CMD/CHAIRMAN, B.S.N.L. AND ORS. versus MISHRI LAL AND ORS.

Citation: [2011] 5 S.C.R. 317 · Decided: 15-04-2011 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

[2011) 3 S.C.R. 317 
GMO/CHAIRMAN, B.S.N.L. AND ORS. 
v. 
MISHRI LAL AND ORS. 
(Civil Appeal No. 1405 of 2007) 
APRIL 15, 2011 
[MARKANDEY KAT JU AND GYAN SUD HA MISRA, JJ.] 
Raj Bhasha Adhikari Recruitment Rules 2005 -
Quashing of- Challenge to -High Court quashing 2005 Rules 
A 
B 
as a/so the letters whereby the petitioners were told to appear C 
in the Limited Internal Competitive.Examination for promotion 
to the post of Raj Bhasha Adhikari AD(OL) - Held: The 
approach of the High Court was totally incorrect - High Court 
had quashed 2005 Rules without service of any notice of the 
writ petition on the appellants, that too at the preliminary stage D 
of admission - Respondents were never regularly promoted 
as Hindi Officer at any point of time nor had been regular 
appointees - They were appointed purely on local officiating 
basis under delegated powers on the basis of administrative 
instructions - Thus, they had no vested rights for promotion E 
to the post of Hindi Officer under the Recruitment Rules of 
2002, which, in fact were never in operation at any point of 
time -
Moreover, a conscious decision was taken by 
formulating 2005 Rules which provided that al/ the posts 
should be filled up by a Limited Internal Competitive F 
Examination - This was a policy decision and the High Court 
could not have found fault with it - When Rules are framed 
under Article 309 of the Constitution, no undertaking need be 
given to anybody and the Rules can be changed at any time 
- Thus, the order of the High Court is set aside - Constitution G 
of India, 1950 - Article 309 - Administrative Law. 
Practice and Procedure: Writ Petition seeking quashing 
of Rules - Summary disposal of, without calling for counter 
affidavit and examining the matter in detail - Held: Was totally 
317 
H 
318 
SUPREME COURT REPORTS 
[2011) 5 S.C.R. 
A against any established procedure of law. 
B 
Equity - When available - Held: Law prevails over equity 
if there is a conflict - Equity can only supplement the law, and 
not supplant it - Maxim - Dura lex sed lex. 
The respondents 1 to 9 filed a writ petition before the 
High Court praying for quashing of the Raj Bhasha 
Adhikari'Recruitment Rules 2005 as well as the letters by 
which they were told to appear in the Limited Internal 
Competitive Examination for promotion to the post of Raj 
C Bhasha Adhikari AD(OL) which was to be held under the 
supervision of the CGMT UP(East), Circle , Lucknow as 
well as issuing a writ of mandamus restraining the 
appellants from interfering in the working of the 
respondents as AD(OL) on their respective posts and to 
D continue to pay them their salaries. The writ petition was 
allowed. Therefore, the appellants filed the instant 
appeals. 
Allowing the appeals, the Court 
E 
HELD: 1. When Rules are challenged it is necessary 
to have the matter gone into in depth by inviting a counter 
affidavit and examining the matter in detail. A summary 
disposal of a writ petition by allowing it without even 
calling for a counter affidavit and quashing the Rules, is 
F totally against any established procedure of law. The 
submission that the Raj Bhasha Adhikari Recruitment 
Rules 2005 were quashed by the High Court without 
service of any notice of the writ petition on the appellants-
respondents 3 to 6 in the writ petition and that too at the 
G preliminary stage of admission on the basis of an alleged 
submission of a counsel who did not have any authority 
and Vaklatnama in his favour by the appellants and who 
had not been given any instruction to appear on their 
behalf, is accepted. [Paras 4 and 5] [322-H; 323-A-B] 
H 
GMO/CHAIRMAN, B.S.N.L. AND ORS. v. MISHRI LAL 319 
AND ORS. 
2.1 Rules under Article 309 of the Constitution can be A 
changed even during the subsistence of the old Rules. 
A Rule made under the proviso to Article 309 is a 
legislative act (though made by the executive). It is not a 
piece of delegated legislation like a Rule made under a 
statute. Thus, it can be amended retrospectively. Thus, 
B 
Rules under the proviso to Article 309 are Constitutional 
Rules, not like Rules under a statute. Thus, they have the 
same force as a Statute, though made by the executive. 
The legislature can legislate retrospectively. Thus, the 
approach of the High Court was totally incorrect. [Paras C 
12, 13, 14 and 20] [325-C-G; 327-0] 
Raj Kumar vs. Union of India AIR 1975 SC 1116; M.P. V. 
Sundararamier and Co. vs. State of Andhra Pradesh AIR 
1958 SC 468

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