1996 Supreme(SC) 772

1996(4) Supreme 14
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
State of U.P. & Ors. -Appellants
versus
Harish Chandra & Ors. -Respondents
Civil Appeal Nos. 7068 of 1996
(@ SLP (C) No. 2329 of 1994 & CC No. 23591 of 1994)
Decided on 12-4-1996

IMPORTANT POINTS
1. The High Court is not justified in issuing a mandamus to make recruitment of candidates who were in the select list even after the expiry of the said list.
2. Delay of 480 days in filing the Special Leave Petition is liable to be condoned, if the case deserves merit, considering the very manner in which the bureaucratic process moves.
3. Ordinarily where an appeal lies to the Division Bench from the judgment of a Single Judge, the Supreme Court refrains from invoking power under Article 136 of the Constitution but this is a self imposed restriction and not a matter ousting the jurisdiction of the Court.
4. No mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.

Headnote:(i) Constitution of India-Article 136-Special Leave Petition-Delay of 480 days in filing petition-Condonation of-Considering the manner in which bureaucratic process moves, if case deserves merit, Court should consider question of condonation from that perspective.

       Held : It is undoubtedly true that the applicant seeking for condonation of delay is duty bound to explain the reasons for the delay but as has been held by this Court in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit the Court should consider the question of condonation from that perspective. That apart the respondents themselves approached the High Court in the year 1990 making a grievance that they had not been appointed even though they are included in the Select List of 1987 and 1987 list itself expired under the Rules on 4.4.1988. In this view of the matter and in view of the merits of the case we are of the opinion that sufficient cause has been shown for condoning the delay and accordingly we have condoned the delay. (Para 7)

       (ii) Constitution of India-Article 136-SLP-Maintainability-Plea of availability of appeal to Division Bench-Matter having been pending for more than 2 years-Patent error committed by High Court-It is not appropriate to non-suit appellant.

       Held : Ordinarily where an appeal lies to the Division Bench from the Judgment of a learned Single Judge this Court refrains from invoking power under Article 136 of the Constitution but this is a self-imposed restriction and not a matter ousting the jurisdiction of the Court. The matter having been pending for more than 2 years and in view of the patent error committed by the High Court we do not think it appropriate to non suit the appellant merely on the ground that the appellant could have approached the Division Bench against the judgment of the learned Single Judge. In the larger interest of all concerned we think it appropriate in the facts and circumstances of this case to invoke our jurisdiction under Article 136 of the Constitution. (Para 8)

       (iii) Service Law-Sub-ordinate Officers Clerical Staff (Direct Recruitment) Rules, 1985-Rule 26-Select list prepared under Rules-Valid only for one year from date of preparation of list-Is the High Court justified in issuing mandamus to appellant to make recruitment of respondents who were in select list of year 1987 even after expiry of said list ?-(No) (Constitution of India-Article 226).

       Held : Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he was a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.1987 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the date of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.1987 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. (Para 10)