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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   979  OF 2014 (Arising out of SLP (C) No. 26090 of 2011)

Renu & Ors.                    …Appellants

Versus

District & Sessions Judge, Tis Hazari & Anr.        …Respondents

J U D G M E N T

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

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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

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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

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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  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

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

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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, 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 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 an exercise of power in violation of the basic

features of the Constitution i.e. Part III dealing with the fundamental

rights which also prescribes the limitations.  

7. Article  14  of  the  Constitution  provides  for  equality  of

opportunity.  It forms the cornerstone of our Constitution.

In  I.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:

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“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 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 III.”

8. As Article 14 is an integral part of our system, each and 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’  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.  Housing  Board  &  Anr.  v.  Manoj

Shrivastava,  AIR  2006  SC  3499; M.P.  State  Agro  Industries

Development Corporation Ltd. & Anr. v. S.C. Pandey, (2006) 2

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SCC 716; and  State of Madhya Pradesh & Ors. v. Ku. Sandhya

Tomar & Anr., JT 2013 (9) SC 139.  

9. In  Excise  Superintendent  Malkapatnam, Krishna 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 Constitution. However, due to the possibility

of non sponsoring of names by the employment exchange, this Court

held that any appointment even on temporary or ad hoc basis without

inviting  application  is  in  violation  of  the  said  provisions  of  the

Constitution  and even if  the names of  candidates  are  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 further observed:  

“In addition, the appropriate department…..should call for the names by publication in the newspapers having

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wider circulation and also display on their office notice …and 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.”                                                                                (Emphasis added)

(See also: Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh &

Ors.,  AIR 1998 SC 331; and Kishore K. Pati v. Distt. Inspector of

Schools, Midnapur & Ors., (2000) 9 SCC 405).  

10. 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 for such a course. The High Court

reached the conclusion that process of selection stood vitiated because

there  was  no  advertisement  and  due  publicity  for  inviting

applications from the eligible candidates at large.

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

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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…………… 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  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 Coop.

Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as

under:

“(1)  The  appointments  made  without  following  the appropriate  procedure  under  the  rules/government circulars  and  without  advertisement  or  inviting applications  from  the  open  market  would  amount  to breach of Articles 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 minimum educational  qualification  and other  essential qualification  would  be  wholly  illegal.  Such  illegality cannot be cured by taking recourse to regularisation.

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(4) Those who come by back-door should go through that 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.

(6)  The  court  should  not  exercise  its  jurisdiction  on misplaced sympathy.

(7)  If  the  mischief  played  is  so  widespread  and  all 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 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.”

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 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

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course  only encourages the State  to  flout  its  own rules and would

confer  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 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:-

“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 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  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 16 requires  that  every  such  appointment  be  made  by  an

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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 affords a judicial

remedy by which any person, who holds an independent substantive

public office or franchise or liberty, is 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 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  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 whether the appointment of the alleged usurper has been

made  in  accordance  with  law or  not.  For  issuance  of  writ  of  quo

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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. C.D. 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 Modern Co-operative

Transport Society Ltd. v. Financial Commissioner and Secretary

to Govt., Haryana & Anr., AIR 2002 SC 2513; Arun Singh v. State

of Bihar & Ors.,  AIR 2006 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 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 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.

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This  is  necessary  to  prevent  arbitrariness  and  to  avoid  change  of

criteria of selection after the selection process 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 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  U.P.  &  Ors.  v.  U.P.  State  Law  Officers

Association & Ors.,  AIR 1994 SC 1654,  this  Court  while  dealing

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 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 of  their  appointment  is  equally  arbitrary. Those who come by the back-door have to go by the same door….From the inception some engagements and contracts  may  be  the  product  of  the  operation  of  the spoils system.  There need be no legal anxiety to save them.”            (Emphasis added)  

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18. In  Som Raj & Ors. v. State of Haryana  & Ors., AIR 1990

SC 1176, this Court held as under:   

“The absence of arbitrary power is the first postulate of 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 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, 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 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 power with constitutional 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,

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except on 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 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.  

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  should  have  domain.  In  order  to  enable  a  judicial

intervention,  it  would  require  only  a  very  strong  and  convincing

argument to show that this power has been abused. If an authority has

exercised his discretion in good faith and not in violation of any law,

such exercise of discretion should not be interfered with by the courts

merely on the ground that it could have been exercised differently or

even that the courts would have exercised it differently had the matter

been brought before it in the first instance or in that perspective.

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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  the

ministerial staff and servants in the establishment of the Subordinate

Courts.  If  the  administrative  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  ministerial  staff  of  the  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.  The  Courts  are

institutions  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 other limbs of

the Courts, namely, administrative functionaries and ministerial staff

of  its  establishment  from  the  scope  of  control.  Such  control  is

exclusive  in  nature,  comprehensive  in  extent  and  effective  in

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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  &  Anr.,  AIR  1974  SC  710;   

Yoginath D. Bagde v. State of Maharashtra & Anr., 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.,  AIR 2003 SC 1029; and  Registrar General,  High

Court of Judicature at Madras v. R. Perachi & Ors., AIR 2012 SC

232).  

23. In M. Gurumoorthy v. The Accountant General, Assam and

Nagaland & Ors., AIR 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 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 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.”

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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 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  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 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 followed  by  the  Chief  Justice  appears  to  be  without parallel…..……The  methodology  adopted  by  the  Chief Justice  was  manifestly  wrong  and  it  was  doubtless

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deviation from the course of law which the High Court has to protect and preserve.

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 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. Any realistic analysis of the 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 substantial  part  of  the  mosaic  which  represents  the ordinary  man’s perception of  what  the Courts  are and how the Judges go about their work. 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 Justice or such other Judge or officer of the Court  as may be directed by the Chief Justice. The object of this Article was to secure the independence of the High Court which  cannot  be  regarded  as  fully  secured  unless  the authority  to  appoint  supporting  staff  with  complete control  over them is vested in the Chief Justice.  There can  be  no  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; 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  ethos  and traditions of his calling. We need hardly say that those

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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.”                      (Emphasis added)

(See also: State of Assam v. Bhubhan Chandra Datta & Anr., AIR

1975 SC 889).  

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  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.”

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  the  principles  of  natural

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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  Justice  of  Calcutta

High Court, 1956 SC 285; and Chief Justice of Andhra Pradesh &

Anr. v. L.V.A. Dikshitulu & 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 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 Bengal & Ors. v. Debasish 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 Justice must make reference to the existence of

such exceptional circumstances and the order must make it so clear

that  there  had  been  an  application  of  mind  to  those  exceptional

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circumstances  and  such  orders  passed  by  the  Chief  Justice  are

justiciable. While deciding the matter, the court placed reliance on its

earlier judgment of the Constitution Bench in State of U.P.& 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  have

been  conveniently  introduced  which  are  followed  by  attempts  to

regularise them at a subsequent stage.  Therefore, 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 III,  Class II or

any other class in the High Court or courts subordinate to it fall within

the  definition  of  “public  employment”.  Such  an  employment,

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therefore,  has  to  be  made  under  rules  and  under  orders  of  the

competent authority.  

31. In a democratic set up like ours, which is governed by 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 being the constitutional 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

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  employer.  Therefore,  the

exercise to fill up the vacancies at the 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

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person on ad-hoc basis for the reason that the problem of inducting the

daily  labourers  who  are  ensured  of  a  regular  appointment

subsequently has to be avoided and a fair procedure must be adopted

giving equal opportunity to everyone.  

32. It has been rightly said:  

“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,  Sikkim and  Uttrakhand  have  pointed  out  in  their

respective affidavits that the recruitment of most of the posts are made

by  centralised  selection  and  some  of  those  posts  are  transferable.

Some States like Jharkhand have pointed out that there is a centralised

recruitment  of  all  the  posts  but  division  wise  and  are  transferable

within the division.  Some of the States like Punjab & 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 Madhya Pradesh, though rules

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do not provide for centralised recruitment but it is so done under the

administrative order of the Chief Justice of the High Court.  Other

States and the High Courts have also made suggestions that it is the

need of the hour to provide for centralised recruitment.   

34. We  would  like  to  make  it  clear  that  the  High  Court  is  a

constitutional  and  an  autonomous  authority  subordinate  to  none.

Therefore, nobody can undermine the constitutional authority of the

High Court,  and therefore  the  purpose  to  hear  this  case  is  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  and  the

employer is bound 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:

i) All High Courts are requested to re-examine the statutory rules

dealing with the appointment of staff in the High Court as well

as in the subordinate courts and in case any of the rule is not in

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conformity and consonance with the provisions of Articles 14

and 16 of the Constitution, the same may be modified.

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 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 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 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.,  appointment  on

compassionate grounds as per the rules applicable.  Before any

appointment is made, the eligibility as well as suitability of all

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candidates  should  be  screened/tested  while  adhering  to  the

reservation policy adopted by the State, etc., if any.

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 carry out  that  purpose either  for  the State 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 regular

basis at least  once a 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.  

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.  

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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 for information and appropriate action.

                                      …………......................J.                                     (Dr. B.S. CHAUHAN)

             ……….........................J.                               (J. CHELAMESWAR)

             ……….........................J.                            (M.Y. EQBAL)

New Delhi; February 12, 2014.   

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