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TMI Blog2006 (7) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... nd joining the post or till such time his services were required by the department. The appellant was confirmed in his post on 13.5.1978, whereas the 3rd respondent purported to have been appointed on a regular basis without undergoing the requisite selection process as provided for in the 1992 Rules and without being recommended therefor by the Public Service Commission. The State of U.P., by an order dated 15.11.1995 appointed the 3rd respondent as Assistant Director Factories on regular basis with effect from the date of issuance of the order providing that he would be on probation for a period of two years. Indisputably, there were six posts of Deputy Director of Factories in the State of U.P., out of which four posts were designated as Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one as Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. As noticed hereinbefore, both the posts of Assistant Director of Factories, formerly known as Inspector of Factories, and Deputy Director of Factories (Admn.) were to be filled up through the Public Service Commission. It is furthermor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Secretary Labour Department U.P. Shasan. The said note-sheet was placed before the then Chief Minister, State of U.P. on 20.4.1997 and was approved on 21.4.1997. The Principal Secretary issued a letter to the Labour Commissioner, U.P. that the Governor, after due consideration, directed conversion of one temporary post of Deputy Director of Factories (Chemical) into the post of Deputy Director of Factories (Admn.). It was stated: In pursuance of the above order the necessary amendment in the UP Factories in Boilers Service Rules 1980 shall be issued later on. The 3rd respondent, pursuant to the purported conversion of the said post, was promoted as Deputy Director of Factories (Administration). The appellant herein filed a writ petition questioning the same before the Lucknow Bench of the High Court of Judicature at Allahabad praying for the following reliefs: (i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25th April, 1997 promoting the Respondent No.3 on the post of Deputy Director of Factories (Administration) as contained in Annexure No.1 to this writ petition; (ii) to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant nor any relief was sought for in that behalf in the writ petition and, thus, the same should not be allowed to be raised before this Court. In any event, the same could not have been challenged collaterally after 10 years' of initial appointment and 2 years after the regularization of the services of the said respondent; (ii) The appellant should have impleaded the Chief Minister and Principal Secretary in their personal capacities as allegation of favoritism was made against them. In any event, the appointment having been made by the State of U.P. in terms of 1992 Rules of business upon selection by the Departmental Promotion Committee; the order of promotion was valid in law; (iii) Appointment of the 3rd respondent was made bona fide; (iv) No relief having been sought for questioning conversion of the post in the writ petition, no grievance in that behalf can be permitted to be raised herein. Furthermore, the appellant himself having claimed for promotion to the said post, he cannot be permitted to approbate and reprobate; (v) Rule 5(iii) should be construed in a reasonable manner and read fairly. If a broad meaning theret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 provides for procedure for recruitment, whereas Rule 16 provides for recruitment by promotion, which is in the following terms: 16. Procedure for recruitment by promotion.- Recruitment by promotion to various categories of posts in the service shall be made in accordance with the general rules made by the Governor laying down the procedure for promotion in consultation with the Commission. The criteria for promotion shall be as indicated against each in rule 5 to these rules. Note The rules laying down the procedure in force at the commencement of these rules are Uttar Pradesh Promotees by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time. In terms of Rule 22, separate seniority lists are to be maintained for each category of posts in the service. Rule 28 speaks of relaxation, which is in the following terms: 28. Relaxation from other conditions of service.- Where the Governor is satisfied that the operation of any rule regulating the conditions of service of the members of the service causes undue hardship in any particular case, he may, in consultation with the commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not referred to the Public Service Commissions, although, for the purpose of disposal of this matter, it may not be necessary to delve deep into the question as regards the validity or otherwise of the said action on the part of the State of U.P., we may notice that a Constitution Bench of this Court in Secretary, State of Karnataka Ors. vs. Umadevi Ors. [2006 (4) SCALE 197], has emphasized on compliance of requirements of the constitutional scheme in making the appointments as adumbrated in Articles 14 and 16 of the Constitution of India. The Court emphasized that even in the matter of regularization of service the provisions of Articles 14 and 16 of the Constitution cannot be given a complete go-by. The extent of the power of the State to make relaxation of the rules also came up for consideration of the Constitution Bench. The Constitution Bench referred to a recent decision of this Court in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela Ors. [2006 (2) SCLAE 115], wherein it was observed: 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 appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : OLD RULE (Existing) NEW RULE (Substituted) 5(iii) Deputy Director of Factories (Administration) -5(iii) Deputy Director of Factories (Administration) By promotion on the basis of seniority subject to the rejection of unfit, through the Commission from amongst the Permanent Assistant Director of Factories, who have put in at least five years of continuous service including temporary and officiating service. By promotion on the basis of seniority subject to the rejection of the unfit, through the Commission from amongst substantively appointed Assistant Director of Factories, who have put in at least five year service as such on the first day of the year of recruitment. The aforesaid Rule 5(iii), thus, requires that on the date of selection, the candidate should have been substantively appointed as Assistant Director of Factories. It does not speak of experience in the service alone. The submission of Mr. Dinesh Dwivedi that the words as such referred to 5 years' experience of working in the post and not 5 years' experience in the substantive capacity cannot be accepted. An ad hoc employee who has been appointed in violation of the service rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e experience gained by him even during his temporary appointment may also be specific appointment. The expression as such clearly is referable to the expression substantively appointed . It has nothing to do with the period of five years as was submitted by Mr. Dwivedi. The said Rule read in its entirety would mean that the candidate for promotion must be appointed substantively and when so appointed, he has to put in at least five years service as such. The expression first day of the year of recruitment is also of significance. By reason of ad hoc appointment de'hors the rules, nobody is recruited in the service in the eyes of law. The expression recruitment would mean recruitment in accordance with the rules and not de'hors the same. Absence of experience in substantive capacity is not a mere irregularity in this case. It would not be a mere irregularity, when a person not eligible therefor would be considered for promotion. It may be that for the purpose of direct appointment, experience and academic qualifications are treated to be at par, but when an eligibility criteria has been provided in the Rules for the purpose of promoting to a higher post, the same must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. It was further observed: It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. However, in the case of irregular appointment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y no reason why an exception should have been made in his case. The difference in concept of malice in law and malice on fact stand is well known. Any action resorted to for an unauthorized purpose would construe malice in law. {See Smt. S.R. Venkataraman vs. Union of India Anr. [(1979) 2 SCC 491 : AIR 1979 SC 49] State of A.P. vs. Goverdhanlal Pitti [(2003) 4 SCC 739], Chairman M.D., BPL Ltd. vs. S.P. Gururaja [(2003) 8 SCC 567 and see also Punjab SEB Ltd. vs. Zora Singh [(2005) 6 SCC 776].} Malice in its legal sense means malice such as may be assumed for a wrongful act intentionally but without just cause or excuse or for one of reasonable or probable cause. The term malice on fact would come within the purview of aforementioned definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked as has been described by Viscount Haldane in Shearer and Another v. Shields (1914) AC 808 at p. 813 in the following terms: A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1989 without interruption and upto 1995 on ad hoc basis and in regular service since 15.11.1995. It was also stated that relaxation could be given to fulfil reservation quota under the 1994 Act, in terms whereof relaxation for qualifying service for the aforementioned post could be accorded. Why the Public Service Commission was ignored, has not been explained. The idea of conversion of the post should have been mooted keeping public interest in view and not the interest of an individual. The entire approach of the authorities of the State of U.P, thus, was only for achieving a private interest and not the public interest. It was in that sense, the action suffered from the vice of malice in law. It has not been disputed that there were other employees also who belonged to scheduled caste and were senior to the 3rd respondent. It has also not been disputed that no relaxation could be granted for promotion in terms of 1994 Act. Five years' experience from the date of substantive requirement, thus, being an essential qualification, no relaxation could have been given in that regard to the 3rd respondent. The 1994 Act was not enacted for meeting such a contingency. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Article 14 or 16 would be violative of the basic features of the Constitution of India as adumbrated in Kesvananda Bharati vs. State of Kerala [(1973) 4 SCC 225 : 1973 Supp. SCR 1]. But, it is trite that while a law is patently arbitrary, such infringement of the equality clause contained in Article 14 or Article 16 may be held to be violative of the basic structure of the Constitution. {See Waman Rao vs. Union of India [(1981) 2 SCC 362], Maharao Saheb Shri Bhim Singhji, etc. vs. Union of India Ors. [AIR 1981 SC 234] and Minerva Mills Ltd. Ors. vs. Union of India Ors [(1980) 3 SCC 625].} A statute professing division amongst citizens, subject to Articles 15 and 16 of the Constitution of India must pass the test of strict scrutiny. Article 15(4) and Article 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking equality clause, the makers of the Constitution thought of protective discrimination and affirmative action. Such recourse to protective discrimination and affirmative action had been thought of to do away with social disparities. So long as social disparities among groups of people are patent and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements. For the reasons aforementioned, the impugned judgment cannot be sustained. The question, which now arises for consideration, is as to whether this Court, despite gross illegalities committed by the State, would refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India. The order of promotion was issued on 25.4.1997. The writ petition was filed within a few days thereof, i.e., on 2.5.1997. As the 3rd respondent had joined the post, no stay had been granted by the High Court. He might have been working for about 9 years, but he was holding the post during the pendency of the writ petition. The appellant was promoted only in the year 2001. He had to suffer the ignominy of working under a junior for a long time. The fact that the 3rd respondent would retire in May, 2007 is again wholly immaterial. It is of not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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