Laishram Randhoni Debi v. Gauhati High Court — 1999 DIGILAW 53 (GAU)

This writ application has been filed by an employee of the High Court at Imphal Bench. The petitioner is now working as Superintendent (Library) at Imphal Bench of the Gauhati High Court. The petitioner passed B A in the year 1975 and she obtained degree in Bachelor of Library and Information Science in the year 1981 from Pune University. An advertisement was made by the respondents for filling up of the post of Assistant Librarian from amongst the trained candidates. After written test held on 23.11.81, followed by oral interview the petitioner was selected by the High Court by an order dated 16.12.81. Pursuant to the selection and appointment the petitioner joined as Assistant Librarian on 23.12.81 and she was confirmed in that post vide order dated 22.4.1983 with effect from 23.12.1982. 2. I have heard learned counsel of all the parties. 3. The service of both Gazetted and non-Gazetted staff of the Gauhati High Court are governed by the Gauhati High Court Rules, 1967 (herein after referred to as the Rules). The authority after taking into account the increase of work load in the Library of the Imphal Bench requested the Chief Justice for creation of a post of Librarian-cum-Research Officer for the Imphal Bench as was available in the other outlying Benches as well as in the Principal Seat and that letter is Annexure A3. After due consideration, the post of Librarian-cum Research Officer was created for the. Imphal Bench by letter dated 6.1.92. At that time the qualification prescribed by the Rules for the post of Librarian-cum-Research Officer was only a Degree with Diploma in Library Science. This qualification later on was substituted by adding Degree in Law with Degree or Diploma in Library Science with suitable experience by Correction Slip No. 106 which was notified on 2.5.92. Curiously enough, before the aforesaid correction slip was issued and after the creation of the post an advertisement was made on 28.3.92 by the Registrar of Imphal Bench inviting applicants having Degree in Law with a Diploma or Degree in Library Science with suitable experience. It is not understood how this could be done inasmuch as the qualification was laid down in the Rules and the Rules were not amended at that point of time. Be that as it may, as no candidate was available with the qualification prescribed in the advertisement no interview was held. It is not understood how this could be done inasmuch as the qualification was laid down in the Rules and the Rules were not amended at that point of time. Be that as it may, as no candidate was available with the qualification prescribed in the advertisement no interview was held. The petitioner was promoted as Superintendent (Library) by an order dated 15.6.1992. All along the petitioner has been working in the Library and it is claimed that she is technically qualified person in the Library of the Imphal Bench. As the post was not filled up in spite of creation, the petitioner submitted a representation on 3.8.1993 to the Chief , Justice of the Gauhati High Court for consideration of her promotion to the said post. Another notification was issued on 1.9.94 in the same line to the earlier advertisement but no interview could be held as no candidate with the newly prescribed qualification was available and as such the post remains unfilled despite two advertisements. Another representation dated 1.10.94 was submitted by the petitioner for consideration of her case for promotion to the post and even a praye was made to exercise the discretionary power of the Chief Justice as provided in the Rules 63A of the Rules. This representation was also not disposed of. 4. It may be stated herein that one Shri Narayan Sankar Sen Gupta, an Assistant Librarian of Agartala Bench of this Court was promoted and appointed as Librarian-cum-Research Officer of Agartala Bench by an order dated 28.7.1988 and another Smti Ph Chakhesang, Assistant Librarian of Kohirna Bench, was also promoted to the post 6f Librarian-cum-Research Officer. In view of this position in the two outlying Benches the petitioner was all along having the hope that her case also shall be considered for promotion. The aforesaid two promotions show that the High Court treated the post of Librarian-cum-Research Officer as promotion post from the employees working in the Library, in the mean time the petitioner has completed the LLB course from Manipur University in 1995-96. At present the petitioner is on over all in-charge of the High Court Library of Imphal Bench. The petitioner has been working in the Library of the Court for period of more than-17 years and now, even in accordance with the amended Rule the petitioner has the requisite qualification. At present the petitioner is on over all in-charge of the High Court Library of Imphal Bench. The petitioner has been working in the Library of the Court for period of more than-17 years and now, even in accordance with the amended Rule the petitioner has the requisite qualification. Further representations by the petitioner have been submitted on 16.2.96 and 9.5.97 for consideration of her promotion to the said post in the light of promotion made a{ Agartala and Kohima. 5. Thereafter again the post was advertised for the third time by a notification dated 5.6.98. The petitioner who is now 45 years of age stands excluded from being an eligible candidate and she has lost all her chances of promotion. That advertisement is at Annexure A/15. The qualification in the advertisement says that the candidate should not be more than 30 years and less than 18 years of age as on 31.7.98. The upper age limit may be relaxed upto 5 years in the case of ST/SC and Govt employees. Even if such relaxation is given the petitioner will not get any chance to apply for the reasons indicated above. The petitioner is aged about 45 years now. It is the legality and validity of the said advertisement which is challenged in this writ petition with prayer to quash the same and to issue a Mandamus directing the respondents to consider the case of the petitioner for promotion to the post of Librarian-cum-Research Officer. 6. It may be stated herein that intervenor respondent No. 3 filed an application in pursuant to the advertisement issued but as there was a stay order from this Court, this application was not entertained. 7. Learned counsel for the petitioner submits that the service rules of the High Court is silent as to whether the post is a promotion post or a direct recruit post. That question is to be decided/determined from the practice followed in the outlying Benches of the Gauhati High Court. Even in the Principal Seat the post was filled up from amongst the Assistant-Librarian and others by selection. That question is to be decided/determined from the practice followed in the outlying Benches of the Gauhati High Court. Even in the Principal Seat the post was filled up from amongst the Assistant-Librarian and others by selection. There is no justification to have a different yardstick and criteria for Imphal Bench alone and when the post was created in 6.1.1992, it was the bounden duty of the authority to consider the case of the promotion for the petitioner and failure to do so was arbitrary and illegal and this was done only for the purpose of denying the petitioner the right of consideration of her promotion to the post. There is no rational and lawful reasons for the respondents to readvertise the post of the direct recruitment without considering the case of the petitioner for promotion. Her right to be considered for promotion has been violated. 8. An affidavit -in-opposition has been filed on behalf of the respondent No. 2. In paragraph 5 of the affidavit-in-opposition, it is stated that in the year 1993 the representations were considered and one Shri MC Tiken Singh was appointed on ad hoc basis for a period of six months. Later on the period was extended till 1.8.94, but thereafter, it was not extended. With regard to the filling up of the post in the Principal Seat it is stated that there is no instance of filling up of the said post in the Principal Seat by promotion from the Assistant Librarian, the post is filled up from eligible candidates through selection test/interviews after observing all formalities. That does not mean that the post at the Principal Seat has been filled up by way of direct recruit. Rather it is the consistent practice that the post of Librarian-cum-Research Officer is virtually treated as a promotion post. No doubt selection is made amongst the similarly situated persons in the office. A categorical statement was made that the post was filled up by way of promotion and that has not been specifically denied. The other point which is high lighted in the affidavit-in-opposition is that the Rule 63 and 63A give wide powers to the Chief Justice in this matter and in view of that the decision of the Chief Justice cannot be challenged. Let, us have a look at Rule 63 and 63A which are quoted below : “63. The other point which is high lighted in the affidavit-in-opposition is that the Rule 63 and 63A give wide powers to the Chief Justice in this matter and in view of that the decision of the Chief Justice cannot be challenged. Let, us have a look at Rule 63 and 63A which are quoted below : “63. Residuary powers - Nothing in these Rules shall be deemed to affect the power of the Chief Justice to make such orders, from time to time as he may deem fit in regard to all matters incidental or ancillary to these Rules not specifically provided for hearing or in regard to matters as have not been sufficiently provided for: Provided that if any such order relates to salaries, allowances, leave or pensions of members of the High Court service, the same shall be made with the approval of the Governor of the State of Assam. 63A. The Chief Justice shall have powers to relax age or qualification for appointment to the service of the High Court in appropriate cases according to his discretion." The said power can not be used by the Chief Justice in an arbitrary or capricious manner and he can not have one practice or procedure for one outlying Bench and another norm for another outlying Bench. The Chief Justice is also bound by the Rules and he can not make certain provisions applicable to one outlying Bench and another provision for another outlying Bench. There must be uniform procedure for all the Benches. It is also not understood how beneficial it will be to. the institution to have a fresh recruit when experienced hand with the requisite qualification is available in the institution. Further if the prayer for promotion is not considered it will bring frustration amongst the employees. As a , model employer one must always provide adequate scope for promotion in the particular line of the employee. This post is transferable. The employees of the Gauhati High Court belong to one institution and they can be transferred by the Chief Justice from one place to another as provided in Rule 17A of the Rules. No doubt Rule 12 gives the power to the Hon'ble Chief Justice to leave unfilled or hold in abeyance any vacant post in a Bench. 9. The employees of the Gauhati High Court belong to one institution and they can be transferred by the Chief Justice from one place to another as provided in Rule 17A of the Rules. No doubt Rule 12 gives the power to the Hon'ble Chief Justice to leave unfilled or hold in abeyance any vacant post in a Bench. 9. The Supreme Court considered the power of the Chief Justice under Article 229 of the Constitution in (1971) 2 SCC 137 (N. Gurumoorthy vs. Accountant General); (1989) 4 SCC 187 (Supreme Court Employee's Welfare Association vs. Union of India) and (1997) 5 SCC 1 (State of UP vs. CL Agarwal). No doubt that the Chief Justice has the over all power to deal with his employees in the manner as provided by the Rules, but the discretion can not be according the length of the foot of the Chancellor. It can not be allowed that one Chief Justice will take one view and another will set it at naught. This may amount to unreasonable exercise of power and may even amount to discrimination. 10. The learned Advocate General in support of his contention places reliance in (1986) 2 GLR 330 (Assam Judicial Service Association & another vs. Chief Justice Gauhati High Court & others). There the appointment of one Shri BP Saikia as Registrar (Inspection and Enquiry) of the Gauhati High Court was challenged by the Assam Judicial Service Association. That post was created vide notification dated 9.7.84 and it was sought to be added to the Assam Judicial Service's posts and it was stated is the notification creating the post that necessary amendment in the Assam Judicial Service will be made in due course. But at the time of appointment of Shri BP Saikia, the Assam Judicial Service Rules did not include the post of Registrar (Inspection and Enquiry) and in exercise of the power under Article 229 of the Constitution the Chief Justice appointed Shri Saikia the aforesaid post though he was not a member of the Assam Judicial Service as the Judicial Service Rule was not amended and the post was included in the High Court service in Gazetted rank. Rule 6 (a) of the Rules provides as follows: “6. Rule 6 (a) of the Rules provides as follows: “6. Appointing authority (a) All appointments to the posts in the service of the High Court Gazetted rank and all promotions shall be made by the Hon'ble Chief Justice in his absolute discretion." 11. On the basis of the said Rule, it is sought to be urged by the learned Advocate General that the words used 'absolute discretion' mean that on the action of the Chief Justice no challenge can be made. Regarding exercise of discretion by the authority the law now has taken a shape and in (1996) 6 SCC 530 (Common Cause, a registered society vs. Union of India & others), the Supreme Court has laid down the law which is quoted below : ".... Such a discretionary power which is capable of being exercised arbitrarily is not permitted by Article 14 of the Constitution of India. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness." 12. The use of the word 'absolute' in Rule 6 (a) will not give such a long handle to the Chief Justice to do anything and everything according to his pleasure by setting at naught the rules and the principles. 13. A case has been cited by the learned Advocate General reported in (1997) 3 SCC 59 (Dr. K. Ramulu & another vs. Dr. S. Suryaprakash Rao & others) wherein it is stated that an authority is entitled to take a decision not to fill up the existing vacancies as on the relevant date. There is no quarrel about the proposition of law. But what is important in this case is that in exercise of the power to issue advertisement the right of the petitioner to be considered for promotion has been violated. The well established practice and procedure have been violated and all the future chances of promotion in that line of the petitioner have been wiped out. The petitioner has the right to be considered for promotion. There is no valid reason to fill up the post by direct recruitment. The well established practice and procedure have been violated and all the future chances of promotion in that line of the petitioner have been wiped out. The petitioner has the right to be considered for promotion. There is no valid reason to fill up the post by direct recruitment. No material was placed to show that by application of mind such a decision was taken for the benefit of the establishment. No record was produced before me to show that a conscious decision was taken after due deliberation. By a stroke of pen a discretionary power cannot be exercised. I specifically asked the learned Advocate General what will be the benefit/improvement in the institution by direct recruit. He failed to give a convincing reply. A new hand rather may create problem. It is always better to rely on an experienced hand instead of having a man without proper background. 14. In that view of the matter, this writ petition is allowed. Annexure A/15 advertisement dated 5.6.98 shall stand quashed and the petitioner, shall be considered for promotion along with other similarly situated persons at Imphal Bench. 15. With these observations and directions, this writ petition is disposed of.