Patna High Court
Victoria Purti And Ors vs The State Of Bihar And Ors on 6 May, 2019
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7860 of 2012
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1. Victoria Purti, D/o Late Mansidh Purti, R/O Vill-Kotna, P.S.-Kunti, P.O.-
Burju, Distt-Kunti, Jharkhand, at present posted As The Deputy Director (in-
Charge), Directorate Of Industries, Government of Bihar, Patna.
2. Mundrika Prasad Choudhary, son of late Panchu Choudhary, resident of
village- Wasilpur, P.O.-Arwal, Distt- Arawal, presently posted as General
Manager, District Industries Center, Munger
3. Mahfooz Ansari, son of late M. K. Ansari, resident of At & P.O.- Jaitpur, P.S.
Haspura, Distt-Aurangabad, Bihar, at present posted as the General
Manager, District Industries Center, Patna
4. Shashi Shekhar Sharma, son of late Gauri Shankar Sharma, resident of
Dobhi Tola, Danapur Cant., Patna-801503, presently posted as the General
Manager, District Industries Center, Muzaffarpur.
... ... Petitioners
Versus
1. The State of Bihar represented through its Chief Secretary, Government of
Bihar, Patna.
2 The Principal Secretary, Industry Department, Government of Bihar, Patna.
3. The Special Secretary, Industry Department, Government of Bihar, Patna.
4. The Finance Secretary, Finance Department, Government of Bihar, Patna.
5. The Principal Secretary, General Administration Department, Government
of Bihar, Patna.
6. The Chairman, Bihar Public Service Commission, 15, Jawahar Lal Nehru
Marg, Bailey Road, Patna-800001.
7. The Secretary, Bihar Public Service Commission 15, Jawahar Lal Nehru
Marg, Bailey Road, Patna-800001.
8. Smt. Sarita Choudhary, wife of Dr. Sudhir Kumar, at present posted as
Additional Director, Department of Industries, Vikash Bhawan, Bailey Road,
Patna.
9. Jawahar Paswan, son of late Basudeo Paswan, presently posted as General
Manager, District Industries Centre, Kishanganj.
10. Shri Prakash Toppo, son of Sri Anthony Toppo, presently posted as Joint
Director, Department of Industries, Vikash Bhawan, Bailey Road, Patna.
11. Sri Vimal Kumar, son of Shri Janak Rajak, presently posted as Joint
Director, Department of Industries, Vikash Bhawan, Bailey Road, Patna.
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12. Shri Brijnandan Prasad, son of Shri Basudeo Prasad, presently posted as
Joint Director (Tech.), Department of Industries, Vikash Bhawan, Bailey
Road, Patna.
13. Shri Balram Singh, S/O Shri Amarnath Singh, presently posted as the Joint
Director (Tech.), Department of Industries, Vikash Bhawan, Bailey Road,
Patna.
... ... Respondents
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Appearance :
For the Petitioner/s :Mr. Siya Ram Shahi, Advocate
Mr. Sanjeet Kumar, Advocate
For the State : Mr. Sanjay Kumar Ghosarvey, A.C. to A.A.G.-3
For the B.P.S.C. : Mr. Subodh Chandra Jha, J.C. to Mr. K.B. Nath, Adv.
For Private Respondents : Mr. Sanjeev Mishra, Advocate
Mr. Rajani Kant Mishra, Advocate
Mr. Suresh Mishra, Advocate
Ms. Priya Neha Gupta, Advocate
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date : 06-05-2019
Heard learned counsel appearing for the respective
parties.
2. In this case, the petitioners are challenging the
order contained in memo no.1127 dated 28.03.2006, by which
the Government has put in abeyance Rule -12(b) of the Bihar
Industries Service Cadre Rules, 1987 applying the doctrine of
relaxation Rule in cases of exceptional hardship and thereby the
private respondents were regularized to the post of Functional
Manager. Further challenged the seniority list, which has been
circulated vide office order dated 28.02.2012, in which these
petitioners have been shown to be junior to the private
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respondents. Further prayer has been made to declare the
petitioners and others as senior to the private respondents.
3. The facts of this case are that at the instance of the
State Government by way of special drive 19 posts of Manager
(Credit) especially for Scheduled Caste and Scheduled Tribes
were published by the Bihar Public Service Commission vide
advertisement no.11 of 1988, against that, the private
respondents have applied and finally they were selected and
recommended by the Bihar Public Service Commission for
being appointed as Manager (Credit), but they were appointed
as Functional Manager, which is a promotional post of the
Project Manager, vide memo no.5404 dated 18.05.1990
(Annexure-4). Accordingly, the private respondents have joined
the said post and started functioning as Functional Manager in
the pay scale of Rs.1350-2000/-, revised pay scale of Rs.2400-
4150/-. It will be relevant to state at this stage that the Bihar
Public Service Commission had issued advertisement for
recruitment/selection of Manager (Credit) as well as after
selection process was over, recommendation was made for
appointment to the post of Manager (Credit), as the post of
Manager (Credit) was not available, the private respondents
were appointed as Functional Manager, they continued to hold
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the said post of Functional Manager. A provisional gradation list
was published vide letter no.2771 dated 02.05.1992 (Annexure-
5), inviting objection, if any, from the effected persons, in which
the petitioners were shown to be junior to the private
respondents. In pursuance thereof, objection was filed by one
Shyam Narayan Ram, who was also appointed along with these
petitioners, but the authority has not taken cognizance of that
objection, published another provisional gradation list, in which
also the petitioners were shown to be junior to the private
respondents. Again, the Department published provisional
gradation list vide memo no.586 dated 31.01.2008 (Annexure-
8). This time also the petitioners were shown to be junior to the
private respondents. Against that, the petitioners filed their
objections dated 01.01.2000 (Annexure -9 series).
4. In pursuance thereof, a Three Men Committee was
constituted vide memo no.6255 dated 30.09.2008, comprising
the members are the Director, Industries Department, as its
Chairman, Director, Technical Development Department and
Deputy Secretary, Industries Department, as its members and
they were requested to resolve the dispute arising on account of
objection raised by the petitioners within one month, but later
on, vide memo no.3624 dated 24.09.2010 partial amendment to
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the memo no.6255 dated 30.09.2008 was made and on that
account in place of Deputy Secretary, Industries Department one
Syed Parvez Alam, Senior Joint Director-cum- In-charge Deputy
Secretary, Industries Department, was nominated as one of the
members of the said Committee. During deliberation of the Joint
Committee, the Government has come out with an order of the
Industries Department vide memo no.1227 dated 28.03.2006,
whereby and whereunder the Government in exercise of power
under Article 309 of the Constitution of India, kept Rule-12(b)
of the Bihar Industries Service Cadre Rules, 1987 in abeyance in
favour of the private respondents. The present petitioners and
other similarly situated persons participated in the proceeding
and they filed a detailed objection having stated that the
provisional seniority list has not been prepared legally, also
raised the objection regarding application of relaxation Rule
invoking the doctrine of exceptional hardship. The private
respondents have also participated in the proceeding, but the
Committee after full discussion recorded a finding that the first
entry in direct recruitment would be in the pay scale of Rs.1000-
1820/-, revised from tome to time. The pay scale of Rs.1350-
2000/- is the promotional scale, a person cannot get a direct
entry in the said pay scale, finding has been recorded that the
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entry of the private respondents in the said pay scale is illegal on
the ground that the petitioners, who were appointed to the post
of Project Officers were to be given preferential treatment in the
matter of promotion to the next level of post i.e. Functional
Manager, but the private respondents entered into the service on
the promoted post, the State Government saved the recruitment
of private respondents in exercise of power under Article 309 of
the Constitution of India, applying the doctrine of relaxation in
cases of exceptional hardship, thereby the provision of Rule-
12(b) of the Bihar Industries Service Cadre Rules, 1987 has
been kept in abeyance, the entry of the private respondents
cannot be legalized.
5. In the meantime, one Sarita Choudhary, one of the
respondents in the present case, approached this Court in
C.W.J.C. No. 11001 of 2011 with a prayer that her case should
be considered for promotion to the post of Additional Director
and submitted that though all the formalities were completed,
but still the matter is pending for consideration for over six
months. This Court vide order dated 13.07.2011 has passed the
order in the following terms:-
"After hearing learned counsels for the parties,
this Court directs that the respondents shall
ensure that that the matter of consideration for
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promotion to the post of Additional Director is
taken to its logical conclusion within a
maximum period of six weeks from the date of
production/receipt of a copy of this order upon
respondent no.2."
6. In the said writ petition, the petitioner, namely
Sarita Choudhary, did not implead these petitioners as party
respondents and the Court passed the order on the basis of
submission of the petitioner, namely, Sarita Choudhary. In turn,
the Principal Secretary, Industries Department, in compliance,
passed the order vide memo no. 4354 dated 02.09.2011, in
which he has recorded that it is clear that the selection of the
private respondents is completely illegal and so far the issue of
backlog is concerned, their recruitment should have been made
on the original post and if the Department was intending to
appoint the persons directly, in such circumstance, opportunity
should have been given to the present petitioners, but they were
not given any chance and as such, the Government may
reconsider the letter no.1127 dated 28.02.2006. In the last
portion of the said letter, it has been stated that the basis of
promotion to the next grade is the seniority-cum- merit and final
decision is to be taken by the Department on the provisional
gradation list and as such, the case of Sarita Choudhary and
similarly situated persons will be considered for promotion and
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Sarita Choudhary being a junior cannot be granted promotion to
the next grade. As it appears that since Sarita Choudhary was
not granted promotion, she rushed to this Court in M.J.C. No.
4955 of 2011 and on the assurance of implementation of the
order of this Court, this Court vide order dated 18.01.2012
adjourned the case to 15.02.2012.
7. While the matter was pending before this Court for
compliance of the order passed in M.J.C. No. 4955 of 2011, an
application for extension of time was filed by the State vide
M.J.C. No.600 of 2012 so that the order passed by this Court in
C.W.J.C. No. 11001 of 2011 could be complied with. In the
meantime, one Sanjay Kumar Singh also filed a Review
application being Civil Review No.332 of 2011 and sought
relief for review of the order dated 13.07.2011 passed in
C.W.J.C. No.11001 of 2011. All the matters were clubbed
together and this Court vide order dated 29.02.2012 disposed of
all the applications having recorded as follows:-
"... The review application was filed for the
reason that in another case the petitioner of civil
review application has got an order dated
20.06.2011, by which it was directed that the Principal Secretary of the Industry Department shall ensure disposal of the objection filed by the petitioner with regard to the tentative Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 9/44 gradation list dated 01.10.2007 and 31.01.2008. This gradation list is the main bone of contention and the opposite parties had, for the reason that the same was not yet finalized, prayed for extension of time.
Upon considering the matter from all angles and upon hearing learned counsel for the parties, this Court deems it appropriate to grant the opposite parties further time for complying with the order dated 13.07.2011.
Accordingly, the order dated 13.07.2011 passed in C.W.J.C. No.11001 / 2011 is modified to the extent that the earlier direction given for consideration of promotion to the post of Additional Director being taken to its logical conclusion stands extended till 31st of July, 2012, as has been prayed by Mr. P.N. Shahi, learned A.A.G. 14."
8. Whereafter, the Under Secretary, Industries Department, Government of Bihar, published the final seniority list vide letter dated 28.02.2012, in which the petitioners have been shown junior to the private respondents and thereby they have implemented the order passed by this Court in C.W.J.C. No. 11001 of 2011. Accordingly, the contempt petition was disposed of. The present petitioner no.1, namely, Smt. Victoria Purti and one Sanjay Kumar Singh and Umesh Kumar filed writ petition vide C.W.J.C. No. 11986 of 2008 (Annexure-20), in Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 10/44 which they have raised the issue of their seniority in the gradation list and this Court vide order dated 20.06.2011 disposed of the said writ petition with a direction to the respondents to consider objection filed by the petitioners and disposed of the same within a period of two months from the date of receipt/production of a copy of this order before the Principal Secretary, Department of Industries, Government of Bihar. When nothing happened, these petitioners have approached this Court by way of filing present writ petition.
9. Learned counsel for the petitioners submits that after the enforcement of the Bihar Industries Service Cadre Rules, 1987, the recruitment to the post can be made from two sources. Part II deals with direct recruitment and Part-IV deals with recruitment by promotion, Schedule-1 attached to the Rule provides string of post for the purposes of recruitment and promotion and the lowest post in the cadre is the Project Manager carrying the pay scale of Rs.1000-1820/- and the next higher post is Functional Manager carrying the pay scale of Rs.1350-2000/-, third post in the cadre is Deputy Director of Industries, carrying the pay scale of Rs.1575-2300/-, fourth post in the cadre is Joint Director of Industries in the pay scale of Rs. 1900-2500/- and the last post but not the least is the Additional Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 11/44 Director in the pay scale of Rs.2325-2850/-. Part- III of the said Rule stipulates, the entry in the cadre will be at the initial rung of the cadre, in Clause- 8 it has been provided that the eligibility of candidate for appointment to the initial rung of the cadre would be determined in accordance with Rules 54 of the Bihar Service Code, 1952. So, the submission has been advanced by learned counsel for the petitioners that whenever there will be an entry by way of direct recruitment, it will be made at the initial post of the schedule i.e. Project Manager, so far promotion to the next grade is concerned, that has been dealt from Rule-11 to 15 and Rule- 12 (b) says that all superior posts above the scale of Rs.1000-1820/- save and except those posts which are earmarked for other services shall be filled in by promotion from the eligible officers of the cadre who satisfies requisite Kalawadhi on the basis of seniority-cum- merit.
10. Submission has been advanced by learned counsel for the petitioners that there is no procedure for direct recruitment to the post of Functional Manager in the pay scale of Rs.1350-2000/- and for the first time the entry would be made to the first post i.e. the Project Manager and there is no such provision for direct recruitment to the post of Functional Manager of the District Industries Centre, so the entry of private Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 12/44 respondents itself is wrong, which is reflected from the report of the Three Men Committee as will as the Principal Secretary, in his letter, has specifically stated that the advertisement was made for the recruitment of Class-II post and the private respondents have been appointed on Class-I post, which is completely illegal and not sustainable in law.
11. It has further been submitted that if the appointment of private respondents itself suffers from illegality, in that circumstance, they cannot rank senior to these petitioners. It has further been submitted that the Government has brought a Rule framed under Article 309 of the Constitution of India, thereby Rule- 12 (b) of the Bihar Industries Service Cadre Rules, 1987 has been kept in abeyance applying the doctrine of relaxation Rule in cases of exceptional hardship and thereby the service of private respondents have been regularized to the post of Functional Manager, which is completely arbitrary exercise of power in the sense that they cannot be allowed to discriminate Government employees singularly and create separate class in same class and treat them differently. It has further been submitted that the relaxation Rules in cases of exceptional hardship can be traced out from the Rules framed by the State Government in the year 1956 under Article 309 of the Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 13/44 Constitution of India, wherein it has been stated that in supersession of previous orders on the subject, the Governor of Bihar hereby makes the following rules:- "Where the State Government are satisfied that the operation of any rule regulating the condition of service of State Government servants or any class of such Government servants, causes undue hardship in any particular case, they may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and suitable manner."
12. The aforesaid Rule of 1956 was further modified by another Notification dated 20th November, 1959. Clause -2 of the said Notification provides that "Before any order of relaxation is passed, the Department concerned should consult the Appointment Department and the Finance Department and take the approval of the council of Ministers. While full justification for the relaxation should be given on the file itself, the reasons should be briefly mentioned in the formal order issued by the Department concerned in this behalf. The order should be authenticated as an order of the Governor in accordance with the retirements of Article 166 (10 of the Constitution."
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13. This Rule again came for consideration and further modified by another Notification dated 25th July, 1962 in the following terms:- "it is, therefore, clarified that the provision made under the proviso to Article 309 of the Constitution published with Appointment Department Notification No. III/R1-2010/55A-11505 dated the 28th November, 1956 (enclosed) is intended to apply only to such rules relating to service condition in which there are no express provisions for relaxation. Where there is a provision for relaxation in the relevant rule itself, the procedure envisaged in the Memo No.III/R1-2031/59-14813 dated the 20th November, 1959 of the Department will not apply. Also for relaxation of the rules enumerated in the annexed schedule the procedure outlined in the above mentioned memo will not apply.".
14. So, on the basis of these three Notifications learned counsel for the petitioners submits that the entire procedure of relaxation has been prescribed in the aforesaid Notifications, inasmuch as, the Rule itself prescribes that what can be relaxed, when already the provision for relaxation has been given, then there was no occasion for the Government to come out with the new Rule to give undue favour to the private respondent. It has further been submitted that the entire action of appointing the Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 15/44 private respondents as Functional Manager is completely illegal and when the entry of private respondents itself is wrong, they cannot claim seniority over these petitioners.
15. Learned counsel for the private respondents submits that the post which is known as Functional Manager after the enforcement of 1987 Rules, earlier it was known as Manager (Credit) and the Notification for appointment to the post of Manager (Credit) was advertised, but could not be materialized, but at present the same post of Manager (Credit) is known as Functional Manager. It has further been submitted that the advertisement was made for the post of Manager (Credit), as per the decision of the State Government recommendation was also made for the post of Manager (Credit) as the post was renamed as Functional Manager, hence, the private respondents were appointed to the post of Functional Manager, so there is no illegality in the entry of the private respondents and it cannot be said to be an illegal entry to the post of Functional Manager. It has further been argued that as there is a provision of saving clause which prescribes nothing in this rule shall effect or invalidate the appointment already made or order issued, such appointment and order shall continue to in force and shall remain valid as if they were made under the appropriate Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 16/44 provision of this Rule. It has further been submitted that as the requisition was made before the commencement of this Rule, which is apparently clear from Annexure-3, which itself says that the initiation for recruitment was started prior to commencement of 1987 Rules, so in view of Rule-21 the recruitment of these private respondent will be saved.
16. Learned counsel for the State submits that the private respondents are discharging the duty for a long period, so at this stage the appointment cannot be said to be illegal on the score that their entry is on higher post. It has further been submitted that most of the petitioners have already superannuated or at the verge of superannuation and they have availed the benefit of promotion, so at this stage this Court should not interfere with the seniority prepared by the State Government, wherein the private respondents have been ranked senior to the present petitioners.
17. In reply, learned counsel for the petitioners submits that when the entry itself is bad from the initial stage and when the Rule itself prescribes that recruitment can be made to the initial post in the cadre, the private respondents cannot be appointed on higher post, as Rule 1987 does not prescribe any post of Functional Manager at the entry level, so the entire Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 17/44 process of selection of the private respondents should be held to be wrong or if this Court wants to save them, in such circumstances, the petitioners should be shown senior to the private respondents and accordingly, notional promotion should be given to those who have already superannuated and actual promotion should also be given to those who are in service.
18. Considering the rival contentions of the parties, this Court has to decide the following issues:-
(i) Whether the Government has rightly applied the doctrine of relaxation Rule in cases of exceptional hardship in exercise of power under Article 309 of the Constitution of India, whereby the Government has saved the entry of the private respondents when the Bihar Industries Service Cadre Rules, 1987 does not prescribe, such action can be taken by the State Government and when Rule-15 of the Bihar Industries Service Cadre Rules, 1987 itself postulates, in what subject matter relaxation can be granted to the members of the scheduled castes and scheduled tribes, wherein it has specifically been provided about the age and the period of Kalawdhi.
(ii) When the advertisement was issued for Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 18/44 appointment on class-II post can the respondents appoint the private respondents on Class-I post.
(iii) Whether this Court should give a direction for re-arranging the seniority of these petitioners vis-a-
vis the private respondents.
19. Before giving answer to the questions framed hereinabove, it will be proper to make a forensic examination of the provisions of the Bihar Industries Service Cadre Rules, 1987 as that interpretation will reflect the status of the petitioners vis- a-vis the private respondents in terms of their seniority. The Bihar Industries Service Cadre Rules, 1987 has been divided in seven parts with four schedules. Part-I deals with the nomenclature of the Rules, manner of enforcement on publication of the notice in the Official Gazette. Section- 2 deals with the definition of different words. Part-II deals with the recruitment. Rule-4 prescribes that recruitment to the service shall be made by direct recruitment in accordance with the provisions laid down in Part-III and by promotion in accordance with the provisions laid down in Part-IV. Rule-5 prescribes the determination of vacancies and notifying the same to the Commission, stipulates that in the beginning of every calendar year, the Government shall determine the number of vacancies Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 19/44 and discipline thereof to be filled in that year by direct recruitment and by promotion, the vacancies so determined shall be notified to the Commission. Rule- 6 provides reservation of vacancies, stipulates that reservation of vacancies for scheduled caste, scheduled tribes and others shall be made in accordance with the manner and procedure as may be prescribed from time to time by the Government. Part-III deals with direct recruitment. Rule-7 provides the announcement of vacancies by Commission in such manner as they think fit, the number of vacancies together with their discipline as mentioned in Rule-5 of Part-II in the service to be filled by direct recruitment and shall invite applications from candidates eligible for appointment to the service. Rule-8 provides that the eligibility of the candidates for appointment to the initial rung of the cadre shall be determined in accordance with Rule-54 of the Bihar Service Code, 1952 and qualification prescribed in Scheduled II to these Rules. Rule-9 provides the selection of candidates by Commissions, stipulates that the Commission would consider all applications found in order and on due consideration in the manner they think fit, prepare a list of suitable candidates and submit the same to the Government by such date as the Government may fix. Rule- 10 is not relevant for the purpose of Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 20/44 this case as the same deals with only medical examination. Part- IV deals with recruitment by promotion, Rule-11 provides the channel of promotion, which provides that promotion to any post shall be made from amongst the Officers holding posts just below. Promotion shall be made from the joint cadre of officers of the Bihar Industries Service on the basis of seniority-cum- merit. Rule-12 defines ratio between direct recruitment and promotion, stipulates that on all posts in the scale of pay Rs.1,000-1820/- or its corresponding revised scale to be ordered by the Government from time to time, the percentage of direct recruitment and promotion shall, normally be in the ratio of fifty per cent (50%) each, provided that if the Government is satisfied that sufficient number of suitable and eligible officers listed in Schedule IV of these rules are available for promotion the Government may increase the quota of promotion in the first year of the commencement of these rules which shall not exceed 75% in any case. Rule 12(b) is very much relevant in the sense that the Government has kept in abeyance this provision of the Rule in connection with private respondents, which reads as under:-
"All superior posts above the scale of Rs.1,000- 1,820/- save and except those posts which are earmarked for other services shall be filled in by Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 21/44 promotion from the eligible officers of the cadre who have fulfilled requisite Kalawadhi on the basis of seniority-cum-merit."
20. Rule- 13 provides the qualifying years service i.e. Kalawadhi for promotion to the next grade. Rule-14 deals with opportunity of direct recruitment of members of the service. Rule-15 is also very much relevant for the purposes of present case as the same prescribes the procedure for recruitment by promotion, which stipulates that the Departmental promotion committee shall make selection of officers on consideration of seniority-cum-merit from amongst the officers including those have been sent on deputation to other department or public undertaking and who are eligible for such promotion. Rule- 15(ii) deals with grant of relaxation by the Government, postulates in the following manner:-
"15. (ii) The Government may relax the criteria as to minimum qualification, years of service etc. in respect of candidates of the Scheduled Castes and Tribes to provide for their suitable representation in different categories of posts in accordance with the reservation formula that may be prescribed by Government from time to time."
21. The other provisions of the Rule are not very much Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 22/44 relevant for the purposes of the present case, but Schedule- I is dealing with designation of the posts and the pay scale at the initial stage has been provided as Rs.1000-1820/-, wherein number of posts have been mentioned, in which one of the posts is the Project Manager of the District Industries Centre, later on promotional posts have been mentioned and the highest post is Additional Director.
22. On analysis of the aforesaid provisions, it is very much clear that direct recruitment is to be made at the initial rung of the cadre corresponding to the pay scale of Rs.1000- 1820/-, promotion has to be made in the next level with the corresponding pay scales invoking requisite Kalawadhi for promotion has also been provided for different posts on completion of that period, only Government servant is to be held eligible for promotion. So, it is clear that a person on direct recruit, would be appointed to the post of Project Manager, next level of promotion is the Functional Manger and direct recruitment cannot be made to the post of Functional Manager, a person would directly be appointed on the post of Project Manager and after completion of Kalawadhi he will be promoted to the next level of post i.e. Functional Manager. In the present case, the advertisement was made for Manager Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 23/44 (Credit). The plea has been taken by the respondents that the post of Manager (Credit) is equivalent to the Functional Manager and before the enforcement of the Rule the requisition was sent for that post, and as such, the recruitment of the private respondents to the post of Functional Manager cannot be in any manner be said to bad in law, but the question would arise when the Bihar Industries Service Cadre Rules has been enforced in the year 1987 and the advertisement was published after enforcement of Rule for the post of Manager (Credit) which has been designated as Class-II post, does not correspond to pay scale of Rs.1350-2000/- (but mentioned in the advertisement) and accordingly, after selection the recommendation was made by the Commission for appointment to Class-II post i.e. Manager (Credit), but ultimately, the private respondents have been appointed as Functional Manager which is a Class-I post and it is not the case of the respondents that the advertisement was published before the commencement of 1987 Cadre Rules rather advertisement was published after enforcement of 1987 Cadre Rules. On the objection raised by the petitioners, a Three Men Committee was constituted and the said Committee has specifically held that the private respondents could not have been recruited to the post of Functional Manager as the initial Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 24/44 post for direct recruitment is the Project Manager. The relevant portion of finding of the Three Men Commission is reproduced hereinbelow:-
"lfefr dk earO;
fcgkj m|ksx lsok dh fu;ekoyh fnukad 30-05-1987 dks xtV gqbZ gS vkSj bl lsok laoxZ dh izFke ojh;rk lwph o'kZ 1992 esa ¼i=kad 2771 fnukad 03-09-1992½ izdkf"kr gqbZ Fkh vkSj f}rh; ojh;rk lwph 2008 esa ¼i=kad 586 fnukad 31-01-08½ dks izdkf"kr dh xbZ gSA ysfdu nksuksa izdkf"kr ojh;rk lwph rnFkZ gh gS vkSj bldh laiqf'V vkt rd ugha gks ik;h gSA vkifRrdRrkZ dk dFku gS fd os o'kZ 1986 ls 1987 rd f}rh; Js.kh ds inkf/kdkjh ¼ifj;kstuk izca/kd½ ds :i esa fu;qDr gq, gS vkSj ftuds fo:) vkifRr ntZ dh xbZ gS os 1990 esa fu;qDr gq, gSa vkSj budk osrueku 1350&2000 gSA tcfd budh vuq"kalk Js.kh&2 ds fy, fcgkj yksd lsok vk;ksx }kjk dh xbZA 1992 esa izdkf"kr rnFkZ ojh;rk lwph esa 1990 esa fu;qDr bu inkf/kdkjh;ksa dks 1986&89 esa fu;qDr inkf/kdkfj;ksa ls ojh;rk nsrs gq, lwph cukbZ x;hA vkifRrdk eqy fcUnw ;gha gS fd 1990 esa fu;qDr inkf/kdkfj;ksa dks 1986&89 rd esa fu;qDr inkf/kdkfj;ksa dks izdkf"kr ojh;rk lwph esa muls mij j[kk x;k gSA fcgkj m|ksx lsok laoxZ fu;ekoyh&1987 ds Hkkx&3 dj dafMdk&8 ds vuqlkj loaxZ ds izjafHkd Lrj ds inksa ij fu;qfDr ds fy, mEehnokjksa dh ik=rk fcgkj lsok lafgrk&1962 ds fu;e 54 ,oa bl fu;ekoyh ds vuqlwph&2 esa fofgr vgZrk ds vuqlkj vo/kkfjr dh tk;sxh rFkk vuqlwph&2 ds varxZr laoxZ ds izos"k fcUnw ds fy, osrueku 1000&1820 okys lHkh in ntZ gSaA fcgkj m|ksx lsok laoxZ fu;ekoyh&1987 ds Hkkx&4 dh dafMdk&*d* esa of.kZr gS fd %& fdlh Hkh in ij izksUufr Bhd blds uhps ds in ds /kkjd inkf/kdkfj;ksa ds chPk ls nh tk;sxh ,oa dafMdk&12 ds vuwlkj lh/kh fu;qfDr osrueku 1000&1820 ;k le;≤ ij ljdkj }kjk vknsf"kr iqujhf{kr osrueku okys inksa ij dh tk;sxhA bu fu;qDr;ksa esa bu fu;eksa dk ikyu ugha fd;k x;k gSA Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 25/44 vkifRrdRrkZ ,oa ftuds fo:) vkifRr dh xbZ gS nksuksa gh fcgkj m|ksx lsok laoxZ esa lh/kh HkrhZ }kjk fu;qDr fd;s x;s gSaA vr% iwoZ esa fu;qDr inkf/kdkfj;ksa dks ckn esa fu;qDr inkf/kdkfj;ksa ls ojh;r nh tkuh pkfg;s ysfdu m|ksx foHkkx ds i=kad 1127 fnukad 28-03-06 esa Hkh of.kZr fd;k x;k gS fd 1987 dh fu;ekoyh esa 12 ¼[k½ ds izfrdqy fu;qfDr;ka gqbZ gSa ,oa bu izksuur inksa ij dh xbZ lh/kh fu;qfDr;ksa dks dkfeZd ,oa iz"kklfud lq/kkj foHkkx }kjk vfof/kekU; crk;k x;k rFkk ;g ijke"kZ fn;k x;k fd **fjysDlslu vkWQ :y bu dslst vkWQ ,DlsI"kuy gkMZ"khi** tks lafo/kku ds vuqPNsn 309 esa iznRr "kfD;ksa ds varxZr fu;ekoyh gS] ds izko/kku ds vuqlkj fcgkj m|ksx lsok laoxZ fu;ekoyh&1987 ds fu;e 12 ¼[k½ dks mDr fu;qfDr;ksa ds fy, f"kfFky fd;k tk;A bl rjg ;g Hkh laiq'V gks tkrk gS fd budh fu;qfDr xyr gqbZ gS vkSj tgka rd cSdykWx dk iz"u gS rks budh fu;qfDr ewy in ij gh gksuh pkfg, Fkh vkSj vxj mPprj osrueku esa fu;qfDr gksuh Fkh tks ml izoxZ dksfV ds inkf/kdkfj;ksa dks fu;keuqlkj volj feyuk pkfg, Fkk ysfdu izoxZ dksfV ds inkf/kdkfj;ksa dks volj ugha feykA bl izdkj foHkkx ;fn pkgs rks i=kad 1127 fnukad 28-02-06 ij iqu% fopkj dj ldrh gSA KkrO; gS fd 1992 dh rnFkZ ojh;rk lwph vktrd laiq'V ugha gksus dh lwpuk gSA lfefr ds le{k fopkj ds Øe esa Jh vfuy dqekj Bkdqj }kjk ,d vkifÙk ntZ dh xbZ fd izdkfkr ojh;rk lwph esa mudh ojh;rk Jh Jhifr flag ls mij gksuk pkfg,A bl fcUnw ij muds }kjk blds leFkZu esa m|ksx foHkkx dh Kki la0&16180 fnukad 25 vDVwcj 1986 fn[kk;k x;k gSA blesa vf/klwpuk la0& 14868 fnukad 24-09-86] 14883 fnukad 24-09-86 ,oa 14884 fnukad 24-09-86 okj Øe"k% Jh vfuy dqekj Bkdqj] Jh Jhifrflag rFkk Jh pUnzeksgu izlkn dks fu;qDr fd;k x;k gSA bl ij foHkkx ls vius Lrj ls yks0ls0 vk;ksx dh vuq"kalk rFkk vU;k nLrkost dh tkap djus dk vuqjks/k fd;k x;kA"
23. The aforesaid view has also been affirmed by the Principal Secretary (Annexure-15) in the following manner:-
Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 26/44 "bl rjg ;g Hkh laiq'V gks tkrk gS fd budh fu;qfDr xyr gqbZ gS vkSj tgk¡ rd cSdykWx dk iz"u gS rks budh fu;qfDr ewy in ij gh gksuh pkfg;s Fkh vkSj vxj mPprj osrueku esa fu;qfDr gksuh Fkh rks ml izoxZ dksfV ds inkf/kdkfj;ksa dks fu;ekuqlkj volj feyuk pkfg;s Fkk ysfdu izoxZ dksfV ds inkf/kdkfj;ksa dks volj ugha feykA bl izdkj foHkkx pkgs rks i=kad &1127 fnukad 28&02&06 ij iqu% fopkj dj ldrh gSA** lfefr dh mDr vuq"kalk ij foHkkx }kjk i=kad &1127 fnukad 28&02&06 ,ao vkSicaf/kd ojh;rk lwph ij vafre fu.kZ; ysuk izfØ;k/khu gS] fcgkj m|ksx lsok laoxZ ds inkf/kdkfj;ksa dh izksUufr dk vk/kkj ojh;rk lg ;ksX;rk gSA pw¡fd lfefr dh vuq"kalk ij foHkkx } kjk vkSicaf/kd ojh;rk lwph ij fu.kZ; ysuk izf Ø;k/khu gS] vr% ojh;rk lwph ds vafre izdk"ku ds mijkar ojh;rk lg ;ksX;rk ds vk/kkj ij fu;ekuqlkj oknh Jherh lfjrk pkS/kjh ,oa leku :i ls vofLFkr inkf/kdkfj;ksa dks vij funs"kd¼rd0½ ds in ij izksUufr ij fopkj fd;k tk;sxkA fofnr gks fd oknh Jherh lfjrk pkS/kjh ls fdlh duh; dks vij funs"kd ¼rd0½ ds in ij izksUufr ugha nh x;h gSA"
24. So, it is very much clear that the entry of these private respondents to the post of Functional Manager cannot be held to be legal, but in the meantime the effect of intervention of Rule, thereby the provision of Rule-12(b) has been kept in abeyance as it appears that the Government found it difficult to hold the entry of private respondents to the post of Functional Manager legal, in order to formalise and legalize and to resolve the dispute of seniority, has come forward with the Rule, by which the Government in exercise of power under Article 309 has kept in abeyance Rule-12(b) of the Bihar Industries Service Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 27/44 Cadre Rules, 1987, on that basis, learned counsel for the State submits that the entry of private respondents to the post of Functional Manager has been legalized applying the principle of relaxation of Rule in cases of exceptional hardship.
25. Let us examine the Rule on the basis of which the respondents are claiming that the entry of private respondents to the post of Functional Manager is legal applying the Rule, thereby kept the Rule-12(b) in abeyance. It will be relevant to quote order dated 28.03.2006, which is as under:-
"m|ksx foHkkx ds v/khu m|ksx lsok laoxZ fu;ekoyh 1987 ykxw gksus ds iwoZ izca/kd dszfMV ds 19 vLFkk;h inks ij fcgkj yksd lsok vk;ksx }kjk vuqlwfpr tkfr @tutkfr ds cSdykWx ds fjDr inks dks Hkjus gsrq foKkiu fudkyk x;k iJurq ;ksX; mEehnokj ugha feyus ds dkj.k iqu% 11@88 }kjk foKkiu fudkyk x;k ftlds vkyksd esa o'kZ 1991 es izca/kd izsfMV ds in ij fu;qfDr u dj dk;Zdkjh izca/kd @izksUufr in @ ds in ij lh/kh fu;qfDr;k gqbZA bu izksUufr inks ij dh xbZ lh/kh fu;qfDr;ksa dks dkfeZd ,oa lq/kkj foHkkx }kjk vfof/kekU; crk;k x;k rFkk ;g ijke"kZ fn;k x;k fd fjysDls"ku vkWQ :y bu dslst vkWQ ,DlsI"kuy gkMZf"ki tks lafo/kku ds vuqPNsn 309 ijarqd es iznRr "kfDr;ks ds varxZ fu;ekoyh gS ds izko/kkukuqlkj fcgkj m|ksx lsok laoxZ fu;ekoyh 1987 ds fu;ek 12 @[k@ ds mDr u;qfDr;ks ds fy, f"kfFky fd;k tk;A vr% fcgkj yksd lsok vk;ksx dh vuq"kalk ds vk/kkj ij vuqlfpr tkfr @tutkfr ds cSd ykSd fjfDr;ks ds fy, mDr fu;qfDr;ks dks fjySDls"ku vkWQ bu dslst vkWQ ,DlsI"kuy gkMZf"ki ds vUrxZr m|ksx lsok laoxZ fu;ekoyh 1987 ds fu;e 12@[k@dks mDr fu;qfDr ds fy, f"kfFky fd;k tkrk gSA"
Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 28/44
26. On perusal of of the Rule, it shows that the case of appointment of 19 persons of reserved category was considered and the Personnel and Administrative Reforms Department having held the same to be illegal and opinion has been given for keeping the provision of Rule in abeyance in cases of exceptional hardship, invoking Article 309 of the Constitution of India, Rule-12(b) has been kept in abeyance in connection with 19 persons. The law on the application of doctrine of relaxation of hardship applies in an exceptional circumstances, not as a routine manner singularly to protect the illegal entry in service and while exercising the power the authority is to record satisfaction while dispensing, relaxing or keeping in abeyance any Rule to such an extent and that too such extent as he may consider necessary for dealing with the cases in a just proper and inequitable manner. The Rule cannot be exercised in an arbitrary manner so as to dispense with Rule relating to selection process in entirety in respect of a particular case, it has to be strictly construed and there should be an apposite foundation in exercise of such power and the law is well settled that any Rule or Regulation will have to stand the scrutiny of Article- 14. If any Rule or Regulation does not satisfy the test of Article 14 that has to be struck down. The law has been Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 29/44 developed that the legislation can be struck down as manifestly arbitrary. Reliance can be made to the decision of the Hon'ble Supreme Court rendered in the case of Swiss Ribbons Pvt. Ltd. And another vs. Union of India and Ors. reported in AIR 2019 SCC 739. It will be relevant to quote paragraph no.21 of the said judgment, which reads as under:-
21. Another development of the law is that legislation can be struck down as being manifestly arbitrary. This has been laid down by the recent Constitution Bench decision in Shayara Bano (AIR 2017 SC 4609) (supra) as follows:
"95. On a reading of this judgment in Natural Resources Allocation case [Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1], : (2012 AIR SCW 6194), it is clear that this Court did not read McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] : (AIR 1996 SC 1627) as being an authority for the proposition that legislation can never be struck down as being arbitrary. Indeed the Court, after referring to all the earlier judgments, and Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] : (AIR 1981 SC
487) in particular, which stated that legislation can be struck down on the ground that it is "arbitrary" under Article 14, went on to conclude that "arbitrariness" when applied to legislation cannot be used loosely. Instead, it broad based the test, stating that if a Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 30/44 constitutional infirmity is found, Article 14 will interdict such infirmity. And a constitutional infirmity is found in Article 14 itself whenever legislation is "manifestly arbitrary" i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment.
Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc.
96. Another Constitution Bench decision in Subramanian Swamy v. CBI [Subramanian Swamy v. CBI, (2014) 8 SCC 682 : (2014) 6 SCC (Cri) 42 : (2014) 3 SCC (L&S) 36] : (AIR 2014 SC 2140) dealt with a challenge to Section 6-A of the Delhi Special Police Establishment Act, 1946. This section was ultimately struck down as being discriminatory and hence violative of Article 14. A specific reference had been made to the Constitution Bench by the reference order in Subramanian Swamy v. CBI [Subramanian Swamy v. CBI, (2005) 2 SCC 317 : 2005 SCC (L&S) 241] : (2005 AIR SCW 758) and after referring to several judgments including Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258]: (AIR 1981 SC 487), Mardia Chemicals [Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311] : (AIR 2004 SC 2371), Malpe Vishwanath Acharya [Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 31/44 1] : (AIR 1998 SC 602)and McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] :
(AIR 1996 SC 1627), the reference, inter alia, was as to whether arbitrariness and unreasonableness, being facets of Article 14, are or are not available as grounds to invalidate a legislation.
97. After referring to the submissions of the counsel, and several judgments on the discrimination aspect of Article 14, this Court held: (Subramanian Swamy case [Subramanian Swamy v. CBI, (2014) 8 SCC 682 : (2014) 6 SCC (Cri) 42 : (2014) 3 SCC (L&S) 36] , SCC pp. 721-22, paras 48-49) : (AIR 2014 SC 2140 at p. 2160-2161, paras 47-48) '48. In E.P. Royappa [E.P. Royappa v.
State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165]: (AIR 1974 SC 555), it has been held by this Court that the basic principle which informs both Articles 14 and 16 are equality and inhibition against discrimination. This Court observed in para 85 as under: (SCC p. 38, para 85 of AIR).
'85. ... From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 32/44 therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.' Court's approach
49. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognised by the Court and due regard and deference must be accorded to the legislative process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are: (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders--if such Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 33/44 conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is"
xxx xxx xxx
100. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. In Cellular Operators Assn. of India v. TRAI [Cellular Operators Assn. of India v. TRAI, (2016) 7 SCC 703], this Court referred to earlier precedents, and held: (SCC pp. 736- 37, paras 42-44) : ( AIR 2016 SC 2336 at p.
2356-57, paras 25-27) "Violation of fundamental rights
42. We have already seen that one of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. [See Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 34/44 Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] , SCC at p. 689, para 75.] : (AIR 1986 SC 515, at p. 542, para 73)
43. The test of "manifest arbitrariness" is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of Karnataka [Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304], this Court held: (SCC p.
314, para 13) : (AIR 1996 SC 911, at p. 915, para 13) '13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the Rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action.
However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 35/44 India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] : (AIR 1986 SC 515), this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable;
"unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary". Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, "Parliament never intended the authority to make such rules; they are unreasonable and ultra vires". In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.'
44. Also, in Sharma Transport v. State of A.P. [Sharma Transport v. State of A.P., (2002) 2 SCC 188], this Court held: (SCC pp. 203-04, para 25) : (air 2002 sc 322, AT P. 330-21, PARA
12) '25.... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 36/44 arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."
(emphasis in original)
101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] : (AIR 1986 sc 515) stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article
14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 37/44 We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14."
This judgment has since been followed in Gopal Jha v. The Hon'ble Supreme Court of India, Writ Petition (Civil) No. 745/2018 [decided on 25.10.2018] (at paragraph 27) (reported in AIR 2018 sc (Supp) 1501); Indian Young Lawyers Associations and Ors. v. State of Kerala and Ors., Writ Petition (Civil) No. 373/2006 [decided on 28.09.2018]; : (Reported in AIR 2018 SC (Supp) 1650); Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194/2017 [decided on 27.09.2018] (at paragraphs 110, 195, 197) (Reported in AIR 2018 SC 4898); K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No. 494/2012 [decided on 26.09.2018] (at paragraphs 77, 78, 416, 724, 725, 1160) ( (AIR 2018 SC (Supp) 1841); Navtej Singh Johar and Ors. v. Union of India, (2018) 10 SCC 1 (at paragraphs 253, 353, 411, 637.9) :
(AIR 2018 SC 4321, paras 238, 336, 380, 523.9); Lok Prahari v. State of Uttar Pradesh and Ors., (2018) 6 SCC 1 (at paragraph 35) :
(AIR 2018 SC 2209, paras 34); and Nikesh Tarachand Shah v. Union of India and Ors., (2018) 11 SCC 1 (at paragraph 23) : (AIR 2017 SC 5500)."
27. The grant of relaxation of Rule came for consideration in the case of Bhupendra Nath Hazarika and Another vs. State of Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 38/44 Assam and Others reported in (2013) 2 SCC 516. In that case, 30 vacancies were advertised for the direct recruitment and 20 vacancies which were sought to be filled up by way of special drive. The main examination for regular batch was held earlier and the Commission declared the result and sent the recommendation, but recruitment was not made to those who have appeared in the regular batch. The examination for recruitment under special drive was conducted later on, the recommendation was made by the Commission at the later stage, but those who have been recommended under the special drive were appointed first. In the seniority list, persons appointed under the special drive were shown senior than to those who were appointed under the direct recruitees of regular batch, which was challenged before the Assam High Court, which they have succeeded and ultimately, the matter went to the Hon'ble Supreme Court. The Hon'ble Supreme Court has held that if the appointment has been made de hors to the Rule, they cannot be provided the legal coverage, any appointment is made de hors to the Rule, not in accordance with the Rule, such appointment cannot be treated to be regular appointment and on equitable ground, cannot clothe an appointment with a legal status, so it is necessary that the entry in the service must be as Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 39/44 per the provisions of the Rules framed by the State Government.
28. It will be relevant to quote paragraph nos. 51 to 54 and 59 to 64 of the said judgment, which are as follows:-
"51. In the obtaining factual matrix, the Selection Committee had not recommended the case of the special batch recruits to the Commission. As the affidavit filed by the Secretary to the Commission before the tribunal clearly stated that the procedure was not followed and the same has been accepted by the tribunal and concurred with by the High Court, there is no reason to differ with the same. Therefore, we give the seal of imprimatur to the said conclusion. At the risk of repetition, we state that the selection has been made in excess of the quota and in the absence of a recommendation of the Selection Committee as prescribed under the rules. Plainly speaking, a maladroit effort was made to appoint the special batch recruits first despite the recommendation of the direct recruits pending before the State Government. It is also disturbing that though the Cabinet had not approved the proposal for special drive to appoint from other source yet the Director General of Police impressed upon the Commission to recommend 20 names. It is also equally perplexing that the concept of the special drive was meant to have young officers but in the ultimate eventuate, officers who were nearing fifty got the appointment. It is obvious that it was totally arbitrary and exhibits indecent enthusiasm to confer benefits on the special batch by making the rules comatosed.
Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 40/44
52. At this stage, it is requisite to clarify one aspect. The learned single Judge has treated the selection of the special batch recruits totally de hors the rules and the Division Bench has opined that it is not de hors the rules on the foundation that they were not casual appointees and their recommendation had been made by the Commission and further they had not played any overt act in getting their selection done.
53. In University of Kashmir v. Mohd. Yasin, this Court expressed the view that an equitable ground does not clothe an appointment with a legal status. Similar view was also expressed in Swapan Kumar Pal v. Samitabhar Chakraborty.
54. In State of Haryana v. Haryana Veterninary and AHTS Association, a three-Judge Bench, after x-ray of the relevant rules, came to hold that when appointments are made in violation of the recruitment rules, the said appointments cannot be treated to be regular.
59. As has been observed by the learned single Judge which has been accepted by the Division Bench, there was no decision to relax the rules in favour of the special batch recruits. That apart, whenever there has to be relaxation about the operation of any of the rules, regard has to be given to the test of causation of undue hardship in any particular case. That apart, the authority is required to record satisfaction while dispensing or relaxing the requirements of any rule to such an extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. The language of the Rule Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 41/44 really casts a number of conditions. It provides guidance. It cannot be exercised in an arbitrary manner so as to dispense with the procedure of selection in entirety in respect of a particular class, for it has to be strictly construed and there has to be apposite foundation for exercise of such power. It is to be borne in mind that if a particular rule empowers the authority to throw all the rules overboard in all possibility, it may not withstand close scrutiny of Article 14 of the Constitution. Be that it may, no decision was taken to relax the rules and, the concept of deemed relaxation is not attracted and, therefore, the relief claimed by the special batch recruits has no legs to stand upon.
60. From the aforesaid analysis, there can be no scintilla of doubt that the selection of the special batch recruits was totally de hors the Rules; that there was a maladroit effort to go for a special drive when there was no need for the same by the State which is supposed to be a model employer; that neither the concept of relaxation nor the conception of benefit of Rule 18 would be attracted for grant on conferring any privilege to the special batch recruits; that their seniority has to be pushed down and, hence, the directions given by the tribunal and the High Court in that regard are absolutely flawless; and that regard being had to the delayed challenge and long rendering of service in the posts and further promotions having been effected, it would be inapposite to quash their appointments.
61. Before parting with the case, we are compelled to reiterate the oft- stated principle that the State is a Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 42/44 model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
62. Almost a quarter century back, this Court in Balram Gupta vs Union of India, had observed thus:
(SCC p. 236, para 13) "13... As a model employer the Government must conduct itself with high probity and candour with its employees."
In State of Haryana v. Piara Singh, the Court had clearly stated: (SCC p. 134 , para 21) "21... The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16".
63. In State of Karnataka vs. Umadevi(3) (SCC p. 18, para 6), the Constitution Bench, while discussing the role of state in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.
64. In Mehar Chand Polytechnic v. Anu Lamba (SCC p. 166, para 16), the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts." Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 43/44
29. So, on the basis of the aforesaid judgments, this Court is of the view that the relaxation of the Rule on the plea of exception hardship cannot be extended in order to legalize an illegal appointment and it should not be done in such a manner to cause any prejudice, who has entered into the service as per the recruitment Rules. Relaxation of Rule can only be granted to mitigate the hardship not to legalize an illegal entry that too at the cost of others' seniority. In the present case, Rule-12(b) has been kept in abeyance, even if a Rule is relaxed that does not mean that the respondents would get a legal approval of direct appointment on the promoted post as Rule 12(b) does not deal that the recruitment could be made on the post which would be filled up by promotion to the next just above post.
30. In view of the aforesaid discussion, as the Government itself was of the opinion that entry of privates respondent was not in accordance with law, as has been explained hereinabove, but most of the petitioners or identical to the petitioners have already been superannuated from the service and some of them are at the verge of superannuation and some of them have been promoted to the next higher grade, but the question would remain as because of the private respondents the petitioners have been deprived of seniority, applying the Patna High Court CWJC No.7860 of 2012 dt.06-05-2019 44/44 doctrine of equity, this Court does not declare the entry of the private respondents to be illegal but, classify them to be irregular appointment to the post of Functional Manager, hence, it will be treated that they have entered into the service as Project Manager, as they have entered into the service after the entry of these petitioners, in such circumstance, the seniority list will be redrawn and the petitioners vis-a-vis private respondents will be placed at the right place, accordingly, the promotional avenues will be fixed with respect to the petitioners even those who have already been superannuated. Consequently, those who have superannuated, they would be granted the notional benefit not the actual monetary benefit, but would get all consequential benefits. Accordingly, all the issues, as framed hereinabove, are decided in the terms as mentioned hereinabove.
31. With the aforesaid observations and directions, this writ petition is allowed to the above extent. Accordingly, the order contained in memo no.1127 dated 28.03.2006 as well as office order dated 28.02.2012 are quashed.
(Shivaji Pandey, J) pawan/-
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