Public Jobs Remain Elusive Even After 80 Years of Independence: Employment Must Be Based on Merit And Merit Alone, Upholds invalidation of Bihar’s Hereditary Chaukidar Rule: Supreme Court
Sanchayita Lahkar
The Supreme Court of India Division Bench of Justice Dipankar Datta and Justice Manmohan dismissed a special leave petition challenging a High Court judgment that invalidated a provision in the Bihar Chaukidari Cadre (Amendment) Rules, 2014. The Court upheld the High Court’s decision to strike down a proviso allowing the nomination of dependent kin of retiring chaukidars for appointment, holding that public employment must be based on merit and equal opportunity. The Bench confirmed that subordinate legislation violative of constitutional rights may be declared void by a Constitutional Court, even in the absence of a formal challenge, in rare and exceptional cases.
The petition was filed by the Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division), a registered trade union, challenging a judgment dated 25 February 2023 of the Division Bench of the High Court of Judicature at Patna. The High Court, while dismissing an intra-court appeal filed by a private respondent, struck down the proviso to sub-rule (7) of Rule 5 of the Bihar Chaukidari Cadre (Amendment) Rules, 2014.
The challenged proviso allowed a serving chaukidar to nominate a dependent kin one month prior to retirement for appointment in his place. The private respondent had sought appointment under this rule but was denied the benefit as the nomination was submitted after the retirement of his father. A writ petition filed by the respondent was dismissed by a Single Judge, and that dismissal was upheld by the Division Bench, which further proceeded to strike down the rule on constitutional grounds.
The present petitioner, though not a party to the High Court proceedings, approached the Supreme Court through a special leave petition claiming that the invalidation of the rule affected its members, many of whom were chaukidars seeking to avail the benefit of the said provision. The petitioner argued that the High Court had exceeded its jurisdiction by invalidating a rule that had not been formally challenged and without hearing the affected parties.
According to the petitioner, the proviso under Rule 5(7)(a) was consistent with state practice and provided a mechanism for continuity in chaukidari service, particularly in rural or Naxal-affected areas. It also contended that the High Court’s decision violated principles of natural justice, as no notice had been issued to the petitioning union or its members.
The State of Bihar and other respondents, though formally represented, did not challenge the High Court’s ruling before the Supreme Court. The petitioners relied on the argument that the High Court’s action in invalidating a rule not under challenge lacked procedural propriety and prejudiced those relying on it for employment.
The Supreme Court considered the constitutional framework governing public employment and recorded: “Public employment has to be preceded by (i) an appropriate advertisement inviting applications from eligible aspirants... and (vii) then proceeding to offer appointments from the merit list as well as from the waiting list... giving due regard to merit — and merit alone.”
The Court stated: “The Constitution of India shuns appointment in public service by succession. In other words, employment should not flow as if it were heritable.”
Referring to multiple precedents, including Gazula Dasaratha Rama Rao v. State of Andhra Pradesh AIR 1961 SC 564 and Surender Paswan v. State of Bihar (2010) 6 SCC 680, the Court recorded that “this Court has consistently deprecated the practice of appointment in public service as if public offices are heritable.”
On the High Court’s authority to strike down the rule in the absence of a formal challenge, the Bench stated: “While not suggesting for a moment that the course of action which the Division Bench adopted in this case can routinely be adopted, we see no reason as to why the power to suo motu declare a subordinate legislation invalid... should not be conceded to be within the vast reserve of powers of the Constitutional Courts.”
Clarifying the limits of this power, the Court observed: “Such power has to be exercised sparingly and with due care, caution and circumspection.”
The judgment drew a clear distinction between primary and subordinate legislation: “We have deliberately kept primary legislation out of the sweep of such power... a subordinate legislation is seen as removed from the democratic process... and hence, a more rigorous scrutiny in appropriate cases may not be inapt.”
On the allegation of breach of natural justice, the Court stated: “Although… such members did not have any audience before the High Court, we have given the fullest opportunity to Mr. Sankarnarayanan to argue the case of the petitioning union.”
The Court further stated: “No right, far less any enforceable right of the members, has been infringed by reason of the impugned judgment and order.”
The Bench addressed the practical implications and clarified: “Since the offending proviso does not conform to Article 16 of the Constitution, the plinth of the petitioning union’s attack to the impugned judgment and order crumbles.”
The Court held: “We are, thus, of the considered opinion that the impugned order of the Division Bench does not warrant any interference.”
On the propriety of striking down the rule without a formal challenge, the Court stated: “The Division Bench... arrived at a correct conclusion that the same was void and its exercise of powers to quash it cannot be a subject of assail on the ground of it being beyond the jurisdiction of the High Court.”
On the High Court's exercise of suo motu review, the Court recorded: “A writ court, when it finds its conscience to be pricked in a rare and very exceptional case by the patent unconstitutionality of a subordinate legislation... may... grant a declaration as to unconstitutionality.”
Upholding the constitutional limits on appointments by descent, the Bench concluded: “While it is true that a dependent kin of an employee cannot be favoured with a public employment... the fact that his father is/was an existing/a former employee of the same employer should make no difference while considering the candidature purely based on merit.”
The Court further held: “That is, however, not the case here. No right, far less any enforceable right of the members, has been infringed by reason of the impugned judgment and order. For reasons assigned above, since the offending proviso does not conform to Article 16 of the Constitution, the plinth of the petitioning union’s attack to the impugned judgment and order crumbles. Therefore, even if the petitioning union did not have any audience before the High Court, it matters less since its members’ grievance has duly been considered by us.”
Advocates Representing the Parties
For the Petitioners: Mr. Gopal Sankaranarayanan, Senior Advocate; Mr. Liz Mathew, Senior Advocate; Mr. N.K. Mody, Senior Advocate; Ms. Ishita M. Puranik, Advocate; Ms. Jigisha Agarwal, Advocate; Mr. Prabudhha Singh Gour, Advocate; Ms. Mallika Agarwal, Advocate; Mr. Madhav Gupta, Advocate; Mr. Praveen Swarup, Advocate-on-Record
For the Respondents: Mr. Azmat Hayat Amanullah, Advocate-on-Record; Ms. Rebecca Mishra, Advocate; Mr. Alok Kumar Sinha, Senior Advocate; Mr. Niteen Kumar Sinha, Advocate-on-Record; Mr. Maneesh Saxena, Advocate; Mr. Dushyant Pratap Singh, Advocate; Mr. Saurabh Kumar, Advocate
Case Title: Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) v. State of Bihar and Others
Case Number: Special Leave Petition (Civil) No. 18983 of 2023
Bench: Justice Dipankar Datta and Justice Manmohan
[Read/Download order]
