Supreme Court of India
RENU & ORS.versusDISTRICT & SESSIONS JUDGE, TIS HAZARI & ANR.
- Citation
- 2014 INSC 95
- Decided
- 12 February 2014
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
Appointments made in contravention of statutory rules and Articles 14 and 16 are void ab initio and cannot be regularised; High Courts must ensure compliance with constitutional equality and transparency requirements.
Summary
The appeal arose from the appointment of Class IV staff in courts subordinate to the Delhi High Court on an ad‑hoc basis without proper advertisement, which the petitioners challenged as violative of Articles 14 and 16 of the Constitution. The Supreme Court examined whether such appointments could be regularised, whether a writ of quo warranto could be issued, and the extent to which the Chief Justice’s power under Article 229 is subject to constitutional equality provisions. It held that any appointment made contrary to statutory rules and the constitutional guarantee of equality of opportunity is void ab initio and cannot be saved by regularisation. The Court emphasized that transparency, open advertisement and adherence to reservation policy are mandatory for public employment. It also directed all High Courts to review their service rules for conformity with Articles 14 and 16 and to consider centralised recruitment to prevent ad‑hocism. Consequently, the appeal was dismissed and comprehensive guidelines were issued for future appointments.
Issues considered
- Whether ad‑hoc appointments of Class IV staff in subordinate courts without advertisement violate Articles 14 and 16 of the Constitution.
- Whether such appointments can be regularised or validated retrospectively.
- Whether a writ of quo warranto is an appropriate remedy to challenge unlawful public appointments.
- Whether the power of the Chief Justice under Article 229 is subject to the equality provisions of Articles 14 and 16.
- Whether centralised recruitment and statutory rule‑making are required to ensure transparency in judicial appointments.
Legislation cited
- Constitution of Indias. Art. 13, s. Art. 14, s. Art. 16, s. Art. 229, s. Art. 235, s. Art. 32
- General Clauses Act, 1897s. Sec. 16
- Right to Information Act, 2005
Subjects
public appointmentequality of opportunityArticle 14Article 16quo warrantoad‑hoc appointmentscentralised recruitmentjudicial independencehigh court administrationrule of law
Judgment
[2014] 2 S.C.R. 537
RENU & ORS. A
v.
DISTRICT & SESSIONS JUDGE, TIS HAZARI & ANR.
(Civil Appeal No. 979 of 2014)
FEBRUARY 12, 2014
B
[DR. B.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
CONSTITUTION OF /NOIA, 1950:
c
Art. 32 - Writ of quo warranto - Appointment to public
office - Held: Before a person can effectively claim a writ of
quo warranto, he has to satisfy the court that the office in
question is a public office and is held by a usurper without
legal authority, and that inevitably would lead to an enquiry 0
as to whether the appointment of the alleged usurper has
been made in accordance with law or not -- For issuance of
writ of quo warranto, the court has to satisfy that the
appointment is contrary to the statutory rules and the person
holding the post has no right to hold it.
E·
Arts. 14 and 16 - Public employment - Held:
Transparency in public· employment is an important
requirement -- Advertisement must specify the number of
posts available for selection and recruitment -- The
qualifications and other eligibility criteria for such posts and F
schedule of recruitment process should be published with
certainty and clarity as also the rules/procedure under which
the selection is likely to be undertaken -- Any appointment
even on temporary or ad hoc basis without inviting
applications is in violation of Arts. 14 and 16 and even if the G
names of candidates are requisitioned from Employment
Exchange, in addition thereto, it is mandatory on the part of
employer to invite applications from all eligible candidates
from open market.
537 H
538 SUPREME ·coURT REPORTS [2014] 2 S.C.R.
A Arts'. 229 and 235 rlw Arts. 14 and 16 - Appointments of
staff in High Courts and courts subordinate thereto - Held:
Appointments in judicial institutions must be made on the
touchstone of equality of opportunity enshrined in Art. 14 rlw
Art. 16 and under no circumstance any appointment which is
B illegal should be saved -- Employment whether of Class IV,
Class Ill, Class II or any other class in High Courts or courts
subordinate to it, fall, within the definition of "public
employment" - Such an employment, therefore, has to be
made under rules and orders of competent authority - Power
C of appointment granted to the Chief Justice under Art. 229 (1)
is subject to Art. 16 (1), which guarantees equality of
opportunity for all citizens in matters relating to employment
- As a safeguard, the Constitution has also recognized that
in the internal administration of High Court, no. other power,
except the Chief Justice should have domain - In order to
D enable a judicial intervention, it would require only a very
strong and convincing reason to show that this power has
been abused.
Art.229 - Appointment to posts in High Court and courts
E subordinate thereto - Held: High Court is a constitutional and
an autonomous authority subordinate to none - Therefore,
nobody can undermine the constitutional authority of High
Court and, as such, Supreme Court can only advise the High
Court that if its rules are not in consonance with the philosophy
of the Constitution, the same may be modified and no
F appointment in contravention thereof should be made - It is
necessary that there is strict compliance with appropriate
Rules and the employer is bound to adhere to the norms of
Arts. 14 and 16 before making any recruitment - In order to
control the menance of adhocism methodology to make
G appointments in High Courts and courts subordinate thereto
suggested and directions given in this regard -- High Courts
may also examine the desirability of centralized selection of
candidates for subordinate courts, and to formulate the rules
to carry out the purpose - Constitutional law - Independence
H of judiciary.
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 539
HAZARI & ANR.
In the instant appeal arising out of a dispute A
regarding continuity of employees appointed on Class IV
posts in courts subordinate to Delhi High Court, on ad
hoc basis for 89 days and the term extended from time
to time, the Court took cognizance of perpetual
complaints regarding irregularities and illegalities in B
recruitment of staff in subordinate courts throughout the
·country and in order to ensure the feasibility of
centralizing these recruitments, issued notice to
Registrar Generals of all the High Courts to file response
mainly on two points: (i) why the recruitment be not c
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 submitted their response and all of them were
duly. represented in the Court. D
Disposing of the appeal, the Court
HELD: 1.1 The procedure of quo warranto gives the
_Judiciary a weapon to control the Executive from making
appointment to public office against law and to protect a E
citizen from being deprived of public office to which he
has a right. These proceedings also tend to protect the
public from usurpers of public office who might be
allowed to continue either with the connivance of the
Executive or by reason of its apathy. It will, thus, be seen F
that before a person can effectively claim a writ of quo
warranto, he has to satisfy the court that the office in
question is a public office and is held by a usurper
without legal authority, and that inevitably would lead to
an enquiry as to whether the appointment of the alleged G
usurper has been made in accordance with law or not.
For issuance of writ of quo warranto, the court has to
satisfy that the appointment is contrary to the statutory
rules and the person holding the post has no right to hold
it. [para 15] [555-B-E]
H
540 SUPREME COURT REPORTS [2014] 2 S.C.R.
A The University of Mysore & Anr. v. G.D. Govinda Rao &
Anr., 1964 SCR 575 = AIR 1965 SC 491; Shri Kumar Padma
Prasad v. Union of India & Ors., ~IR 1992 (2) SCR 109 =
1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr.,
2001 (3) Suppl. SCR 191 = AIR 2001 SC 3435; The Mor
B Modern Co-operative Transport Society Ltd. v. Financial
Commissioner and Secretary to Govt., Haryana & Anr., 2002
( 1 ) Suppl. SCR 87 =AIR 2002 SC,2513; Arun Singh v. State
of Bihar & Ors., 2006 (2 ) SCR 1058 =AIR 2006 SC 1413;
Hari Bansh Lal v. Sahodar Prasad,Mahto & Ors., 2010 (10)
c SCR 561 = AIR 2010 SC 3515; and Central Electricity
Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1
sec 161- relied on.
1.2 Another important requirement of public
appointment is that of transparency. Therefore, the
D advertisement must specify the number of posts available
for selection and recruitment. The qualifications and other
eligibility criteria for such posts should be explicitly
provided and the schedule of rec'ruitment process should
be published with certain'ty and clarity. The
E advertisement should also specify the rules under which
the selection is to be made and' in absence of the rules,
the procedure under which the 'selection is likely to be
undertaken. This is necessary to prevent arbitrariness
and to avoid change of criteria of selection after the
F selection process is con:imenced, thereby unjustly
benefiting someone at the cost of others. The decisions
of this Court have prescribed the limitations while making
1
appointment against public posts in terms of Arts. 14 and
16 of the Constitution. What has1 been deprecated by this
G Court time and again is "backdoor appointments or
appointment de hors the rules·~. [para 16-17] [555-G-H;
556-A-C]
State of U.P. & Ors. v. U.P. State Law Officers Association
H & Ors. 1994 (1) SCR 348 =AIR 1994 SC 1554; Som Raj &
' .
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, ·541
TIS HAZARI & ANR.
Ors. v. State of Haryana & Ors. 1990 ( 1 ) SCR 535 =AIR A
1990 SC 1176 - relied on.
1.3 Art. 14 of the Constitution provides for equality
of opportunity. Any appointment made in violation of
mandate of Arts. 14 and 16 of the Constitution is not only B
irregular but also illegal and cannot be sustained. [para
7-8] [550-C, F-G]
l.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu 2007
(1) SCR 706 = AIR 2007 SC 861; Delhi Development
Horticulture Employees' Union v. Delhi Administration, Delhi c
& Ors. 1992 (1) SCR 565 = AIR 1992 SC 789; State of
Haryana & Ors. v. Piara Singh & Ors. etc. etc. 1992 (3) SCR
826 =AIR 1992 SC 2130; Prabhat Kumar Sharma & Ors. v.
State of UP. & Ors., 1996 (3) Suppl. SCR 424 =AIR 1996
SC 2638; J.A.S. Inter College, Khurja, UP. & Ors. v. State of D
UP. & Ors., 1996 (3) Suppl. SCR 96 =AIR 1996 SC 3420;
M.P. Housing Board & Anr. v. Manoj Shrivastava 2006 (2)
SCR 537 =AIR 2006 SC 3499; M.P. State Agro Industries
Development Corporation Ltd. & Anr. v. S. C. Pandey 2006
(2) SCR 648 = (2006) 2 sec 716; and State of Madhya E
Pradesh & Ors. v. Ku. Sandhya Tomar&Anr. 2012 (11) SCR
839 = JT 2013 (9) SC 139 - relied on.
1.4 Any appointment even on temporary or~ad hoc
basis without inviting application is in violation of Arts. 14
and 16 and even if the names of candidates are F
requisitioned from Employment Exchange, in addition
thereto, it is mandatory on the part of the employer to invite
applications from all eligible candidates from open market
as merely calling the names from the Employment
Exchange does not meet the requirement of the said G
Articles. The principles to be adopted in the matter of public
appointments have been formulated by this Court in
Nanuram Yadav's case. [para 9 and 12] [551-D-E; 552-G]
M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav
& Ors. 2007 (10) SCR 307 = (2007) 8 SCC 264; Secretary, H
542 SUPREME COURT REPORTS [2014] 2 S.C.R.
A State of Karnataka & Ors. v. Umadevi & Ors. 2006 (3) SCR
953 = AIR 2006 SC 1806; Excise Superintendent
Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara
Rao & Ors. 1996 (5) Suppl. SCR 73 = (1996) 6 SCC 216;
Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors.
B 1997 (5) Suppl. SCR 604 =AIR 1998 SC 331; and Kishore
K. Pati v. Distt. Inspector of Schools, Midnapur & Ors., (2000)
9 SCC 405; Suresh Kumar & Ors. v. State of Haryana & Ors.,
(2003) 10 SCC 276, Union Public Service Commission v.
Girish Jayanti Lal Vaghela & Ors. .2006 (1) SCR 1006 =AIR
c 2006 SC 1165; Union of India & Ors. v. N. Hargopa/ & Ors.
1987 (2) SCR 911 =AIR 1987 SC 1227; State of Orissa &
Anr. v. Mamata Mohanty 2011 (2) SCR 704 = (2011) 3 SCC
436 - relied on.
1.5 Appointments in judicial institutions must be
D made on the touchstone of equality of opportunity
enshrined in Art. 14 read with Art. 16 of the Constitution
of India, 1950 and under, no circumstance any
appointment which is illegal should be saved. [para 4]
[549-A-B]
E
1.6 In making the appointments or regulating the
other service conditions of the staff of the High Court, the
Chief Justice exercises an administrative power with
constitutional backing. This power has been entrusted to
F the safe custody of the Chief Justice in order to ensure
the independence of the Judiciary, which is one of the
vital organs of State Government and whose authority is
to be maintained. The discretion exercised by the Chief
Justice cannot be open to challenge, except on well
G known grounds, that is to say, when the exercise of
discretion is discriminatory oi:- mala fide, or the like(s).
Thus, the power of appointment granted to the Chief
Justice under Art. 229 (1) is subject to Art. 16 (1), which
guarantees equality of opportunity for all citizens in
H matters relating to employment. 'Opportunity' as used in
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 543
HAZARI & ANR.
this Article means chance of employment and what it A
guaranteed is that this opportunity of employment would
be equally available to all. [para 19-20] [557-E-H]
1. 7 Article 235 of the Constitution provides for power
of the High Court to exercise complete administrative 8
control over the Subordinate Courts. This control,
extends to all functionaries attached to the Subordinate
Courts including the ministerial staff and servants in the
establishment of the Subordinate Courts. Such control is
exclusive in nature, comprehensive in extent and C
effective in operation. [para 22] [558-C-D, G]
The State of West Bengal & Anr. v. Nripendra Nath
Bagchi 1966 SCR 771 :: AIR 1966 SC 447; Shri Baradakanta
Mishra v. Registrar of Orissa High Court & Anr. 1974 (2) SCR
282 = AIR 1974 SC 710; Yoginath D. Bagde v. State of D.
Maharashtra & Anr., 1999 (2) Suppl. SCR 490 =AIR 1999
SCC 3734; Subedar Singh & Ors. v. District Judge, Mirzapur
& Anr., AIR 2001 SC 201; High Court of Judicature for
Rajasthan v. P.P. Singh & Anr., 2003 (1) SCR 593 = AIR
2003 SC 1029; and Registrar General, High Court of E
Judicature at Madras v. R. Perachi & Ors. 2011 (12) SCR 661
= AIR 2012 SC 232; M. Gurumoorthy v. The Accountant
General, Assam and Nagaland & Ors. 1971 (0) Suppl. SCR
420 = AIR 1971 SC 1850; H.C. Puttaswamy & Ors. v. The
Hon'ble Chief Justice of Kamataka High Court, Bangalore & F
Ors. 1990 (2) Suppl. SCR 552 =AIR 1991 SC 295; State of
Assam v. Bhubhan Chandra Datta & Anr., 1975 (3) SCR 854
=AIR 1975 SC 889; Binod Kumar Gupta & Ors. v. Ram
Ashray Mahoto & Ors. AIR 2005 SC 2103 - relied on.
1.8 Employment whether of Class IV, Class Ill, Class G
II or any other class in the High Court or courts
subordinate to it fall within the definition of "public
employment". Such an employment, therefore, has to be
made under rules and under orders of the competent
authority. Appointments should be made giving H
544 SUPREME COURT REPORTS [2014] 2 S.C.R.
A adherence to the provisions of Arts. 14 and 16 of the
Constitution and/or such Rules as made by the
legislature. Appointment can.not be made without
advertisement in the newspapers• inviting applications for
the posts as that would lead to lack of transparency and
B violation of the provisions of Art. 16 of the ConstitUtion.
The Chief Justice cannot make any appointment in
contravention of the Statutory Rules, which have to be ·
in consonance with the scheme of the Constitution. [para
26, 27, 29 and 30] [561-F; 562-C, G; 563-8-C]
c Pradyat Kumar Bose v. The Hon'ble Chief Justice of
Calcutta High Court 1955 SCR 1331 = AIR 1956 SC 285;
and Chief Justice of Andhra Pradesh & Anr. v. L. V.A.
Dikshitulu & Ors., 1979 (1) SCR 26 =AIR 1979 SC 193; State
of West Bengal & Ors.· v. Debasi$h Mukherjee & Ors. 2011
D (13) SCR 1077 =AIR 2011 SC 3667; State of UP.& Ors. v.
C.L. Agrawal & Anr. 1997 (1) Suppl. SCR 1 =AIR 1997 SC
2431- referred to.
1.9 The date of retirement 6f every employee is well
E known in advance and therefore, the number of
vacancies likely to occur in near future in a particular
cadre is always known to the •employer. Therefore, the
exercise to fill up the vacancies at the earliest must start
in advance to ensure that the selected person may join
F immediately after availability of the post, and there may
be no occasion to appoint any person on ad-hoc basis
for the reason that the problem of inducting the daily
labourers who are ensured c)f...e regular appointment
subsequently has to be avoided and a fair procedure
G must be adopted giving equal, opportunity to everyone.
[para 31] [563-F-G]
2. The High Court is a constitutional and an
autonomous authority subordinate to none. Therefore,
nobody can undermine the constitutional authority of the
H High Court and, therefore, the purpose to hear this case
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, 545
TIS HAZARI & ANR.
is only to advise the High Court that if its rules are not in A
consonance with the philosophy of the Constitution the
same may be modified and no appointment in
contravention thereof should be made. It is necessary that
there is strict compliance with appropriate Rules and the
employer is bound to adhere to the norms of Arts. 14 and B
16 of the Constitution before making any recruitment. In
order to control the menace of ad hocism, methodology
to fill the vacancies in High Courts and courts
subordinate thereto suggested and directions given in
this regard. The High Courts may also examine the c
desirability of centralized selection of candidates for
subordinate courts, and to formulate the rules to carry out
the purpose. [para 34-35] [564-E-G; 565-G-H; 566-A, C]
Case Law Reference:
D
2007 (1) SCR 706 relied on Para 7
1992 (1) SCR 565 relied on Para 8
1992 (3) SCR 826 relied on Para 8
1996 (3) Suppl. SCR 424 relied on Para 8 E
1996 (3) Suppl. SCR 96 relied on Para 8
2006 (2) SCR 537 relied on Para 8
2006 (2) SCR 648 relied on Para 8 F
2012 (11) SCR 839 relied on Para 8
1996 (5) Suppl. SCR 73 relied on para 9
1987 (2) SCR 911 relied on Para 9
G
1997 (5) Suppl. SCR 604 relied on para 9
c2000) 9 sec 405 relied on para 9
c2003) 1o sec 216 relied on para 10
H
546 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 2006 (1) SCR 1006 relied on para 11
2007 (10) SCR 307 relied on para 12
2006 (3) SCR 953 relied on para 13
2011 (2) SCR 704 relied on para 14
8
1964 SCR 575 relied on para 15
1992 (2) SCR 109 relied on para 15
2001 (3) Suppl. SCR, 191 relied on para 15
c
2002 (1) Suppl. SCR 87 relied on para 15
2006 (2) SCR 1058 rel.ied on para 15
2010 (10) SCR 561 relied on para 15
D (2014) 1 sec 161 relied on para 15
1994 (1) SCR 348 relied on Para 17
1990 (1) SCR 535 relied on para 18
E 1966 SCR 771 relied on Para 22
1974 (2) SCR 282 relied on Para 22
1999 (2) Suppl. SCR 490 relied on Para 22
AIR 2001 SC 201 relied on Para 22
F
2003 (1) SCR 593 relied on Para 22
2011 (12) SCR 661 relied on Para 22
1971 Suppl. SCR 420 relied on Para 23
G
1990 (2) Suppl. SCR 552 relied on Para 25
1975 (3) SCR 854 relied on Para 25
AIR 2005 SC 2103 relied on Para 26
H 1955 SCR 1331 referred to para27
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 547
HAZARI & ANR.
1979 (1) SCR 26 referred to para 27 A
2011 (13) SCR 1077 referred to para 28
1997 (1) Suppl. SCR 1 referred to para 28
CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 979 8
of 2014.
From the judgment and order dated 05.09.2011 of the
High Court of Delhi at N. Delhi in LPA No. 726 of 2011.
A. Mariarputham, A.G., P.P. Malhotra, ASG, P.S. C
Narasimha (AC), Brijender Chahar, K. Radhakrishnan, Arvind
Kumar Sharma, Saurabh Mishra, Manita Varma (for D.S.
Mahra), Anil Katiyar, B. Balaji, R. Rakesh Sharma, S. Anand
Sathiyaseelan, A. Selvin Raja, Sibo Shankar Mishra, Sridhar
Potaraju, Gaichanpou Gangmei, Arjun Singh, Annam D.N. Rao, D
Neelam Jain, A. Venkatesh, Sudipto Sircar, Vaishali R, V.N.
Raghupathy, Aruna Mathur, Yusuf (for Arputham, Aruna & Co.),
Ambhoj Kumar Sinha, Ashok Mathur, C.D. Singh, Sunny
Choudhary, Shareya, Sharmila Upadhyay, T.G. Narayanan Nair,
K.N. Madhusoodhanan, G.S. Chatterjee, Ashok K. Srivastava, E
Aniruddha P. Mayee, Charudatta Mahindrakar, P.I. Jose, Alok
K. Prasad, Vishwanath Bahuguna for the· appearing parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. The matter initially related to F
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 G
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 H
548 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the feasibility of centralising these recruitments and to make
them transparent and transferable. This Court suo motu issued
notice to Registrar Generals of all tl:ie 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
B dealing with service conditions df 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
C senior counsel as Amicus Curiae to assist the court. The matter
was heard on 28.1.2014 and delibetations 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
1D 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 Ri~ht to Information Act, 2005
of cases not only of irregularity but of favouritism also in making
E 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
F subsequently are ordered to be r~gularised.
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
G 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
H
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 549
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
necessary to peruse the record in order to gauge the amount A
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 B
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 c
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 D
that no law can be enacted which runs contrary to the
fundamental rights guaranteed under Part Ill 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 E
constitutional provisions relating to fundamental rights. Thus, the
main objective of Article 13 is to secure the paramountcy of the
Constitution especially with regard to fundamental rights.
6. The aforesaid provision is in consonance with the legal F
principle of "Rule of Law" and they remind us of the famous
words of the English jurist, Henry de Bracton - "The King is
under no man but under God and the Law". No one is above
law. The dictum - "Be you ever so high, the law is above you"
is applicable to all, irrespective of his status, religion, caste, G
creed, sex or culture. The Constitution is the supreme law. All
the institutions, be it legislature, executive or judiciary, being
created under the Constitution, cannot ignore it.
The exercise of powers by an authority cannot be unguided
or unbridled as the Constitution prescribes the limitations for H
550 SUPREME COURT REPORJS [2014] 2 S.C.R.
A each and every authority and therefore, no one, howsoever high
he may be, has a right to exercise the power beyond the
purpose for which the same has been conferred on him. Thus,
the powers have to be exercised within the framework of the
Constitution and legislative provisions, otherwise it would be
B an exercise of power in violation of the basic features of the
Constitution i.e. Pait Ill dealing with the fundamental rights which
also prescribes the limitations.
7. Article 14 of the Constitution provides for equality of
C opportunity. It forms the cornerstone,of our Constitution.
In l.R. Coelho (dead) by L.Rs. v: State of Tamil Nadu, AIR
2007 SC 861, the doctrine of basic features has been
explained by this Court as under:
D "The doctrine of basic structure contemplates that there
are certain parts or aspects of 'the Constitution including
Article 15, Article 21 read with Articles 14 and 19 which
constitute the core values which if allowed to be
abrogated would change completely the nature of the
Constitution. Exclusion of fundamental rights would result
E
in nullification of the basic structure doctrine, the object
of which is to protect basic features of the Constitution as
indicated by the synoptic view of the rights in Part Ill."
8. As Article 14 is an integral part of our system, each and
F every state action is to be tested on the touchstone of equality.
Any appointment made in violation of mandate of Articles 14
and 16 of the Constitution is not only irregular but also illegal
and cannot be sustained in view of the judgments rendered by
this Court in Delhi Development Horticulture Employees'
G Union v. Delhi Administration, Delhi,& Ors., AIR 1992 SC 789;
State of Haryana & Ors. v. Piara Singh & Ors. etc.etc., AIR
1992 SC 2130; Prabhat Kumar Sharma & Ors. v. State of
U.P. & Ors., AIR 1996 SC 2638; J.A.s. Inter College, Khurja,
U.P. & Ors. v. State of U.P. & Ors., AIR 1996 SC 3420; M.P.
H Housing Board & Anr. v. Manoj Shrivastava, Al R 2006 SC
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, 551
TIS HAZARI & ANf\. [DR. B.S. CHAUHAN, J.]
3499; M.P. State Agro Industries Development Corporation A
Ltd. & Anr. v. S. C. Pandey, (2006) 2 SCC 716; and State of
Madhya Pradesh & Ors. v. Ku. Sandhya Tomar & Anr., JT
2013 (9) SC 139.
9. In Excise Superintendent Malkapatnam, Krishna
B
District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC
216, a larger Bench of this Court reconsidered its earlier
judgment in Union of India & Ors. v. N. Hargopal & Ors., AIR
1987 SC 1227, wherein it had been held that insistence of
requisition through employment exchanges advances rather
than restricts the rights guaranteed by Articles 14 and 16 of the C
Constitution. However, due to the possibility of non sponsoring
of names by the employment exchange, this Court held that any
appointment even on temporarypr ad hoc basis without inviting
application is in violation of the said provisions of the
Constitution and even if the names of candidates are D
requisitioned from Employment Exchange, in addition thereto,
it is mandatory on the part of the employer to invite applications
from all eligible candidates from open market as merely calling
the names from the Employment Exchange does not meet the
requirement of the said Articles of the Constitution. The Court E
-further observed:
"In addition, the appropriate department ..... should call for
the names by publication in the newspapers having wider
circulation and also display on their office notice .. .and
F
employment news bulletins; and then consider the case
of all candidates who have applied. If this procedure is
adopted, fair play would be sub served. The equality of
opportunity in the matter of employment would be
available to all eligible candidates."
G
(Emphasis added)
(See also: Arun Tewari & Ors. v. Zita Mansavi Shikshak Sangh
& Ors., AIR 1998 SC 331; and Kishore K. Pati v. Distt.
Inspector of Schools, Midnapur & Ors., (2000) 9 SCC 405). H
552 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 1O. In Suresh Kumar & Ors. v. State of Haryana & Ors.,
(2003) 10 SCC 276, this Court upheld the judgment of the
Punjab & Haryana High Court wherein 1600 appointments
made in the Police Department without advertisement stood
quashed though the Punjab Police Rules, 1934 did not provide
B for such a course. The High Court reached the conclusion that
process of selection stood vitiatettl because there was no
advertisement and due publicity for inviting applications from
the eligible candidates at large.
c 11. In Union Public Service Commission v. Girish Jayanti
Lal Vaghela & Ors., AIR 2006 SC 1165, this Court held:
"........ 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
D holding of selection by a body of experts or a specially
constituted committee whos'e 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
E advertisement made............... 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 compete
F would violate the guarantee enshrined under Article 16
of the Constitution .... " (Emphasis added)
12. The principles to be adopted in the matter of public
appointments have been formulated by this Court in M.P. State
G Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8
sec 264 as under:
"(1) The appointments made without following the
appropriate procedure under the rules/government
circulars and without advertisement or inviting applications
H
RENU & ORS. v. ·DISTRICT & SESSIONS JUDGE, TIS 553
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
from the open market would amount to breach of Articles A.
14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory
provisions of the statute and in particular, ignoring the B
minimum educational qualification and other essential
qualification would be wholly illegal. Such illegality cannot
be cured by taking recourse to regularisation.
(4) Those who come by back-door should go through that c
door.
(5) No regularisation is permissible in exercise of the
statutory power conferred under Article 162 of the
Constitution of India if the appointments have been made
in contravention of the statutory rules. D
(6) The court should not exercise its jurisdiction on
misplaced sympathy.
(7) If the mischief played is so widespread and all E
pervasive, affecting the result, so as to make it difficult
to pick out the persons who have been unlawfully
benefited or wrongfully deprived of their selection, it will
neither be possible nor necessary to issue individual
show-cause notice to each selectee. The only way out F
would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in
fraud and delivered in deceit, individual innocence has
no place and the entire selection has to be set aside."
G
13. A similar view has been reiterated by the Constitution
Bench of this Court in Secretary, State of Karnataka & Ors. v.
Umadevi & Ors., AIR 2006 SC 1806, observing that any
appointment made in violation of the Statutory Rules as also
in violation of Articles 14 and 16 of the Constitution would be
H
554 SUPREME COURT REPORTS [2014] 2 S.C.R.
A a nullity. "Adherence to Articles 14 and 16 of the Constitution
is a must in the process of public, employment". The Court
further rejected the prayer that ad hoc appointees working for
long be considered for regularisation as such a course only
encourages the State to flout its own rules and would confer
8 undue benefits on some at the cost of many waiting to
compete.
14. In State of Orissa & Anr. v. Mamata Mohanty, (2011)
3 SCC 436, this Court dealt with the constitutional principle of
providing equality of opportunity to all. which mandatorily requires
C that vacancy must be notified in advance meaning thereby that
information of the recruitment must be disseminated in a
reasonable manner in public domain ensuring maximum
participation of all eligible candidates; thereby the right of equal
opportunity is effectuated. The Court held as under:-
D
"Therefore, it is a settled legal proposition that no person
can be appointed even on a temporary or ad hoc basis
without inviting applications from all eligible candidates.
If any appointment is made by merely inviting names
E
from the employment exchange or putting a note on the
noticeboard, etc. that will not meet the requirement of
Articles 14 and 16 of the Constitution. Such a course
violates the mandates of Articles 14 and 16 of the
Constitution of India as it deprives the candidates who
are eligible for the post, from being considered. A person
F
employed in violation of these provisions is not entitled
to any relief including salary. For a valid and legal
appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality
clause enshrined in Article 1t5 requires that every such
G appointment be made by an open advertisement as to
enable all eligible persons to' compete on merit."
15. Where any such appointments are made, they can be
challenged in the court of law. The quo warranto proceeding
H affords a judicial remedy by which any person, who holds an
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 555
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
independent substantive public office or franchise or liberty, is A
called upon to show by what right he holds the said office,
franchise or liberty, so that his title to it may be duly determined,
and in case the finding is that the holder of the office has no
title, he would be ousted from that office by judicial order. In
other words, the procedure of quo warranto gives the Judiciary B
a weapon to control the Executive from making appointment
to public office against law and to protect a citizen from being
deprived of public office to which he has a right. These
proceedings also tend to protect the public from usurpers of
public office who might be allowed to continue either with the c
connivance of the Executive or by reason of its apathy. It will,
thus, be seen that before a person can effectively claim a writ
of quo warranto, he has to satisfy the Court that the office in
question is a public office and is held by a usurper without legal
authority, and that inevitably would lead to an enquiry as to D
whether the appointment of the alleged usurper has been made
in accordance with law or not. For issuance of writ of quo
warranto, the Court has to satisfy that the appointment is contrary
to the statutory rules and the person holding the post has no
right to hold it. (Vide: The University of Mysore & Anr. v. G.D. E
Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma
Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R.
Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The
Mor Modem Co-operative Transport Society Ltd. v. Financial
Commissioner and Secretary to Govt., Haryana & Anr., AIR
2002 SC 2513; Arun Singh v. State ofBihar& Ors., AIR 2006 F
SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.,
AIR 2010 SC 3515; and Central Electricity Supply Utility of
Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161).
16. Another important requirement of public appointment G
is that of transparency. Therefore, the advertisement must
specify the number of posts available for selection and
recruitment. The qualifications and other eligibility criteria for
such posts should be explicitly provided and the schedule of
recruitment process should be published with certainty and H
556 SUPREME COURT REPORTS [2014] 2 S.C.R.
A clarity. The advertisement should also specify the rules under
which the selection is to be made and in absence of the rules,
the procedure under which the selection is likely to be
undertaken. This is necessary to prevent arbitrariness and to
avoid change of criteria of selection after the selection process
B is commenced, thereby unjustly benefiting someone at the cost
of others.
17. Thus, the aforesaid decisions are an authority on
prescribing the limitations while making appointment against
C public posts in terms of Articles 14 and 16 of the Constitution.
What has been deprecated by this Court time and again is
"backdoor appointments or appointment de hors the rules".
In State of UP. & Ors. v. U.P. State Law Officers
Association & Ors., AIR 1994 SC 1664, this Court while dealing
D with the back-door entries in public appointment observed as
under:
"The method of appointment is indeed not calculated to
ensure that the meritorious alone will always be appointed
or that the appointments made will not be on the
E
considerations other than merit. In the absence of
guidelines, the appointment may be made purely on
personal or political consideration and be arbitrary. This
being so those who come to be appointed by such
arbitrary procedure can hardly complain if the termination
F of their appointment is equally arbitrary. Those who come
by the back-door have to ga by the same door .... From
the inception some engagements and contracts may be
the product of the operation bf the spoils system. There
need be no legal anxiety to save them."
G
(Emphasis added)
18. In Som Raj & Ors. v. State of Haryana & Ors., AIR
1990 SC 1176, this Court held as under:
H
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 557
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
"The absence of arbitrary power is the first postulate of A
rule of law upon which our whole constitutional edifice is
based. In a system governed by Rule of Law, discretion
when conferred upon an executive authority must be
confined within clearly defined limits. The rules provide
the guidance for exercise of the discretion in making B
appointment from out of selection lists which was
prepared on the basis of the performance and position
obtained at the selection. The appointing authority is to
make appointment in the order of gradation, subject to
any other relevant rules like, rotation or reservation, if any, C
or any other valid and binding rules or instructions
having force of law. If the discretion is exercised without
any principle or without any rule, it is a situation
amounting to the antithesis of Rule of Law. Discretion
means sound discretion guided by law or governed by
known principles of rules, not by whim or fancy or caprice D
of the authority. "
19. In making the appointments or regulating the other
service conditions of the staff of the High Court, the Chief
Justice exercises an administrative pqwer with constitutional E
backing. This power has been entrusted to the safe custody of
the Chief Justice in order to ensure the independence of the
Judiciary, which is one of the vital organs of a Government and
whose authority is to be maintained. The discretion exercised
by the Chief Justice cannot be open to challenge, except on F
well known grounds, that is to say, when the exercise of
discretion is discriminatory or mala fide, or the like(s).
20. Even under the Constitution, the power of appointment
granted to the Chief Justice under Article 229 (1) is subject to G
Article 16 (1 ), which guarantees equality of opportunity for all
citizens in matters relating to employment. 'Opportunity' as used
in this Article means chance of employment and what it
guaranteed is that this opportunity of employment would be
equally available to all.
H
558 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 21. As a safeguard, the Constitution has also recognized
that in the internal administration of the High Court, no other
power, except the Chief Justice shou ld have domain. In order
1
to enable a judicial intervention, it would require only a very
strong and convincing argument to show that this power has
B been abused. If an authority has e~ercised his discretion in
good faith and not in violation of ar;iy law, such exercise of
discretion should not be interfered wifh by the courts merely on
the ground that it could have been exercised differently or even
:ttiat the courts would have exercised it differently had the matter
C been brought before it in the first instance or in that perspective.
22. Article 235 of the Constitution provides for power of
the High Court to exercise complete administrative control over
the Subordinate Courts. This control, undoubtedly, extends to
all functionaries attached to the Subordinate Courts including
D the ministerial staff and servants in the establishment of the
Subordinate Courts. If the adminis.trative control cannot be
exercised over the administrative and ministerial staff, i.e. if the
High Court would be denuded of its powers of control over the
other administrative functionaries and n:iinisterial staff of the
E District Court and Subordinate Courts other than Judicial
Officers, then the purpose of superintendence provided therein
would stand frustrated and such an interpretation would be
wholly destructive to the harmonious, efficient and effective
working of the Subordinate Courts. l"he Courts are institutions
F or organism where all the limbs complete the whole system of
Courts and when the Constitutional provision is of such wide
amplitude to cover both the Courts, and persons belonging to
the Judicial Office, there would be no reason to exclude the
1
other limbs of the Courts, namely, administrative functionaries
G and ministerial staff of its establishment from the scope of
control. Such control is exclusive in nature, comprehensive in
extent and effective in operation .. (Vide: The State of West
Bengal & Anr. v. Nripendra Nath Bagchi, AIR 1966 SC 447;
Shri Baradakanta Mishra v. Registrar of Orissa High Court &
H Anr., AIR 1974 SC 710; Yoginath D. Bagde v. State of
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 559
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
Maharashtra & Anr., AIR 1999 SCC 3734; Subedar Singh & A
Ors. v. District Judge, Mirzapur & Anr., AIR 2001 SC 201; High
Court of Judicature for Rajasthan v. P.P. Singil & Anr., AIR
2003 SC 1029; and Registrar General, High Court of
Judicature at Madras v. R. Perachi & Ors., AIR 20·12 SC 232).
B
23. In M. Gurumoorthy v. The Accountant General,
Assam and Nagaland & Ors., Al R 1971 SC 1850, the
Constitution Bench of this Court held:
"The unequivocal purpose and obvious intention of the
framers of the Constitution in enacting Article 229 is that C
in the matter of appointments of officers and servants of
a High Court it is the Chief Justice or his nominee who
is to be the supreme authority and there can be no
interference by the executive except to the limited extent
that is provided in the Article ...... Thus, Article 229 has D
a distinct and different scheme and contemplates full
freedom to the Chief Justice in the matter of
appointments of officers and servants of the High Court
and their conditions of service."
E
24. In this Case, this Court spelt out the powers of the
Chief Justice of the High Court in the matters of appointment
of staff of the High Court, but this Court did not lay down in any
way that the Chief Justice can exercise such powers in
contravention of the provisions of Articles 14 and 16 of the
F
Constitution while making appointments in the establishment
of the High Court.
25. In H.C. Puttaswamy & Ors. v. The Hon'ble Chief
Justice of Karnataka High Court, Bangalore & Ors., AIR 1991
SC 295, while dealing with a similar situation and interpreting G
the provisions of Article 229 (2) of the Constitution and
Karnataka State Civil Services (Recruitment to Ministerial
Posts) Rules, 1966, this Court held the appointments made by
the Chief Justice of the High Court without advertising the
vacancies as invalid being violative of Articles 14 and 16(1) of H
560 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the Constitution. The Court came to,the said conclusion as the
appointments were made without' following the procedure
prescribed in the Rules. The Court further observed:
"While the administration of the Courts has perhaps,
never been without its critics, the method of recruitment
B
followed by the Chief Justice appears to be without
parallel ........... The methodology adopted by the Chief
Justice was manifestly wror:ig and it was doubtless
deviation from the course of law which the High Court has
to protect and preserve.
c
The judiciary is the custodian of constitutional
principles which are essential to the maintenance of rule
of law. It is the vehicle for the protection of a set of values
.which are integral part of our social and political
D philosophy. Judges are the most visible actors in the
administration of justice. Their case decisions are the
most publicly visible outcome. But the administration of
justice is just not deciding disputed cases. It involves
great deal more than that. Aryy realistic analysis of the
E administration of justice in the Courts must also take
account of the totality of the judges behaviour and their
administrative roles. They may appear to be only minor
aspects of the administration' of justice, but collectively
they are not trivial. They constitute in our opinion, a
F substantial part of the mosaic which represents the
ordinary man's perception of What the Courts are and how
the Judges go about their wof'k. The Chief Justice is the
prime force in the High Court. Article 229 of the
Constitution provides that appointment of officers and
servants of the High Court shall be made by the Chief
G
Justice or such other Judge of officer of the Court as may
be directed by the Chief Justice. The object of this Article
was to secure th~ independence of the High Court which
cannot be regarded as fully secured unless the authority
to appoint supporting staff with complete control over
H
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 561
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
them is vested in the Chief Justice. There can be no • A
disagreement on this matter. There is imperative need
for total and absolute administrative independence of the
High Court. But the Chief Justice or any other
Administrative Judge is not an absolute ruler. Nor he is
a free wheeler. He must operate in the clean world of law; B
not in the neighbourhood of sordid atmosphere. He has
a duty to ensure that in carrying out the administrative
functions, he is actuated by same principles and values
as those of the Court he is serving. He cannot depart from
and indeed must remain committed to the constitutional c
ethos and traditions of his calling. We need hardly say
that those who are expected to oversee the conduct of
others, must necessarily maintain a higher standards of
ethical and intellectual rectitude. The public expectations
do not seem to be less exacting. "
D
(Emphasis added)
(See also: State of Assam v. Bhubhan Chandra Datta & Anr.,
AIR 1975 SC 889).
E
26. In Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto ·
& Ors., AIR 2005 SC 2103, this Court did not accept the
contention that appointment could be made to Class-IV post
in Subordinate Courts under the Civil Court Rules without
advertisement in the newspapers inviting applications for the
posts as that would lead to lack of transparency and violation F
of the provisions of Article 16 of the Constitution. The Court
terminated the services of such appointees who had worked
even for 15 years observing that the Court otherwise "would be
guilty of condoning a gross irregularity in their initial
appointment." G
27. To say that the Chief Justice can appoint a person
without following the procedure provided under Articles 14 and
16 would lead to an indefinite conclusion that the Chief Justice
can dismiss him also without holding any inquiry or following H
562 SUPREME COURT REPO~TS [2014] 2 S.C.R.
A the principles of natural justice/Rules etc., for as per Section
16 of General Clauses Act, 1897 power to appoint includes
power to remove/suspend/dismiss. (Vide: Pradyat Kumar
Bose v. The Hon'ble Chief Justic~ of Calcutta High Court,
1956 SC 285; and Chief Justice of Andhra Pradesh & Anr. v.
B L. V.A. Dikshitu/u & Ors., AIR 1979 SC 193).
But as no employee can be removed without following the
. procedure prescribed by law or in violation of the terms of his
appointment, such a course would not be available to the Chief
Justice. Therefore, the natural corollary of this is that the Chief
C Justice cannot make any appointment in contravention of the
Statutory Rules, which have to be in consonance with the
scheme of our Constitution. ·
28. In State of/West Ben'gal & Ors. v. Debasish
D Mukherjee & Ors., AIR 2011 SC 3667, this Court again dealt
with the provisions of Article 229 of the Constitution and held
that the Chief Justice cannot grant any relief to the employee
of the High Court in an irrational or' arbitrary manner unless the
Rules provide for such exceptional relief. The order of the Chief
E Justice must make reference to the existence of such
exceptional circumstances and th~ order must make it so clear
that there had been an application,of mind to those exceptional
circumstances and such orders passed by the Chief Justice
are justiciable. While deciding tne matter, the court placed
F reliance on its earlier judgment Of the Constitution Bench in
State of UP.& Ors. v. C.L. Agrawal &Anr., AIR 1997 SC 2431.
29. Thus, in view of the above, the law can be summarised
to the effect that the powers under Article 229 (2) of the
Constitution cannot be exercised by the Chief Justice in an
~ unfettered and arbitrary manner. Appointments should be made
giving adherence to the provisions of Articles 14 and 16 of the
Constitution and/or such Rules as made by the legislature.
30. In today's system, daily labourers and casual labourers
H have been conveniently introduced which are followed by
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 563
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
attempts to regularise them at a subsequent stage. Therefore, A
most of the times the issue raised is about the procedure
adopted for making appointments indicating an improper
exercise of discretion even when the rules specify a particular
mode to be adopted. There can be no doubt that the
employment whether of Class IV, Class Ill, Class II or any other B
class in the High Court or courts subordinate to it fall within the
definition of "public employment". Such an employment,
therefore, has to be made under rules and under orders of the
competent authority.
31. In a democ_ratic set up like ours, which is governed by
c
rule of law, the supremacy of law is to be acknowledged and
absence of arbitrariness has been consistently described as
essence of rule of law. Thus, the powers have to be canalised
and not unbridled so as to breach the basic structure of the
Constitution. Equality of opportunity in matters of employment D
being the constitutipnal mandate has always been observed.
The unquestionable authority is always subject to the authority
of the Constitution. The higher the dignitary, the more objectivity
is expected to be observed. We do not say that powers should
be curtailed. What we want to say is that the power can be E
exercised only to the width of the constitutional and legal limits.
The date of retirement of every employee is well known in
advance and therefore, the number of vacancies likely to occur
in near future in a particular cadre is always known to the
~mployer. Therefore, the exercise to fill up the vacancies at the F
earliest must start in advance to ensure that the selected person
'-may join immediately after availability of the post, and hence,
there may be no occasion to appoint any person on ad-hoc
basis for the reason that the problem of inducting the daily
labourers who are ensured of a regular appointment G
. subsequently has to be avoided and a fair procedure must be
adopted giving equal opportunity to everyone ..
32. It has been rightly said:
H
564 SUPREME COURT REPORTS [2014] 2 S.C.R.
A "Perfection consists not in doing extraordinary things, but
in doing ordinary things extraordinary well."
33. We had the advantage of the response given by the
High Courts and the State. Some of the States like Jharkhand,
Kerala, Madhya Pradesh, Orissa, Sik~im and Uttrakhand have
8
pointed out in their respective affidavits that the recruitment of
most of the posts are made by central!sed selection and some
of those posts are transferable. Some States like Jharkhand
have pointed out that there is a centralised recruitment of all
C the posts but division wise and are, transferable within the
division. Some of the States like Punj'ab & Haryana and Uttar
Pradesh have pointed out that they have already drafted the
rules providing for centralised recruitment. The State of
Himachal Pradesh and the High Court thereof have shown
inclination towards the centralised recruitment. In the State of
D Madhya Pradesh, though rules do not provide for centralised
recruitment but it is so done under the administrative order of
the Chief Justice of the High Court. O~her States and the High
Courts have also made suggestions that it is the need of the
hour to provide for centralised recruitment.
E
34. We would like to make it clear that the High Court is a
constitutional and an autonomous authbrity subordinate to none.
Therefore, nobody can undermine the constitutional authority of
the High Court, and therefore the purpose to hear this case is
F only to advise the High Court that if its rules are not in
consonance with the philosophy of our Constitution and the
same may be modified and no appointment in contravention
thereof should be made. It is necessary that there is strict
compliance with appropriate Rules aDd the employer is bound'
G to adhere to the norms of Articles 14 & 16 of the Constitution
before making any recruitment.
35. In view of the above, the appeal stands disposed of
with the following directions:
H i) All High Courts are requested to re-examine the
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 565
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
statutory rules dealing with the appointment of staff A
in the High Court as well as in the subordinate
courts and in case any of the rule is not in conformity
and consonance with the provisions of Articles 14
and 16 of the Constitution, the same may be
modified. B
ii) To fill up any vacancy for any post either in the High
Court or in courts subordinate to the High Court, in
strict compliance of the statutory rules so made. In
case any appointment is made in contravention of
the statutory rules, the appointment would be void C
ab-initio irrespective of any class of the post or the
person occupying it.
iii) The post shall be filled up by issuing the
advertisement in at least two newspapers and one D
of which must be in vernacular language having
wide circulation in the respective State. In addition
thereto .. the names may be requisitioned from the
local employment exchange and the vacancies may
be advertised by other modes also e.g. Employment E
News, etc. Any vacancy filled up without advertising
as prescribed hereinabove, shall be void ab-initio
and would remain unenforceable and inexecutable
except such appointments which are permissible to
be filled up without advertisement, e.g.,
F
appointment on compassionate grounds as per the
rules applicable. Before any appointment is made,
the eligibility as well as suitability of all candidates
should be screened/tested while adhering to the
reservation policy adopted by the State, etc., if any. G
iv) Each High Court may examine and decide within
six months from today as to whether it is desirable
to have centralised selection of candidates for the
courts subordinate to the respective High Court and
. if it finds it desirable, may formulate the rules to H
566 SUPREME COURT REPORTS [2014) 2 S C.R.
A carry out that purpose either for the S_tate or on
Zonal or Divisional basis.
v) The High Court concerned or the subordinate court
as the case may be, shall undertake the exercise
of recruitment on a re~ular basis at least once a
B year for existing vacancies or vacancies that are
likely to occur within the said period, so that the
vacancies are filled up timely, and thereby avoiding
any inconvenience or shortage of staff as it will also
control the menace of.ad-hocism.
c
36. Before parting with the ·case, we record our deep
appreciation to Shri P.S. Narasimha, learned senior counsel
for rendering invaluable assistance to the court as Amicus
Curiae.
D
Copy of the judgment be sent to the Registrar General/
Registrar (Administration) of all the High Courts by this Registry
directly and the said officer is requested to place the same
before the Hon'ble Chief Justice fdr information and appropriate
action.
E
R.P. Appeal disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "public appointment"Sign in to search