R.S. Garg
Vs. State of U.P. & Ors [2006] Insc 456 (27 July 2006)
S.B.
Sinha & P.P. Naolekar
J U D
G E M E N T S. B. SINHA, J.
This
appeal is directed against a judgment and order dated 22.5.2000 passed by the
High Court of Judicature at Allahabad in Writ Petition No.377(SB)/97, whereby
and whereunder the writ petition filed by the appellant herein questioning an
order of promotion dated 24.5.1997 passed in favour of respondent No.3 herein
was dismissed.
Both
the appellants and the said 3rd respondent were appointed on an ad hoc basis to
the post of Inspector, re-designated as Assistant Director of Factories, on or
about 3.1.1972 and 17.1.1987 respectively. Whereas the appointment of the
appellant herein was in terms of Uttar Pradesh Labour Department (Factories and
Boilers Division) Officers Service (Second Amendment) Rules, 1992 ('1992
Rules', for short) indicating selection through Public Service Commission; the
3rd respondent was appointed purely on ad hoc basis till the selection of a
regular candidate by the Public Service Commission and joining the post or till
such time his services were required by the department. The appellant was
confirmed in his post on 13.5.1978, whereas the 3rd respondent purported to
have been appointed on a regular basis without undergoing the requisite
selection process as provided for in the 1992 Rules and without being
recommended therefor by the Public Service Commission. The State of U.P., by an
order dated 15.11.1995 appointed the 3rd respondent as Assistant Director Factories
on regular basis with effect from the date of issuance of the order providing
that he would be on probation for a period of two years. Indisputably, there
were six posts of Deputy Director of Factories in the State of U.P., out of
which four posts were designated as Deputy Director of Factories
(Administration), one as Deputy Director of Factories (Chemical) and one as
Deputy Director of Factories (Engineering). The post of Assistant Director of
Factories was the feeder post. As noticed hereinbefore, both the posts of
Assistant Director of Factories, formerly known as Inspector of Factories, and
Deputy Director of Factories (Admn.) were to be filled up through the Public
Service Commission. It is furthermore not in dispute that the educational
qualification required for appointment to the post of Deputy Director
(Chemical), vis-`-vis, Deputy Director of Factories (Admn.) and Deputy Director
of Factories (Engineering) are different. It is also not in dispute that out of
the four posts of Deputy Director of Factories (Admn.) one is to be filled up
by an officer belonging to reserved category.
The
wife of the 3rd respondent, Smt. Prem Lata, made a representation to the Chief
Minister of the State of U.P. that her husband, who belonged to Scheduled
Caste, was victimized and was not being promoted to the post of Deputy Director
of Factories, whereupon instructions were issued to the Principal Secretary, Labour,
to intimate to her as to why the promotion of 3rd respondent was being delayed.
A proposal was made for converting the said post of Deputy Director of
Factories (Chemical) to the post of Deputy Director of Factories (Admn.) upon
obtaining sanction from the Chief Minister, although, the concurrence of the
Finance Department was not obtained therefor. A note-sheet to the
aforementioned effect on 15.4.1997 was drawn which is to the following effect:
"The
post of Deputy Director Factories (Chemical) in Labour Commissioner organisation
is proposed to be converted/created as deputy director, Factories (Administration).
Finance Department did not approve the proposal. This conversion will not
entail any financial loss and it would provide promotional avenues for
candidates of scheduled castes. Since Finance Department is also with the Chief
Minister, therefore, Chief Minister may give approval on this proposal.
-
For the afore
said post so converted, the candidates available for promotion are not
completing qualifying service of five years. Sri Bharti has been in service
since 1987-88 with interruption and since 1989 without interruption and upto
1995 on adhoc basis and in regular service since 15.11.95. According to the
provisions of U.P. Reservation Act 1994 relaxation may be given to fulfil
reservation quota. Therefore, it is proposed to give relaxation in qualifying
service for this aforesaid post.
Personnel
Department is under Hon'ble C.M. Therefore it is requested that he may approve
the proposal to give relaxation."
-
Para 1 and 2 for approval please.
sd/-
15.04.97 Chandra Pal seal Principal Secretary Labour Department U.P. Shasan."
The said note-sheet was placed before the then Chief Minister, State of U.P. on 20.4.1997 and was approved on 21.4.1997. The
Principal Secretary issued a letter to the Labour Commissioner, U.P. that the
Governor, after due consideration, directed conversion of one temporary post of
Deputy Director of Factories (Chemical) into the post of Deputy Director of
Factories (Admn.). It was stated:
"In
pursuance of the above order the necessary amendment in the UP Factories in
Boilers Service Rules 1980 shall be issued later on." The 3rd respondent,
pursuant to the purported conversion of the said post, was promoted as Deputy
Director of Factories (Administration).
The
appellant herein filed a writ petition questioning the same before the Lucknow
Bench of the High Court of Judicature at Allahabad praying for the following reliefs:
-
" to issue
a writ, order or direction in the nature of certiorari quashing the impugned
order dated 25th April, 1997 promoting the Respondent No.3 on the post of
Deputy Director of Factories (Administration) as contained in Annexure No.1 to
this writ petition;
-
to issue a writ,
order or direction in the nature of certiorari quashing the order dated 15th
November, 1995 by which the Respondent No.3 was appointed on the post of
Assistant Director of Factories on regular basis, as contained in Annexure No.5
to this writ petition;
-
to issue a writ,
order or direction in the nature of quo-warranto requiring the respondent No.3
to show cause as to how he is holding the post of Deputy Director of Factories
(Administration);
-
to issue a writ,
order or direction in the nature of Mandamus commanding the respondents to
consider the petitioner for promotion on the post of Deputy Director of
Factories (Administration);
-
to issue any
other writ, order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case;
-
to allow this
writ petition with all costs in favour of the petitioner." The said writ
petition had been dismissed by the impugned judgment.
The
contentions raised before the High Court as also before us, on behalf of the
appellant are:
-
The 3rd
respondent was illegally appointed as Assistant Director of Factories as his
services were regularized without referring the matter to the Public Service
Commission as was required by Rule 5(iii) of the 1992 Rules;
-
The order of
promotion passed in favour of the 3rd respondent was mala fide;
-
The purported
conversion of the post of Deputy Director of Factories (Chemical) to Deputy
Director of Factories (Admn.) being contrary to the 1992 Rules and having been
done with a view to favour the 3rd respondent, was illegal;
-
The 3rd
respondent was not eligible to be promoted, as he did not complete 5 years'
substantive service on the date of selection, i.e., in the year 1997 in terms
of Rule 5(iii);
-
Reservation to
the post in favour of a Scheduled Castes was illegal and unjust by reason
thereof the percentage of reservation in promotion would be raised from 21% to
33%.
-
The post of
Deputy Director of Factories (Administration) has already been occupied by a
candidate belonging to the reserved category, namely Shri Ghanshyam Singh.
On the
other hand, the contentions raised on behalf of the 3rd respondent herein are :
-
The appointment
and regularization of 3rd respondent had never been challenged by the appellant
nor any relief was sought for in that behalf in the writ petition and, thus,
the same should not be allowed to be raised before this Court. In any event,
the same could not have been challenged collaterally after 10 years' of initial
appointment and 2 years after the regularization of the services of the said
respondent;
-
The appellant
should have impleaded the Chief Minister and Principal Secretary in their
personal capacities as allegation of favoritism was made against them. In any
event, the appointment having been made by the State of U.P. in terms of 1992 Rules of business upon selection by
the Departmental Promotion Committee; the order of promotion was valid in law;
-
Appointment of
the 3rd respondent was made bona fide;
-
No relief having
been sought for questioning conversion of the post in the writ petition, no
grievance in that behalf can be permitted to be raised herein. Furthermore, the
appellant himself having claimed for promotion to the said post, he cannot be
permitted to approbate and reprobate;
-
Rule 5(iii)
should be construed in a reasonable manner and read fairly. If a broad meaning
thereto is given, the same would imply experience of 5 years in the post and
not 5 years' experience after having substantively appointed on the post of
Assistant Director and so construed, the High Court must be held to have
rightly opined that there had been no violation of Rule 5(iii) of the said 1992
Rules;
-
Reservation
having been provided in terms of the Government orders issued from time to
time, the issue of reservation exceeding 21% of posts in the cadre does not
arise and there had, thus, been no breach of Articles 14 and 16 of the
Constitution;
-
In any event, it
is not a fit case where this Court should exercise its discretionary
jurisdiction under Article 136 of the Constitution of India in view of the fact
that the 3rd respondent had been working in the promoted post for about 9 years
and he is to retire in May, 2007.
The
State of Uttar Pradesh, in exercise of its powers conferred by the Proviso to
Article 309 of the Constitution of India enacted the Uttar Pradesh Inspector of
Boilers and Factories Service Rules, 1980 ('1980 Rules', for short). Direct
recruitment has been defined in Rule 2(g) to mean recruitment otherwise than by
promotion, transfer or deputation. Rule 4 provides for strength of service of
each category of posts envisaged therein, meaning such categories as may be
determined by the Governor from time to time.
Sub-Rule
(2) of Rule 4 provides that the strength of service was to be as specified
until orders varying the same have been passed under Sub-Rule (1) as specified
in Appendix 'A' thereto. Rule 5 of the 1980 Rules provides for source of
recruitment; clause (iii) thereof refers to the post of Deputy Chief Inspector
of Factories (Administration), which is in the following terms:
"By
promotion, on the basis of seniority subject to the rejection of unfit, through
the Commission from amongst the permanent Inspectors of Factories, who have put
in at least five years of continuous service including temporary and
officiating service." Rule 6 speaks of reservation stating that the same
shall be in accordance with the orders of the Government in force at the time
of recruitment. Rule 9 provides for academic qualifications and experience,
which the candidate for direct recruitment is required to possess, and as
specified in Appendix 'B' to the 1980 Rules. Rule 15 provides for procedure for
recruitment, whereas Rule 16 provides for recruitment by promotion, which is in
the following terms:
-
"Procedure
for recruitment by promotion.-
Recruitment
by promotion to various categories of posts in the service shall be made in
accordance with the general rules made by the Governor laying down the procedure
for promotion in consultation with the Commission. The criteria for promotion
shall be as indicated against each in rule 5 to these rules.
Note
The rules laying
down the procedure in force at the commencement of these rules are "Uttar
Pradesh Promotees by Selection in Consultation with Public Service Commission
(Procedure) Rules, 1970" as amended from time to time." In terms of
Rule 22, separate seniority lists are to be maintained for each category of
posts in the service.
Rule
28 speaks of relaxation, which is in the following terms:
-
"Relaxation
from other conditions of service.-
Where
the Governor is satisfied that the operation of any rule regulating the
conditions of service of the members of the service causes undue hardship in
any particular case, he may, in consultation with the commission where
necessary, notwithstanding anything contained in the rules applicable to the
case, by order, dispense with or relax the requirements of that rule to such
extent and subject to such conditions as he may consider necessary for dealing
with the case in a just and equitable manner." The matter relating to
reservation is governed by The Uttar Pradesh Public services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 ('the
Act', for short). Section 3 thereof provides for reservation for direct
recruitment in terms whereof 21% of the posts is reserved for Scheduled Caste
candidates. By a Government order dated 10.10.1994, reservation to the same
extent was permitted. However, the roster in regard thereto was prepared
stating that the 1st post and the 6th post shall be reserved for the scheduled
caste candidate. The seniority list was published on 15.11.1995 wherein the
name of the 3rd respondent was shown at serial number 6. It is not in dispute
that the name of the appellant figured at serial number 6 in the seniority list
published on 28.4.1989. At that point of time, the 3rd respondent was out of
reckoning. The appointment of the 3rd respondent was on an ad hoc basis. It is
not in dispute that while making such appointment the provisions of the 1992
Rules have not been complied with. His services were sought to be regularized
only in the year 1995.
Section
8 of the Act reads thus:
-
-
"The State
Government may, in favour of the categories of persons mentioned in sub-section
(1) of section 3, by order, grant such concessions in respect of fees for any
competitive examination or interview and relaxation in upper age limit, as it
may consider necessary.
-
The Government
orders in force on the date of the commencement of this Act, in respect of
concessions and relaxations, including concession in fees for any competitive
examination or interview and relaxation in upper age limit and those relating
to reservation in direct recruitment and promotion, in favour of categories of
persons referred to in sub-section (1), which are not in consistent with the
provisions of this Act, continue to be applicable till they are modified or
revoked, as the case may be." It is not disputed that even at the time of
regularizing the services of the 3rd respondent the matter was not referred to
the Public Service Commissions, although, for the purpose of disposal of this
matter, it may not be necessary to delve deep into the question as regards the
validity or otherwise of the said action on the part of the State of U.P., we
may notice that a Constitution Bench of this Court in Secretary, State of
Karnataka & Ors. vs. Umadevi & Ors. [2006 (4) SCALE 197], has
emphasized on compliance of requirements of the constitutional scheme in making
the appointments as adumbrated in Articles 14 and 16 of the Constitution of
India. The Court emphasized that even in the matter of regularization of
service the provisions of Articles 14 and 16 of the Constitution cannot be
given a complete go-by. The extent of the power of the State to make relaxation
of the rules also came up for consideration of the Constitution Bench. The
Constitution Bench referred to a recent decision of this Court in Ors. [2006
(2) SCLAE 115], wherein it was observed:
"The
main object of Article 16 is to create a constitutional right to equality of
opportunity and employment in public offices. The words "employment"
or "appointment" cover not merely the initial appointment but also
other attributes of service like promotion and age of superannuation etc. The
appointment to any post under the State can only be made after a proper
advertisement has been made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially constituted committee
whose members are fair and impartial through a written examination or interview
or some other rational criteria for judging the inter se merit of candidates
who have applied in response to the advertisement made. A regular appointment
to a post under the State or Union cannot be
made without issuing advertisement in the prescribed manner which may in some
cases include inviting applications from the employment exchange where eligible
candidates get their names registered. Any regular appointment made on a post
under the State or Union without issuing advertisement
inviting applications from eligible candidates and without holding a proper
selection where all eligible candidates get a fair chance to complete would
violate the guarantee enshrined under Article 16 of the Constitution." In Suraj
Parkash Gupta & Ors. vs. State of J&K
& Ors. [(2000) 7 SCC 561], this Court opined:
"The
decision of this Court have recently been requiring strict conformity with the
Recruitment Rules for both direct recruits and promotees. The view is that
there can be no relaxation of the basic or fundamental rules of
recruitment." Even the State cannot make rules or issue any executive
instructions by way of regularization of service. It would be in violation of
the rules made under Article 309 of the Constitution of India and opposed to
the constitutional scheme of equality clauses contained in Articles 14 and 16.
{See
also A. Umarani vs. Registrar, Cooperative Societies & Ors., [(2004) 7 SCC
112] and National Fertilizers Ltd. & Ors. vs. Somvir Singh [(2006) 5 SCC
493].} The significant question, which now arises, is interpretation of Rule
5(iii) of the 1992 Rules in terms whereof for the purpose of promotion to the
post of Deputy Director of Factories (Admn.) at least 5 years service as such
from the first day of the year of recruitment is imperative. For the
aforementioned purpose, the said rule as was existing prior to 1992 and
amendment made in 1992 may be noticed which reads as under:
OLD
RULE (Existing) NEW RULE (Substituted) 5(iii) Deputy Director of Factories
(Administration) - 5(iii) Deputy Director of Factories (Administration) By
promotion on the basis of seniority subject to the rejection of unfit, through
the Commission from amongst the Permanent Assistant Director of Factories, who
have put in at least five years of continuous service including temporary and
officiating service.
By
promotion on the basis of seniority subject to the rejection of the unfit,
through the Commission from amongst substantively appointed Assistant Director
of Factories, who have put in at least five year service as such on the first
day of the year of recruitment.
The
aforesaid Rule 5(iii), thus, requires that on the date of selection, the
candidate should have been substantively appointed as Assistant Director of
Factories. It does not speak of experience in the service alone. The submission
of Mr. Dinesh Dwivedi that the words "as such" referred to 5 years'
experience of working in the post and not 5 years' experience in the
substantive capacity cannot be accepted. An ad hoc employee who has been
appointed in violation of the service rules did not hold any post. His
experience in the post would mean experience gathered by him after his
appointment in the substantive capacity. It is trite law that for the purpose
of reckoning seniority the ad hoc services would be taken into consideration
only if prior to the appointment of the employee the authorities had complied
with the statutory requirements of selecting the candidate. At the relevant
point of time, the rule provided for selection through Public Service
Commission. The same having not been done, the appointment of the 3rd
respondent was void ab initio. The question of regularization of his services, therefore,
did not arise.
In
State of Madhya Pradesh & Anr. vs. Laxmishankar Mishra
[AIR 1979 SC 979], whereupon Mr. Dwivedi placed strong reliance, the
appointment was not required to be made in terms of the rules made under
Article 309 of the Constitution of India. The question raised therein was
governed by the M.P. Local Authorities School Teachers (Absorption in
Government Service) Rules, 1964, which provided for absorbing teachers serving
in Middle Schools and Primary Schools managed by local authorities in
Government service. It was in the aforementioned fact situation this Court
opined that every High School or Higher Secondary
School must of
necessity have the post of Head Master/Principal and it was nowhere suggested
that there would not be a post of Head Master/Principal.
The
appointment by the authorities of the schools which were situate in the area
being ruled by a Princely State, no statutory rule required to be complied
with. We, therefore, do not subscribe to the views of the High Court that even
experience gained by the 3rd respondent while acting in ad hoc capacity would subserve
the requirements of Rule 5(iii) of the 1992 Rules. The 3rd respondent, from
1984 to 1995, did not hold even any temporary or any officiating post. The rule
of seniority would, thus, be the usual rule for promotion to the post of Deputy
Director. The only criteria which appears to have been laid down by reason of
1992 amendment, is that in stead and place of the term 'permanent', the
expression 'substantively appointed' has been inserted. The 3rd respondent was
substantively appointed only in 1995, prior whereto he was not holding any
post. A person may not be a permanent employee for the purpose of gaining
experience as the experience gained by him even during his temporary
appointment may also be specific appointment. The expression "as
such" clearly is referable to the expression "substantively
appointed". It has nothing to do with the period of five years as was
submitted by Mr. Dwivedi. The said Rule read in its entirety would mean that
the candidate for promotion must be appointed substantively and when so
appointed, he has to put in at least five years service as such. The expression
"first day of the year of recruitment" is also of significance. By reason
of ad hoc appointment de'hors the rules, nobody is recruited in the service in
the eyes of law. The expression "recruitment" would mean recruitment
in accordance with the rules and not de'hors the same. Absence of experience in
substantive capacity is not a mere irregularity in this case. It would not be a
mere irregularity, when a person not eligible therefor would be considered for
promotion. It may be that for the purpose of direct appointment, experience and
academic qualifications are treated to be at par, but when an eligibility criteria
has been provided in the Rules for the purpose of promoting to a higher post,
the same must strictly be complied with. Any deviation or departure therefrom
would render the action void.
In Ram
Sarup vs. State of Haryana & Ors. [AIR 1978 SC 1536], whereupon Mr. Dwivedi
placed strong reliance, the appointment of the appellant therein as Labour-cum-Conciliation
Officer was found to be irregular. In that view of the matter, the same was not
void. This Court opined that the said appointment to be irregular, as he did
not possess the requisite experience at the relevant time. His services had
been regularized and, thus, he became entitled to be considered from the expiry
of the period of five years calculated from the date when he was appointed as
Chief Inspector of Shops. The said decision has no application in the instant
case as the distinction between an appointment in terms of the Rules and de'hors
the Rules is well known.
In A. Umarani
(supra), it was opined:
"Regularisation,
in our considered opinion, is not and cannot be the mode of recruitment by any
"State" within the meaning of Article 12 of the Constitution of India
or any body or authority governed by a statutory Act or the Rules framed thereunder.
It is also now well settled that an appointment made in violation of the
mandatory provisions of the statute and in particular, ignoring the minimum
educational qualification and other essential qualification would be wholly
illegal.
Such
illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma.) It is equally well settled
that those who come by back door should go through that door. (See State of U.P.
v. U.P. State Law Officers Assn.) Regularisation furthermore cannot give
permanence to an employee whose services are ad hoc in nature." An
appointment de'hors the Rules would render the same illegal and not irregular
as has been held in Umadevi (supra) in the following terms :
"Thus,
it is clear that adherence to the rule of equality in public employment is a
basic feature of our constitution and since the rule of law is the core of our
Constitution, a Court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the
appointee." It was further observed:
"It
has also to be clarified that merely because a temporary employee or a casual
wage worker is continued for a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original appointment was not
made by following a due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular recruitment at the
instance of temporary employees whose period of employment has come to an end
or of ad hoc employees who by the very nature of their appointment, do not
acquire any right. High Courts acting under Article 226 of the Constitution of
India, should not ordinarily issue directions for absorption, regularization,
or permanent continuance unless the recruitment itself was made regularly and
in terms of the constitutional scheme." However, in the case of irregular
appointment, the Constitution Bench in Umadevi (supra) stated as follows:
"One
aspect needs to be clarified. There may be cases where irregular appointments
(not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N.
NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph
15 above, of duly qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten years or more but
without the intervention of orders of courts or of tribunals. The question of
regularization of the services of such employees may have to be considered on
merits in the light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context, the Union of
India, the State Governments and their instrumentalities should take steps to
regularize as a one time measure, the services of such irregularly appointed,
who have worked for ten years or more in duly sanctioned posts but not under
cover of orders of courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six months from
this date. We also clarify that regularization, if any, already made, but not subjudice,
need not be reopened based on this judgment, but there should be no further
by-passing of the constitutional requirement and regularizing or making
permanent, those not duly appointed as per the constitutional scheme." The
original appointment of 3rd respondent being illegal and not irregular, the
case would not come within the exception carved out by the Constitution Bench.
Furthermore, relaxation, if any, could have been accorded only in terms of Rule
28 of the Rules, Rule 28 would be attracted when thereby undue hardship in any
particular case is caused. Such relaxation of Rules shall be permissible only
in consultation with the Commission. It is not a case where an undue hardship
suffered by the 3rd respondent could legitimately been raised being belonging
to a particular class of employee. No such case, in law could have been made
out. It, in fact, caused hardship to other employees belonging to the same
category, who were senior to him; and thus, there was absolutely no reason why
an exception should have been made in his case.
The
difference in concept of malice in law and malice on fact stand is well known.
Any action resorted to for an unauthorized purpose would construe malice in
law. {See Smt. S.R. Venkataraman vs. Union
of India & Anr. [(1979) 2 SCC 491 : AIR 1979 SC 49] State of A.P. vs. Goverdhanlal Pitti [(2003) 4 SCC 739], Chairman
& M.D., BPL Ltd. vs. S.P. Gururaja [(2003) 8 SCC 567 and see also Punjab
SEB Ltd. vs. Zora Singh [(2005) 6 SCC 776].} Malice in its legal sense means
malice such as may be assumed for a wrongful act intentionally but without just
cause or excuse or for one of reasonable or probable cause. The term malice on
fact would come within the purview of aforementioned definition. Even, however,
in the absence of any malicious intention, the principle of malice in law can
be invoked as has been described by Viscount Haldane in Shearer and Another v.
Shields (1914) AC 808 at p. 813 in the following terms:
"A
person who inflicts an injury upon another person in contravention of the law
is not allowed to say that he did so with an innocent mind; he is taken to know
the law, and he must act within the law. He may, therefore, be guilty of malice
in law, although, so far the state of his mind is concerned, he acts
ignorantly, and in that sense innocently." The said principle has been
narrated briefly in Smt. S.R. Venkataraman vs. Union of India & Anr. [AIR
1979 SC 49 : (1979) 2 SCC 491], in the following terms:
"Thus
malice in its legal sense means malice such as may be assumed from the doing of
a wrongful act intentionally but without just cause or excuse, or for want of
reasonable or probable cause." Another aspect of the matter cannot also be
overlooked. Apart from the fact that the concerned authorities had made up
their minds to promote the 3rd respondent herein from the very beginning, as an
approval therefor appears to have been obtained from the Chief Minister only on
20.4.1997; the post was in fact created on the next date, i.e., on 21.4.1997
and the order of promotion was issued on 24.4.1997, although, decision
thereupon, as would be evident from the note-sheet, had been taken on 15.4.1997
itself.
Such
an action is undue haste on the part of the respondents smacks of mala fide.
Furthermore,
for the purpose of promotion to the post in question, cases of at least 5
candidates were required to be considered. The case of 3rd respondent was
considered alone, although, there had been 2 other candidates, who fulfilled
the same criteria.
Even
no seniority list was prepared at the time of constitution of the Departmental
Promotion Committee.
The
State proceeded on the basis that the act of conversion would require an
amendment to the rules. Whether such an amendment was necessary or not, as was
argued by Mr. Dwivedi, looses much significance in view of the fact that the
State itself was of the opinion that the same was necessary. Despite the same,
the Principal Secretary, Labour Department had put up the note, as noticed
hereinabove, before the Chief Minister without bringing the same to her notice.
The note was not put up only highlighting the necessity therefor. Two views
were placed: Firstly, the conversion would not entail any financial loss and
provide promotional avenues for candidates of scheduled castes, which by itself
cannot be a matter of public interest; and Secondly, the case of the 3rd
respondent was highlighted, stating that he had been in service since 1987-88
with interruption and since 1989 without interruption and upto 1995 on ad hoc
basis and in regular service since 15.11.1995. It was also stated that
relaxation could be given to fulfil reservation quota under the 1994 Act, in
terms whereof relaxation for qualifying service for the aforementioned post
could be accorded. Why the Public Service Commission was ignored, has not been
explained. The idea of conversion of the post should have been mooted keeping
public interest in view and not the interest of an individual.
The
entire approach of the authorities of the State of U.P, thus, was only for achieving a private interest and
not the public interest. It was in that sense, the action suffered from the
vice of malice in law. It has not been disputed that there were other employees
also who belonged to scheduled caste and were senior to the 3rd respondent.
It has
also not been disputed that no relaxation could be granted for promotion in terms
of 1994 Act. Five years' experience from the date of substantive requirement,
thus, being an essential qualification, no relaxation could have been given in
that regard to the 3rd respondent. The 1994 Act was not enacted for meeting
such a contingency. In that view of the matter both the Chief Minister as well
as the Principal Secretary themselves did not possess any authority to make any
relaxation and in that view of the matter they must be held to have misdirected
themselves in law necessitating interference by the superior courts by way of
judicial review. When such an illegality is committed, the superior court
cannot shut its eyes. Contention of such glaring illegality would create a
dangerous trend in future. It is one thing to say that conversion of one post
to another may be done in accordance with law having regard to the public
purpose in mind but a statutory power, it is well-settled, cannot be exercised
so as to promote a private purpose and the same subverts the same.
A
discretionary power as is well known cannot be exercised in an arbitrary
manner. It is necessary to emphasize that the State did not proceed on the
basis that the amendment to the Rules was not necessary. The action of a
statutory authority, as is well known, must be judged on the basis of the norms
set up by it and on the basis of the reasons assigned therefor. The same cannot
be supplemented by fresh reasons in the shape of affidavit or otherwise. {See Mohinder
Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors.
[AIR 1978 SC 851, Commissioner of Police vs. Gordhandas Bhanji [AIR 1952 SC 16]
and also Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai [(2005) 7 SCC
627].} In terms of the 1994 Act, the reservation was to be confined to 21%.
There
were 6 posts. If the roster was to be followed, 2 posts would be reserved for
the Scheduled Caste candidates, which is impermissible.
Mr. Dwivedi
submitted that the post of Deputy Director of Factories (Engineering) would be
forming separate cadre. We do not agree. It is not disputed that the said post
has also been considered at par with the post of Deputy Director of Factories
(Administration), as the qualification for holding the said post was the same.
In a
case of this nature, the rule of strict construction is required to be applied
and the action on the part of the State must be judged in terms thereof.
Equality
clauses contained in Articles 14, 15 and 16 of the Constitution of India may in
certain situations have to be considered as the basic structure/features of the
Constitution of India. We do not mean to say that all violations of Article 14
or 16 would be violative of the basic features of the Constitution of India as
adumbrated in Kesvananda Bharati vs. State of Kerala [(1973) 4 SCC 225 : 1973
Supp. SCR 1]. But, it is trite that while a law is patently arbitrary, such
infringement of the equality clause contained in Article 14 or Article 16 may
be held to be violative of the basic structure of the Constitution. {See Waman Rao
vs. Union of India [(1981) 2 SCC 362], Maharao Saheb Shri Bhim Singhji, etc.
vs. Union of India & Ors. [AIR 1981 SC
234] and Minerva Mills Ltd. & Ors. vs. Union
of India & Ors [(1980) 3 SCC 625].} A statute professing division amongst
citizens, subject to Articles 15 and 16 of the Constitution of India must pass
the test of strict scrutiny. Article 15(4) and Article 16(4) profess to bring
the socially and educationally backward people to the forefront.
Only
for the purpose of invoking equality clause, the makers of the Constitution
thought of protective discrimination and affirmative action.
Such
recourse to protective discrimination and affirmative action had been thought
of to do away with social disparities. So long as social disparities among
groups of people are patent and one class of citizens in spite of best efforts
cannot effectively avail equality of opportunity due to social and economic
handicaps, the policy of affirmative action must receive the approval of the
constitutional courts. For the said purpose, however, the qualifications laid
down in the Constitution for the aforementioned purpose must be held to be the
sine qua non. Thus, affirmative action in essence and spirit involves
classification of people as backward class of citizens and those who are not
backward class of citizens. A group of persons although are not as such
backward or by passage of time ceased to be so would come within the purview of
the creamy layer doctrine evolved by this court. The court by evolving said
doctrine intended to lay a law that in terms of our constitutional scheme no
group of persons should be held to be more equal than the other group. In
relation to the minorities, a 11-Judge Bench of this Court in T.M.A. Pai
Foundation vs. State of Karnataka [(2002) 8 SCC 481] categorically held that
protection is required to be given to the minority so as to apply the equality
clauses to them vis-`-vis the majority. In Islamic Academy of Education vs.
State of Karnataka [(2003) 6 SCC 697], it was opined
that the minority have more rights than the majority. To the said extent
Islamic Academy of Education (supra) was overruled by a 7-Judge Bench of this
Court in P.A. Inamdar vs. State of Maharashtra [(2005) 6 SCC 537].
An
executive action or a legislative Act should also be commensurate with the
dicta laid down by this Court in Indra Sawhney vs. Union of India [1992 Supp.2
SCR 454] (`Indra Sawhney-I') and followed in Ashoka Kumar Thakur vs. State of
Bihar & Ors. [(1995) 5 SCC 403] and Indra Sawhney vs. Union of India [1999
Supp.5 SCR 229] ('Indra Sawhney- II').
In Umadevi
(Supra), the Constitution Bench referring to Kesavananda Bharati (supra), Indra
Sawhney-I (supra) and Indra Sawhney-II (supra), opined:
"These
binding decisions are clear imperatives that adherence to Articles 14 and 16 of
the Constitution is a must in the process of public employment." We are
not concerned with the reasonableness or otherwise of the percentage of
reservation. 21% of the posts have been reserved for Scheduled Tribe candidates
by the State itself. It, thus, cannot exceed the quota. It is not disputed that
in the event of any conflict between the percentage of reservation and the
roster, the former shall prevail. Thus, in the peculiar facts and circumstances
of this case, the roster to fill up the posts by reserved category candidates,
after every four posts, in our considered opinion, does not meet the
constitutional requirements.
For
the reasons aforementioned, the impugned judgment cannot be sustained.
The
question, which now arises for consideration, is as to whether this Court,
despite gross illegalities committed by the State, would refuse to exercise its
discretionary jurisdiction under Article 136 of the Constitution of India. The
order of promotion was issued on 25.4.1997. The writ petition was filed within
a few days thereof, i.e., on 2.5.1997. As the 3rd respondent had joined the
post, no stay had been granted by the High Court. He might have been working
for about 9 years, but he was holding the post during the pendency of the writ
petition. The appellant was promoted only in the year 2001. He had to suffer
the ignominy of working under a junior for a long time. The fact that the 3rd
respondent would retire in May, 2007 is again wholly immaterial. It is of not
much relevance.
It is
also not correct to contend that the selection was on merit basis. If the post
was not reserved, in no way the 3rd respondent could have been promoted. He
might not have come within the purview of zone of consideration. This case
points out how the illegalities are committed by the State causing deprivation
of legitimate right of promotion of more meritorious and senior candidates.
It is
not a case, where we should refrain ourselves from exercising our discretionary
jurisdiction. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. The respondents
shall bear the costs of the appellant throughout.
Such
costs would be borne by the State as also the 3rd respondent equally, which is
assessed at Rs.50,000/-.
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