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Synopsis

The Supreme Court has said that without any specific challenge, no rule or law made by the central government can be declared invalid or unconstitutional by the High Court.

A bench of Justices J K Maheshwari and K V Vishwanathan set aside September 26, 2008 judgment of the Orissa High Court which declared provisions of the Ministry of Information Technology (in-situ Promotion under Flexible Complementing Scheme) Rules 1998, as invalid. 

"It is a trite law that for striking down the provisions of law or for declaring any rules as ultra vires, specific pleading to challenge the rules and asking of such relief ought to be made," the court said.

It allowed an appeal filed by the Union government, saying that the High Court was not justified in declaring Rule 4(b) as ultra vires in the writ petition seeking a writ of certiorari challenging the order of the Central Administrative Tribunal by a woman scientist, Manjurani Routray and others, then working with the National Informatics Centre, Cuttack against the denial of promotion to them.

"We are also of the considered view that, in the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires," the bench said.

The respondent scientists admitted that it was a defect in the pleadings as well as in the relief sought before the CAT and in the writ petition. But still, they attempted to contend that the said rule appeared to be discriminatory and therefore the High Court has rightly exercised the jurisdiction while passing the impugned order.

The bench, however, set aside the order of the High Court declaring Rule 4(b) as unconstitutional on the ground of lack of any challenge.

The court also noted the promotion policy, known as flexible complementing scheme (FCS) as recommended by the fifth pay commission has been modified, pursuant to the recommendations of the sixth pay commission by Office Memorandum of September 10, 2010. Further, by Office Memorandum of September 19, 2016, the Ministry of Electronics and Information Technology has issued a personnel policy for Group ‘A’ S&T officers and its organisations. The respondent has already been promoted and attained the age of superannuation.

The bench, however, clarified that it has not expressed any view regarding the validity of the Rules on merits, one way or the other and, therefore, this judgment will not come in the way of any court dealing with the issue of the vires of the Rules in any pending proceeding or in any proceeding that may be initiated afresh.

Case Title: Manjurani Routray & Ors Vs. Union of India & Ors.

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