1. These two Writ petitions have facts which are mostly common and the points of law that arise for decision are also the same. We, therefore, dispose of these Writ petitions together by this Judgment.
2. Both the petitioners, Shri Sukan Ma! and Shri Parmatma Sharan are on the staff of the High Court of Judicature for Rajasthan. Their grievance is that when the posts of the Assistant Registrar and the Secretary to the Hon'ble the Chief Justice fell vacant their claims for promotion were not properly considered and Shri Nathu Lal and Shri Jai Dayal who are Respondents Nos. 4 and 5 in bom the Writ Petitions were appointed, the former as the Assistant Registrar and the latter as the Secretary to the Hon'ble the Chief Justice by orders dated the 22nd of April 1961 mentioned in Documents Nos. II and III.
In the opening part of their respective Writ petitions the petitioners have mentioned their educational qualifications and record of services in the High Court. Then they have alleged that both Respondents Nos. 4 and 5 were much junior to them. They have also pointed out that there were other persons who were senior to these Respondents but their claims were also ignored. The contentions of the petitioners are that in the matters of promotion and selection, the selective test must be based on some reasonable principle and should not be arbitrary and that the appointment of the Respondents to the respective posts referred to above was made only to give them undue preference. As a matter of fact no selection was ever made before these appointments and the cases of seventy employees including the petitioners who were senior to Respondent No. 5, and eight employees who were senior to Respondent No. 4 were not at all considered, it is also alleged that no procedure of any nature was followed in making these appointments.
It is further alleged that the appointments were not in accordance with the Rajasthan High Court (Conditions ofService of Staff) Rules (hereinafter called 'the Rules') framed under Article 229(2) of the (Constitution of India by the then Chief Justice of High Court of judicature for Rajasthan with the approval of the Rajpramukh of Rajasthan. The vires of these rules are also challenged. It is urged that Rule 10 was ultra vires of the provisions of the Constitution being in derogation of Articles 14 and 18 of me Constitution which provide for equality before law and equality of opportunity for all citizens in the matter of employment or appointment to any office under the State. It was also urged that the appointment was mala fide, arbitrary and capricious for various reasons given in the Writ petitions. Besides Shri Nathu Lal and Shri Jai Dayal, the Hon'ble the Chief Justice, the Registrar. Rajasthan High Court, Jodhpur and the State of Rajasthan were made parties to these Writ petitions, and in both Writ petitions, they are Respondents Nos. 1, 2 and 3 respectively.
3. Lengthy replies have been filed by Respondents Nos. 4 and 5 in substance denying the main allegations of the petitioners and their right to seek relief in this Court by way of Writ Petition. Reply has also been filed on behalf of the Hon'ble the Chief Justice of Rajasthan. It is mentioned in the reply that while making a selection for promotion to the post of the Assistant Registrar, the cases of several persons were considered and out of these persons the then Chief Justice who was the appointing authority found Shri Nathu Lal eligible for promotion as Assistant Registrar as the appointing authority was satisfied about his integrity and impartiality. The Registrar had also recommended him for promotion and by order dated the 22nd of April 1961 he was promoted as Assistant Registrar. With respect to Shri Jai Dayal it is submitted that at that time he was discharging the dirties of the Secretary to the then Chief Justice since May 1959. On the recommendation made by the Registrar, the then Chief justice himself passed the order of promoting Shri Jai Dayal by his order dated the 22nd of April, 1961.
Thus, it is submitted that the promotion of Shri Nathu Lal to the post of the Assistant Registrar and the promotion of Shri Jai Rayal to the post of the Secretary to the Hon'ble the Chief Justice were made by the then Chief Justice himself acting under the powsrs of Article 229(1) of the Constitution of India, It is further submitted that the rules specifically provide that selection for promotion to these posts shall be made irrespective of seniority and selection is further subject to the satisfaction of the Hon'ble the Chief Justice with regard to the integrity and impartiality of the person sought to be promoted. It is denied that no procedure in making the promotions was adopted. It is stated that the procedure followed in promoting Respondents Nos. 4 and 5 was commensurate with the requirements of the posts. It is also stated that it is not correct to say that no opportunity had been given to the petitioners or other persons to show their suitability. In fact such an opportunity existed from the very date of their entry in the service.
4. These Writ applications were admitted by this Court on the 14th of September 1962 and on that date an order was passed on the application by the petitioner that the office notes, if any, on which the impugned orders were passed may be made available to the Bench hearing the Writ petitions. Objection is taken in the reply to the production of the office notes on the ground that they were confidential. During the course of hearing,applications were filed for the production of the notes of appointments of Respondents Nos. 4 and 5 and also of the confidential reports of the petitioners. The office notes of the promotion of both the petitioners were placed on file by the Advocate General omitting therefrom the confidential remarks made by the Registrar, with respect to the various persons whose cases were considered while making the recommendation about the appointment of the Assistant Registrar on the ground that they were communications made in official confidence by the Registrar to the then Chief Justice and they were privileged. The confidential records of the petitioners were not filed. With regard to this matter we have already passed a separate order. We have pointed out that we did not think proper that we should compel the Advocate General to produce even the confidential remarks made by the Registrar in his notes to the then Chief Justice as it would amount to disclosure of the communications made in official confidence by the Registrar to the then Chief Justice. We have also held that the confidential records of Respondents Nos. 4 and 5 were not necessary.
5. Several preliminary points have been taken on behalf of Respondent No. 5 also why the instant Writ petitions were not maintainable. The first objection was that in these Writ Petitions, if they are granted, a direction is to be issued to the Hon'ble the Chief Justice of the Rajasthan High Cou'rt which cannot be done inasmuch as the direction that will be so issued will be in his own name and against himself. The second objection is that there has been considerable delay in making the Writ petitions inasmuch as the orders of the appointment of Respondents Nos. 4 and 5 were made on the 22nd of April, 1961, while the Writ Petitions have been filed on the 7th of July 1962 after considerable delay. The third objection is that these Writ petitions contain scandalous matters which concern the then Chief Justice and they should be dismissed on that ground alone without any decision on merits. The learned Advocate General, however, took up the position that in the circumstances of these cases he would welcome a decision of the cases on merits. We, therefore, proceeded to hear the cases on merits and we consider it proper that the merits of these cases must be dealt with first and then we will make our observations regarding the preliminary objections raised on behalf of Respondent No. 5.
6. The copies of the orders filed by the petitioners of appointments of Respondents Nos. 4 and 5 show that these appointments were made by the then Chief Justice. Far the post of the Assistant Registrar, the Registrar made his recommendation for the appointment of Shri Nathu Lal on the 20th of April 1961 after considering the cases of several persons who happened to be senior to Shri Nathu Lal. In the Note the Registrar has made his remarks as to why he did not consider others fit for the post. The then Chief Justice thereafter made his own remarks about the fitness of Mr. Nathu Lal and appointed him as Assistant Registrar. The Registrar also made his recommendation on the 20th of April 19S1 with regard to the post of the Secretary to the Hon'ble the Chief Justice giving his reasons why he considered Shri Jai Dayal to be fit for promotion to that post. Thereupon the then Chief Justice made his own remarks and appointed Shri Jai Dayal on that post on the 21st of April 1961.
7. These proceedings show that the appointment to the post of the Assistant Registrar and to the post ofthe Secretary to the Hon'ble the Chief Justice were made by the then Chief Justice himself and the Registrar had merely made the recommendations.
Now the power given to the Hon'ble the Chief Justice in the matter of appointment under Article 229(1) is unfettered, except to the extent it is restricted by the proviso. The main point therefore to be decided in these Writ Petitions is -- on what grounds this power of the Hon'ble ths Chief Justice can be challenged in a Court of law?
The argument on this post is that the petitioners were never afforded any opporunity to place their cause for promotion for these two posts. They had good record of services and they feel confident that if they had been given any opportunity, they could have convinced the appointing authority of their claim to any of the two posts. It is contended that Article 16(1) grants equal opportunity to all citizens relating to any office under the State and this opportunity was not afforded. It is contended that even the exercise of the power of the Chief Justice under Article 229(1) in the matter of appointment in the High Court is subject to Article 16(1) of the Constitution which is a fundamental right.
8. We may proceed on the assumption that the power of appointment granted to the Chief Justice under Article 229(1) of the Constitution is subject to Article 16(2) of the Constitution. The question, however, is what is guaranteed by Article 16 of the Constitution. It guarantees equality of opportunity for all citizens in matters relating to employment for appointment. 'Opportunity' as used in this Article means chance of employment and what it guarantees is that this opportunity of employment should be equally available to all. The emphasis is on equal eligibility and absence of discrimination. If there is a bar by way of a notification, rule, regulation or law issued by any authority infringing this right, it will be invalid. What Article 16 contemplates is that a citizen should not be denied the equality of opportunity but it does not mean that positively he should be afforded certain facilities or that particular ijrocsdure must necessarily be followed in making an appointment. If there is any denial of an opportunity, it may amount to an infringement of Article 16 but this article dees not cast a duty on the appointing authority that the citizens should be afforded particular facilities.
When there is a question of affording an opportunity, the Constitution makers have clearly used such expression as in Article 22(5) where it has been laid down that the authority making the order of detention shall afford the earliest opportunity to such person of making a representation agsinst the order. Article 15(2) which is an amplification cf Article 16(1) cieariy lays down the grounds on which it may be said that a citizen has been denied the equality of opportunity. It says that :
'No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.'
Sub-articles 3, 4 and 5 of Article 16 also refer to the making of law which may be held valid in spite of Article 16(1) and (2). The conception is that the State, as defined in Article 12, which in our opinion includes the Chief Justice of a High Court, should, not make any rule which may affect the equality of opportunity. But this does not mean that in every case of appointment or recruitment to services or promotion the State should inviteapplications for such appointment or promotion. This does not further mean that if such an invitation is not issued, it must be concluded that equality of opportunity has been denied.
If a contrary view of law is adopted, it would mean that in every case of promotion there must be notice to all the citizens or at least to the petsons who are eligible for appointment or promotion that their cases shall be considered. Not only this but they must be given every full opportunity for placing their cases before the appointing authority. In the case of a direct appointment, a citizen may say, once it is conceded that an opportunity is to be given, that the opportunity afforded to him was not sufficient. Such is not in our considered opinion the connotation of equal opportunity given in Article 16. As we have already pointed out the emphasis is that as between A and B there should be no discrimination in the matter of employment. Taking this view of the matter we are of the opinion that it was not at alt necessary in this case that the then Chief Justice should have invited applications for promotion or should have heard the petitioners or any other persons. It was sufficient if there was no discrimination.
9. The order of the then Chief Justice was challenged on the ground of being mala fide but practically all allegations on that point were withdrawn. The argument addressed was that the then Chief Justice exercised his power arbitrarily. Now it should not be forgotten that the Constitution makers 'in their wisdom conferred the power of making appointment in the High Court on the Chief Justice. This power has been entrusted to the safe custody of the Chief Justice in order to ensure the independence of the Judiciary which is one of the vital organs of a Government In the long history of the High Court in India this power has always vested in the hands cf the Chief Justice. Clause 10 of the Charter of the Suprame Court of Calcutta issued in 1774 authorised and empowered from time to time to appoint as many and such clerks and other ministerial officers as was found necessary for the administration of justice.
The Constitution has also recognised that in the internal administration of the High Court, no other power, except the Chief Justice, should have domain. It would require a very strong and convincing argument to show that this power has been abused. Practically all the grounds casting reflection on the then Chief Justice having been withdrawn, and the only matter on which this argument has been urged is that mu'ch junior persons to the petitioners have been appointed to the post of trust and responsibility ignoring the claims of the petitioners. Now what has happened in these cases may at this stage be considered.
For the appointment of the Assistant Registrar, the Registrar prepared a note considering practically all the persons who were senior to Shri Nathu Lal and made a recommendation that in his opinion Shri Nathu Lal deserved to be appointed as Assistant Registrar. The then Chief Justice considered this matter and accepted this recommendation for reasons which are given in his order of appointment. It cannot be said that there was any arbitrariness in this matter. Even under the rules the post of the Assistant Registrar was a selection post and the then Chief Justice was entitled to pick and choose the best man whom he thought fit to appoint on that post Moreover, we cannot substitute our own judgment for the judgment of the then Chief Justice. The Constitution has entrusted that duty to him. He has exercised his owndiscretion. It is a case in which an administrative authority has exercised its own discretion and even if we take a different view of the matter we should not substitute our own views in place of the views of that authority.
As observed by their Lordships of the Supreme Court in The Registrar of Trade Marks v. Ashok Chandra Rakhit, Ltd., (1955) 18 SCJ 562 : ((S) AIR 1955 S C 558):
'If an authority has exercised his discretion in goodfaith and not in violation of any law such exercise of discretion should not be interfered with by the High Court merely on the ground that it could have been exercised differently or even that the High Court would have exercised it differently, had the matter been brought before it in the first instance.'
The same observations apply to the case of appointment of the Secretary. The Registrar submitted a note that he was a fit person for the appointment on that post. The then Chief Justice took the view that Shri Nathu Lal as Stenographer and Shri Jai Dayat had jointly and severally discharged the duties of his Secretary with a commendable credit and proved worthy of the trust and responsibility reposed in them. It may be that he was a much junior man but it cannot be denied that the then Chief Justice could appoint any man from his staff or even from outside as his Secretary.
We cannot control in any way the discretion exercised in this matter. There are well-defined limits under which the discretion exercised by an administrative authority can be controlled, it must not be exercised contrary to law,or it must not be exercised for extraneous considerations though under the garb of law. As observed by their Lordships of the Supreme Court in The High Court, Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704, 'the exercise of the power vested in the High Court is not justiciable and rightly so.' In this view of the matter, we do not find any substance in this contention urged on behalf of the petitioners.
10. In the view we have taken of the matter it is not necessary for us to consider the arguments addressed to us about the validity of rules framed by the then ChiefJustice under Article 229(2) of the Constitution. We may,however, briefly refer to them.
11. Under Article 229(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. This is subject to a proviso which it is not necessary for us to mention. The rules were framed which are called the 'Rajasthan High Court (Conditions of Service of Staff) Rules, 1953', by the then Chief Justice in exercise of the powers conferred by Article 229(2). The rules which are material for the purpose of these Writ petitions are Rules 7, 8, 9, 10 and 11, which run, as follows :
'7. Other conditions of service: (1) Subject to these rules, the rules and orders for the time being in force and applicable to the servants of corresponding classes in the service of the Government of Rajasthan shall regulate the conditions of service of persons serving on the staff of the High Court;
Provided that the powers exercisable under the said Rules and Orders by the Rajpramukh or the Governmentshall be exercisable by the Chief Justice, or by such person as he may, by general or special order, direct.
(2) If any question arises as to which rules and orders are applicable to the case of any persons serving on the staff, it shall be decided by the Chief Justice.
8. Promotion : Subject to the requirements of efficiency promotion shall ordinarily be made according to seniority. An official may receive special promotion for recognised merit irrespective of the grade to which he may belong or of his seniority without the grade.
9. Promotion to posts of responsibility etc.: Promotion to the following posts of responsibility or trust or which require special qualifications, shall be made by selection, irrespective of seniority:
1. Stenographer to Hon'ble Chief Justice-I Grade.
2. Office Superintendents.
3. Head Translators.
4. Chief Accountant.
5. Senior Reader (or Reader to Hon'ble Chief Justice.
6. Stamp Reporters.
7. Stenographers for Hon'ble Judges-II Grade.
9. Stenographers for Hon'bie Judges and Stenographer to Registrar-III Grade.
10. Bench Readers.
10. Promotion to posts of Assistant Registrars and Secretary to Hon'ble Chief Justice : Promotion to the posts of Assistant Registrar and Secretary to Hon'ble Chief Justice shall also be made by selection irrespective of seniority.
Subject to any general or special order passed by the Chief Justice promotions to posts mentioned in this Rule and in Rule 9 shall be made by the Registrar.
11. Integrity: No person on the staff attached to the High Court shall be allowed promotion to a post or special trust or responsibility or to any of the special posts mentioned in Rule 9 unless the appointing authority is satisfied that he is a person of integrity and impartiality.'
12. Elaborate arguments were addressed before us on the point that Rule 10 was 'ultra vires' of the Constitution because it infringed Articles 14 and 16 of the Constitution and further that the impugned appointments were not made even in accordance with Rule 10. These arguments lose all their weight in view of the fact that the impugned appointments were not made under the rules but had been made by then Chief Justice under Article 229(1) of the Constitution, It is urged that the Registrar has been given unfettered power to pick and choose any of the persons mentioned in Rule 9 for appointment as Assistant Registrar and Secretary without laying down any principle or policy for his guidance and this delegation of power by the then Chief Justice to the Registrar was improper. The Constitution under Article 229(1) has itself laid down that the then Chief Justice may delegate this power either to another Judge of the High Court or to any other officer. When such a delegation is permissible under Article 229(1) of the Constitution, we do not think that it was necessary that there should have been some criteria laid down in the rules for making promotions far the post of the Assistant Registrar or Secretary. However, this matter has no importance as in this case the Registrar has not made the appointments.
13. It was further urged that appointment could nave been made only from amongst the persons occupying the posts mentioned in Rule 9 and as Shri Jai Dayal wasonly an officiating Translator and not a Translator, he couldnot have been appointed as the Secretary. The contention is that under Rule 11, no person on the staff attached to the High Court shall be allowed promotion to any post of special trust or responsibility or to any of the special posts mentioned in Rule 9 unless the appointing authority is satisfied that he is a person of integrity and impartiality and as the posts of the Assistant Registrar and Secretary to the Hon'ble Chief Justice were posts of special trust and responsibility, only those persons who had already fulfilled the test of having occupied the post of responsibility or trust as mentioned in Rule 9 could be appointed as Assistant Registrar or the Secretary to the Hon'ble the Chief Justice. In our opinion, this argument is very far-fetched. Rule 10 does not lay down that promotion to the posts of the Assistant Registrar and the Secretary to the Hon'ble the Chief Justice should be from amongst the persons mentioned in Rule 9.
Then it is urged that appointment in this case infringed Rule 4 which is to the effect that in the first instance the appointment must be on probation. But under these very rules, the Hon'ble the Chief Justice could relax the provisions of any of these rules and in the case of Respondents Nos. 4 and 5 the rules were relaxed. Lastly, it was urged that the petitioners had filed their appeals before the then Chief Justice under Rule 14(b) and they were dismissed by the then Chief Justice on the ground that it did not lie without referring it to the committee of three Judges as required under Rule 14 (b). As there arises no question of interpretation of the rules to the disadvantage of the petitioners nor is there any case of imposition of any of the penalties specified in Rule 12, their appeals were not competent and it cannot be said that their rejection by the then Chief Justice without referring it to the committee of three Judges would give to the petitioners a cause of action for filing these Writ petitions.
14. Yet another argument that was addressed was that non-promotion of the petitioner or persons senior to him must be taken to ba reduction in rank within the meaning of Article 311, and as sucn this could not be done without giving notice to the petitioners as required under; that Article. This argument is mentioned only to be rejected. Non-promotion is not reduction in rank.
15. This exhausts all the relevant arguments addressed by the petitioners in support of their Writ petitions, and we find that on merits the petitioners cannot succeed.
16. Now we may refer to some of the preliminary objections which were raised on behalf of Respondent No. 5. The first objection was that in a case of this hind the application for a Writ against the action of the then, chief Justice even if it was administrative was not maintainable as it would amount to issuing a direction to himself. This point was left undecided by their Lordships of the Supreme Court in Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court, (1955) 2 SCR 1331 : ( (S) AIR 1956 S C 285). It is not necessary for us to decide this point either though we are inclined to take a view that if there is a breach of a fundamental right, a writ may be issued even for quashing an order passed under Article 229 of the Constitution. The secondobjection is that of delay. There is much substance in this contention of Respondent No. 5. The orders of appointment were made on the 22nd of April 1961 and the petitioners have presented their petitions as late as the 7th of July 1962. Thus, there is a delay of more than 1 year-2 months. The only reason for the delay that has been given is that the petitioners were making certain representations.
But this is no reason for them not to have come to this Court at a much earlier stage. We are of the opinion that the Writ petitions deserve to be dismissed on this ground as well. The third objection is that the petitioners had made certain scandalous reflections in their Writ petitions against the then Chief Justice and the petitions deserve to he dismissed on that ground alone. nOW tnat they have withdrawn, the scandalous allegations, we only express our strong disapproval of the conduct of the petitioners in making such reflections.
17. As a result of the aforesaid discussion, the Writ Petitions are dismissed with one set of costs to the respondents.