Amitava Lala, J.-- Both the aforesaid special appeals are arising out of selfsame judgement and order dated 27th July, 2007 passed by the learned Single Judge in Civil Misc. Writ Petition No. 45922 of 2004 (Devendra Kumar Pandey Vs. Hon'ble High Court of Judicature at Allahabad and others). When Special Appeal No. 563 of 2008 has been preferred by the High Court itself, the other one i.e. Special Appeal No. 1152 of 2007 has been preferred by the employees of the High Court.
The brief facts giving rise to these appeals are that in the year 2004 some persons, who were respondents in the writ petition and either appellants or respondents in the present appeals, were appointed by the then Chief Justice on adhoc basis and they are continuing in service till date. Prior to such appointment, an advertisement was published by this High Court for appointment on the post of Routine Grade Clerks i.e. Class-III posts as per the advertisement. The writ petitioner, who is respondent no. 1 in both the aforesaid special appeals and who had applied for selection pursuant to such advertisement, challenged the appointments made by the then Chief Justice by filing Civil Misc. Writ Petition No. 45922 of 2004. Subsequently, such advertisement was cancelled in view of the amendment of relevant Rules. Again fresh advertisement was issued by the High Court on 31st July, 2006, but the writ petitioner never applied pursuant to such advertisement. Such writ petition was disposed of by the learned Single Judge by impugned judgement and order dated 27th July, 2007. In the impugned judgement learned Single Judge himself has recorded that with the amendment of the Rules and the change of qualifications the petitioner was rendered ineligible to apply for the post re-advertised by the High Court on 31st July, 2006. The petitioner has not cared to amend the writ petition by either challenging the amendment in the qualifications to the post of Assistant Review Officer or the fresh advertisement. The writ petitioner as such can not be granted any relief in the writ petition. The writ petition could have been dismissed with the above observations but learned Single Judge felt otherwise and relying upon a Constitution Bench judgement of the Supreme Court reported in 2006 (4) SCC 1 [Secretary, State of Karnataka and others Vs. Uma Devi (3) and others] held that appointments of the appointees will be subject to regular selection by direct recruitment in accordance with the Rule 8 and these appointees will not be confirmed and regularized. Such part of the order has been challenged by the High Court and its employees in these special appeals.
The contention of the appellants in the present appeals is that if no relief can be granted in favour of the writ petitioner, the writ petition is liable to be dismissed. The error of judgement of the learned Single Judge is that in spite of saying that the writ petitioner as such can not be granted any relief in the writ petition, observed that the ratio of Uma Devi (supra) is to be followed by all authorities in India including Hon'ble the Chief Justice of the High Courts, therefore, all appointments made by the Hon'ble Chief Justice in exercise of his powers under Rules 41 and 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter in short called as the "Rules, 1976") will be subject to regular selection by direct recruitment in accordance with Rule 8 of the Rules, 1976 and that these appointees will not be confirmed and regularised. According to them, if the very foundation in the writ petition goes, no superstructure can remain.
In the instant case, High Court, which is the employer, and the employees, who have been appointed by the then Hon'ble the Chief Justice and whose appointments were challenged in the writ petition, both are aggrieved by the same order of the learned Single Judge and have preferred these appeals independently from the same order, therefore, it can be safely construed that there is no conflict of interest between the High Court as an employer and its employees. Against this background, we have to see whether passing of such order at the instance of the respondent/writ petitioner, who had no locus, was justified or not. At least the ratio propounded in 2001 (10) SCC 447 (Mohd. Shafi Pandow Vs. State of J&K and others), 2003 (8) SCC 567 (Chairman & MD, BPL Ltd. Vs. S.P. Gururaja and others), 2006 (3) SCC 758 (Gurpreet Singh Bhullar and another Vs. Union of India and others), 2008 (3) SCC 512 (K. Manjusree Vs. State of Andhra Pradesh and another) and 2009 (1) SCC 386 (Mukul Saikia and others Vs. State of Assam and others) does not say so.
Admittedly, appointment of the appointees, who are either appellants or respondents in these appeals, were made on adhoc basis by the then Hon'ble the Chief Justice in the year 2004 under Rules 41 and 45 of the Rules, 1976. Rules 41 and 45 of the Rules, 1976, which are relevant for the purpose, are as follows:
"41. Residuary powers.-- Nothing in these rules shall be deemed to affect the power of the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters, incidental or ancillary to these rules, not specifically provided for herein or in regard to matters as have not been sufficiently provided for:
Provided that if any such order relates to salaries, allowances, leave or pension, the same shall be made with the approval of the Governor of U.P."
"45. Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter."
The preamble of the Rules, 1976 speaks that in exercise of the powers conferred by Clause (2) of Article 229 of the Constitution of India, the Chief Justice of the High Court of Judicature at Allahabad makes the following rules with respect to the conditions of service of persons serving on the staff attached to the High Court of Judicature at Allahabad. The appointments under challenge made on adhoc basis appear to be on the post of Routine Grade Clerk. Source of recruitment on Class-III posts as per Rule 8(a)(i), substituted by notification dated 27th October, 1989, is that direct recruitment will be made through competitive examination conducted by the Appointing Authority or in any manner so directed by the Chief Justice. Therefore, the appointments of such employees are as per the respective rules.
So far as Constitution Bench judgement of the Supreme Court in Uma Devi (supra) is concerned, it criticised passing of orders by the Courts regularising the services through back door process making burden on the Union of India or the State only out of sympathy for the continuance of service ignoring the process of appointment. In this case employer and employees are not in dispute. Even the Supreme Court in Uma Devi (supra) has eliminated irregular appointments under certain circumstances from illegal appointments with the intervention of orders of the Courts or of tribunals.
Moreover, by an order of the then Chief Justice dated 19th October, 2005 the cadre of Routine Grade Clerk was declared as dead cadre as per Rule 40 (3) of the Rules, 1976 and merged with the cadre of Assistant Review Officer (Lower Division Assistant in the pattern of civil secretariat). As a result whereof, the condition stipulated in the appointment letters of all the incumbents working as Routine Grade Clerk looses force. A deponent on the part of the Registry of the High Court has stated that by virtue of merger of the posts of Routine Grade Clerk with the Assistant Review Officer and the advertisement as made on 17th April, 2004 for 79 posts of Routine Grade Clerks having been cancelled, no recruitment can be made to such posts and accordingly, holding of any regular selection by direct recruitment to the post of Routine Grade Clerk does not arise. It has been contended by the appellants that the adhoc appointments as made in the case herein are neither temporary nor contractual nor casual, as was in the case of Uma Devi (supra). Moreover, such appointments are neither illegal nor irregular but in accordance with the relevant Rules and powers of the Chief Justice of a High Court. Such power is sovereign and plenary in nature, which can not be questioned with the reference of Uma Devi (supra). Learned Counsel appearing for the respondent-writ petitioner has only contended that he has nothing to say with regard to availability of power of the Chief Justice but with regard to use of such power of the Chief Justice.
Upon hearing the parties, it can be construed that when the Chief Justice is empowered to appoint a person under the Rules framed in exercise of powers conferred under Article 229 (2) of the Constitution of India, the appointment of the person can not be said to be illegal or irregular. Against this background, for the purpose of satisfaction of our conscience another Constitution Bench judgement of the Supreme Court is seen. Such judgement is reported in AIR 1971 SC 1850 (M. Gurumoorthy Vs. The Accountant General, Assam and Nagaland and others). In such judgement the Constitution Bench of the Supreme Court has held that exclusive power is conferred on the Chief Justice by Clause (1) read with Clause (2) of Article 229 not only in the matter of appointments but also with regards to prescribing the conditions of service of officers and servants of a High Court by Rules. This is subject to any law of State Legislature but only in respect of conditions of services. The powers conferred on the Chief Justice under Clause (1) of Article 229 can not be abridged or modified in the matter of appointment. The approval of the Governor in the matter of Rules is confined only to sub-rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. This Constitution Bench judgement of the Supreme Court is apparently binding unless any contrary judgement of similar Bench to that extent is passed with regard to the power of the Chief Justice to appoint the employees of the High Court under Article 229 of the Constitution. We do not find that the ratio propounded by the Supreme Court in M. Gurumoorthy (supra) has been touched by the subsequent Constitution Bench judgement in Uma Devi (supra). Therefore, it can be safely presumed that in view of the ratio of M. Gurumoorthy (supra) the power of appointment by the Chief Justice is outside the scope and ambit of Uma Devi (supra), wherein the question arose at the instance of an employer with regard to regularisation of service by the Court or tribunal of the persons who were appointed following any back door process. It is also pertinent to mention hereunder that when the Chief Justice has taken a decision to appoint some persons to serve the High Court, it can be presupposed that such appointments are made consciously for the benefit of the institution and a faith is required to be kept by all the Judges upon him in taking such decision. The Chief Justice, being head of the institution, will be definitely worried about the necessity of appointment of employees in the Court. It is a clear case that the advertisement earlier made was cancelled and subsequent advertisement was made for the purpose of filling up the posts only in the year 2006 that too only in respect of Assistant Review Officer not with the dead cadre in which the appointees herein were appointed as Routine Grade Clerk, which subsequently in 2005 merged with Assistant Review Officer. Thus, if the Chief Justice of a High Court, being administrative head of the institution, feels pressure in respect of the workload of the High Court either in the judicial side or in the administrative side, he can not be debarred from making appointments as per the relevant Rules. Rule is categorical that manner of appointment will be as per the direction of the Chief Justice. Therefore, source of appointment is neither in dispute nor contrary to the available Rules. In the process, who has been appointed can not be the subject matter of discussion. It is absurd to believe that a Chief Justice without examining the candidature of Class-III staffs is swayed away with favouritism. Criticism of the Chief Justice in making appointment either in the judicial side or in the administrative side should be followed by the principle of ''restraint'. We are bound by the ethics and judicial discipline. Merely because a judicial order of a Single Judge rule out even an administrative decision of the entire Full Court, such power should not be loosely applied. As per the ratio of 1998 (3) SCC 72 (High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal and another), the Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority. In dealing with the power of the Chief Justice of India a three Judges' Bench of the Supreme Court in 2006 (1) SCC 779 (Union of India and others Vs. Kali Dass Batish and another) has held that if Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence without application of mind or without calling for the necessary inputs. The argument, to say the least, deserves summary dismissal. Following the same analogy, when the exclusive power is given to the Chief Justice of a State, being head of the State judiciary, under Article 229 of the Constitution of India and the rules framed thereunder for appointment of his own employees being one of the sources of recruitment, the same can not be abridged or modified.
Moreover, when the writ petitioner, who has neither filed any application challenging the subsequent advertisement nor amended his writ petition, lost his case before the Single Judge himself, who did not grant any relief, there was no occasion to the learned Single Judge to take suo motu cognizance regarding appointments of others by abridging or modifying the powers of the Hon'ble the Chief Justice as per the Rules, 1976 framed in exercise of the powers conferred under Article 229 of the Constitution of India, which is sovereign and plenary in nature. Therefore, the impugned order of the learned Single Judge is per se erroneous and/or perverse.
Though so many comments have been made before this Court with regard to jurisdiction of the learned Single Judge on the relevant date and time in considering the matter and keeping the matter part heard or tied up with the Bench, but one should not be critical on such issue since we have entered into the merit of the case, therefore, any discussion in this regard be dropped.
Thus, in totality, both the appeals succeed and are allowed. The direction given by the learned Single Judge in Paragraph-21 of the impugned judgement dated 27th July, 2007 following the observations of the Supreme Court judgement in Uma Devi (supra) stands set aside. The writ petition is treated to be dismissed on the basis of the observations of the learned Single Judge himself in the earlier paragraphs of the impugned judgement. Registrar General of this Court is hereby directed to take appropriate steps with regard to confirmation/ regularisation and consequential relief of the employees hereunder.
However, no order is passed as to costs.
(Justice Amitava Lala) I agree.
(Justice Ashok Srivastava) Dated: 20th September, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
The special appeal is allowed, however, without imposing any cost.
Dt./-20.09.2011.
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For judgement and order, see order of the date passed on the separate sheets (nine pages).
Dt./-20.09.2011.
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