Even As We Near 80 Yrs Of Independence, Not Enough Public Jobs Generated For Eligible Candidates : Supreme Court

The Supreme Court recently highlighted the scarcity of government jobs and the hardships faced by deserving candidates unable to secure employment due to limited opportunities. “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.”, the Court observed. The aforesaid observation came by a bench of Justice Dipankar Datta and Justice Manmohan while upholding the Patna High Court's decision which had struck down a State Government's Rule permitting hereditary public appointments on the post of chaukidars as unconstitutional. Proviso (a) to Rule 5(7) of Bihar Chaukidari Cadre (Amendment) Rules, 2014 allowed a retiring chowkidar to nominate dependent kin for appointment in his place. The Division Bench of the Patna High Court struck this down as violative of Articles 14 (equality) and 16 (equal opportunity in public employment) of the Constitution, despite no formal challenge to the proviso. Aggrieved by the High Court's decision, the Appellant-Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) who was not originally a party, approached the Supreme Court arguing that the High Court exceeded in its jurisdiction to declare the Rule as unconstitutional despite the constitutionality of the heredity rule not being challenged before the Court. Issue The question that appeared for the Court's consideration was whether the High Court was justified in declaring the heredity rule as unconstitutional in the exercise of its suo motu powers, even though no formal challenge had been made against it. Decision Affirming the High Court's decision, the judgment authored by Justice Datta rejected the Appellant's argument stating that the High Court overstepped its jurisdiction to lay a challenge to the Rule whose constitutionality was not questioned before the Court. The Court held that the Division Bench was justified in striking down the heredity rule, even though it wasn't formally challenged, as it would have been unreasonable to expect the Appellants to contest the very rule on which their claim for relief was based. “The respondent no.7 was seeking relief from the High Court relying on the offending proviso. In a case where the party aggrieved seeks enforcement of a provision of a rule, which is seemingly unconstitutional, would he raise the plea of its unconstitutionality? It would be imprudent for him to do so and hence, the answer cannot but be in the negative. While considering the plea of the respondent no.7, the Division Bench found the offending proviso to be so obtrusively unconstitutional that notwithstanding absence of a specific challenge thereto, it proceeded to declare the same as void. Although the Division Bench had no occasion to refer to the decisions that we have referred to above, nothing much turns on it. The Division Bench must be presumed to be aware of the law on the subject that appointment cannot be claimed as a hereditary right and, thus, without even a challenge being laid to the offending proviso thought of striking it down. We do not see any illegality in such an approach.”, the court observed.Writ Court's Duty to Strike Down Unconstitutional Subordinate Legislation and Safeguard Rights of Persons Not Approached The Court Also, taking a view from different perspective the Court upheld the High Court's exercise of suo moto powers under Article 226 of the Constitution to declare the subordinate legislation as unconstitutional if it violates the fundamental rights reasoning that “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.” “We are minded and do hold that, 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. 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. 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...

Even As We Near 80 Yrs Of Independence, Not Enough Public Jobs Generated For Eligible Candidates : Supreme Court

Yash Mittal

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