1. Challenge to High Court order striking down a rule allowing nomination of dependent kin for appointment to public service posts based on descent. (Para 2 , 3 , 4 , 5 )
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2025 Supreme(SC) 1574
SUPREME COURT OF INDIA
DIPANKAR DATTA AND MANMOHAN, JJ.
Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) – Appellant
Versus
State Of Bihar And Others – Respondent
Special Leave Petition (C) No.18983 of 2023
Decided on : 02-04-2025
Important Points
Public employment cannot be a hereditary right, as it violates Articles 14 and 16 of the Constitution. Constitutional Courts may sparingly and suo motu strike down manifestly unconstitutional subordinate legislation, even without a formal challenge, to protect fundamental rights and ensure equality of opportunity.
Subject
Employment Law - Public Employment
Act Referred
Bihar Chaukidari Cadre Amendment Rules: R.5(7), R.5
CONSTITUTION OF INDIA: Art.14, Art.16, Art.32, Art.13, Art.309, Art.226
MADRAS HEREDITARY VILLAGE OFFICES ACT: S.6(1)
CONSTITUTION OF INDIA: Art.14, Art.16, Art.32, Art.13, Art.309, Art.226
MADRAS HEREDITARY VILLAGE OFFICES ACT: S.6(1)
Headnote
(A) Bihar Chaukidari Cadre (Amendment) Rules, 2014 - Articles 14 and 16 of the Constitution of India - The Division Bench struck down the offending proviso in BCC(A) Rules as unconstitutional, asserting that public employment cannot be heritable. The case emphasizes equality of opportunity in public employment and condemns discriminatory practices based on descent. (Paras 5, 9, 10, 11, 26, 39)
Facts of the case:
The respondent sought appointment as a chaukidar based on his father's position; however, the application was rejected due to his father's retirement. Following a writ petition, the High Court dismissed the appeal asserting the unconstitutionality of the amendment allowing limited hereditary appointments.
Findings of Court:
The Division Bench was justified in declaring the offending proviso void for violating Articles 14 and 16, emphasizing that public employment should not be determined by descent or heredity.
Issues: Whether the Division Bench exceeded its jurisdiction by striking down the offending proviso not formally challenged, and the validity of appointments based on hereditary rights.
Ratio Decidendi: Courts can address provisions contrary to constitutional rights, even without a direct challenge, upholding the principle that public offices should not be granted based on descent. This upholds Articles 14 and 16, safeguarding equal opportunity in employment.
Result: The impugned judgment and order was upheld with no interference.
Facts of the case:
The respondent sought appointment as a chaukidar based on his father's position; however, the application was rejected due to his father's retirement. Following a writ petition, the High Court dismissed the appeal asserting the unconstitutionality of the amendment allowing limited hereditary appointments.
Findings of Court:
The Division Bench was justified in declaring the offending proviso void for violating Articles 14 and 16, emphasizing that public employment should not be determined by descent or heredity.
Issues: Whether the Division Bench exceeded its jurisdiction by striking down the offending proviso not formally challenged, and the validity of appointments based on hereditary rights.
Ratio Decidendi: Courts can address provisions contrary to constitutional rights, even without a direct challenge, upholding the principle that public offices should not be granted based on descent. This upholds Articles 14 and 16, safeguarding equal opportunity in employment.
Result: The impugned judgment and order was upheld with no interference.
Judgement Key Points
The ratio decidendi of the case is that provisions allowing hereditary or descent-based appointments to public employment are unconstitutional as they violate the principles of equality of opportunity enshrined in Articles 14 and 16 of the Constitution. The courts have the authority to strike down such provisions, even in the absence of a direct challenge, when they are manifestly contrary to constitutional rights. Public employment must be based on fair, transparent, and merit-based processes, and any law or rule that contravenes these principles, especially by favoring hereditary claims, is invalid. Additionally, the court emphasized that subordinate legislation cannot be struck down unless directly challenged; however, in exceptional cases where the unconstitutionality is apparent and fundamental rights are infringed, courts may suo motu declare such provisions void to uphold constitutional mandates.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
Table of Contents
2. Whether a court can strike down legislation not formally challenged and whether such a rule violates principles of natural justice and constitutional provisions. (Para 6 , 38 , 41 )
3. Public employment must be based on merit and equal opportunity; hereditary appointments violate Article 16; courts may suo motu invalidate manifestly unconstitutional subordinate legislation. (Para 7 , 8 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 39 , 40 )
4. Public employment cannot be heritable under Article 16; Constitutional Courts may sparingly declare subordinate legislation void suo motu if it is manifestly unconstitutional. (Para 10 , 11 , 33 )
5. Special leave petition dismissed; High Court judgment upholding the invalidity of the offending proviso affirmed. (Para 1 , 37 , 44 )
6. Is appointment to public service based on descent or hereditary right permissible under the Constitution of India?
No. Public employment must be preceded by a fair, transparent selection process based on merit and equal opportunity. Any law permitting entry into public service without granting equal opportunity to all violates Article 16, as employment cannot be treated as a heritable right. (Para 10 , 11 , 12 , 18 , 20 , 24 , 26 , 27 )
7. Can a Constitutional Court strike down subordinate legislation that has not been formally challenged in the pleadings?
Yes. In rare and exceptional cases, Constitutional Courts may exercise plenary power to suo motu declare subordinate legislation void if it is manifestly contrary to Fundamental Rights and binding precedents, provided the State is given a full opportunity to defend the legislation. (Para 32 , 33 , 34 , 35 )
8. Does the roster set by the Chief Justice of a High Court limit the exercise of a court's inherent powers to decide on the vires of a law?
No. Inherent powers are resident in all courts to ensure the orderly administration of justice and to do what is just. Such powers are not limited by the roster when the court already has jurisdiction over the case. (Para 39 , 40 )
ORDER :
1. The case run in the special leave petition[SLP] did not call for leave to prefer appeal being granted; hence, we had dismissed the special leave petition with a short order dated 19th March, 2025. However, immediately after such order was dictated, Mr. Gopal Sankarnarayanan, learned senior counsel who represented the petitioner had urged us to consider the desirability of penning a detailed opinion. Having regard to a couple of points raised by Mr. Sankarnarayanan, which indeed appeared to be important, we had the occasion to look into the SLP and his written notes of arguments during recess. Sometime later in the day, accepting Mr. Sankarnarayanan's request, we had informed him of our inclination to assign some reasons in support of the order of dismissal of the SLP. However, the short order having been uploaded on the same day, the detailed reasons are now provided in this opinion which is to be read with the order dated 19th March, 2025.
2. The challenge in the SLP is to a judgment and order dated 25th February, 2023 of a Division Bench of the High Court[High Court of Judicature at Patna] dismissing an intra-court appeal[LPA No. 508 of 2022] of the respondent no.7[Devmuni Paswan].
3. In the pre-constitutional set-up, the practice in Bihar was to appoint village chaukidars (village watchmen) for lifetime who used to work without any leave or retirement. During his illness or absence, any of his family members would assist him in performance of his duties; and when he died or became infirm, usually his family member nominated by him would take over the functions of a chaukidar, though the post was not strictly hereditary [see: Surendar Paswan vs. State of Bihar , (2010) 6 SCC 680 .
4. The father of the respondent no.7, who was a chaukidar, had applied for appointment of his son, i.e., the respondent no.7, as a chaukidar in terms of the Bihar Chaukidari Cadre (Amendment) Rules, 2014[BCC (A) Rules]. However, such application was rejected since the father of the respondent no.7 had made the application after his retirement. This triggered a writ petition[CWJC No. 6471 of 2021
] by the aggrieved respondent no.7, which was dismissed by the Single Judge of the High Court on 25th August, 2022. It is the said order that has been upheld by the Division Bench vide the impugned judgment and order.
5. The SLP is at the instance of a registered trade union. The petitioning union was not a party to the proceedings before the High Court, either before the Single Judge or the Division Bench. It claims to represent members who are in position to claim benefits flowing from the BCC (A) Rules. Proviso (a) to sub-rule (7) of Rule 5 of the BCC (A) Rules[the offending proviso], introduced by way of an amendment in 2014, ordains that any person working in the cadre of chaukidar would be at liberty, a month prior to his retirement, to nominate his dependent kin for appointment in his place as chaukidar. The Division Bench proceeded to hold the offending proviso to be contrary to Articles 14 and 16 of the Constitution of India and, consequently, struck it down. As a sequitur, it was also held that the application of the respondent no.7's father for grant of benefit of employment to the respondent no.7 in accordance with Rule 5 of the BCC (A) Rules does not arise.
6. The primary contention of the petitioning union is that the offending proviso not being under challenge in the writ petition or in the appeal of the respondent no.7, the Division Bench clearly exceeded its jurisdiction in striking it down. It is the further contention of the petitioning union that the offending proviso is perfectly legal and valid; also that such an order was made without even putting the members of the petitioning union on notice and, therefore, any order adversely affecting the chaukidars in service ought to be nullified being in breach of principles of natural justice. One other contention was also raised.
7. The brazen manner in which the respondent no.1[State
