Asok Kumar Ganguly, J.
1.This appeal is directed against a judgment and order dated 11.8.2003 passed by a learned single Judge of this Circuit Bench. By the said judgment and order under appeal, the learned single Judge was pleased to reject the writ petition filed by the appellant/petitioner challenging the selection process for appointment to the post of Superintendent in the establishment of the Circuit Bench of Calcutta High Court at Port Blair. The relevant facts are as follows:
2. Applications were invited from suitable candidates for appointment to the post of Superintendent (hereinafter referred to as the said post) in the pay scale of Rs. 5500-175-9000/- from the employees working in the High Court/District Court/Government department by Employment Notice dated 24.1.2003. Pursuant to such notice, the appellant applied alongwith three other candidates including the respondent No. 4. The appellant was issued a call letter dated 12.3.2001 asking him to appear in the interview. But the candidature of respondent No. 4 was not considered suitable and she was not having requisite experience as Higher Grade Clerk (hereinafter referred to as HGC) and she was not issued any call letter. On the date of interview i.e. 16.3.2003, appellant was asked to appear alongwith one P.N. Unny. The candidature of one P.R. Kumarappan was also rejected as he did not have requisite experience as HGC. Therefore, out of the four candidates who applied, the applications of respondent No. 4 and that of P.R. Kumarappan were rejected as they did not have requisite experience as HGC and two persons were called namely the appellant and one P.N. Unny. But P.N. Unny did not appear in the interview. The petitioner was the only person who was interviewed by the selection committee. These facts are not disputed.
3. The Recruitment Rules under which such appointment are to be made were framed by the Hon'ble the Chief Justice in the exercise of powers under Clause (2) of Article 229 of the Constitution of India with the approval of the Lieutenant Governor of A&N; Islands vide Notification dated 21.12.2001. Those rules are called The Calcutta High Court Services (Circuit Bench at Andaman and Nicobar Recruitment) Rules, 2001 (hereinafter called Circuit Bench Rules). Rule 4 of the said Rules calls for some interpretation and the said Rule 4 is set out below:
'4. Subject to the specific provisions for appointment, promotions and probation as set out in annexure-I to XV to these rules in respect of the posts mentioned therein, the provisions of Calcutta High Court Services Rules, 1960 as amended from time to time dealing with recruitment of persons for the Establishment of High Court at Calcutta shall also apply Mutatis Mutandis.'
4. Subsequently by another Notification dated 5.3.2002 the Circuit Bench Rules were amended by the Hon'ble the Chief Justice in exercise of power under Article 229(2) of the Constitution of India. Rule 4 of the said amended Rules shows that Rule 6 of the Circuit Bench Rules shall be renumbered as Rule 7 and the following rule shall (be) inserted as Rule 6. The amended Rule 6 of the said Rules runs as follows:
'Rule-6. Notwithstanding anything contained in these Rules, the Chief Justice may, by order, dispense with or relax the requirements of any Rule concerning recruitment to any post to such extent and subject to such conditions as the Chief Justice may consider necessary.'
5. Here one thing may be noted that the Circuit Bench Rules which were notified on 21.12.2001, were framed by the Hon'ble the Chief Justice in exercise of powers under Article 229(2) of Constitution of India with the approval of the Lieutenant Governor of A&N; Islands. Such approval was required as the rules relate to recruitment of persons for the office of Registrar of Circuit Bench. The amendment which was done by the Notification dated 5.3.2002 also relates to recruitment. But surprisingly, the subsequent rule by way of amendment was made without the approval of the Lieutenant Governor. Thought this point has not been argued before this Court by any of the parties, but this prima facie appears to be an infirmity in the amended rules. However, this question is kept open in view of the facts and circumstances of this case.
6. Alongwith the said Circuit Bench Rules, there are certain annexures which set out classification, scale of pay, age limit, educational qualifications and the mode of recruitment to various posts.
7. In so far as the recruitment to the said post is concerned the details which are mentioned in annexure II are set out below:
' 1. Name of post : Superintendent
2. No. of post 1 (one)
3. Classification : The High Court Service Class III
4. Scale of pay : Rs. 5500-175-9000/-
5. Whether selection
post or non-selection post : Selection
6. Age limit for
direct recruits : Not applicable
7. Educational and
other qualifications
required for direct recruit : Essential:
(i) 8 years experience
as Higher Grade Clerk
Desirable:
Should have knowledge
in Court proceedings.
8. Period of probation, if any : In case of direct recruit,
two years on temporary
basis and one year
on probation.
9. Method of recruitment : Promotion from
whether by direct recruit Higher Grade Clerk
or by promotion or by initially on direct
deputation/transfer and recruitment from
percentage of the High Court/ District Court/
vacancies to be filled by Government Departments.'
various methods.
8. It will appear from the aforesaid particulars that in so far as educational and other qualifications are concerned, what is mentioned is 8 years experience as HGC as essential qualifications and what is mentioned as desirable is knowledge in Court proceeding and various other requirements as mentioned therein. But one thing is clear that there is no mention of any educational qualifications. This is in contrast with various other Recruitment Rules in respect of various other posts namely, the post of Assistant Registrar (Court), Assistant Court Officer, Stenographer, Hindi Translator, Librarian and so on and in respect of those posts under the heading educational qualification, specific educational qualifications have been mentioned. But so far as recruitment for the said post is concerned, there is no such stipulation.
9. The learned Judge after considering the contentions of the parties, held at pages 5-6 of the judgment that Rule 4 of the Circuit Bench Rules provides for applicability of Calcutta High Court Service Rules, 1960 (hereinafter called the said Rules). The learned Judge held that the said rules show that for the concerned post, academic qualification of passing Higher Secondary Examination or equivalent is a necessary and the learned Judge held that the provisions of the said rules have been adopted in the case of recruitment for the said post. The learned Judge also held that from Rule 4 of the Circuit Bench Rules it is clear that only that provision of the said Rules shall not be applied, which is contrary to any qualifications set out in annexure-II to the Circuit Bench Rules. The learned Judge ultimately opined that as regards the academic qualifications, the provision of the said rules should be applied. The learned Judge further held since no academic qualification is mentioned in annexure-II, which is contrary to the said rules, the provisions of the said Rules shall apply. The learned Judge further held that it cannot be presumed ordinarily that the post of Superintendent does not require any minimum academic qualifications when for the posts with equivalent pay like Assistant Registrar (Court), academic qualifications is required. The learned Judge also held that even for the post of HGC, academic qualifications have been prescribed. The learned judge also noted from the records produced by the respondents, that two other candidates in their respective applications mentioned their academic qualifications against serial No. 11, whereas the petitioner/ appellant left it blank.
10. In so far as the appointment in favour of the respondent No. 4 was concerned, the learned Judge found as the said post is a necessary post for the establishment and as the sole candidate, the petitioner was found lacking in academic qualifications, the appointment of the respondent No. 4 by relaxing the shortfall in the requisite experience was nothing unfair. The learned Judge held that was done to save the post from being abolished. The learned Judge found that relaxation was given by the Hon'ble the Chief Justice in exercise of his the power under the amended rule and there is no illegality.
11. In view of the aforesaid reasonings of the learned Judge, it was held that the selection process cannot be called unfair and prayer for cancellation of the appointment of respondent No. 4 cannot be sustained and the writ petition was dismissed.
12. Assailing the judgment under appeal, the learned counsel raised various contentions. His first contention has been that there has not been a proper interpretation of the Rules. Once the Rules are framed, such rules must be strictly followed. The learned counsel submitted that under the Circuit Bench Rules for appointment to the said post, no educational qualifications has been deliberately mentioned. But what has been mentioned is 8 years experience as HGC. A person who was appointed in HGC must have some academic qualification which was considered requisite at the time of such appointment and if a person has worked satisfactorily in the post of HGC for about 8 years he is considered eligible for appointment to the said post. This should be the interpretation of the Rule. Going by this requirement, the petitioner who was appointed to the post of HGC on 2.11.1992 has the requisite qualifications on the date of employment notice issued on 24.1.2003. The learned counsel further submitted that pursuant to such employment notice, requisite qualification of experience and desirability which are required for the said post are mentioned in annexure-I to the notice. A proforma for application form has been given in annexure-II. Neither in annexure-I nor in annexure-II there is any column for giving educational qualifications. As such the petitioner strictly followed the employment notice and the proforma annexed to such notice and did not mention in his application, the educational qualifications as it was not required of him to do so. This Court finds considerable force in the aforesaid submission.
13. The learned counsel further submitted that the said Rules classify High Court service into three categories. The post of Superintendent comes under the third category. In so far as the High Court Service Class III is concerned, no educational qualification is mentioned in the said Rules, In fact, the learned counsel pointed out that the learned Judge in his Judgment under appeal has not referred to any clause in the said Rules which provide for educational qualifications for the said post. In that view of the matter, requirement of educational qualifications is not prescribed either under the said Rules or under the Circuit Bench Rules. So its incorporation in the rules by way of interpretation is an erroneous approach of the learned Judge.
14. In so far as the appointment of the respondent No. 4 is concerned and which has been upheld by the learned single Judge, the learned counsel submitted that call letters were issued to the candidates through their employer. But no call letter was sent to the respondent No. 4. In fact on the date of interview, the respondent No. 4 was not in Port Blair. This fact has not been disputed by the respondents. The learned counsel submitted that the respondent No. 4 went on leave and proceeded to Calcutta. But from the record of selection which has been disclosed, it appears that on 16.3.2003 when the appellant was interviewed, the case of the respondent No. 4, who was not present before the Interview Board nor was she present in Port Blair, was taken up for consideration for appointment to the said post and it was decided that the respondent No. 4 will be asked to appear for interview on 24th/25th March, 2003 at Calcutta for appointment to the said post. Thereafter, it further appears from the records that the respondent No. 4 appeared at the interview on 24.3.2003 at Calcutta and upon interview she was found fit and recommendation was made by the Committee for her appointment subject to the relaxation of the period of experience by the Hon'ble the Chief Justice. The learned counsel submitted that this is totally unreasonable and arbitrary. On the one hand, the petitioner has the requisite qualification but the selection committee did not consider his case, inter alia, on the ground that he did not possess the certificate of having passed the pre-university examination, though there is no such requirement under the law. On the other hand, the respondent No. 4 has been considered and recommended for appointment, when her application for the said post was rejected at the threshold. A separate date for interview was specially fixed at Calcutta for the respondent No. 4 and thereafter a request was made to the Hon'ble the Chief Justice for relaxation of the period of experience as HGC which was an essential requirement. According to the learned counsel, this shows bestowing undue favour on the respondent No. 4 and rejecting the valid candidature of the appellant for no reasons whatsoever.
15. The learned counsel appearing for the respondent No. 4 did not file any affidavit. The learned counsel accepted that the candidature of his client was not found eligible as she did not have the requisite experience. The learned counsel also accepted that on the date of interview i.e. on 16.3.2003, the respondent No. 4 was not in Port Blair and she proceeded on leave to Calcutta. The learned counsel also admitted that the respondent No. 4 was interviewed at Calcutta on 24.3.2003 and thereafter on 8.4.2003, an offer of appointment was given to the respondent No. 4 for the said post by the Registrar of the Circuit Bench and thereafter the appointment letter of the respondent No. 4 to the said post was issued by the Registrar on 2.5.2003. The respondent No. 4 was posted at Campbell Bay. She left Campbell Bay on 20.5.2003 to join the said post at Circuit Bench at Port Blair and the respondent No. 4 joined the said post on 26.5.2003. Save and except giving the aforesaid particulars, the learned counsel for the respondent No. 4 did not make any other submission.
16. Mr. A.K. Ray, learned counsel for the High Court Administration defended the order of the learned single Judge as also the order of appointment issued in favour of the respondent No. 4, and also contended that there was nothing unfair in the selection process and everything was done in accordance with the rules. The learned counsel wanted this Court to accept the interpretation of the rule which found favour with the learned single Judge. In support of such interpretation, the learned counsel argued that the rules must be so interpreted as not to make it absurd or unjust. The learned counsel also submitted that non-mentioning of any educational qualification for appointment to the said post in the Circuit Bench Rules is an omission and when there are such omissions, the Court, has the duty to interpret the rules in such a manner that the rules become just and reasonable in their operation.
17. In support of the aforesaid contention Mr. A.K. Ray referred to various treaties on interpretation of statute. Mr. Ray referred to both Maxwell and Crawford on interpretation of the statute. Mr. Ray referred to Maxwell's Interpretation on Statute 11th Edition at page 12 and drew the attention of this Court to Chapter under the heading 'Omissions not to be Lightly Inferred'. The learned counsel admitted that it is not for the Court to lightly infer that there is an omission,' The learned counsel submitted but where an omission is unintentional and there are adequate reasons for doubting whether the legislature could have intended a very wide interpretation as would negative the fundamental principles of fairness and reason then the Court may be justified in adopting a narrower construction. The learned counsel also referred to the discussions in Maxwell's book under heading 'Absurdity' and submitted that, if there is a choice between two interpretations and the narrower of which would fail to achieve the manifest purpose, the Court should avoid construction which reduced the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
18. On the same principle Mr. A.K. Ray also referred to Crawford at page 287 under paragraph 177. Relying on the said passage, Mr. Ray said where the language of the statute is ambiguous and is susceptible to more than one constructions, the Court should not hesitate to consider the consequences which will follow by adoption of a particular construction and in determining the question whether or not the asserted construction represents the legislative intent. Mr. Ray also referred to page 288 of the Book which shows that Court should strive to avoid a construction which will tend to make the statute unjust, oppressive, unreasonable, absurd, mischievous or contrary to the public interest and the construction should be accepted which will make the statute effective and productive of the most good as it is presumed that these results are intended by the legislature. Therefore, the Court should accept an interpretation which will be rational, logical and sensible. The learned counsel submitted that an attempt should be made to avoid construction which is opposed to the commonly recognised concepts of what is right, just and ethical.
19. The learned counsel further submitted that it is wholly unreasonable to think that the framers of the rule will prescribe educational qualifications of passing Higher Secondary Examination as requisite for the post of HGC, which is a feeder post and will not insist on the same for recruiting a person for the said post which is higher than HGC.
20. In so far as the appointment of the respondent No. 4 is concerned, the learned counsel submitted that this was done primarily for two reasons; and this was indicated in the records of the selection process. First, there was some urgency in filling up of the said post on an emergent basis as otherwise, the post would lapse. Secondly, there was not suitable candidate for the said post. The petitioner does not have requisite educational qualifications as he failed to produce his certificate to show that he had passed pre-university examination. The selection committee considered the candidate of the respondent No. 4 whose experience was short by a few months and recommended her appointment subject to relaxation by the Hon'ble Chief Justice. Thereupon, the Hon'ble Chief Justice has given relaxation and the respondent No. 4 has been appointed. Therefore, there is no illegality in the same.
These are the rival contentions.
21. Now it is clear from what has been discussed above, that one of the main questions mooted in this case is a question of interpretation of the two rules, namely, the Circuit Bench Rules and the said Rules in the context of the expression 'Mutatis Mutandis' used in the Circuit Bench Rules.
22. Before embarking upon the task of the interpretation, one ordinary principles of construction must be kept in mind. It is one of the fundamental principle of construction that where the language of the rule or law is plain and unambiguous, there is hardly any scope for interpretation and the Court must follow the plain words of the statute. So far as educational qualification for the said post is concerned there is no ambiguity in the Circuit Bench Rules. It has been specifically stated that essential thing is eight years experience as HGC. It has already been pointed out that in respect of other posts, educational qualifications have been mentioned. But in so far the said post is concerned, it has not been mentioned. Therefore, the interpretation should be that it has not been deliberately mentioned in the said Circuit Bench Rules, The essential requirement is eight years experience as HGC. The educational qualification which was required at the time of recruitment to the said post of HGC of the incumbent concerned will suffice for the said post alongwith eight years experience. That is the reason why, separately educational qualification has not been prescribed for the said post. This is the plain and simple interpretation of the rule and this Court does not find any reason for taking a different interpretation.
23. In Pakala Narayan Swami v. The King Emperor reported in , Lord Atkin has summed up the position very clearly. The learned Judge opined: 'when the meaning of the word is plain, it is not the duty of the Courts to busy themselves with the supposed intention'. Here the same principle can be applied similar observations were made by Justice Gajendragadkar in Kanailal Sur v. Paramnidhi Sadhu Khan, reported in : [1958]1SCR360 of the report the learned Judge said: 'If words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the act.'
24. The reference in Rule 4 of the Circuit Bench Rules to the said Rules and its application Mutate Mutandis to the Circuit Bench Rules also does not alter the position. The said Rules have been placed before us and it has already been pointed out that even under the said Rules there is no specific mention of the requirement of educational qualifications for the said post. Before this Court, the said Rules as amended upto 15.9.1965 has been produced and this Court has not been able to find any provisions of the said Rules under which any academic qualifications is prescribed for the said post. In fact, in the judgment under appeal, the learned Judge has also not referred to any clause of the said Rules under which the academic qualifications for the said post has been prescribed in the said Rules. Nor Mr. Ray, appearing for the High Court Administration has also not pointed out any such clause. Therefore, the finding of the learned Judge that for appointment to the said post, qualification of passing higher secondary examination is a requirement is not borne out either from the provisions of the Circuit Bench Rules or the said Rules. Since the same is not a requirement under any of the rules, the rejection of the candidature of the petitioner on the ground that he has not passed the higher secondary examination or he has not been able to show that he has passed pre-university examination is wholly an illegal decision of the selection committee. This Court is of the opinion that the appellant/petitioner rightly did not mention any educational qualifications in his application, as it is not required to do so under the rules. But from the records of the selection committee, it appears that the appellant made a representation that he had passed pre-university examination but he could not produce the documents. In fact on 17.3.2003, the petitioner made it clear in his letter to the Registrar of the Circuit Bench that he possesses the requisite qualifications in the feeder post for appointment to the said post and he made it clear that he has no proper document to show that he has passed pre-university examination.
25. However, this Court cannot accept the construction given by the learned Judge to Rule 4 of the Circuit Bench Rules vis-a-vis the said rules in as much, the expression Mutatis Mutandis does not mean that the provisions of the said Rules are to be applied overriding Rule 4 of the Circuit Bench Rules.
26. The expression Mutatis Mutandis means 'with necessary changes in points of detail' (see Black's Law Dictionary, 6th Edition, page 1019).
27. In Wharton's Law of Lexicon also the said expression has been explained as meaning 'with necessary changes in points of detail'. It is a rule of 'adaptation' and not a rule of 'adoption' as has been held by the learned Judge in the judgment under appeal. The principle of Mutatis Mutandis was considered by the Hon'ble Supreme Court in the context of service rules in the case of The University of Cochin v. Dr. N. Raman Nair and Ors., reported in : [1975]2SCR526 . In paragraph 11 at page 636 of the report, the learned Judges held that the power to apply the rules Mutatis Mutandis does not include the power of amending substantial provisions in the rule. The learned Judges also pointed out that these rules are necessary only for the purpose of adaptation. In paragraph 10 of the said judgment, the learned Judges noted the submissions on behalf of the university that the university has power to apply powers Mutatis Mutandis which means that they have also power even to alter the rules. But the said argument on behalf of the university was not accepted by the High Court and in paragraphs 11 and 12 of the judgment, the learned Judges made it clear that the High Court was right and the contention on behalf of the university was wrong. In the instant case the same thing has been done. In view of the expression Mutatis Mutandis, the learned Judge incorporated in the Circuit Bench Rules the requirement of having academic qualification of passing Higher Secondary Examination for the appointment to the said post. This was done by altering the provisions of Circuit Bench Rules by way of interpretation. Such construction of the expression Mutatis Mutandis is, in our judgment, not tenable.
28. The requirement which has been fixed by the Circuit Bench Rules must be rigorously followed. In this connection, this Court is reminded of an off-quoted dictum of Mr. Justice Frankfurter in Viteralli v. Saton (359 US 535, Lawyers Edition, 2nd 1012). The learned Judge has made the following observations:
'An executive agency must be rigorously held to the standards by which it professes its action to be judged......... Accordingly, if dismissed from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed......... This Judicially evolved rule of administrative law firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.'
29. The aforesaid dictum of Mr. Justice Frankfurter has been accepted as valid and applicable in India in various decisions which have been noted in R.D. Shetty v. International Airport Authority, reported in : (1979)IILLJ217SC . Mr. Justice Bhagawati at page 503 of the report in R.D. Shetty after quoting the aforesaid observation of the learned Judge held that the said rule is supportable as an emanation from Article 14, Apart from that the learned Judge found that the said dictum is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority.
30. In the facts of this case, it is clear that neither in the Circuit Bench Rules nor in the said Rules there is any requirement of passing higher secondary examination by a candidate for appointment to the said post. Therefore the interpretation by the learned Judge in the Judgment under appeal, supporting the departure from the rule indulged in by the High Court Administration, is, with great respect, an erroneous one. In this connection, it may be mentioned that both in Maxwell and Crawford which have been cited before us, the learned authors repeatedly made it clear that where the intention of the statute is clear and does not present any ambiguity, the Court should accept the clear words of the statute and need not bother itself in trying to find out the so called intention.
31. Apart from that from the records of selection proceeding produced before us, we also do not find that the selection committee has proceeded on the basis that the petitioner must possess the qualification of passing Higher Secondary Examination. The selection committee made the following observations:
'.......Out of 4 applicants, 2 applicants were found to be eligible for interview after scrutiny. Accordingly, 2 applicants, namely Sri Sunirmal Chatterjee and Shri P.M. Unni were called for interview. Only Sri Sunirmal Chatterjee appeared at the interview. As regards his qualification Shri Chatterjee stated that he had passed pre-university examination, but he could not produce any document in support of his said qualification except a certificate purported to have been given by college authority. It is decided that he may be given a chance to produce proper documents issued by appropriate authority as regards his said qualification before the Registrar, Circuit Bench, who will take steps in this regard forthwith.
In view of the insufficient number of candidates and urgent need for completion of the recruitment process, it is decided that the case of Smt. Nita Chakraborty, whose service period as Higher Grade Clerk falls short of requirement by a few month, be considered for recruitment to the post of Superintendent.
Since the recruitment process is scheduled to be completed at Calcutta, Smt. Chakraborty be asked to appear at the interview on the 24/25th March, 2003 at Calcutta. Her appointment to the post of Superintendent if so decided by the Committee, shall be subject to the relaxation of the prescribed period of experience by the Hon'ble the Chief Justice........'
32. If we analyse the aforesaid reasons of the selection committee, we do not find that it has referred to the said Rules namely the High Court Service Rules, 1960 as requiring the qualifications of passing Higher Secondary Examination is a must for appointment to the said post. This Court has already held that there was no reason for the petitioner to make a representation before the selection committee that he had passed the pre-university examination, as without passing the said examination the petitioner was qualified under the said Circuit Bench Rules. But on the basis of the said representation of the petitioner/appellant a different interpretation of the Rules cannot be given. The selection committee has also not held categorically that academic qualification of the petitioner/ appellant is not sufficient for being considered to the said post. Further it appears that the selection committee unfortunately adopted a double standard. We find that as the petitioner was the only person who responded to the interview, the selection committee found that there was insufficient number of candidates. But instead of asking for fresh selection, the selection committee wanted to interview a candidate who is admittedly not qualified according to the requirements of the Recruitment Rules. Therefore, while holding that number of candidates who have appeared in the interview was insufficient, the selection committee wanted to consider the candidature of the person who did not appear in the interview. The alleged ground is rather strange namely the urgent need for completion of the recruitment process. In fact, on this plea of urgency, some argument has been made before us. The learned counsel for the petitioner submitted that there is no urgent need for filling up the said post. In order to counter the said arguments, the learned counsel for the High Court Administration wanted time from this Court to produce some documents to show that there was urgency. Even though those documents were not part of the affidavit filed by High Court Administration but in order to do justice between the parties, and an opportunity was given to the High Court Administration to produce those documents. We allowed Mr. A.K. Ray to produce documents with copies to the learned counsel for the other sides. It may be noted that the plea of urgency also weighed with the learned Judge in accepting the stand of the High Court Administration.
(a) Three documents were shown before us to make out the plea of urgency. They are: (i) letter dated 26.7.2002 issued by the Deputy Secretary (Law) of the A&N; Administration to the Registrar of the Circuit Bench, (ii) letter dated nil November, 2002 issued by the Secretary (Law) to the Registrar of the Circuit Bench and finally (iii) an order dated 20.3.2003 issued by the A&N; Administration signed by the Deputy Secretary (Law). From a perusal of those documents, following facts emerge.
33. The Deputy Secretary (Law) of A&N; Administration wrote to the Registrar to the effect that 28 posts created on the recommendation of the Hon'ble the Chief Justice for smooth functioning of the Circuit Bench at Port Blair have not been filled up even after lapse of years together, (b) It has also been stated that the posts have been renewed year to year by the competent authority to avoid attraction of ban (c) The finance department, which concurred the proposal for renewal of temporary posts unto 28.2.2003 has viewed the abnormal delay in the process of filling up of the post with concern and opined that no further renewal shall be considered if the posts are not filled during 2002-03. This letter was issued on 26.7.2002. Thereafter another reminder was given by the Secretary (Law) to the Registrar of the Circuit Bench in November 2002 in order to take expeditious steps to fill up the vacant posts (d) The High Court Administration even thereafter took about 3 months item to issue employment notice on 24.1.2003, (e) Therefore, the delay, if any, is a self-created one by the High Court Administration in the matter of filling up of the said post, (f) Even then, this Court finds that on 20.3.2003 which is prior to the date of interview of the respondent No. 4 on 24.3.2003, the sanction for continuance of the said post was extended for one year more i.e. from 1.3.2003 to 28.2.2004, (g) The said order issued by the Deputy Secretary (Law) of the A&N; Administration was immediately forwarded to the Registrar General, High Court and also to the Registrar, Circuit Bench at Port Blair on 20.3.2003 itself, (h) Therefore, before the respondent No. 4 was alone interviewed specially by the selection committee on 24.3.2003 and relaxation was sought for and granted in her favour by he Hon'ble the Chief Justice on 29.3.2003, the so called urgency in filling up the said post disappeared, (i) Therefore, there was no urgency and no difficulty in holding a fresh selection.
34. In fact, fresh selections were held pursuant to a notice issued in June, 2003 in respect of some of those 28 posts and pursuant to such selection appointments were given to one Mr. Steephen Raj on or about 29.9.2003 and one Mr. Sujit Roy in October, 2003. This Court was apprised of these facts by the learned counsel for the appellant and this Court has verified these facts and this has been recorded by this Court in its order dated 14.1.2004. After recording these facts, the Court gave a chance to Mr. A.K. Ray to verify those fact, and Mr. A.K. Ray learned counsel for the High Court Administration also verified those facts and informed the Court that the selection process for those two posts was initiated in June, 2003 and those two persons were appointed in September/October, 2003.
35. But the plea of urgency which was raised before the learned single Judge was accepted by His Lordship without adverting to these facts and without verifying the factual aspect of the plea of urgency from the learned counsel for the High Court Administration. Thus the learned Judge fell into an error.
36. Therefore, the interpretation by the learned Judge of the rules and the one which has been suggested by the learned counsel for the High Court Administration cannot be accepted by this Court.
37. Now with regard to the power of relaxation exercised by the Hon'ble the Chief Justice, this Court finds that the respondent No. 4 became HGC from 12.8.1995. This appears from the application filed by her. So, on the date of employment notice i.e. in January, 2003 she has not completed eight years of service as HGC and she would complete eight years of service on 11.8.2003. So in January, 2003 there was a short fall of seven months. The selection committee in its recommendation did not spell out the exact period of by which the respondent No. 4 fell short of the requisite experience, save and except mentioning few months. In the order of the Hon'ble the Chief Justice passed on 29.3.2003 which purports to grant relaxation there is no mention of the months by which experience of the respondent No. 4 falls short of the requisite period.
38. In the note put up before the Hon'ble the Chief Justice there is no mention that (i) initially application of Nita Chakraborty (respondent No. 4) was rejected and she was not given a call letter, (ii) It was not mentioned that Nita Chakraborty alone was specially interviewed at Calcutta inter alia on the ground unless the post is filled up, the post will lapse, (iii) It was not mentioned when she was interviewed on 24.3.2003 by then, the sanction of the post extended till February, 2004. (iv) It was also not mentioned that Nita Chakraborty never asked for any relaxation.
39. The Hon'ble the Chief Justice has merely signed on the margin of the note prepared by the Registrar General. The relevant portion of the note prepared by the Registrar General about Nita Chakraborty and placed before the Hon'ble the Chief Justice is given as under:
'......(3) Smt. Nita Chakraborty, the selected candidate for being appointed as Superintendent may be given appointment to that post by relaxing the prescribed period of experience as fall short of, in terms of the recommendation of the selection committee......'
40. There is no specific order of the Hon'ble the Chief Justice granting relaxation. What has been done by the Hon'ble the Chief Justice is merely a signature on the margin. This Court, with great respect is of the view, such exercise of power of relaxation under the rules is not tenable.
41. The rule empowering relaxation permits the Hon'ble the Chief Justice to grant relaxation to such extent and subject to such conditions as he may consider necessary. So what is required is an objective construction by the Hon'ble the Chief Justice about the need and necessity of making relaxation. The power of relaxation is not an unfettered one.
42. In Amrik Singh v. Union of India, reported in : [1980]3SCR485 , the learned Judges constructing the ambit of power of relaxation, made it clear that such relaxation shall be given by the authority concerned 'not subjectively but objectively' (see para 11 page 402 of the report). In State of Orissa v. Sukanti Mahapatra and Ors., reported in : (1993)IILLJ297SC , the learned Judges held that power of relaxation must be strictly construed, so that it does not confer any blanket power (see para 8 page 494 of the report). In another judgment of the Hon'ble Supreme Court in the case of Sayed Khalid Rizvi and Anr. v. Union of India and Ors., reported in : (1993)ILLJ887SC , a Three Judge Bench, after relying on the decision of Amrik Singh (supra), held that there cannot be any deeming relaxation. The fiction of deeming relaxation would emasculate the operation of rules and regulations and is fraught with grave imbalances and chain reaction. Therefore, the learned Judges insisted that relaxation must be way of an express order (see para 33 page 603-604 of the report). Here no express order of relaxation was passed by the Hon'ble Chief Justice.
43. Following the aforesaid principles, this Court cannot approve the exercise of the power of relaxation by the Hon'ble the Chief Justice by signing just on the margin of the note sheet prepared by the Registrar General which does not disclose all the relevant facts. It appears that in exercise his power of relaxation the Hon'ble the Chief Justice could not apply his Lordship's mind to all the relevant facts and circumstances of the case. Therefore, there has not been a proper exercise of power of relaxation by the Hon'ble the Chief Justice in favour of the respondent No. 4 either on facts or in law.
44. For the reasons aforesaid, this Court does not accept that the selection procedure is valid and proper in the appointment of the respondent No. 4, nor the power of relaxation has been exercised in accordance with the objective standards mentioned above. The appointment of respondent No. 4 to the said post is therefore, set aside and her service in HGC revives.
45. This Court would have directed the appointment in favour of the appellant/petitioner to the said post, but in the facts and circumstances of the case, this Court feels reluctant to pass such an order for reasons indicated below.
46. It appears from the recital in the selection committee procedure that before the selection committee, the petitioner took a stand that he passed pre-university examination and he would produce necessary documents. But from his service record, it appears that he had not passed the pre-university examination. Therefore, before the selection committee he had taken a stand contrary to what is there is his service record. Since the jurisdiction under Article 226 of the Constitution is a jurisdiction of conscience and in which fair play is a vital component, this Court feels it will not be a proper exercise of such jurisdiction to order immediately the appointment of the petitioner/appellant to the said post.
47. Instead, this Court directs the High Court Administration to immediately initiate a fresh selection for the said post on the basis of the rues which are already there and in the said selection procedure, all the eligible candidates including the petitioner/appellant should be allowed to participate. Such selection procedure should be initiated within a period of one month from today and must be completed by the month of June, 2004. The sanction for the said post must continue.
The appeal therefore, succeeds. The judgment of the learned single Judge is set aside and the writ petition is allowed to the extent indicated above.
This Court appreciates the fair attitude taken by Mr. A.K. Ray, learned counsel for the High Court Administration by disclosing all the records and materials before the Court for the purpose of proper adjudication of the issues involved. The original records which were produced before us we are handed back to the counsel appearing for the High Court Administration.
There will be no order as to costs.
Narayan Chandra Sil, J.
48. I agree.