Avnish Kant Tiwari & Others vs Hon'Ble High Court Of H.P. & Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition No.2661 of 2015 Reserved on : 30.5.2016

.

Date of Decision : June 3, 2016

Avnish Kant Tiwari & others ...Petitioners.

Versus

Hon'ble High Court of H.P. & others ...Respondents.

of Coram:

The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

rt Whether approved for reporting? Yes.

For the Petitioners : 1

Mr. Raman Sethi, Advocate.

For the Respondents : Ms Jyotsna Rewal Dua, Senior

Advocate with Ms Shalini Thakur, Advocate, for respondent No.1. Mr. Ramakant Sharma, Senior

Advocate with Ms Devyani Sharma, Advocate, for respondent No.2 to 53.

Sanjay Karol, Judge

In this petition, filed under Article 226 of the

Constitution of India, ten petitioners, who fall in the

category of Translators/Revisors, have laid challenge to

the amendment carried out, vide Notification dated

2.6.2014 (Annexure P-7), in Column No.4, Serial No.9,

Schedule-B of the Himachal Pradesh High Court Officers

Whether reporters of the local papers may be allowed to see the judgment?

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and the Members of the Staff (Recruitment, Conditions of

Service, Conduct & Appeal) Rules, 2003 (hereinafter

referred to as '2003 Rules'). Challenge is also laid to the

.

decision dated 30.3.2015 (Annexure P-12) of the

Grievance Committee of this Court.

2. In short, without alleging any malafides, it is

the petitioners' grievance that revised ratio, in fixing the

of quota, for promotion to the post of Section Officer, from

5:1 to 7:1, from the categories of Superintendent Grade-II rt and Revisor, while adversely affecting them, would confer

undue benefit upon private respondents No.2 to 53.

3. The moot point for consideration is the scope

of interference by a Writ Court, in striking down the rules

framed by the Chief Justice of the High Court of Himachal

Pradesh in exercise of his legislative power and the extent

of power of judicial review of the decision taken by the Full

Court of the High Court of Himachal Pradesh. Also, what is

the nature of recommendation made by a Committee of

Judges of the High Court?

4. First, we proceed to discuss the legislative

history of the Rules, subject matter of challenge before

this Court.

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5. In exercise of his powers, under Article 229 of

the Constitution of India, the Chief Justice of the High

Court of Himachal Pradesh (hereinafter referred to as the

.

Chief Justice) was pleased to notify the High Court of

Himachal Pradesh (Recruitment, Conditions of Service and

Conduct) Rules, 1975 (hereinafter referred to as '1975

Rules'). Rule-4 prescribed the 'Method of Recruitment',

of both for promotional and selection posts. For the post of

Superintendent, Schedule-II prescribed the promotions to rt be in the following manner:

Superintendents -do- Rs.450- (a) By selection

"5. 800 from amongst the graduate Court servants serving in a grade not less than Rs.225-500 with a

minimum service of 5 years in the grade.

(b) By

recruitment from amongst the officials of the Courts

subordinate to the High Court in a grade not less than Rs.160- 400 with a minimum

service of 5 years in the grade."

6. 1975 Rules came to be amended vide

Notification dated 6.1.1976 (Page-442 of Volume-1) and in

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the aforesaid Schedule, the following words came to be

inserted:

"(b) By selection from amongst non-graduate

.

but atleast matriculate Court servants serving

in a grade not less than Rs.225-500 with a minimum service of 8 years in the grade.

(c) By direct recruitment from amongst the

graduate Court servants and graduate officials of the Courts subordinate to the High Court serving in a grade not less than Rs.160-400 with a minimum service of 5 years in the

of grade.

(d) By direct recruitment of Law Graduates rtconversant with office working."

Noticeably, even non-graduates, who were matriculate

with a minimum grade, having qualifying service of eight

years, were made eligible for promotion to the post of a

Superintendent.

7. It is a matter of record that Association of Non-

Graduate Officers of the employees of this Court made

representations, which came up for consideration before

various Committees set up by the Chief Justice. Perhaps

what was required to be examined was the sufficiency of

representation of the feeder categories.

8. Based on the recommendations of the

Committee and other contemporaneous material,

including the representations made by various employees/

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associations, vide Notification dated 25.11.1992, new

Rules came to be notified. Subsequently, the High Court in

its wisdom also thought of deleting the provision of pay-

.

scale, which is not a permanent feature and is always

subject to alteration. With the enactment of the Himachal

Pradesh (Recruitment, Conditions of Service and Conduct)

Rules, 1992 (hereinafter referred to '1992 Rules'), the

of 1975 Rules came to be repealed. In terms of these Rules,

promotion to the post of Superintendent, as prescribed in rt Schedule-II, was to take place in the following manner:

Gaz. Rs.2200- By promotion from

"Superintendents Clas 4000 + amongst graduate s-II Rs.200/- Deputy S.P. Superintendents/Revisors with minimum 3 years of service as such in the

ratio of 4:1, failing which by promotion from amongst Sr. Assistants/ Translators with

minimum 6 years service as such in the same ratio.

Explanation:-

After promoting 4 Deputy Superintendents/

Sr. Assistants as Superintendents from general category...., one Revisor/Translator shall be promoted as Superintendent from amongst Revisors'/ Translators' category."

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9. Significantly, it was for the first time that the

concept of a 'feeder category' and 'quota' came to be

introduced. Also, the post was to be filled up by way of

.

promotion and not selection.

10. The introduction of minimum qualifying service

of three years, in these Rules, as reproduced supra, came

to be assailed by one Mrs. Shakuntala Sharma and the

of apex Court in Shakuntala Sharma v. High Court of

Himachal Pradesh, (1994) 2 SCC 411, quashed such rt action. What essentially weighed with the Apex Court was

the introduction of minimum period of service.

11. Pursuant thereto, and in compliance of the

directions issued by the apex court, for framing equitable

rule of promotion to the post of Superintendent, vide

Notification dated 28.9.1994, the following criteria for

promotion to the post of Superintendent came to be

introduced:

Sr.No.10 By promotion from amongst graduate Deputy Superintendents/Revisors in the ratio of 4:1, failing

which by promotion from amongst Sr. Assistants/ Translators with minimum 6 years service, as such in the same ratio.

Explanation:-

After promoting 4 Deputy Superintendents/ Sr. Assistants as Superintendents from category...., one Revisor/Translator shall be promoted as

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Superintendent from amongst Revisors'/ Translators' category."

12. Noticeably, except for the period of length of

.

qualifying service for graduate Deputy Superintendents/

Revisors, qualifying service continued to remain the same.

13. Even the 1992 Rules came to be repealed by

virtue of the Himachal Pradesh (Recruitment, Conditions of

of Service and Conduct) Rules, 1997 (hereinafter referred to

as '1997 Rules'). For promotion to the post of rt Superintendent, no change at all was made in these Rules,

save and except that vide subsequent amendment dated

12.3.1998, the post of Superintendent was made as a

Selection Post and the period of qualifying service, so

prescribed for promotion from the category of Senior

Assistants/Translators came to be changed from 6 to 5

years. Hence, with these amendments, Rules for

promotion to the post of Superintendent came to be read

as under:

"Superintendents Gazet Rs.2200- By selection from ted 4000 + amongst graduate Class- Rs.200/- Deputy II S.P. Superintendents/Reviso rs with minimum 3 years of service as such in the ratio of 4:1, failing which by promotion from

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amongst Sr. Assistants/ Translators with minimum 5 years service as such in the same ratio.

.

Explanation:- (1) In case a graduate Dy. Superintendent is not available for promotion,

a graduate Senior Assistant shall be considered for promotion.

of (2) In case a graduate Revisor is not available for promotion, a graduate Translator rt shall be considered for promotion.

(3) After promoting 4

Deputy Superintendents/ Sr. Assistants as Superintendents from general category....,

one Revisor/Translator shall be promoted as Superintendent from amongst Revisors'/

Translators' category."

Note:- The promotions

made under the repealed rules will be taken into account for the purpose of above

ratio."

14. Still further, in its wisdom, the Chief Justice

repealed the 1997 Rules and w.e.f. 25.11.2003, 2003

Rules came to be notified. As per these Rules, Schedule-B,

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dealing with Class-1 Gazetted Officers, prescribed the post

of Superintendent to be filled up as under:

9. Superinte 13 By Selection Graduation Three Rs.7220-

.

ndents. from amongst years 220-

(including Deputy 8100- one leave Superintendents 275- reserve / Revisors in the 10300- Reader) ratio of 4:1 on 340- the basis of 11660 +

merit-cum- S.A. seniority. Rs.400/-

Note.-Roster of

of ratio maintained under the repealed Rules will continue.

rt Explanation.- After promotion of four Dy. Supdts. One

Revisor will be appointed. This cycle will repeat.

15. Noticeably, here three significant changes

came to be incorporated - (i) Selection to the post of

Superintendent was restricted only to the category of

Deputy Superintendent/Revisor, in the ratio of 4:1, (ii)

Senior Assistants and Translators were excluded for

promotion to this post, and (iii) Experience/length of

qualifying service in the feeder cadre was introduced. Of

course, selection was to be on the basis of merit-cum-

seniority.

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16. It is the common case of the parties that with

effect from 3.6.2010, post of Superintendent came to be

re-designated as Section Officer, and the Deputy

.

Superintendent as Superintendent Grade-II. Hence, for the

post of Section Officer, selection in the ratio of 4:1 was to

be carried out from amongst the Superintendents Grade-II

and Revisors.

of

17. It is a matter of record that when

representations/counter representations, filed by both the

Justice, a rt feeder categories, came to be placed before the Chief

Committee of Judges of this court was

constituted to examine the question of inadequate

representation of Superintendents Grade-II. Pursuant

thereto, on 17.5.2011, such Committee made the following

recommendation:

""The Committee considered the representations received from various

categories of the employees on the subject. After having gone through the record and position of Rules, the committee noticed that

earlier the cadre strength of Senior Assistants and Translators was 32 and 8, respectively. Therefore, the ratio of 4:1 was logically fixed between these two cadres for promotion to the post of Section Officer. Now with the cadre strength of Senior Assistants having increased to 40 and such strength of Translators having remained the same, the committee is of the unanimous view that the existing ratio of 4:1

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needs to be revised to 5:1 between the aforesaid categories. Necessary steps to make suitable amendment in the R&P Rules be taken."

.

Let follow up action be taken."

18. Finding favour with such recommendation, the

2003 Rules came to be amended with effect from

14.6.2011 and the figure "4:1" was substituted with that of

"5:1".

of

19. Aggrieved thereof, petitioners made

representation(s), which came to be rejected by the rt Committee in its meeting held on 26.8.2011. The

Committee felt that the recommendation, enhancing the

ratio was made only after considering cases of all the

affected officials. Noticeably, the Committee noticed

stagnation in both the feeder categories, yet it took into

account the cadre strength of Senior Assistants and

Translators, while enhancing the ratio.

20. It is also a matter of record that still further

these Rules came to be amended with effect from

2.6.2014 and the ratio of "5:1" substituted as "7:1". The

relevant amendment, so carried out vide Notification

dated 2.6.2014, reads as under:

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"The figure "5:1" in column No.4 "Mode of Appointment" of item No.9 of Schedule "B" of Class-I (Gazetted), annexed to "The Himachal Pradesh High Court Officers and the Members of Staff (Recruitment, Conditions of Service,

.

Conduct & Appeal) Rules, 2003" shall be

substituted by figure "7:1".

Consequently, "Explanation" of the item No.9 under Column No.4 "Mode of Appointment" of

Schedule "B" of Class-I (Gazetted) annexed to the Rules supra shall be read as under:-

"After promotion of seven Superintendents

of Gr.II one Revisor will be appointed. This cycle will repeat." "

21. rt Petitioners, through proper channel, made

representations and also approached the Court on judicial

side. This Court vide judgment dated 5.12.2014, passed in

CWP No.6501 of 2014, titled as Panne Lal and others v.

High Court of H.P. and others, directed the High Court to

have the matter examined, in the light of the

representations submitted by the petitioners.

22. On the Administrative side, the matter came up

for consideration before a Committee of Judges constituted

by the Chief Justice and the petitioners' representations

came to be considered and rejected on 30.3.2015.

23. It is also a matter of record that 2003 Rules

now stand repealed with the notification of Himachal

Pradesh High Court Officers and the Members of the Staff

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(Recruitment, Conditions of Service, Conduct & Appeal)

Rules, 2015, notified on 3.12.2015. However, insofar as

the relevant rule of promotion is concerned, there is no

.

change and it remains the same.

24. With these facts, we are called upon to

examine the correctness of the decisions taken by the

Committees and the Full Court over a period of time, as

of also the legality of the legislative action in carrying out the

amendment dated 2.6.2014, in the 2003 Rules.

25. rtRules so framed in the year 2003 are framed

by the Chief Justice, in exercise of his power, under Article

229 of the Constitution of India, which reads as under:

"229. Officers and servants and the expenses of High Courts :- (1) Appointments of officers

and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct :

Provided that the Governor of the State may by rule require that in such cases as may

be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after

consultation with the State Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court

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authorised by the Chief Justice to make rules for the purpose :

Provided that the rules made under this clause shall, so far as they relate to salaries,

.

allowances, leave or pensions, require the

approval of the Governor of the State.

(3) The administrative expenses of High Court, including all salaries, allowances and pensions

payable to or in respect of the officers and servants of the Court shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form

of part of that Fund."

26. Undisputedly, the State has not framed any rt other Rules, governing the service conditions of the

employees of the High Court. Therefore, the question,

which arises for consideration, is as to what is the nature

of power, so exercised by the Chief Justice, in framing

these Rules.

27. We notice that provisions of Articles 146(2) and

229 (2) of the Constitution of India are similar.

28. In Supreme Court Employees' Welfare

Association v. Union of India and another, (1989) 4 SCC

187, the apex Court has held the powers exercised by the

Chief Justice of India, under Article 146(2) of the

Constitution of India, to be legislative in nature. The Court

observed that:

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"97. The fact that the power exercised by the Chief Justice of India or the President under Art. 146 (2) is derived directly from the Constitution, and not from a statute, makes no difference to the power of judicial review by a

.

competent court. Any action taken.(or. refusal

to act) on the strength of' power derived directly by constitutional delegation is as much justiciable or reviewable upon the same grounds and to the same extent as in the case

of any statutory instrument. The fundamental question in determining whether the exercise of power by an authority is subject to judicial review is not whether the source of his power is

of the Constitution or a statute, but whether the subject matter under challenge is susceptible to judicial review. Pure questions of facts or questions which cannot be decided without rt recourse to elaborate evidence or matters which are generally regarded as not justiciable such as, for example, those relating to the

conduct of the external affairs or the defence of the nation - are not amenable to judicial review."

"105. Any arbitrary exercise of power by a

public authority, whether or not it is in the nature of subordinate legislation, is liable to be condemned as violative of Article 14. As stated in E. P. Royappa v. State of Tamil Nadu, AIR

1974 SC 555 :

".......... equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and

caprice of an absolute monarch ......." "

"107. The true position thus appears to be that, just as in the case of an administrative action, so also in the case of subordinate legislation (whether made directly under the Constitution or a Statute), its validity is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of

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the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."

29. We notice that the scope of proviso to Article

.

309, Part III of the Constitution of India is also similar.

30. A Five-Judge Bench of the apex Court in B.S.

Yadav and others v. State of Haryana and others, 1980

(Supp) SCC 524, has held the power exercised by the

of Government, under Article 309 of the Constitution of India,

to be legislative in nature.

31. rtWhile taking a similar view, a Two-Judge Bench

of the apex Court in R.L. Bansal and others v. Union of

India and others, 1992 Supp (2) SCC 318, has further held

that the exercise of such power being legislative in

character cannot be struck down merely because the

Court thinks that they are unreasonable and that they can

be struck down only on the ground on which a legislative

measure can be struck down.

32. A Five-Judge Bench of the apex Court in B.S.

Vadera v. Union of India and others, AIR 1969 SC 118, has

held that:

"24. It is also significant to note that the proviso to Article 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act'. The clear and

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unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be 'subject to the provisions of the Constitution shall have

.

effect, 'subject to the provisions of any such

Act'. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any

Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have effect, both prospectively and

of retrospectively. Apart from the limitations, pointed out above, there is none other imposed by the proviso to Article 309, regarding the ambit of the, operations of such rules. In other rt words the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be

enforced, if made by the appropriate authority."

33. In Shri Sitaram Sugar Company Limited and

another v. Union of India and others, (1990) 3 SCC 223,

the apex Court drew the distinction between the power

exercised by the authority being legislative, administrative

or quasi-judicial in nature. Court further observed that:

"37. If a particular function is termed

legislative rather than judicial, practical results may follow as far as the parties are concerned. When the function is treated as legislative, a party affected by the order has no right to notice and hearing, unless, of course, the statute so requires. It being of general application engulfing a wide sweep of powers, applicable to all persons and situations of a broadly identifiable class, the legislative order

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may not be vulnerable to challenge merely by reason of its omission to take into account individual peculiarities and differences amongst those falling within the class."

.

34. A Two-Judge Bench in Union of India and

another v. Cynamide India Ltd. and another, (1987) 2 SCC

720, has held the legislative action, plenary or

subordinate, not to be subject to the Rules of natural

justice unless, of course, law itself specifically provides for

of the same.

35. rt A Five-Judge Bench of the apex Court in E.P.

Royappa v. State of Tamil Nadu and another, (1974) 4 SCC

3, has held that:-

"85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge

as a distinct and separate ground it is really in substance and effect merely an aspect of the second ground based on violation of Arts. 14 and 16. Article 16 embodies the fundamental

guarantee that there shall be equality of opportunity for all citizens in matters relating

to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of

its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Art 14 is the genus while Art. 16 is a species. Article 16 gives effect to the doctrine of equality in all

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matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising

.

principle ? It is a founding faith, to use the

words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all

embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be

of "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic tort arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute

monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is

also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on

valid relevant principles applicable alike to all similarly situate and it must not be guided by

any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reasons for State action,

as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the

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latter comprehends the former. Both are inhibited by Arts. 14 and 16."

36. Most recently in Cellular Operators Association

.

of India and others v. Telecom Regulatory Authority of

India and others, AIR 2016 SC 2336, while reiterating the

principles of law laid down in its earlier decision in State of

Tamil Nadu v. P. Krishnamoorthy, (2006) 4 SCC 517, has

laid down the following parameters for judicial review of

of the subordinate legislation:

rt "There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also

well recognised that a subordinate legislation can be challenged under any of the following grounds:

(a) Lack of legislative competence to make

the subordinate legislation.

(b) Violation of fundamental rights guaranteed under the Constitution of

India.

(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well

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say that the legislature never intended to give authority to make such rules).

The court considering the validity of a subordinate legislation, will have to consider

.

the nature, object and scheme of the enabling

Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly

inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy.

of But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of rt the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity."

37. Hence, the scope of judicial review of the

legislative action by the Chief Justice of this Court is in a

very limited compass. The legislative competence is not

an issue. Hence, the petitioners would have to

demonstrate as to how the exercise of such power is

violative of Part-III of the Constitution of India.

38. There is yet another legal issue which arises for

consideration and that being as to what extent can a Court

exercise its powers in reviewing the decision taken by the

Judges of the High Court in its Full Court meeting.

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39. A three-Judge Bench of the apex Court in High

Court of Judicature of Patna, Through Registrar General v.

Shyam Deo Singh and others, (2014) 4 SCC 773, while

.

dealing with the question of finalization of the Annual

Confidential Reports of the Judicial Officers, in the Full

Court meetings, relying upon its earlier decision in Syed

T.A. Naqshbandi v. State of J&K, (2003) 9 SCC 592, has

of held that:-

"............In the very nature of things it rt would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court

is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by

the Committee/Full Court."

40. While addressing similar question, the apex

Court in High Court of Judicature, Patna v. Shiveshwar

Narayan and another, (2011) 15 SCC 317, has observed

that:-

"13. Lord Hailsham in Chief Constable of the North Wales Police vs. Evans, 1982 3 AllER 141 (HL) made the following statement:

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to

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decide for itself a conclusion which is correct in the eyes of the court."

14. In State of U.P. and others vs. Maharaja Dharamander Prasad Singh and others, 1989 2

.

SCC 505 it was held by this Court that judicial

review is directed, not against the decision, but is confined to the examination of the decision- making process.

15. Recently, Centre for PIL vs Union of India, 2011 4 SCC 1 a three Judge Bench of this Court stated that a difference between judicial review and merit review has to be kept in mind."

of "20. On a careful reading of the judgment of the High Court, we are of the view that the Division Bench failed to keep in mind the rt distinction between judicial review and merit review and, thereby committed a serious error in examining the merits of the decision of the

Full Court."

41. Another legal issue which arises for

consideration is the extent to which this Court can

exercise its powers of judicial review in the case of

amendments, variations, additions, subtractions carried

out by an employer with regard to qualifications, eligibility

criteria and other conditions of service including avenues

of promotion in the relevant Rules from time to time as per

administrative exigencies.

42. A five-Judge Bench of the apex Court in

Ramchandra Shankar Deodhar and others v. The State of

Maharashtra and others, (1974) 1 SCC 317, has reiterated

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its earlier principle that chances of promotion are not

conditions of service. The principle stands reiterated also

in another five-Judge Bench decision of the apex Court in

.

Mohammad Shujat Ali and others v. Union of India and

others, (1975) 3 SCC 76. (See also: Dhole Govind Sahebrao

and others v. Union of India and others, (2015) 6 SCC 727).

43. A five-Judge Bench of apex Court in Ajit Singh

of and others (II) v. State of Punjab and others, (1999) 7 SCC

209, has further held right of an employee to be rt considered for promotion as a fundamental right, which

would not mean that promotion itself is a fundamental

right.

44. It is a settled proposition of law that fixing

limitations and restrictions to the criteria of promotion

exclusively falls within the domain of the State. The apex

Court in P.U. Joshi and others v. Accountant General,

Ahmedabad and others, (2003) 2 SCC 632, has further

observed as under:

"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the

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field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory Tribunals, at any rate, to direct the

.

Government to have a particular method of

recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to

change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of

of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or rt bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or

amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/ posts. There is no

right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for

ensuring or safeguarding rights or benefits already earned, acquired or accrued at a

particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new

rules relating to even an existing service."

45. In Joginder Nath and others v. Union of India

and others, (1975) 3 SCC 459, the apex Court observed

that it would not be possible or practical to measure the

respective merits for the purpose of seniority with

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mathematical precision by a barometer and some formula

doing largest good to the largest number had to be

evolved.

.

46. In Kerala Magistrate (Judicial) Assn. and others

v. State of Kerala and others, (2001) 3 SCC 521, the apex

Court reiterated the principles laid down in V.T. Khanzode

and others v. Reserve Bank of India and another, (1982) 2

of SCC 7, by observing that no scheme governing service

matters can be foolproof and some section or the other of rt employees is bound to feel aggrieved on the score of its

expectations being falsified or remaining to be fulfilled.

Arbitrariness, irrationality, perversity and mala fides will of

course render any scheme unconstitutional but the fact

that the scheme does not satisfy the expectations of every

employee is not evidence of these.

47. The question as to whether for determining the

quota, the strength of the immediate feeder cadre alone is

to be considered for promotion to the next higher post or

not, is no longer res-integra. In Dwaraka Prasad and

others v. Union of India and others, (2003) 6 SCC 535, held

as under:

"16. Fixation of quotas or different avenues and ladders for promotion in favour of various

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categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to policy making field. The relevant considerations in fixing a particular

.

quota for a particular post are various such as

the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the

holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus,

of fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere rt cadre strength of a particular post in feeder cadre cannot be a sole criteria or basis to claim parity in the chances of promotion by various

holders of posts in feeder categories.

17. Normally, where officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre

is maintained proportionately to the sanctioned strength in that post. This, however, cannot be an inviolable rule of strict application in every case, with an absolute equality of arithmetical

exactitude but may vary from case to case depending upon the pattern, structure and

hierarchies in the Departmental set up as well as exigencies and balancing needs of Administration. There are other relevant

considerations, some of which have been mentioned above, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength."

(Emphasis supplied)

48. Significantly, a five-Judge Bench of the apex

Court, in Govind Dattatray Kelkar and others v. Chief ::: Downloaded on - 15/04/2017 20:33:55 :::HCHP ...28...

Controller of Imports and Exports and others, AIR 1967 SC

839, has also observed that:

"16. But, it is said that if the system of rotation

.

was necessary, the Government should have

applied the ratio of 50: 50 and not 75: 25. When the recruitment to certain posts is from different sources, what ratio would be adequate and equitable would depend upon

the circumstances of each case and the requirements and needs of a particular post. Unless the ratio is so unreasonable as to amount to discrimination, it is not possible for

of this Court to strike it down or suggest a different ratio. Nothing has been placed before us to show that the ratio of 3: 1 is so flagrant rt and unreasonable as to compel us to interfere with the order of the Government."

49. On this issue, a two-Judge Bench of the apex

Court in Tamil Nadu Rural Development Engineers

Association v. Secretary to Government Rural

Development Department and others, (2013) 15 SCC 380,

has observed that:

"48. Even otherwise, the fixation of the quota/ratio is the prerogative of the executive.

It is not disputed that the ratio of 6:2:1 has been fixed in the service rules in exercise of the powers of the Governor under the proviso

to Article 309 of the Constitution of India. In the absence of the Appellants placing on the record material to establish that fixation of such a ratio is patently arbitrary, the action of the Government cannot be nullified. Fixation of rota/quota on the basis of qualification is well accepted in service jurisprudence. We, therefore, see no merit in the submissions of

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the Appellants that the ratio of 6:2:1 ought to be replaced with the ratio by 1:1."

50. In this legal backdrop, now we examine the

.

merits of the present case.

51. We notice that while enhancing the ratio from

5:1 to 7:1, all relevant material came to be considered by

the Committee constituted by the Chief Justice. In fact,

petitioners' apprehension of non-consideration of their

of representations came to be met with the Grievance

Committee, having examined the matter, even though not rt required in law, after affording opportunity of hearing to all

concerned. Crucially, the Committee wanted to balance

the equity between different feeder categories. The

Committee not only took into account the hierarchy of the

posts, leading to the appointment of a Section Officer, but

also the entire cadre strength and the promotional

avenues of various sections of employees in the High

Court. This was in the line of Dwaraka Prasad (supra).

52. To examine the numerical strength, we have

culled out an empirical data. A Chart, depicting the

number of posts and the promotional avenues, is as under:

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SECTION OFFICER 18 POSTS

.

SUPERINTENDENTS REVISORS GRADE.II 13 POSTS 3 POSTS

By promotion from Sr.Asstt. 5 years. By promotion

after 5 years.

Sr. Assistants 40+19 = Translators 59 posts 8 posts.

of

(i)90% by promotion from Jr. Asstt/Clerks with 6 years service.

(ii) 10% by limited competitive exam from Jr. Asstts/clerks of the sub. Courts. rt Jr Assistants 40 posts

(i)80% by direct Recruitment

(ii)20% by transfer from amongst Restoers/Book Binder.

Clerks 40 posts + 16 Junior Assistants =56 posts

Restorers 15 posts

Total cadre strength in Ist line = 13+59+40+56+15 = 183

53. Can it be said that while fixing the ratio, on the

basis of the material objectively considered and assessed

by the Committee, the present petitioners have been put

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to a disadvantageous or inequitable position. In our

considered view, no. For demonstrating the same,

comparative Chart, so prepared, by the High Court is on

.

record. We also, in tabulated form, highlight the date on

which some of the petitioners would be promoted,

considering the respective ratios:

Sr. Name/ of Date of Date of Anticipated Anticipate No. the appointment promotion date of d date of

of petitioner as Translator as Revisor promotion as promotion Section as Section Officer in the Officer in ratio of 5:1 the ratio of 7:1

1. Sh. Avnish rt 14.3.2005 19.3.2011 6.4.2016 1.10.2016 Kant Tiwari

2. Sh. Rajiv 20.3.2007 2.1.2013 1.11.2016 1.3.2018 Kumar

3. Sh. 8.7.2008 5.5.2015 1.3.2018 1.8.2019 Sanjeev Kumar Sethi

4. Sh. Yugal 2.9.2009 18.5.2016 1.2.2019 1.2.2021 Kishore

5. Sh. 20.8.2011 1.11.2016 1.5.2020 1.8.2022 Ramesh (Anticipate Chand d)

6. Ms 20.8.2011 1.3.2018 1.6.2021 1.2.2024 Ramninde (Anticipate

r Kaur d)

7. Sh. Yash 20.8.2011 1.2.2019 1.8.2022 1.4.2026 Paul (Anticipate

d)

54. Keeping in view the overall length of service

of the petitioners in the Institution, it cannot be said that

any promotional avenues of the petitioners stand marred.

55. Also, what weighed with the Committee, and

the Chief Justice, was the nature of work and the duties,

which the petitioners and the respondents are either

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required or called upon to discharge. The petitioners, by

the very nature of their duties, are only required to either

translate or revise such work. Neither are they called

.

upon to discharge administrative work nor do they have

any such experience.

56. Comparatively, Superintendent(s) Grade-II, who

are equivalent to the Revisor(s), are being filled up from

of the Senior Assistants having more than six years of

experience and all employees in that stream are called rt upon to discharge and perform various administrative

work and duties.

57. Noticeably, there is no prescribed criteria of

experience/length of service for appointment to the post of

Translator. Also, the cadre of Translators is much smaller.

They do not face stagnation, as compared to other

categories, for their strength being large.

58. It is a settled principle of law that quota is fixed

in order to equi-balance each category so that each one of

them gets equal opportunity of promotion. It is also

settled principle of law that in larger interest of

administration, decision of the employer, who is best

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suited to fix the ratio and decide the percentage of posts

in the promotional cadre should not be trifled with.

59. As a model employer and a mother institution,

.

the High Court is duty bound to provide promotional

avenues to all of its employees. This is more so to

increase efficiency in public service. The impugned action,

may only curtail, but not mar, the petitioners' right of

of promotion, which action is only in public interest and

cannot be said to be grossly unreasonable or arbitrary,

India.

rt hence, violative of Article 14 or 16 of the Constitution of

This we say so in view of the limited scope of

judicial review of the legislative action. "Judicial Review"

and not "Merit Review" as laid down in the High Court of

Judicature Patna (supra) is what is required to be done.

60. With the change in the ratio, it cannot be said

that for all times to come, right of the petitioners for

promotion to the post in question stands obliterated or

grossly affected. This can clearly be inferred from the

Chart reproduced (supra). With the vacancy being

available, their cases would be considered in accordance

with law. Action is in the line of view taken in

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Ramachandra Shankar Deodhar (supra) and Mohammad

Shujat Ali (Supra).

61. Noticeably, petitioners never laid any challenge

.

to the amendment carried out in the year 2011, when the

ratio came to be changed from 4:1 to 5:1.

62. In the instant case, doctrine of reasonable/

legitimate expectation of the petitioners to be always

of governed by the Rules, prevalent at the time of their

induction in service, merits rejection, in view of the law

63. rt laid down in P.U. Joshi (supra).

Petitioners have laid much reliance on the

following observations, made by the apex Court in

Shakuntala Sharma (supra):-

"12. ..........If Senior Assistants and Translators are to be provided with promotional avenue, more posts of Deputy Superintendents and Revisors which are above the posts of Senior

Assistants and Translators respectively, should be created, and first the Senior Assistants and

Translators have to be promoted to the said posts.........."

64. Noticeably, such observation came to be made

in the backdrop of the explanation to the main Rule, as it

existed in the Rules, which now stands repealed. We are

dealing with the Rules, whereby categories of Translators

are no longer in the feeder cadre for the post, in question,

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i.e. Section Officer. Also, amendment to the Rules was not

carried out for the purpose of providing opportunities of

promotion to Superintendent Grade-II. Also, subsequent

.

decisions of the apex Court have specifically dealt with the

issue otherwise. Since much vehemence is laid on the

said decision, we are of the considered view that, it would

be only fallacious to contend that the decision of the

of Committee is contrary to the principle of law laid down by

the apex Court, wherein the Court was dealing with the rt issue of promotion amongst the Revisors and Senior

Assistants, and not the Revisors and Superintendents

Grade-II. Also, in the said decision question of ratio/quota

was never in issue, which came to be introduced only with

the enactment of 2000 Rules, and the Rules under

consideration by the apex Court came to be repealed.

65. We notice that the recommendation made by

the Grievance Committee came to be accepted by the

Chief Justice, who, in exercise of his powers under Article

229 of the Constitution of India, on 2.6.2014 got notified

the amendment carried out in the Rules. The role of the

committee is only recommendatory in nature. It is not

that every recommendation made by the Committee is to

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be always accepted by the Chief Justice or for that matter

the High Court. Constitution mandates the Chief Justice to

deliberate on such recommendations and independently

.

take action. In the instant case, we find that before taking

such decision, the matter came to be placed before the

Full Court and only after due deliberation and consultation

by the Judges of this Court, the Chief Justice was pleased

of to carry out the necessary amendment in the rules, which

was actually in the interest of the Institution and its

employees.

66. rtThe scope of judicial review, with regard to the

decisions so taken by the Full Court and the Chief Justice

in exercise of his legislative functions is limited in nature,

which we have already discussed. [(Supreme Court

Employees' Welfare Association (supra); High Court of

Judicature of Patna (supra); and Syed T.A. Naqshbandi

(supra)].

67. While fixing the ratio of promotion to the next

post, it is not necessary for the employer to only consider

the immediate strength of the feeder cadre. This alone

can never be the criteria for fixing the quota. Personal

interest of an employee has to make way for the larger

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good of the institution. Decision taken by the Committee,

the Full Court and the Chief Justice, is not based on the

myopic view, which the petitioners want the Court to take.

.

It is not that the cadre strength of the immediate feeder

category alone is required to be considered for fixing the

ratio for promotion to the next higher post, when there is

more than one feeder category. The mandate of law laid

of down by the apex Court in Dwaraka Prasad (supra) is

unambiguously clear to such effect. Keeping in view the rt entire attending circumstances, in our considered view,

the Chief Justice, by taking a holistic view, decided to

change the ratio from "5:1" to "7:1". Objectivity in taking

such decision is demonstratively evident.

68. Yet another grievance made out by the

petitioners that decision for carrying out amendment

never came to be communicated, is legally untenable, in

view of the law laid down in Sitaram Sugar Company

Limited (supra).

69. We notice that challenge is not laid on the

ground of malafides - legal or factual. It is also not the

petitioners' established case that the legislative power is

exercised only to accord undue favour to a particular

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individual. Hence, there cannot be any question of bias

against the petitioners. The exercise of such power is

neither ultra vires nor in bad faith.

.

70. It is also contended that the decision of the

Committee is self-contradictory. For highlighting such fact

our attention is invited to the minutes of the meeting

dated 30.4.2014, wherein on one hand, the representation

of of the private respondents came to be rejected, yet the

ratio came to be altered from 5:1 to 7:1. We do not find rt such fact to be true. Private respondents were seeking

redetermination of the ratio on a much higher scale.

71. Petitioners have failed to even prima facie

show, muchless establish or demonstrate that in fixing the

quota/ ratio of 7:1, the action of the respondent is

unreasonably perverse or an act of malafide, manipulation

and is indefensively arbitrary.

72. In a passing reference, we may only observe

that the petitioners always stand accommodated by the

High Court. Their condition of qualifying test, in terms of

the Recruitment and Promotion Rules, came to be

repeatedly relaxed.

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73. Our attention is invited to the minutes of the

meeting of the Committee of Registrars dated 25.10.1990.

This is to contend that the High Court itself had desired

.

that for promotion to the post of Superintendent/ Reader,

feeder categories be so provided and that all equally

placed persons should get equal opportunity. Noticeably,

even then the ratio between the two immediate feeder

of categories came to be determined as 4:1.

74. Reliance upon the decision rendered by a rt Division Bench of the High Court of Delhi, in CWP

No.W.P.(C) 8026/2011, titled as J.P. Gupta and others v.

High Court of Delhi and others, is also misconceived. In

fact, it does not lay down the proposition that for the

purposes of fixing quota, only the cadre strength of the

immediate feeder category alone is to be taken into

account. In fact, in the very same decision, the Court

refused to interfere with the decision taken by the Full

Court, which demonstrably was found not to shock the

conscience of the Court. In any case, Dwaraka Prasad

(supra) is the law on the issue.

75. Reliance on V.B. Badami and others v. State of

Mysore and others, (1976) 2 SCC 901, is totally

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misconceived, it does not deal with any of the propositions

urged before us. The issue before the Court was only with

regard to rota-quota, inter se the two groups of the feeder

.

category.

Hence, for all the aforesaid reasons, we find no

merit in the present petition, which is accordingly

dismissed. All interim orders stand vacated. Pending

of application(s), if any, also stand disposed of.

rt ( Sanjay Karol ), Judge.

( Ajay Mohan Goel ), June 3, 2016(sd) Judge.

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