SC issues directions to the High Court(s) for Appointing Employees

Recognising the importance of a transparent procedure to be adopted by the High Courts in appointing employees, the Supreme Court of India (“Supreme Court”) has recently issued certain directions regarding the same (Renu & Ors. v. District & Sessions Judge, Tis Hazari & Anr.)

In the judgment delivered by Justice B.S. Chauhan (for three –judge bench which also included Justice J. Chelameswar and M.Y. Eqbal), it has been emphasised that the administrative power exercised by the Chief Justice of a High Court under Article 229 Constitution of India, 1950 (“Constitution”) should be in conformity with Articles 14 and 16. That is, Chief Justice cannot make appointments in contravention with Statutory Rules, and has to be in consonance with the Constitution.

Article 229 of the Constitution provides that ‘officers and servants’ of the High Court shall be made by the Chief Justice of that Court or such Judge or officer of the Court as he may direct. Article 235 of the Constitution confers power upon the concerned High Court to exercise administrative control over subordinate courts. Emphasising that employment (of all the classes) in the High Court or courts subordinate to it falls within the definition of ‘public employment’, it was held that the same should be carried through in a constitutional manner.

Following are the directions which were issued by the court in this judgment:

i)             All High Courts are requested to re-examine the statutory rules dealing with the appointment of staff in the High Court as well as in the subordinate courts and in case any of the rule is not in conformity and consonance with the provisions of Articles 14 and 16 of the Constitution, the same may be modified.

ii)            To fill up any vacancy for any post either in the High Court or in courts subordinate to the High Court, in strict compliance of the statutory rules so made. In case any appointment is made in contravention of the statutory rules, the appointment would be void ab-initio irrespective of any class of the post or the person occupying it.

iii)           The post shall be filled up by issuing the advertisement in at least two newspapers and one of which must be in vernacular language having wide circulation in the respective State. In addition thereto, the names may be requisitioned from the local employment exchange and the vacancies may be advertised by other modes also e.g. Employment News, etc.  Any vacancy filled up without advertising as prescribed hereinabove, shall be void ab-initio and would remain unenforceable and inexecutable except such appointments which are permissible to be filled up without advertisement, e.g., appointment on compassionate grounds as per the rulesapplicable. Before any appointment is made, the eligibility as well as suitability of all candidates should be screened/tested while adhering to the reservation policy adopted by the State, etc., if any.

iv)           Each High Court may examine and decide within six months from today as to whether it is desirable to have centralised selection of candidates for the courts subordinate to the respective High Court and if it finds it desirable, may formulate the rules to carry out that purpose either for the State or on Zonal or Divisional basis.

v)            The High Court concerned or the subordinate court as the case may be, shall undertake the exercise of recruitment on a regular basis at least once a year for existing vacancies or vacancies that  are  likely  to  occur  within  the  said  period,  so  that  the vacancies  are  filled  up  timely,  and  thereby  avoiding  any inconvenience or shortage of staff as it will also control the menace of ad-hocism.

A catena of judgments were cited which criticised ‘back-door’ or illegal entries in public employments. This judgment can certainly provide some guidance to one looking case-laws on the issue of ‘illegal appointments’.