'Executive Can't Override Law': Supreme Court Quashes TN Order Granting SI Seniority
The Supreme Court has said the government cannot issue executive instructions in contravention of the statutory rules, as executive instructions can supplement a Statute or cover areas which the law does not extend, but they cannot run contrary to the statutory provisions or whittle down their effect.
A bench of Justices B V Nagarathna and Satish Chandra Sharma said the state government amending the recruitment rules with retrospective effect is certainly violative of Articles 14, 16, and 21 of the Constitution of India.
"A statute which takes away the right of an individual with retrospective effect deserves to be set aside," the bench held.
The apex court quashed the Tamil Nadu government order of November 21, 2017, which granted seniority to the departmental candidates in the police department to the post of Sub Inspector over and above the candidates who had been recruited from the open market.
The bench struck down the amendment to the rule for being violative of Articles 14, 16, and 21 of the Constitution. The court directed the state government authorities to issue a fresh gradation list solely on the basis of marks obtained by candidates in the examination on the basis of which they had been recruited to the services.
Court said all seniority lists right from 1995 deserved to be re-cast by assigning proper seniority to the candidates who had been appointed from the open market as well as from in-service candidates solely on the basis of ranks assigned to the selected candidates by the appointing authority on the basis of marks obtained by them in the examination on the basis of which they had been selected and appointed to the post of Sub-Inspector of Police.
The bench directed that the State Government should hereinafter conduct one common examination for 100% direct recruitment for appointment to the post of Sub-Inspector of Police which includes 80% from open market and 20% from in-service candidates and their seniority should be assigned based upon the marks obtained by individual candidates/rank assigned by appointing authority in the list of selected candidates.
On petitions against the Madras High Court's refusal to quash such promotions, the bench said there was no other process that could be followed in the present case.
The court noted that the state government without amending the recruitment rules right from 1995, continued with the appointing process under the direct recruitment category by appointing in-service candidates.
"In the considered opinion of this court, such a recourse was not available to the state government without amending the recruitment rules," the bench said.
However, in light of the fact that the persons had been promoted in 1995 and thereafter also, the apex court was not touching their promotion orders, the bench added.
The court noted that the state government without amending recruitment rules till 2017, continued to appoint Sub-Inspectors of Police from Head Constables serving the police department and all such recruitments were made without amending the recruitment rules. The recruitment rules were amended only in the year 2017.
"In the considered opinion of this court, the amendment to the recruitment rules in the year 2017 to the extent it provides for 20% reservation under the direct recruitment category to the inservice candidates, does not warrant any interference," the bench said.
However, the amendment brought vide G.O. dated 21.11.2017 amending Rule 25(a) of the 1955 Rules, which provides for grant of seniority to all in-service candidates over and above candidates recruited from the open market is certainly violative of Articles 14, 16 and 21 of the Constitution and deserves to be struck down by this court, the bench added.
The Madras High Court dismissed writ petitions of direct recruits, holding that in-service candidates had to be given preference, especially as they were experienced people and had learnt the nuances in the police department.
Out of 100 marks, the appellant Ranjith Singh had secured 79.10 and he was the first rank holder; the appellant Premanand had secured 78.60, Jawahar had secured 77.56, and Srinivasan had secured 77.21.
The other appellants had also secured a very high percentage of marks, and the 147 candidates selected from the department as against 20% quota had secured lower marks than the candidates who were selected from the open market. An example of one Santhakumari who was a departmental candidate was mentioned as he had secured 69.27 marks. Unfortunately, Santhakumari had been placed over and above persons who had obtained higher marks, the court noted.
The appellants contended that once the recruitment was from the open market i.e. direct recruitment, merely because a person had worked in the department earlier, such person could not steal a march over direct recruits even though he was lower in merit.
They said that the concession of granting participation in 20% of the vacancies reserved for direct recruitment was itself bad in law, however, the direct recruits under the 80% quota were not aggrieved by it. The only grievance was that the seniority had to be maintained as per the marks obtained in the examination, through which persons had been selected to the post of Sub-Inspectors of Police. They said further fixation of inter-se seniority could not have been given effect to, by an executive order or circular, as had been done by the State Government from time to time.
On its part, the State government said in the absence of statutory rules, the government was empowered to issue administrative instructions which had a binding force even in the absence of a notification in the official Gazette and the Government was entitled to bring an amendment at any point of time.
The departmental candidates contended that the plea raised by the appellants before the apex court that executive instructions could not over-ride the statutory rules, did not have legs to stand as amendment had been carried out in the recruitment rules also. They said the question of quashing the amendment under the 1955 Rules did not arise as it would result in unsettling the applecart and would also lead to the reversion of a large number of in-service candidates.
Among its directions, the court directed the respondents to recast with 60 days all gradation lists issued from time to time in respect of direct recruitment which included 20% in-service candidates recruited directly to the post of Sub-Inspector of Police by granting seniority on the basis of marks obtained in the qualifying examination/selection process.
Without reverting any officer who had been given further promotion on the basis of the seniority list already issued by the Department from 1995; the court said the respondent State should not issue any promotion order in respect of departmental candidates till the revised seniority list is issued.
The court ordered after issuance of revised seniority list, the State Government should consider the cases of all departmental candidates for promotion to the next higher post keeping in view the promotions granted to the juniors (based upon the revised seniority list) and the exercise of granting promotions be concluded in respect of the direct recruitees (80%) quota within a period of two months from the date of issuance of revised seniority list.
The bench also said the direct recruits, in case they are found fit for promotion to the next higher post, will be entitled for notional promotion, fixation of seniority and all other consequential benefits except back wages on grant of promotion to the next higher post.
Case Title: R Ranjith Singh & Ors Vs The State of Tamil Nadu & Ors
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