ARCHANA MEHTA v. HONble THE CHIEF JUSTICE, HIGH COURT OF JUDICATURE AT ALLAHABAD
2001-09-06
G.P.MATHUR, U.S.TRIPATHI
body2001
DigiLaw.ai
G. P. MATHUR, J. ( 1 ) THIS special appeal is directed against the judgment and order dated 24. 5. 2000 of a learned single Judge by which the writ petition filed by the appellant was dismissed. ( 2 ) AN advertisement was issued for making appointment of Routine Grade Clerks on the establishment of the Allahabad High Court. The appellant appeared in the written examination held for making the selection but she failed to qualify for the interview. Thereafter, she filed the writ petition giving rise to the present appeal praying that the result of the written examination be quashed and a writ of mandamus be issued directing the respondents to comply with 20 per cent reservation for women candidates as per Government order dated 26. 2. 1999. The writ petition filed by the appellant was heard along with 4 other writ petitions which had been filed by those candidates who had not qualified in the written examination and several pleas were raised. The learned single Judge repelled all the contentions of the writ petitioners and dismissed the writ petitions by the judgment and order dated 24. 5. 2001. ( 3 ) SRI U. N. Sharma, learned counsel for the appellant, has raised only one submission in the present appeal. Learned counsel has submitted that an order was issued by the U. P. Government on 26. 2. 1999, wherein it was provided that in any direct recruitment. 20 per cent posts will be reserved for women and as in the recruitment made for Routine Grade Clerks no reservation has been provided for women, the entire recruitment process is vitiated and is liable to be quashed. Since the contention is based upon the Government order, it is necessary to take notice of provisions. The G. O. dated 26. 2. 1999 has been issued by Secretary to U. P. Government and is in Hindi. Learned counsel has supplied an English translation of the same and the relevant part thereof reads as under : "subject : Reservation for women in the matter of direct recruitment on posts and public services under the State. Sir, i am directed to state that a decision has been taken by the Government for providing 20% reservation for women in the matter of direct recruitment on posts and public services under the state on the following terms and conditions :. . . . . . . .
Sir, i am directed to state that a decision has been taken by the Government for providing 20% reservation for women in the matter of direct recruitment on posts and public services under the state on the following terms and conditions :. . . . . . . . . . " ( 4 ) SRI U. N. Sharma has submitted that in the advertisement issued for making recruitment on the post of Routine Grade Clerks, it was clearly provided that the reservation will be as per the government orders and, therefore, 20 per cent of the vacancies ought to have been reserved for women candidates. The relevant part of the advertisement on which reliance is placed reads as under : "reservation : as per Government orders the category/categories of candidates. " ( 5 ) THE contention is that since in the advertisement, it was mentioned that the reservation will be in accordance with the Government orders, the order issued by the State Government of 26. 2. 1999, wherein it was mentioned that 20 per cent of the posts shall be reserved for women candidates became automatically applicable and, consequently, the selection made for Routine grade Clerks wherein no reservation for women has been provided is illegal. ( 6 ) THE recruitment and appointment on the post of Routine Grade Clerks in the establishment of the High Court is made in accordance with the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter referred to as the Rules) which have been made by the Chief Justice of the High Court of Judicature at Allahabad in exercise of powers conferred by Clause (2) of Article 229 of the Constitution. Rules 2 (n), 6, 23, 23a and 45 of the Rules, which are relevant for the controversy in hand are being reproduced below : 2 (n) appointing Authority means the Chief Justice of the Court or such other Judge or Officer as he may direct. 6. Appointing Authority.--If the appointing authority is other than the Chief Justice, the exercise of his power shall always be subject to any general or special order of the Chief Justice. 23.
6. Appointing Authority.--If the appointing authority is other than the Chief Justice, the exercise of his power shall always be subject to any general or special order of the Chief Justice. 23. Reservation for Scheduled Castes, etc.--Reservation for recruitment to the various categories of posts in the establishment in favour of the Scheduled Castes and Scheduled Tribes and from among disabled (Military) personnel and dependants of freedom fighters shall be in accordance with the orders issued by the Chief Justice from time to time, having due regard to the orders issued by the Governor from time to time on the subject. 23a. Reservation of sportsmen.--One per cent of vacancies in all class III posts on the establishment of the Court shall be reserved at the stage of direct recruitment for such skilled players and sportsmen as have represented in National or International games on behalf of any state in India or Indi as a whole at least for two years and in international competitions for one year or who have represented their Universities at least for three years in Inter Universities. Tournaments organised by the Inter Universities Sports Board or who have represented their schools in International Sports Meets organised by the All India Schools Sports Board in badminton, Basket Ball, Cricket, Football, Hockey, Table Tennis, Volley Ball, Tennis, Weight lifting, Wrestling, Boxing, Judo and Rifle Shooting. 45 General Rules.--Notwithstanding anything contained in these Rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter. ( 7 ) PART IV of the Rules deals with sources and method of recruitment to class III posts and Rule 8 therein provides that recruitment on the post of Routine Grade Clerks shall be through competitive examination conducted by the appointing authority or in any manner so directed by the Chief Justice. ( 8 ) THE order issued by the State Government on 26. 2. 1999, relied upon by the learned counsel, clearly mentions that it is meant for "rajyadheen Loksevaon Aur Padon", which means it is for "posts and public services under the State". Clause (1) of Article 229 of the Constitution provides that 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.
Clause (1) of Article 229 of the Constitution provides that 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. Clause (2) of the same Article provides that subject to provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice of the Court or some other Judge or officer of the court authorised by the Chief Justice to make Rules for the purpose. This Article clearly shows that the appointment of officers and servants of the High Court shall be made by the Chief justice or his nominee. The condition of service of officers and servants of the High Court shall be such as may be prescribed by the Rules made by the Chief Justice or by some other Judge or officer authorised by him to make Rules for the purpose. The post of Routine Grade Clerks in the establishment of the High Court, therefore, cannot be said to be a "post or public service" under the State. The proviso to Article 309 of the Constitution lays down that it shall be competent for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make Rules regulating the recruitment and the conditions of services of persons appointed to such services and until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, any Rule so made shall have effect subject to the provisions of any such Act. Article 229, therefore, shows that the officers and servants of a High Court are a distinct class and the Governor is not empowered to make Rules regulating the recruitment and conditions of service of such class of persons. Therefore, the order issued by the State Government on 26. 2. 1999, which specifically deals with "recruitment on posts and public services under the State" can have no application to a recruitment being made in accordance with the Allahabad High Court Officers and Staff (Conditions of Service and Conduct] Rules, 1976.
Therefore, the order issued by the State Government on 26. 2. 1999, which specifically deals with "recruitment on posts and public services under the State" can have no application to a recruitment being made in accordance with the Allahabad High Court Officers and Staff (Conditions of Service and Conduct] Rules, 1976. We are fortified in our view by the following observations in State of U. P. and Anr. v. C. L. Agarwal, AIR 1997 SC 1431, in paragraph 12 of the reports, which is quoted herein below : "12 Article 229 does not state that posts in the High Court are to be created by the Governor, it does not even deal with the creation of posts. Clause (1) thereof empowers the Chief Justice to make the appointments of officers and servants of a High Court. Clause (2) empowers the Chief justice to make Rules prescribing the conditions of service of officers and servants of a High court with the proviso that so far as these Rules relate to salaries, allowances, leave or pensions, they require the Governors approval. Clause (3) requires the administrative expenses of the High court to be charged upon the Consolidated Fund of the State. " ( 9 ) PART VII of the Rules deals with the reservation and qualifications and Rule 23 therein specifically provides for reservation in favour of Scheduled Castes. Scheduled Tribes, disabled military personnel and dependents of freedom fighter. Rule 23a provides reservation in favour of the skilled players and sportsmen. The Rules do not provide for reservation of posts in favour of women candidates. The advertisement issued wherein it was mentioned that the reservation will be "as per Government orders the category/ categories of candidates" only means that the percentage of reservation for the categories of persons mentioned in Rules 23 and 23a shall be made in accordance with the Government orders. The advertisement issued for making recruitment for the post of Routine Grade Clerk in the establishment of the High Court has to be read consistent with the Rules and if any part thereof is inconsistent with the Rules, the same cannot be given effect to and will be inoperative.
The advertisement issued for making recruitment for the post of Routine Grade Clerk in the establishment of the High Court has to be read consistent with the Rules and if any part thereof is inconsistent with the Rules, the same cannot be given effect to and will be inoperative. Since the Rules do not provide for reservation for women, it is not possible to enlarge the meaning of the expression "as per Government orders the category/categories of candidates" so as to include even those for whom the Rules do not contemplate any reservation. ( 10 ) IT is noteworthy that the advertisement was issued by the Registrar General of the High Court and he is the appointing authority for the post in question. Rule 6 specifically provides that if the appointing authority is other than the Chief Justice, the exercise of his power shall always be subject to any general or special order of the Chief Justice. The power which is to be exercised by the Registrar General in making recruitment and appointment is, therefore, circumscribed by the general or special order of the Chief Justice and he cannot act contrary to the same. There is no general or special order of the Chief Justice providing for reservation for women. In fact, the rules made by the Chief Justice specifically deals with the subject of reservation, and make provision for Scheduled Castes, Scheduled Tribes, disabled military personnel and dependants of freedom fighters. They make no provision for reserving any post in favour of women. Therefore, the Registrar General has absolutely no authority to give benefit of reservation to women while making any appointment. ( 11 ) THE provisions of the Rules were considered by a Division Bench of this Court in High Court of Judicature at Allahabad v. Raj Kumar and Ors. , 1997 AWC (Supp) 489, and in paragraph 6 of the reports, it was observed as follows : "rule 23, like Article 16 (4) of the Constitution, is an enabling provision giving discretion to honble Chief Justice to provide for reservations. It is for the Honble Chief Justice to make or not to make reservations under Rule 23. Reservation is a matter, which has to be decided on the basis of several factors, such as, nature of the job, requirement of maintenance of efficiency, and inadequacy of representation of backward class of citizens in the service.
It is for the Honble Chief Justice to make or not to make reservations under Rule 23. Reservation is a matter, which has to be decided on the basis of several factors, such as, nature of the job, requirement of maintenance of efficiency, and inadequacy of representation of backward class of citizens in the service. Reservation cannot be claimed and granted as a matter of course. The powers of the Honble Chief Justice, being purely discretionary, no mandamus can be issued, directing his lordship to pass an order making reservation in favour of any caste or class of persons. The learned single Judge was, therefore, not justified requiring the Honble Chief Justice to make order under Rule 23 for reservation in the matter of appointments to class I and class II posts in establishment of the High Court. " we are in respectful agreement with the above quoted view. ( 12 ) THE Rules being silent about reservation in favour of women, the claim made by the appellant that 20 per cent of the posts be reserved for women in the selection made for the appointment on the post of Routine Grade Clerks in the establishment of the High Court has no basis and cannot be accepted. ( 13 ) THE special appeal, therefore, lacks merit and is hereby dismissed at the admission stage. .