1

AFR

Reserved on 2

nd

September, 2013

Delivered on 18

th

September, 2013

PUBLIC INTEREST LITIGATION No. - 54860 of 2004

In Re:Regularization Of Class IV Employees Of The High Court Of

Judicature At Allahabad

*****

Hon'ble Laxmi Kanta Mohapatra,J.

Hon'ble Sunil Ambwani,J.

Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Bharati Sapru,J.

Hon'ble Manoj Misra,J.

(By the Court)

The facts in a nutshell are that the High Court had raised a

demand for sanction of additional posts of class-IV employees in

order to meet the exigencies of the establishment. This demand

was met by the State Government with the sanction of 355

temporary posts under the Government Order dated 10.12.2004.

As soon as the said sanction order was received, the then Hon'ble

the Acting Chief Justice vide order dated 12.12.2004 directed the

Registrar General to take necessary action forthwith and send a

copy to the Registrar at Lucknow in this regard. The Registrar

General and the Registrar at Lucknow were directed to submit a

report by 14.12.2004. The report was submitted indicating

primarily that the bifurcation of the deployment of the posts

between Allahabad and Lucknow are determined on the strength

of Hon'ble Judges sitting at both places in the ratio of 70 : 30 or

as directed by Hon'ble the Chief Justice. At the very outset we

may mention that the present controversy relates to the

appointments and regular engagements of Class IV employees

and Drivers under the powers exercisable under Article 229 of the

Constitution read with the Allahabad High Court Officers and Staff

(Conditions of Service and Conduct) Rules, 1976 and the

Allahabad High Court Staff Car Drivers (Conditions of Service and

2

Conduct) Rules, 2000.

The then Hon'ble Acting Chief Justice perused the report

that was submitted and passed the following order on

13.12.2004:-

“Seen the report. It is approved.

Re: Proposal No.1:- Bifurcation of the sanctioned 23 posts

(21 + 2 leave reserved posts) of drivers be made as far as

possible as per engagements of D.L./C.L. Drivers at

Allahabad and Lucknow as on today, because earlier no post

of driver out of the 19 sanctioned posts was given to

Lucknow Bench.

Re: Proposal No.2:- A committee consisting of Registrar

(Budget), Registrar (Establishment) and Joint Registrar

(Protocol) is constituted for the aforesaid recruitment of

drivers in accordance with the Drivers Service Conduct

Rules 2000.

However, for Lucknow Bench there will be a separate

Committee for this purpose to be approved by Hon'ble the

Acting Chief Justice.

Re: Proposal No.3:- For the recruitment of the remaining

332 Class IV posts sanctioned by the Government as

mentioned in the office note the Committee consisting of

the aforesaid officers shall make recruitment in

accordance with the relevant rules .

However, for Lucknow Bench there will be a separate

Committee for this purpose to be approved by Hon'ble the

Acting Chief Justice.

The bifurcation in respect of the aforesaid 332 Class IV

posts be also made as far as possible as per engagements

of D.L./C.L. At Allahabad and Lucknow today. The

bifurcation is based on data contained in the accompanying

office report.

The report be submitted by 11 a.m. Tomorrow.

Acting Chief Justice

Dt. 13.12.2004”

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The said order directed that a comprehensive report be

submitted by 11.00 A.M., the very next day. Accordingly, a report

was prepared and the same was submitted in terms of the

directions contained therein on 14.12.2004. The said report is

Annexure-7 to the Affidavit dated 23.7.2013 filed on behalf of the

High Court.

Three proposals were made by the Registrar that were

accepted by the then Hon'ble Acting Chief Justice vide order dated

14.12.2004 which is extracted here under:-

“Proposal at 1 and 2 approved.

As regards proposal No.3 by virtue of the powers vested in

me by Rule 45 of Allahabad High Court Officers and Staff

(Conditions of Service and Conduct) Rules, 1976, since the

candidates today admittedly are over 18 years of age, they

shall continue in service.

The above would also apply to Sri Sandeep Patil.

Acting Chief Justice

Dt. 13.12.2004”

It is after these orders were passed by the then Hon'ble

Acting Chief Justice that the controversy sparked off with the

passing of the suo motu orders by the Division Bench at Allahabad

on 17.12.2004 to the following effect:-

“It has been brought to our notice that 355 posts of class

IV employees have been sanctioned by the State

Government on 10.12.2004 and the process of

regularisation of casual labourers, daily wage employees

and daily wage drivers has been completed within 3

days. It has also been brought to our notice that out of 355

posts, 192 posts have been earmarked for Lucknow

Bench. It is surprising that about 19 Judges hold court at

Lucknow and about 56 Judges are at Allahabad , but

the number of daily wage class IV employees is alarmingly

very high at Lucknow than at Allahabad. It is not known

4

how these persons have been recruited and appointed

as daily wagers etc. and who was responsible for their

recruitment. We have also been informed that 7 daily

wage class IV employees at Allahabad have not been

regularized on the ground that they are over age . In

the past the persons engaged as daily wagers, who were

appointed by the Judges, have been regularized even

though they were over age. It is also surprising that these

seven daily wagers have not been regularized. Further in

the cadre of drivers also we notice that only 7 drivers

are being regularized at Allahabad whereas 16 drivers

are being regularized at Lucknow Bench .

We have also been informed that persons have

been appointed on class-III posts though no employee

could be appointed on ad hoc basis without there being

any written examination . It has also come to our notice

that there is also mal-practice in the allotment of

quarters to class IV employees working in the High

Court, which is being allotted out of turn without considering

the seniority of employees. Even daily wagers had been

allotted quarters.

We have taken suo moto cognizance of the matter

in public interest and the registry is directed to allot a

number to this case. We called for the Registrar General of

this Court, but we were informed by Sri G.K. Chaturvedi,

Registrar (Budget) that he had already proceeded to

Lucknow.

The Registrar General and Registrar, Lucknow Bench,

are directed to place the entire records of Allahabad as well

as of the Lucknow Bench of all daily wagers, casual

labourers and class III ad hoc employees, as directed

above, before us on 20.12.2004.

Considering the entire facts and circumstances

narrated above, until further orders of this Court,

regularization of 355 class IV employees viz. Casual

labourers, daily labourers and daily wage drivers made by

the High Court pursuant to sanction of 355 posts by order of

the State Government dated 10.12.2004 shall remain

stayed. Till this matter is decided, no appointment of

daily wage employees or casual labourers shall be

made.

Sri G.K. Chaturvedi, Registrar (B) is directed to inform

the order passed by us to the Registrar General today. The

Registrar General shall also bring this order to the

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notice of Hon'ble the Acting Chief Justice.

Sd/- Hon. V.M. Sahai, J

Sd/- Hon. Tarun Agarwala, J

Dt. 17.12.04”

A perusal of the said order indicates that the Bench

expressed it's view that the regularisation had been hurriedly

completed within 3 days and that the bifurcation of 355 posts

between Allahabad and Lucknow was alarmingly disproportionate

when 56 Judges were at that time sitting at Allahabad and 19 at

Lucknow. A doubt was also cast with regard to the process of

recruitment and out of 16 drivers, who were regularised, only 7

were given this benefit at Allahabad.

The Bench also indicated two additional issues namely the

appointment of class-III ad hoc employees without holding of any

written exams and the unauthorised allotment of residence to

class-IV employees including ad hoc employees when permanent

employees, who were senior, were already standing in the queue.

The Bench had directed that the order should be placed

before the Registrar General and a report had been called for with

a direction that the matter will be taken up on the next date fixed

before the same Bench.

When this order was brought to the notice of Hon'ble the

Acting Chief Justice, the following order was passed on

18.12.2004 on the administrative side:-

“O R D E R

(In Re: Regularisation of Class IV employees of High Court)

“I have perused the order dated 17.12.2004 passed

by a Division Bench of this Court comprising of Hon. V.M.

Sahai and Hon. Tarun Agrawala, JJ, which as directed by

6

the said Bench was placed before me by the Registrar

General of the Court.

A perusal of the said order would show that the

Division Bench has directed the Registrar General and the

Registrar, Lucknow Bench, Lucknow, to place the entire

records of Allahabad and Lucknow of all daily wagers, casual

labourers and class-III ad-hoc employees before them on

20.12.2004.

In my opinion, in view of the provisions contained in

Rule-14 of Chapter-V of the Allahabad High Court Rules,

1952 and the ratio laid down by a Full Bench of this Court in

Para 36 in the case of Sanjay Kumar Srivastava Vs.

Acting Chief Justice and others, reported in Allahabad

Weekly Cases 1996 at page 644 , the case cannot be

treated as tied-up or part-heard of the aforesaid Bench.

Rule 14 of Chapter V of the Allahabad High Court

Rules, 1952 read thus:-

14. Tied up cases – (1) A case partly heard by a

Bench shall ordinarily be laid before the same Bench

for disposal. A case in which a Bench has merely

directed notice to issue to the opposite party or

passed an ex-parte order shall not be deemed to be a

case partly heard by such Bench.

(2) When a criminal revision has been admitted on the

question of severity of sentence only, it shall ordinarily

be heard by the Bench admitting it.

A perusal of Rule-14 (1) would make it manifest that a

case in which a Bench has merely directed notice to be

issued to the opposite party or passed an ex-parte order,

shall not be deemed to be a case partly heard by such

Bench.

A perusal of the order dated 17.12.2004 passed by

Hon. V.M. Sahai and Hon. Tarun Agrawala, JJ, shows that it

merely directed the Registrar General and the Registrar,

Lucknow Bench, Lucknow, to place the entire records of

Allahabad as well as Lucknow Bench, of all daily wagers,

casual labourers and class-III ad hoc employees before

them on 20.12.2004 and the aforesaid order, which was

passed by them, was an ex-parte order. Since it was an ex-

parte order, in view of the provisions contained in Rule 14

(1), it would not be deemed to be a part heard case of the

aforesaid Bench.

7

I am fortified in my view by the observations

contained in para 36 of the Full Bench decision of this Court

rendered in the case of Sanjay Kumar Srivastava Vs. Acting

Chief Justice and others (supra), which were made while

interpreting Rule 14 (1) of the Allahabad High Court Rules,

which read thus:-

“The other part of sub rule (1) lays down in clear

terms that the case in which the Bench has merely

issued notice to the opposite party or had passed an

ex-parte order shall not be deemed to be a case partly

heard by that Bench. This provision has been made to

specify that a case does not become part-heard

merely by passing of interim order. It also lays down

that if notices are directed to be issued to the opposite

party, the case does not become part-heard case of

that Bench. The consequences are obvious. If the

Division Bench which has merely passed an ex parte

order or directed notice to be issued to the opposite

party locate it as a part heard case or passed an order

that it will come up before that Bench for “further

hearing” or as a “part heard” or as a “tied up” case,

the order would be in violation of the Rules of Court

and, therefore, a nullity. Such an order would be

without jurisdiction and would not confer any

jurisdiction on the Bench concerned to proceed with

that case unless the case is listed before them again

under the orders of the Chief Justice. In a situation,

where any order has been passed indicating such a

case on the order sheet or on the main writ petition to

be a part heard or tied up case, the Chief Justice

inspite of that order would retain his jurisdiction to list

it before the appropriate Bench for hearing as the

order limiting the case to be a part-heard or tied up

would be in violation of the Rules of Court and would

not bind the hands of the Chief Justice from listing

that case as a “seen” case before any other Bench

rather than as a “tied up” case before that very

Bench.”

(emphasis supplied)

In the circumstances, I withdraw the case (in Re:

Regularisation of class IV employees of High Court) from the

Division Bench of Hon. V.M. Sahai and Hon. Tarun Agrawala,

JJ. Considering the importance of the matter and the

issues raised in the order dated 17.12.2004 passed by

the said Bench including the jurisdiction of a Division

Bench of the High Court of suo motu taking

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cognizance as a Public Interest Litigation, I assign it

to a larger Bench comprising of:- (1) Hon. S.R. Alam, J

(2) Hon. Pradeep Kant, J (3) Hon. U.K. Dhaon, J (4) Hon.

Sushil Harkauli J and (5) Hon. Khem Karan, J.

The larger Bench shall hear the case on 20.12.2004,

at 10.00 a.m., at Allahabad. The relevant records stipulated

in the order dated 17.12.2004 shall be produced by the

Registrar General and the Registrar, Lucknow Bench,

Lucknow before it.”

This administrative order gains importance keeping in view

the questions that have been argued before this Court relating to

the maintainability of the reference and taking of Suo Motu

cognizance by the Division Bench. Relying on the decision in the

case of Sanjay Kumar Srivastava Vs. Acting the Chief Justice

(supra), the case was withdrawn from the Division Bench and

then assigned to a larger Bench of five Hon'ble Judges

keeping in view the importance of the issues raised in the

order dated 17.12.2004 and the entire matter including the

jurisdiction of the Division Bench to take Suo Motu

cognizance as a public interest litigation . The case was

directed to be taken up on 20.12.2004 on which date the 5 Judges

Full Bench for the first time assembled and proceeded to vacate

the interim order dated 17.12.2004 but at the same time keeping

in view the questions involved and the issues raised had called

upon the High Court to file a detailed report in the matter. The

Bench further observed that the question of maintainability of the

reference and the Suo Motu cognizance shall also be considered

with a direction that the process of regularisation and

appointment as per the orders of Hon'ble Acting Chief Justice shall

go on but the same shall be subject to the final orders in the

present proceedings. The order dated 20.12.2004 is extracted

hereunder:-

“We have heard Sri Sudhir Agarwal, learned Additional

9

Advocate General, who has appeared on behalf of the High

Court. We have also perused the order of the learned

Division Bench dated 17

th

December, 2004.

Having considered the questions involved and the

issues raised in the order of the Division Bench under

reference, we are of the view that no interim order was

required to be passed by the learned Division Bench. We,

therefore, discharge and vacate the interim order

dated 17

th

December, 2004 passed by the Division Bench.

It is, accordingly, provided that the process for

regularisation/regular appointment/absorption of

Class-IV Employees may be completed which would

be subject to the final orders of this case.

Sri Agarwal, learned Additional Advocate General

appearing for the Allahabad High Court may file detailed

report. The question regarding maintainability of the

writ petition and taking suo moto cognizance in the

facts and circumstances of the case as appears from

the order of the learned Division Bench shall also be

considered on the next date.

List the matter on 21.1.2005.”

It is thereafter that this case remained sine die for seven

years without being taken up and orders for fresh appointments

and regularisation came to be passed from time to time that have

been mentioned in the reports that have been filed in the present

proceedings.

After almost 8 years, the Bench was finally reconstituted

with certain Members of the Bench not being available. The

counsel for the High Court on 14.5.2012, when the Bench first

met after this long spell, sought time to submit a report in

compliance of the order dated 20.12.2004.

The reports that were submitted in compliance of the order

dated 20.12.2004 and the order dated 14.5.2012 are broadly 7 in

number. The first report dated 8.7.2012 which was submitted

before the Court by the Registrar General was taken notice of on

10

9.7.2012. The said report poses 7 queries and then proceeds to

answer them one by one. The first query was about the

sanctioned strength of Class-IV employees of the High Court prior

to the creation of the new posts on 10.12.2004. In response

thereto, the Registrar (Accounts) submitted a report that for the

principal seat at Allahabad 811 posts were sanctioned, the

details whereof provided in Annexure 1 to the said report. It is to

be noted that the aforesaid figures related only to the principal

seat at Allahabad.

It is thereafter that the State Government vide G.O. dated

10.12.2004 created 355 temporary posts for Class-IV employees

in the High Court including Lucknow Bench.

The second query raised in the said report was with regard

to the number of Class-IV employees working as casual labourers,

daily labourers and daily wage drivers as on 9.12.2004, i.e.

immediately prior to the newly sanctioned 355 posts. The said

query has been answered by a note of the Deputy Registrar

(Nazarat) indicating through Annexure 2 to the said report that

144 daily labourers had been engaged up to 9.12.2004, 13 casual

labourers were engaged up to the said date and 17 sweepers

were engaged in the same capacity up to the said date. Thus,

174 Class-IV employees in the aforesaid category had been

engaged.

The third query raised was with regard to the number of

such employees having been regularised against the 355 posts

that came to be sanctioned on 10.12.2004. To the said query the

response given was that 143 such employees whose names

were given in Annexure 3 to the said report were regularised

under orders of Hon'ble the Acting Chief Justice.

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The report recites that no drivers on daily wage basis were

engaged between 10.12.2004 and 20.12.2004 and no daily

labourers were engaged between the said period.

The report against query no. 5 indicates that 7 Class-IV

employees had not been regularised on account of a deficiency,

namely, being overage at the time of their engagements. The

said list is Annexure 4 to the said report.

The report then discloses that the 7 employees on daily

wages who had not been regularised on account of being overage

were extended the benefit of regular appointment by the order of

Hon'ble the Chief Justice on 31.8.2005. Subsequently, 49 daily

labourers were regularised on 15.12.2009 and 9 daily labourers

including 2 sweepers were regularised on 20.11.2010. The list of

these employees is filed as Annexures 7, 8 and 9 to the said

report. Thus, a total of 65 employees were regularised after the

interim order was vacated on 20.12.2004.

The Court having gone through the said report passed an

order on 9.7.2012 that the same does not reflect the entire

correct position including the current status at Lucknow and that

the information was incomplete. The report vaguely signified the

requirements in a generalised form and lacked administrative

precision. The order passed is extracted hereinunder.

“Sri Yashwant Varma, has submitted the report in a sealed

cover, which has been opened and perused by this Court.

The Court finds that even though the figures of the

sanctioned strength of the appointment of the casual and

the daily labour given is in respect of the Principal Seat at

Allahabad only, the figures of the Lucknow Bench has

not been incorporated in the report and merely it has

been stated that the report received from the Lucknow

Bench is enclosed as Annexure 11. The correct picture

is, therefore, not reflected.

12

As prayed by Sri Yashwant Varma, let another report be

submitted by 20th July 2012 incorporating the figures

provided by the Lucknow Bench.

The Registrar General shall also give the details of the

sanctioned strength as on date and the appointment

made as against that sanctioned strength and also

how many ad hoc, daily and casual labours are

working against the sanctioned post or not.

List on 20th July 2012 at 10:00 A.M.

The Bench Secretary is directed to place the report again in

a sealed cover which shall be kept in the safe custody by

the Registrar General to be produced again before the Court

on the date fixed.”

Consequently, a fresh report was submitted by the Registrar

General which is dated 19.7.2012. This report gave facts and

figures afresh indicating the status of the sanctioned strength as

on 9.7.2012. Thus, a consolidated report with regard to Allahabad

and Lucknow was filed along with charts indicating the sanctioned

and working strength of the Class-IV employees in different

categories.

This report was also treated to be not full and complete.

A further query was raised by the Court with regard to the mode

and manner of appointment with a specific query as to whether

the appointments were made in accordance with the 1976 Rules.

The Court on 20.7.2012 also took notice of the Government Order

dated 8.9.2010, whereby the State Government had called upon

the High Court to introduce outsourcing of such posts. Upon being

satisfied that the engagements and appointments during the

period from 2004 to 2012 being not prima facie conforming to

rules, and the facts and figures not being transparent, a fresh

interim order was passed on 20.7.2012 restraining the High

13

Court from making any further engagement or regularisation

against either any permanent or temporary posts of daily

labourers, casual labourers, drivers and the like in the Class-IV

category. The order passed is reproduced hereinunder:-

“This Bench has been constituted for answering the

reference made by Hon'ble the Chief Justice and the related

questions arising out of the issues that have been now

raised keeping in view the two reports submitted by the

High Court through its counsel Sri Yashwant Verma on the

previous as well as one of the reports which has been

placed in a sealed cover in compliance of the order dated

9th July, 2012.

We have carefully perused both the reports and we find

that they do not reflect the correct status of the

posts, sanctioned strength, mode and manner of

appointments against these posts, date of

appointment including that of DL/ CL and DL/CL

drivers. Further it is also not clear as to whether

these appointments have been made by following the

procedure prescribed in the Allahabad High Court

Officers and Staff Rues, 1976 and in what manner. The

Bench, therefore, finds that the reports are deficient on

several counts and during the course of arguments

learned counsel for the High Court, Sri Yashwant Verma,

could not reconcile the figures of permanent and temporary

posts as reflected from the chart appended to the report

from 2004 to 2012.

It is further on record that the State government has issued

a Government Order dated 8th September, 2010

whereby all such appointments, prima facie, have been

directed/recommended to be outsourced and the State

Government simultaneously decided not to sanction any

post for appointment against Class IV Cadre. Further the

Bench finds from the report that there were a large number

of permanent and temporary vacancies existing but there

is no explanation as to why despite these vacancies,

DL/CL's have been engaged for which prima facie,

there is no justification. The report also reflects that

payment of wages to DL/CL's are being made under the

Head “Preliminary Unit” “02-Justice_wages- (Mazdoori)”

under the Grant No. 42 Accounts Head 2014, Administration

of Justice- 102 High Court 03-High Court. The report spells

out that there is no sanction of the State Government

as well as there is no administrative or financial

14

approval against these posts of DL/CL's. The report

also admits that it is not in consonance with the

sanctioned posts. The Bench would, therefore, require a

clarification from the High Court as to whether such

appointments can be made when there is no sanction and

financial approval of the State Government.

Sri Yashwant Verma prays that he may be permitted to

bring on record the facts and figures as desired by the

Bench by way of an affidavit. We grant him a weeks time to

file such an affidavit and the matter shall be placed before

us on 27th July, 2012 at 10. A.M.

In view of the aforesaid facts that have emerged from

record we are prima facie satisfied and find it imperative to

issue an ad interim direction whereby the High Court is

restrained from making any further appointment,

engagement, confirmation or regularization against

any permanent/temporary/DL/CL// CL/DL drivers

posts in the establishment of the High Court either at

the Principal seat at Allahabad or at Lucknow Bench

of this Court.

The two reports shall be retained in a sealed cover to be

again placed before us on the date fixed.”

In between another supplementary compliance report was

filed, but that was in regard to Class-III employees as the issue of

Class-III employees had also been indicated in the order dated

17.12.2004.

The matter was fixed thereafter for 17.8.2012 but could not

be taken up and in between an application was filed on 26.9.2012

making a request for appointment of some labourers. On receiving

this application, the Court took up the matter on 28.9.2012 and

directed the High Court to file an Affidavit alongwith a chart of

deployment including duty hours of the existing class-IV

employees either on permanent/temporary/daily or casual basis.

The order is extracted hereinunder:-

“Supplementary compliance report filed today be

taken on record.

15

The Registrar General is directed to keep it in a sealed

cover.

An application No.291678 of 2012 dated 26.09.2012 has

been filed seeking permission of the Court for recruitment

and posting of additional mazdoors.

There are already sufficient number of Class IV employees

including casual labours and daily labours in the High Court.

Learned counsel for the High Court is directed to file an

affidavit enclosing a chart indicating the deployment

of all the Class IV employees whether permanent,

temporary, casual/daily labours working in this Court

as also in Lucknow Bench of the High Court including

the nature of work and duty hours , so that we may be

in a position to consider and pass appropriate orders on this

application.

As prayed, ten days' time is granted for filing the aforesaid

affidavit. List on 12th October 2012 at 10:00 A.M.

An impression is being created by the Registry that this

Court has directed for stopping the payment of salary to the

temporary employees including the casual/daily labours.

We may clarify that our order does not prohibit the payment

of salary/wages to such existing staff.

It is made clear that on that day, the Court shall hear the

matter finally.

Order Date: 28.9.2012”

A supplementary affidavit was filed on 10.10.2012 in

relation to Class-IV employees which did not disclose the full

deployment of the Class-IV employees whereafter the Court

passed an order on 12.10.2012 to submit another report with

regard to details of deployment of Class-IV employees including

those posted at the residence of Hon'ble Judges. The order is

extracted hereinafter:-

“Supplementary affidavit filed today be taken on record.

16

The Court has perused the supplementary affidavit and finds

that the deployment of all the Class IV employees

working in the Lucknow Bench of this Court has not

been given.

Sri Yashwant Varma, prays for and is granted two weeks for

filing another affidavit giving the details of deployment of all

the Class IV employees whether permanent/temporary/daily

labour/casual labour/sewaks, etc. including the Class IV

employees posted at the residence of Hon'ble Judges.

As prayed, list on 31st October 2012.

It is made clear that on that day the Court shall hear the

matter finally.

The Registrar General is directed to keep all the report in

a sealed cover.

Order Date: 12.10.2012”

A report dated 30.10.2012 was filed by the Officer on

Special Duty (Litigation). The said report encloses the reply to

the queries raised by the Nazarat Department. This report is

quite revealing and indicates the manner in which the deployment

on the directions of some of the Hon'ble Judges and the transfer

of the employees from here to Lucknow did take place. It also

indicates the placement of daily labourers and casual labourers at

the residence and office of the officials of the Registry including

the Registrar at Lucknow. The details of deployment at the

residence of Judges including the camp office at Lucknow of the

Hon'ble Senior Judge and the residence of the Hon'ble the Chief

Justice has also been indicated. Apart from this the Class-IV

employees at the guest house at Lal Bahadur Shastri Marg

Lucknow and Class-IV kept in the pool have been indicated in a

separate list. The deployment of regular and casual and daily

employees in the various sections have been indicated in a

separate list. A list of three employees who were reported to be

absconding without leave or information was also enclosed

therewith.

17

There is another revealing information in the said report

that there is no record of the orders in respect of posting Class-IV

employees at the residences of former Hon'ble Chief Justices,

Hon'ble Judges of the Supreme Court as well as Senior Officers of

the Registry such as the Officer on Special Duty. It has been

further stated therein that it is only a prevailing practice since

long being followed from time to time. The report further states

that in view of the sensitive nature of the aforesaid information

the file may be placed before the Registrar General to report on

such deployment.

The said report was taken notice of by the Court on

31.10.2012 and since the aforesaid deployments were found to be

irregular, the learned counsel for the High Court was called upon

to submit his suggestions so that some appropriate opinion may

be formed in this respect to rationalize the requirement of the

number of employees, their deployment and posting in

accordance with the work requirement of the High Court.

The order dated 31.10.2012 is extracted hereinunder:-

“In compliance of the Court's order dated 12.10.2012, Sri

Yashwant Varma, learned counsel appearing for the High

Court has submitted a report dated 30.10.2012 regarding

deployment of all the Class IV employees employed in this

Court as also in the Lucknow Bench.

The Registrar General is directed to keep the original

report in a sealed cover and produce it before the Court

when the case is listed next.

The Court has perused the said report and is of the opinion

that the Malis, Sweepers, Firemen, etc. appointed by

the High Court are not deployed at the relevant places

but their services are being utilised as peons in various

Sections/Departments of the High Court.

Sri Yashwant Varma is, therefore, directed to give

18

suggestions in the form of an affidavit regarding the

total number of Class IV employees required in

various sections/departments, residence of Hon'ble Judges,

their deployment and also as to what process the High

Court intends to adopt for their recruitment .

As prayed, list on 21st November 2012 at 10:00 A.M.

Order Date: 31.10.2012”

A report dated 8.11.2012 was again submitted indicating

certain additional demands that were raised for the purpose of

staffing the High Court both in the office, the Court and the

residence of Hon'ble Judges. A report dated 19.11.2012 was

also submitted indicating that the request of the State

Government for outsourcing such employees was not

feasible keeping in view the nature of the work in the High Court

and the decision was accordingly conveyed to the State

Government.

An affidavit dated 20.11.2012 was filed where after the

matter was again adjourned on the request of learned Counsel on

12.12.2012. An application was moved on 17.12.2012 making a

request for deployment of 20 temporary hands for the coming

Kumbh Mela 2012 -13. The said application was considered and a

temporary engagement was allowed by this Bench fixing

16.1.2013 in the matter.

The Registrar on the administrative side on 15.1.2013

passed an order constituting a Committee of 4 Officers to submit

a report in the light of the directions issued on 31.10.2012 by the

Bench. An affidavit dated 26.2.2013 was filed along with an

interim report dated 22.2.2013 of the said 4 Member

Committee constituted by the Registrar. The figures therein were

apparently overbearing and aggressively over flowing. The form

and relevancy were doubtful.

19

The Bench accordingly did not find the said interim report to

be justifiable as it was still un-clear on facts and in a state of

happy confusion as a result whereof an order was passed directing

the Registrar General to coordinate with the two court Managers

of the High Court and get a report submitted after verification.

The order dated 26.2.2013 is quoted below:-

“An affidavit has been filed in Court today by the

Registrar General. It is indicated in Page 14 of

the affidavit that the total number of posts

required to be created is 993.

This figure appears to have been arrived at on

the basis of the report submitted by different

Sections. There is nothing in the affidavit to

show that these demands raised by

different Sections for creation of different

number of posts, had been verified by any

Authority.

We, therefore direct that two Court

Managers appointed by the High Court shall

verify the records of each Section and

submit a detailed report with regard to

number of posts to be created in each Section.

The respective Sections shall co-operate with

the Court Managers for the above purpose.

This exercise be completed within forty five days

and the report be submitted before the Registrar

General. The Registrar General shall make

further verification of the report and

submit his comments thereon .

This case be listed on 7th May, 2013.

In the mean time, the entire exercise be done

and an affidavit be filed in Court.”

The two Court Managers were directed to submit a report in

order to rationalize the demands that had been raised for sanction

of additional strength of employees for the principal seat at

20

Allahabad and Lucknow and further to indicate justification for

such rationalisation.

The Court Managers submitted a report dated 3.5.2013

alongwith a summary of the major findings indicating justification

of the present deployment and the number of posts that may be

required for the entire establishment. The said reports have been

taken on record when the matter was heard on 7.5.2013.

A request was made on behalf of the High Court that an

Affidavit be permitted to be filed in response to the facts and

figures as disclosed in the report of the Court Managers. The order

dated 7.5.2013 is extracted hereinunder:-

“In compliance of the order dated 26.2.2013,

two Court Managers have prepared a

detailed report, which is filed in Court today.

Learned Chief Standing Counsel prays for

sometime to file affidavits on behalf of

Registry in response to the said report.

List on 20th May, 2013.

Affidavits be filed by 17th May, 2013 and copies

of the affidavits be made available to the Bench

by 17th May, 2013.

The report filed by two Court Managers be kept

on record.”

The Court Managers performed, and it was so signal a

service that it really helped the establishment to give a second

serious and thoughtful look at the problem. The subsequent

reports started reflecting reality.

The Registrar General vide Affidavit dated 15.5.2013

assisted the Court when the matter was heard on 20.5.2013

alongwith a report from the Nazarat and their comments on the

21

report submitted by the Court Managers. A request was made that

the said report shall be placed before Hon'ble The Chief Justice for

necessary orders. The order passed on 20.5.2013 is reproduced

below:-

“Heard Sri Yashwant Verma, learned Chief

Standing Counsel, appearing for the High Court.

In compliance of the earlier dated 7.5.2013, the

Registrar General of the Court has filed an

affidavit. It is stated in para 8 that issuance

of rationalization, consideration of the

measures indicated in the report of the

Court Managers as well as the comments

and suggestions received in respect of the

same are all issues, which shall be

considered by the Hon'ble Chief Justice or

His Lordship's delegate. It is further stated

that process of consideration and

implementation of appropriate measures

shall take some time. Accordingly, prayer for

further adjournment is made by Sri Yaswant

Verma.

Put up on 15.07.2013.

In the meantime, entire exercise be completed

and affidavit be filed in compliance of the order

dated 7.5.2013, failing which, the Court will

have no option, except to accept the report of

the Court Managers, and to proceed with the

case.”

In the circumstances, it appears that the Registrar General

vide order dated 2.7.2013 again constituted a 5 Member

Committee which submitted a report dated 8.7.2013 stated to

have been approved by Hon'ble the Chief Justice on 12.7.2013.

Confronted with the facts, the registry rationalised the

requirement substantially confirming the reports of the court

managers and also calibrated the number of posts and reduced

the said number of 993 as projected earlier to 321 as per the

22

report aforesaid.

Noticing the said facts in an Affidavit filed by the Registrar

General dated 13.7.2013, the Bench again assembled on

15.7.2013 on which date a direction was given to submit a similar

report with regard to the establishment at Lucknow as the same

was wanting in the earlier report. The order dated 15.7.2013 is

quoted below:-

“In compliance of the order dated 20.5.2013, an

Affidavit has been filed by the Registrar General

before this Court enclosing the report regarding

rationalizing the demand of Class-IV posts at

Allahabad. The said Affidavit be kept on record.

So far as the requirement at Lucknow Bench

is concerned, in the month of May, 2013, an

Affidavit had been filed but, the demand does

not appear to be rationale, especially,

when compared with the demand made by

Allahabad Bench and the report of the

Court Managers.

We, therefore, direct the Registrar General, who

is present in Court, to examine the demand

made by the Lucknow Bench with regard to

rationalization of Class-IV posts and submit

an Affidavit on the next date indicating the

exact number of posts required.

List this case on 22nd July, 2013.

The Registrar General at Allahabad Bench and

Registrar at Lucknow Bench shall remain

present in the Court along with the Court

Managers of this Court.”

From the facts on record, it appears that some report was

prepared on 19.7.2013 and further time was sought from the

Bench on 22.7.2013 to submit the same. It is stated by the

Registrar General in his Affidavit dated 23.7.2013 that the report

was placed before Hon'ble the Chief Justice who has seen the

23

same and the same was finally filed on 29.7.2013 when the

following order was passed:-

“In compliance of the previous order dated

22.7.2013, Sri Yashwant Verma, learned Chief

Standing Counsel, has filed an Affidavit of Sri

Anant Kumar, Registrar General of the

Allahabad High Court annexing therewith a

report dated 19.7.2013, and charts showing the

demand/requisition of class-IV employees for

High Court at Allahabad, as well as, it's Lucknow

Bench at Lucknow.

From the additional demand of concerned

departments of 289 class-IV employees for

Lucknow Bench, the Committee appointed

by Registrar General has rationalised and

reduced the requirement to 92 class-IV

employees.

The report is accepted in compliance of the

order dated 22.7.2013.

List on 19.8.2013 for hearing.

Sri Yashwant Verma will file written arguments

with compilation of all the reports in advance.

The personal presence of Registrar General of

the Court as well as Registrar at Lucknow Bench

is dispensed with.”

This being the status of the reports that were given from

time to time have to be coordinated with the affidavits that have

been filed on record by the High Court. As noted in the above

quoted order, the demand at Lucknow was rationalized by

reducing it from 289 as claimed earlier to 92.

The matter had thereafter been fixed on 19.8.2013 but

unfortunately the lawyers were abstaining from work, as such, the

Bench had to reassemble and the case was finally heard on

2.9.2013 whereupon the judgment was reserved.

24

Sri Yashwant Verma, learned Senior Counsel, for the High

Court has broadly segregated his arguments in two categories,

namely the contentious issues and non-contentious ones. The

former are in relation to the jurisdiction of the Division Bench to

take Suo Motu cognizance on the ground that the Bench had

journeyed beyond its roster, and even assuming for the sake of

arguments, though not admitting that such a course was

permissible, then at the best it could have been placed before the

Bench of Hon'ble the Chief Justice to register it as a Public

Interest Litigation. He, however, puts in a caveat that legally a

Public Interest Litigation in a service matter relating to the

establishment of the High Court is not maintainable. He contends

that issues of actual lis can arise for adjudication at the instance

of aggrieved persons and it cannot be treated to be a matter of

public interest. Consequently, if the very genesis of the initiation

of the entire dispute is legally not sustainable, then Bench may

decline to decide this reference.

Apart from this, he contends that the powers of Hon'ble the

Chief Justice under Article 229 of the Constitution read with Rules

1976 are sufficiently protected and the arrangement of the

infrastructure of class-IV employees can be looked into by Hon'ble

the Chief Justice in the exercise of his administrative powers, as

such, no adjudication may be necessary for undertaking any such

exercise as a substitute for the same.

On the non-contentious issues, Sri Verma contends that no

exercise for rationalisation of any Class-IV post or any

requirement in relation thereto was undertaken for the past

almost two decades except for the regular engagements made as

per the directions of the Division Bench in the 1993 case. He,

however, submits that the High Court undertakes to invoke such

25

exercises periodically as per norms in future and if any directions

are given, the same shall be abided by.

He submits that as per the Affidavits of the High Court, it

appears that bifurcation of posts between the principal seat at

Allahabad and Lucknow was adjusted from time to time keeping in

view the historical reason of the consequences of the United

Provinces High Court (Amalgamation) Order, 1948. Clause-6 of

the 1948 Order amalgamated the status of all employees and,

thus, all employees were put under a common banner and after

the constitution was enforced, the powers came to be vested

under Article 229 of the Constitution in the Chief Justice of the

High Court.

Thereafter, Rules have been framed but so far as the ratio is

concerned, the stand of the High Court has been that broadly the

bifurcation of the posts, have been made between Allahabad and

Lucknow in the ratio of 70 : 30 and the said ratio is presently

being maintained. Nonetheless any serious exercise, looking to

the work load at both the places, the number of Judges, the

number of revenue districts that fall within the territorial

jurisdiction of Allahabad and Lucknow, and justification for the

posts at both places as per requirement, does not appear to have

been done which has now been undertaken during the progress of

the hearing of this case. He submits that whatever suggestions

came forward have been placed before the Hon'ble Chief Justice

for perusal and the reports thereon have been filed along with the

Affidavits that are on record.

Sri Verma has also relied on his Written Submissions

contained in 2 parts to urge that the exercise of rationalization of

posts has been carried out to a great extent and in the event

there is any shortcoming therein, the same shall also be rectified

26

accordingly. Part-I of the Written Submissions sketches out the

facts and we may put on record that had those facts not been

stated so clearly in the submissions made by Sri Verma, we would

have lost familiarity with the past without having any clear idea of

the present or the future.

From the facts on record as contained in the reports and

affidavits that we have traversed; it would not be unsafe to

assume that there had been no honest attempt to diagnose the

infirmities that have seeped into the system primarily on account

of non-observance of the statutory rules namely the 1976 and

2000 Rules referred to hereinabove. They have been observed

partially but mostly there has been a breach thereof. The fact of

non-observance of the rules is admitted in para 13 of the affidavit

dated 16.8.2012 which has been extracted and dealt with

hereinafter.

There does not appear to be any serious exercise having

been undertaken prior to these proceedings by the High Court in

the past two decades for laying down a blue print to define the

requirement of the infrastructural Class IV staff for catering to the

various requirements of the High Court. The staffing pattern and

the structure, department wise, that may indicate the actual or

approximate requirement, does not appear to have been

investigated or analysed. Daily Labourers and Casual Labourers

have been conveniently introduced followed by attempts to

regularize them under the powers of Hon'ble the Chief Justice

enshrined under Article 229 of the Constitution of India.

Appointments have been made against Class IV posts as

and when the necessity arose or as and when the powers were

invoked under Article 229 or under the residuary powers and

extraordinary powers preserved with Hon'ble the Chief Justice

27

under Rule 41 and Rule 45 of the 1976 Rules. A similar position

emerges in relation to the drivers under the 2000 Rules where

also the same provisions exist. Orders were passed by Hon'ble the

Chief Justice either himself or even at times on the

recommendations of Hon'ble Judges. Regular appointments

through such methods became a routine.

The State Government has been sanctioning posts from

time to time that have been filled up by the High Court to meet

various exigencies. The procedure however adopted indicates an

improper method of discretion being exercised when the rules

specify a particular mode to be adopted. It is these disturbing

facts that led to the suo motu cognizance of this matter by the

Division Bench that was referred to be heard like a public interest

litigation.

In the said background the first and foremost issue that has

to be clarified is the taking of suo motu cognizance and the

registering of the case as a public interest litigation. The

jurisdiction of the bench to initiate this process was questioned

directly in the administrative order dated 18.12.2004 of Hon'ble

the Acting Chief Justice who assigned and placed the reference

before a five judges bench that has also been mentioned in the

judicial order passed on 20

th

of December, 2004. We would

therefore advert to this primal issue before delving into the merits

of the facts that have been placed before us in relation to the

staffing pattern and structure of the Class IV employees and

drivers of the Allahabad High Court at its principal seat and

Lucknow Bench respectively.

The cognizance of a public interest litigation can be taken if

the initiation is pro bono publico. The issue involved relates to

public employment on the establishment of one of the organs of

28

the State namely the Judiciary. The powers, in so far as the High

Court is concerned, for controlling the service conditions of its

employees vests in the Chief Justice of the High Court as per

Article 229 of the Constitution of India. The power therefore has

to be exercised in the interest of the institution and for its smooth

running. There cannot be any doubt that the employment of Class

IV employees in the High Court therefore falls within the definition

of public employment. Such employment therefore has to be

made under Rules and under Orders of the competent authority.

The question of exercise of such powers in public interest and in

the larger interest of the institution is what with which this

reference is concerned.

The present case is not one of adversarial litigation. It is to

streamline the use of the powers conferred under the

Constitution, and the rules framed thereunder. The reference has

been made to rectify a genuine wrong that has crept into the

system and therefore a public interest litigation is the right

method that can be utilized in order to establish transparency and

credibility of the institution.

We are aware that in service matters public interest

litigations are rarely admissible and the guidelines that have been

framed for dealing with public interest litigation have been laid

down from time to time. In the instant case it is no citizen of this

country who has come up before the court and who has to satisfy

us about his locus-standi. Here the High Court on the judicial side

itself has taken cognizance for redeeming its past and setting its

own house in order. It is not the bonafides of any individual that

are to be tested but it is the cause of the High Court itself that has

been noticed by the Judges for resolving an intricate problem

relating to the workforce of the High Court. Public interest in the

present matter has to be viewed from the angle of a public image

29

namely the interest of an average citizen.

One of the submissions raised on behalf of the High court is

with regard to the jurisdiction of the division bench taking

cognizance suo-motu and then proceeding to frame several

questions to be answered by the High Court.

Taking objection to the same Sri Yashwant Varma, learned

Senior Counsel for the High Court contends that the division

bench on its own had not been assigned the roster by Hon'ble the

Chief Justice to hear any such matter including any issue relating

to public interest or public importance. He therefore submitted

that this being a pure service matter relating to the Establishment

of the High Court and its infrastructure, the litigation could not

have been initiated by exercising any such suo-motu power. In

the absence of any such authority to deal with any such issue the

order passed on 17

th

December, 2004 was an exercise coram-non-

judice, and therefore, the entire reference deserves to be turned

down. He therefore contends that in view of the powers conferred

on the Chief Justice and as defined under Chapter V of the

Allahabad High Court Rules, 1952, the entire proceedings were

without authority.

The question of public importance and the matter being

referred to a larger bench in the circumstances given above have

already been explained by us, and we therefore, find that it would

not be further necessary to delve into this aspect in view of the

conclusions drawn in the judgment.

The jurisdiction of Judges, sitting alone or in divisions, is

provided for under Chapter V of the 1952 Rules. Rule 1 clearly

empowers the Chief Justice to pass orders constituting benches

with orders allowing Judges to sit alone or in such division courts

30

under his orders or directions. The jurisdiction of a Single Judge

or a division bench has been further defined in Rules 2 to 8. The

other Rules also indicate the manner in which cases will be heard

by the respective benches.

The second proviso to Rule 2(aa) recites that the Chief

Justice may direct that any case or class of cases which may be

heard by a Judge sitting alone shall be heard by a bench of two or

more Judges or that any case or class of cases which may be

heard by a bench of two or more Judges or a Judge sitting alone.

This is in addition to the general powers as defined under Rule 1.

Apart from this, sub-clause (b) of the aforesaid second proviso,

empowers a Judge sitting alone to refer a case on any question of

law arising therein for a decision to a larger bench as he thinks fit.

This is further coupled by Rule 6 of Chapter – V which empowers

the Chief Justice to constitute a bench of two or more Judges to

decide a case or any question of law formulated by a bench

hearing a case. In the latter event the decision of such bench on

the question so formulated shall be returned to the bench hearing

the case and that bench shall follow that decision on such

question and dispose of the case after deciding the remaining

questions, if any, arising therein.

At this juncture, it would be relevant to note that the order

of Hon'ble the Chief Justice referring a matter to be decided by a

bench of at least five Judges, cannot be subject matter of judicial

scrutiny as held by the full bench of this Court in the case of

State of U.P. and others Vs. Firm Deo Datt Lakhan Lal

reported in AIR 1966 Allahabad Pg. 73.

Having traversed the powers of the Chief Justice as defined

aforesaid and the jurisdiction to hear a reference, the facts of the

present case reveal that the division bench suo-motu took notice

31

of the improper bifurcation of the 355 posts that were sanctioned

by the State Government between the Principal Seat at Allahabad

and the Lucknow Bench keeping in view the number of Judges

sitting and the workload at both places, and treating it to be

alarmingly disproportionate, called for a report from the Registrar,

simultaneously passing an interim order. This order was brought

to the notice of the Acting Chief Justice who exercising his powers

under Chapter – V and the Rules referred to hereinabove and

relying on the full bench decision in the case of Sanjay Kumar

Srivastava Vs. ACJ (supra) withdrew the case entirely from the

division bench and assigned it to the five Judges bench

constituted under the order dated 18.12.2004.

A closer look at the said order would demonstrate that the

Acting Chief Justice after withdrawing the case appears to have

exercised his powers as contained in Chapter V Rule 1 and the

second proviso to Rule 2 (aa) of the 1952 Rules . The second

aspect is that the entire case was assigned to the five Judges

bench. Thirdly, the nature of the order clearly indicates that the

case was to be decided by the five Judges bench and the

questions that had been raised on the issues of importance

as indicated in the order of the division bench dated 17.12.2004,

including the issue of jurisdiction of the division bench to take

suo-motu cognizance of the issue in public interest. Thus to our

mind, Hon'ble the Acting Chief Justice having withdrawn the entire

case had assigned it to a five Judges bench to decide the entire

case and it was not an assignment for deciding only a particular

question on reference so as to be returned to the division bench

for further decision. Thus the entire case having been withdrawn

and then assigned afresh, the issue relating to the powers of the

division bench to take suo-motu notice of the issues raised, pales

into insignificance.

32

We may explain this with the aid of Clause (b) of the

second proviso to Rule 2 (aa) where any Judge if he thinks fit can

refer a case to be heard by a Single Judge or any question of law

arising therein for a decision to a larger bench coupled with Rule 6

where the Chief Justice can constitute a bench of two or more

Judges to decide a case or any question of law formulated by a

bench hearing a case. Thus the power and authority to refer a

case on a question of importance or any question of law exists

and the Chief Justice is empowered to constitute a larger bench

for deciding such a reference or the entire case.

Even assuming for the sake of arguments that the interim

order passed by the division bench on 17.12.2004 was not an

appropriate exercise of discretion by taking suo-motu cognizance,

yet the power to refer any case or any question of law and the

constitution of a larger bench on such an issue is well within the

powers of the Judges and Hon'ble the Chief Justice respectively.

As noted by us hereinabove, the issue which has been raised was

in vital public interest and of public importance as it related to

public employment in one of the most important organs of

governance, namely, the Establishment of the High Court.

Hon'ble the Acting Chief Justice after having taking notice of the

said direction did take notice of the importance of the matter and

then withdrew the case followed by an assignment constituting a

five Judges bench, not only to hear the jurisdiction of the division

bench to deal with the matter, but also to decide the important

issues raised therein.

In our opinion, once the Hon'ble Acting Chief Justice had

withdrawn the case from the division bench and assigned the

issues raised therein to be decided by constituting a five Judges

bench, the power and jurisdiction of the division bench to hear the

same looses its significance. The order of Hon'ble the Acting Chief

33

Justice dated 18.12.2004 assigning the entire case clothed the

five Judges bench with the jurisdiction to hear the case. In this

background and for what has been concluded hereinunder, the

contention about the division bench taking cognizance defies

relevance.

The constitutional mandate by which the appointments are

governed is quoted hereinunder:-

“Article 229:- Officers and servants and the

expenses of High Courts. - (1) Appointments of officers

and servants of a High Court shall be made by the Chief

Justice of the High Court or such other Judge or officer of

the Court as he may direct:

Provided that the Governor of the State may by rule

require that in such cases as may be specified in the rule

no person not already attached to the Court shall be

appointed to any office connected with the Court save

after consultation with the State Public Service

Commission.

(2) Subject to the provisions of any law made by

the Legislature of the State, the conditions of service of

officers and servants of a High Court shall be such as may

be prescribed by rules made by the Chief Justice of the

Court or by some other Judge or officer of the Court

authorised by the Chief Justice to make rules for the

purpose:

Provided that the rules made under this clause

shall, so far as they relate to salaries, allowances, leave

or pensions, require the approval of the Governor of the

State.

(3) The administrative expenses of a High Court,

including all salaries, allowances and pensions payable to

or in respect of the officers and servants of the court,

shall be charged upon the Consolidation Fund of the

State, and any fees or other moneys taken by the Court

shall part of that Fund.”

The Chief Justice of a High Court has the authority and his

supremacy has been acknowledged in matters of employment on

the Establishment of the High Court through several decisions of

the apex court. The following decisions and orders are a living

testimony to the said proposition:-

34

1.Pradyat Kumar Bose Vs. The Hon'ble Chief Justice of Calcutta

High Court

AIR 1956 SC Pg 285

2.Powers under Article 229 of the Chief Justice

M Gurumoorthy Vs. A G Assam,

AIR 1971 SC 1850

3.State of Assam Vs. Bhubhan C Dutta

AIR 1975 SC 889

4.State of A.P. Vs. T. Gopalkrishnamurthy

AIR 1976 SC 123, 133

4.A. Chief Justice A.P. Vs. LVA Dikshitulu

AIR 1979 SC 193

5.Regularisation/Same Pay Scale/Equal Work Ald. High Court (DB)

W.P. No. 4956/1985 Vishwanath & Ors. Vs. State decided

on 8.3.1986

6.J.M. Mishra Vs. State

1987 (2) U.P.L.B.E.C 1133

7. Supreme Court Employees Welfare Association Vs. Union of

India

AIR 1990 SC 334

8. Puttuswamy HC Vs. State of Karnataka

1991 (Supp)(2) SCC 421

9. Supreme Court Employees Welfare Association Vs. Union of

India

1993 JT (2) Pg. 271

10. Sunil Kumar Vs. State Dress Allowance

W.P. No. 2672/93 (DB) decided on 28.4.1993

11. State of U.P. Vs. Class IV Employees HC

1993 (3) U.P.L.B.E.C 2083

12. High Court of Judicature at Rajasthan Vs. R.C. Paliwal

1998 (3) SCC Pg. 72

= 1998 (2) JY Pg. 1

13. State of U.P. Vs. C.L. Agarwal

1997 (5) JT 551

14. Union of India Vs. Kali Dass Batish

35

2006 (1) SCC Pg. 779

15. Devendra Kumar Pandey Vs. High Court (Single Judge)

2007 (7) ADJ 720; 2007 (8) ADJ 95

16.Diwakar Singh Vs. State (Single Judge)

Interim order + Reference

2010 (4) ADJ 571

17.Radheyshyam Tiwari Vs. State (Single Judge)

Interim order + Reference

2010 (4) ADJ 628

18.High Court Vs. Diwakar Singh (FB)

Interim order, 2010 (4) ADJ 584

19.High Court Vs. Diwakar Singh (FB)

2010 (9) ADJ 292, Final Order

20.State of West Bengal Vs. Debashish Mukerjee

2011 (11) JT Pg. 1

Decided on 14.9.2011

21. Hon'ble High Court of Judicature at Allahabad Vs. Devendra

Kumar Pandey

2011 ADJ (9) Pg. 385

Decided on 20.9.2011.

The question is, how is this power to be exercised, and the

limitations if any. The exercise of powers cannot be unguided or

unbridled. There is no authority under the Constitution, who has

not been specified the extent of the powers conferred, hedged

with its limitations. To our mind, the powers are subject to the

limitations being exercised not beyond the purpose for which they

have been conferred. The powers are to be exercised within the

framework of the Constitution.

This being the position, the powers cannot be exercised in

violation of the basic structure of the Constitution of India of

which the chapter of fundamental rights is one of the limitations.

The reason is that our country is a democracy that is governed by

rule of law. It is the supremacy of law that is acknowledged in

36

order to supervise the functioning of the governmental set up.

The doctrine of separation of powers between the organs of the

State and the doctrine of distribution of powers within the

authorities under the Constitution are therefore subject to the rule

of law. The apex court has time and again ruled that the absence

of arbitrariness is the essence of rule of law and therefore the

powers have to be canalised and not unbridled, so as to breach

the basic structure of the constitution, particularly the

fundamental rights guaranteed under Part III of the Constitution

of India.

It need not be pointed out by us that in matters of public

employment what keeps on being discussed by courts, is the

infringement of the fundamental rights guaranteed under Article

14 and 16 of the Constitution of India. Equality of opportunity in

matters of employment being a constitutional mandate, has to be

observed even if the powers are being exercised by the Chief

Justice under Article 229 of the Constitution of India and the rules

framed thereunder.

In our opinion howsoever supreme the authority of the Chief

Justice may be, the same is subject to judicial scrutiny on the

anvil of Fundamental Rights of Part III of the Constitution as well

as the rules framed by the authority under the constitutional

provisions. The unquestionable authority is always subject to the

authority of the Constitution. The Chief Justice under Article 229

of the Constitution read with the rules framed thereunder does

not act as an extra constitutional authority. To the contrary he

derives his powers under the same constitution which guarantees

the fundamental rights to the citizens of this country. We

therefore are of the opinion that the exercise of such powers, with

its limitations, is subject to judicial review on the abovementioned

parameters. We are fortified in our view by the ratio of the

37

decisions in the case of H.C. Puttaswamy and others Vs. The

Hon'ble Chief Justice, Bangalore and others reported in 1991

Supp (2) SCC 421 and the latest decision of the apex court in the

case of State of West Bengal and others Vs. Devasis Mukherji

and others reported in 2011 JT (11) Pg. 1.

We have been reminded of the decisions in the case of High

Court of Judicature for Rajasthan Vs. Ramesh Chandra

Paliwal and another reported in 1998 (3) SCC 72, and it has

been urged by the High Court that such powers cannot be

questioned by any Judge or the number of Judges on the

administrative side. The powers of the Chief Justice as culled out

therein and then subsequently asserted more vehemently in the

case of High Court of Judicature at Allahabad Vs. Diwakar Singh

reported at the interim stage in 2010 (4) ADJ 584 and finally in

2010 (9) ADJ Pg. 292 and the division bench judgment in Special

Appeal No. 563 of 2008 decided on 20

th

of September, 2011

Hon'ble High Court of Judicature at Allahabad through its

Registrar Vs. Devendra Kumar Pandey and others [2011 (9) ADJ

Pg. 385] have been heavily relied on. We are therefore under an

obligation to answer the submission as to the impact of the same

on the issues presently raised.

We have gone through these decisions as well as other

decisions relied on, but at the same time it would be appropriate

for us to point out that the issue that has been raised, and has

come up for consideration before us, had already been visualized

long back in the year 1993 when a learned single judge had

issued directions for the regularisation of Class IV Daily and

Casual Labourers against permanent posts that came up for

consideration in Special Appeal No. 269 of 1993 decided on

22.9.1993 State of U.P. Vs. Class IV Employees Association,

High Court of Judicature at Allahabad reported in 1993 (3)

38

U.P.L.B.E.C. Pg. 2083.

From the facts that have been set out in the various

affidavits and the reports on record, we did not find any exercise

worth the name in the present matter to have been undertaken

by the High Court to sort out this problem of defining the

structure of the staffing pattern of the High Court in correct

perspective as visualized as far back as in 1993 in the aforesaid

decision which however has now been attempted during the

pendency of these proceedings on our insistence.

The High Court seems to be more concerned with the

powers of the Chief Justice and its exercise thereof with its

unquestionable discretion. We, having carefully examined the

same, are unable to subscribe to the view of the high pedestal on

which it has been placed, both in the decisions of the Full Bench in

the case of High Court of Judicature Vs. Diwakar Singh (supra)

and the division bench judgment in the case of Hon'ble High Court

of Judicature Vs. Devendra Kumar Pandey (supra). The logic

given in both judgments is palpably at odds with the purpose. To

our mind it would be perilous to risk an interpretation on the

parameters of absolute superior powers that would be fraught

with danger, as it involves the management and administration of

one of the main organs of governmental function, that too even of

the most essential component of governance – the judiciary.

The reason is the supremacy of the rule of law – its

paramount majesty in which the people of this country have

reposed their faith while accepting the declaration in the opening

words of the preamble 'We the people of India…...give to

ourselves....”. The other reason is that this faith in the “sense of

justice” and its administration, is founded on the obligation cast

on this institution as the sole arbiter of laws, to apply the laws

39

correctly and faithfully, so as to rest the logic of law on surer

foundations. This creates responsibility on the High Court and its

judges including the Chief Justice to administer the laws

constitutionally on the judicial side and observe and obey the laws

on the administrative side.

The principles governing public employment that flow

constitutionally, including the protection of Article 14, have to be

observed as held by the apex court in the decisions of

Puttaswamy H.C. (supra) and State of West Bengal Vs. Debashish

(supra). Thus the exclusive powers residually conferred on the

Chief Justice are subject to constitutional controls under Chapter

III thereof. It is this part that we wish to emphasize without

intending in any way to diminish the authority and powers of the

Chief Justice under Article 229 and the rules framed thereunder.

Sri Verma learned Senior Counsel for the High Court

submits that in Diwakar Singh's case (supra) this issue had not

been decided and therefore it would not be correct to read down

any part of the said judgment. For this, one has to necessarily

refer to Paras 38 to 42 of the said judgment that are extracted

hereinunder:-

38. After referring to the aforesaid aspect in respect to

the grounds and the reliefs claimed in the writ petitions filed by

the writ petitioners we are to again quote the concession made

by the learned Advocate for the High Court as is noticed in the

order of this Bench dated 16.4.2010. The statement as made,

as referred above, is quoted hereinafter:

"Sri S.P. Gupta, learned Senior Advocate during course of

argument made statement that the High Court is ready to

consider the claim of the petitioner as and when occasion will

arise and thus writ petition needs to be dismissed as infructuous

40

with the aforesaid direction."

39. On 27.8.2010, during the course of argument again

counsel for both the sides gave a clear concession in the open

court which was so recorded on separate sheet.

40. The statement/concession of both sides already

noticed, is just to be repeated for convenience :

"During the course of argument, apart from arguing the

matter on the merits about various observations of the learned

Single Judges, Sri Upadhyay again reiterated the earlier

submission so advanced by Sri S. P. Gupta, learned Senior

Advocate that the High Court is ready to consider the claim of

the petitioner as and when occasion will arise and thus

irrespective of various issues which are said to be involved, writ

petition be disposed of in the light of the aforesaid

stands/statement.

Sri Yashwant Varma, learned Advocate being very fair to

the Court, to the appellant side and to his client submits that if

that consideration is directed and there is statement in this

respect from the appellant side then practically relief so claimed

in the writ petition stands received and thus the matter may be

dealt with accordingly."

41. Here is the simple matter where the petitioners of

both writ petitions have prayed for a direction to the

respondents to permit their consideration in the interview for

the recruitment of Car Driver and for other class IV staff.

42. When the writ petitions were filed selection process

was all complete.

A perusal thereof does not reflect any exact ratio by the

said Full Bench in the background in which the same was decided

41

but both at the interim and final stages a lot was said about the

paramountcy of the office of Hon'ble the Chief Justice. The facts

giving rise to the said reference are elaborately dealt with in the

orders of the learned Single Judges reported in 2010 (4) ADJ Pg.

571 (supra) and 2010 (4) ADJ Pg. 628 (supra).

The full bench appears to have, with the aid of a concession

made by the learned counsel for the High Court, disposed of the

matter by observing that the reference was not justified, that too

even through or on the basis of an order expressing difference of

opinion at the interim stage. The full bench ruled that a reference

could have been made only if there was conflict between opinions

expressed finally. A disapproving note was written on the

jurisdiction of the learned single judges by the FB without

touching the merits of the case and treating the whole issue to

have been unnecessarily raised. Yet the judgment proceeds to

spell out the powers under Article 229 of the Constitution that

have been voiced both at the interim stage, the order whereof is

reported in 2010 (4) ADJ 584, and in the final judgment quoted

above.

Coming to the ratio of the judgment of the division bench in

the case of Devendra Kumar Pandey (supra), a sweeping

observation has been made that the Chief Justice is empowered

under Article 229 (2) to make appointments as per rules and

therefore the appointment cannot be illegal or irregular. This

presumptive proposition has been culled out by placing reliance

on the judgment of the apex court in the case of M. Gurumoorthy

(supra). Further the bench has observed that if the Chief Justice

has taken a decision to appoint some persons to serve the High

Court, it can be presupposed that it has been consciously done for

the benefit of the institution and faith is required to be reposed by

all judges in the Chief Justice as he being the head of the

42

institution is definitely worried about the necessity of

appointments. It has been observed that if the Chief Justice is

under a pressure of workload, he cannot be debarred from

making appointments. According to the bench, it is absurd to

believe that the Chief Justice would be swayed away by

favouritism and any criticism should be avoided.

Having given our thoughtful considerations, but with due

deference to the aforesaid observations of the full bench in

Diwakar Singh's case and the division bench judgment in the case

of High Court Vs. Devendra Kumar Pandey (supra), we are the

least persuaded to approve the same. The pronouncement

appears to be authoritative but it lacks the substance of

consideration of Article 14 and Article 16 of the Constitution of

India. Howsoever high a dignitary may be, once the power

conferred is governed by the Constitution, the laws made

thereunder and the rules framed, then the authority is bound to

act within the rules and not ascribe to himself an authority to act

beyond it or else the exercise of power will be a camouflage to act

arbitrarily in the solemn name of discretion.

The higher the dignitary, the more objectivity is expected to

be observed. This does not mean that the power should be

curtailed, but at the same time it should be stretched only to the

width of the constitutional and legal limits. The observance of law

has to be calibrated – doing what you need to, no more no less.

The presumption and the presupposition of the validity of orders

on the administrative side are dependant on the alleged

constitutional violation and its judicial scrutiny. They are not

immune to law nor to judicial review. The residuary powers of the

Chief Justice under Rule 8, Rule 41 and Rule 45 of the 1976 Rules

and similar powers under the 2000 Rules are supposed to be

exercised notwithstanding contained in the rules, but the same

43

cannot be construed to mean notwithstanding the fundamental

rights and obligations under the Constitution. Giving the

interpretation as suggested by the said decisions would belittle

the esteem of the office of the Chief Justice thereby reducing its

respect.

We would like to clarify that the observations made by the

Division Bench in the case of High Court of Judicature at Allahabad

Vs. Devendra Kumar Pandey (supra) to the effect that Uma Devi's

case has not touched the ratio of the decision of the Apex Court in

the Constitution Bench judgment of M. Gurumoorthy (supra) is

not correctly stated in the context of the Division Bench

judgment, inasmuch as the decision in the case of M.

Gurumoorthy only spells out the powers of the Chief Justice but

the same does not in any way hold that the Chief Justice can

exercise powers that may run-counter to Articles 14 and 16 of the

Constitution while making appointments in the establishment of

the High Court. Consequently, the case of Uma Devi (supra) is a

decision on the limitations prescribed while making appointment

against public posts in terms of Articles 14 and 16 of the

Constitution of India. What Uma Devi's case has deprecated is

back door appointment or appointment de-hors the Rules. The

present is clearly a case which involves these issues and,

therefore, the reliance by the learned Counsel for the High Court

on the Division Bench judgement seeking to clarify the ratio of

Uma Devi's case is misplaced.

The question relating to the rules for employment that are

to be framed in respect of Class IV employees and drivers flow

from the powers under Article 229 of the Constitution of India.

The powers of the Chief Justice, and the judgements relating

thereto, have already been noticed by us that indicate that the

exercise of such powers are subject to the limitations of Article 14

44

and 16 of the Constitution of India.

The source of recruitment of the employees and the method

has been prescribed in Rule 4 of the Allahabad High Court Officers

and Staff (Conditions of Service and Conduct) Rules, 1976. The

rules for drivers at pari materia are contained in Rule 5 read with

Rule 14 of the Allahabad High Court Staff Car Drivers (Conditions

of Service and Conduct) Rules, 2000. The sources of recruitment

came to be incorporated in the said rules and in order to define

the method of recruitment for the lowest category of Class IV

employees as defined under Rule 4(a), a proviso was added vide

Notification dated 10

th

October, 2002 which reads that “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” .

The 2000 Rules for drivers contains a similar proviso in

Rule 14 thereof.

After repeated trials and failures the rule was framed and

subjected to the aforesaid amendment but again with the

inadequacies and risks of violating the constitutional mandate.

Permanency to a daily labourer was easily predictable.

It is at this juncture that the above quoted proviso to Rule 4

(a) and Rule 14 of the 2000 Rules has to be considered. The

same, in our opinion, can be read only to the extent of giving

preference when the recruitment process is initiated under the

said Rules. A preferential treatment cannot be a exclusive source

of recruitment. The said proviso, therefore, will have to be

45

understood, not as a source of recruitment but only giving a right

of preference to such Daily Labourers, who are already engaged in

the High Court. Learned Counsel for the High Court has urged that

the said proviso is an exception to the mode of direct recruitment

to the extent that applications from the employment exchange or

from any outside candidates would be invited only if posts are

vacant and are left unfilled after recruiting the Daily Labourers

working already in the High Court.

The aforesaid proviso to Rule 4(a) of the 1976 Rules and to

Rule 14 of the 2000 Rules gives absolute certainty and guarantee

of regular engagement to a daily labourer without following any

process of selection till the list of all such daily labourers gets

exhausted. It is this infirmity which had been pointed out by the

learned Single Judges while referring the matter to the larger

Bench in the case of High Court of Judicature Vs. Diwakar Singh

(supra), but the Full Bench did not answer the reference for the

reasons given in the said decision. According to us the aforesaid

rule clearly prohibits and excludes all candidates as against the

daily labourers of the High Court from the zone of consideration

till such daily labourers are available in the High Court. Articles

14 and 16, therefore, clearly step in and the rule to that extent

cannot be supported in law as a separate source of recruitment

avoiding any general competition and selection. The rule,

therefore, assures employment to a daily labourer once he is

engaged as such by excluding competition, selection and denying

equality of opportunity of employment to the public at large by

this method that would violate the equality clause of the

Constitution.

To our mind, the said rules, if put to test on the anvil of

Articles 14 and 16, run the risk of being struck down of being

violative of Articles 14 and 16 of the Constitution of India as it

46

amounts to virtually reserving the posts for recruitment only from

amongst the Daily Labourers already engaged by the High Court.

If this method is permitted then Daily Labourers would be

perennially available and no Class-IV posts or the post of drivers

would ever be advertised for direct recruitment from the open

market. The aforesaid provisos were added vide Notification dated

10.10.2002 prior to the decision in the case of Uma Devi (supra).

The Rules are not under challenge but we have to pronounce upon

the source and method of recruitment under the proviso to Rule 4

(a) and Rule 14 in view of the submissions that have been raised

on behalf of the High Court.

In our considered opinion, interpreting the Rules as

aforesaid would also save the Rules from being declared ultra

vires and would simultaneously protect its operation within the

fold of Articles 14 and 16. Rule 25 of the 1976 Rules and Rule 8 of

the 2000 Rules clearly mandate an advertisement to be made for

the public at large to know about the vacancies so that eligible

candidates may apply. With there being no advertisement, the

others can never get an entry. If the method of recruitment as

suggested in the proviso is adhered too, then no situation would

arrive for inviting applications through the Employment Exchange

or from the general public as is evident from the experience of the

past and presently reflected in all the reports of the High Court.

We are fortified in our view from the said fact having been

admitted by the High Court in para 13 of the affidavit dated

16.8.2012 extracted hereinunder:-

“13.It is submitted that no specific procedure has been

laid down in the Allahabad High Court Officers and Staff

(Conditions of Service and Conduct) Rules, 1976 for the

appointment to the post of Class IV employees. While the

Rule 7 of the Allahabad High Court Officers and Staff

(Conditions of Service and Conduct) Rules, 1976 says that

the post of Jamadar, Daftari & Bundle lifter or Head Mali of

the promotional post.

47

It appears that to fill up the permanent and

temporary vacancies of class IV employees in the

establishment of Allahabad High Court, no regular

procedure, viz, advertisement and taking some

test/examination and making provision for

reservation, etc., has been observed. Perhaps

because of the reason that this procedure was

cumbersome, hence, to meet the exigencies D.L., C.L.,

D.L. (Drivers) have been appointed by the Hon'ble

Chief Justice, who were thereafter given preference in

regularization to the class IV post for which rule 4 (a) of

the Allahabad High Court Officers and Staff (Conditions of

Service and Conduct) Rules, 1976, empowers the Hon'ble

Chief Justice.”

The said facts had also been reiterated in the affidavits filed

by the Registrar before the learned Single Judges in the case of

Radhey Shyam Tiwari (supra) and Diwakar Singh (supra).

It is for this reason that in the entire history of 137 years of

the High Court that no advertisement was made particularly after

1976 in the post constitution period when the Rules were framed

and adopted. The rules appear to have gone unnoticed.

The other ancillary rules relating to reservations and

qualifications are provided for in Part-VII of the rules that are

applicable to the recruitment of various categories of posts

including Class IV posts on the Establishment of the High court.

Rule 23 to 29, therefore, in matters of the method of recruitment,

are in addition to the aforesaid Rule 4, referred to hereinabove.

Part-VIII and Part-IX, relate to post-appointment conditions of

service. Part-X of the said rules under the heading “other

provisions” recites that the regulation of other matters under Rule

40 shall be subject to the superintendence, control of the Chief

Justice with a further provision that the rules for government

servants holding corresponding posts in the government shall

apply to the officers and servants of the court subject to the

48

modifications, variations and exceptions as the Chief Justice from

time to time may specify, except the conditions relating to salary,

allowance, leave or pension shall be made by the Chief Justice

with the approval of the Governor.

Over and above this, residuary powers are defined under

Rule 41 which are general in nature for making provision for

incidental or ancillary matters not specifically provided for with the

riders aforesaid in financial matters.

The most important rule that attains significance in

the present dispute is Rule 45 which opens with a non-

obstante-clause empowering the Chief Justice to make

such orders as he may consider fit in respect of

recruitment, promotion, confirmation or any other matter.

It is in this context that the powers of the Chief Justice

under Article 229 of the Constitution of India and Rules 41 and 45

of the 1976 Rules have to be considered. To our mind, Rule 41

and 45 are powers available to be utilised when the smooth

implementation of the Rules get impeded. They are not as a

substitute for the rules of regular employment. They are to

remove rare and occasional difficulties. We have already indicated

that Rule 41 and Rule 45 coupled with the powers under Article

229 are subject to Articles 14 and 16 of the Constitution of India.

To this extent, we have already indicated that the interim order

and the judgment of the full bench in the case of High Court of

Judicature at Allahabad Vs. Diwaker Singh (supra) has not

explained the law correctly.

Secondly the process of regular appointment through

advertisement or through the known methods of public

employment was not followed. Even if preference was to be given

49

to the existing daily labourers/casual labourers/DL drivers, the

same ought to have been after an advertisement as per Rule 25

of the 1976 Rules and Rule 8 of the 2000 Rules. The entire

exercise was completed within three days which fact remains

undisputed. The regularisation is sought to be justified on the

basis of the Class IV Employees Association case (supra) of the

year 1993 where directions had been given by the division bench

to undertake this exercise on the basis of the guidelines

mentioned therein. Consequently, the posts that were created in

2004 and the method of recruitment of such employees who were

regularised was sought to be protected in terms of the proviso to

Rule 4(a) and Rule 14 that came to be added on 10

th

October,

2002 coupled with the 1993 judgment referred to hereinabove.

We have carefully examined all the affidavits that have been

filed and it is evident that all the appointments that were sought

to be regularised prior to sanction of the post on 10

th

December,

2004 had been made by engaging daily labourers and casual

labourers including the post of Drivers without following the

procedure prescribed for recruitment under Part-VII of the 1976

Rules, particularly, Rule 25 and Rule 8 of the 2000 Rules which

mandates the calculation of the age of the candidate to be not

less than 18 years and not more than 35 years for a Class IV post

on the 1

st

day of July of the year in which the advertisement is

published. We would like to emphasise the words “advertisement

is published” which leaves no room for doubt that after the

promulgation of the 1976 and 2000 Rules an appointment has to

be made only after an advertisement. It would not be a futile

repetition to say that no advertisement was ever made in the High

Court for appointment on the post of a Class IV employee or a

driver, except for one insignificant advertisement at Lucknow in

2011 that we have noted in this judgment. No other

advertisement for such engagement was ever made either at the

50

principal seat at Allahabad or at the bench at Lucknow including

their appointments in 2004 presently involved.

We have examined the 1976 and 2000 Rules carefully but

we do not find any separate provision for regularisation of such

engagements that have been made and are presently involved.

The only guidance that was available in 2004 was the

judgment in the case of State of U.P. Vs. Class-IV Employees

Association (supra). The said judgment in paragraph Nos. 18 to

26 dealt with the issue of regularisation. The Division Bench, while

referring the case of State of Haryana and others Vs. Piara Singh

and others, AIR 1992 SC 2130, Delhi Development Horticulture

Employees' Union Vs. Delhi Administration, Delhi, and others, AIR

1992 SC 789 and the decision in the case of Dharwad Distt. PWD

Literate Daily Wages Employees Association and others Vs. State

of Karnataka and another, AIR 1990 SC 883, came to the

conclusion that employees, who had been continuously

functioning for a considerably long period, deserve to be

regularised. The Bench in paragraph No.24 ruled that non-

regularisation of such employees will be a negation of the Rule of

Law but at the same time in paragraph No.26 of the judgment,

the Bench formulating guidelines held, that though not

exhaustive, the same should be followed to determine the

benchmark of regularisation. The guidelines formulated by the

Division Bench are worth extracting:-

“1.A work Study Team shall be set up the Chief Justice to

assess the quantum of work required to be done by Class IV

employees will be required for that work. While assessing

the quantum of work, work of casual nature will not be

taken into consideration. Year of appointment of the

employee who will be considered for the last newly created

post will be a safer guideline to determine the cut off year

for regularising the services of daily/casual employees. To

illustrate the point, suppose the work study team reports

51

that the magnitude of the work is such as to require 400

Class IV employees and suppose sanctioned posts are only

200 in the Class IV cadre, then steps will be taken to create

200 extra posts to cope with the work. The year of

appointment of the daily/casual labourer as per the list of

daily/casual labourer whose name may be considered for

being appointed on last newly created post out of 200, will

represent the cut off year upto which regularisation will be

directed and the employees having rendered service till that

year can be said to have rendered service of several years,

qualifying for regularisation. If the last candidates whose

name is considered for being appointed on the last newly

created post from the list of daily/casual labourers out of

200 is an appointee, say of 1989, then 1989 will be taken to

be the cut off year and service rendered till that year by the

employees will tantamount to service of several years.

Fixation of cut off year and regularisation of service should

have a direct and live link with the number of extra posts

required for the total work.

2. Once the cut off year qualifying for regularisation is

determined then daily/casual labourers will be regularised

against the newly created posts, subject, of course, to

fulfilling eligibility conditions and the requirement of fitness

following the basis of suitability-cum-seniority. Suitability

will be judged having regard to conduct and efficiency.

Seniority will be determined taking into consideration the

total period of service which the daily/casual labourers have

to their credit and not the date of appointment.

Daily/casual labourers are paid as and when they come to

work. They may come to work with a gap sometimes

considerable gap. If seniority is reckoned simply on the

norm of the date of appointment then an unanimous

situation may arise in that a daily/casual labourer appointed

much earlier but working intermittently with gaps, may

render total service much less than his counterpart

appointed later but working continuously without any gap;

the former having lesser total period of service to his credit

cannot be permitted to steal march over the later having

more service to his credit though within a short span.

3. Before regularising the service in newly created posts,

the eligible employees will thus be subjected to through

screening and only those who fulfil all the norms and are

found fit, will be regularised.

4. The daily/casual labourers who are not regularised in

newly created posts and are left out will be empanelled

subjecting them to the same norms applicable to their

52

predecessors and future vacancy in the cadre of Class IV

employees will be filled in only from such panel. The panel

will continue until it is exhausted. Those who do not fulfil

the aforesaid norms will cease to work.

5. Recruitment in future in the cadre of Class IV

employees shall be made strictly as per the rules calling up

the names from the Employment Exchange and after duly

notifying the vacancy(s). However, it is made clear that

daily/casual labourers may be engaged in future only for

doing work of casual nature.

6. There is, however, one aspect we should emphasize

here. Daily/casual workers working at the residence of the

Judges from a separate category. Tracing the genesis of

such employees, it is to be recalled that it was considered

expedient several years before to employ daily rated

persons to attend the house hold chores at the residence of

the Judges when it was felt that the peons falling in the

category of regular employees, were reluctant to do

domestic work. A free hand was given to the Judges to

employ any person who was subjectively considered suitable

by the Judges for the domestic work without having regard

to the eligibility conditions, necessary in the case of regular

employee. As a matter of fact such daily rated

persons/Sewaks were employed on the 'hire and fire'

principle leaving to the Judges to show the door to any such

employee as and when he failed to discharge duties to their

satisfaction. Vide judgment dated 8-3-1986 (Annexure

No.4 to the petition), the daily rated persons/Sewaks were

not equated with the peons, but the Bench remarked that

the daily rated persons/Sewaks “assigned to the residence

of Judges are at least entitled to be paid the scale of

Rs.305-390/-, and shall be paid in that scale”. Without

equating daily rated persons/Sewaks with the peon, the

Bench from the point of 390/-. Looking to the genesis of

this class of employees, they have to be treated separately

and Rule 4(a) of the Rules of 1976 is required to be suitably

amended including them as a separate class therein. It is,

therefore, open to the Chief Justice to suitably amend the

said Rules in respect of them. Whatever rules are framed in

respect of such a class, the Chief Justice will do good if he

bears in mind the genesis of their employment and the fact

that two employees called as Sewak too-are part of the

essential accoutrement of the Judges and absence of willing

workers of this category will be a constant irritation,

distracting and disturbance to the Judges having a telling

effect on their onerous duties ultimately impeding the

administration of justice.

53

7. Reposing full faith in the Chief Justice, it is hoped that

he shall ensure that job will be finished by the work study

Team and by the Screening Committee within a period of six

months. Thereafter steps shall be taken by him for creating

new posts with due approval of the Governor under the

proviso to Clause (2) of article 229 of the Constitution and

then regularisation process shall be completed within the

reasonable time, limit whereof is not prescribed herein

considering the fact that the Chief Justice being a high

dignitary, a constitutional functionary and supreme

appointing is expected to discharge his constitutional duties

adhering to Rule of law as expeditiously as possible.”

It is on the strength of such guidelines that steps were

undertaken to extend the benefit of regularisation in the past. The

aforesaid judgement came to be implemented when 500 posts

were sanctioned way back vide Government Order dated

5.12.1995 against the request of the High Court to sanction 855

posts.

In addition to those posts, 355 posts were subsequently

sanctioned on 10.12.2004 which is subject matter of present

controversy where again the aforesaid judgment appears to have

been pressed into service keeping in view the 1976 and 2000

Rules. It is worth mentioning that when 855 posts were

demanded and only 500 posts were sanctioned in 1995, a

proposal approved by Hon'ble the Chief Justice on 5.3.1994 was

sent to the State Government reflecting the position that existed

then.

In the instant case, when the Hon'ble Acting Chief Justice

passed orders on 13.12.2004, a proposal was submitted and an

exercise was undertaken for interviewing about 150 Daily

Labourers and Casual Labourers to assess their performance

appraisal on 13.12.2004 in tune with the judgment in the case of

State of U.P. Vs. Class-IV Employees Association. It was also

54

stated in the report then that when 500 posts were sanctioned in

1995, a Committee comprising of the then Hon'ble Judges

(Mr.Justice A.K. Banerjee and Mr. Justice S.R. Singh) had

regularised Daily Labourers and Casual Labourers on the basis of

number of working days coupled with the assessment of their

work appraisal. The report in the present case that was prepared

and submitted on 14.12.2004 and accompanies the Affidavit

dated 23.7.2013, indicates that the assessment was carried out

on the same day and on 14.12.2004, the same was also approved

by Hon'ble the Acting Chief Justice.

To our mind, such an exercise, within 24 hours that was

carried out, does not conform to any serious exercise having been

undertaken in terms of the judgment of 1993 referred to herein

above and the conditions mentioned therein.

The issue that still remains to be answered by us is the

issue of regularisation. After the Division Bench judgment in the

case of State of U.P. Vs. Class-IV Employees Association (supra),

the law on this issue went a sea change with the pronouncement

of the Apex Court from time to time. The judgment, which stares

at the face of such claims of regularisation in matters of public

employment, is the leading case of Secretary, State of Karnataka

and others Vs. Uma Devi (3) and others, (2006)4 SCC 1.

Practically for all purposes appointments without following the

Rules and described as back door entries were clearly deprecated

and it was held that no such rights exists for being enforced in

view of the clear mandate of Articles 14 and 16 of the Constitution

of India. The ratio of the said decision has been spelled out in

paragraph Nos. 43 to 54 of the said judgment. If the ratio of the

said decision is applied herein, then the observations made in the

Division Bench judgment in the case of State of U.P. Vs. Class-IV

Employees Association (supra) would stand diluted. In the said

55

circumstances, it would not be possible now to extend any benefit

of regularisation in view of the mandate contained in the aforesaid

judgment of Uma Devi (supra). The only concession that was

made was contained in paragraph Nos. 53 that is extracted here

under:-

“53. One aspect needs to be clarified. There may be cases

where irregular appointments (not illegal appointments) as

explained in S.V. NARAYANAPPA (supra), R.N.

NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and

referred to in paragraph 15 above, of duly qualified persons

in duly sanctioned vacant posts might have been made and

the employees have continued to work for ten years or

more but without the intervention of orders of courts or of

tribunals. The question of regularization of the services of

such employees may have to be considered on merits in the

light of the principles settled by this Court in the cases

above referred to and in the light of this judgment. In that

context, the Union of India, the State Governments and

their instrumentalities should take steps to regularize as a

one time measure, the services of such irregularly

appointed, who have worked for ten years or more in duly

sanctioned posts but not under cover of orders of courts or

of tribunals and should further ensure that regular

recruitments are undertaken to fill those vacant sanctioned

posts that require to be filled up, in cases where temporary

employees or daily wagers are being now employed. The

process must be set in motion within six months from this

date. We also clarify that regularization, if any already

made, but not subjudice, need not be reopened based on

this judgment, but there should be no further by-passing of

the constitutional requirement and regularizing or making

permanent, those not duly appointed as per the

constitutional scheme.”

The Apex Court clarified in paragraph No.54 as follows:-

“54. It is also clarified that those decisions which run

counter to the principle settled in this decision, or in which

directions running counter to what we have held herein, will

stand denuded of their status as precedents.”

Thus, the regularisation and regular appointment that had

been made prior to taking of cognizance by the Division Bench on

56

17.12.2004 need not be re-opened by us in view of the aforesaid

ratio of the Apex Court but the Division Bench judgment of 1993

of our Court now cannot be pressed into service for an exercise of

any further regularisation.

So far as the appointments and orders of regularisation

made after 17.12.2004 are concerned, the same have been made

subject to the orders of the present proceedings as per the order

dated 20.12.2004 itself. Such appointments and regularisation or

orders that have been made during the pendency of these

proceedings, therefore, will have to be judged as per the law laid

down in the case of Uma Devi (supra) and in the event any such

appointment or regularisation orders have been made dehors the

rules, the same would not have any legal effect, subject to the

directions given hereinafter.

We are, however, not entering into the merits of the

regularisation orders of the appointees against the 355 posts

sanctioned by the State Government on 10.10.2004 as that are

not parties before us, nor their appointment has been assailed or

challenged. The Division Bench, while taking cognizance, had

commented upon the ratio of the bifurcation as also the procedure

for such engagement but in view of the fact that all the 355

appointees are not before us, who were given regular

appointments under the orders of Hon'ble the Acting Chief Justice

or the Chief Justice we would not like to add anything further in

this respect.

There is yet one disturbing feature with regard to actual

deployments of Class IV employees as per their categorisation.

We find that the deployment is against the structural set up, for

e.g. A bhisti being asked to do the job of a peon and a peon being

asked to perform the job of a driver. There are other examples to

57

say the least but what is more astonishing is deployment outside

the establishment, particularly at the service of former Judges.

The details do not deserve to be recounted with any pride. Apart

from this, officers of the establishment who are otherwise not

entitled to any such benefit under their statutory service rules

have been favoured with such deployment.

It appears that some order dated 14.3.2011 was passed by

Hon'ble the Chief Justice as is evident from the order dated

21.1.2012 of the then Registrar at Lucknow for engagement of 12

Daily Labourers and 10 Casual Labourers. Referring to the

procedure as approved of a 3 member selection committee for

District Judgeship, a report on the basis of the said order of the

Chief Justice was submitted indicating a 3 member committee

constituted for engagement in the High Court. The said report was

entertained by Hon'ble the Senior Judge at Lucknow and approved

on 6.4.2011 whereafter the process commenced. It is then that a

notice is said to have been published in “Workers Herald” which

according to the District Judgeship of Lucknow, and not the High

Court, is an approved newspaper. After applications were invited,

a similar notice was published in the same newspaper on

17.5.2011 calling upon candidates who had applied to appear in

the interview between 24.5.2011 and 28.5.2011. This timing was

extended upto 31.5.2011 with the approval of the Senior Judge

without any further notice. These facts were borne out from the

affidavit and its annexures dated 16.8.2012. The order dated

21.1.2012 reflects approval by the then Senior Judge at Lucknow.

This procedure speaks for itself and the newspaper chosen

is an insignificant newspaper and neither a known local daily nor a

national daily or a newspaper of wide circulation in the State. It is

not understood as to why the Registrar at Lucknow chose to rely

on such a list when reputed newspapers of Hindi like “Dainik

58

Jagran”, Amar Ujala, Nav Bharat Times, Hindustan and English

dailies like Hindustan Times, Pioneer etc. are all published from

Lucknow and are the most widely circulated newspapers

throughout the State including Lucknow. The High Court has all

the resources of the State to publish advertisements for all

appointments as is being done and was also done in the past for

all other posts. The Registrar appears to have completed a

formality to justify the advertisement which does not inspire any

confidence worth mentioning. We are not satisfied with the said

procedure and the matter will have to be re-examined de-novo in

its entirety including any orders that were required by the

competent authority including the Hon'ble Chief Justice.

One of the issues that has been also indicated in the reports

is of the deployment of Sewaks at the residence of Judges. This

necessity has to be viewed from the angle that after the 1993

Judgment in the case of State of U.P. Vs. Class-IV Employees

(supra), such engagements of domestics at the residence of

Judges were on a lesser salary, when the matter was taken up on

the judicial side by a Division Bench in the case of Vishwanath

(supra) where it was held, and directions were issued that Daily

Wage labourers, who are assigned to the residence of Judges are

at least entitled to the revised pay scale of regular class-IV

employees working in the establishment of the High Court. The

arrears were also directed to be paid with effect from the date of

filing of the writ petition. This judgment was delivered on

8.3.1986 and was also complied with.

It is these domestics, who were deployed at the residence of

Judges, were seeking parity but looking to the past experience of

the Judges themselves, a directive was given by the Division

Bench in the judgment of State of U.P. Vs. Class-IV Employees'

case (supra) wherein direction No.6 deals with this matter. The

59

same has been extracted herein above and, therefore, need not

be reproduced.

The position that was then existing continued even

thereafter and these Sewaks were being deployed at the

residence of Hon'ble Judges. It appears that the inclusion of these

Sewaks was proposed by introduction of their cadre alongwith

Peons by an amendment in Rule (4-a) of the 1976 Rules. The

same was accordingly incorporated vide notification dated

21.8.2003 that was published on 23.8.2003. By virtue of the said

notification, Sewaks were included within the class IV post in the

establishment but the second and the third proviso to the said

Rule were introduced by the said Notification defining the terms &

conditions particularly that their services would be terminable

without any notice on the recommendation of the Hon'ble Judge

concerned with whom the Sewak was employed if his services

were not satisfactory. The third proviso specified the nature of the

duties of the Sewaks. Amendments were also made in Rule 5 and

Rule 7 thereof in relation to these Sewaks.

With regard to their claim of payment at par with other

employees, the matter was considered by two successive Hon'ble

the Chief Justices and on the report of the Registrar General and

on a consideration of the matter, the benefit of revised pay scale

was given to them as Daily Labourers vide order dated 20.5.2009

and subsequently vide order dated 12.9.2011. Thus, the Sewaks

were being paid from the concerned financial head as per the

aforesaid directions.

The Sewaks are appointed according to the policy adopted

under the orders of Hon'ble the Chief Justice and their

appointments are approved by Hon'ble the Chief Justice in

exercise of powers under Rule 41 and Rule 45 of the 1976 Rules.

60

Thus, their source and method of recruitment is clearly distinct

and separate from those Class-IV Employees with which we are

presently concerned. In the circumstances, the present judgment

would not in any way either come to their aid or to their

disadvantage and they will continue to be governed unless

otherwise provided for by the aforesaid or any other executive

arrangement.

We have gone through the reports submitted on 3

rd

May,

2013 by the Court Managers and then the affidavits filed by the

Registrar General dated 13.7.2013 and 23.7.2013 which contain

the report of the Registrar General for Allahabad and Lucknow

respectively. The report in relation to Allahabad which has been

filed alongwith the affidavit dated 13.7.2013 is stated to have

been approved by Hon'ble the Chief Justice whereas the report

dated 23.7.2013 in relation to Lucknow indicates that it has been

seen by the Chief Justice.

To our mind, both the reports have to be coordinated

keeping in view the fact that the broad distribution of posts

between Allahabad and Lucknow in the ratio of 70:30 is projected

to be maintained in relation to the Class IV employees deployed at

both places. There are some deployments which are necessary

both at Allahabad and Lucknow, particularly, in relation to the

Guest Houses and the Official Residences of Hon'ble the Chief

Justice and Hon'ble Judges. This may therefore require a further

scrutiny in the light of the aforesaid reports to finalize the

deployment at both places.

This will also necessarily entail the exercise of withdrawing

any surplus staff as per the justification given for deployment in

the reports referred to hereinabove. The deployments made

beyond the Establishment of the High Court for which there is no

61

provision and has been discussed hereinabove has also to be

withdrawn.

This entire exercise has to be undertaken under the

umbrella of Article 229 of the Constitution of India by Hon'ble the

Chief Justice in whom such powers are reposed. The bifurcation

therefore would ultimately depend upon the outcome of all the

aforesaid factors and sorting out unnecessary postings and

deployment against the categorisation of posts. To adjust the

existing employees accordingly would in our opinion be yet

another exercise to be finally handled with precision so that extra

hands, if any, are made available at the appropriate place and the

surplusage may be weeded out.

We may place on record that according to the affidavits the

exercise prior to 2004 had been done by Hon'ble the Chief Justice

in 1997 by constituting a two judges committee when 500 posts

were sanctioned by the State Government in 1995 to be filled up

by regular appointment. The exercise undertaken in 2004 was

through the officials of the Registry within three days which

deserves to be taken notice of and it is for this reason that the

matter was referred to this five judges full bench. We do not in

any way intend to mantle ourselves with the authority of carrying

out this administrative exercise and our only effort has been to

bring on record that such an effort is necessary to be undertaken

periodically.

The date of retirement of employees is well known in

advance and therefore the number of vacancies that are likely to

occur each year in these cadres is known to the High Court. In our

opinion such an exercise should be taken at least every six

months in order to ensure that the smooth functioning of the High

Court is not hampered on account of non-availability of regular

62

employees. If such an exercise is undertaken honestly any such

problem can be safely avoided by providing hands at the

appropriate time. To wait till the last moment and then to induct

Daily Labourers, who are ensured of a regular appointment by the

methods that have been adopted uptill now cannot be said to be a

fair procedure and to avoid this, as has been happening in the

past, the aforesaid exercise has to be undertaken.

Consequently, we are of the opinion, that the reports which

are accompanied with the affidavits should now be given a relook

in the light of the principles that we have laid down in the present

judgment and then after examining the sanctioned strength, the

adjustments to be made in accordance with the ratio currently

invoked and the appropriate deployments.

The matter be placed by the Registrar alongwith a

comprehensive report for the entire Establishment both at

Allahabad and Lucknow before Hon'ble the Chief Justice alongwith

a copy of this judgment for setting the process into motion in the

light of what has been said above. This exercise may be desirable

within a period of three months or even earlier as may be

convenient to Hon'ble the Chief Justice for passing appropriate

orders. It is only thereafter that the High Court may proceed to

make appointments as per rules keeping in view the ratio

of this judgment. No appointments of DL/CL/Ad-

hoc/Temporary/Permanent Class IV employees including drivers

shall be made unless the matter is finalized as directed

hereinabove and hereinafter.

We accordingly answer the reference as per issues raised in

the order dated 17.12.2004 and 20.12.2004 coupled with the

assigning and referring order dated 18.12.2004 in the light of

what has been said hereinabove.

63

We further direct that the bifurcation shall henceforth be

made in the ratio which has been maintained uptill now and

indicated above subject to any further modifications that may be

required in an administrative exigency.

The requirement of future posts as reflected in the reports

shall also be finalized and the matter shall be sent to the State

Government for sanction keeping in view the requirements as

reflected therein.

The process of regular appointments shall be made in

accordance with the 1976 and 2000 Rules read with the

interpretation given by us in the present judgment by following

the due process of advertisement and fair selection. The Daily

Labourer or Casual Labourer engaged by the High Court shall only

have a preferential consideration at the time of recruitment and

shall not be a permanent source of recruitment for regular

appointment. The same would also apply equally to the cadre of

Drivers who are governed by the 2000 Rules.

The regular appointments through the inducted method as

per the proviso to Rule 4(a) and Rule 14 after December, 2004,

were made subject to the result of the present proceedings. We

accordingly, hold that any appointments de-hors the rules and as

indicated hereinabove contrary to the principles laid down in State

of Karnataka Vs. Uma Devi's case (supra) can not be treated to be

regular appointments.

At the same time we clarify, that by toning severity with

leniency, as was finally done by the Apex Court in Puttaswami

H.C.'s case (supra), regular engagements already made against

the 355 posts shall not be disturbed as the said 355 appointees

64

against the sanctioned posts are not before us. We are simply

inclined to be forgiving but the same shall not be treated as a

precedent as, to be amiable at the expense of a rule, would be to

sacrifice the principle that would defy the constitutional mandate.

The other issue relating to Class III posts as referred to in

the order dated 17.12.2004 can be examined by Hon'ble the Chief

Justice after going through the supplementary compliance report

dated 16.8.2012 furnished by Sri S.K. Singh, the Incharge

Registrar General and is on record. The issue relating to

malpractice in the allotment of quarters to Class IV employees

being also appears to be an administrative matter that may also

be looked into by the Hon'ble Chief justice after calling for a

report in this regard.

Having said so we may add for the benefit of the registry

that the High Court has to carry its own sack of rocks and a little

bit of insight would improve everybody's lot inasmuch as the

credibility of any institution depends upon the transparent action

of its functionaries. It is for this reason that we have indicated

the principles on which the High Court should proceed to put to

rest this burden that has been cast on account of the

mismanagement as noted by us hereinabove. Our view expressed

for undertaking regular exercises every six months would ensure

regularity and, therefore, we would lay to rest this decision with

the aforesaid directions by remembering Angelique Arnauld who

said :-

“Perfection consists not in doing extraordinary things, but in

doing ordinary things extraordinarily well. Neglect nothing; the

most trivial action may be performed to God.”

Order Dated: September 18, 2013

Sahu/Anand