The appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposes of fixation of pay and seniority

13/12/2018

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 11360­11363 OF 2018
(Arising out of SLP (Civil) Nos.29668­29671/2017

DINESH KUMAR KASHYAP & ORS. ETC.
…APPELLANT(S)
Versus
SOUTH EAST CENTRAL RAILWAY & ORS. ETC.
…RESPONDENT(S)

WITH

CIVIL APPEAL NO. 11364 OF 2018
(@SLP (C) No. 6165 OF 2018)

JUDGMENT
(Continued from previous issue)……
It has been also held that however vide the power of judicial review under Article 226 or 32 of the Constitution, there is self-recognised limit to exercise such power. The Court held as under:-
“15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.
* * *
17. In K. Ashok Reddy v. Govt. of India (1994) 2 SCC 303, this Court indicated that however wide the power of judicial review under Article 226 or 32 there is a recognised limit, albeit self-recognised, to the exercise of such power. This Court reiterated a passage from Craig's Administrative Law (2nd Edn., p. 291), vide SCC p. 315, para 21, as under:
“The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof.… The traditional position has however now been modified by the decision in GCHQ case [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374: (1984) 3 All ER 935: (1984) 3 WLR 1174 (HL)]. Their Lordships emphasised that the reviewability of discretionary power should be dependent upon the subject-matter thereof, and not whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject-matter, be less justiciable, with Lord Roskill compiling the broadest list of such forbidden territory….”
The observations of Lord Roskill, referred to above, are from Council of Civil Service Unions v. Minister for the Civil Service 1985 AC 374 : (1984) 3 All ER 935: (1984) 3 WLR 1174 (HL)] (GCHQ case) as under: (All ER p. 956d-e)
“But I do not think that that right of challenge can be unqualified. It must, I think, depend on the subject-matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject-matter is such as not to be amenable to the judicial process.”
18. Finally, this Court emphasised judicial restraint by citing with approval a passage in de Smith's Judicial Review of Administrative Action (vide SCC p. 316, para 23) as under:
“Judicial self-restraint was still more marked in cases where attempts were made to impugn the exercise of discretionary powers by alleging abuse of the discretion itself rather than alleging non-existence of the state of affairs on which the validity of its exercise was predicated. Quite properly, the courts were slow to read implied limitations into grants of wide discretionary powers which might have to be exercised on the basis of broad considerations of national policy."
Based on this reasoning, it was acknowledged that the transfer of a Judge of the High Court based on the recommendation of the Chief Justice of India would be immune from judicial review as there is "an inbuilt check against arbitrariness and bias indicating absence of need for judicial review on those grounds. This is how the area of justiciability is reduced…. [Ibid., para 24]”
19. We, respectfully, reiterate these observations, and expect them to be kept in mind by all courts in this country invested with the power of judicial review.”
20. Further in the written submissions submitted on behalf of the respondents, reliance is placed on the circular dated 18.07.2005 to say that the currency of the panel published in the month of March, 2014 is for a period of two years. Such period can be extended by the General Manager by one year in case of administrative exigencies.
21. Somewhat similar question was considered in a recent Judgment dated 22nd November, 2018 of this Court in Civil Appeal No. 11149 of 2018 entitled Uttar Pradesh Public Service Commission v. Surender Kumar & Ors., whereby the Government Order contemplated that the wait-list can be operated only for a period of one year, deciding the said aspect, the Court held as under:
“12. Having heard the learned counsels on both sides, we have perused the order dated 18.05.2018 passed by the High Court and other material placed on record. For the purpose of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It is clear from the various Government Orders that wait-list period is valid only for a period of one year. Though requisition is made for making selection for 178 number of posts, but appellant Commission, after delcaring results of the examination, has made initial recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have submitted all the requisite documents within the period prescribed. Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010. When recommendations were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of the counter affidavit filed before the High Court”.
22. Since the validity of the select panel has come to an end on the afflux of time, therefore, there cannot be any order to appoint the persons from such select list prepared wayback in the year 2014 in pursuance to the advertisement issued on 15.12.2010. Such panel cannot be a perennial source of appointment.
23. Thus, in exercise of power of judicial review, I do not find any reason to interfere in the decision-making process of the Railways, so as not to appoint the appellants against Group D posts advertised on 15.12.2010.
24. Consequently, I do not find any illegality in the order passed by the Tribunal and the High Court. The appeals are accordingly dismissed. No Costs.
.............................J.
(HEMANT GUPTA)
New Delhi,
November 27, 2018

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