It appears that the Supreme Court judgment refers to executive instructions and notstatutory provisions. That makes a lot of difference.
With regards, M. Rama Rao ________________________________ From: Sunil Ahya <[email protected]> To: [email protected] Sent: Mon, 16 November, 2009 12:03:47 AM Subject: [rti_india] Appointment of ICs - SC uphelds Full bench HC quashing appointments of 1600 Police Constables without Advertising - 2001 Subject: Supreme Court upheld the judgment of Full Bench of Punjab and Haryana High Court quashing the appointments of 1600 Police Constables made without advertising the vacancies. Appointment of Information Commissioners without Advertising for the post, despite discretionary powers conferred by virtue of Sec. 12(3) of the RTI Act, is illegal, because such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also "satisfy the mandatory requirement of the Statute i.e Article 14 & 16(1). Relevant Articles, Sections & Decisions : Article 12, 14 & 16(1) of the Constitution of India Sec. 12(3) & 12 (5) of RTI Act, 2005 And Judgments from Supreme & High Courts. Brief Details: 1) Definition of State noun (Country) as per Dictionary (Ref: Cambridge Dictionary) i. A country or its government. ii. Apart of a large country with its own government 2) Article 12 of the Constitution of India defines: Quote: >In this Part, unless the context otherwise requires, “the State’’ includes the >Government and Parliament of India and the Government and the Legislature of >each of the States and all local or other authorities within the territory of >India or under the control of the Government of India. >Unquote 3) Article 14 Titled - Equality before law. Quote: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. >Unquote 4) Article 16 Titled: Equality of opportunity in matters of public employment. Quote: >16. (1) There shall be equality of opportunity for all citizens in matters >relating to employment or appointment to any office under the State. >Unquote For definition of State please refer to Article 12. 5) Excerpt from a Supreme Court judgment: Rule of equality is an antithesis of any kind of arbitrariness or private gain, whim or caprice of any individual. Even if the State has the discretionary power to issue executive instructions, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also "satisfy the mandatory requirement of the Statute. Hence: i) Sec. 12(3) of the RTI Act defines & confers the power on the esteemed team for selecting an Information Commissioner. ii) Sec.12(5) of the RTI Act broadly lays down the categories and criteria for the same. iii) But as per the above excerpt from a Supreme Court judgment; despite the discretionary power conferred by virtue of Sec. 12(3) of the RTI Act, the team selecting the IC have to satisfy the mandatory requirement of the Statute and hence have to take into account the provisions of Article 12 read alongwith Article 14 & Article 16 of the Constitution of India before making the appointment of an IC. Some Judgments / Decisions on Article 14 & 16 of the Constitution of India: i) State of Haryana and Ors. v. Piara Singh and Ors., AIR 1992 SC 2130, the apex Court held that even for a short-term vacancy, ad hoc appointment should be made by adopting a procedure consonance with the provisions of Articles 14 and 16 of the Constitution of India. ii) Similar view has been reiterated in Prabhat Kumar Sharma v. State of U.P., AIR 1996 SC 2638 ; J.A.S. Inter College, Khurja v. State of U.P., (1996) 1O SCC 71 ; and Delhi Development Horticulture Employees- Union v. Delhi Administration, Delhi and Ors., AIR 1992 SC 789. iii) In Excise Superintendent v. K.B.N. Visweshwara Rao, (1996) 6 SCC 216, the Supreme Court impliedly over-ruled its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors., (1987) 3 SCC 308, wherein it had been held that appointment by calling the names from Employment Exchange was valid. The Court took the view that in addition to calling the names from the Employment Exchange, vacancy has to be advertised in the local newspapers and the appointment only by calling the names from the Employment Exchange will be hit by the provisions of Articles 14 and 16 of the Constitution of India for the reason that those persons who could not get their names registered with, the Employment Exchange cannot be discriminated merely on that ground. iv) In Sita Ram Mali v. State of Rajasthan, 1994 (2) WLC 177, the Rajasthan High Court deprecated the practice to appoint even on daily wages without advertising the temporary/ad hoc vacancies, observing as under : "Making appointment on daily wages without the availability of the post and without following the provisions of Articles 14 and 16 suffers from patent illegality. Apparently for the reasons which are only extraneous, the Officers of the Department have given appointments on daily wages to few favoured. v) In Suresh Kumar and Ors. v. State of Haryana and Ors., 2001 AIR SCW 2545, the Supreme Court upheld the judgment of Full Bench of Punjab and Haryana High Court quashing the appointments of 1600 Police Constables made without advertising the vacancies.The High Court had reached the conclusion that the process of selection stood vitiated because there had been no advertisement and no due publicity inviting applications from the eligible candidates at large. vi) Similarly, in Surinder Singh and Ors. v. State of Haryana and Ors., JT 2001 (5) SC 461, the apex Court quashed the appointments made over and above the number of vacancies duly advertised being violative of Articles 14 and 16 of the Constitution as candidates who possessed eligibility subsequent to the advertisement had no chance to be considered for recruitment. Any appointment made without advertising the vacancy remains unenforceable being violative of the mandate of the Articles 14 and 16 of the Constitution and does not require to be protected and such an appointee cannot claim the relief of regularisation. [Vide State of Mysore and Anr. v. S.V. Narayanappa, AIR 1967 SC 1701 ; R.N. Nanjundappa v. T. Thimmaiah and Anr., AIR 1972 SC 1767; B.N. Nagarajan and Ors. v. State of Karnataka and Ors., AIR 1979 SC 1676; State of Himachal Pradesh v. Suresh Kumar Verma and Anr., AIR 1996 SC 1565; State of M.P. and Anr. v. Dharam Bir, (1998) 6 SCC 165 ; Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan, AIR 2003 SC 1713; State of Haryana and Anr. v. Tilak Raj and Ors., AIR 2003 SC 2658; Haryana Tourism Corporation Ltd. v. Fakir Chand and Ors., AIR 2003 SC 4465 ; and Sultan Sadik v. Sanjay Raj Subba and Ors., AIR 2004 SC 1377]. vii) In Indra Sawhney II v. Union of India, AIR 2000 SC 498, the Hon'ble Supreme Court reiterated the law laid down by it time and again that Articles 14 and 16(1) of the Constitution of India provide for rule of equality which is the basic feature of the Constitution and, therefore, there can be no deviation from the principles enshrined therein while making the appointment. Rule of equality is an antithesis of any kind of arbitrariness or private gain, whim or caprice of any individual. Even if the State has the discretionary power to issue executive instructions, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also "satisfy the mandatory requirement of the Statute. Warm Regards, Sunil Ahya.-- It is not always the same thing to be a good man and a good citizen - Aristotle The INTERNET now has a personality. YOURS! See your Yahoo! Homepage. http://in.yahoo.com/
