REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.18983/2023
BIHAR RAJYA DAFADAR CHAUKIDAR
PANCHAYAT (MAGADH DIVISION) …PETITIONER
VERSUS
STATE OF BIHAR AND OTHERS …RESPONDENTS
O R D E R
1. The case run in the special leave petition1 did not call for leave to prefer
appeal being granted; hence, we had dismissed the special leave petition
with a short order dated 19th March, 2025. However, immediately after
such order was dictated, Mr. Gopal Sankarnarayanan, learned senior
counsel who represented the petitioner had urged us to consider the
desirability of penning a detailed opinion. Having regard to a couple of
points raised by Mr. Sankarnarayanan, which indeed appeared to be
important, we had the occasion to look into the SLP and his written notes
of arguments during recess. Sometime later in the day, accepting Mr.
1 SLP
2
Sankarnarayanan’s request, we had informed him of our inclination to
assign some reasons in support of the order of dismissal of the SLP.
However, the short order having been uploaded on the same day, the
detailed reasons are now provided in this opinion which is to be read with
the order dated 19th March, 2025.
2. The challenge in the SLP is to a judgment and order dated 25th February,
2023 of a Division Bench of the High Court2 dismissing an intra-court
appeal3 of the respondent no.74
.
3. In the pre-constitutional set-up, the practice in Bihar was to appoint
village chaukidars (village watchmen) for lifetime who used to work
without any leave or retirement. During his illness or absence, any of his
family members would assist him in performance of his duties; and when
he died or became infirm, usually his family member nominated by him
would take over the functions of a chaukidar, though the post was not
strictly hereditary [see: Surendar Paswan v. State of Bihar5].
4. The father of the respondent no.7, who was a chaukidar, had applied for
appointment of his son, i.e., the respondent no.7, as a chaukidar in terms
of the Bihar Chaukidari Cadre (Amendment) Rules, 20146
. However, such
application was rejected since the father of the respondent no.7 had
made the application after his retirement. This triggered a writ petition7
2 High Court of Judicature at Patna
3 LPA No. 508 of 2022
4 Devmuni Paswan
5
(2010) 6 SCC 680
6 BCC (A) Rules
7 CWJC No. 6471 of 2021
3
by the aggrieved respondent no.7, which was dismissed by the Single
Judge of the High Court on 25th August, 2022. It is the said order that
has been upheld by the Division Bench vide the impugned judgment and
order.
5. The SLP is at the instance of a registered trade union. The petitioning
union was not a party to the proceedings before the High Court, either
before the Single Judge or the Division Bench. It claims to represent
members who are in position to claim benefits flowing from the BCC (A)
Rules. Proviso (a) to sub-rule (7) of Rule 5 of the BCC (A) Rules
8
,
introduced by way of an amendment in 2014, ordains that any person
working in the cadre of chaukidar would be at liberty, a month prior to
his retirement, to nominate his dependent kin for appointment in his
place as chaukidar. The Division Bench proceeded to hold the offending
proviso to be contrary to Articles 14 and 16 of the Constitution of India
and, consequently, struck it down. As a sequitur, it was also held that the
application of the respondent no.7’s father for grant of benefit of
employment to the respondent no.7 in accordance with Rule 5 of the BCC
(A) Rules does not arise.
6. The primary contention of the petitioning union is that the offending
proviso not being under challenge in the writ petition or in the appeal of
the respondent no.7, the Division Bench clearly exceeded its jurisdiction
in striking it down. It is the further contention of the petitioning union
that the offending proviso is perfectly legal and valid; also that such an
8
the offending proviso
4
order was made without even putting the members of the petitioning
union on notice and, therefore, any order adversely affecting the
chaukidars in service ought to be nullified being in breach of principles of
natural justice. One other contention was also raised.
7. The brazen manner in which the respondent no.19 has derogated from
Constitutional provisions to favour a handful of employees working as
chaukidars, much to the detriment and prejudice of those patiently
waiting for public employment, has engaged our due attention. As we
proceed further, we would notice precedents declaring the law on the
topic in no uncertain terms, which have been way-laid by the respondent
no.1 with impunity.
8. Even as we celebrate 75 (seventy-five) years of our Constitution and take
pride in governance of the country in terms thereof, still we find some of
the States following archaic models of employment as if employment in
public service is a hereditary right. It is for this reason that we propose
to pen a few words in support of our conclusion that the Division Bench
was perfectly justified in striking down the offending proviso although,
admittedly, the same had not been subjected to any formal challenge.
9. The Division Bench referred to the decisions of this Court in Renu and
Others v. District and Sessions Judge, Tis Hazari Courts, Delhi10
,
Bhawani Prasad Sonkar v. Union of India and others11
, V.
9 State of Bihar
10 (2014) 14 SCC 50
11 (2011) 4 SCC 209
5
Sivamurthy v. State of Andhra Pradesh12 and Ahmednagar
Mahanagar Palika v. Ahmednagar Mahanagar Palika Kamgar13
, to
support its conclusion that the Constitution of India shuns appointment
in public service by succession. In other words, employment should not
flow as if it were heritable.
10. Two propositions in our Constitutional jurisprudence are no longer
debatable. One is, there has to be equality of opportunity in matters of
public employment and the other that, any law, which permits entry into
public service without granting equal opportunity to all, would fall foul of
Article 16 and is liable to be outlawed unless a reasonable classification,
which is also valid, can be shown to exist.
11. Taking the discussion further, having read the decisions relied on by the
Division Bench as well as the decisions referred to therein, law seems to
have crystallised to the effect that apart from a scheme for employment
on compassionate ground envisaging offer of appointment to an eligible
dependant family member of an employee dying-in-harness or an
employee suffering medical incapacitation, rendering him unfit to
continue in service, or any scheme for public employment to a landowner,
who relinquishes his right to receive compensation for acquisition of his
land in lieu of an appointment, or any other scheme devised as a measure
of protective discrimination, not breaching principles of reasonable
classification, public employment has to be preceded by (i) an
12 (2008) 13 SCC 730
13 (2020) 7 SCC 171
6
appropriate advertisement inviting applications from eligible aspirants to
offer their candidature or/and by requisitioning names of prima facie
eligible candidates from the employment exchanges, (ii) screening the
eligible aspirants by keeping aside the ineligible, (iii) conducting of a
process of selection meeting the tests of fairness and transparency with
a body of selectors constituted in accordance with the relevant law, (iv)
making an impartial and bias-free selection upon due assessment of the
inter se merits of the aspirants, (v) preparation of a merit list of
candidates found suitable as per merit and arranging their names
recognising such merit with due regard to rules of reservation, both
vertical and horizontal, (vi) preparing a wait-list of candidates, if the
governing rules so require and (vii) then proceeding to offer
appointments from the merit list as well as from the waiting list, if the
occasion to operate such waiting list does arise, giving due regard to
merit – and merit alone.
12. This being the basic scheme preceding public employment in consonance
with provisions which are non-discriminatory, it is incomprehensible as
to how, and whatever be the reasons therefor, that the respondent no.1
could contemplate restricting appointment in a particular cadre to the
descendants of only the chaukidars in service.
13. Even as we near 80 (eighty) years of independence, generating enough
jobs in the public sector to absorb those eager to enter public service
remains an elusive goal. While there is no dearth of eligible candidates
in the country waiting in the queue, the quest for public employment is
7
thwarted by a lack of sufficient employment opportunities. To assume,
as sought to be projected by learned counsel for the respondent no.1,
that none would be interested in obtaining employment in a particular
cadre (chaukidar) and that members of the general public are not
interested in taking up employment as chaukidars in Naxal affected
areas, is nothing but a surmise. Facts and figures have not been placed
to demonstrate that prior to the introduction of the offending proviso,
public advertisements were issued for appointment on vacant posts of
chaukidars and what triggered the insertion of the offending proviso in
the BCC(A) Rules was the inadequate number of applications received in
response thereto.
14. We shall now be looking at some of the precedents having a bearing on
the issue. The fairness of Mr. Sankarnarayanan in bringing to our notice
two Constitution Bench decisions delivered in the second decade after
the advent of the Constitution having a material bearing on the point in
issue, apart from other decisions with which we had some degree of
familiarity, is acknowledged.
15. In Gazula Dasaratha Rama Rao v. State of Andhra Pradesh14
, a
Constitution Bench of this Court was urged in a petition under Article 32
of the Constitution of India to examine the validity of Section 6(1) of the
Madras Hereditary Village Offices Act, 1895 which required the Collector
to make appointments from amongst those whose families had
previously held the office. The post in question was that of Village Munsif.
14 AIR 1961 SC 564
8
The writ petition ultimately succeeded and the observations relevant for
the present purpose are found in paragraphs 9, 10, 15 and 16 of the
decision, which read as follows:
“9. Article 14 enshrines the fundamental right of equality before the
law or the equal protection of the laws within the territory of India.
It is available to all, irrespective of whether the person claiming it is
a citizen or not. Article 15 prohibits discrimination on some special
grounds — religion, race, caste, sex, place of birth or any of them. It
is available to citizens only, but is not restricted to any employment
or office under the State. Article 16, clause (1), guarantees equality
of opportunity for all citizens in matters relating to employment or
appointment to any office under the State; and clause (2) prohibits
discrimination on certain grounds in respect of any such employment
or appointment. It would thus appear that Article 14 guarantees the
general right of equality; Articles 15 and 16 are instances of the same
right in favour of citizens in some special circumstances. Article 15 is
more general than Article 16, the latter being confined to matters
relating to employment or appointment to any office under the State.
It is also worthy of note that Article 15 does not mention ‘descent’ as
one of the prohibited grounds of discrimination, whereas Article 16
does. We do not see any reason why the full ambit of the fundamental
right guaranteed by Article 16 in the matter of employment or
appointment to any office under the State should be cut down by a
reference to the provisions in Part XIV of the Constitution which relate
to Services or to provisions in the earlier Constitution Acts relating to
the same subject. These Service provisions do not enshrine any
fundamental right of citizens; they relate to recruitment, conditions
and tenure of service of persons, citizens or otherwise, appointed to
a Civil Service or to posts in connection with the affairs of the Union
or any State. The word ‘State’, be it noted, has a different connotation
in Part III relating to Fundamental Rights : it includes the
Government and Parliament of India, the Government and
Legislature of each of the States and all local or other authorities
within the territory of India, etc. Therefore, the scope and ambit of
the Service provisions are to a large extent distinct and different from
the scope and ambit of the fundamental right guaranteeing to all
citizens an equality of opportunity in matters of public employment.
The preamble to the Constitution states that one of its objects is to
secure to all citizens equality of status and opportunity; Article 16
gives equality of opportunity in matters of public employment. We
think that it would be wrong in principle to cut down the amplitude
of a fundamental right by reference to provisions which have an
altogether different scope and purpose. Article 13 of the Constitution
lays down inter alia that all laws in force in the territory of India
immediately before the commencement of the Constitution, insofar
9
as they are inconsistent with fundamental rights, shall to the extent
of the inconsistency be void. In that Article ‘law’ includes custom or
usage having the force of law. Therefore, even if there was a custom
which has been recognised by law with regard to a hereditary village
office, that custom must yield to a fundamental right. Our attention
has also been drawn to clause (4) of Article 16 which enables the
State to make provision for the reservation of appointments or posts
in favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the
State. The argument is that this clause refers to appointments or
posts and further talks of inadequate representation in the services,
and the learned Advocate-General has sought to restrict the scope of
clauses (1) and (2) of Article 16 by reason of the provisions in clause
(4). We are not concerned in this case with the true scope and effect
of clause (4) and we express no opinion with regard to it. All that we
say is that the expression ‘office under the State’ in clauses (1) and
(2) of Article 16 must be given its natural meaning.
10. We are unable, therefore, to accept the argument of the learned
Advocate-General that the expression ‘office under the State’ in
Article 16 has a restricted connotation and does not include a village
office like that of the Village Munsif. …
15. Finally, we must notice one other argument advanced by the
learned Advocate-General on behalf of Respondents 1 to 3. The
argument is based on the distinction between Articles 15 and 16. We
have said earlier that Article 15 is, in one respect, more general than
Article 16 because its operation is not restricted to public
employment; it operates in the entire field of State discrimination.
But in another sense, with regard to the grounds of discrimination, it
is perhaps less wide than Article 16, because it does not include
‘descent’ amongst the grounds of discrimination. The argument
before us is that the provision impugned in this case must be tested
in the light of Article 15 and not Article 16. It is submitted by the
learned Advocate-General that the larger variety of grounds
mentioned in Article 16 should lead us to the conclusion that Article
16 does not apply to offices where the law recognises a right based
on descent. We consider that such an argument assumes as correct
the very point which is disputed. If we assume that Article 16 does
not apply, then the question itself is decided. But why should we
make that assumption? If the office in question is an office under the
State, then Article 16 in terms applies; therefore, the question is
whether the office of Village Munsif is an office under the State. We
have held that it is. It is perhaps necessary to point out here that
clause (5) of Article 16 shows that the Article does not bear the
restricted meaning which the learned Advocate-General has
canvassed for; because an incumbent of an office in connexion with
10
the affairs of any religious or denominational institution need not
necessarily be a member of the Civil Service.
16. For the reasons given above, we allow the petition. The orders
of Respondents 1 to 3 in respect of the appointment to the post of
Village Munsif of Peravalipalem in favour of Respondent 4 are set
aside and we direct that the application of the petitioner for the said
office be now considered on merits by the Revenue Authorities
concerned on the footing that Section 6(1) of the Act insofar as it
infringes the fundamental right of the citizens of India under Article
16 of the Constitution is void. The petitioner will be entitled to his
costs of the hearing in this Court.”
16. Close on the heels of the above decision followed the decision in B.R.
Shankarnarayana v. State of Mysore15
, where another Constitution
Bench of this Court had the occasion to hear appeals arising out of Article
226 petitions, filed in the High Court of Mysore, certified as fit by such
court. Upon introduction of the State Reorganization Act, 1956, the State
of Mysore was formed as a new State. The legislature of the new State
of Mysore enacted the Mysore Village Offices Abolition Act, 1961, which
was made operative from 1st February, 1963. Immediately, after the Act
was assented by the President, the Governor of Mysore, in exercise of
powers vested in him under the proviso to Article 309 of the Constitution
and other powers enabling him in that behalf, framed rules called the
Mysore General Service (Revenue Subordinate Branch) Village
Accountants (Cadre and Recruitment) Rules, 1961, in order to make
recruitment to the posts of village accountants. The vires of the 1961 Act
was unsuccessfully challenged before the Mysore High Court and the
challenge carried to this Court also failed. Although, the 1961 Act was
15 AIR 1966 SC 1571
11
challenged as a piece of colourable legislation, this Court on an
examination of the material provisions of the impugned enactment
gathered its object and intendment that the same was enacted to abolish
all the hereditary village offices, viz. patels, shanbhogs, etc., which were
held hereditarily before the commencement of the Constitution. Relying
on Gazula Dasaratha Rama Rao (supra), it was held that it is open to
the Court to scrutinize the law to ascertain whether the legislature by
device, purports to make a law which, though in form appears to be
within its sphere, in effect and substances reaches beyond it.
17. We may, at this stage, depart from the precedents of the sixties of the
past century and move ahead to trace decisions rendered by this Court
over a period of time thereafter.
18. In Yogender Pal Singh v. Union of India16
, this Court succinctly
observed that rules whereby appointment was to be made from
sons/near relatives of the persons already serving in the police force is
violative of Article 16 of the Constitution. The relevant observation reads
thus:
“18. We are of opinion that the claim made by the appellants for the
relaxation of the Rules in their cases only because they happen to be
the wards or children or relatives of the police officers has got to be
negatived since their claim is based on ‘descent’ only, and others will
thereby be discriminated against as they do not happen to be the
sons of police officers. Any preference shown in the matter of public
employment on the grounds of descent only has to be declared as
unconstitutional. The appellants have not shown that they were
otherwise eligible to be recruited as Constables in the absence of the
order of relaxation on which they relied. Hence they cannot succeed.”
16 (1987) 1 SCC 631
12
19. Arising from Bihar, there is the decision in Surender Paswan (supra).
The dispute there was between the appellants (who claimed themselves
to be the hereditary nominees in terms of a circular dated 20th December,
1995 issued by the respondent no.1) and the private respondents (who
were appointed on the post of Chaukidar pursuant to an advertisement
dated 3rd October, 1994). The appointment of the private respondents
was terminated by the respondent no.1 on 21st January, 1997. The High
Court, vide order dated 07th April, 1997, quashed the order dated 21st
January, 1997 as illegal and directed the Divisional Commissioner to
ascertain whether there was any irregularity in the appointment of the
private respondents and, if there were none, the claim of the appellants
was to be considered on merits and not in accordance with the circular
dated 20th December, 1995. It is imperative to note that the order of the
High Court attained finality as it was never challenged. Thereafter, the
Divisional Commissioner found irregularities in the appointment of the
private respondents and directed the District Collector to consider the
individual claim of the appellants. This order was set aside by the High
Court on the ground that the earlier order of the High Court dated 07th
April, 1997 was not followed in letter and spirit and directed the Divisional
Commissioner to take steps and pass appropriate orders. The Divisional
Commissioner relegated the matter to the Collector for making fresh
appointments, who in turn, offered appointment to the appellants.
Appellants’ appointments were thereafter challenged by private
respondents in a writ petition which was yet again disposed of with the
13
direction to decide the issue strictly in terms of the order of the High
Court dated 07th April, 1997. Challenge to this order was unsuccessfully
carried through a Letter Patents Appeal, which was impugned before this
Court. This Court while deprecating hereditary appointments, did not feel
the need to go into the question of constitutionality of the rules as the
original order of the High Court dated 07th April, 1997 directing, inter
alia, appointment strictly on the basis of merit, was never challenged. In
view of the order dated 07th April, 1997 having attained finality, it was
held that the appellants cannot claim any right to be appointed as legal
heirs/nominees of the erstwhile chaukidars; therefore, the question of
either examining the validity of the Circular dated 20th December, 1995
or considering whether the appointment of the appellants was in terms
of the said circular, does not arise. Hence, this Court, directed fresh
selection as per the Bihar Chowkidar Gradation (sic, Cadre) Rules, 2006.
20. Surender Paswan (supra) too, therefore, did not approve of
appointments on the ground of descent.
21. We may now refer to the decision of the Punjab and Haryana High Court
in Kala Singh v. Union of India17 and two decisions of this Court
rendered in the recent past in Manjit v. Union of India18 and in Chief
Personnel Officer, Southern Railways v. A. Nishanth George19 on
an identical issue, which arose out of a scheme for employment
introduced by the Indian Railways.
17 2016 SCC OnLine P&H 19387
18 (2021) 14 SCC 48
19 (2022) 11 SCC 678
14
22. The Union Ministry of Railways introduced a scheme called the
“Liberalised Active Retirement Scheme for Guaranteed Employment for
Safety Staff”20
. It allowed drivers and gangmen aged between 50 and 57
years to voluntarily retire after completing 33 years of service (later
reduced to 20 years). After retirement, a “suitable ward” of the retired
employee would be considered for employment.
23. The Division Bench in Kala Singh (supra) was seized of a writ petition
concerning an employment dispute related to the LARSGESS but where
the LARSGESS was not under challenge. Speaking for the Division Bench,
Hon’ble Surya Kant, J. (as His Lordship then was) observed that the
scheme, prima facie, does not stand to the test of Articles 14 and 16 of
the Constitution and is a device evolved by the Railways to make backdoor entries in public employment and brazenly militates against equality
in public employment. While dismissing the writ petition and directing
the Railways to stop making any appointment, the Division Bench also
directed that the Railways should revisit the same keeping in view the
principles of equal opportunity and elimination of monopoly in holding
public employment. An application seeking recall of the order of the
Division Bench was dismissed. The order of the Division Bench having
been challenged before this Court, a coordinate Bench declined to
interfere. In view of the observations made by the High Court, the
Railway Board terminated the scheme.
20
LARSGESS
15
24. In Manjit (supra), the jurisdiction of this Court under Article 32 of the
Constitution of India was invoked by the petitioners therein seeking
mandamus for their appointment in terms of the LARSGESS. Dismissing
the writ petition, Hon’ble Dr. D.Y. Chandrachud J. (as His Lordship then
was), speaking for a three-Judge Bench, observed:
“6. The reliefs which have been sought in the present case, as already
noted earlier, are for a writ of mandamus to the Union of India to
appoint the petitioners in their respective cadres. A conscious
decision has been taken by the Union of India to terminate the
Scheme. This has been noticed in the order of this Court dated 6-3-
2019 [Union of India v. Kala Singh, 2019 SCC OnLine SC 1965], which
has been extracted above. While taking this decision on 5-3-2019,
the Union of India had stated that where wards had completed all
formalities prior to 27-10-2017 (the date of termination of the
Scheme) and were found fit, since the matter was pending
consideration before this Court, further instructions would be issued
in accordance with the directions of this Court. Noticing the above
decision, this Court, in its order dated 6-3-2019 [Union of India v.
Kala Singh, 2019 SCC OnLine SC 1965], specifically observed that
since the Scheme stands terminated and is no longer in existence,
nothing further need be done in the matter.
7. The Scheme provided for an avenue of a back door entry into the
service of the Railways. This would be fundamentally at odds with
Article 16 of the Constitution. The Union Government has with
justification discontinued the scheme. The petitioners can claim
neither a vested right nor a legitimate expectation under such a
Scheme. All claims based on the Scheme must now be closed.
8. In view of the above factual background, we are not inclined to
entertain the petition under Article 32. The grant of reliefs to the
petitioners would only enable them to seek a back door entry contrary
to the orders of this Court. The Union of India has correctly
terminated the Scheme and that decision continues to stand.”
(emphasis supplied)
25. In A. Nishanth George21
, the plea of the two respondents praying for
benefit under the LARSGESS was rejected by the Railways; one of them
21 (2022) 11 SCC 678
16
was found to be medically unfit, and in case of the other it was found
that the application for benefit under the scheme was made by his father
after he crossed the cut-off age. The respondents were unsuccessful
before the Central Administrative Tribunal, but succeeded before the High
Court of Judicature at Madras. This Court while setting aside the order
under challenge and restoring that of the Tribunal took note of the
decision in Manjit (supra) and ruled that the decision of the Union
Government to discontinue LARSGESS was justified and, thus, the
respondents were not entitled to any benefit.
26. It would, therefore, appear from the above that this Court has
consistently deprecated the practice of appointment in public service as
if public offices are heritable and has also upheld a law which abolished
village officers being appointed on hereditary basis. Importantly, the
observation made in B.R. Shankarnarayana (supra) regarding the
extent of the powers of a court to put a law to scrutiny which, in form,
appears to be within the power of the legislature but, in substance,
exceeds its reach has to be borne in mind while deciding whether the
Division Bench could have struck down the offending proviso.
27. It is indeed surprising that despite the aforesaid precedents of the sixties
of the past century declaring the law authoritatively and the decision in
Surender Paswan (supra), which emerged from Bihar, as late as in
2014, the respondent no.1 again sought to make appointment on the
post of chaukidar a heritable right in favour of the dependent kin of the
chaukidar in service. The offending proviso being in the teeth of the
17
precedents noted above, the same was rightly struck down by the
Division Bench and the impugned judgment and order is unexceptionable
on this score.
28. The next contention that the offending proviso was not under challenge
in the writ petition and, therefore, the Division Bench ought not to have
struck it down is liable to be rejected for the reason that follows.
29. Several decisions have been cited in support of the aforesaid contention.
We need not refer to them individually.
30. Law is well settled that a law, be it a primary legislation or a subordinate
legislation (rules, regulations or orders made under the authority of a
primary legislation), cannot be struck down by a court unless there is a
direct challenge to such legislation. It is also a well-established principle
of Constitutional Law that constitutional questions should not be decided
in vacuum and that they must be decided only if and when they arise
properly on the pleadings of a given case and where it is found necessary
to decide them for a proper decision of the case.
31. However, the common thread that runs through all these precedents
laying down such law is that the party aggrieved in each case, seeking
relief from the court, omitted to lay a challenge to the law and the said
omission impeded the grant of relief to such party.
32. The situation here is completely different. The respondent no.7 was
seeking relief from the High Court relying on the offending proviso. In a
case where the party aggrieved seeks enforcement of a provision of a
rule, which is seemingly unconstitutional, would he raise the plea of its
18
unconstitutionality? It would be imprudent for him to do so and hence,
the answer cannot but be in the negative. While considering the plea of
the respondent no.7, the Division Bench found the offending proviso to
be so obtrusively unconstitutional that notwithstanding absence of a
specific challenge thereto, it proceeded to declare the same as void.
Although the Division Bench had no occasion to refer to the decisions
that we have referred to above, nothing much turns on it. The Division
Bench must be presumed to be aware of the law on the subject that
appointment cannot be claimed as a hereditary right and, thus, without
even a challenge being laid to the offending proviso thought of striking it
down. We do not see any illegality in such an approach.
33. However, a caution needs to be sounded. While not suggesting for a
moment that the course of action which the Division Bench adopted in
this case can routinely be adopted, we see no reason as to why the power
to suo motu declare a subordinate legislation invalid, on the ground of
its being manifestly contrary to a Fundamental Right read with binding
precedents in terms of Article 141, should not be conceded to be within
the vast reserve of powers of the Constitutional Courts. Though exercise
of powers, suo motu, in an appropriate case in exercise of jurisdiction
under Article 226 of the Constitution cannot be doubted, it is indubitable
that such power has to be exercised sparingly and with due care, caution
and circumspection. We are minded and do hold that, a writ court, when
it finds its conscience to be pricked in a rare and very exceptional case
by the patent unconstitutionality of a subordinate legislation connected
19
with the issue it is seized of, may, upon grant of full opportunity to the
State to defend the subordinate legislation and after hearing it, grant a
declaration as to unconstitutionality and/or invalidity of such legislation.
After all, as the sentinel on the qui vive, it is not only the duty of the writ
courts in the country to enforce Fundamental Rights of individuals, who
approach them, but it is equally the duty of the writ courts to guard
against breach of Fundamental Rights of others by the three organs of
the State. This power is a plenary power resident in all the Constitutional
Courts. Should, in a given case, it be found that there has been an
egregious violation of a Fundamental Right as a result of operation of a
subordinate legislation and the issue is concluded by a binding decision
of this Court, we consider it the duty of the writ courts to deliver justice
by declaring the subordinate legislation void to safeguard rights of others
who might not still have been affected thereby. We reiterate, it can only
be done rarely and in cases which stand out from the ordinary.
34. Consciously, we have deliberately kept primary legislation out of the
sweep of such power firstly, in deference to legislative actions, which are
presumed to be constitutional, secondly, because of the position it holds
in the hierarchy of laws, and thirdly, because we know of no decision of
this Court where a primary legislation was outlawed without a formal
challenge being laid or a decision of a writ court striking down a primary
legislation not under challenge being upheld.
35. It is not that a presumption of constitutionality is not to be drawn qua
subordinate legislation; but, when a challenge to the constitutionality of
20
a subordinate legislation is examined, like a rule framed not in exercise
of conferment of power by a statute but in terms of the proviso to Article
309 of the Constitution (as in the present case), it is open to the court
to apply a more nuanced approach. After all, a subordinate legislation is
seen as removed from the democratic process that is closely knit with
primary legislation and hence, a more rigorous scrutiny in appropriate
cases may not be inapt. The level of presumption may indeed vary,
depending on factors such as (i) the nature of the subordinate legislation;
(ii) the extent it is found to be in derogation either of the Constitution or
the parent legislation which is its source; (iii) the exigencies and the
manner in which the subordinate legislation is brought into force; and
(iv) the potential impact on individual rights as well as public interest.
36. We are more than certain that should the State, in such a case of
declaration of a subordinate legislation as void without a direct challenge
being laid, consider itself aggrieved, it would surely approach the
superior court to have such declaration annulled. Interestingly, in the
present case, it is not the State but the beneficiaries of the offending
proviso who seek annulment of the declaration made by the Division
Bench, giving us good reason to believe that the respondent no. 1 is not
aggrieved. In the absence of a challenge from the respondent no. 1 and
its acceptance of the impugned judgment and order, the members of the
petitioning union who are mere beneficiaries do not have a better claim.
37. Having given the said contention of Mr. Sankarnarayanan the
consideration it deserves, we are of the view that the Division Bench after
21
hearing the learned counsel for the respondent no.1 as well as on
consideration of the wealth of authorities that it relied on to strike down
the offending proviso arrived at a correct conclusion that the same was
void and its exercise of powers to quash it cannot be a subject of assail
on the ground of it being beyond the jurisdiction of the High Court.
38. The other contention of Mr. Sankarnarayanan is that there was a different
Bench which had been given the assignment to hear petitions challenging
vires of any legislation and, therefore, the decision of the Division Bench
is in the teeth of the decision of this Court in State of Rajasthan v.
Prakash Chand22
.
39. The contention, though attractive at first blush, makes no impression.
The ratio of the decision in Prakash Chand (supra) will have no
application in a case of the present nature. The Division Bench, which
passed the impugned order, did have the authority to hear the intracourt appeal. The subject matter out of which the challenge emerged was
covered by the roster set by the Chief Justice. It was not a case where
the Division Bench heard a petition where the vires of a law was under
challenge at the instance of a suitor. Instead, the Division Bench
exercised its inherent powers upon suo motu taking up the point of vires
for consideration and decision. As has been held in Indian Bank v.
Satyam Fibres (India) (P) Ltd.23
, which has been affirmed by a Bench
of three Judges in State (NCT of Delhi) v. K.L. Rathi Steels Ltd.24
,
22 (1998) 1 SCC 1
23 (1996) 5 SCC 550
24 (2024) 7 SCC 315
22
inherent powers are powers which are resident in all courts, especially of
superior jurisdiction and though these powers do not spring from
legislation but from the nature and the constitution of the tribunals or
courts themselves so as to enable them to maintain their dignity, secure
obedience to its process and rules, protect its officers from indignity and
wrong and to punish unseemly behaviour, such power is necessary for
the orderly administration of the justice delivery system by the courts.
In addition, we hold that inherent power can also be exercised to do what
is just keeping in mind what the justice of the case before the court
demands.
40. Judged on the anvil of the said decisions, exercise of the inherent powers
of a court in a given case over which it has jurisdiction cannot, therefore,
be seen as limited by the roster set by the Chief Justice of the High Court.
41. The final contention of the members of the petitioning union being
deprived of an opportunity of hearing before the High Court has also been
urged to be rejected. Although, it is true that such members did not have
any audience before the High Court, we have given the fullest opportunity
to Mr. Sankarnarayanan to argue the case of the petitioning union.
42. While it is true that a dependent kin of an employee cannot be favoured
with a public employment by his employer merely on the ground that the
employee seeks to retire voluntarily before attaining the age of
superannuation, it is equally true that the dependant kin, if he is
otherwise eligible for appointment and on competing with other aspirants
has achieved the requisite standard, figures high up in the merit list and
23
there are sufficient vacancies, he would seem to acquire a right to be
considered for selection and consequent appointment; however, the fact
that his father is/was an existing/a former employee of the same
employer should make no difference while considering the candidature
purely based on merit.
43. That is, however, not the case here. No right, far less any enforceable
right of the members, has been infringed by reason of the impugned
judgment and order. For reasons assigned above, since the offending
proviso does not conform to Article 16 of the Constitution, the plinth of
the petitioning union’s attack to the impugned judgment and order
crumbles. Therefore, even if the petitioning union did not have any
audience before the High Court, it matters less since its members’
grievance has duly been considered by us.
44. We are, thus, of the considered opinion that the impugned order of the
Division Bench does not warrant any interference.
………..…………………J.
(DIPANKAR DATTA)
…….……..………………J.
(MANMOHAN)
NEW DELHI.
APRIL 02, 2025.