Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) vs State Of Bihar - Subordinate Legislation - Unconstitutionality - Public Employment

Constitution of India - Article 32,226 - Subordinate Legislation - 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 connected with the issue it is seized of, may, upon grant of full opportunity to the State to defend the subordinate legislation and after hearing it, grant a declaration as to unconstitutionality and/or invalidity of such legislation- Should, in a given case, it be found that there has been an egregious violation of a Fundamental Right as a result of operation of a subordinate legislation and the issue is concluded by a binding decision of this Court, we consider it the duty of the writ courts to deliver justice by declaring the subordinate legislation void to safeguard rights of others who might not still have been affected thereby. We reiterate, it can only be done rarely and in cases which stand out from the ordinary- (Para 33) - When a challenge to the constitutionality of a subordinate legislation is examined, like a rule framed not in exercise of conferment of power by a statute but in terms of the proviso to Article 309 of the Constitution (as in the present case), it is open to the court to apply a more nuanced approach. After all, a subordinate legislation is seen as removed from the democratic process that is closely knit with primary legislation and hence, a more rigorous scrutiny in appropriate cases may not be inapt. The level of presumption may indeed vary, depending on factors such as (i) the nature of the subordinate legislation; (ii) the extent it is found to be in derogation either of the Constitution or the parent legislation which is its source; (iii) the exigencies and the manner in which the subordinate legislation is brought into force; and (iv) the potential impact on individual rights as well as public interest. (Para 35) Primary legislation is kept out of the sweep of such power firstly, in deference to legislative actions, which are presumed to be constitutional, secondly, because of the position it holds in the hierarchy of laws, and thirdly, because we know of no decision of this Court where a primary legislation was outlawed without a formal challenge being laid or a decision of a writ court striking down a primary legislation not under challenge being upheld. (Para 34)

Public Employment - Constitution of India shuns appointment in public service by succession. In other words, employment should not flow as if it were heritable. (Para 9) There has to be equality of opportunity in matters of public employment and the other that, any law, which permits entry into public service without granting equal opportunity to all, would fall foul of Article 16 and is liable to be outlawed unless a reasonable classification, which is also valid, can be shown to exist. (Para 10) Public employment has to be preceded by (i) an appropriate advertisement inviting applications from eligible aspirants to offer their candidature or/and by requisitioning names of prima facie eligible candidates from the employment exchanges, (ii) screening the eligible aspirants by keeping aside the ineligible, (iii) conducting of a process of selection meeting the tests of fairness and transparency with a body of selectors constituted in accordance with the relevant law, (iv) making an impartial and bias-free selection upon due assessment of the inter se merits of the aspirants, (v) preparation of a merit list of candidates found suitable as per merit and arranging their names recognising such merit with due regard to rules of reservation, both vertical and horizontal, (vi) preparing a wait-list of candidates, if the governing rules so require and (vii) then proceeding to offer appointments from the merit list as well as from the waiting list, if the occasion to operate such waiting list does arise, giving due regard to merit - and merit alone. (Para 11)

Courts - Inherent Powers - Inherent powers are powers which are resident in all courts, especially of superior jurisdiction and though these powers do not spring from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour, such power is necessary for the orderly administration of the justice delivery system by the courts- Inherent power can also be exercised to do what is just keeping in mind what the justice of the case before the court demands.- The inherent powers of a court in a given case over which it has jurisdiction cannot be seen as limited by the roster set by the Chief Justice of the High Court. (Para 39-40)

Quotable Quotes

Even as we celebrate 75 (seventy-five) years of our Constitution and take pride in governance of the country in terms thereof, still we find some of the States following archaic models of employment as if employment in public service is a hereditary right. (Para 8)

Even as we near 80 (eighty) years of independence, generating enough jobs in the public sector to absorb those eager to enter public service remains an elusive goal. While there is no dearth of eligible candidates in the country waiting in the queue, the quest for public employment is thwarted by a lack of sufficient employment opportunities. (Para 13)

We see no reason as to why the power to suo motu declare a subordinate legislation invalid, on the ground of its being manifestly contrary to a Fundamental Right read with binding precedents in terms of Article 141, should not be conceded to be within the vast reserve of powers of the Constitutional Courts. (Para 33)

After all, as the sentinel on the qui vive, it is not only the duty of the writ courts in the country to enforce Fundamental Rights of individuals, who approach them, but it is equally the duty of the writ courts to guard against breach of Fundamental Rights of others by the three organs of the State. This power is a plenary power resident in all the Constitutional Courts. (Para 33)