JUDGMENT Hon’ble Arun Tandon, J.—”The darkest place is under the candle stick” or more appropriately “It is darkest beneath the candle” is a proverb that was taught at elementary school. Nothing can be more apt to describe the prevailing situation with regard to appointment of Class IV employees in the establishment of the High Court both at Allahabad as well as Lucknow. The Court has been informed on behalf of the Registrar General of the High Court that there exists no record of any advertisement having been published for appointment on Class IV posts. At least for the last 25 to 30 years, no advertisement has been published and to put it more exactly, the rule has been observed in its fullest breach since the promulgation of the Allahabad High Court Officers and Staff (Conditions of Service & Conduct) Rules, 1976 (herein after referred to as Rules, 1976). 2. What logically follows is that for last nearly three decades, appointments in the establishment of High Court at Allahabad as well as Lucknow against Class IV posts have been made without any advertisement and without an invitation for participation to the public at large in the process of selection. 3. From the record pertaining to the appointment of respondents No. 4 to 16 to the present writ petition as produced before this Court, it is clear that all 13 persons have been appointed on one and the same date under orders of the Hon’ble The Chief Justice. Out of these, 3 have been appointed on making of an application duly recommended by Hon’ble sitting Judges of this Court, On the left hand side corner of the application of 4 candidates, names of officers/employees already working in the High Court has been hand written and endorsed. Two appointees are from the State of Bihar and one each from the districts of Azamgarh and Jaunpur. One is the son of an employee of this Court and another is a resident of the Colony of the employees of this Court. No selection of any kind has been held. The basis for appointment is, therefore, the recommendation of the Hon’ble Judge or the affinity to the officers/employees already working in the establishment of the High Court. Such a recommendation/closeness is available to a selected few and not to a common citizen. 4. No selection of any kind has been held. The basis for appointment is, therefore, the recommendation of the Hon’ble Judge or the affinity to the officers/employees already working in the establishment of the High Court. Such a recommendation/closeness is available to a selected few and not to a common citizen. 4. To put it simply the manner of selection and appointment is per se violative of Articles 14 and 16 of the Constitution of India. 5. What is the mandate of Articles 14 and 16 of the Constitution of India? 6. According to the Court, the lifeline of a democratic country is governance by the rule of law. The Hon’ble Supreme Court of India in the case of State of Bihar v. Upendra Narayan Singh and others, 2009 (5) SCC 65 describes appointments without advertisement and regularization thereafter as ‘spoiled system’. There is no dearth of judgments of the High Court at Allahabad on the judicial side setting aside appointments made in public employment at various offices/departments under its power of judicial review, only on the ground that Articles 14 and 16 of the Constitution of India prohibit appointment without proper advertisement being made so as to enable the public at large to participate in the process of selection. 7. What the High Court preaches vide its judgments it does not follow in practice when it comes to appointment on Class IV posts in the establishment of the High Court at Allahabad as well as Lucknow. It is dispressing and disturbing. The petitioner reminds the Court through this petition to practice what it preaches. 8. Two decades ago the Supreme Court of India, perturbed by the unabated exercise of powers under Article 229 of the Constitution of India, had to painfully remind the High Court of Karnataka about the width and expanse of the powers so conferred and to be exercised by the Hon’ble The Chief Justice of the High Court. The judgment describes the powers so conferred by the Constitution to be bounded by solid embankments of legal principles cherished by our system with a strong cautionary that the exercise of administrative independence should not overflow the parameters of the fundamental rights guaranteed under the Constitution. The same is preserved for posterity in Putta Swamy H.C. v. High Court of Karnataka, (1991) Suppl. (2) SCC 421 and still holds the field. 9. The same is preserved for posterity in Putta Swamy H.C. v. High Court of Karnataka, (1991) Suppl. (2) SCC 421 and still holds the field. 9. Learned counsel for the petitioner submits that we function in a democracy where the principles of equality are zealously protected which tell us not to discriminate, and to deliver justice both on the judicial side and administratively in a way that our actions are transparently beyond doubt. There should be no misgiving that the High Court or its authorities are Aladdin with some magical lamp which has the capacity to generate employment riches at will. Our minds should be plainly reflected in our outward actions with no scope for doubt in our intents. Judges are not outsiders or intruders immune from the mandate of the Constitution and any accusation should not partake the nature of a permanent blot. The stains, if any, should be removed by a careful application of the legal broom sweeping away any infection that might eat at the roots of this institution. 10. The petitioner contends that he has been treated with an unequal hand, and he too intends to join the same bandwagon of “Recomendees of Hon’ble Judges” as narrated in his petition. This ‘sudden’ activity which gained popularity as a traditional source of employment, in spite of the advent of the Constitution, has been continuing for a fairly long period without advertisement. This fact is admitted to the High Court that as far as memory reflects, no Class IV appointment has been initiated through an advertisement. This probably impelled the petitioner to carry a mistaken belief about a fair chance of his success through the same door open for recommendees/relatives etc. only. Not only this, his pleadings and prayer are both tailored to suit this purpose even though there is a direct complaint about a wrong procedure having been adopted by the High Court for selections. 11. In reply it is submitted by Shri Neeraj Upadhyaya, learned counsel for the High Court that : (a) appointments in question have been made as Daily Labourer referable to Rule 4 of the Rules, 1976 under the orders of the Hon’ble The Chief Justice. (b) Rules, 1976 lay down no procedure for appointment of Class IV employees by direct recruitment. In reply it is submitted by Shri Neeraj Upadhyaya, learned counsel for the High Court that : (a) appointments in question have been made as Daily Labourer referable to Rule 4 of the Rules, 1976 under the orders of the Hon’ble The Chief Justice. (b) Rules, 1976 lay down no procedure for appointment of Class IV employees by direct recruitment. (c) The Hon’ble The Chief Justice has not issued any orders under Rule 45 of the Rules, 1976 for laying down the mode and manner of appointment by direct recruitment on Class IV posts. (d) For several decades there has been a constant practice of engagement of daily labourers on Class IV posts and thereafter to offer regular appointment to them. At no point of time the process of advertisement of the vacancies was adopted. 12. Shri Upadhyaya specifically stated that an error of procedure has crept in due to past practice that had been adopted and it is for this reason that there is non-adherence to the rule of advertisement of vacancies before appointments as enshrined under Articles 14 and 16 of the Constitution of India. He has been fair enough to state that Rules, 1976 have to be read in a manner to be in consonance with Articles 14 and 16 of the Constitution of India and not in derogation thereof. He submits that the wrong practice followed shall be rectified appropriately in future about which he has specifically been instructed to inform the Court on behalf of the administrative side of the High Court. He stated that all future appointments on Class IV posts to be filled by direct recruitment under Rule 4 of Rules, 1976 (with whatever nomenclature) shall be made only after advertisement of the vacancies and this Court may not interfere with the appointments made till date treating the same to be the last exercise as per the old practice. 13. This petition is a union of sorrows mildly narrated as a resentment on account of discrimination. It is a combination of a claim and a complaint which in my opinion serves a larger purpose, giving the High Court a golden opportunity to rectify its errors. Edmund Burke said “our antagonist is our helper”. 14. 13. This petition is a union of sorrows mildly narrated as a resentment on account of discrimination. It is a combination of a claim and a complaint which in my opinion serves a larger purpose, giving the High Court a golden opportunity to rectify its errors. Edmund Burke said “our antagonist is our helper”. 14. Rule 4 (a) of the Rules, 1976 provides for the appointment on Class IV posts by direct recruitment and reads as follows : “Source of recruitment to Class IV posts.—The sources of recruitment to the various class IV posts in the establishment shall be as follows : (a) Peon, farrash collied, bhisti, sweeper, mali, fireman chowkidar and liftman.—By direct recruitment as provided in Rule (Provided that in making such recruitment preference shall first be given to suitable persons already engaged by the High Court as daily Labourers. If after making recruitment from this source some vacancies are left unfilled for want of suitable persons, the remaining vacant posts shall be filled by inviting applications through Employment Exchange.) (b) Jamadar.—By promotion from amount permanent peons. (c) Daftari.—By promotion from amongst permanent peons, farrashes and liftman; Provided that for the post daftari only such persons shall be eligible who, to the satisfaction of the appointing authority, possess requisite knowledge and experience of the work of book binding. (d) Bundle Lifter.—By promotion from amongst permanent peon, farrashes and liftmen. (e) Head Mali.—By promotion from amongst permanent malis, provided a suitable person is available; otherwise, by direct recruitment of a person possessing requisite knowledge and experience of gardening and ability to supervise the work of malis.” 15. The Rules, 1976 does not lay down any procedure to be followed for making appointment by direct recruitment on Class IV posts. The Hon’ble The Chief Justice has also not issued any order laying down the procedure in exercise of his powers under Rule 45 of the Rules, 1976 (as per the statement of the counsel for the High Court). 16. The words ‘preference shall first be given to suitable persons already engaged by the High Court as Daily Labourer .............” in Rule 4, has been subject matter of consideration in a recent order of the High Court dated 24.2.2010 passed in Civil Misc. 16. The words ‘preference shall first be given to suitable persons already engaged by the High Court as Daily Labourer .............” in Rule 4, has been subject matter of consideration in a recent order of the High Court dated 24.2.2010 passed in Civil Misc. Writ Petition No. 7212 of 2010, Diwakar Singh v. Registrar General, High Court of Judicature at Allahabad and others, 2010(4) ADJ 471 and it has been held as follows : “There is no separate procedure provided for the engagement of a daily labourer or a daily labourer driver. Rule 4 of the 1976 Rules and the proviso to Rule 14 of the 2000 Drivers Rules both refer to a preference being given to daily labourers/ daily labourers drivers at the time of making recruitment to permanent posts. There is one distinction namely that in Rule 4 of the 1976 Rules the word preference has been qualified by the word “shall first be given to suitable persons already engaged by the High Court as daily labourers” whereas in Rule 14 of 2000 Drivers Rules, the word “first” is missing. None-the-less both the Rules indicate that recruitment of other candidates shall be made only if some of the posts remain unfilled after making recruitment from these preferential sources as indicated hereinabove." 17. Thus there is no doubt that the rules create an embargo for making selections by direct recruitment against class IV posts, and preferentially and primarily limit it to be a selection from amongst the already engaged daily labourers/daily labourers drivers. This preferential right, as indicated in the Rules, therefore, creates a legitimate expectation in favour of such candidates, who are already engaged as daily labourers/daily labourer drivers. It is on the strength of such a qualification that they become the feeding source of recruitment and it is only when they are found unsuitable, that persons from the open market have to be considered. The rule, therefore, creates a strong caveat in favour of the power to be exercised by the High Court and the Hon’ble Chief Justice for making appointment against class IV and Class III vacancies, as referred to in the Rules from such special category candidates to the exclusion of others. If the rules are spelt out, then the administration is bound by it. As long as a word remains unspoken, you are its master; once you utter it, you are its slave. If the rules are spelt out, then the administration is bound by it. As long as a word remains unspoken, you are its master; once you utter it, you are its slave. The Rules, create a special category of candidates for direct recruitment with a substantial preferential right which places them in a special class as against the candidates from the open market. This right created in favour of such a candidate compels the selecting authority to choose within the same category first and in the event the posts remain unfilled then the general rule has to be followed. The language of the aforesaid rules is, therefore, couched in a language that creates a protective shield which is almost impregnable. The expectation is not merely legitimate but is almost in the nature of a cast iron provision. It is thus clear that a daily labourer or a daily labourer driver is engaged not merely for continuing on a casual daily wage basis but he is engaged so as to form the pool of candidates who have a right to be considered preferentially in the first place to the exclusion of the candidates from the open market. This rule, therefore, is a shirt of iron clothed with which a daily labourer/daily labourer driver of the High Court prevents and rather prohibits the consideration of any of the candidates from open market. This right to pre empt the open market candidates almost to their exclusion places such daily labourers/drivers on a higher pedestal thereby creating a class within a class. 18. Can such a right so created under Rules be construed to be a mere formality which does not require to be in conformity with Articles 14 and 16 of the Constitution of India? The answer to this question will be required to be given keeping in view the mandate of this Court and the Supreme Court which has time and again been reiterated to the effect as to whether such a Rule can be pressed into service in teeth of Articles 14 and 16 of the Constitution of India. 19. In the instant case there is no doubt that the rules, as discussed aforesaid, have to conform to Articles 14 and 16 of the Constitution of India as they create a right even in favour of a daily labourer or a daily labourer driver. 19. In the instant case there is no doubt that the rules, as discussed aforesaid, have to conform to Articles 14 and 16 of the Constitution of India as they create a right even in favour of a daily labourer or a daily labourer driver. One of the facets of Article 14 in service jurisprudence has been to include the process of publication and advertisement as part of the process of selection that conforms to the aforesaid provisions of the constitution. There is no dearth of authorities to that extent and the following judgment would suffice for the same : State of Bihar v. Upendra Narayan Singh and others, 2009 (5) SCC 65 . Apart from the aforesaid judgment the Supreme Court has very lately upheld a similar view taken by a Division Bench of our Court in the case of Rajesh Kumar Srivastava v. State in Writ Petition No. 3790 of 2004 decided on 29.4.2007. The SLP against the same was dismissed by a speaking order being Civil Appeal No. 1139 of 2010 decided on 29.1.2010. 20. The argument at first flush that the engagement of daily labourer does not require advertisement may appear to be attractive but the same is totally unfit for the occasion at hand. Apart from this the constitution bench decision in the Case of Secretary, State of Karnataka v. Uma Devi and others, 2006(2) ESC 192 (SC) further whittles down the engagements of daily wagers through side lanes and then their regularization through back door methods. The decision has deprecated the same”. 21. This Court is in respectful agreement with what has been said in the case of Diwakar Singh (supra). The requirement of advertisement in the matter of direct recruitment on Class IV posts under Rule 4(a) of Rules, 1976 is even more imperative inasmuch as in the case of Class IV employees under Rule 4(a), the word “preference” has been prefixed with the word ‘first’ while in the case of Driver, only preference has been provided to daily labourers. Words ‘first preference’ shall necessarily exclude other categories of candidates namely the persons available in the open market from consideration so long as the list of daily labourers is not exhausted. No person from open market can be considered so long as a suitable daily labourer is available. Precisely this is what has happened in the last 3 decades in the High Court. No person from open market can be considered so long as a suitable daily labourer is available. Precisely this is what has happened in the last 3 decades in the High Court. Persons appointed as daily labourers alone have been adjusted against substantive post with the help of Rule 4(a) of Rules, 1976 leading to a situation where the public at large has been completely excluded even from an opportunity to participate and be considered in the process of selection. This Court has no hesitation to hold that if ‘first preference’ is to be given to daily labourers in regular appointment, then their appointment has to be initiated by a proper advertisement published in widely circulated newspaper throughout the State so that Articles 14 and 16 are not diluted in any manner. The High Court has to act on the administrative side in the manner it preaches vide its judgment on the judicial side. After all Law is an orderly way of discovering what you cannot do as you wish. 22. The importance of publishing an advertisement before proceeding to make any appointment is to bring it to the knowledge of the proposed recipients; namely the public at large the opportunity available for engagement as an employee. The matter, therefore, requires wide publicity as it relates to public employment which has to be proceeded by fair steps being taken for the same. The conclusion, which can be drawn on the basis of reasoning given by the learned Single Judge in the case of Diwakar Singh (supra) is clearly to the effect that once it is held that the engagement of a daily labourer carries with it, the right to be considered to the exclusion of others en bloc, then it necessarily requires the engagement through an advertisement. 23. The rule of first preference is clearly meant to exclude others from the zone of consideration. This is fortified by the language used in Rule 4 of the Rules, 1976. Thus, those who get a berth as a daily labourer, also have a guarantee of further being offered permanent appointment as Class IV employee before any other person can even be considered. This in essence is the interpretation that can be given to the Rule 4 of Rules, 1976 and once this is so, there is no gainsaying that Articles 14 and 16 will not apply. 24. This in essence is the interpretation that can be given to the Rule 4 of Rules, 1976 and once this is so, there is no gainsaying that Articles 14 and 16 will not apply. 24. The rules, therefore, have to be reasonably construed so as to make the scheme workable in conformity with the constitutional mandate. In my considered opinion, the engagements for such daily labourers have to be scrutinized only after inviting applications through a publicised advertisement in widely circulated newspapers throughout the State. 25. This Court may clarify that the last line of Rule 4(a) of Rules, 1976 in so far as it provides that the remaining vacant posts shall be filled by inviting applications through Employment Exchange cannot be read in a manner to suggest that by necessary implication advertisement of the vacancies in newspapers is excluded. The Hon’ble Supreme Court of India has held that invitation of applications from Employment Exchange can be only in addition to the mode of advertisement in newspapers and not to the exclusion thereto. (Ref. Raj Kumar and others v. Shashi Raj and others, AIR 1997 SC, 2210). The legal position in that regard has been explained in the Division Bench judgment of the Calcutta High Court in the case of Bhaskar Ranjan Ghosh v. Kamal Sen and others, 2000 (4) ESC 2682. 26. There is another aspect which has to be taken care of, lest it should invite complications i.e. about applications being received on recommendations of Hon’ble Judges. If an advertisement is resorted to recommendation by Judges can be easily avoided without causing any embarrassment to any Hon’ble Judge who might be persuaded for some reason to make a recommendation. This will also save the administration from resorting to any permutation or combination for entertaining preferences. 27. Rules 41 and 45 are general powers conferred on the Hon’ble The Chief Justice. Such conferment of powers are not unusual and are also necessary as it is not possible to foresee every situation. The grant of power is, therefore, to meet unforeseen or unprecedented situations where there are no rules or guidelines or even otherwise in almost impossible situations. While entering upon a judicial review in such matters, the unreasonableness is to be found in its exercise and not in its existence. Rule 45, even though commences with a non-obstante clause, it does not and cannot override the constitutional limitations. While entering upon a judicial review in such matters, the unreasonableness is to be found in its exercise and not in its existence. Rule 45, even though commences with a non-obstante clause, it does not and cannot override the constitutional limitations. Article 229 itself is subject of Articles 14 and 16 of the Constitution of India and, therefore, as a natural logical conclusion the powers under the Rules, 1976 are also subject to such limitations. Rule 45 has no absolute immunity from law under the Constitution. 28. The vesting of the discretionary power in a high public dignitary is by itself a guarantee that the power will be exercised on the basis of reasonable standards for the purpose intended under the rule. Reference : D.K. Pandey v. Hon’ble High Court of Judicature at Allahabad, 2007(8) ADJ 95 : 2007(4) ESC 2707 relevant portion whereof reads as follows : “It is difficult to conceive that a high constitutional functionary vested with the powers to protect the right of the citizen of the State would violate these rights in exercise of his extraordinary powers. All such powers are conferred to carry out the purpose of the rules and must be used only for that purpose.” 29. The issue now which remains for consideration before this Court is as to whether such illegal appointments which are under consideration before this Court should be permitted to go unnoticed merely because it has been the practice of this Court to act de hors the constitutional provisions. 30. The petitioner before this Court alleges that he had made applications containing recommendations of the Hon’ble Judges as early as on 3.1.2006 and 11.1.2007 respectively, for being appointed as Class IV employee. He further submits that on 11.1.2010, he made another application before the Registrar General for being appointed as a daily labourer. Copies of the applications have been brought on record as Annexure-1 and 2 to the writ petition. He submits that his case was not considered and no reason apparently exists for non consideration of the application of the writ petitioner specifically when applications of similarly situate persons including those residing in other States and in other places outside Allahabad have been considered. In these set of circumstances and in view of the admitted position that the appointment of respondent Nos. In these set of circumstances and in view of the admitted position that the appointment of respondent Nos. 4 to 16 have been made without there being any advertisement and without there being any process of selection and consideration amongst similarly situate candidates like the petitioner, it is the duty of the Court to ensure that injustice is set at rest. The Court is of the opinion that what has been practised for more than three decades brought to a halt. The infringement of Articles 14 and 16 of the Constitution of India cannot be permitted to continue any further, therefore, appropriate steps are required to be taken. A stitch in time saves nine. Illegality cannot be perpetuated nor it is appropriate for the highest Court of the State to act in a manner so as to shake the confidence of the public at large. 31. Accordingly, the following directions are being issued at this interim stage: (a) In view of the conceded position by the High Court through its counsel as noted above, no further appointment on Class IV posts covered by Rule 4(a) of the Rules, 1976 in the establishment of the High Court both at Allahabad and at Lucknow, shall be made in any capacity except after due publication in newspapers having wide and adequate circulation. (b) It shall be open to the High Court to take work or not to take work either from the respondent Nos. 4 to 16 or any such engagements that have been made alongwith the said respondents or on any date subsequent to the date of their appointment in the establishment of the High Court. However they shall not be paid their salary without the leave of the Court. (c) Respondent Nos. 4 to 16 and similarly situate persons shall not be regularized nor they shall be granted any preference in terms of Rule 4 at the time of regular appointment. 32. Issue notice to respondent Nos. 4 to 16. The said respondents may be served through the Registrar General of this Court who may also inform similarly situate persons, if any, of the pendency of this writ petition, for putting in their appearance. Steps may be taken within ten days. 33. Further since the matter pertaining to daily labourer Drivers similarly appointed without advertisement, is being considered in Civil Misc. Steps may be taken within ten days. 33. Further since the matter pertaining to daily labourer Drivers similarly appointed without advertisement, is being considered in Civil Misc. Writ Petition No. 7212 of 2010, Diwakar Singh v. Registrar General, High Court of Judicature at Allahabad, 2010(4) ADJ 471, it would be appropriate that this writ petition may also be tagged alongwith the said writ petition so that all issues pertaining to appointment in the establishment of the High Court both at Allahabad and Lucknow are adjudicated under one common judgment. 34. Tag and list with Civil Misc. Writ Petition No. 7212 of 2010 on 22.3.2010. 35. The records of the applications of respondent Nos. 4 to 16 are being returned to Shri Neeraj Upadhyaya, counsel for the High Court. ————