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SUPREME COURT OF INDIA
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL, JJ.
Renu & Ors. – Appellants
Versus
District & Sessions Judge, Tis Hazari & Anr. – Respondents
CIVIL APPEAL NO. 979 OF 2014 (Arising out of SLP (C) No. 26090 of 2011)
Decided On : 12-02-2014
AIR 2007 SC 861; AIR 1992 SC 789; AIR 1992 SC 2130; AIR 1996 SC 2638; AIR 1996 SC 3420; AIR 2006 SC 3499; (2006) 2 SCC 716; JT 2013 (9) SC 139; (1996) 6 SCC 216; AIR 1987 SC 1227; (2003) 10 SCC 276; AIR 2006 SC 1165; (2007) 8 SCC 264; AIR 2006 SC 1806; (2011) 3 SCC 436 – Relied upon
(b) Service Law – Appointment – Principles to be adopted in public appointment restated. (Para 12)
(2007) 8 SCC 264 – Relied upon
(c) Constitution of India – Articles 226 and 32 – Writ of Quo Warranto – Appointment made in violation of Articles 14 and 16 – Judicial weapon to control executive from making irregular and illegal appointment and protect genuine persons from being deprived of public office – Transparency in public appointments is important requirement – Appointment made through back door and de hors the rules have always been deprecated. (Para 15 to 17)
AIR 1965 SC 491; AIR 1992 SC 1213; AIR 2001 SC 3435; AIR 2002 SC 2513; AIR 2006 SC 1413; AIR 2010 SC 3515; (2014) 1 SCC 161; AIR 1994 SC 1654; AIR 1990 SC 1176 – Relied upon
(d) Service law – Appointments in Judiciary – Under Article 229(1) Chief Justice of High Court given power of appointment to safeguard independence of judiciary – Even this power is subject to Article 16. (Para 20)
AIR 1971 SC 1850; AIR 1991 SC 295; AIR 1975 SC 889 – Relied upon
(e) Constitution of India – Article 235 – Power of High Court of superintendence over subordinate judiciary – Extends to all functionaries including ministerial staff – Such control is exclusive in nature, comprehensive in extent and effective in operation. (Para 22)
AIR 1966 SC 447; AIR 1974 SC 710; AIR 1999 SCC 3734; AIR 2001 SC 201; AIR 2003 SC 1029; AIR 2012 SC 232 – Relied upon
(f) Constitution of India – Article 229(2) – Powers of Chief Justice of High Court in matters of appointment – Not unfettered – Appointments to post of any category or class I High Court or subordinate courts have to be made adhering to provisions of Articles 14 and 16 of the Constitution and/or such Rules as made by the legislature. (Para 29, 30)
AIR 2005 SC 2103; AIR 1956 SC 285; AIR 1979 SC 193; AIR 2011 SC 3667; AIR 1997 SC 2431 – Relied upon
Facts of the case:
This case arose out of the practice of appointing staff in subordinate courts on ad hoc basis for 89 days and continuing the same after a break of few days.
The Supreme Court considered the question of introducing the questions of centralizing the recruitment system for such staff and making them transferable.
Finding of the Court:
Public appointments must adhere to Articles 14 and 16 and Rules made by Legislature.
Powers of Chief Justice of High Court under Article 229 is not unfettered but subject to Articles 14 and 16.
Result : Appeal disposed of with directions.
Based on the provided legal document, here are the key points regarding public employment, appointments, and recruitment in judicial institutions:
1. Constitutional Mandate for Equality and Fairness * All public appointments must adhere to the provisions of the Constitution, specifically Articles 14 (Equality before law) and 16 (Equality of opportunity in matters of public employment), as well as statutory rules made by the legislature. * Any appointment made in violation of Articles 14 and 16 is irregular, illegal, and a nullity, regardless of the duration of service. (!) (!) (!) (!) (!) (!) (!) (!) * The rule of law is a basic feature of the Constitution, and no authority, including the judiciary, is above the law. (!) (!)
2. Prohibition of Back-Door Appointments and Ad-Hocism * Appointments without advertisement or inviting applications from the open market are violations of the Constitution. (!) (!) (!) (!) (!) (!) (!) (!) (!) * Regularisation cannot be a mode of appointment to cure illegality arising from back-door entries or contravention of rules. (!) (!) (!) (!) * The practice of appointing staff on an ad-hoc basis for short periods and continuing them after breaks is deprecated. (!) (!) (!) * Those who enter through the back door must leave through the same door; their appointments cannot be saved by condoning irregularities. (!) (!) (!)
3. Transparency and Public Notice Requirements * Transparency is a mandatory requirement for public appointments. * Vacancies must be advertised in at least two newspapers (one in a vernacular language) and through the local employment exchange. (!) (!) * The advertisement must specify the number of posts, qualifications, eligibility criteria, and the schedule of the recruitment process. (!) * Selection must be done by a body of experts or a specially constituted committee using rational criteria (written exam, interview, etc.). (!) (!)
4. Powers of the Chief Justice of the High Court (Article 229) * Under Article 229(1), the Chief Justice has the power to appoint officers and servants of the High Court to safeguard judicial independence. (!) (!) (!) * However, this power is not unfettered and is subject to Articles 14 and 16 of the Constitution. (!) (!) (!) * The Chief Justice cannot make appointments in contravention of statutory rules or without following the principles of natural justice. (!) (!) * Discretion exercised by the Chief Justice must be guided by law and known principles, not by whim or caprice. (!)
5. Administrative Control over Subordinate Courts (Article 235) * The power of the High Court under Article 235 to exercise superintendence over subordinate courts extends to all functionaries, including ministerial and administrative staff. (!) (!) * This control is exclusive, comprehensive, and effective in its operation. (!) * The High Court must ensure that appointments in subordinate courts also comply with Articles 14 and 16. (!)
6. Directives Issued by the Supreme Court * All High Courts are directed to re-examine their statutory rules regarding staff appointments and modify them if they conflict with Articles 14 and 16. (!) * Vacancies must be filled strictly in compliance with statutory rules; appointments made in contravention are void ab-initio. (!) * Recruitment should be undertaken on a regular basis (at least once a year) to avoid shortages and the need for ad-hoc appointments. (!) * High Courts are advised to consider centralizing the recruitment system for subordinate court staff to ensure transparency and transferability. (!)
JUDGMENT
Dr. B. S. CHAUHAN, J.
1. The matter initially related to the appointment of Class IV employees in the courts subordinate to Delhi High Court as the dispute arose about the continuity of the employees appointed on ad-hoc basis for 89 days which stood extended for the same period after same interval from time to time. The matter reached the Delhi High Court and ultimately before this Court. This court vide order dated 10.5.2012 took up the matter in a larger perspective taking cognizance of perpetual complaints regarding irregularities and illegalities in the recruitments of staff in the subordinate courts throughout the country and in order to ensure the feasibility of centralising these recruitments and to make them transparent and transferable. This Court suo motu issued notice to Registrar Generals of all the High Courts and to the States for filing their response mainly on two points viz. (i) why the recruitment be not centralized; and (ii) why the relevant rules dealing with service conditions of the entire staff be not amended to make them as transferable posts. All the States and High Courts have submitted their response and all of them are duly represented in the court.
2. This Court had appointed Shri P.S. Narasimha, learned senior counsel as Amicus Curiae to assist the court. The matter was heard on 28.1.2014 and deliberations took place at length wherein all the learned counsel appearing for the States as well as for the High Courts suggested that the matter should be dealt with in a larger perspective i.e. also for appointments of employees in the High Court and courts subordinate to the High Court which must include Class IV posts also. A large number of instances have been pointed out on the basis of the information received under the Right to Information Act, 2005 of cases not only of irregularity but of favouritism also in making such appointments. It has been suggested by the learned counsel appearing in the matter that this court has a duty not only to check illegality, irregularity, corruption, nepotism and favouritism in judicial institutions, but also to provide guidelines to prevent the menace of back-door entries of employees who subsequently are ordered to be regularised.
3. It was in view of the above that this Court vide its earlier orders had asked learned counsel appearing for the States as well as the High Courts to examine the records of their respective States/Courts and report as to whether a proper and fair procedure had been adopted for evaluating the candidates. A mixed response was received from different counsel on these issues.
4. In view of the aforesaid submissions, we do not think it necessary to peruse the record in order to gauge the amount of irregularities or illegalities. Our basic concern is that the appointments in judicial institutions must be made on the touchstone of equality of opportunity enshrined in Article 14 read with Article 16 of the Constitution of India, 1950 (hereinafter referred to as the `Constitution’) and under no circumstance any appointment which is illegal should be saved for the reason that the grievance of the people at large is that complete darkness in the light house has to be removed. The judiciary which raises a finger towards actions of every other wing of the society cannot afford to have this kind of accusations against itself.
5. Rule of law is the basic feature of the Constitution. There was a time when REX was LEX. We now seek to say LEX is REX. It is axiomatic that no authority is above law and no man is above law. Article 13(2) of the Constitution provides that no law can be enacted which runs contrary to the fundamental rights guaranteed under Part III of the Constitution. The object of such a provision is to ensure that instruments emanating from any source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the constitutional provisions relating to fundamental rights. Thus, the main objective of A
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