Research › Search › Judgment

Bombay High Court · body

2006 DIGILAW 1517 (BOM)

SHAMRAO SHRIPAT TAMGADE v. STATE OF MAHARASHTRA

2006-09-22

D.K.DESHMUKH, S.J.VAZIFDAR, S.RADHAKRISHNAN

body2006
ORAL JUDGMENT Dr. S. RADHAKRISHNAN, J. :- The petitioner- Shamrao Shripat ade (Writ Petition No. 214 of 1993, after passing the S.S.c. Examination in was initially appointed as an English Section Writer in the Court of the District Judge, Chandrapur, on June 18, 1960. He was promoted as a Clerk after in the Mofussil Judiciary. In 1978, he was temporarily promoted as a Senior Clerk for some time and was again reverted as a Junior Clerk. On passing Lower Standard Departmental Examination in 1972, he joined the Nangabad Bench of the High Court in 1981. He worked as Assistant Superintendent from December 12, 1983, up to December 1, 1986. He was appointed as the Superintendent on and from September 1, 1987 and as Senior Superintendent on and from March 16, 1990. By this petition, he is seeking promotions in the reserved category. 2. The petitioner - Dashrath Aba Khabade, (in Writ Petition No. 215 of 3) obtained his graduation (B.A.) in 1964, postgraduation (M.A.) in 1969 and passed the Lower Standard Departmental Examination and the High Standard artmental Examination in 1971. He was appointed in the Mofussil Judiciary June 26, 1962. It is his case that on and from February 1, 1981, on attaining of years, he was exempted from appearing for the examination of the Mofussil Judictiary. He was appointed as an Assistant Superintendent, on the establishment the Aurangabad Bench from August 24, 1981 and he was promoted as a Superintendent on and from October 24, 1986. He also seeks promotion in the reserved category. 3. The petitioner - Annasaheb Govindrao Randive (Writ Petition No. 216 1993) belongs to the reserved category of Scheduled Caste. He is an ex-Serviceman. He was appointed as Junior Clerk in the District Court, Latur on January, 1969, at Ahmedpur and thereafter, has been transferred time to various places. At present, the petitioner is working in the District Court Latur. He seeks promotion to the post of Assistant Superintendent, in the reserved category. 4. The petitioner - Nivrutti Vithalrao Kamble (Writ Petition No. 217 of ) joined as a Clerk in the District Court, Parbhani on October 8, 1981. By . gned order (Exhibit F page 39), the Learned District Judge, Parbhani ondent No.4) rejected the Application of the present petitioner for promotion to the post of Assistant Superintendent in the reserved category. 4. The petitioner - Nivrutti Vithalrao Kamble (Writ Petition No. 217 of ) joined as a Clerk in the District Court, Parbhani on October 8, 1981. By . gned order (Exhibit F page 39), the Learned District Judge, Parbhani ondent No.4) rejected the Application of the present petitioner for promotion to the post of Assistant Superintendent in the reserved category. The petitioner belongs to Mahar Community, is a Scheduled Caste and therefor prayed for quashing and setting aside the directions issued by respondent dated April 26, 1988. Additionally, petitioner has prayed for necessary order directions to respondent No.4 to promote the petitioner to the post of Assi Superintendent in the reserved category. 5. The above Writ Petitions 214, 215, 216 and 217 of 1993 have transferred from Aurangabad Bench to Bombay High Court, for final hearing. 6. Writ Petitions 214, 215 and 217 of 1993 filed at Aurangabad earlier disposed of by Division Bench on 8th June, 1992, which held the petitioners were entitled to the reliefs claimed as per the policy of reserve The Registrar of the High Court filed review petition for the review of the Division Bench judgment, and finally those review petitions were hearing Bombay by a Division Bench in September, 1992. The Court, after a de reasoning recalled the Division Bench judgment dated 8th June, 1992, declaration as non-est and also directed that the writ petitions be heard afresh. Aggri thereby, a Special Leave Petition was filed in the Supreme Court, wherein I was granted, and later in Civil Appeal No. 5333 of 1993, by its judgment order dated 11 the September 2002, the Supreme Court found no infirmity is judgment reviewing and recalling the earlier judgment. The Registry therefore directed to place the papers before the Honble Chief Justice for directions as to hearing of the said writ petitions. Thereafter, on the direction the Honble Chief Justice, this Full Bench was constituted to he abovementioned petitions. 7. Mr. Rupwate appeared for the petitioner in Writ Petition No.2 1993. Mr. Vikram Pai appeared for the petitioner in Writ Petition No.2 1993. The petitioners in Writ Petition Nos. 215 and 216 of 1993, appeared person and adopted the arguments of Mr. Rupwate and Mr. Pai. Mr. Sawant, Govt. Pleader appeared for the respondents in the above Petitions. 8. It was contended by Mr. Mr. Vikram Pai appeared for the petitioner in Writ Petition No.2 1993. The petitioners in Writ Petition Nos. 215 and 216 of 1993, appeared person and adopted the arguments of Mr. Rupwate and Mr. Pai. Mr. Sawant, Govt. Pleader appeared for the respondents in the above Petitions. 8. It was contended by Mr. Rupwate for the petitioner that respondent State, had by a Resolution dated 22nd February, 1971 modified the erstwhile recruitment Rules and issued revised recruitment Rules for the recruitment Class III and Class IV services in the subordinate judicial services. Rule 6 the said Rules framed by the State of Maharashtra specifically mandates that "the selection shall be made in such a manner that, as far as possible any particular time, a sufficient number of Backward Class candidates shall always be available for appointment so as to satisfy the percentage prescribed for the purpose by the Government from time to time." 9. The said Rule came into operation at once. It was contended the date, Rule 6( c) has not been implemented nor operated by respondents N especially in the matter of promotions. In support of this contention, Mr. Rupwate relied on the judgment of Indra Sawhney vs. Union of India, repo AIR 1993 SC 447, wherein the Honble Supreme Court has observed the provision for reservation in favour of backward classes need not be made Parliament or the Legislature and thus can also be made by the Executive wing of the Union/State. 10. It was contended by Mr. Rupwate that respondents No.2-4, being the Justice, Registrar and Additional Registrar, despite specific mandatory provision of Rule 6(c) of the aforesaid Rules discarded it and gave it a total go- by, contrary to the provisions of the Constitution of India, particularly Articles 16(4), 46 and 335. The learned Counsel emphasized that the Chief Justice must frame Rules under Article 229 of the Constitution of India, to provide for action in the matter of promotion. 11. It was contended that the petitioners had made a representation for post perintendent according to the 50 Point Roster System of reservation. However, respondent No.4 refused to consider this application. Subsequently, applications were made to respondent No.4 seeking promotion as per policy reservation provided by the State of Maharashtra. As no reply was given by contents No. 2-4, the above Petitions were filed seeking promotion. 12. It was contended by Mr. However, respondent No.4 refused to consider this application. Subsequently, applications were made to respondent No.4 seeking promotion as per policy reservation provided by the State of Maharashtra. As no reply was given by contents No. 2-4, the above Petitions were filed seeking promotion. 12. It was contended by Mr. Rupwate that the percentage of Scheduled Tribes, Scheduled Tribes and Other Backward Classes is specifically prescribed series of Government Resolutions and those Resolutions are to be read in consonance with provisions of Rule 6(c) of the aforesaid 1971 Rules. Mr. Wate contended that the respondents No. 2-4 are duty bound to implement y of reservation as per the letter of the law; and merely implementing policy reservation in spirit cannot be justification for not obtaining prescribed percentage of reservation. It was contended that High Court would be State in Article 12, when it comes to the staff of High Court, it would be the prerogative of the Honble Chief Justice to comply with reservations as provided the State of Maharashtra. In view of this, it was contended that a Writ of Mandamus, or any other appropriate writ, order, and/or direction under Article of the Constitution can be issued against respondents No. 2-4 for strict adherence to provision of Rule 6(c) and for recruiting prescribed percentage of candidates belonging to Scheduled Castes, Scheduled Tribes and Other ward Classes in services of subordinate judiciary. 13. It was further argued by Mr. Rupwate that other District and Sessions s within the State of Maharashtra do not observe policy of reservation, . ting Rule 6(c), thus the anomaly of implementation of the Rules should be : fled by this Court by issuing appropriate writ/order directing respondents 2 for providing reservation, as per State Government policy. 14. Reliance was also placed by Mr. Rupwate on H. C. Puttaswamy and ers vs. Ron hie Chief Justice of Kamataka and others, AIR 1991 SC 295 , rein it had been held that the Rules made under Article 229(1) and (2) of the stitution of India must be observed and appointments made by the Chief tice contrary to Rules are not proper. 15. The learned counsel for the petitioner Mr. Rupwate contended that the provisions and actions of the Honble Chief Justice on the administrative side of High Court are justifiable and subject to the scrutiny by this Court under Article 226 of the Constitution of India. Mr. 15. The learned counsel for the petitioner Mr. Rupwate contended that the provisions and actions of the Honble Chief Justice on the administrative side of High Court are justifiable and subject to the scrutiny by this Court under Article 226 of the Constitution of India. Mr. Rupwate stated that Article 229 of Constitution of India does not make the High Court an isolated entity and the Rules framed by the Honble Chief Justice were subject to law made by the State Legislature. 16. It was further contended that the SC, ST, and OBCs are not ad represented in the services of the High Court and the subordinate Courts i I-IV posts and it would thus be appropriate to issue directions for implement of the policy of reservations promulgated by respondent No. l-S Maharashtra and that the same be observed by respondents No. 2-4. 17. Mr. Vikram Pai, the learned counsel for the petitioner content the reservation of posts for recruitment as well as for promotion should Rules which are required to be made applicable by the Honble Chief while exercising the powers under Article 229 of the Constitution 0 having regard to embodying principles laid down in Articles 15(4), 16 also to keep in mind the Directive Principles of State Policy. With regard to the staff of High Court, it is contended that it is desirable that it should follow the policy of reservation of the State Government in this regard. 18. It was further contended by Mr. Pai that according to the Rules by the Honble Chief Justice under powers conferred to him under Article the Constitution of India, Rule 9 provided for making appointment preference to candidates coming from backward classes in order percentage prescribed by Government for such classes. For this purpose, candidate could be appointed out of turn in the common list. Mr. Pai pointed that there arc no Rules framed by the Chief Justice providing for reservation the matter of promotion. 19. Lastly, it was contended by Mr. Pai that it was bligatory on the Hon ble Chief Justice to follow the policy of the State of Maharash regard to reservations. 20. Mr. Pai pointed that there arc no Rules framed by the Chief Justice providing for reservation the matter of promotion. 19. Lastly, it was contended by Mr. Pai that it was bligatory on the Hon ble Chief Justice to follow the policy of the State of Maharash regard to reservations. 20. In all the above petitions, the petitioners have collectively prayed under: 1.Petitioners have prayed that a Writ of Mandamus or an appropriate writ, order or direction in the nature of a Mandamus directing the respondents No. 2-5 to adopt the maintained by respondent No. 1 State, in matter of recruitm promotion, thereby provide reservations. II). That a writ of mandamus be issued directing respondents No. make reservations for Backward Classes in matter of recruitment and promotion in the High Court and to adopt a policy reservation published by respondent No. 1 State, as per Rules framed by the State of Maharashtra, under Article 309 Constitution of India. III) It was also prayed for a declaration that the power of resp No.2, the Honble Chief Justice under Article 229 (2) Constitution of India to be arbitrary and violative of Articles 16 of the Constitution of India, with respect to pres conditions of service of the officers and servants of the High 21. The learned Government Pleader for the respondents submitted Writ of Mandamus would lie against the Honble Chief Justice to frame under Article 229 of the Constitution of India to provide for reservatation promotion. He also strongly contended that Articles 15 and 16 of the Const of India are enabling provisions for providing reservations but no one can compel of and the same. Mr. Sawant, the learned Government Pleader, also strongly a Division Bench Judgment dated 7-9-2004 of Aurangabad Bench, on same issue of seeking a Writ of Mandamus against the Chief Justice, him to frame rules under Article 229 of the Constitution of India, to for Reservation for the employees in the High Court, especially for ion in the case of Bahujan Hitaya Nyayalayeen Karmachari Mahasangha of Maharashtra and others, Writ Petition No. 2149 of 1995. The Bench categorically held that no such Writ can be issued to provide for reservation, either in appointment or in promotion. 22. From a perusal of the arguments advanced by the learned Counsel, two ,. The Bench categorically held that no such Writ can be issued to provide for reservation, either in appointment or in promotion. 22. From a perusal of the arguments advanced by the learned Counsel, two ,. questions arise before this Court: i) Whether a writ of mandamus can be issued directing the Honble Chief Justice of the High Court in exercise of powers under Article 229 of the Constitution of India to legislate or frame rules to provide reservations in the recruitment and promotion of officers and servants of the High Court, keeping the interests of SCs, STs and OBCs in mind. II. Can a member of SC, ST or OBC approach this Court by an appropriate writ petition under Article 226 of the Constitution of India to give effect to reservation policy of the government in consonance with Articles 15(4) and 16(4) of the Constitution of India, i.e. whether Articles 15(4) and 16(4) of the Constitution of India are enforceable? 23. Let us examine the nature and extent of the power of the Chief Justice r Article 229 of the Constitution of India. The scope of the power of the Justice is clearly elucidated in a number of judgments, a few of which we reproduce here, in order to examine the exact extent of the Rule Making conferred by the Constitution of India. It is a well-established principle ,the object underlying Article 229 of the Constitution of India is to ensure the evidence of the High Court. The limited extent of review available to the Court is inasmuch as to test the validity and constitutionality of the rules Framed by the Chief Justice. In Puttaswamy vs. Honble Chief Justice of taka, AlR 1991 SC 295 at page 298,299, the Supreme Court in paragraph 11 says, complete control over them is vested in the Chief Justice. There can be no disagreement on this matter". "There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other administrative judge is not an absolute ruler nor is he a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by the same principles and values as those of the Court hes serving. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by the same principles and values as those of the Court hes serving. He cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard and intellectual rectitude. The public expectations do no be less exacting. " It is vital to note here that in the above case, the Chief Justice had not a the Rules framed by him under Article 229 of the Constitution of India. in the present petitions with which we are concerned, petitioners are s Writ of Mandamus that Chief Justice should be directed to frame rule Article 229 of the Constitution of India, to provide for reservations in of promotion. 24. Hence the power of the Chief Justice is neither absolute nor un However no Court under Article 226 of the Constitution of India has the direct the Chief Justice to frame or formulate rules or make appointment particular purpose since that would mean impinging on the discretion Chief Justice. In other words although the Court has every power to examine constitutional validity of rules framed under Article 229 of the Constitution India, but it cannot issue directives to the Chief Justice to frame rules benefit of a certain section of society. To put it in other words, no Mandamus would lie against the Chief Justice to legislate rules under Art of the Constitution of India. 25. At this juncture it would be necessary to quote the case of Rig of Judicature of Rajasthan vs. Ramesh Chand Paliwal, AIR 1998 SC wherein a question arose as to whether a full Court can give a direction Chief Justice not to fill up certain posts by bringing officers on deputation fill up these posts by promotion from amongst the High Court staff. The Supreme Court answered the question in the negative, in paragraph 32 1086, "A judge of the High Court individually or all the judges collectively, as in the Full Court, cannot either alter the constitution provisions or the rules made by the Chief Justice. The Supreme Court answered the question in the negative, in paragraph 32 1086, "A judge of the High Court individually or all the judges collectively, as in the Full Court, cannot either alter the constitution provisions or the rules made by the Chief Justice. They have jurisdiction even to suggest any constitutional amendment or amendment in the rules made by Chief Justice nor can they create any avenue promotion for the High Court staff so as to be appointed on posts for officers from Rajasthan Higher Judicial Service or Ra Judicial Service. The Chief Justice has been vested with wide powers run the High Court administration independently so as not to bro interference from any quarter, not even from his brother judge however cant scrutinize his administrative action or order Judicial side like the action of any other authority. " 26. Therefore this Court cannot issue a directive in the nature command by way of a Writ of Mandamus to legislate to frame rules for Scheduled Castes, Scheduled Tribes and Backward Classes reservations. would be the prerogative of the legislature itself or the Chief Justice a Court has no say in that regard. The same has been in the case of Indra Sa vs. VOl, AIR 1993 SC 477 at page 620 " The action of the government in making provisions for the reservation of appointments or posts in favour of any backward Class of citizens a matter of policy of the government. What is best for the backward class “ and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservation is a matter for decision exclusively within the province of the government and such matters do not ordinarily attract the power of special review or judicial interference except on the grounds which are II settled by a cantena of decisions of the Supreme Court. " Hence, such Writ of Mandamus cannot be issued to the Chief Justice to provide for reservation in the promotion of High Court Employees. Is Chief Justice exercises legislative powers while making rules for etc. Hence the answer to the first question is in the negative . . Coming to the second question of whether Articles 15 (4) and 16(4) of "Constitution of India are enforceable, it is a well settled position of law that . Is Chief Justice exercises legislative powers while making rules for etc. Hence the answer to the first question is in the negative . . Coming to the second question of whether Articles 15 (4) and 16(4) of "Constitution of India are enforceable, it is a well settled position of law that . (4) and 16(4) of the Constitution of India are only enabling provisions individual can claim enforcement of the same. -In the case of C. A. Rajendran vs. UOI AIR 1968 SC 507 at 5/3 in 7, the Supreme Court has held, Our conclusion therefore is that Article 16(4) does not confer any right the petitioner and there is no Constitutional duty imposed on the government to make a reservation of Scheduled Castes, Scheduled tribes, either at the initial stage of recruitment or at the stage of romotion. In other words Article 16(4) is an enabling provision and on offers a discretionary power on the state to make a reservation of appointments in favour of Backward Classes of citizens which in its opinion is not adequately represented in the service of the State. " Hence it becomes clear that Articles 15(4), and 16(4) of the Constitution of just enabling provisions. Therefore a writ in the nature of Mandamus e against them. In Union of India vs. R. Rajeshwaran and anr., (2003) 9 , the Supreme Court again reiterates, "In Ajit Singh (II) vs. State of (1999) 7 SCC 209, this Court held that Article 16(4) of the Constitution confers discretion and does not create any constitutional duty and obligation. " 29. Hence the answer to the second question is also in the negative. 30. Under the aforesaid facts and circumstances, we do not find any merit in the Petitions. Hence Rule stands discharged in all the above four Petitioners, however with no order as to costs. Issuance of certified copy expedited. Petitions dismissed.