# RENU & ORS v. DISTRICT & SESSIONS JUDGE, TIS HAZARI & ANR

- **Citation:** [2014] 2 S.C.R. 537
- **Court:** Supreme Court of India
- **Decided:** 2014-02-12
- **Case number:** Civil Appeal No. 979 of 2014
- **Bench:** Dr. B.S. Chauhan, J. Chelameswar, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/renu-ors-v-district-sessions-judge-tis-hazari-anr-29854
- **Pages:** 30

## Headnote

CONSTITUTION OF /NOIA, 1950:
A
B
c
Art. 32 - Writ of quo warranto - Appointment to public
office - Held: Before a person can effectively claim a writ of
quo warranto, he has to satisfy the court that the office in
question is a public office and is held by a usurper without
legal authority, and that inevitably would lead to an enquiry 0
as to whether the appointment of the alleged usurper has
been made in accordance with law or not -- For issuance of
writ of quo warranto, the court has to satisfy that the
appointment is contrary to the statutory rules and the person
holding the post has no right to hold it.
E·
Arts. 14 and 16 - Public employment - Held:
Transparency in public· employment is an important
requirement -- Advertisement must specify the number of
posts available for selection and recruitment -- The
qualifications and other eligibility criteria for such posts and
F
schedule of recruitment process should be published with
certainty and clarity as also the rules/procedure under which
the selection is likely to be undertaken -- Any appointment
even on temporary or ad hoc basis without inviting
applications is in violation of Arts. 14 and 16 and even if the
G
names of candidates are requisitioned from Employment
Exchange, in addition thereto, it is mandatory on the part of
employer to invite applications from all eligible candidates
from open market.
537
H
538
SUPREME ·coURT REPORTS
[2014] 2 S.C.R.
A
Arts'. 229 and 235 rlw Arts. 14 and 16 - Appointments of
staff in High Courts and courts subordinate thereto - Held:
Appointments in judicial institutions must be made on the
touchstone of equality of opportunity enshrined in Art. 14 rlw
Art. 16 and under no circumstance any appointment which is
B illegal should be saved -- Employment whether of Class IV,
Class Ill, Class II or any other class in High Courts or courts
subordinate to it, fall, within the definition of "public
employment" - Such an employment, therefore, has to be
made under rules and orders of competent authority - Power
C of appointment granted to the Chief Justice under Art. 229 (1)
is subject to Art. 16 (1), which guarantees equality of
opportunity for all citizens in matters relating to employment
- As a safeguard, the Constitution has also recognized that
in the internal administration of High Court, no. other power,
except the Chief Justice should have domain - In order to
D enable a judicial intervention, it would require only a very
strong and convincing reason to show that this power has
been abused.
Art.229 - Appointment to posts in High Court and courts
E subordinate thereto - Held: High Court is a constitutional and
an autonomous authority subordinate to none - Therefore,
nobody can undermine the constitutional authority of High
Court and, as such, Supreme Court can only advise the High
Court that if its rules are not in consonance with the philosophy
of the Constitution, the same may be modified and no
F appointment in contravention thereof should be made - It is
necessary that there is strict compliance with appropriate
Rules and the employer is bound to adhere to the norms of
Arts. 14 and 16 before making any recruitment - In order to
control the menance of adhocism methodology to make
G appointments in High Courts and courts subordinate thereto
suggested and directions given in this regard -- High Courts
may also examine the desirability of centralized selection of
candidates for subordinate courts, and to formulate the rules
to carry out the purpose - Constitutional law - Independence
H of judiciary.
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 539
HAZARI & ANR.
In the instant appeal arising out of a dispute
A
regarding continuity of employees appointed on Class IV
posts in courts subordinate to Delhi High Court, on ad
hoc basis for 89 days and the term extended from time
to time, the Court took cognizance of perpetual
complaints regarding irregularities and illegalities in
recruitment of staff in subordinate courts throughout the
B
·count

## Text

_Characters 0–39,645 of 56,457. This is a partial read: ask again with offset=39645 for what follows._

[2014] 2 S.C.R. 537
RENU & ORS.
v.
DISTRICT & SESSIONS JUDGE, TIS HAZARI & ANR.
(Civil Appeal No. 979 of 2014)
FEBRUARY 12, 2014
[DR. B.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
CONSTITUTION OF /NOIA, 1950:
A
B
c
Art. 32 - Writ of quo warranto - Appointment to public
office - Held: Before a person can effectively claim a writ of
quo warranto, he has to satisfy the court that the office in
question is a public office and is held by a usurper without
legal authority, and that inevitably would lead to an enquiry 0
as to whether the appointment of the alleged usurper has
been made in accordance with law or not -- For issuance of
writ of quo warranto, the court has to satisfy that the
appointment is contrary to the statutory rules and the person
holding the post has no right to hold it.
E·
Arts. 14 and 16 - Public employment - Held:
Transparency in public· employment is an important
requirement -- Advertisement must specify the number of
posts available for selection and recruitment -- The
qualifications and other eligibility criteria for such posts and
F
schedule of recruitment process should be published with
certainty and clarity as also the rules/procedure under which
the selection is likely to be undertaken -- Any appointment
even on temporary or ad hoc basis without inviting
applications is in violation of Arts. 14 and 16 and even if the
G
names of candidates are requisitioned from Employment
Exchange, in addition thereto, it is mandatory on the part of
employer to invite applications from all eligible candidates
from open market.
537
H
538
SUPREME ·coURT REPORTS
[2014] 2 S.C.R.
A
Arts'. 229 and 235 rlw Arts. 14 and 16 - Appointments of
staff in High Courts and courts subordinate thereto - Held:
Appointments in judicial institutions must be made on the
touchstone of equality of opportunity enshrined in Art. 14 rlw
Art. 16 and under no circumstance any appointment which is
B illegal should be saved -- Employment whether of Class IV,
Class Ill, Class II or any other class in High Courts or courts
subordinate to it, fall, within the definition of "public
employment" - Such an employment, therefore, has to be
made under rules and orders of competent authority - Power
C of appointment granted to the Chief Justice under Art. 229 (1)
is subject to Art. 16 (1), which guarantees equality of
opportunity for all citizens in matters relating to employment
- As a safeguard, the Constitution has also recognized that
in the internal administration of High Court, no. other power,
except the Chief Justice should have domain - In order to
D enable a judicial intervention, it would require only a very
strong and convincing reason to show that this power has
been abused.
Art.229 - Appointment to posts in High Court and courts
E subordinate thereto - Held: High Court is a constitutional and
an autonomous authority subordinate to none - Therefore,
nobody can undermine the constitutional authority of High
Court and, as such, Supreme Court can only advise the High
Court that if its rules are not in consonance with the philosophy
of the Constitution, the same may be modified and no
F appointment in contravention thereof should be made - It is
necessary that there is strict compliance with appropriate
Rules and the employer is bound to adhere to the norms of
Arts. 14 and 16 before making any recruitment - In order to
control the menance of adhocism methodology to make
G appointments in High Courts and courts subordinate thereto
suggested and directions given in this regard -- High Courts
may also examine the desirability of centralized selection of
candidates for subordinate courts, and to formulate the rules
to carry out the purpose - Constitutional law - Independence
H of judiciary.
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 539
HAZARI & ANR.
In the instant appeal arising out of a dispute
A
regarding continuity of employees appointed on Class IV
posts in courts subordinate to Delhi High Court, on ad
hoc basis for 89 days and the term extended from time
to time, the Court took cognizance of perpetual
complaints regarding irregularities and illegalities in
recruitment of staff in subordinate courts throughout the
B
·country and in order to ensure the feasibility of
centralizing these recruitments, issued notice to
Registrar Generals of all the High Courts to file response
mainly on two points: (i) why the recruitment be not c
centralized; and (ii) why the relevant rules dealing with
service conditions of the entire staff be not amended to
. make them as transferable posts. All the States and High
Courts submitted their response and all of them were
duly. represented in the Court.
Disposing of the appeal, the Court
HELD: 1.1 The procedure of quo warranto gives the
_Judiciary a weapon to control the Executive from making
appointment to public office against law and to protect a
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
D
E
F
an enquiry as to whether the appointment of the alleged
G
usurper has been made in accordance with law or not.
For issuance of writ of quo warranto, the court has to
satisfy that the appointment is contrary to the statutory
rules and the person holding the post has no right to hold
it. [para 15] [555-B-E]
H
540
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
The University of Mysore & Anr. v. G.D. Govinda Rao &
Anr., 1964 SCR 575 = AIR 1965 SC 491; Shri Kumar Padma
Prasad v. Union of India & Ors., ~IR 1992 (2) SCR 109 =
1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr.,
2001 (3) Suppl. SCR 191 = AIR 2001 SC 3435; The Mor
B Modern Co-operative Transport Society Ltd. v. Financial
Commissioner and Secretary to Govt., Haryana & Anr., 2002
( 1 ) Suppl. SCR 87 =AIR 2002 SC,2513; Arun Singh v. State
of Bihar & Ors., 2006 (2 ) SCR 1058 =AIR 2006 SC 1413;
Hari Bansh Lal v. Sahodar Prasad,Mahto & Ors., 2010 (10)
c SCR 561 = AIR 2010 SC 3515; and Central Electricity
Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1
sec 161- relied on.
1.2 Another important requirement of public
appointment is that of transparency. Therefore, the
D advertisement must specify the number of posts available
for selection and recruitment. The qualifications and other
eligibility criteria for such posts should be explicitly
provided and the schedule of rec'ruitment process should
be published with certain'ty and clarity. The
E advertisement should also specify the rules under which
the selection is to be made and' in absence of the rules,
the procedure under which the 'selection is likely to be
undertaken. This is necessary to prevent arbitrariness
and to avoid change of criteria of selection after the
F selection process is con:imenced, thereby unjustly
benefiting someone at the cost of others. The decisions
of this Court have prescribed the
1 limitations while making
appointment against public posts in terms of Arts. 14 and
16 of the Constitution. What has1 been deprecated by this
G Court time and again is "backdoor appointments or
appointment de hors the rules·~. [para 16-17] [555-G-H;
556-A-C]
State of U.P. & Ors. v. U.P. State Law Officers Association
H & Ors. 1994 (1) SCR 348 =AIR 1994 SC 1554; Som Raj &
'
.
RENU & ORS. v. DISTRICT & SESSIONS JUDGE,
·541
TIS HAZARI & ANR.
Ors. v. State of Haryana & Ors. 1990 ( 1 ) SCR 535 =AIR
A
1990 SC 1176 - relied on.
1.3 Art. 14 of the Constitution provides for equality
of opportunity. Any appointment made in violation of
mandate of Arts. 14 and 16 of the Constitution is not only
B
irregular but also illegal and cannot be sustained. [para
7-8] [550-C, F-G]
l.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu 2007
(1) SCR 706 = AIR 2007 SC 861; Delhi Development
Horticulture Employees' Union v. Delhi Administration, Delhi c
& Ors. 1992 (1) SCR 565 = AIR 1992 SC 789; State of
Haryana & Ors. v. Piara Singh & Ors. etc. etc. 1992 (3) SCR
826 =AIR 1992 SC 2130; Prabhat Kumar Sharma & Ors. v.
State of UP. & Ors., 1996 (3) Suppl. SCR 424 =AIR 1996
SC 2638; J.A.S. Inter College, Khurja, UP. & Ors. v. State of D
UP. & Ors., 1996 (3) Suppl. SCR 96 =AIR 1996 SC 3420;
M.P. Housing Board & Anr. v. Manoj Shrivastava 2006 (2)
SCR 537 =AIR 2006 SC 3499; M.P. State Agro Industries
Development Corporation Ltd. & Anr. v. S. C. Pandey 2006
(2) SCR 648 = (2006) 2 sec 716; and State of Madhya
E
Pradesh & Ors. v. Ku. Sandhya Tomar&Anr. 2012 (11) SCR
839 = JT 2013 (9) SC 139 - relied on.
1.4 Any appointment even on temporary or~ad hoc
basis without inviting application is in violation of Arts. 14
and 16 and even if the names of candidates are
F
requisitioned from Employment Exchange, in addition
thereto, it is mandatory on the part of the employer to invite
applications from all eligible candidates from open market
as merely calling the names from the Employment
Exchange does not meet the requirement of the said
G
Articles. The principles to be adopted in the matter of public
appointments have been formulated by this Court in
Nanuram Yadav's case. [para 9 and 12] [551-D-E; 552-G]
M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav
& Ors. 2007 (10) SCR 307 = (2007) 8 SCC 264; Secretary,
H
542
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A State of Karnataka & Ors. v. Umadevi & Ors. 2006 (3) SCR
953 = AIR 2006 SC 1806; Excise Superintendent
Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara
Rao & Ors. 1996 (5) Suppl. SCR 73 = (1996) 6 SCC 216;
Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors.
B 1997 (5) Suppl. SCR 604 =AIR 1998 SC 331; and Kishore
K. Pati v. Distt. Inspector of Schools, Midnapur & Ors., (2000)
9 SCC 405; Suresh Kumar & Ors. v. State of Haryana & Ors.,
(2003) 10 SCC 276, Union Public Service Commission v.
Girish Jayanti Lal Vaghela & Ors .. 2006 (1) SCR 1006 =AIR
c 2006 SC 1165; Union of India & Ors. v. N. Hargopa/ & Ors.
1987 (2) SCR 911 =AIR 1987 SC 1227; State of Orissa &
Anr. v. Mamata Mohanty 2011 (2) SCR 704 = (2011) 3 SCC
436 - relied on.
1.5 Appointments in judicial institutions must be
D made on the touchstone of equality of opportunity
enshrined in Art. 14 read with Art. 16 of the Constitution
of India, 1950 and under, no circumstance any
appointment which is illegal should be saved. [para 4]
[549-A-B]
E
1.6 In making the appointments or regulating the
other service conditions of the staff of the High Court, the
Chief Justice exercises an administrative power with
constitutional backing. This power has been entrusted to
F the safe custody of the Chief Justice in order to ensure
the independence of the Judiciary, which is one of the
vital organs of State Government and whose authority is
to be maintained. The discretion exercised by the Chief
Justice cannot be open to challenge, except on well
G known grounds, that is to say, when the exercise of
discretion is discriminatory oi:- mala fide, or the like(s).
Thus, the power of appointment granted to the Chief
Justice under Art. 229 (1) is subject to Art. 16 (1), which
guarantees equality of opportunity for all citizens in
H matters relating to employment. 'Opportunity' as used in
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 543
HAZARI & ANR.
this Article means chance of employment and what it A
guaranteed is that this opportunity of employment would
be equally available to all. [para 19-20] [557-E-H]
1. 7 Article 235 of the Constitution provides for power
of the High Court to exercise complete administrative
8
control over the Subordinate Courts. This control,
extends to all functionaries attached to the Subordinate
Courts including the ministerial staff and servants in the
establishment of the Subordinate Courts. Such control is
exclusive in nature, comprehensive in extent and
C
effective in operation. [para 22] [558-C-D, G]
The State of West Bengal & Anr. v. Nripendra Nath
Bagchi 1966 SCR 771 :: AIR 1966 SC 447; Shri Baradakanta
Mishra v. Registrar of Orissa High Court & Anr. 197 4 (2) SCR
282 = AIR 1974 SC 710; Yoginath D. Bagde v. State of D.
Maharashtra & Anr., 1999 (2) Suppl. SCR 490 =AIR 1999
SCC 3734; Subedar Singh & Ors. v. District Judge, Mirzapur
& Anr., AIR 2001 SC 201; High Court of Judicature for
Rajasthan v. P.P. Singh & Anr., 2003 (1) SCR 593 = AIR
2003 SC 1029; and Registrar General, High Court of E
Judicature at Madras v. R. Perachi & Ors. 2011 (12) SCR 661
= AIR 2012 SC 232; M. Gurumoorthy v. The Accountant
General, Assam and Nagaland & Ors. 1971 (0) Suppl. SCR
420 = AIR 1971 SC 1850; H.C. Puttaswamy & Ors. v. The
Hon'ble Chief Justice of Kamataka High Court, Bangalore &
F
Ors. 1990 (2) Suppl. SCR 552 =AIR 1991 SC 295; State of
Assam v. Bhubhan Chandra Datta & Anr., 1975 (3) SCR 854
=AIR 1975 SC 889; Binod Kumar Gupta & Ors. v. Ram
Ashray Mahoto & Ors. AIR 2005 SC 2103 - relied on.
1.8 Employment whether of Class IV, Class Ill, Class
G
II or any other class in the High Court or courts
subordinate to it fall within the definition of "public
employment". Such an employment, therefore, has to be
made under rules and under orders of the competent
authority. Appointments should be made giving
H
544
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A adherence to the provisions of Arts. 14 and 16 of the
Constitution and/or such Rules as made by the
legislature. Appointment can.not be made without
advertisement in the newspapers• inviting applications for
the posts as that would lead to lack of transparency and
B violation of the provisions of Art. 16 of the ConstitUtion.
c
The Chief Justice cannot make any appointment in
contravention of the Statutory Rules, which have to be ·
in consonance with the scheme of the Constitution. [para
26, 27, 29 and 30] [561-F; 562-C, G; 563-8-C]
Pradyat Kumar Bose v. The Hon'ble Chief Justice of
Calcutta High Court 1955 SCR 1331 = AIR 1956 SC 285;
and Chief Justice of Andhra Pradesh & Anr. v. L. V.A.
Dikshitulu & Ors., 1979 (1) SCR 26 =AIR 1979 SC 193; State
of West Bengal & Ors.· v. Debasi$h Mukherjee & Ors. 2011
D (13) SCR 1077 =AIR 2011 SC 3667; State of UP.& Ors. v.
C.L. Agrawal & Anr. 1997 (1) Suppl. SCR 1 =AIR 1997 SC
2431- referred to.
1.9 The date of retirement 6f every employee is well
E known in advance and therefore, the number of
vacancies likely to occur in near future in a particular
cadre is always known to the •employer. Therefore, the
exercise to fill up the vacancies at the earliest must start
in advance to ensure that the selected person may join
F immediately after availability of the post, and there may
be no occasion to appoint any person on ad-hoc basis
for the reason that the problem of inducting the daily
labourers who are ensured c)f .. .e regular appointment
subsequently has to be avoided and a fair procedure
G must be adopted giving equal, opportunity to everyone.
[para 31] [563-F-G]
2. The High Court is a constitutional and an
autonomous authority subordinate to none. Therefore,
nobody can undermine the constitutional authority of the
H High Court and, therefore, the purpose to hear this case
RENU & ORS. v. DISTRICT & SESSIONS JUDGE,
545
TIS HAZARI & ANR.
is only to advise the High Court that if its rules are not in
A
consonance with the philosophy of the Constitution the
same may be modified and no appointment in
contravention thereof should be made. It is necessary that
there is strict compliance with appropriate Rules and the
employer is bound to adhere to the norms of Arts. 14 and
B
16 of the Constitution before making any recruitment. In
order to control the menace of ad hocism, methodology
to fill the vacancies in High Courts and courts
subordinate thereto suggested and directions given in
this regard. The High Courts may also examine the c
desirability of centralized selection of candidates for
subordinate courts, and to formulate the rules to carry out
the purpose. [para 34-35] [564-E-G; 565-G-H; 566-A, C]
Case Law Reference:
D
2007 (1) SCR 706
relied on
Para 7
1992 (1) SCR 565
relied on
Para 8
1992 (3) SCR 826
relied on
Para 8
1996 (3) Suppl. SCR 424 relied on
Para 8
E
1996 (3) Suppl. SCR 96
relied on
Para 8
2006 (2) SCR 537
relied on
Para 8
2006 (2) SCR 648
relied on
Para 8
F
2012 (11) SCR 839
relied on
Para 8
1996 (5) Suppl. SCR 73
relied on
para 9
1987 (2) SCR 911
relied on
Para 9
G
1997 (5) Suppl. SCR 604 relied on
para 9
c2000) 9 sec 405
relied on
para 9
c2003) 1 o sec 216
relied on
para 10
H
546
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
2006 (1) SCR 1006
relied on
para 11
2007 (10) SCR 307
relied on
para 12
2006 (3) SCR 953
relied on
para 13
8
2011 (2) SCR 704
relied on
para 14
1964 SCR 575
relied on
para 15
1992 (2) SCR 109
relied on
para 15
2001 (3) Suppl. SCR, 191 relied on
para 15
c
2002 (1) Suppl. SCR 87
relied on
para 15
2006 (2) SCR 1058
rel.ied on
para 15
2010 (10) SCR 561
relied on
para 15
D
(2014) 1 sec 161
relied on
para 15
1994 (1) SCR 348
relied on
Para 17
1990 (1) SCR 535
relied on
para 18
E
1966 SCR 771
relied on
Para 22
197 4 (2) SCR 282
relied on
Para 22
1999 (2) Suppl. SCR 490 relied on
Para 22
F
AIR 2001 SC 201
relied on
Para 22
2003 (1) SCR 593
relied on
Para 22
2011 (12) SCR 661
relied on
Para 22
1971 Suppl. SCR 420
relied on
Para 23
G
1990 (2) Suppl. SCR 552 relied on
Para 25
1975 (3) SCR 854
relied on
Para 25
AIR 2005 SC 2103
relied on
Para 26
H
1955 SCR 1331
referred to
para27
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 547
HAZARI & ANR.
1979 (1) SCR 26
2011 (13) SCR 1077
1997 (1) Suppl. SCR 1
referred to
referred to
referred to
para 27
para 28
para 28
A
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 979
8
of 2014.
From the judgment and order dated 05.09.2011 of the
High Court of Delhi at N. Delhi in LPA No. 726 of 2011.
A. Mariarputham, A.G., P.P. Malhotra, ASG, P.S.
C
Narasimha (AC), Brijender Chahar, K. Radhakrishnan, Arvind
Kumar Sharma, Saurabh Mishra, Manita Varma (for D.S.
Mahra), Anil Katiyar, B. Balaji, R. Rakesh Sharma, S. Anand
Sathiyaseelan, A. Selvin Raja, Sibo Shankar Mishra, Sridhar
Potaraju, Gaichanpou Gangmei, Arjun Singh, Annam D.N. Rao,
D
Neelam Jain, A. Venkatesh, Sudipto Sircar, Vaishali R, V.N.
Raghupathy, Aruna Mathur, Yusuf (for Arputham, Aruna & Co.),
Ambhoj Kumar Sinha, Ashok Mathur, C.D. Singh, Sunny
Choudhary, Shareya, Sharmila Upadhyay, T.G. Narayanan Nair,
K.N. Madhusoodhanan, G.S. Chatterjee, Ashok K. Srivastava,
E
Aniruddha P. Mayee, Charudatta Mahindrakar, P.I. Jose, Alok
K. Prasad, Vishwanath Bahuguna for the· appearing parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. The matter initially related to
F
the appointment of Class IV employees in the courts
subordinate to Delhi High Court as the dispute arose about the
continuity of the employees appointed on ad-hoc basis for 89
days which stood extended for the same period after same
interval from time to time. The matter reached the Delhi High
G
Court and ultimately before this Court. This court vide order
dated 10.5.2012 took up the matter in a larger perspective
taking cognizance of perpetual complaints regarding
irregularities and illegalities in the recruitments of staff in the
subordinate courts throughout the country and in order to ensure
H
548
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A the feasibility of centralising these recruitments and to make
them transparent and transferable. This Court suo motu issued
notice to Registrar Generals of all tl:ie High Courts and to the
States for filing their response mainly on two points viz. (i) why
the recruitment be not centralized; and (ii) why the relevant rules
B dealing with service conditions df the entire staff be not
amended to make them as transferable posts. All the States
and High Courts have submitted their response and all of them
are duly represented in the court.
2. This Court had appointed Shri P.S. Narasimha, learned
C senior counsel as Amicus Curiae to assist the court. The matter
was heard on 28.1.2014 and delibetations took place at length
wherein all the learned counsel appearing for the States as well
as for the High Courts suggested. that the matter should be
dealt with in a larger perspective i.e. also for appointments of
1 D employees in the High Court and courts subordinate to the High
Court which must include Class IV posts also. A large number
of instances have been pointed out on the basis of the
information received under the Ri~ht to Information Act, 2005
of cases not only of irregularity but of favouritism also in making
E such appointments. It has been ,suggested by the learned
counsel appearing in the matter that this court has a duty not
only to check illegality, irregularity, corruption, nepotism and
favouritism in judicial institutions, but also to provide guidelines
to prevent the menace of back-door entries of employees who
F subsequently are ordered to be r~gularised.
3. It was in view of the above that this Court vide its earlier
orders had asked learned counsel, appearing for the States as
well as the High Courts to examine the records of their
G respective States/Courts and report as to whether a proper and
fair procedure had been adopted for evaluating the candidates.
A mixed response was received from different counsel on
these issues.
4. In view of the aforesaid submissions, we do not think it
H
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 549
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
necessary to peruse the record in order to gauge the amount
A
of irregularities or illegalities. Our basic concern is that the
appointments in judicial institutions must be made on the
touchstone of equality of opportunity enshrined in Article 14
read with Article 16 of the Constitution of India, 1950
(hereinafter referred to as the ·constitution') and under no
B
circumstance any appointment which is illegal should be saved
for the reason that the grievance of the people at large is that
complete darkness in the light house has to be removed. The
judiciary which raises a finger towards actions of every other
wing of the society cannot afford to have this kind of c
accusations against itself.
5. Rule of law is the basic feature of the Constitution.
There was a time when REX was LEX. We now seek to say
LEX is REX. It is axiomatic that no authority is above law and
no man is above law. Article 13(2) of the Constitution provides
D
that no law can be enacted which runs contrary to the
fundamental rights guaranteed under Part Ill of the Constitution.
The object of such a provision is to ensure that instruments
emanating from any source of law, permanent or temporary,
legislative or judicial or any other source, pay homage to the
E
constitutional provisions relating to fundamental rights. Thus, the
main objective of Article 13 is to secure the paramountcy of the
Constitution especially with regard to fundamental rights.
6. The aforesaid provision is in consonance with the legal
F
principle of "Rule of Law" and they remind us of the famous
words of the English jurist, Henry de Bracton - "The King is
under no man but under God and the Law". No one is above
law. The dictum - "Be you ever so high, the law is above you"
is applicable to all, irrespective of his status, religion, caste,
G
creed, sex or culture. The Constitution is the supreme law. All
the institutions, be it legislature, executive or judiciary, being
created under the Constitution, cannot ignore it.
The exercise of powers by an authority cannot be unguided
or unbridled as the Constitution prescribes the limitations for
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[2014] 2 S.C.R.
A each and every authority and therefore, no one, howsoever high
he may be, has a right to exercise the power beyond the
purpose for which the same has been conferred on him. Thus,
the powers have to be exercised within the framework of the
Constitution and legislative provisions, otherwise it would be
B an exercise of power in violation of the basic features of the
Constitution i.e. Pait Ill dealing with the fundamental rights which
also prescribes the limitations.
7. Article 14 of the Constitution provides for equality of
C opportunity. It forms the cornerstone,of our Constitution.
D
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In l.R. Coelho (dead) by L.Rs. v: State of Tamil Nadu, AIR
2007 SC 861, the doctrine of basic features has been
explained by this Court as under:
"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 Ill."
8. As Article 14 is an integral part of our system, each and
F every state action is to be tested on the touchstone of equality.
Any appointment made in violation of mandate of Articles 14
and 16 of the Constitution is not only irregular but also illegal
and cannot be sustained in view of the judgments rendered by
this Court in Delhi Development Horticulture Employees'
G Union v. Delhi Administration, Delhi,& Ors., AIR 1992 SC 789;
State of Haryana & Ors. v. Piara Singh & Ors. etc.etc., AIR
1992 SC 2130; Prabhat Kumar Sharma & Ors. v. State of
U.P. & Ors., AIR 1996 SC 2638; J.A.s. Inter College, Khurja,
U.P. & Ors. v. State of U.P. & Ors., AIR 1996 SC 3420; M.P.
H Housing Board & Anr. v. Manoj Shrivastava, Al R 2006 SC
RENU & ORS. v. DISTRICT & SESSIONS JUDGE,
551
TIS HAZARI & ANf\. [DR. B.S. CHAUHAN, J.]
3499; M.P. State Agro Industries Development Corporation
A
Ltd. & Anr. v. S. C. Pandey, (2006) 2 SCC 716; and State of
Madhya Pradesh & Ors. v. Ku. Sandhya Tomar & Anr., JT
2013 (9) SC 139.
B
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
C
Constitution. However, due to the possibility of non sponsoring
of names by the employment exchange, this Court held that any
appointment even on temporarypr ad hoc basis without inviting
application is in violation of the said provisions of the
Constitution and even if the names of candidates are
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 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. Zita Mansavi Shikshak Sangh
& Ors., AIR 1998 SC 331; and Kishore K. Pati v. Distt.
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Inspector of Schools, Midnapur & Ors., (2000) 9 SCC 405).
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1 O. In Suresh Kumar & Ors. v. State of Haryana & Ors.,
(2003) 10 SCC 276, this Court upheld the judgment of the
Punjab & Haryana High Court wherein 1600 appointments
made in the Police Department without advertisement stood
quashed though the Punjab Police Rules, 1934 did not provide
B for such a course. The High Court reached the conclusion that
process of selection stood vitiatettl because there was no
advertisement and due publicity for inviting applications from
the eligible candidates at large.
c
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11. In Union Public Service Commission v. Girish Jayanti
Lal Vaghela & Ors., AIR 2006 SC 1165, this Court held:
" ........ The appointment to any 'post under the State can
only be made after a proper advertisement has been
made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially
constituted committee whos'e members are fair and
impartial, through a written examination or interview or
some other rational criteria for: judging the inter se merit
of candidates who have applied in response to the
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
G Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8
sec 264 as under:
H
"(1) The appointments made without following the
appropriate procedure under the rules/government
circulars and without advertisement or inviting applications
RENU & ORS. v. ·DISTRICT & SESSIONS JUDGE, TIS 553
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
from the open market would amount to breach of Articles
A .
14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory
provisions of the statute and in particular, ignoring the
B
minimum educational qualification and other essential
qualification would be wholly illegal. Such illegality cannot
be cured by taking recourse to regularisation.
(4) Those who come by back-door should go through that c
door.
(5) No regularisation is permissible in exercise of the
statutory power conferred under Article 162 of the
Constitution of India if the appointments have been made
in contravention of the statutory rules.
D
(6) The court should not exercise its jurisdiction on
misplaced sympathy.
(7) If the mischief played is so widespread and all
E
pervasive, affecting the result, so as to make it difficult
to pick out the persons who have been unlawfully
benefited or wrongfully deprived of their selection, it will
neither be possible nor necessary to issue individual
show-cause notice to each selectee. The only way out
F
would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in
fraud and delivered in deceit, individual innocence has
no place and the entire selection has to be set aside."
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
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H
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SUPREME COURT REPORTS
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A a nullity. "Adherence to Articles 14 and 16 of the Constitution
is a must in the process of public, employment". The Court
further rejected the prayer that ad hoc appointees working for
long be considered for regularisation as such a course only
encourages the State to flout its own rules and would confer
8
undue benefits on some at the cost of many waiting to
compete.
14. In State of Orissa & Anr. v. Mamata Mohanty, (2011)
3 SCC 436, this Court dealt with the constitutional principle of
providing equality of opportunity to all. which mandatorily requires
C that vacancy must be notified in advance meaning thereby that
information of the recruitment must be disseminated in a
reasonable manner in public domain ensuring maximum
participation of all eligible candidates; thereby the right of equal
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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 1 t5 requires that every such
appointment be made by an open advertisement as to
enable all eligible persons to' compete on merit."
15. Where any such appointments are made, they can be
challenged in the court of law. The quo warranto proceeding
H affords a judicial remedy by which any person, who holds an
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 555
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
independent substantive public office or franchise or liberty, is
A
called upon to show by what right he holds the said office,
franchise or liberty, so that his title to it may be duly determined,
and in case the finding is that the holder of the office has no
title, he would be ousted from that office by judicial order. In
other words, the procedure of quo warranto gives the Judiciary
B
a weapon to control the Executive from making appointment
to public office against law and to protect a citizen from being
deprived of public office to which he has a right. These
proceedings also tend to protect the public from usurpers of
public office who might be allowed to continue either with the c
connivance of the Executive or by reason of its apathy. It will,
thus, be seen that before a person can effectively claim a writ
of quo warranto, he has to satisfy the Court that the office in
question is a public office and is held by a usurper without legal
authority, and that inevitably would lead to an enquiry as to
D
whether the appointment of the alleged usurper has been made
in accordance with law or not. For issuance of writ of quo
warranto, the Court has to satisfy that the appointment is contrary
to the statutory rules and the person holding the post has no
right to hold it. (Vide: The University of Mysore & Anr. v. G.D.
E
Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma
Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R.
Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The
Mor Modem Co-operative Transport Society Ltd. v. Financial
Commissioner and Secretary to Govt., Haryana & Anr., AIR
2002 SC 2513; Arun Singh v. State ofBihar& Ors., AIR 2006
F
SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.,
AIR 2010 SC 3515; and Central Electricity Supply Utility of
Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161).
16. Another important requirement of public appointment
G
is that of transparency. Therefore, the advertisement must
specify the number of posts available for selection and
recruitment. The qualifications and other eligibility criteria for
such posts should be explicitly provided and the schedule of
recruitment process should be published with certainty and
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[2014] 2 S.C.R.
A clarity. The advertisement should also specify the rules under
which the selection is to be made and in absence of the rules,
the procedure under which the selection is likely to be
undertaken. This is necessary to prevent arbitrariness and to
avoid change of criteria of selection after the selection process
B is commenced, thereby unjustly benefiting someone at the cost
of others.
17. Thus, the aforesaid decisions are an authority on
prescribing the limitations while making appointment against
C public posts in terms of Articles 14 and 16 of the Constitution.
What has been deprecated by this Court time and again is
"backdoor appointments or appointment de hors the rules".
In State of UP. & Ors. v. U.P. State Law Officers
Association & Ors., AIR 1994 SC 1664, this Court while dealing
D with the back-door entries in public appointment observed as
under:
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"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 ga by the same door .... From
the inception some engagements and contracts may be
the product of the operation bf the spoils system. There
need be no legal anxiety to save them."
(Emphasis added)
18. In Som Raj & Ors. v. State of Haryana & Ors., AIR
1990 SC 1176, this Court held as under:
RENU & ORS. v. DISTRICT & SESSIONS JUDGE, TIS 557
HAZARI & ANR. [DR. B.S. CHAUHAN, J.]
"The absence of arbitrary power is the first postulate of A
rule of law upon which our whole constitutional edifice is
based. In a system governed by Rule of Law, discretion
when conferred upon an executive authority must be
confined within clearly defined limits. The rules provide
the guidance for exercise of the discretion in making
B
appointment from out of selection lists which was
prepared on the basis of the performance and position
obtained at the selection. The appointing authority is to
make appointment in the order of gradation, subject to
any other relevant rules like, rotation or reservation, if any,
C
or any other valid and binding rules or instructions
having force of law. If the discretion is exercised without
any principle or without any rule, it is a situation
amounting to the antithesis of Rule of Law. Discretion
means sound discretion guided by law or governed by
known principles of rules, not by whim or fancy or caprice
D
of the authority. "
19. In making the appointments or regulating the other
service conditions of the staff of the High Court, the Chief
Justice exercises an administrative pqwer with constitutional
E
backing. This power has been entrusted to the safe custody of
the Chief Justice in order to ensure the independence of the
Judiciary, which is one of the vital organs of a Government and
whose authority is to be maintained. The discretion exercised
by the Chief Justice cannot be open to challenge, except on
F
well known grounds, that is to say, when the exercise of
discretion is discriminatory or mala fide, or the like(s).
20. Even under the Constitution, the power of appointment
granted to the Chief Justice under Article 229 (1) is subject to
G
Article 16 (1 ), which guarantees equality of opportunity for all
citizens in matters relating to employment. 'Opportunity' as used
in this Article means chance of employment and what it
guaranteed is that this opportunity of employment would be
equally available to all.
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21. As a safeguard, the Constitution has also recognized
that in the internal administration of the High Court, no other
power, except the Chief Justice shou
1ld 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
B been abused.