AJAY KUMAR BHUYAN AND ORS. v. STATE OF ORISSA AND ORS

Citation: [2002] SUPP. 4 S.C.R. 464

Court: Supreme Court of India

Bench: DORAISWAMY RAJU, SHIVARAJ V. PATIL

Judgment text

AJAY KUMAR BHUYAN AND ORS. v. STATE OF ORISSA AND ORS. DECEMBER 3, 2002 [DORAISWAMYRAJU AND SHIVARAJ V. PATIL, JJ. ] Service Law: Orissa Police Manual, 1940; Rule 862(b), Volume 1 and Appendix 41 of Vol. IJ; Orissa Ministerial Service (Method of Recruitment ofJr. Assistant 0 in the Office of Head ofDepartment) Rules, 1975: Appointments of Assistants/Jr. Assistants in the Office of DGP! IGP- Temporary! Adhoc appointments-Power to recruit vested with DGP! IGP- State Government granted exemption and DGP/JGP continue ,:o appoint Temporary! Adhoc Assistants till finalisation of Statutory Rules-Services of some of the recruits discharged and fresh appointments made-Challenge of-Tribunal directed their re-appointment till regular appointments made under the Statutory Rules-Recruits of 1981-83 filed petition for regularisation of their services under the provisions of Statutory Rules-No directions issued.

by Supreme Court-Some ofrecruits of1985 were discharged and appeared in fresh recruitment test-Four ofthe unsuccessful candidates filed petitions for regularisation oftheir service-Tribunal allowed it contrary to its earlier decision as affirmed by this Court-On appeal: Held, After Statutory Rules framed, authorities unde1' Police Manual ceased to exist; Consequently, continuance of appointu~ents made by D(JPIIGP thereunder are illegal and notjustified-DGP failed to bring to the notice ofthe Supreme Court about the framing ofStatutory Rules-Under the circumstances, earlier decision ofSupreme Court to continue the appointments made in pursuance of earlier rules was justified. The Orissa Police Manual, 1940 empowered IGP/DGP to appoint ministerial staff. Subsequently, Orissa Ministerial Service (Meth "We do not propose to pass any direction asking Government to exercise power under Rule 32 ofthe Rules framed under the direction of this Court.

It is open to Government to make appropriate directions. " Once again when the DGP approached the Government, an order dated 1. 9. 1988 came to be passed informing the DGP and ! GP as hereunder :- "With reference to your letter No. 32241/Admn. dated 22. 7. 1988 on the above subject, I am directed to say that in consideration of the orders ofHon'ble Supreme Court on the above Civil Misc. Petitions, it is felt that any relaxation of Rule 32 ofthe Orissa Ministerial Officers ofthe Office ofthe DG & ! GP and certain other office (Method ofRecruittnent and Conditions of Service) Rules, 1988 in the facts and circumstances of the case cannot be said to have been ·done in the public interest and would naturally tend to invite public as well as judicial criticism. Government, therefore, regret to allow any relaxation from the above rules. " Thereupon, by an order dated 16. 8. 1988, about 66 recruits of the year 1985 were said to have been discharged with effect from 19. 8. 1988 P. M.

Surprisingly, nothing appears to have been done so far as 1981-83 recruits are concerned, even after all that has happened as narrated above and the orders of the Government. In the meantime, on 25/26. 6. 1988 fresh recruitment tests though held under 1988 rules, only candidates recruited in 1985 along with some others seem to have appeared and those who got appointed in 1981- 1983 chose not to appear at all. Yet, they appeared to have been continued in their position, without disturbance. In the fresh recruitment test, about 68 candidates were said to have been selected on 22. 8. 1988. About 11 persons, who were appointed in 1985, and who undertook fresh recruitment test and appeared for interview but could not be selected, were said to have filed four applications before the Tribunal O. A. Nos.

I I79/88, I081 /88, l087/88 and 114 of 1989 seeking for a declaration that their recruitments were valid; that the 1988 rules will have no application to them and they should not be retrenched. At the same time, O. A. No. 206 of I989 was also filed by persons, who are respondents Nos. 3 to 5 and 7 in these appeals, questioning the recruitment/ regularization of the 1981-83 appointees, who are appellants in C. A. Nos. 3978-79 of 1998, as also the 1egularization of some of the unsuccessful candidates of 1985 batch and such other reliefs sought therein. Surprisingly, a Bench consisting of two members of the Tribunal (the Vice-Chairman and one Judicial Member) seems to have taken up for decision the other four O. As. without taking along side for disposal of O. A. No. 206 of 1989 and allowed the four O. As. , noticed above, on 22. l0. 1990 virtually taking a view directly contrary to the one taken by the Tribunal earlier, as also by this Court.

It appears that the DGP, has for reasons best known to him approached this Court against order passed in O. A. No. 1179 of 1988 by filing an SLP (c) No. 6798/91 and the same was on 7. 5. 91, summarily dismissed. SLP Nos. 14621- 15623/91 filed against the other . O. As disposed of alongwith O. A. No. 1179/ 88, with applications for condonation of delay in filing SLPs were dismissed on 3. 9. 91 on the ground of delay, summarily. , O. A. No. 206 of 1989 later came to be disposed of separately by the - Chairman sitting singly on 3. l. 1997 and subsequently the Review Petition filed therein, came to be disposed of on 1. 3. I997. These two orders are the subject-matter of the above appeals filed by the private parties in C. A. Nos. 3978-79 of 1998 and the State separately filed C. A. No. 3980 of 1998 against the order dated 3. l. 1997.

While matters stood thus, some ofthe junior clerks who were ofappointed ad hoc initially for 89 days and continued thereafter but whose services came to be terminated with effect from 15. 8. 85 filed also O. A. Nos. 1201, 1226,1149 and 1154 of 1987. The Bench of the Tribunal presided over by the Chairman by an order dated 5. 2. 91, allowed the same but after adverting to the earlier orders in O. A. No. 246/86 and 96/87 as also the orders of this Court dated 19. 1. 88 in C. A. Nos. 267 and 268of1988, held that they belonged to the s. ame category or class of persons in 0. A. No. 246/86 and O. A. No. 96/87 and issued similar directions to continue them till regular recruitment under the new rules was made, with appropriate directions to relax the age qualification to enable them to participate in the selections to be made under the rules. Once again the DGP and others filed SLP Nos. 5425-28 of 1992 against the order in 0. A. Nos. 1201, 1226,1149 and 1154of1987.

After issuing notices and on hearing parties, while granting leave this Court by an order dated 12. 4. 93 passed in these appeals (C. A. Nos. 1935-38 of 1993) finally disposed the same as hereunder: "Under these circumstances, the appeals are allowed and the direction given by the Tribunal are set aside and the appointments made are valid according to existing rules. But, however, the State Government is directed to make statutory rules as expeditiously as possible and report to the registry of this Court. " It is rather unfortunate that the DGP and others who filed the appeals or the • . respondents have not properly brought, the correct position before the notice of this Court at that stage and appears to have very much contributed to the resultant mess. A copy of this order was made available when the arguments were completed and from the papers available in the records ofthis Court only we were able to ascertain the facts in those cases and the other details noticed, supra.

The State Government, in the cases before us has filed the notification No. PIA13/83/24398/p dated 28. 4. 88 issued by the Government ofOrissa. Home Department containing the statutory rules viz. , the Orissa Ministerial officers p of the office of the Director General and Inspector General of Police and certain other officers (method of recruitment and conditions of service) rules, 1988 under Article 309 of the Constitution of India, pursuant to the directions ofthis Hon'ble Court on 19. 1. 88. It is also interesting to note that even before the Tribunal and the bench which decided on 22. 10. 90, 0. A. Nos. 1179, 1081, 1087 of 1988 and 114 <If 1989, those statutory rules have been filed and is referred to in the order itself as "Annexure-3 to O. A. No. 114 of 1989" and their promulgation on 28. 4. 88 itself. But, the fact remains that before this Court, on that occasion only the provisions contained in the Manual has been produced, necessitating a comment, on 12. 4.

93, "As stated earlier it is most unfortunate that the State had not till date framed the statutory rules. It is high time that statutory rules should be made instead of relying upon pre-existing administrative instructions. Under these circumstances, no discrimination has been shown between any of the candidates and the procedure under the administrative instructions is not ultra-virus the Constitution or arbitrary. It is not a case of replacing one set of temporary candidates by another set of temporary candidates. Under these circumstances, the appeals are allowed and directions given by the Tribunal are set aside and the appointments made are valid according to existing rules. " Neither the fact relating to the coming into force of the statutory rules made in 1988 seems to have been placed before the Court nor the Court has specifically adverted to the declaration of law made by this Court on 19. 1.

88 (except referring to the mere direction to frame rules) as to the character and efficacy of the provisions contained in the Police Manual or the nature of appointments made by the DGP under the provisions in the Police Manual. An other serious flaw and omission going to the root'ofthe matter undermining the very basis of the order dated 12. 4. 93 in C. A. Nos. 1935-38 of 1993, which seem to have gone unnoticed and not brought to the notice of the Court was that with the framing of statutory rules in 1975, the Police Manual ceased once and for all to have any relevance or force . of law or of any consequence for appointing staff by the DGP-IG and that the exemption granted therefrom was to enable making of recruitment under separate rules to be made and not to making appointments under outlawed provisions in the Police Manual, which had no sanctity or legal authority.

Consequently, in adjudging the issues raised in these appeals, we will be justified and obliged to proceed on the basis of the law declared by this Court, in specific and unmistakable terms on 19. 1. 88 in C. A. Nos. 267 and 268 of 1988 as the one not only direct on the issue relevant and binding but determine the rights of parties, accordingly on such indisputable premise. So far as the other four O. As. , noticed above, are concerned, which came to be disposed of on 22. l0.

1990, the Tribunal seems to have arrived at the conclusion that the persons appointed by the DGP/IG under the Police Manual was one under an existing law protected under Article 313 of the Constitution; that the recruitment made by the office of the DGP was after an elaborate examination for recruitment by theoretical and viva voce test; that since there was delay in publication of results,'ad hoc appointments were made by a summary manner of test which was no test at all; that no order from the Governor under Article 162 ofthe Constitution is required to authorize the DGP to make the recruitment since he had such power under the Police Manual Regulations and consequently, the recruitments and appointments made by him before the rules came into force during 1981-83 did not violate A. K. BHUYAN v. STATE [DORAISWAMY RA. JU, J. J 477 any of the existing law or rules.

Accordingly, the orders of the DGP terminating the appointments of the petitioners in those cases as well as the other appointments made out of the result of the 1985 examination were quashed and they were declared deemed to be continuing from 20. 12. 1986 without any break. Such an opinion was rendered by the Vice-Chairn1an and though the Judicial Me1nber who constituted the Bench \. vrqte a separate order agreeing with the ultimate conclusion and decision of the Vice-Chairman, he chose to rest his decision only on one reason, namely, that the case of the petitioners in 0. A. No. 246/86 and 0. A. No. 96/87 stood on different footing and that the earlier orders of the Tribunal and the Supreme Court did QOt deal with the claims of appointees during 1981-83.

The Tribunal, particularly the Vice-Chairman seems to have revelled in inventing reasons of straw not only stale but wholly irrelevant and impermissible too, in order to short circuit and undermine the efficacy of the earlier judgment of the Tribunal which had been affirmed on merits besides giving specific directions as to what is to be done also thereafter by this Court , as noticed supra, for granting somehow relief in favour of the appellants before us in terms directly running counter to the earlier decision of the Tribunal and that of this Courr. The reasons, which appear to have weighed with the Bench of the Tribunal are, to say the least, not only faulty but perverse and demonstrate lack ofjudicial discipline and propriety in attempting to find fault with not only an earlier binding decision but also the decision of this Court dated 19. 1. 88.

It is equally fallacious for the Tribunal to have quoted out of context some passages from the earlier decisions of this Court in AIR 1961SC751; AIR 1967 SC 1910 and AIR 1966 SC 1942, ignoring the very basis on which such observations came to be made therein. Unlike the factual basis which existed in those cases, there was nothing on record in tliese cases to assume that all the so-called rules enumerated in the Orissa Police Manual, 1940 were issued under any statute or any particular statutory provision of any enactment. By making certain general observations that the provisions contained in the said Police Manual are "rules", that they have been "prescribed" the real nature and character of them has not only been lost sight of but that it had no legal or statutory basis has been also totally ignored. We have gone through the Police Manual.

The entirety of the so-called rules contained in the Manual are called rules not because that everyone of them had statutory backing or source of its origin in a statute but where rules designed for uniform application in the Police Department at the level of DGP/ JG and bt! low even at the district level. No serious effort seems to have been made to scan through the Police Manual which contains a preface note that the Orissa Police Manual. 1940 contains the rules made by the State Government and rules and orders framed by the IG of Police (Presently DGP/IG) with the approval of the State Government under the provisions of the Police Act, 1861 and are issued under the Authority of the Government to be binding on all the police officers and that it is an authoritative guide to the officers of the Department. In some only of the rules printed in the book, on going through the bod.

y of the Manual we find that an asterisks mark is assigned with a foot note that they were rules made under Section I2 or 45 ofthe Police Act, 1861. Again in respect of some of the other provisions indication of the statutory provisions of the Criminal Procedure Code or other statutory provisions under which they have been made are specifically mentioned. At the top of some of the chapters, particularly chapter XX relating to appointments and engagement, a specific note is found printed (that rules marked with asterisks have been sanctioned under Section 7 of the Police Act, 1861. The conspicuous omission or absence of such specific indication either in the top of chapter XXVII or in respect of anyone of the so-called rules enumerated thereunder, as to their nature and character or showing them to have any statutory origin, it has to be presumed reasonably and necessarily to be not statutory. In State ofRajasthan v.

Ram Saran, AIR (1964) SC 1361 this Court had an occasion to consider this aspect and hold that only the rules or orders passed by the Government under Section 2 of the Police Act, 186I, alone can be held to constitute conditions of service. The rules envisaged to be made by the Inspector General subject to the approval of the State Government even under Section 12 of the Police Act was considered to be not such which could deal with or relatable to the servict: condition of the officers recruited to the police force. Even the decisions relied upon by the Tribunal for its conclusions in State ofUttar Pradesh and Ors. v. Babu Ram Upadhya, AIR ( 1961) SC 751; Jagannath Prasad Sharma v. The State of Uttar Pradesh a17d Ors.

, AIR (1961) SC 1245 would go to show that what was considered to be continued by virtue ofArticle 313 ofthe Constitution of India as 'existing law' were only those statutory ru lt:s or regulations made in exercise of the powers conferred ori the Government under the Police Act, 1861 which stood preserved under Section 243 of the Government of India Act, 1935 and, therefore, held co continue to be. in force even after the Constitution, so far as they are consistent with the provisions of the Constitution. 'Laws in force' for the purposes of Article 313 of the Constitution of India were considered to be only those which were framed in exercise of various statutory powers vested with the Government ir,cluding the powers under Section 7 of the Police Act and not to confer such statutory character to each and everyone or the other of the so-called rules. As a matter of fact in Union of India and Ors. v. k! ai/i .! angan1111an·a and Ors.

, AIR ( 1977) SC 757, repelling a similar plea urged in respect of an adn1inistrative instruction of the Government conveyed through the Central Board of Revenue, it \Vas observed that an ad1ninistrative instruction or order is not a statutory rule, and that "Article 313 does not change the legal character of a document and "Article 313 refers to laws 111 force which mean statutory laws and adn1inistrative instruction or order is not a statutory rule". The rules that were under consideration in the decision in B. N. Nagarajan v. State of Mysore, AIR ( 1966) SC 1942, were held though not to be made under Article 309 but traceable to the powers ofthe Government under Article 162 of the Constitution of India, and therefore binding in the absence of rules under Article 309. The same cannot be said of the Police Manual of the year 1940.

Consequently the baseless assumption of the Tribunal which rendered the decision on the view that the rules noticed by it had the status of 'existing law' without specifically pointing out under what provisions of law they were or could have been made is totally erroneous and for that reason also dehors the binding nature of the earlier decisions of the Tribunal, as well as of this Court and despite the judicial norms, proprieties and decorum violated also, cannot be justified in law on merits as well. It becomes once more necessary for this Court to re1nind and reiterate to all the Courts, Tribunal and Authorities in the country, what has been stated earlier in Dwarikesh Sugar Industries Ltd v. Pren1 Heav. v Engineering Works {P) Ltd. and Anr. , (1997] 6 SCC 450, as follows: "32.

When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which .. is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders, which necessarily has the effect ofgranting wrongful and unwarranted relief to on' of the parties. It is time that this tendency stops. " So much said regarding Courts would apply with equal if not more, force to Administrative Tribunals and it is beyond comprehension as to how an Administrative Tribunal could have hazarded a decision like the one rendered ,, on 22. 10.

90, which both in law and for all purposes must be treated as 'non est', and at any rate not binding upon the Bench of the Tribunal (Chairman) who decided the applications on 3. 1. 97 and rejected the Review Petition therein on 1. 3. 97. The Chairman of the Tribunal though sitting singly, in our view has rightly exposed the serious infirmities not only in the reasoning of the bench of the Tribunal headed by the Vice-Chairman but also spelled out the correct position of law emanating from the ratio and principles laid down as well as the directions contained in the earlier decisions of the Tribunal as well as the judgment of this Court noriced above.

The position of law with reference to the nature and character of the powers of the DGP/IG as well as the appointments made by him in his office and the status of such officers have been categorically declared to be that of ad hoc for all purposes, in those cases and it was not only futile but also impennissible for a Bench 0f the Administrative Tribunal which subsequently decided the four O. As to treat them as regular appointments and to assume further that there were no' " vacancies to be filled up vis-a-vis the post held by such appointees, afresh under the new statutory rules. As long as the earlier decision of the Tribunal and that of this Court held the field which, in our view, has been.

rightly considered and understood by the Government also at the relevant point of time to deny a request to regularize those appointments of the year 1981 and 1983 on a proper and correct understanding of the ratio of those decisions, there was no scope or justification in law for the other bench of the Tribunal headed by 1he. Vice-Chairman or the Government subsequently to make a somersault in derogation of the firmly settled legal position.

Yet another fallacy which vitiates the said judgment was the omission to give due effect to the rules which came into force in the year 1975 which had the inevitable consequence of replacing once and for all the earlier rules contained even in the Police Manual and that the exemption given in 1980 was only for the purposes of keeping the posts in the office of the DGP/IG out of the 1975 rules and bring them under the rules to be made separately for such personnel and the orders of the Government could not be considered to have the effect of restoring even the provisions contained in the Police Manual which had been rendered obsolete by coming into force of the statutory rules of 1975. In the light of the above, we see no merit or force whatsoever in the challenge made to the impugned orders ofthe Tribunal passed by the Chairman on 3. 1. 97 as well as on l. 3. 97.

Inasmuch as the Chairman in the orders under challenge has only declared what was the inevitable conclusions which A necessarily flow from the earlier decisions and merely applied them to the case on hand as was obligatory for the Tribunal, no exception whatsoever could be taken to the orders under challenge. The Tribunal rightly, in our view, now felt not bound by the decision rendered in the four 0. As on 22. l0. 90 even without any reference to the claims that were pending even as on that date " in 0. A. 206 of 1989. The appeals, therefore, fail and shall stand dismissed but B with no order as to costs. S. K. S. Appeals dismissed. 1