having invoked his powers as conferred in terms of Rule 43 or 45.
While construing the ambit of the power conferred upon the Chief Justice by Rule 45, the Larger Bench decision has clearly observed that the power vested in and conferred upon an authority under the Constitution can never be recognized to be unguided or unbridled. It went on to observe that notwithstanding the supremacy of the authority of the Chief Justice, the same is subject to judicial scrutiny and on the anvil of the Fundamental Rights enshrined in the Constitution. Proceeding to rule on the scope of Rules 41 and 45, the Larger Bench observed that those rules embodied powers which are liable to be utilized and resorted to smoothen or iron out creases or where the literal implementation of the rules itself gets impeded. The following observations as made by the Larger Bench are of import:
"The question is, how is this power to be exercised, and the limitations if any. The exercise of powers cannot be unguided or unbridled. There is no authority under the Constitution, who has not been specified the extent of the powers conferred, hedged with its limitations. To our mind, the powers are subject to the limitations being exercised not beyond the purpose for which they have been conferred. The powers are to be exercised within the framework of the Constitution.
This being the position, the powers cannot be exercised in violation of the basic structure of the Constitution of India of which the chapter of fundamental rights is one of the limitations. The reason is that our country is a democracy that is governed by rule of law. It is the supremacy of law that is acknowledged in order to supervise the functioning of the governmental set up. The doctrine of separation of powers between the organs of the State and the doctrine of distribution of powers within the authorities under the Constitution are therefore subject to the rule of law. The apex court has time and again ruled that the absence of arbitrariness is the essence of rule of law and therefore the powers have to be canalised and not unbridled, so as to breach the basic structure of the constitution, particularly the fundamental rights guaranteed under Part III of the Constitution of India.
It need not be pointed out by us that in matters of public employment what keeps on being discussed by courts, is the infringement of the fundamental rights guaranteed under Article 14 and 16 of the Constitution of India. Equality of opportunity in matters of employment being a constitutional mandate, has to be observed even if the powers are being exercised by the Chief Justice under Article 229 of the Constitution of India and the rules framed thereunder.
In our opinion howsoever supreme the authority of the Chief Justice may be, the same is subject to judicial scrutiny on the anvil of Fundamental Rights of Part III of the Constitution as well as the rules framed by the authority under the constitutional provisions. The unquestionable authority is always subject to the authority of the Constitution. The Chief Justice under Article 229 of the Constitution read with the rules framed thereunder does not act as an extra constitutional authority. To the contrary he derives his powers under the same constitution which guarantees the fundamental rights to the citizens of this country. We therefore are of the opinion that the exercise of such powers, with its limitations, is subject to judicial review on the abovementioned parameters. We are fortified in our view by the ratio of the decisions in the case of H.C. Puttaswamy and others Vs. The Hon'ble Chief Justice, Bangalore and others reported in 1991 Supp (2) SCC 421 and the latest decision of the apex court in the case of State of West Bengal and others Vs. Devasis Mukherji and others reported in 2011 JT (11) Pg. 1."
"Having given our thoughtful considerations, but with due deference to the aforesaid observations of the Full Bench in Diwakar Singh's case and the Division Bench judgment in the case of High Court Vs. Devendra Kumar Pandey (supra), we are the least persuaded to approve the same. The pronouncement appears to be authoritative but it lacks the substance of consideration of Article 14 and Article 16 of the Constitution of India. Howsoever high a dignitary may be, once the power conferred is governed by the Constitution, the laws made thereunder and the rules framed, then the authority is bound to act within the rules and not ascribe to himself an authority to act beyond it or else the exercise of power will be a camouflage to act arbitrarily in the solemn name of discretion.
The higher the dignitary, the more objectivity is expected to be observed. This does not mean that the power should be curtailed, but at the same time it should be stretched only to the width of the constitutional and legal limits. The observance of law has to be calibrated - doing what you need to, no more no less. The presumption and the presupposition of the validity of orders on the administrative side are dependant on the alleged constitutional violation and its judicial scrutiny. They are not immune to law nor to judicial review. The residuary powers of the Chief Justice under Rule 8, Rule 41 and Rule 45 of the 1976 Rules and similar powers under the 2000 Rules are supposed to be exercised notwithstanding contained in the rules, but the same cannot be construed to mean notwithstanding the fundamental rights and obligations under the Constitution. Giving the interpretation as suggested by the said decisions would belittle the esteem of the office of the Chief Justice thereby reducing its respect."
"The other ancillary rules relating to reservations and qualifications are provided for in Part-VII of the rules that are applicable to the recruitment of various categories of posts including Class IV posts on the Establishment of the High court. Rule 23 to 29, therefore, in matters of the method of recruitment, are in addition to the aforesaid Rule 4, referred to hereinabove. Part-VIII and Part-IX, relate to post-appointment conditions of service. Part-X of the said rules under the heading "other provisions" recites that the regulation of other matters under Rule 40 shall be subject to the superintendence, control of the Chief Justice with a further provision that the rules for government servants holding corresponding posts in the government shall apply to the officers and servants of the court subject to the modifications, variations and exceptions as the Chief Justice from time to time may specify, except the conditions relating to salary, allowance, leave or pension shall be made by the Chief Justice with the approval of the Governor.
Over and above this, residuary powers are defined under Rule 41 which are general in nature for making provision for incidental or ancillary matters not specifically provided for with the riders aforesaid in financial matters.
The most important rule that attains significance in the present dispute is Rule 45 which opens with a non-obstante-clause empowering the Chief Justice to make such orders as he may consider fit in respect of recruitment, promotion, confirmation or any other matter.
It is in this context that the powers of the Chief Justice under Article 229 of the Constitution of India and Rules 41 and 45 of the 1976 Rules have to be considered. To our mind, Rule 41 and 45 are powers available to be utilised when the smooth implementation of the Rules get impeded. They are not as a substitute for the rules of regular employment. They are to remove rare and occasional difficulties. We have already indicated that Rule 41 and Rule 45 coupled with the powers under Article 229 are subject to Articles 14 and 16 of the Constitution of India. To this extent, we have already indicated that the interim order and the judgment of the full bench in the case of High Court of Judicature at Allahabad Vs. Diwaker Singh (supra) has not explained the law correctly." (emphasis supplied) Suffice it to state that the essence of the power comprised in these two rules was captured and explained by the Larger Bench when it observed that they are liable to be invoked to "remove rare and occasional difficulties". From the principles thus enunciated, it is manifest that Rules 43 and 45 cannot be recognized as conferring authority on the Chief Justice to override the procedure otherwise mandated under the 1976 Rules nor can they be viewed as a source of power to sanction a procedure which would be ultra vires a provision specifically made in the 1976 Rules. When Rule 45 confers power on the Chief Justice to make orders in respect of recruitment, promotion, confirmation or any other matter, it must be interpreted to mean conferring a power to remove difficulties, to smoothen out issues which hinder implementation, iron out creases or to provide for such matters which may otherwise not be provisioned for under the 1976 Rules. Read together with Rule 43, these rules would be recognized as conferring a power on the Chief Justice to make orders supplementing the specific provisions otherwise made under the 1976 Rules. It is in this context that Rule 43 assumes significance when it confers power on the Chief Justice to make orders in regard to matters incidental or ancillary to the 1976 Rules and in respect of matters which are not specifically or sufficiently provided for. Rules 43 and 45 when read in harmonious conjunction are liable to be read as conferring powers in the Chief Justice to this extent only.
In any case these two provisions cannot be recognized as being a source of power to fundamentally override or sanction action which would be ultra vires a plenary provision otherwise existing in the 1976 Rules. While these powers may be invoked to supplement, they cannot be recognised as a source of power to supplant, undermine or override a particular provision made in the rules itself. Where a subject or a particular field is covered by a provision made in the 1976 Rules, the invocation of this power would be restricted and would necessarily have to be exercised in harmony with the substantive provision. At least it cannot be recognised as sanctioning action ultra vires the substantive provision which governs. It is only if one were to interpret these two provisions in the above light that they would be entitled to be held to be in conformity with Articles 14 and 16 of the Constitution.
Having examined the scope of the power conferred by these provisions on the Chief Justice from a constitutional perspective, the Court deems it apposite to rule on the width and amplitude of the power so bestowed from the standpoint of settled principles of statutory construction also. While it is true that Rule 45 commences with a non obstante clause, that does not lead this Court to recognise it as being a source to sanction action in violation of a specific provision made under the 1976 Rules. While a non obstante clause, ordinarily and on a literal interpretation, may be viewed as overriding all other provisions existing in that statute, it is equally well settled that it is this inherent potency of such a provision which bids the Court to consider the extent of its operation and the purpose as well as the underlying objective of that provision.
Dealing with the scope of a non obstante clause and tracing the line of precedents rendered on the subject, the Supreme Court in Central Bank of India v. State of Kerala3 observed: -
103. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions.
104. In State of W.B. v. Union of India [AIR 1963 SC 1241 : (1964) 1 SCR 371] it was observed that: (AIR p. 1265, para 68) "68. ... The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs."
105. "16. ... In Madhav Rao Jivaji Rao Scindia v. Union of India [(1971) 1 SCC 85] (SCC at p. 139) Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but ''for that reason alone we must determine the scope' of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. ''A search has, therefore, to be made with a view to determining which provision answers the description and which does not.' " [Ed.: As observed in A.G. Varadarajulu v. State of T.N., (1998) 4 SCC 231, p. 236, para 16.]
106. In R.S. Raghunath v. State of Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507] a three-Judge Bench referred to the earlier judgments in Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596], Union of India v. G.M. Kokil [1984 Supp SCC 196 : 1984 SCC (L&S) 631], Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] and observed: (R.S. Raghunath case [(1992) 1 SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507] , SCC pp. 346-47, para 11) "11. ... the non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non obstante clause need not necessarily and always be coextensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules."
107. In A.G. Varadarajulu v. State of T.N. [(1998) 4 SCC 231] this Court relied on Aswini Kumar Ghose case [AIR 1952 SC 369] . The Court while interpreting non obstante clause contained in Section 21-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held: (Varadarajulu case [(1998) 4 SCC 231] , SCC p. 236, para 16) "16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369] Patanjali Sastri, J. observed: (AIR p. 377, para 27) ''27. ... The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;' " (emphasis supplied) Again in Geeta v. State of U.P4., the Supreme Court made the following pertinent observations with respect to the scope of a non obstante clause: -
38. Interpretation of non obstante clauses has come up for consideration before this Court in a large number of decisions. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369] , a Constitution Bench of this Court speaking through Patanjali Sastri, C.J. observed that: (AIR p. 377, para 27) "27. ... the non obstante clause can reasonably be read as overriding ''anything contained' in any relevant existing law which is inconsistent with the new enactment."
But His Lordship made it clear that: (Arabinda Bose case [AIR 1952 SC 369] , AIR p. 377, para 27) "27. ... The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously."
39. Again in another Constitution Bench judgment of this Court in Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596] , Bhagwati, J. observed at AIR para 10 as follows: (AIR pp. 599-600) "10. ... although ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment."
(emphasis added)
41. Further, this Court in A.G. Varadarajulu v. State of T.N. [(1998) 4 SCC 231] , observed that: (SCC p. 236, para 16) "16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision."
42. The Bench in A.G. Varadarajulu case [(1998) 4 SCC 231] referred to the principle in the Constitution Bench decision in Madhav Rao Jivaji Rao Scindia v. Union of India [(1971) 1 SCC 85] wherein this Court held that: (A.G. Varadarajulu case [(1998) 4 SCC 231] , SCC p. 236, para 16) "16. ... the non obstante clause [was] a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but ''for that reason alone we must determine the scope' of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands alone by itself."
(underlined [Ed.: Herein italicised.] for emphasis)
43. This Court also held in ICICI Bank Ltd. v. SIDCO Leathers Ltd. [(2006) 10 SCC 452] that the wide amplitude of a non obstante clause must be kept confined to the legislative policy and it can be given effect to, to the extent Parliament intended and not beyond the same and that in construing the provisions of a non obstante clause, it was necessary to determine the purpose and object for which it was enacted (see pp. 465-66).
Bearing the aforesaid determinative principles in mind, this Court finds itself unable to hold that the non obstante clause as employed in Rule 45 would confer a power to override or supplant the substantive and plenary provisions made in the 1976 Rules. The objective and purpose of this rule has already been elaborated upon in the preceding parts of this decision. Viewed in that light, it is manifest that the decisions of the Committee as embodied in the resolutions of 22 July 2014 and 22 August 2014 were ultra vires Rule 8 and cannot be recognized as being saved by the approval thereof by the Chief Justice.
Rule 8 clearly mandated promotions being effected on the basis of the merit of individual candidates as adjudged in a competitive examination. It did not sanction promotion being effected on the basis of the inter se seniority of candidates who obtain the minimum cut off marks. The decision so taken by the Committee fundamentally altered the procedure as prescribed by Rule 8. The decision clearly infringes the guarantees enshrined in Articles 14 and 16 of the Constitution. The decision of the Committee is thus without authority of law and cannot be sustained.
Sri Goel then contended that Rule 8 came to be amended only on 1 August 2013 whereas the selection process had commenced with the issuance of the original recruitment notice of 18 January 2013. According to Sri Goel, consequently, the recruitment exercise would be liable to be governed by the provisions of un-amended Rule 8. While it becomes pertinent to underline the fact that the Recruitment Committee does not rest its decision on this analogy or line of reasoning, since the submission has been addressed, the Court deems it apposite to consider the same on merits.
Rule 8, prior to its amendment and as noted hereinabove, only provided for an avenue of promotion being available to Class -IV employees. The Rule as it originally stood did not specify the procedure that was to be adopted for the purposes of effecting promotion. However, this submission cannot be countenanced for the following reasons. Undisputedly, the original recruitment notice contemplated promotions being effected on the basis of the merit of candidates as evaluated on the strength of their performance in the written test, interview and upon a consideration of their character roll entries. If the respondents were correct in their submission that the recruitment process commenced with this notice, it was the procedure envisaged in that notice alone which should have been followed and the recruitment taken to its logical conclusion. However, as is evident from the facts noted above, the procedure envisaged even under the original recruitment notice was neither adhered to nor taken to its logical conclusion. This evidently since the process envisaged under the original recruitment notice came to be interdicted by the resolution of the Recruitment Committee taken on 22 July 2014. On the date when the Recruitment Committee resolved to effect promotions on the basis of the inter se seniority of candidates, the procedure as prescribed under the original notice came to be shelved and discarded. The original notice of 18 January 2013 lost all significance in light of the decision of the Committee taken on 22 July 2014. The only facet of the original recruitment notice which thereafter survived was the preservation of applications already made in its pursuance.
More importantly, on the date when the Committee resolved to effect promotions on the basis of inter se seniority from amongst candidates who had obtained the minimum cut off marks, Rule 8 had come to be fundamentally altered. The Committee on 22 July 2014 for the first time appears to have worked out and laid down the modalities of the promotional exercise. It was only thereafter that the notice of 7 August 2014 came to be published. Evidently, the procedure which was followed by the respondents thereafter was in accord with the procedure as prescribed by the Recruitment Committee in its resolution of 22 July 2014. No part of the recruitment process as was envisaged under the original recruitment notice was maintained or continued. The Recruitment Committee in its decision of 22 July 2014 radically altered the modalities of promotion. It is, therefore, the second recruitment notice issued pursuant to that decision which must necessarily be recognised as the starting point of the recruitment process. Consequently, it would be the statutory provision which prevailed at the time of issuance of the second recruitment notice which would govern.
Suffice it to also note that the submissions on this aspect appear to be based upon the principles which flow from the oft quoted decisions of the Supreme Court in A.A. Calton5 and Y.V. Rangaiah6. This Court had an occasion to deal with the oft-repeated contention that a recruitment process must be recognized to be governed by the statutory scheme which prevailed and existed on the date of its commencement in Padeep and 2 others Vs. State of U.P7. After noticing the entire body of precedent which had evolved around this issue, this Court held thus:
23. In both Calton as well as N.T. Devin Katti the Supreme Court was dealing with a situation where certain rights which accrued to persons were sought to be effaced by virtue of certain amendments made in the applicable statutory scheme. While in Calton the Court was faced with recommendations made in favour of certain candidates in accordance with the statutory scheme prevailing when the selection was undertaken, in N.T. Devin Katti recommendations had been notified by the Commission in tune with the provisions of reservation as embodied in the relevant Government order. The recommendations and selections were undertaken in accordance with the statutory scheme prevailing during the process. The recommendations created rights in favor of the selected persons. In both the aforementioned decisions, a selection process which had been completed was sought to be declared invalid by virtue of statutory amendments, which were introduced after the commencement of the process. The selection exercise in both those decisions had proceeded a distance, written and viva voce examinations held. Additionally in Calton the authority and jurisdiction of a functionary was challenged on the anvil of amendments introduced during the course of the selection process. Similarly before the Full Bench in Santosh Kumar Singh it was contended that the functionary had lost its authority to undertake the process of recruitment on account of a statutory amendment which came to be introduced after the commencement of the selection process.
24. On a fundamental plane therefore what was urged for the consideration of the Court in those decisions was that the selection process was rendered invalid by virtue of statutory amendments introduced in the interregnum. This contention came to be negatived firstly since statutory amendments intrinsically are presumed to be prospective in their application and secondly because the amendments if accepted to be applicable would have resulted in an impairment and effacement of rights which had come to be created in between. The true ratio of these decisions must necessarily be appreciated and understood bearing in mind these twin issues which were determined.
25. In fact the Full Bench of the Court in Santosh Kumar Singh captured the ratio of Calton in the following words: -
"8. The decision in A. A. Calton (1983) 3 SCC 33:AIR 1983 SC 1143 (supra) is, therefore, an authority for the proposition that once a process of selection has been initiated, a subsequent amendment of the law by which the power to make an appointment has specifically been taken away from a statutory authority - in that case from the Director - would have no application to a pending selection process which must be governed by the law as it stood when the selection process was initiated. Undoubtedly, the Legislature does have the power to make a law with retrospective effect but unless the law is made expressly retrospective or retrospective by necessary implication, the position of law as it stood when the selection process was initiated, would govern the selection.
30. The ratio of these decisions, therefore, cannot be read as laying down a proposition of general application irrespective it being found that the rules were not intended to be retroactive in operation and existing rights being affected and impacted adversely in the facts of the case. In the considered view of this Court on a correct appreciation of Calton, Devin Katti and Santosh Kumar Singh it is when the afore noted twin aspects exist that the principles enunciated therein would apply. It would therefore have to necessarily be found that not only were the amendments not intended to be retrospective but that certain rights which came into existence and inhered in candidates are impacted."
Affirming that decision of the Court in Mohd Firoz Vs. State of U.P., a Division Bench in appeal8 held as under: -
"We are unable to accept the contention so advanced by learned Senior Counsel. Though, it cannot be denied that certain rights were created in favour of the petitioner-appellant upon issuance of the advertisement dated 20.12.2016 and upon his having applied thereunder, however, those rights were not indefeasible so as to compel the State to complete the recruitment process under the advertisement issued. It being equally well settled that there did not exist any vested right of appointment upon any selection procedure having been undertaken, the rights claimed by the petitioner-appellant were not inviolable. The only requirement to be fulfilled was of the withdrawal to be made in accordance with law. Inasmuch as the withdrawal was made in accordance with law by the competent authority, by issuing Government Order, the rights of the petitioner-appellant, if any, stood validly and legally curtailed. Also, A.K. Calton Vs. Director of Education & Anr. (supra) was a converse case, where subsequent to the amendment made to the law, the pre-existing procedure (that had been initiated prior to the amendment), was allowed to continue as that amendment was found to be not retrospective. Therefore, though it was permissible for the State Government to continue and complete the recruitment under the old law, i.e. in pursuance of the advertisement dated 20.12.2016, however, it did not bar the State Government to specifically abandon that procedure, as was done in the present case.
The plea of arbitrariness also does not appeal to us. Though the State Government has not spelt out the reason to withdraw the earlier advertisement for recruitment yet, the change of law made at the initial stage i.e. even before the conduct of the physical efficiency test and before notification of any step or date in that regard, is itself a plausible reason to re-initiate the process. It is not the case of the petitioner-appellant that there was any mala fide, legal or factual, or that any prejudice has been caused to him. Merely because earlier the recruitment was to be made on the basis of physical efficiency test and now the petitioner-appellant would have to first compete in a written examination and thereafter establish physical fitness, cannot ever be a ground to plead arbitrariness. It is for the State Government to evolve such test as it may deem fit for making the necessary selection of the fittest. It is not for the Court to judge that criteria as arbitrary."
Turning then to the invocation of the principles flowing from Y.V. Rangaiah, the Court in Pradeep noticed the shift in the legal position in the following terms:-
"38. This submission, as admitted by Sri Singh, was addressed in light of the decision of the Supreme Court in Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284. At the outset it must be noted that Rangaiah was a decision rendered in the context of promotion and not recruitment per se. There the Supreme Court had laid down the principle that a promotional vacancy is liable to be filled in accordance with the rules prevailing on the date when it came into existence. Significantly the decision in Rangaiah has been explained in a subsequent decision of the Supreme Court in Deepak Agarwal v. State of U.P., (2011) 6 SCC 725. In Deepak Agarwal the Supreme Court noted that the rule which fell for consideration in Rangaiah mandated a promotional exercise being undertaken annually. It was accordingly held that the principle enunciated in that decision of the rules prevailing on the date of occurrence of vacancies applying to the selection must necessarily be appreciated in that context. In essence it was held that the above noted principle cannot be recognised as being one of universal application and must be understood and appreciated in the backdrop of the relevant statutory rules and whether they envisaged the filling of vacancies periodically. It was consequently held that only where there is a failure to conduct a selection process periodically in accordance with a statutory obligation placed in that respect could it be held that the rules prevailing on the date of occurrence of vacancies would apply.
39. The Court lastly notices a recent judgment rendered by two learned Judges of the Supreme Court in State of Tripura and others v. Nikhil Ranjan Chakraborty And Others, (2017)3SCC 646, which was rendered in the context of promotion and would have an important bearing on the submission which is addressed. In this decision the Supreme Court was faced with the argument that vacancies which had come into existence prior to the amendment of the governing statutory rules would have to be filled in accordance with the rules as prevailing on the date of their creation and not those which existed at the time when the process was initiated. Noticing the decision rendered by the Supreme Court in Deepak Agarwal it was held as follows:
"8. In Deepak Agarwal v. State of U.P., [(2011) 6 SCC 725:(2011) 2 SCC (L&S) 175] the appellants were Technical Officers who along with Assistant Excise Commissioners were eligible to be considered for promotion to the post of Deputy Excise Commissioner. Two days before the DPC was scheduled to meet to consider the cases of all eligible officers for promotion, the concerned Rules were amended and Technical Officers stood excluded as the feeder post for the next promotional post of Deputy Excise Commissioner. The challenge to such exclusion having been negated Deepak Agarwal v. State of U.P. [2002 SCC OnLine All 1279: 2002 All LJ 1701] by the High Court the matter reached this Court and the relevant paragraphs of the decision were:
"2. The old vacancies have to be filled under the old rules is the mantra sought to be invoked by the appellants in support of their claim that the vacancies arising prior to 17-5-1999, ought to be filled under the 1983 Rules as they existed prior to the amendment dated 17-5-1999. The claim is based on the principle enunciated by this Court in Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284:1983 SCC (L&S) 382.
23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions to the 12 vacancies have been made on 26-5-1999 under the amended Rules. The High Court rejected Deepak Agarwal v. State of U.P. [2002 SCC OnLine All 1279: 2002 All LJ 1701] the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in Y.V. Rangaiah (1983) 3 SCC 284:1983 SCC (L&S) 382. The High Court has relied on the judgment of this Court in K. Ramulu v. Dr. S. Suryaprakash Rao (1997) 3 SCC 59:1997 SCC (L&S) 625.
24. We are of the considered opinion that the judgment in Y.V. Rangaiah case (1983) 3 SCC 284:1983 SCC (L&S) 382 would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a yearwise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.
26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment."
9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal, in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."
40. In view of the exposition of the law in Deepak Agarwal as well as the Sate of Tripura noticed above, the last submission advanced by Sri Singh must also and is rejected."
Bearing in mind the principles elucidated in Pradeep and Mohd. Firoz, it is manifest that the submission addressed by Sri Goel would not merit acceptance. Firstly and as was recognized in the decisions noted above, no indefeasible or inviolable rights stood created in favour of aspiring candidates in terms of the original recruitment notice. Admittedly, the only process which was completed under the original recruitment notice was a receipt of applications from candidates desirous of participating in the promotional exercise. Neither a written examination nor interview was conducted in terms of the original notice. No assessment of character roll entries was undertaken by the respondents pursuant to this notice. The only facet of the original notice which was saved in the entire promotional exercise was the preservation of applications received in response to this notice. On a more fundamental plane, it clearly does not lie in the mouth of the respondents to urge this submission. This since principally it could have been a contention which could have been urged or raised by a candidate whose rights, if found to exist at all, stood infringed. Additionally, the Court notes [and which aspect has again been noticed in Pradeep which explained Y.V. Rangaiah], the 1976 Rules do not envisage or mandate a periodical exercise of promotion being undertaken. Viewed in light of the distinguishing feature underlying Y.V. Rangaiya which was noticed and explained in Pradeep, the submission does not merit acceptance.
The Court lastly notes a succinct decision rendered by a learned Judge of the Court in Devendra Pal Singh Vs. High Court Of Judicature At Allahabad And Another9, wherein a contention that promotion was to be effected on the basis of seniority was negated in the following terms:
"Heard Sri Niraj Tiwari for the petitioners and Sri Manish Goyal for High Court.
The aforementioned writ petitions have been filed for quashing the notice dated 11.9.2017, by which, 12 posts of Routine Grade Clerk have been notified for being filled up through promotion under 20% Quota of Class IV Employees under Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976.
Entire argument of counsel for the petitioners is that in the year 2014, vacancies for promotional quota of Class III employees have been notified, in which, vacancies were filled up on the basis of seniority. The merit was only minimum criteria to examine the suitability. However, in the present notification, the merit has been held as criteria.
I have considered the arguments of counsel for the parties. There is nothing on record to show that Rule 8 has ever been amended.
Rule 8(a)(i) - Routine Grade Clerks
(i) 80% of direct recruitment through competitive examination conducted by the appointing authority or such manner as directed by Chief Justice.
(ii) 20% by promotion from Class IV employees who have completed five years continuous satisfactory service as on 1st July of the year of recruitment on merit through competitive examination.
As the Rules have not been amended, therefore, notification of Registrar General cannot be said to be contrary to the Rules.
The writ petitions have no merit and are dismissed."
The decision rendered by the learned Judge was affirmed by a Division Bench of the Court in appeal10 in the following terms:
"Civil Misc. Delay Condonation Application No. 1 of 2018 Delay in filing the special appeal has been sufficiently explained. Delay condoned. Delay condonation application is allowed.
The promotion under the 20% quota for Class-IV employees was made in consequence with Rule 8 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct), Rules 1976, which stipulates that the criteria to examine the suitability of the candidates through competitive examination to test their merit, which in the instant case has been done. Thus, there is no infirmity in the selection process or the judgment of the learned Single Judge.
The special appeal is dismissed with the aforesaid observation."
It is also pertinent to note that the judgment rendered by the learned Judge in Devendra Pal Singh as affirmed by the Division Bench in the appeal aforementioned, was assailed by the petitioner there before the Supreme Court by way of a Special Leave Petition (Civil) Diary No(s). 20283 of 2018. The said petition was dismissed by the Supreme Court on 3 July 2018 by the following order:
"Heard the learned counsel for the petitioner and perused the relevant material.
Delay condoned.
Application for exemption from filing certified copy of the impugned order is allowed.
We are not inclined to interfere with the impugned judgment. The Special Leave Petitions are accordingly dismissed."
In view of the above, it is manifest that the promotion of Class IV employees to the post of Routine Grade Clerks was liable to be considered and effected on the basis of merit of candidates as adjudged in a competitive examination. It becomes pertinent to note that the High Court never urged before the Court in those proceedings that promotion was to be effected on the basis of seniority. It is evident that the stand as taken by the respondents is clearly contrary to the provisions of the 1976 Rules and the entire exercise of promotion impugned in this petition is ultra vires the 1976 rules. The Court notes that all the petitioners had obtained marks more than those awarded to the private respondents. The disclosures made in the writ petition in this respect have not been denied by the respondents. In view of the above, this Court is of the firm view that the denial of promotion to the petitioners by way of the impugned action was clearly arbitrary and cannot be sustained.
The writ petition is accordingly allowed. The office order dated 30 January 2015 promoting the private respondents here is quashed. The decisions of 30 July 2014, 12 and 23 September 2014, 8 October 2014 and 13 January 2015 are set aside. Since the merit position of the petitioners is undisputed, they shall be entitled to be granted promotion on the post of Routine Grade Clerks with effect from 30 January 2015 and placed in that cadre as per their overall merit position. While this order will not entitle them to claim salary and emoluments of the promoted post with retrospective effect, they shall be entitled to all other consequential benefits.
Order Date: - 28.5.2019 Arun K. Singh (Yashwant Varma, J.)