[2014] 4 S.C.R. 226

MADAN LAL

HIGH COURT OF JAMMU & KASHMIR & ORS.

(Civil Appeal Nos.1393-1394 of 2002)

MARCH 28, 2014

[SURIN.JER SINGH NIJJAR AND FAKKIR MOHAMED

IBRAHIM KALIFULLA, JJ].

PUBLIC INTEREST LIT/GA TION:

Appeals before Supreme Court - Arising out of writ petitions filed before High Court - Challenging selection and appointment to post of District and Sessions Judge - Held: Appellants have stated that they have no grievance against

0 any of the selected candidates in the particular selection - Therefore, if at all, their grievances are to be considered relating to ascertainment of quota for direct recruit posts, it would only amount to Public Interest Litigation which cannot be permitted in the instant appeals - As per the guidelines and decisions of Supreme Court, in service matters Public E Interest Litigation is not maintainable - Jammu and Kashmir Higher Judicial Service Rules, 1983.

The instant appeal arose out of the writ petitions filed before the High Court. The challenge on various grounds F related to selection and appointment to the post of District and Sessions Judge borne on the cadre of the service constituted in terms of the Jammu and Kashmir Higher Judicial Service Rules, 1983. The High Court, by the impugned judgment, answered all the points raised in G seriatim.

Dismissing the appeals, the Court

H 226

MADAN LAL v. HIGH COURT OF JAMMU & KASHMIR 227

HELD: A

The appellants have stated that they have no grievance against any of the selected candidates in the particular selection. Therefore, if at all, the appellants' grievances are to be considered, relating to ascertainment of quota for direct recruit posts in the instant appeals, it would only amount to a consideration

by way of a Public Interest Litigation which cannot be permitted to be made, more so, when the appellants have chosen not to challenge the selection of any one of the candidates by way of direct recruitment or any of the C promotees. The instant appeals cannot be entertained since as per the guidelines of this Court as well as based on the earlier decisions of this Court, it has baen held that in service matters Public Interest Litigation is not maintainable. (para 7, 9 and 10) (236-B-C, G; 233-0) D

Hari Bansh Lal vs. Sahodar Prasad Mahto - 2010 (10) SCR 561 = (2010) 9 sec 655 - relied on.

Case Law Reference:

2010 (10) SCR 561 relied on para 9

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1393-1394 of 2002.

From the Judgment and Order dated. 31.01.2000 of the High Court of Jammu and Kashmir at Jammu in SWP Nos. 333 of 1999 and O.W.P. No. 1641 of 1999.

WITH

Civil Appeal No. 1395 of 2002.

Subhash Chander Mansotra, Jagpal Sharma Appellantsin-person.

Tara Chandra Sharma, Neelam Sharma, Purnima Bhat,

Dinesh Kumar Garg, Ashok Mathur for the Respondents.

A The Judgment of the Court was delivered by

FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. These Appeals are directed against a common Judgment of the High Court of Jammu and Kashmir dated 31.01.2000 rendered in B S.W.P. No.333of1999 and O.W.P. No.1641 of 1999 and other connected writ petitions. The Appellants herein were Petitioners in S.W.P. No.333 of 1999 and S.W.P. No.260 of

1999. In the Writ Petition(s) the challenge was to the selection and appointment to the post of District and Sessions Judge borne on the cadre of the service constituted under the Rules, C namely, "The Jammu and Kashmir Higher Judicial Service

Rules, 1983" (hereinafter referred to as "Rules, 1983"). The recruitment and appointment to the said cadre under the aforesaid Rules is from two sources, namely, 75% by way of promotion of in service candidates and 25% by direct D recruitment. The challenge in the Writ Petition(s) related to the

selection and appointment of candidates under the direct quota pursuant to the modified Notification No.16 of 1997 dated 05.09.1997. The earlier notification was Notification No.50 of 1995 dated 01.08.1995. As per the modified notification, four E posts were advertised out of which two were for general

category and one each for reserved categories of Schedule Caste and resident of Backward Area. The High Court conducted the written examination and declared the list of successful candidates. Candidates were called for viva-voce F test on 27.02.1999. They were interviewed by the Committee constituted by the High Court.

2. Mr. S.C. Mansotra, who appeared before us as appellant-in-person, in fact, appeared before the High Court and raised as many as six contentions, namely, that the post of G District and Sessions Judge being a constitutional post and

consequently, it cannot be classified or placed along with the highest service of the administration/bureaucratic service and the mention of the post in the rule was unconstitutional which provides for 50% reservation to different classes of citizens in H

the society. Then it was contended that the selection was not A made in accordance with the procedure prescribed as contained in Rules 4 to 9 of 1983 Rules. In that, it was contended that sub-rule (2) of Rule 5 was not complied with. It was also contended that the process of selection was not properly carried out as mandated by Rule 7. The contention was B that there was no Selection CommiJtee constituted by the Chief Justice. It was contended that the High Court was not justified in filling-up the posts by candidates belonging to reserved categories. It was then contended tf.iat the proviso to Rule 4 was unconstitutional inasmuch as recruitment of 25% quota would c be restricted to permanent ca(jre strength. It was then contended that the determination of seniority between the direct recruits and promotees should be based on the date of appointment in the cadre.

3. The High Court by the impugned judgment answered all D the points raised in seriatim. As far as the argument that the post of District and Sessions Judge is a Constitutional post, the High Court has rightly held that except making a bald averment Appellants could not substantiate the said contention.

Consequently, the Division Bench held that the mention of the E said post in Rule 9 of 1994 Rules did not violate any provision of law so far as it related to provision made for reservation. As far as violation of Rule 5(2) of 1983 Rules was concerned, the High Court has noted that the requirement of holding a medical test under the said sub-rule was only directory and not F mandatory and, therefore, the holding of the said test after the viva-voce test did not in any way affect the selection made. As far as the contention based on Rule 7 that no Selection Committee was nominated by the Chief Justice, the High Court after referring to the proceedings relating to the selection found G that the Chief Justice constitutea a Committee for conducting the interview of the candidates, who passed the written test, and that in any event the criteria for qualifying the examination by prescribing the percentage of minimum marks to be secured were all approved by the Full Court and in the circumstances H

A as the selection was broad-based on that ground there was no scope to interfere with the selection.

4. As far as the arguments to the effect that the policy of reservation adopted by the High Court by a Full Court B Resolution was not approved by the Governor and, therefore, the application of reservation was invalid, the Division Bench held that the Petitioner himself did not oppose the reservation in the service and when the same was made by a Resolution of the Full Court and in the light of SR0-126 of 1994 it was C applicable to every service of the State and the High Court. So

holding, the said submission was also rejected.

5. The Division Bench, however, broadly accepted the submission as against the proviso to Rule 4 under SR0-157 of 1995. The submission was that the prescription of 25% D quota for direct recruitment to be restricted against the permanent vacancies may not be correct. The Division Bench held that determining the respective quota both permanent and temporary posts are required to be taken note of and to that extent there was some justification in the submission of the E Petitioners before it.

6. The last of the submission relates to determination of seniority between direct recruits and promotees. As far as the said contention was concerned, the Division Bench in the case on hand held that the seniority shall be governed by the date F of appointment in the cadre which would be in tune with a plain reading of Rule 17. It held that if a promotee had already been appointed and if that was not done as per the quota, necessary relaxation can be given. In that respect, the Division Bench took into consideration Rule 4(2) which makes it apparent that in G case suitable candidates were not available for recruitment to the posts reserved for that category can be filled-up by promotion.

7. Having perused the above judgment impugned in these H Appeals and having noted the answers to the various

submissions made on behalf of the Petitioners before the High A Court, we do not find any good ground to interfere with the judgment impugned. In fact, to our query to the Appellants t>_efore

us, it was fairly submitted that they have no grievance against any of the selected candidates in that particular selection.

Therefore, if at all the Appellants grievances are to be B considered, relating to ascertainment of quota for direct recruit posts in these Appeals it would only amount to a consideration by way of a Public Interest Litigation which cannot be permitted to be made, more so, when the Appellants have chosen not to challenge the selection of any one of the candidates by way of c direct recruitment or any of the promotees.

8. In this respect, it would be appropriate to refer to the compilation of guidelines to be followed for entertaining letters/ petitions received in this Court as Public Interest Litigation based on Full Court decision dated 1.12.1988 with subsequent D modifications based on Orders dated 19.08.1993 and 29.08.2003 of the then Hon'ble Chief Justice of India. Under the said guidelines, it has been specifically stipulated as under:

"Cases falling under the following categories will not be entertained as Public Interest Litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may be:

1. xxxx xxxx xxxx

2. Service matter and those pertaining to Pension and Gratuity."

9. That apart time and again this Court repeatedly held that

in service matters Public Interest Litigation is not maintainable.

G We can profitably refer to a recent decision reported in Hari Bansh Lal vs. Sahodar Prasad Mahto - (2010) 9 SCC 655.

Paragraphs 14 and 15 are relevant which are as under:

"14. In Ashok Kumar Pandey v. State of WB. this Court

held thus: (SCC pp. 358-59, para 16)

"16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of socalled public interest litigations where even a minuscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilised for disposal of genuine cases.

Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra this Court held that in service matters Pl Ls should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision.

The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs. lt would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts."

The same principles have been reiterated in the subsequent decisions, namely, B. Singh (Dr.) v. Union of

India, Dattaraj Nathuji Thaware v. State of Maharashtra A and Gurpal Singh v. State of Punjab.

15. The above principles make it clear that except for a writ of quo warranto, public interest litigation is not maintainable in service matters.

10. As we have found that the challenge made to the , selection was not justified on merits and also on the ground that the Appellants had no grievance against any of the selected candidates, these Appeals fail. That apart, as the Appellants

had no grievance as against the selected candidates and the C challenge is the Writ Petition as well as in these Appeals are as a pro bono publico, these Appeals cannot be entertained since as per the guidelines of this Court as well as based on the earlier decisions of this Court wherein it was held that Public Interest Litigation in service matters cannot be entertained.

D Therefore, on all the above grounds the Appeals fail and the same are dismissed. No costs.

R.P.

Appeals dismissed.