Ruchi Kumari vs High Court Of Himachal Pradesh Through And Others

Sr. No,"Nomenclature of

the post","post Pay scale

and Grade pay","Mode of

Appointment","Age for direct

appointment",Qualification

1.,2.,3.,4.,5.,6.

,"Assistant

Programmer","Rs.10300-

34800+3800/-

Grade pay","By direct

recruitment from

the eligible persons

as per column

Nos. 5 and 6.","22 to 45 years to

be seen on the last

date of receipt of

applications.","a). B.E/B.Tech in

Computers or I.T. or

equivalent technical

qualification at least in

second division.

Or

b). B.Sc/B.A/B.Com in

First Division with post

Graduate Diploma in

Computer application/I. T

with two (2) years

experience as System

Assistant or Asstt.

Programmer on higher or

equivalent post.

Or

c). (xxxx)

or

d). Matriculation with 3

years Diploma in

Computers from any

recognized Polytechnic

College or equivalent

technical qualification from

the recognized

Institution/Board/University

with four (4) years

experience as at (b) above.

Sr. No.,"Nomenclature of

the post","Pay scale and

Grade pay","Mode of

Appointment","Age for direct

appointment",Qualification

1.,2.,3.,4.,5.,6.

,"Assistant

Programmer","Rs.10300-

34800+3800/-

Grade pay","(a) By selection on

the basis of limited

competitive

examination from

amongst the

System Officers

working under the

e-Courts Project

and continued

thereafter in High

Court of

H.P/Courts

subordinate to the

High Court of

H.P. having

minimum 3 years

experience as

System Officers.

(b) Failing which

by direct

recruitment from

the eligible persons

as per column

Nos. 5 and 6.","22 to 45 years to

be seen on the last

date of receipt of

applications.","a). B.E/B.Tech in

Computers or I.T. or

equivalent technical

qualification at least in

second division.

Or

b). B.Sc/B.A/B.Com in

First Division with post

Graduate Diploma in

Computer application/I. T

with two (2) years

experience as System

Assistant or Asstt.

Programmer on higher or

equivalent post.

Or

c). (xxxx)

or

d). Matriculation with 3

years Diploma in

Computers from any

recognized Polytechnic

College or equivalent

technical qualification from

the recognized

Institution/Board/University

with four (4) years

experience as at (b) above.

“29. his argument, as presented, is attractive but it assumes in the court a right of scrutiny somewhat wider than is generally recognized.",,,,,

Article 16 of the Constitution which ensures to all citizens equality of opportunity in matters relating to employment is but an instance or,,,,,

incident of the guarantee of equality contained in article 14. The concept of equal opportunity undoubtedly permeates the whole spectrum,,,,,

of an individual's employment from appointment through promotion and termination to the payment of gratuity and pension. But the concept,,,,,

of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that,,,,,

those who are similarly circumstanced are entitled to an equal treatment.,,,,,

Classification, however, is fraught with the danger that it may produce artificial inequalities and therefore, the right to classify is",,,,,

hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to",,,,,

govern well-marked classes characterized by different and distinct attainments. Classification, therefore, must be truly founded on",,,,,

substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must,,,,,

bear a just and rational relation to the object sought to be achieved.â€​,,,,,

The amendment in the Rules, carried by High Court, vide 2nd amendment dated 01.10.2016 cannot stand the scrutiny of law as it violates Articles",,,,,

14 and 16 of the Constitution of India. The classification so made vide amendment supra cannot be said to be reasonable and also cannot be said to,,,,,

have been made to achieve any legally sustainable objective. No reason much less any plausible reason has come forth to justify such act. Not even a,,,,,

single word has been uttered on behalf of the High Court justifying any reason which might have weighed with it for creating a special class. Even,,,,,

otherwise also we have not been able to perceive any single reason for making such classification. To consider that the system officers working under,,,,,

e-courts had gained special experience will only be a fallacy, because firstly, there is nothing on record to suggest such hypothesis and secondly it",,,,,

cannot be assumed that except for these persons others would have lacked in such experience.,,,,,

Once the persons working under a specific project were held to have no right of preferential treatment in the appointment to the post of Assistant,,,,,

Programmer, It was highly unreasonable and arbitrary on the part of the High Court to have recognized such preferential right in their favour by",,,,,

carrying impugned amendment to 2014 Rules. The claims of the System Officers working with the High Court under e-courts project, as noted above,",,,,,

for regularization and for preferential right of consideration for the post of Assistant Programmer were already rejected by a judicial pronouncement,,,,,

of this Court. Respondents No. 3 to 6 herein were also the petitioners in the above noted writ petitions decided by this Court. Still, the High Court",,,,,

volunteered to amend the 2014 Rules which has the effect of undoing the effect of the judicial pronouncement on the issue.,,,,,

The scope to undo effect of judicial pronouncement by legislative action has been discussed by Hon’ble Apex Court as under in Indian,,,,,

Aluminium Co. and Others Vs State of Kerala and others (1996) 7 SCC 637 :-,,,,,

â€36. The validity of the validating Act is to be judged by the following tests: [i] whether the legislation enacting the validating Act has,,,,,

competence over the subject matter; [ii] whether by validation, the legislature has removed the-defect which the court had found in the",,,,,

previous law [iii] whether the validating law is inconsistent with the provisions of Chapter III of the Constitution. If tests are satisfied, the",,,,,

Act can confer jurisdiction upon the Court with retrospective effect and validate the past transactions which were declared to be,,,,,

unconstitutional. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the,,,,,

judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without,,,,,

properly removing the base on which the judgment is founded.â€​,,,,,

Hon’ble Supreme has reiterated the same view in Union of India and others Vs. Exide Industries Ltd and another, (2020) 5 SCC 274:-",,,,,

It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any,,,,,

declaration of invalidating a judgment of the Court without altering the legal basis of the judgment as a judgment is delivered with strict,,,,,

regard to the enactment as applicable at the relevant time. However, once the enactment itself stands corrected, the basic cause of",,,,,

adjudication stands altered and necessary effect follows the same. A legislative body is not supposed to be in possession of a heavenly,,,,,

wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has",,,,,

multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts",,,,,

a law to that effect. It is in the nature of a ‘trial and error’ exercise and we must note that a lawmaking body, particularly in statutes",,,,,

of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into",,,,,

doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when",,,,,

it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the",,,,,

invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid.â€​",,,,,

Thus, It is well settled that the declaration made by a judgment of Constitutional Court can be undone by a legislative or executive action only in",,,,,

permissive circumstances. In the case in hand, no such special circumstances have been carved out and, therefore, the act of the High Court in",,,,,

amending the Rules in the manner as detailed above cannot be countenanced.,,,,,

The objection of respondent No.1 to the effect that challenge laid by the petitioner to the amendment carried in 2016 and also to the recruitment,,,,,

process initiated in January, 2019 is highly belated and thus suffers from the vice of delay and laches, deserves to be rejected. It is clearly borne from",,,,,

the record, rather it is admitted by the High Court that there was no need to advertise the posts of Assistant Programmer as the preferential right of",,,,,

selection, as per amended Rules, was to the System Officers working with the High Court. It was not published even on the website of the High",,,,,

Court. In absence of such publication, it cannot be understood as to how the petitioner could have gained the knowledge of the recruitment process",,,,,

initiated in January, 2019 and also of the amended Rules on the basis of which such process was undertaken. There is nothing on record to discredit",,,,,

the version of the petitioner that it was only in the month of March, 2020 that the petitioner noticed result of written examination published by High",,,,,

Court on its website in pursuance to the selection process undertaken on the basis of Circular No. HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019.",,,,,

That being so, we have no hesitation to hold that the petitioner acquired the cause of action to challenge the impugned amendment to the Rules as well",,,,,

as recruitment process only when it came to her knowledge.,,,,,

It is also well settled that absence of proper publicity to the proposed recruitments to public posts itself amounts to violation of equal opportunity in,,,,,

public employment. Reference can be made to judgment passed in Union Public Service Commission vs Girish Jayanti Lal Vaghela (2006) 2 SCC 482,",,,,,

wherein it has been held as under:-,,,,,

“10. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of,,,,,

opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to,,,,,

create a constitutional right to equality of opportunity and employment in public offices. The words ""employment"" or ""appointment"" cover",,,,,

not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any,,,,,

post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and,,,,,

holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written,,,,,

examination or interview or some other rational criteria for judging the Inter se merit of candidates who have applied in response to the,,,,,

advertisement made. A regular appointment to a post under the State or union cannot be made without issuing advertisement in the,,,,,

prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their,,,,,

names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications,,,,,

from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the,,,,,

guarantee enshrined under Article 16 of the Constitution. (See B. S. Minhas vs. Indian Statistical Institute and others AIR 1984 SC 363).â€​,,,,,

Similarly, in State of Bihar vs Upendara Narain Singh and others (2009) 5 SCC 65, Hon’ble Supreme Court has held as under:-",,,,,

“13. The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open,,,,,

advertisement so as to enable all eligible persons to compete for selection on merit Umesh Kumar Nagpal v. State of Haryana and Ors. ;,,,,,

Union Public Service Commission v. Girish Jayanti Lal Vaghela ; State of Manipur and Ors. v. Y. Token Singh and Ors. and Commissioner,",,,,,

Municipal Corporation, Hyderabad and Ors. v. P. Mary Manoranjani and Anr. . Although, the Courts have carved out some exceptions to",,,,,

this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary",,,,,

to elaborate that aspect.â€​,,,,,

CONCLUSION,,,,,

In the light of the above discussion, the petition is allowed. 2nd amendment dated 01.10.2016 carried to the High Court of Himachal Pradesh",,,,,

Members of Technical Manpower (Computers) (Appointment, Conditions of Service and Conduct) Rules, 2014 prescribing preferential mode of",,,,,

appointment for the System Officers working under the e- Courts project for the post of Assistant Programmer is quashed and set aside.,,,,,

Consequently, the recruitment process for the post of Assistant Programmer initiated by the High Court of Himachal Pradesh vide Circular No.",,,,,

HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019 is also quashed and set aside.",,,,,

The writ petition is accordingly disposed of in the aforesaid terms, so also the pending application(s), if any.",,,,,