Justice J.K. Maheshwari, Justice Rajesh Bindal, Supreme Court
Executive Instructions Issued Under Article 166(1) Of Constitution Can’t Override Act Done Under Statute & Rules: Supreme Court
|The Supreme Court said that certain level of discretion must be given to the State but merely suggesting that a decision to keep an ongoing recruitment process in abeyance and its subsequent cancellation was in the larger public interest, is not sufficient.
The Supreme Court held that executive instructions issued under Article 166(1) of the Constitution of India cannot override the act done under the statute and the rules made thereunder.
The Court held thus in a batch of Civil Appeals questioning the validity of the Judgment passed by the Tripura High Court, relating to cancellation of the ongoing recruitment process of ‘Enrolled Followers’ midway on the pretext of a policy decision of the State Government.
The two-Judge Bench of Justice J.K. Maheshwari and Justice Rajesh Bindal observed, “Applying the above principles of law, it can safely be concluded that executive instructions issued under Article 166(1) of the Constitution of India cannot override the act done under the statute and the rules made thereunder. The executive instructions can only supplement the provisions of the act and the rules in case of any ambiguity or if gaps are to be filled but such executive instructions cannot supplant the specific provisions which already occupy the field.”
The Bench said that certain level of discretion must be given to the State but merely suggesting that a decision to keep an ongoing recruitment process in abeyance and its subsequent cancellation was in the larger public interest, is not sufficient.
Senior Advocate Pallav Shishodia appeared on behalf of the Appellants while Senior Advocate Col. R. Balasubramanaian appeared on behalf of the Respondents.
Facts of the Case
The subject matter in dispute was appointment on the post of Enrolled Followers in Tripura State Rifles Battalions. In the State of Tripura, the recruitment of Enrolled Followers is governed by the Tripura State Rifles Act, 1983 (TSR Act) read with the Tripura State Rifles (Recruitment) Rules, 1984 (TSR Rules). As per Rule 8 of TSR Rules and vide communication of the PHQ, the recruitment process for total 506 vacancies of Enrolled Followers in the Tripura State Rifles was bifurcated in two categories – “inside-state quota” and “outside state quota”, specifying the number of posts for respective categories, which was the subject matter in this case. In 2018, the State Government issued a new recruitment policy (NRP) applicable to all the establishments under the administrative control of the State Government.
The Govt. decided to make all new appointments under NRP, and all the existing recruitment processes initiated by the respective departments were directed to be cancelled (Cancellation Memorandum). Aggrieved by such cancellation, multiple Writ Petitions were filed before the High Court, challenging Abeyance and Cancellation Memorandums, and seeking direction for completion of the ongoing recruitment process. The said Petitions were dismissed and some of the Writ Petitioners filed Appeals challenging the High Court’s Judgment while some of the Appellants who were affected by the impugned Judgment sought permission to challenge the same as such these Appeals assailing the Judgment were heard together.
Reasoning
The Supreme Court after hearing the contentions of the counsel, noted, “From the above conspectus, we can safely conclude that the NRP dated 05.06.2018 is an executive instruction of the State issued under Article 166(1) of the Constitution of India, following the meeting of the Council of Ministers. It was in the nature of a general policy decision to bring about a change in recruitment process of the State. It did not have a statutory and legislative backing, rather it was a decision taken solely in the exercise of the power vested in the executive. As such, Abeyance Memorandum and Cancellation Memorandum are also issued in exercise of the executive power of the State by issuing executive orders.”
The Court said that it is not the case of the government that to fill the gaps and to supplement the TSR Act and TSR Rules, the NRP is relevant, therefore, Abeyance Memorandum or Cancellation Memorandum may be upheld and in absence of the same, the action of the government in cancelling the process of recruitment for the post of Enrolled Followers is not justified and would amount to arbitrary exercise of power.
“It is further relevant to discuss that the pretext which has been taken to issue Cancellation Memorandum is NRP dated 05.06.2018. The said policy is based on the recommendation of the three-members review committee constituted by the State Government to review recruitment policy across the State and all its departments. The recommendations of the committee were plain and specific, inter-alia, observing that “all the above recommendations will be applicable with prospective effect only”. In addition to the discussions as made hereinabove, in absence of the statutory backing behind the policy, the recommendations as made for abolition of the interview of Class-IV (Group-D) posts would apply with prospective date only. Meaning thereby, it would not apply to the process of recruitment of Enrolled Followers, for whom, the interviews have already been conducted. Hence, application of NRP on the pending recruitment process is contrary to clause (2) of the said policy”, it added.
The Court elucidated that the burden is on the State to justify the decision on the anvil of Articles 14 and 16 of the Constitution of India and show how its decision was in furtherance of larger public interest.
“In our considered opinion, the State has miserably failed in discharging such burden, and in the facts and circumstances of this case, we are unable to agree with the contention of the State that the decision to keep the ongoing recruitment process in abeyance and its subsequent cancellation was in the larger public interest”, it remarked.
The Court reiterated that no contest can be made in respect of the settled proposition that mere participation in the recruitment process or placement in a select list would not create an indefeasible right to be appointed, even if vacancies are available.
“It is clear from a plain reading of the above judgement that State may choose not to appoint a person who has been placed on the select list. … the candidates who have taken part in a recruitment process conducted by a public authority have a legitimate expectation that the selection process will be conducted fairly and without arbitrariness. Consistency and predictability are important aspects of non-arbitrariness, and the rule of law obligates the State to only take decisions which are rooted in fairness and equality”, it further observed.
Conclusion
The Court was of the view that the State has failed to prove that the decision to apply NRP to the ongoing recruitment process was in the larger public interest – as such, the legitimate expectation of fairness in the recruitment process must be upheld.
“The application of the NRP to the ongoing recruitment process for the post of Enrolled Followers in Tripura State Rifles was not in public interest. Therefore, the appellants do have a legitimate expectation of completion of recruitment process in a fair and non-arbitrary manner. The recruitment process should be concluded fairly as per TSR Act and TSR Rules and the candidates may be appointed if they are found to be meritorious”, it concluded.
The Court also directed that the recruitment process for the post of Enrolled Followers in Tripura State Rifles shall now be finalized and completed by the Respondents following the provisions of TSR Act and TSR Rules within a period of two months.
Accordingly, the Apex Court allowed the Appeals and set aside the Judgment of the High Court.
Cause Title- Partha Das & Ors. v. The State of Tripura & Ors. (Neutral Citation: 2025 INSC 1049)