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2014 DIGILAW 684 (HP)

Priyanka Gautam v. State of Himachal Pradesh

2014-05-31

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. 1. The only question involved in the present writ petition is as to whether merely on the basis of having acquired the eligibility qualification a person is entitled to be appointed dehors the rules that too on the basis of general executive instructions issued prior to the promulgation of the statutory rules under proviso to Article 309 of the Constitution of India. 2. The petitioners have acquired the minimum eligibility for being appointed as Staff Nurse (Class-III). However, instead of competing with the others against 75% quota fixed for the direct recruits, the petitioners claim that the department should be directed to fill up 50% of these posts by batch-wise recruitment method at the departmental level against the existing direct recruit quota. Certain essential facts may be noticed. 3. The respondent-State issued the Recruitment and Promotion Rules for the post of Staff Nurse (Class-III) on 18.8.1994 whereby the post of Staff Nurse was to be filled up 75% by direct recruitment and 25% by promotion besides prescribing the qualifications required for the post. 4. The respondent thereafter issued Recruitment and Promotion Rules for the post of Staff Nurse on 25.2.1999. As per Rule 10 the post of Staff Nurse was to be filled up 75% by direct recruitment and 25% by promotion. These rules were further amended on 11.5.2011 providing that 75% posts were to be filled by direct recruitment and 25% by promotion. Rule 7 provided that in case of direct recruitment, the post of Staff Nurse was to be filled from candidates who possess 10+2 qualification preferably with science from a recognized Board/ University (meaning thereby that candidates with 10 + 2 with Arts or other streams were also eligible) with A Grade Nursing Midwifery or B.Sc. (Basic) in Nursing from a recognized institute and the candidate must be registered with the H.P. Nursing Council or any other registered Nursing Council. 5. However, the claim of the petitioners is based upon the policy decision of the Government dated 21.4.1998 whereby according to the petitioners a conscious decision was taken regarding filling up 50% of the posts by batch-wise recruitment method at the departmental level against the existing direct recruitment quota. This decision was further clarified on 15.6.1998 making it mandatory to identify such posts. This decision was further clarified on 15.6.1998 making it mandatory to identify such posts. Thereafter, it is alleged that the respondent-State issued another letter dated 2.12.1998 identifying the posts in various departments which were to be filled up 50% by batch-wise recruitment method at the departmental level against the existing direct recruitment quota. When the Administrative departments had failed to identify the posts yet another letter was issued by the respondent-State on 17.1.2008 wherein and whereby the departments were directed to take all necessary steps for implementing the Government action by carrying out suitable amendments in the existing Recruitment and Promotion Rules. 6. On the strength of the aforesaid instructions, the petitioners contend that the respondents No. 1 and 2 were bound to immediately implement the criteria of 50% batch-wise recruitment while filling up of the posts of Staff Nurse. On account of the inaction of the respondents, the petitioners had made detailed representations vide Annexures P-12 to P-15 with the petition. It is further claimed that once the petitioners had even sought the information under Right to Information Act on 17.9.2012 regarding the present position of the Staff Nurse which showed that as many as 328 posts of Staff Nurse were vacant in the department and thus, on the basis of such calculations 75% of the posts means 248 posts which were to be filled up by direct recruitment and in this manner about 124 to 130 posts were required to be filled up on batch-wise basis (50% of 328 posts). 7. It is claimed that the respondent-Board had issued an advertisement on 21.11.2013 for filling up of all 261 vacant direct quota posts of Staff Nurse by selection on contract basis. Though, 124 to 130 posts were required to be filled up on the basis of batch-wise selection. The petitioners made representations requesting the department not to proceed with the selection and left with no other alternative; they have filed the present petition claiming therein the following substantive reliefs: (i) That the advertisement issued by the respondent No.3 Board on 21.11.2013 vide Annexure P-1 7 for filling up 261 vacant posts of Staff Nurse without filling up fifty percent posts i.e. 124-130 posts by batch-wise Recruitment Criteria at the departmental level may kindly be quashed and set-aside forthwith. (ii) That the respondents may be directed to fill up 50% i.e. about 124-130 posts of Staff Nurse by batch-wise Recruitment Criteria at the departmental level; out of the advertised 261 vacant posts of Staff Nurse in view of the policy decision taken by the respondent- State vide Annexure P-8 to P-1 1 which had supplemented the R & P Rules of 1999 & 2011 vide Annexure P-6 & P-7 without discriminating the petitioners when, in similar circumstances, the respondents have resorted to and undertaken batch-wise selection in the education department as in ground (1) of the writ petition supra ; and then to consider the petitioners for the recruitment and consequential appointment as a Staff Nurse in accordance with law thereafter forthwith. (iii) That the respondents may be directed to decide the representations vide Annexure P-12 to Annexure P-15 and the representation dated 2.1.2014 vide Annexure P-18 by considering their case for formal amendment of the existing Rules for the post of Staff Nurse ; as done by the respondents for the same post of Staff Nurse in the Ayurveda Department on 30.5.2013 vide Annexure P-21 forthwith.” The main ground taken by the petitioners is that once the State had taken a conscious policy decision to fill up 50% posts where the candidates had undertaken professional training under the existing direct recruitment on batch-wise basis, then the respondents had no authority or jurisdiction to deviate from the said instructions because these instructions supplanted the rules and, therefore, had to read along with the Rules. 8. The respondents have contested the petition by filing a reply wherein the respondents have claimed that the recruitment to any post in the Government Department is always subject to the provisions of the Recruitment and Promotion Rules of the post/category concerned prevailing and in existence at relevant time. It is further averred that the Recruitment and Promotion Rules in respect of every category are made and framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India and as such, the same have Constitutional force of law. It is further averred that the Recruitment and Promotion Rules in respect of every category are made and framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India and as such, the same have Constitutional force of law. The provisions contained in the Recruitment and Promotion Rules can neither be modified, relaxed or interpreted to the choice, convenience and suitability of any individual like that of the present petitioners nor such Rules can be superseded or overruled by way of any executive instructions till a proper amendment is carried out in the Rules after consultation with the Advisory Departments and that too with the prior approval of the Government in the matter. 9. It is further averred that the Recruitment and Promotion Rules can be changed according to the necessity and need felt at times and the petitioners have no legal right to challenge the Constitutional validity of these Rules. It was also averred that at no given time were the petitioners ever given any assurance or guarantee of their appointment in the respondent Department in a direct manner over and above the provisions of the Recruitment and Promotion Rules existing and prevailing at the relevant time. Therefore, the acquiring of any educational and professional qualification at their own did not entitle the petitioners to be ipso facto appointed with the respondents. The issuance of the executive instructions at the instance of the Government have not been denied, rather it had been claimed that even vide the instructions issued, it was specifically made clear that after identifying the categories/posts to be filled up 50% on batch-wise basis, the existing Recruitment and Promotion Rules would be required to be amended to the extent of including a provision of such mode of appointment therein and till and so long such amendment is not made, no claim for appointment on 50% batch-wise basis that too on the basis of executive instructions can be maintained by the petitioners. 10. 10. The petitioners have filed rejoinder reiterating their claim as set out in the petition and have then sought to place reliance on notification issued not by the respondents herein but by the Education Department on 22.10.2009 whereby certain posts of TGT have been sought to be filled up by way of direct recruitment and 50% of the same are required to be filled up on the basis of the instructions issued by the Government from time to time on batch-wise basis. It is claimed that though the Rules even in the said case like the present case do not make a provision for filling up of the posts by 50% batch-wise basis, yet being a Department of the Government, it is adhering to the instructions issued in this effect. 11. It is further claimed that 50% batch-wise recruitment criteria has also been adopted for filling up of the posts of Staff Nurse in the sister department of Ayurveda on 30.5.2013 that too without amending the Recruitment and Promotion Rules, meaning thereby despite being no provision in the statutory rules to this effect, 50% of the posts are being filled up on batch-wise basis. 12. We have examined the matter carefully and meticulously. 13. It is settled proposition of law that executive instructions cannot overrule or override the statutory Rules. Therefore, in case there is a conflict between the executive instructions and the rules made under Article 309, the rules made under Article 309 will prevail and in case there is conflict between the rules framed under Article 309 and the law made by the legislature will prevail. It is further trite that administrative instructions or orders can only be issued in matters of which the Rules made under Article 309 are silent, therefore, administrative instructions can only supplant the Rules but cannot supplement the same. Even a policy decision taken by the Government cannot have the force of rule made under Article 309 of the Constitution of India. Needless to state that Article 162 whereby the Government is competent to issue administrative instructions/orders and Article 309 operate in different area. In exercising the powers under Article 162, the Government cannot ignore the Rules framed under Article 309. Thus, any appointment or regularisation of an appointment made in contravention of the rules made under Article 309 shall be void. Needless to state that Article 162 whereby the Government is competent to issue administrative instructions/orders and Article 309 operate in different area. In exercising the powers under Article 162, the Government cannot ignore the Rules framed under Article 309. Thus, any appointment or regularisation of an appointment made in contravention of the rules made under Article 309 shall be void. It is equally settled law that the rules framed under Article 309 cannot be amended or modified by an administrative order or instruction even by way of adding to the provisions of the statutory rule, unless there is a gap in the rule which required to be fill up. Therefore, what essentially follows is that the Government cannot amend or supersede the statutory Rules by administrative instructions and it is only when the Rules are silent on any particular point can the Government fill up the gaps and supplant the Rules or the law by issuing instructions that too not inconsistent with the Rules. Thus, an administrative instruction cannot abridge or run counter to statutory provision or Rule. 14. Having noticed the well settled proposition of law, we now deal with the submission of the petitioners. We find an inherent fallacy in the submission of the learned counsel for the petitioners because admittedly in this case the Rules under Article 309 have been framed on 11.5.2011 while the so called policy/administrative instructions as are being relied upon by the petitioners pertain to the previous years of 1998 and 2008 respectively, which clearly proves that in fact the rule making authority was absolutely clear and conscious regarding the earlier policy/administrative instructions but yet it took a conscious decision by not incorporating the so called policy decision/ administrative orders in the statutory rules so framed. Would any of these instructions been issued after framing of the rules under Article 309 probably the petitioners may have had something to say but once these instructions are prior to the Rules framed under Article 309 these instructions in so far as they are in conflict with the Rules cannot be relied upon. Therefore, the argument raised by the learned counsel for the petitioners qua the applicability of the administrative instructions, deserves to be rejected on this short ground alone. 15. Therefore, the argument raised by the learned counsel for the petitioners qua the applicability of the administrative instructions, deserves to be rejected on this short ground alone. 15. However, the petitioners would further contend that the other Government departments have chosen to follow the administrative instructions despite these being contrary provisions contained in the Rules framed under proviso to Article 309 of the Constitution. For this purpose, he referred to advertisement issued by the Department of Education and Ayurveda respectively (supra). On the strength of these notifications, learned counsel for the petitioners would contend that the State being a model employer cannot adopt two different yardsticks to make the recruitment. 16. At this stage, it may be noticed that the petitioners have not chosen to sue the State properly through its Chief Secretary but have chosen to sue the State through the Principal Secretary (Health). It was the State through its Secretary (Health) alone, who could have given befitting reply to the allegations made by the petitioners. In so far as the respondents herein is concerned, he has clearly maintained and rightly so that different recruitment rules on which basis the petitioners are laying claim pertain to different categories of posts existing in different departments and the same have nothing to do with the present claim of the petitioners in any way of manner. In fact, it is further maintained and again rightly so that till and so long the amendment in the Recruitment and Promotion Rules of the category of Staff Nurse in the respondent-Department is not carried out and notified in the Rules itself, the petitioners have no legal claim to maintain. 17. This contention otherwise is meritless because a negative parity can never be given and perpetuated by the Court. Moreover, the concept of a quality is a positive concept which cannot be enforced in negativity. Further even an incorrect decision cannot be made foundation and basis for asking the Court to take similar view inasmuch as the parity is not extendable qua illegal act. 18. The learned counsel for the petitioners would then contend that this Court had ample power to issue direction to the respondents in exercise of powers under Article 226 of the Constitution of India and mould to the peculiar situation of the case. 18. The learned counsel for the petitioners would then contend that this Court had ample power to issue direction to the respondents in exercise of powers under Article 226 of the Constitution of India and mould to the peculiar situation of the case. He further contended that this Court can compel the performance in a proper and lawful manner of the discretion conferred upon the Government or public authority by giving necessary directions where the Government or the public authority had failed to exercise or had wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or the same had been exercised in a malafide manner or on irrelevant consideration. For this purpose, he had relied upon the following observations of the Hon’ble Supreme Court in Comptroller and Auditor General of India and another vs. K.S. Jagannathan and another (1986) 2 SCC 679 wherein it has been held as under: “18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission – both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What is the Division Bench did was to issue directions to the appellant in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has a power to issue to any person or authority, including in appropriate cases, any government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. ITO AIR 1966, SC 81. In Dwarkanath v. ITO AIR 1966, SC 81. This Court pointed out that Article 226 is designedly couched in wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts “to reach injustice wherever it is found” and “to mould the reliefs to meet the peculiar and complicated requirement of this country.” In Hochtief Gammon v. State of Orissa, AIR 1975 SC 2226 this Court held that the powers of the Courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of the orders passed by the government or its officers. 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.” 19. We are afraid that the judgment in the case of K.S. Jagannathan (supra) relied upon by the learned counsel for the petitioners is not at all applicable to the facts of the present case. Admittedly the administrative instructions as are being relied upon by the petitioners had been issued much prior to the statutory rules framed under Article 309 of the Constitution of India and moreover, these rules are in conflict with the statutory rules. The Court cannot pass any illegal order. 20. Moreover the question relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, though obviously subject to certain limitations or restrictions envisaged in the Constitution and, therefore, it is not for the statutory tribunals or the Courts at any rate to direct the Government to have a particular method of recruitment or eligibility criteria as held by the Hon’ble Supreme Court in P.U. Joshi and others vs. Accountant General, Ahmedabad and others (2003) 2 SCC 632 as under: “10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.” 21. Even otherwise it is settled that it is for the rule making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and Tribunals can neither prescribe the qualification nor entrench upon the power of the concerned authority as held by the Hon’ble Supreme Court in Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh vs. Usha Kheterpal Wale & Others (2011) 9 SCC 645 , as under:- “It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules. [See J. Rangaswamy vs. Government of Andhra Pradesh- 1990 (1) SCC 288 and P.U. Joshi vs. Accountant General -2003 (2) SCC 632]. [See J. Rangaswamy vs. Government of Andhra Pradesh- 1990 (1) SCC 288 and P.U. Joshi vs. Accountant General -2003 (2) SCC 632]. In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable.” 22. Therefore, in view of the aforesaid discussion and for the reasons thus stated, we find this petition to be totally misconceived and against the well settled principles of law and accordingly, the same is dismissed. Since all the petitioners are unemployed, we refrain from imposing any costs. Pending applications, if any, are also disposed of.