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Gopeswar Bhatt Vs. State of Rajasthan an ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1908 of 1972
Judge
Reported in1974WLN351
AppellantGopeswar Bhatt
RespondentState of Rajasthan an ors.
DispositionPetition allowed
Cases ReferredRidge v. Baldwin
Excerpt:
civil services - government making appointments on recommendations of the departmental promotion committee--held, it is not acting quasi judicially.;when the government makes an appointment pursuant to recommendations of the departmental promotion committee or the selection committee, it is not acting quasi judicially, nor can the committee while considering the cases of various officers or while it makes the recommendations be said to be acting quasi judicially and at no stage would, therefore, the principles of natural justice be attracted.;(b) civil services - circular guiding appointments found illegal--appointment order is voidable and not void.;once a voidable order is pronounced to be void at the instance of an affected party then the result is the same namely it is void ab initio.....kan singh, j.1. the case before me is an aftermath of what is known as guman singh's case reported as guman singh v. state of rajasthan : (1971)2scc452 .2. the petitioner belongs to the rajasthan administrative service, to be shortly stated hereinafter as the 'r.a.s.', constituted by the rajasthan administrative service rules, 1954, hereinafter to be referred as the 'r.a.s. rules'. he joined this service on 26.8.55 as assistant collector and magistrate and was confirmed in the r.a.s. on 27.8 57. the r.a.s. comprises of three scales of pay; one is the ordinary time scale 375 850, the other is the senior scale 700-1100, and the third is the selection grade 1100-1500. the promotion to the senior scale of the r.a.s. from the ordinary scale of the r.a.s. is both on the basis of.....
Judgment:

Kan Singh, J.

1. The case before me is an aftermath of what is known as Guman Singh's case reported as Guman Singh v. State of Rajasthan : (1971)2SCC452 .

2. The petitioner belongs to the Rajasthan Administrative Service, to be shortly stated hereinafter as the 'R.A.S.', constituted by the Rajasthan Administrative Service Rules, 1954, hereinafter to be referred as the 'R.A.S. Rules'. He joined this service on 26.8.55 as Assistant Collector and Magistrate and was confirmed in the R.A.S. on 27.8 57. The R.A.S. comprises of three scales of pay; one is the ordinary time scale 375 850, the other is the senior scale 700-1100, and the third is the selection grade 1100-1500. The promotion to the senior scale of the R.A.S. from the ordinary scale of the R.A.S. is both on the basis of seniority-cum-merit; as well as strictly on merit., Likewise, the selection to the selection grade is from the senior -scale and this is again both on the basis of seniority-cum-merit and strictly on merit. The petitioner was selected in the selection grade of the RAS strictly on the basis of merit i.e. against the merit quota, in January, 1967. He was there- after promoted to the selection grade of RAS with effect from 26 12 70 again against the merit quota, that is, strictly on merit. Sometime after his appointment to the selection grade Shri Guman Singh's case before their Lordships of the Supreme Court came to be decided on 26 7 71 It is the decision of Shri Guman Singh's case that has resulted in the reversal of the petitioner's fortune. The State Government thought that in view of what their Lordships had laid down in Guman Singh's case they had to review the cases of all the promotees to the selection grade of the RAS on the basis of the circular that came to be struck down by heir Lordships in the aforesaid case. Accordingly, the Government constituted a departmental committee and on the basis of recommendations made by that committee the Government superseded the previous orders and instead appointed other officers in the selection grade of the RAS with effect from 26.la.70. I may read the impugned order of the State Government dated 12.4.73:

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3. The petitioner challenges this order He contends (1) that under the R.A.S. Rules once the Government had made the appointment of an officer to the selection grade in accordance with Rule 32 of the RAS Rules the Government have no power whatsoever to cancel the appointment. In other words, the Government do not have any power of reviewing the previous order. (2) The second contention of the petitioner is that the Supreme Court case on which the Government purported to rely did not authorise the Government to reopen the cases of other persons who were not before their Lordships of the Supreme Court either in the appeal filed by Shri Guman Singh or in the writ petitions that were disposed of by the same judgment. The petitioner maintains that the operative part of the judgment confined the reviewing of the cases only in respect of the respondents who were before their Lordships and that too vis-a-vis Shri Guman Singh and not others. The State Government had further not followed the principles of natural justice as they did not afford any opportunity to the petitioner to show cause why his appointment be not cancelled.

4. The writ petition has been opposed by the State of Rajasthan. It is denied that the Government were not entitled to review the cases of R A.S. Officers other than those who were before their Lordships of the Supreme Court. It was submitted that as the Government circular on the basis of which promotions to the senior scale of the R.A.S. that were made in 1967 had been struck down, all the appointments made in pursuance thereof were null and void and, therefore, the Government could re examine the whole position and make fresh selections and appointments on correct basis. Then it was submitted that in Guman Singh's case a stay application was filed on behalf of Shri Guman Singh before their Lordships of the Supreme Court and on 3. 2 70 the Advocate General had made a submission before their Lordships that he would advise the Government not to make any further promotions or confirmations in the senior scale or higher scales. Subsequently an application was moved on behalf of the State Government to modify the submission made on 3.2.70 and on the State Government giving an undertaking that all the promotions whether they be in the same line or in some other line, shall be subject to orders of the Court in Shri Guman Singh's case the previous order was modified on 21 7.70. It was thereafter that the Departmental Promotion Committee met to consider the cases of RAS Officers for promotion to the selection grade and the petitioner, amongst others, came to be appointed on the recommendations of the Departmental Promotion Committee to the selection grade with effect from 26 12.70. The Government, therefore, maintain that in view of the undertaking that the Government had given before their Lord- ships of the Supreme Court the appointments or promotions made before the decision of the appeal in Guman Sirgh's case would only be provisional though they purported to be substantive, and as the circular which was the basis of the promotion had been struck down by their Lordships the order of the petitioner's appointment to the selection grade was reviewed and as the result of the review by the Departmental Promotion Committee others were appointed whereas the petitioner was not so appointed to the selection grade.

5. I have to ask myself the following questions and answer them:

(1) Whether the Government have the powers of review in respect of appointments made to the selection grade of the RAS Under Rule 32 of the RAS Rules?

(2) Whether the orders of appointment as a result of the recommendations of the Departmental Promotion Committee made on the basis of the circular that was struck down in Shri Guman Singh's case were void or a nullity so that they could be set aside or ignored altogether or they were only voidable as could be challenged or avoided only by the persons affected by such appointments?

(3) Whether the undertaking given by the Government has a wider ambit so as to entitle them to review the cases of even those officers who were not before their Lordships or the review in terms of the undertaking was to be made only for the benefit of the parties before their Lordships in Guman Singh's case or in the other writ petitions which were decided by the same judgment?

6. Before proceeding to discuss the above questions it will be convenient to read the relevant duties The RAS Rules came into force from 9.7 54. The Rules are divided into several parts. The first part is general and contains the definitions Part II is about the. Cadre ie. the strength of the service. Part III is about recruitment. Part IV lays down the procedure for direct recruitment. Part V provides for the procedure for recruitment by promotion. It may be mentioned that the Administrative Reforms Commission bad made a recommendation that there should be a provision for a person to go up the ladder on the basis of merit. In other words, merit must receive due recognition while making promotions to the higher posts. With a view to enabling persons in the lower cadres to enter the higher cadres on the basis of their merit the RAS Rules were amended some time in 1365. Rule 28-B was newly added with that purpose, like some other rules, & I may read this rule:

Rule 28B Promotion by selection on basis of Merit.--(1) Appointment by promotion to posts in the Service shall be made by selection, strictly on the basis of merit and on the basis of seniority-cum-merit in proportion of 1 : 2.

Provided that if the appointing authority is satisfied that suitable persons are not available for appointment by promotion strictly on the basis of merit in a particular year, appointment by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these rules.

(2) Selection strictly on the basis of merit shall be made from amongst persons who are otherwise eligible for promotion under these rules; the number of eligible candidates to be considered for the purpose shall be ten times the total number of vacancies to be filled in on the basis of merit and seniority-cum-merit provided such number is available; where the number of eligible candidates exceeds ten times the number of vacancies, the requisite number of senior most persons shall be considered for the purpose.

Provided that for the first promotion in the same cadre (from a lower grade to a higher grade) against the merit quota, only such of the persons shall unless a higher period is prescribed elsewhere in these rules, be eligible who have put in not less than six years service in the lower grade of the cadre.

(3) Except as otherwise expressly provided in this rule, the procedure prescribed for selection to the post on the basis of seniority- cum-merit shall, so far as may be, be followed in making selection strictly on the basis of merit.

(4) The Committee shall prepare a separate list of candidates selected by it on the basis of merit and shall arrange their names in order of preference.

(5) Where consultation with the Commission is necessary, the list prepared by the Committee shall be forwarded to the Commission by the appointing authority along with the personal files and confidential rolls of all persons whose names have been considered by the Committee.

(6) The Committee shall consider the lists prepared by the Committee along with other documents received from the appointing authority and unless any change is considered necessary, shall approve the lists & if the Commission considers it necessary to make any change in the lists received from the appointing authority the Commission shall inform the appointing authority of the changes proposed and the appointing authority, after taking into account the comments, if any, may approve the lists finally with such modifications as may, in his opinion, be just and proper.

(7) Appointment shall be made by the appointing authority taking persons out of the list finally approved under the preceding Sub-rule in the order in which they have been placed in the list.

(8) Among persons appointed in the same class, category or grade of posts during the same year, persons appointed on the basis of seniority- cum-merit shall rank senior to those appointed by promotion on the basis of merit; the seniority inter-se of persons appointed in the same class, category or grade of posts by promotion strictly on merit shall, without regard to the order of preference, be determined as if such persons had been appointed by promotion on the seniority-cum-merit.

(9) The provisions of this rule shall have effect notwithstanding anything to the contrary contained in any other provisions of these rules.

Explanation.-For the purpose of determining the number of vacancies to be filled on either basis under Sub-rule (1), the following cyclic order shall be followed from year to year.

The first by merit, the next two by seniority-cum-merit, the next one by merit, the next two by seniority-cum-merit, the cycle to be repeated.

Part VI provides for special selection Part VII is about appointment, probation and confirmation. Rule 32 is for appointment to senior posts & I may read this rule:

Rule 32(1). Appointment to senior posts--Appointment to Senior scale and selection grade posts shall be made by Government from amongst the members of the service on the basis of merit & seniority-cum merit in the ratio of 1 : 2 on the recommendations of a Committee which shall consist of the following:

(1) Chairman, Rajasthan Public ServiceCommission or a Member nominatedby him. Chairman(2) Chairman, Board of Revenue, Member(3) Commissioner, Development Department Member(4) Special Secretary to Government in the Appointments Department Member Secretary(2) Except as provided in this rule, the procedure and the principles for selection by merit shall, in so far as it may apply, be the same as provided in Rule 28-B. For selection by seniority-cum-merit, the Committee shall consider the cases of all the parsons eligible for promotion by examining their Confidential Rolls and personal files and interviewing such of them as they may deem necessary, and shall select a number of candidates equal to the number of vacancies likely to be filled by promotion by seniority-cum merit.

Provided--

(1) That appointment to the senior or selection grade post may be made by Government by appointing thereto temporarily a person eligible for appointment by promotion to the service under the provisions of these rules.

(2) No appointment made under proviso (1) above shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur.

The Government had issued a circular, embodying certain principles for assessment of merit, on 27,8 66. The relevant portions of that circular were as follows:

3 (a) : 'Merit formula' means that out of 75 marks (marking system has been defined in paragraph (5), a person should get a mini- mum of 65 marks for consideration of his case for promotion among those who have secured 65 or more marks the persons who get highest marks will be the first to be promoted, and the person who comes next in the range of marks will be the second to be promoted, and so on. The inter se seniority of persons appointed in the same class, category or grade of posts by promotion strictly on merit shall, without regard to the order of preference, be determined as if such persons had been appointed by promotion on the basis of seniority-cum merit. This is illustrated by the following example.

Name of No. of marks Seniority inthe the nextOfficer below grade'A' 75 8'B' 73 9'C 70 4'D' 69 3'E' 65 1That if there are 5 vacant posts to be filled by promotion on the basis of 'merit' formula the inter se seniority of these 5 selected persons will be the same as in the next below grade, but if only 3 posts are to be filled then those who have secured 75, 73 and 70 marks respectively will be selected and the remaining left out. The inter se seniority amongst these selected shall be the same as in the next below grade.

(b) The eligible candidates for promotion on the basis of 'merit' formula shall be 10 times the total number of vacancies to be filled by way of promotion provided such number is available and they should be holding the post in the next below cadre in substantive capacity. As for example, if there are twelve posts to be filled by way of promotion on the basis of both the formulas (viz. four posts for Merit and eight posts for seniority-cum-merit) the total number of eligible candidates for promotion on the basis of merit formula shall be 12, if available. If an officer could not secure 65 marks continuously for 5 years he will not be included in this list of eligible candidates.

(c) Notwithstanding anything contained in sub-para (b) above, for first promotion by merit, only such of the candidates shall be eligible who have put in six years service in the cadre on the date of selection.. ... ... ... .... ... ... ... ... ...5. The marking system will be as follows:

(a) Confidential Rolls for the 5 calendar years immediately pre- ceding the date of selection will be examined, 5 marks will be earmarked for each year's confidential roll, and the marking will be : Excellent report-6 marks, Very good report-4 marks, Good report-3 marks, Satisfactory report 3i marks; and adverse report with punishment 1 mark. If a person has been awarded either 'Merit pay or 'Cash awarded by the Government' then the Committee may award him upto 5 more marks in addition to the marks already obtained by him. These additional marks will not be taken into consideration at the time of the next selection.

(b) The record of service, which means service book, personal file, and confidential rolls other than the confidential rolls of the 5 years immediately preceding the selection maintained after the formation of Rajasthan, will be allotted 50 marks, and the marking will be, (a) average or satisfactory record-60 marks, and (b) deduction upto 2 marks for each punishment according to gravity may be made (no deduction will be made for mere warning but, where warning has been recorded in a Confidential Roll, it should be considered as punishment and marks should be deducted), 'Recorded warning' means censure given by way of punishment under the CCA Rules. If some marks have been deducted for any punishment out of the 50 marks in any year of selection, then that deduction should not be repeated or counted in the next selection. Also, if some marks have been deducted from the Confidential Roll of a particular year, then that deduction should not be repeated or counted in the next selection. Also, if some marks have been deducted from the Confidential Roll of a particular year, then that deduction should not be repeated or counted next time. That Confidential Roll should be considered satisfactorily and marks awarded accordingly. With a view to ensure implementation of this, it would be necessary for the promotion committee to keep a record of such deductions and additional marks as the case may be.

(c) On the basis of above marking only such persons who have secured a minimum of 62 1/2 marks out of the total of 75 marks will be considered for promotion on the basis of 'Seniority-cum-merit' formula. Thus, as has been mentioned earlier, even if a junior person se- cures more than 62J marks, the senior will not be superseded, if he has secured 62J marks. Under the 'merit' formula, those who have secured 65 marks or more will only be considered for promotions.

7. Para-6 of the circular dealt with officers who could be called for interview. It provided that a person who secured less than 62$ marks should be called for interview, but persons who got less than 61 marks should not be called for interview. Para-7 of the circular lays down that adverse remarks in the Confidential Rolls should be communicated to the person concerned in time so that he may get an opportunity to represent his case to the authority concerned, but if by chance, adverse remarks had not been communicated, but his representation has not been decided then in that event the person concerned should be called for interview by the Selection or Promotion Committee and before he is asked to appear adverse remarks should be communicated to him so that he may come prepared with what he has to say in the matter. Then finally it was laid down in the circular that the instructions contained should be strictly kept in view while reasons were being considered for promotion.

8. It will be convenient at this point to recaptulate what their Lordships of the Supreme Court have held in Shri Guman Singh's case regarding this circular. In paragraphs 37 to 46 of the judgment their Lordships have referred to the various portions of the circular. Then their Lordships went on to observe that one thus gets a fairly good picture of the nature of the instructions contained in the circular issued by the Government. Their Lordships recognised that no doubt a properly evaluated marking system may be helpful for assessing the merit of persons who are already in service, yet their Lord- ships pointed out that the instructions given in the circular are so rigid that they are opposed to the selection to be made strictly on merit as provided under Rules 28B and 32 (vide para-47) Then their Lordships referred to the marking system and pointed out that this formula of marking was certainly opposed to Rules 28-B and 32, the object of which was to ensure that merit and merit alone is to form the basis (or promotion, as against the quota fixed for merit in contradistinction to seniority-cum-merit. Then having discussed at length the portions of the circular their Lordships concluded that the circular was bad and accordingly it was ordered to be struck down. Having struck down the circular their Lordships proceeded to consider the promotions and confirmations made under the orders dated 4 1.67, 22.1.70 and 21 2.70 and then indicated that their Lordships were not inclined to disturb these orders except to the extent indicated in the later part of the judgment regarding the promotions of respondents Nos. 2 to 4 in Civil Appeal No. 1815 of 1970 under the first order dated 4 1 67 & their confirmation by the second order dated 22.1.70. I will be referring, in a moment, to the operative part of their Lordship' judgment. Their Lordships then took up for consideration the writ petitions and observed that those petitioners were aware that Shri Guman Singh was challenging the promotions of only 4 officers in his writ petition in the High Court and they kept quiet and allowed the officiating promotions of all the officers to stand from 1967 and even kept quiet till the Government confirmed the pro- motions of those officers on January 22, 1970. Consequently their Lordships held that so far as the writ petitioners were concerned the State must, be considered to be justified in pasting the order dated 22.1.70, on which date the High Court's judgment of the D. B. was in favour of the Government. Consequently their Lordships denied to the writ petitioners the larger reliefs claimed by them viz., regarding the attack against the orders dated 4.1.67 and 22.1.70. However, in the cases of the writ petitioners also their Lordships struck down the impugned circular. Their Lordships then issued the directions regarding Guman Singh's appeal as follows:

We are, accordingly of the opinion that so far as the appellant (in the civil appeal) and Respondents Nos. 2 to 4 are concerned, the officiating promotions made of the latter officers by order dated January 22, 1970, will have to be reviewed & considered by the Departmental Pro- motion Committee & the Govt. It is needless to state that the circular, dated August 27, 1966, should not be taken into consideration. The claims of the appellant and Respondents Nos. 2 to 4 in the appeal will have to be considered only on the basis of the Rules. We also make it clear that a reconsideration of the claims of the appellant and Respondents Nos. 2 to 4 will be necessary, only if the appellant, is found, in the first instance, to be eligible as per the Rules for being considered for promotion. His eligibility is to be decided with reference to the date when the Departmental Promotion Committee met in September, 1966 for considering promotion. This direction becomes necessary as we are upholding the validity of the Rules 28-B & 32. If ultimately, Respondents Nos. 2 to 4 are found eligible for promotion under the rules, they will retain their rank on the basis of promotion given to them on January 4, 1967. If not, suitable alterations will have to be made both in this order as well as in the order of January 22, 1970. Once again we are emphasising that the fact that the Respondents Nos. 2 to 4 have been confirmed on January 22, 1970, is of be consequence because if their original promotion on January 4, 1967, is not valid, their confirmation on January 22, 1970, will not have any greater seniority. Of course, if on reconsideration they are found eligible for promotion, their confirmation and rank given to them will stand.. ... ... ... .... ... ... ... ... ...So far as the appeal is concerned there will be a further order that subject to the observations contained in this judgment a direction will issue to the first respondent, the State to instruct the Departmental Promotion Committee to review and reconsider the promotions already given to Respondents Nos. 2 to 4 in the appeal under the order, dated January 4, 1967 and to decide their claims afresh only on the basis of the Rules. If the appellant is found eligible for being considered for promotion under the Rules hi3 claim also will have to be considered along with that of the Respondents Nos. 2 to 4. No directions are necessary regarding Respondent No. 5 as he is already dead Depending on the fresh recommendations, if any, made by the Departmental Promotion Committee the first respondent will also make any modifications that may be found necessary in the orders, dated 4.1 1967 and 21.1 1970. The modifications, if any, will be confined only to the appellant and the Respondents Nos. 2 to 4, as the appellant is not challenging the promotions given to other officers under the said two orders. If ultimately Respondents Nos. 2 to 4 are found eligible for promotion end the appellant is not found eligible, the rank given to those respondents will remain the same as is now due to them as per the order, dated January 4, 1967 and January 21, 1970, Otherwise, suitable alterations will have to be made.

Pending the review and reconsideration, ordered as above, and which must be done as expeditiously as possible, and depending upon the result of the same, the promotion already given to Respondents Nos. 2 to 4 to the Senior Scale will continue to be in force.

In the result the order and judgment of the Division Bench of the High Court upholding the validity of the circular, dated August 27, 1960 and declining to interfere with the order, dated January 4, 1967, so far as the appellant and Respondents Nos. 2 to 4 are concerned are hereby set aside and the appeal allowed to that extent.

Parties will bear their own costs throughout.

(Emphasis is mine)

9. Now I may proceed to deal with the points that I have formulated.

10. A perusal of Rule 32 shows that the appointments to the senior scale and selection grade posts are to be made by the Government from amongst the members of the service on the basis of merit and seniority-cum-merit in the ratio of 1 : 2 on the recommendations of a committee which shall be constituted as laid down in the rule. The rule also makes provision for temporary appointments and the limits placed on the continuation of such temporary appointments beyond a certain period without referring the matter to the Rajasthan Public Service Commission. The rules lay down the complete procedure for making of such appointments. It is remarkable that they do not make any provision for reviewing of the appointments once made. There- fore, there is no gain saying the fact that the rules do not empower the State Government to review the appointments previously made. They could be avoided or ignored only if the State Government are able to show that the appointments were void altogether or were a nullity in contradistinction to they being merely voidable. I need not cite authorities for the proposition that where a certain matter is governed by statutory rules the power of review has to be derived from the statute and it will not be open to the Government to resort to their executive power dehors the rules.

11. In P.M. Thakershi v. Pradyumansinghji : AIR1970SC1273 their Lordships of the Supreme Court pointed out that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. There are a number of other cases and I can economise by not multiplying the citations Therefore, I proceed to consider the next question which is by far more important than the first whether the appointment order was altogether void, being the product of the application of a circular which was struck down.

12. The House of Lords had pointed out in Ridge v. Haldwin 1963 (2) All. E.R. 88 (vide speech of Lord Evershed) that the words 'void' and 'voidable' are imprecise and apt to mislead. Their Lordships quoted from Pollock on Contract (13th Edn. page 48). The learned author had said that these words have a well understood meaning when dealing with questions of proprietary or contractual rights, but in the other fields of law where one has to deal with the validity of the Government orders the words are not apt.

13. In Modern Law Review (Vol. 31) there is an article at page-2, headed 'Void or Voidable'. It is pointed out in that article that many of the rules of English administrative law are bas d on the analogy of rules governing judicial decisions. Accordingly, the question whether a defect in an administrative net renders that act void or voidable is usually answered by applying the corresponding rules applicable to defects in judicial decisions The author then refers to what Coke had said. It has been painted out by Coke in Marshalsea's case that a judgment is void only if made without jurisdiction; other defects merely render the judgment voidable. It is this Marshalsea's case that goes on to explain the effects of this distinction; a voidable judgment is by definition open to direct attack, but it is not open to collateral attack; only a void judgment may be impugned in collateral as well as direct proceedings. The author has, however, observed that this distinction between direct and collateral attack has frequently been distorted or even ignored and the courts have not applied these rules in a consistent manner. The author adds that such fluctuations are largely explicable in terms of judicial policy as at different times the courts have shown different degrees of readiness to interfere with the decisions of inferior tribunals and administrative agencies. The author had then discussed the application of the rule of natural justice whether its violation will render an order or judgment void or voidable. The article is helpful for determining the question whether the order in hand is void or voidable.

14. In the Privy Council case Durayappah v. Fernando and Ors. 1967 (2) All. E.R. 152 the Minister of Local Government had received a complaint against the Jaffna Municipal Council The Minister appointed the Commissioner of Local Government to inquire into the allegation and report to him immediately. The Mayor of Jaffna gave every facility, but the Commissioner did not ask any question or give any opportunity to the Council of expressing its views. He made his report orally and then on the same day the Commissioner submitted his report in writing. The Minister made an order stating that the Council was not competent to perform the duty and that purruant to the powers conferred on him by Section 277 of the Municipal Council Ordinance, he directed that the council should be dissolved and superseded Thereafter the Governor- General appointed the Commissioner along with two other persons to be special commissioners to exercise, perform and discharge the duties and functions conferred on the council or the Mayor by the Ordinance. The Mayor then took proceedings for mandates in the nature of writs of certiorari and quo warranto to quash the order of May 20 parsed by the Minister and he also prayed for an interim injunction that the special commissioners be restrained from exercising the functions of the council or of the appellant. It was urged that the order of dissolution was bad as the rule of natural justice audi alteram partem regarding 'he council had not been followed The Supreme Court of Ceylon dismissed the writ petition and the Mayor then took an appeal to the Privy Council. Their Lordships of the Privy Council held that though the Council should have been given the opportunity of being heard in its defence the Minister's order was voidable and not a nullity. Their Lordships pointed Out that if the Council deliberately chooses not to complain and takes no step to protest against its dissolution there seems no reason why any other person should have the right to interfere Then their Lordships took an example. They referred to Ridge v. Baldwin and pointed out that if the appellant Ridge, who had been wrongly dismissed because he was not given the opportunity of presenting his defence, had preferred to abandon the point and accept the view that he had been properly dismissed, can any other person, for example, a ratepayer of Brighton have any right to contend that Mr. Ridge was still the chief constable of Brighton? Their Lordships pointed out that it was a matter of ordinary common sense, with all respect to other opinions that have been express d, if a person in the position of Mr. Ridge had not felt sufficiently aggrieved to take any action by reason of the failure to afford him strict right to put forward a defence, the order of the watch committee should stand and no one else should have any right to complain

15. In Ridge v. Baldwin one of the Law Lords (Lord Reid) had even reached the conclusion that the committees decision was void and not merely voidable and his Lordship relied on a earlier case Wood v. Wood (1874 LR 9 Exch. 190).

16. The Privy Council case was about the non-observance of the rules of natural justice In the present case, however, we are not concerned with the principles of natural justice to far as the making of selections or appointments which came to be challenged in Shri Guman Singh's case were concerned. When the Government makes an appointment pursuant to recommendations of the Departmental Promotion Committee or the Selection Committee, it is net acting quasi judicially, nor can the committee while considering the cases of various officers or while it makes the recommendations be said to be acting quasi judicially and at no stage would, therefore, the principles of natural justice be attracted. The present is a case where the Departmental Promotion Committee had applied a circular which was found to be illegal. Therefore, the resultant position here is that the Departmental Promotion Committee instead of confining itself within the ambit of Rule 28 B has gone beyond it in that it has been guided and influenced by a Government circular which was found to be illegal In other words, in the person case the Departmental Promotion Committee can be said to have been guided by extraneous considerations. Can it in such a-case be said that the committee was acting altogether without jurisdiction so that the order of appointment passed by the Government on the basis of its recommendations was null and void or it was merely voidable so that a challenge by the affected party was necessary for setting aside the order of appointment and the same cannot be questioned in collateral proceedings?

17. Learned Deputy Government Advocate invited my attention to some passages from Gamer's Administrative Law (Second Edition) page 115 & S. A. de Smith's Judicial Review of Administrative Action (Second Edition) page 538. The topic dealt with is the Scope of Judicial Review. At page 114 reference is trade to Ridge v. Baldwin and a passage from the speech of Lord Reid has been quoted. It is:

Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void.

Another passage from Ridge v. Baldwin from the speech of Lord Evershed has been quoted. It is to the following effect:

I have come to the conclusion that in a case where a body is acting within its jurisdiction but of which the courts will say that it has failed to do substantial justice in accordance with the principles of natural justice, then the decision is only voidable and cannot properly be described as a nullity.

The difference in the approach of the two Law Lords only highlights the difficulty of recognizing at times what is void and what is voidable.

18. Then the topic of substantive ultra vires is dealt with. It is observed at page 115 that every administrative agency whether it is a Government department, a local authority, an independent statutory corporation or an administrative tribunal owes its powers exclusively to Parliament (with the sole exception of an agency operating under and by virtue of the royal prerogative) End it will be acting ultra vires in so far as it may purport to step outside or exceed those powers; any such purported exercise of power therefore be void.

19. In de Smith's Judicial Review of Administrative Action learned Deputy Government Advocate has referred to the following passage:

Certiorari will lie to quash a decision for want or excess of jurisdiction, breach of the rules of natural justice, error of law on the face of the record, and fraud or collusion. Subject to the doubts and qualifications just indicated, if a declaration is sought in respect of a decision that is obtained with want or excess of jurisdiction or with fraud or collusion the decision is void and may be declared to be invalid.

20. Now, from the various citations it appears that for judging whether a particular order of an administrative body is altogether null and void or is merely voidable, one has to apply the test that one would apply to a decision of a court of law In the present case, as I have already observed, we are not concerned with the violation of the principles of natural justice as such, but it is a case where the Departmental Promotion Committee in exercising Its power under Rule 28B of the R.A.S. Rules has acted on a Government circular which was found to be illegal. Now we are dealing with the validity of appointments and the results of the appointments made by the Government is that certain persons senior to those who were selected by the Departmental Promotion Committee and appointed by the Government were superseded. Now in such a case where the persons who were superseded keep quiet then would it be open to any other party to question the appointments? The query that their Lordships of the Privy Council in the case of Jaffna Municipality had put to themselves was whether if Ridge had kept quiet about his dismissal anyone else could have said that Ridge was still in office and his successor could not hold the office. Their Lordships pointed out that it was but common sense that none else could have raised that question. Now I put the same question whether if those persons who were superseded had no grouse against their supersession on account of the promotion of the persons so promoted then could anyone else have a legitimate grouse? The same test of common sense would lead us to the same answer that their Lordships of the Privy Council had given regarding the example that they had taken about Ridge who could not be said to hold the office of chief constable of Brighton. It has to be remembered that the cases of eligible candidates were rightly referred to the Departmental Promotion Committee, the Departmental Promotion Committee made the recommendations and on the basis of those recommendations the Government made the appointments. Further, the Departmental Promotion Committee was properly constituted and the candidates who ware recommended for promotion were inter alia eligible for promotion. The only question is whether the comparative merits of the candidates were properly adjudged on account of the Departmental Promotion Committee being guided by the Government circular which was found to be illegal In such a case though the appointments could be challenged by the persons who ware superseded as a result of the selection, the orders of appointment could b; voidable and not altogether null and void. Once a voidable order is pronounced to be void at the instance of an affected party then the result is the same namely, it is void ab initio qua that party.

21. Here, the short question is whether in a case like this, the order would continue till it is set aside at the instance of an affected party.

22. Now Shri Guman Singh's case itself affords a supreme example of how such an order has to be looked at. Though their Lordships did not in terms lay down that the order was not altogether void but merely voidable, yet the effect of the judgment is very clear and it is that their Lordship3 did not consider the order of appointments of respondents in Guman Singh's case to be altogether null and void. I may again refer to the passages that I have already quoted. In paragraph-55, while dealing with the writ petitions, their Lord- ships observed that the writ petitioners were aware that appellant Guman Singh was challenging only the promotions of four officers in his writ petition in the High Court, nevertheless the writ petitioners kept quiet and allowed the officiating promotions of all the officers to stand from 1967 and even kept quiet till the Government confirmed the promotions of those officers on January 22, 1970. Then their Lordships went on to observe as follows:

So far as the writ petitioners are concerned, the State must be considered to be justified in passing the order, dated January 22,1970, on which date the High Court's judgment was in its favour. We are entitled to take this circumstance into account for denying the larger reliefs claimed by the writ petitioners when they attack the orders, dated January 4, 1970 and January 22,1970.

23. Now one has to go by the normal rule that once a particular legal position is laid down in a judgment of the highest Court of the land that pronouncement is taken to be the law at all relevant times. Therefore, the circular will be taken to be illegal at all relevant time according to the pronouncement of their Lordships in Shri Guman Singh's case; yet their Lordships have taken note of the fact that the Government was justified in making the appointments on account of the Division Bench judgment of this Court. If the Division Bench judgment regarding the validity of the circular was wrong according to the Supreme Court, it was wrong at all relevant times. Therefore, the conclusion is irresistible that their Lord- ships were putting emphasis on the question that the challenge has to be by the affected party. Therefore, as I have already observed, though their Lordships have not said so in express terms that the order was voidable and not altogether void, yet that is the result of the view that their Lordships had taken. Then what their Lordships have observed in the concluding paragraphs of the judgment clinches the issue. Their Lordships have observed:

The modifications, if any, will be confirmed only to the appellant and the respondents Nos. 2 to 4, as the appellant is not challenging the promotions given to other office's under the said two orders. If Ultimately Respondents Nos. 2 to 4 are found eligible, the rank given to those respondents will remain the same as is now due to them as per the order, dated January 4, 1967 and January 21, 1970. Other- wise, suitable alterations will have to be made.

Therefore, it was only if Guman Singh's claim for promotion were found to be justified that the appointments of respondents Nos. 2 to 4 in that case were to be modified or reversed and not otherwise, that is, the action regarding setting aside of the appointments was to be taken only at the instance of or for the benefit of Shri Guman Singh, if at all. It cannot, therefore, be said by any stretch of reasoning that their Lordships were taking the orders of appointments of respondents Nos. 2 to 4 to be altogether void. Then what Js note- worthy is that till the Departmental Promotion Committee reviewed the position respondents Nos. 2 to 4 were to continue on the posts on which they were promoted. In other words, their Lordships held that the circular on the basis of which selections were made by the Departmental Promotion Committee was bad and had to be struck down. Thus, Shri Guman Singh's case itself furnishes the vocal example of how such cases of appointments when the Departmental Promotion Committee had acted on the circular that was held illegal have to be viewed. I, therefore, come to the conclusion that the orders of appointment could be held only to be voidable and not void as contended by learned Deputy Government Advocate If so, then these appointments could be set aside only at the instance of the affected persons who were superseded as a result of those appointments.

24. As I have already held, the Government did not have any power of review and (hey could not resort to any executive powers debors the rules. Learned Deputy Government Advocate emphasised that if some cases were reviewed while others were not reviewed then it would impart discrimination as amongst officers of the same class. As I indicated during the course of arguments I readily assent to this. It was just to review the cases of all the officers whose fortunes were affected as a result of the illegal circular forming the basis of selections, but this will not entitle the Government to take upon themselves the task of a general review of all the cases without arming themselves with the requisite statutory powers. The proper course for them would have been to have the rules suitably amended and then after taking representations from the concerned parties to have made any changes in the previous orders to the prejudice of the officers promoted. This they have not done and, therefore, as the matter stands, the action of the Government is ultra vires. The review was allowed by their Lordships only qua Shri Guman Singh & not for others and, in my humble view, the Government could not have enlarged the scope of review in the absence of a requisite power under the statute.

25. Lastly, I may deal with the question of the undertaking on the foot of which the learned Deputy Government Advocate seemingly built a formidable argument. It is true, the Government had given an undertaking that whatever promotions they would be making would be subject to the result of Shri Guman Singh's case. The undertaking, in my view, could enure only for the benefit of the parties to the case before their Lordships. In other words, the undertaking was to safeguard the interests of Shri Guman Singh and other parties before their Lordships. It was for that reason that the appointments to be made by the Government were to be subject to the decision of Shri Guman Singh's case. The undertaking cannot have a range wider than the requirements of the case before their Lordships. It is further remarkable that although their Lordships were fully aware of the undertaking yet they limited the relief they granted only to Shri Guman Singh. If their Lordships were minded to make a general pronouncement then perhaps the nature of the direction would have been altogether different.

26. To summarise I hold : (1) that in the absence of any power under the statute to make a review of appointments already made under Rule 32 of the R.A.S. Rules the Government could not have reviewed the cases of the officers generally beyond what was laid down by their Lordships of the Supreme Court in Shri Guman Singh's case : AIR1970SC1273 the appointments made by the Government in pursuance of the recommendations of the Departmental Promotion Committee which acted on the circular that was bad were only voidable & not altogether void. Such appointments could be challenged only by the persons who were superseded as a result of those appointments or who were otherwise affected by the appointments one way or the other;(3)the appointment of the petitioner having not been challenged by any affected party, it was not open to the Government to review his appointment; (4) the effect of the under- taking given by the Government in the course of the hearing of the appeal before their Lordships of the Supreme Court was necessarily limited to the parties to that case and the undertaking would not entitle the Government to undertake a general review of such cases.

27. In the result, I hold that the order of the Government reviewing the appointment of the petitioner to the selection grade (dated 12-4-73) was bad and has to be struck down qua the petitioner.

28. Accordingly, I allow the writ petition and set aside the Government order dated 12-4-73 qua the petitioner and direct the Government to restore the petitioner to the position that he had before this order. The parties are left to bear their own costs.


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