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CASE NO.: Appeal (civil)  2903 of 2001

PETITIONER: R.S. Garg

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 27/07/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G E M E N T

S.B. SINHA, J.   

       This appeal is directed against a judgment and order dated 22.5.2000  passed by the High Court of Judicature at Allahabad in Writ Petition  No.377(SB)/97, whereby and whereunder the writ petition filed by the  appellant herein questioning an order of promotion dated 24.5.1997 passed  in favour of respondent No.3 herein was dismissed.   Both the appellants and the said 3rd respondent were appointed on an  ad hoc basis to the post of Inspector, re-designated as Assistant Director of  Factories, on or about 3.1.1972 and 17.1.1987 respectively.  Whereas the  appointment of the appellant herein was in terms of Uttar Pradesh Labour  Department (Factories and Boilers Division) Officers Service (Second  Amendment) Rules, 1992 (’1992 Rules’, for short) indicating selection  through Public Service Commission; the 3rd respondent was appointed  purely on ad hoc basis till the selection of a regular candidate by the Public  Service Commission and joining the post or till such time his services were  required by the department.  The appellant was confirmed in his post on  13.5.1978, whereas the 3rd respondent purported to have been appointed on a  regular basis without undergoing the requisite selection process as provided  for in the 1992 Rules and without being recommended therefor by the Public  Service Commission.  The State of U.P., by an order dated 15.11.1995  appointed the 3rd respondent as Assistant Director Factories on regular basis  with effect from the date of issuance of the order providing that he would be  on probation for a period of two years.  Indisputably, there were six posts of  Deputy Director of Factories in the State of U.P., out of which four posts  were designated as Deputy Director of Factories (Administration), one as  Deputy Director of Factories (Chemical) and one as Deputy Director of  Factories (Engineering).  The post of Assistant Director of Factories was the  feeder post.  As noticed hereinbefore, both the posts of Assistant Director of  Factories, formerly known as Inspector of Factories, and Deputy Director of  Factories (Admn.) were to be filled up through the Public Service  Commission.  It is furthermore not in dispute that the educational  qualification required for appointment to the post of Deputy Director  (Chemical), vis-‘-vis, Deputy Director of Factories (Admn.) and Deputy  Director of Factories (Engineering) are different.  It is also not in dispute  that out of the four posts of Deputy Director of Factories (Admn.) one is to  be filled up by an officer belonging to reserved category.

The wife of the 3rd respondent, Smt. Prem Lata, made a representation  to the Chief Minister of the State of U.P. that her husband, who belonged to  Scheduled Caste, was victimized and was not being promoted to the post of  Deputy Director of Factories, whereupon instructions were issued to the  Principal Secretary, Labour, to intimate to her as to why the promotion of 3rd

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respondent was being delayed.  A proposal was made for converting the said  post of Deputy Director of Factories (Chemical) to the post of Deputy  Director of Factories (Admn.) upon obtaining sanction from the Chief  Minister, although, the concurrence of the Finance Department was not  obtained therefor.  A note-sheet to the aforementioned effect on 15.4.1997  was drawn which is to the following effect:

"The post of Deputy Director Factories (Chemical)  in Labour Commissioner organisation is proposed to be  converted/created as deputy director, Factories  (Administration).  Finance Department did not approve  the proposal.  This conversion will not entail any  financial loss and it would provide promotional avenues  for candidates of scheduled castes.  Since Finance  Department is also with the Chief Minister, therefore,  Chief Minister may give approval on this proposal.

2-      For the afore said post so converted, the candidates  available for promotion are not completing qualifying  service of five years.  Sri Bharti has been in service since  1987-88 with interruption and since 1989 without  interruption and upto 1995 on adhoc basis and in regular  service since 15.11.95.  According to the provisions of  U.P. Reservation Act 1994 relaxation may be given to  fulfil reservation quota.  Therefore, it is proposed to give  relaxation in qualifying service for this aforesaid post.   Personnel Department is under Hon’ble C.M.  Therefore  it is requested that he may approve the proposal to give  relaxation."

3-      Para 1 and 2 for approval please.

sd/-                                                                          15.04.97                                                                        Chandra Pal                                                                          seal                                                               Principal Secretary                                                                      Labour Department                                                                   U.P. Shasan."

The said note-sheet was placed before the then Chief Minister, State  of U.P. on 20.4.1997 and was approved on 21.4.1997.  The Principal  Secretary issued a letter to the Labour Commissioner, U.P. that the  Governor, after due consideration, directed conversion of one temporary  post of Deputy Director of Factories (Chemical) into the post of Deputy  Director of Factories (Admn.).  It was stated:   

"In pursuance of the above order the necessary  amendment in the UP Factories in Boilers Service Rules  1980 shall be issued later on."

     The 3rd respondent, pursuant to the purported conversion of the  said post, was promoted as Deputy Director of Factories (Administration).   The appellant herein filed a writ petition questioning the same before the  Lucknow Bench of the High Court of Judicature at Allahabad praying for  the following reliefs:

"(i)   to issue a writ, order or direction in the nature of  certiorari quashing the impugned order dated 25th April,  1997 promoting the Respondent No.3 on the post of  Deputy Director of Factories (Administration) as  contained in Annexure No.1 to this writ petition;

(ii)   to issue a writ, order or direction in the nature of

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certiorari quashing the order dated 15th November, 1995  by which the Respondent No.3 was appointed on the post  of Assistant Director of Factories on regular basis, as  contained in Annexure No.5 to this writ petition;

(iii)   to issue a writ, order or direction in the nature of  quo-warranto requiring the respondent No.3 to show  cause as to how he is holding the post of Deputy Director  of Factories (Administration); (iv)    to issue a writ, order or direction in the nature of  Mandamus commanding the respondents to consider the  petitioner for promotion on the post of Deputy Director  of Factories (Administration);

(v)     to issue any other writ, order or direction which  this Hon’ble Court may deem just and proper in the  circumstances of the case;

(vi)    to allow this writ petition with all costs in favour  of the petitioner."            The said writ petition had been dismissed by the impugned judgment.   The contentions raised before the High Court as also before us, on behalf of  the appellant are:

       (i)     The 3rd respondent was illegally appointed as Assistant Director  of Factories as his services were regularized without referring the matter to  the Public Service Commission as was required by Rule 5(iii) of the 1992  Rules; (ii)    The order of promotion passed in favour of the 3rd respondent  was mala fide;

(iii)   The purported conversion of the post of Deputy Director of  Factories (Chemical) to Deputy Director of Factories (Admn.) being  contrary to the 1992 Rules and having been done with a view to favour the  3rd respondent, was illegal;   

(iv)    The 3rd respondent was not eligible to be promoted, as he did  not complete 5 years’ substantive service on the date of selection, i.e., in the  year 1997 in terms of Rule 5(iii);

(v)     Reservation to the post in favour of a Scheduled Castes was illegal  and unjust by reason thereof the percentage of reservation in promotion  would be raised from 21% to 33%.

       (vi)    The post of Deputy Director of Factories (Administration) has  already been occupied by a candidate belonging to the reserved category,  namely Shri Ghanshyam Singh.

On the other hand, the contentions raised on behalf of the 3rd  respondent herein are :

       (i)     The appointment and regularization of 3rd respondent had never  been challenged by the appellant nor any relief was sought for in that behalf  in the writ petition and, thus, the same should not be allowed to be raised  before this Court.  In any event, the same could not have been challenged  collaterally after 10 years’ of initial appointment and 2 years after the  regularization of the services of the said respondent;

       (ii)    The appellant should have impleaded the Chief Minister and  Principal Secretary in their personal capacities as allegation of favoritism  was made against them.  In any event, the appointment having been made by  the State of U.P. in terms of 1992 Rules of business upon selection by the  Departmental Promotion Committee; the order of promotion was valid in  law;

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(iii)   Appointment of the 3rd respondent was made bona fide;                     (iv)    No relief having been sought for questioning conversion of the  post in the writ petition, no grievance in that behalf can be permitted to be  raised herein.  Furthermore, the appellant himself having claimed for  promotion to the said post, he cannot be permitted to approbate and  reprobate;

       (v)     Rule 5(iii) should be construed in a reasonable manner and read  fairly.  If a broad meaning thereto is given, the same would imply experience  of 5 years in the post and not 5 years’ experience after having substantively  appointed on the post of Assistant Director and so construed, the High Court  must be held to have rightly opined that there had been no violation of Rule  5(iii) of the said 1992 Rules;

       (vi)    Reservation having been provided in terms of the Government  orders issued from time to time, the issue of reservation exceeding 21% of  posts in the cadre does not arise and there had, thus, been no breach of  Articles 14 and 16 of the Constitution;                     (vii)   In any event, it is not a fit case where this Court should exercise  its discretionary jurisdiction under Article 136 of the Constitution of India in  view of the fact that the 3rd respondent had been working in the promoted  post for about 9 years and he is to retire in May, 2007.

The State of Uttar Pradesh, in exercise of its powers conferred by the  Proviso to Article 309 of the Constitution of India enacted the Uttar Pradesh  Inspector of Boilers and Factories Service Rules, 1980 (’1980 Rules’, for  short).  Direct recruitment has been defined in Rule 2(g) to mean recruitment  otherwise than by promotion, transfer or deputation.  Rule 4 provides for  strength of service of each category of posts envisaged therein, meaning  such categories as may be determined by the Governor from time to time.   Sub-Rule (2) of Rule 4 provides that the strength of service was to be as  specified until orders varying the same have been passed under Sub-Rule (1)  as specified in Appendix ’A’ thereto.  Rule 5 of the 1980 Rules provides for  source of recruitment; clause (iii) thereof refers to the post of Deputy Chief  Inspector of Factories (Administration), which is in the following terms:

"By promotion, on the basis of seniority subject to  the rejection of unfit, through the Commission from  amongst the permanent Inspectors of Factories, who have  put in at least five years of continuous service including  temporary and officiating service."

Rule 6 speaks of reservation stating that the same shall be in  accordance with the orders of the Government in force at the time of  recruitment.  Rule 9 provides for academic qualifications and experience,  which the candidate for direct recruitment is required to possess, and as  specified in Appendix ’B’ to the 1980 Rules.  Rule 15 provides for  procedure for recruitment, whereas Rule 16 provides for recruitment by  promotion, which is in the following terms:

"16. Procedure for recruitment by promotion.-  Recruitment by promotion to various categories of posts  in the service shall be made in accordance with the  general rules made by the Governor laying down the  procedure for promotion in consultation with the  Commission.  The criteria for promotion shall be as  indicated against each in rule 5 to these rules.

Note \026 The rules laying down the procedure in  force at the commencement of these rules are "Uttar  Pradesh Promotees by Selection in Consultation with  Public Service Commission (Procedure) Rules, 1970" as

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amended from time to time." In terms of Rule 22, separate seniority lists are to be maintained for  each category of posts in the service.   

Rule 28 speaks of relaxation, which is in the following terms:

"28. Relaxation from other conditions of  service.-  Where the Governor is satisfied that the  operation of any rule regulating the conditions of service  of the members of the service causes undue hardship in  any particular case, he may, in consultation with the  commission where necessary, notwithstanding anything  contained in the rules applicable to the case, by order,  dispense with or relax the requirements of that rule to  such extent and subject to such conditions as he may  consider necessary for dealing with the case in a just and  equitable manner."  

The matter relating to reservation is governed by The Uttar Pradesh  Public services (Reservation for Scheduled Castes, Scheduled Tribes and  Other Backward Classes) Act, 1994 (’the Act’, for short).  Section 3 thereof  provides for reservation for direct recruitment in terms whereof 21% of the  posts is reserved for Scheduled Caste candidates.  By a Government order  dated 10.10.1994, reservation to the same extent was permitted.  However,  the roster in regard thereto was prepared stating that the 1st post and the 6th  post shall be reserved for the scheduled caste candidate.  The seniority list  was published on 15.11.1995 wherein the name of the 3rd respondent was  shown at serial number 6.  It is not in dispute that the name of the appellant  figured at serial number 6 in the seniority list published on 28.4.1989.  At  that point of time, the 3rd respondent was out of reckoning.  The appointment  of the 3rd respondent was on an ad hoc basis.  It is not in dispute that while  making such appointment the provisions of the 1992 Rules have not been  complied with.  His services were sought to be regularized only in the year  1995.   

Section 8 of the Act reads thus:

"8.     (1) The State Government may, in favour of the  categories of persons mentioned in sub-section (1) of  section 3, by order, grant such concessions in respect of  fees for any competitive examination or interview and  relaxation in upper age limit, as it may consider  necessary.

       (2)  The Government orders in force on the date of  the commencement of this Act, in respect of concessions  and relaxations, including concession in fees for any  competitive examination or interview and relaxation in  upper age limit and those relating to reservation in direct  recruitment and promotion, in favour of categories of  persons referred to in sub-section (1), which are not in  consistent with the provisions of this Act, continue to be  applicable till they are modified or revoked, as the case  may be."      

It is not disputed that even at the time of regularizing the services of  the 3rd respondent the matter was not referred to the Public Service  Commissions, although, for the purpose of disposal of this matter, it may not  be necessary to delve deep into the question as regards the validity or  otherwise of the said action on the part of the State of U.P., we may notice  that a Constitution Bench of this Court in Secretary, State of Karnataka &  Ors. vs. Umadevi & Ors. [2006 (4) SCALE 197], has emphasized on  compliance of requirements of the constitutional scheme in making the  appointments as adumbrated in Articles 14 and 16 of the Constitution of

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India.  The Court emphasized that even in the matter of regularization of  service the provisions of Articles 14 and 16 of the Constitution cannot be  given a complete go-by.  The extent of the power of the State to make  relaxation of the rules also came up for consideration of the Constitution  Bench.  The Constitution Bench referred to a recent decision of this Court in  Union Public Service Commission Vs. Girish Jayanti Lal Vaghela &  Ors. [2006 (2) SCLAE 115], wherein it was observed:

"The main object of Article 16 is to create a  constitutional right to equality of opportunity and  employment in public offices.  The words "employment"  or "appointment" cover not merely the initial  appointment but also other attributes of service like  promotion and age of superannuation etc.  The  appointment to any post under the State can only be  made after a proper advertisement has been made  inviting applications from eligible candidates and holding  of selection by a body of experts or a specially  constituted committee whose members are fair and  impartial through a written examination or interview or  some other rational criteria for judging the inter se merit  of candidates who have applied in response to the  advertisement made.  A regular appointment to a post  under the State or Union cannot be made without issuing  advertisement in the prescribed manner which may in  some cases include inviting applications from the  employment exchange where eligible candidates get their  names registered.  Any regular appointment made on a  post under the State or Union without issuing  advertisement inviting applications from eligible  candidates and without holding a proper selection where  all eligible candidates get a fair chance to complete  would violate the guarantee enshrined under Article 16 of  the Constitution."

In Suraj Parkash Gupta & Ors. vs. State of J&K & Ors. [(2000) 7  SCC 561], this Court opined:

"The decision of this Court have recently been  requiring strict conformity with the Recruitment Rules  for both direct recruits and promotees.  The view is that  there can be no relaxation of the basic or fundamental  rules of recruitment."

Even the State cannot make rules or issue any executive instructions  by way of regularization of service.  It would be in violation of the rules  made under Article 309 of the Constitution of India and opposed to the  constitutional scheme of equality clauses contained in Articles 14 and 16.   

{See also A. Umarani vs. Registrar, Cooperative Societies & Ors.,  [(2004) 7 SCC 112] and National Fertilizers Ltd. & Ors. vs. Somvir  Singh [(2006) 5 SCC 493].}

The significant question, which now arises, is interpretation of Rule  5(iii) of the 1992 Rules in terms whereof for the purpose of promotion to the  post of Deputy Director of Factories (Admn.) at least 5 years service as such  from the first day of the year of recruitment is imperative.  For the  aforementioned purpose, the said rule as was existing prior to 1992 and  amendment made in 1992 may be noticed which reads as under:

OLD RULE (Existing)

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NEW RULE (Substituted)                                                                  5(iii) Deputy Director of Factories         (Administration) -                                                              5(iii) Deputy Director of Factories          (Administration) \026

By promotion on the basis of  seniority subject to the rejection of  unfit, through the Commission  from amongst the Permanent  Assistant Director of Factories,  who have put in at least five years  of continuous service including  temporary and officiating service.

By promotion on the basis of  seniority subject to the rejection of  the unfit, through the Commission  from amongst substantively  appointed Assistant Director of  Factories, who have put in at least  five year service as such on the  first day of the year of recruitment.

The aforesaid Rule 5(iii), thus, requires that on the date of selection,  the candidate should have been substantively appointed as Assistant Director  of Factories.  It does not speak of experience in the service alone.  The  submission of Mr. Dinesh Dwivedi that the words "as such" referred to 5  years’ experience of working in the post and not 5 years’ experience in the  substantive capacity cannot be accepted.  An ad hoc employee who has been  appointed in violation of the service rules did not hold any post.  His  experience in the post would mean experience gathered by him after his  appointment in the substantive capacity.  It is trite law that for the purpose of  reckoning seniority the ad hoc services would be taken into consideration  only if prior to the appointment of the employee the authorities had  complied with the statutory requirements of selecting the candidate.  At the  relevant point of time, the rule provided for selection through Public Service  Commission.  The same having not been done, the appointment of the 3rd  respondent was void ab initio.  The question of regularization of his services,  therefore, did not arise.

In State of Madhya Pradesh & Anr. vs. Laxmishankar Mishra  [AIR 1979 SC 979], whereupon Mr. Dwivedi placed strong reliance, the  appointment was not required to be made in terms of the rules made under  Article 309 of the Constitution of India.  The question raised therein was  governed by the M.P. Local Authorities School Teachers (Absorption in  Government Service) Rules, 1964, which provided for absorbing teachers  serving in Middle Schools and Primary Schools managed by local  authorities in Government service.  It was in the aforementioned fact  situation this Court opined that every High School or Higher Secondary  School must of necessity have the post of Head Master/Principal and it was  nowhere suggested that there would not be a post of Head Master/Principal.   The appointment by the authorities of the schools which were situate in the  area being ruled by a Princely State, no statutory rule required to be  complied with.  We, therefore, do not subscribe to the views of the High  Court that even experience gained by the 3rd respondent while acting in ad  hoc capacity would subserve the requirements of Rule 5(iii) of the 1992  Rules.  The 3rd respondent, from 1984 to 1995, did not hold even any  temporary or any officiating post.  The rule of seniority would, thus, be the  usual rule for promotion to the post of Deputy Director.  The only criteria

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which appears to have been laid down by reason of 1992 amendment, is that  in stead and place of the term ’permanent’, the expression ’substantively  appointed’ has been inserted.  The 3rd respondent was substantively  appointed only in 1995, prior whereto he was not holding any post.  A  person may not be a permanent employee for the purpose of gaining  experience as the experience gained by him even during his temporary  appointment may also be specific appointment.  The expression "as such"  clearly is referable to the expression "substantively appointed".  It has  nothing to do with the period of five years as was submitted by Mr.  Dwivedi.  The said Rule read in its entirety would mean that the candidate  for promotion must be appointed substantively and when so appointed, he  has to put in at least five years service as such.  The expression "first day of  the year of recruitment" is also of significance.  By reason of ad hoc  appointment de’hors the rules, nobody is recruited in the service in the eyes  of law.  The expression "recruitment" would mean recruitment in  accordance with the rules and not de’hors the same.  Absence of experience  in substantive capacity is not a mere irregularity in this case.  It would not be  a mere irregularity, when a person not eligible therefor would be considered  for promotion.  It may be that for the purpose of direct appointment,  experience and academic qualifications are treated to be at par, but when an  eligibility criteria has been provided in the Rules for the purpose of  promoting to a higher post, the same must strictly be complied with.  Any  deviation or departure therefrom would render the action void.

In Ram Sarup vs. State of Haryana & Ors. [AIR 1978 SC 1536],  whereupon Mr. Dwivedi placed strong reliance, the appointment of the  appellant therein as Labour-cum-Conciliation Officer was found to be  irregular.  In that view of the matter, the same was not void.  This Court  opined that the said appointment to be irregular, as he did not possess the  requisite experience at the relevant time.  His services had been regularized  and, thus, he became entitled to be considered from the expiry of the period  of five years calculated from the date when he was appointed as Chief  Inspector of Shops.  The said decision has no application in the instant case  as the distinction between an appointment in terms of the Rules and de’hors  the Rules is well known.   

In A. Umarani (supra), it was opined:

"Regularisation, in our considered opinion, is not  and cannot be the mode of recruitment by any "State"  within the meaning of Article 12 of the Constitution of  India or any body or authority governed by a statutory  Act or the Rules framed thereunder. It is also now well  settled that an appointment made in violation of the  mandatory provisions of the statute and in particular,  ignoring the minimum educational qualification and  other essential qualification would be wholly illegal.  Such illegality cannot be cured by taking recourse to  regularisation. (See State of H.P. v. Suresh Kumar  Verma.) It is equally well settled that those who come by  back door should go through that door. (See State of U.P.  v. U.P. State Law Officers Assn.) Regularisation furthermore cannot give  permanence to an employee whose services are ad hoc in  nature."

An appointment de’hors the Rules would render the same illegal and  not irregular as has been held in Umadevi (supra) in the following terms :

"Thus, it is clear that adherence to the rule of  equality in public employment is a basic feature of our  constitution and since the rule of law is the core of our  Constitution, a Court would certainly be disabled from

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passing an order upholding a violation of Article 14 or in  ordering the overlooking of the need to comply with  requirements of Article 14 read with Article 16 of the  Constitution.  Therefore, consistent with the scheme for  public employment, this Court while laying down the  law, has necessarily to hold that unless the appointment  is in terms of the relevant rules and after a proper  competition among qualified persons, the same would  not confer any right on the appointee."          It was further observed:

"It has also to be clarified that merely because a  temporary employee or a casual wage worker is  continued for a time beyond the term of his appointment,  he would not be entitled to be absorbed in regular service  or made permanent, merely on the strength of such  continuance, if the original appointment was not made by  following a due process of selection as envisaged by the  relevant rules.  It is not open to the court to prevent  regular recruitment at the instance of temporary  employees whose period of employment has come to an  end or of ad hoc employees who by the very nature of  their appointment, do not acquire any right.  High Courts  acting under Article 226 of the Constitution of India,  should not ordinarily issue directions for absorption,  regularization, or permanent continuance unless the  recruitment itself was made regularly and in terms of the  constitutional scheme."   However, in the case of irregular appointment, the Constitution Bench  in Umadevi (supra) stated as follows:

"One aspect needs to be clarified.  There may be  cases where irregular appointments (not illegal  appointments) as explained in S.V. NARAYANAPPA  (supra), R.N. NANJUNDAPPA (supra), and B.N.  NAGARAJAN (supra), and referred to in paragraph 15  above, of duly qualified persons in duly sanctioned  vacant posts might have been made and the employees  have continued to work for ten years or more but without  the intervention of orders of courts or of tribunals.  The  question of regularization of the services of such  employees may have to be considered on merits in the  light of the principles settled by this Court in the cases  above referred to and in the light of this judgment.  In  that context, the Union of India, the State Governments  and their instrumentalities should take steps to regularize  as a one time measure, the services of such irregularly  appointed, who have worked for ten years or more in  duly sanctioned posts but not under cover of orders of  courts or of tribunals and should further ensure that  regular recruitments are undertaken to fill those vacant  sanctioned posts that require to be filled up, in cases  where temporary employees or daily wagers are being  now employed.  The process must be set in motion within  six months from this date.  We also clarify that  regularization, if any, already made, but not subjudice,  need not be reopened based on this judgment, but there  should be no further by-passing of the constitutional  requirement and regularizing or making permanent, those  not duly appointed as per the constitutional scheme."

The original appointment of 3rd respondent being illegal and not  irregular, the case would not come within the exception carved out by the

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Constitution Bench.  Furthermore, relaxation, if any, could have been  accorded only in terms of Rule 28 of the Rules, Rule 28 would be attracted  when thereby undue hardship in any particular case is caused.  Such  relaxation of Rules shall be permissible only in consultation with the  Commission.  It is not a case where an undue hardship suffered by the 3rd  respondent could legitimately been raised being belonging to a particular  class of employee.  No such case, in law could have been made out.  It, in  fact, caused hardship to other employees belonging to the same category,  who were senior to him; and thus, there was absolutely no reason why an  exception should have been made in his case.   

The difference in concept of malice in law and malice on fact stand is  well known.  Any action resorted to for an unauthorized purpose would  construe malice in law.  {See Smt. S.R. Venkataraman vs. Union of India  & Anr. [(1979) 2 SCC 491 : AIR 1979 SC 49] State of A.P. vs.  Goverdhanlal Pitti [(2003) 4 SCC 739], Chairman & M.D., BPL Ltd. vs.  S.P. Gururaja [(2003) 8 SCC 567 and see also Punjab SEB Ltd. vs. Zora  Singh [(2005) 6 SCC 776].}

Malice in its legal sense means malice such as may be assumed for a  wrongful act intentionally but without just cause or excuse or for one of  reasonable or probable cause.  The term malice on fact would come within  the purview of aforementioned definition.  Even, however, in the absence of  any malicious intention, the principle of malice in law can be invoked as has  been described by Viscount Haldane in Shearer and Another v. Shields  (1914) AC 808 at p. 813 in the following terms:

"A person who inflicts an injury upon another  person in contravention of the law is not allowed to say  that he did so with an innocent mind; he is taken to know  the law, and he must act within the law.  He may,  therefore, be guilty of malice in law, although, so far the  state of his mind is concerned, he acts ignorantly, and in  that sense innocently."

The said principle has been narrated briefly in Smt. S.R.  Venkataraman vs. Union of India & Anr. [AIR 1979 SC 49 : (1979) 2  SCC 491], in the following terms:

"Thus malice in its legal sense means malice such  as may be assumed from the doing of a wrongful act  intentionally but without just cause or excuse, or for want  of reasonable or probable cause."

Another aspect of the matter cannot also be overlooked.  Apart from  the fact that the concerned authorities had made up their minds to promote  the 3rd respondent herein from the very beginning, as an approval therefor  appears to have been obtained from the Chief Minister only on 20.4.1997;  the post was in fact created on the next date, i.e., on 21.4.1997 and the order  of promotion was issued on 24.4.1997, although, decision thereupon, as  would be evident from the note-sheet, had been taken on 15.4.1997 itself.   Such an action is undue haste on the part of the respondents smacks of mala  fide.   

Furthermore, for the purpose of promotion to the post in question,  cases of at least 5 candidates were required to be considered.  The case of 3rd  respondent was considered alone, although, there had been 2 other  candidates, who fulfilled the same criteria.

Even no seniority list was prepared at the time of constitution of the  Departmental Promotion Committee.   

The State proceeded on the basis that the act of conversion would  require an amendment to the rules.  Whether such an amendment was

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necessary or not, as was argued by Mr. Dwivedi, looses much significance in  view of the fact that the State itself was of the opinion that the same was  necessary.  Despite the same, the Principal Secretary, Labour Department  had put up the note, as noticed hereinabove, before the Chief Minister  without bringing the same to her notice.  The note was not put up only  highlighting the necessity therefor.  Two views were placed: Firstly, the  conversion would not entail any financial loss and provide promotional  avenues for candidates of scheduled castes, which by itself cannot be a  matter of public interest; and Secondly, the case of the 3rd respondent was  highlighted, stating that he had been in service since 1987-88 with  interruption and since 1989 without interruption and upto 1995 on ad hoc  basis and in regular service since 15.11.1995.  It was also stated that  relaxation could be given to fulfil reservation quota under the 1994 Act, in  terms whereof relaxation for qualifying service for the aforementioned post  could be accorded.  Why the Public Service Commission was ignored, has  not been explained.  The idea of conversion of the post should have been  mooted keeping public interest in view and not the interest of an individual.   The entire approach of the authorities of the State of U.P, thus, was only for  achieving a private interest and not the public interest.   It was in that sense,  the action suffered from the vice of malice in law.  It has not been disputed  that there were other employees also who belonged to scheduled caste and  were senior to the 3rd respondent.   

It has also not been disputed that no relaxation could be granted for  promotion in terms of 1994 Act.  Five years’ experience from the date of  substantive requirement, thus, being an essential qualification, no relaxation  could have been given in that regard to the 3rd respondent.  The 1994 Act  was not enacted for meeting such a contingency.  In that view of the matter  both the Chief Minister as well as the Principal Secretary themselves did not  possess any authority to make any relaxation and in that view of the matter  they must be held to have misdirected themselves in law necessitating  interference by the superior courts by way of judicial review.  When such an  illegality is committed, the superior court cannot shut its eyes.  Contention  of such glaring illegality would create a dangerous trend in future.  It is one  thing to say that conversion of one post to another may be done in  accordance with law having regard to the public purpose in mind but a  statutory power, it is well-settled, cannot be exercised so as to promote a  private purpose and the same subverts the same.   A discretionary power as is well known cannot be exercised in an  arbitrary manner.  It is necessary to emphasize that the State did not proceed  on the basis that the amendment to the Rules was not necessary.  The action  of a statutory authority, as is well known, must be judged on the basis of the  norms set up by it and on the basis of the reasons assigned therefor.  The  same cannot be supplemented by fresh reasons in the shape of affidavit or  otherwise.  {See Mohinder Singh Gill & Anr. vs. The Chief Election  Commissioner, New Delhi & Ors. [AIR 1978 SC 851, Commissioner of  Police vs. Gordhandas Bhanji [AIR 1952 SC 16] and also Hindustan  Petroleum Corpn. Ltd. vs. Darius Shapur Chenai [(2005) 7 SCC 627].}

In terms of the 1994 Act, the reservation was to be confined to 21%.   There were 6 posts.  If the roster was to be followed, 2 posts would be  reserved for the Scheduled Caste candidates, which is impermissible.   

Mr. Dwivedi submitted that the post of Deputy Director of Factories  (Engineering) would be forming separate cadre.  We do not agree.  It is not  disputed that the said post has also been considered at par with the post of  Deputy Director of Factories (Administration), as the qualification for  holding the said post was the same.   

In a case of this nature, the rule of strict construction is required to be  applied and the action on the part of the State must be judged in terms  thereof.   

Equality clauses contained in Articles 14, 15 and 16 of the  Constitution of India may in certain situations have to be considered as the

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basic structure/features of the Constitution of India.  We do not mean to say  that all violations of Article 14 or 16 would be violative of the basic features  of the Constitution of India as adumbrated in Kesvananda Bharati vs. State  of Kerala [(1973) 4 SCC 225 : 1973 Supp. SCR 1].   But, it is trite that  while a law is patently arbitrary, such infringement of the equality clause  contained in Article 14 or Article 16 may be held to be violative of the basic  structure of the Constitution.   {See Waman Rao vs. Union of India  [(1981) 2 SCC 362], Maharao Saheb Shri Bhim Singhji, etc. vs. Union of  India & Ors. [AIR 1981 SC 234] and Minerva Mills Ltd. & Ors. vs.  Union of India & Ors [(1980) 3 SCC 625].}  A statute professing division  amongst citizens, subject to Articles 15 and 16 of the Constitution of India  must pass the test of strict scrutiny.  Article 15(4) and Article 16(4) profess  to bring the socially and educationally backward people to the forefront.   Only for the purpose of invoking equality clause, the makers of the  Constitution thought of protective discrimination and affirmative action.   Such recourse to protective discrimination and affirmative action had been  thought of to do away with social disparities.  So long as social disparities  among groups of people are patent and one class of citizens in spite of best  efforts cannot effectively avail equality of opportunity due to social and  economic handicaps, the policy of affirmative action must receive the  approval of the constitutional courts.  For the said purpose, however, the  qualifications laid down in the Constitution for the aforementioned purpose  must be held to be the sine qua non.  Thus, affirmative action in essence and  spirit involves classification of people as backward class of citizens and  those who are not backward class of citizens.  A group of persons although  are not as such backward or by passage of time ceased to be so would come  within the purview of the creamy layer doctrine evolved by this court.  The  court by evolving said doctrine intended to lay a law that in terms of our  constitutional scheme no group of persons should be held to be more equal  than the other group.  In relation to the minorities, a 11-Judge Bench of this  Court in T.M.A. Pai Foundation vs. State of Karnataka [(2002) 8 SCC  481] categorically held that protection is required to be given to the minority  so as to apply the equality clauses to them vis-‘-vis the majority.  In Islamic  Academy of Education vs. State of Karnataka [(2003) 6 SCC 697], it was  opined that the minority have more rights than the majority.  To the said  extent Islamic Academy of Education (supra) was overruled by a 7-Judge  Bench of this Court in P.A. Inamdar vs. State of Maharashtra [(2005) 6  SCC 537].  

An executive action or a legislative Act should also be commensurate  with the dicta laid down by this Court in Indra Sawhney vs. Union of India  [1992 Supp.2 SCR 454] (‘Indra Sawhney-I’) and followed in Ashoka  Kumar Thakur vs. State of Bihar & Ors. [(1995) 5 SCC 403] and Indra  Sawhney vs. Union of India [1999 Supp.5 SCR 229] (’Indra Sawhney- II’).     In Umadevi (Supra), the Constitution Bench referring to  Kesavananda Bharati (supra), Indra Sawhney-I (supra) and Indra  Sawhney-II (supra), opined:  

"These binding decisions are clear imperatives that  adherence to Articles 14 and 16 of the Constitution is a  must in the process of public employment."

We are not concerned with the reasonableness or otherwise of the  percentage of reservation.  21% of the posts have been reserved for  Scheduled Tribe candidates by the State itself.  It, thus, cannot exceed the  quota.  It is not disputed that in the event of any conflict between the  percentage of reservation and the roster, the former shall prevail.  Thus, in  the peculiar facts and circumstances of this case, the roster to fill up the  posts by reserved category candidates, after every four posts, in our  considered opinion, does not meet the constitutional requirements.

For the reasons aforementioned, the impugned judgment cannot be  sustained.  

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The question, which now arises for consideration, is as to whether this  Court, despite gross illegalities committed by the State, would refuse to  exercise its discretionary jurisdiction under Article 136 of the Constitution  of India.  The order of promotion was issued on 25.4.1997.  The writ petition  was filed within a few days thereof, i.e., on 2.5.1997.  As the 3rd respondent  had joined the post, no stay had been granted by the High Court.  He might  have been working for about 9 years, but he was holding the post during the  pendency of the writ petition.  The appellant was promoted only in the year  2001.  He had to suffer the ignominy of working under a junior for a long  time.  The fact that the 3rd respondent would retire in May, 2007 is again  wholly immaterial.  It is of not much relevance.

It is also not correct to contend that the selection was on merit basis.   If the post was not reserved, in no way the 3rd respondent could have been  promoted.  He might not have come within the purview of zone of  consideration.  This case points out how the illegalities are committed by the  State causing deprivation of legitimate right of promotion of more  meritorious and senior candidates.   It is not a case, where we should refrain ourselves from exercising our  discretionary jurisdiction.  For the reasons aforementioned, the impugned  judgment cannot be sustained. It is set aside accordingly.  The appeal is  allowed.  The respondents shall bear the costs of the appellant throughout.   Such costs would be borne by the State as also the 3rd respondent equally,  which is assessed at Rs.50,000/-.