Former Punjab Chief Justice violated Constitution: High Court judgehttps://indianexpress.com/article/india/former-punjab-chief-justice-violated-constitution-high-court-judge/

Former Punjab Chief Justice violated Constitution: High Court judge

The Chief Justice has powers to relax rules, after being satisfied of undue hardship to the concerned person in “just and equitable manner”.

IN A ONE-OF-ITS-KIND case, Justice PB Bajanthri of Punjab and Haryana High Court has set aside the administrative order of sitting Supreme Court judge Sanjay Kishan Kaul wherein as Chief Justice of Punjab and Haryana High Court in July 2014, Kaul had “arbitrarily” extended out-of-turn promotion to his protocol officer, Rajbir, ignoring 171 senior assistants. In his 83-page judgment released on Friday, Justice Bajanthri has recorded that while extending undue favours to Rajbir, Justice Kaul has clearly violated ‘equity before law’ and ‘equality of opportunity in matters of public employment’ as enshrined in the Constitution. Rajbir is at present functioning as protocol officer to Chief Justice Shiavax Jal Vazifdar.

“In the present case, the post of Superintendent Grade-II is required to be filled up by seniority-cum-merit. Therefore, the then Hon’ble Chief Justice (Kaul) while promoting the third respondent (Rajbir) relaxing the seniority criteria is incorrect so also in not complying with Articles 14 and 16 of the Constitution,” ruled Justice Bajanthri.

Finding the promotion order dated July 22, 2014, as “highly arbitrary, illegal”, the court quashed it directing the administrative wing of the HC to fill up the vacancy of Superintendent Grade-II in accordance with High Court Establishment Rules, 1973, and promote the eligible petitioner with effect from July 22, 2014, within three months.

The Chief Justice has powers to relax rules under Rule 38 of High Court Establishment Rules, 1973, after being satisfied of undue hardship to the concerned person in “just and equitable manner”.

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However, Justice Bajanthri observed, “In so far as third respondent (Rajbir) is concerned, the principle of no undue hardship and also just and equitable manner is not at all attracted. Undue hardship would arise if a particular provision of law is coming in the way of extending service condition to an employee without affecting the third party’s right like the petitioners (18 senior assistants) in the present case.”

The judge expressed that the Supreme Court had extensively considered powers of the chief justice and clearly explained that while exercising relaxation provision to an employee, such action should be in consonance with Articles 14 and 16 of the Constitution.

Commenting on Article 229 of the Constitution (officers and servants and expenses of high courts), Justice Bajanthri, after going through a Supreme Court judgment in M Gurumoorthy vs Accountant-General, Assam and Nagaland and others observed, “The decision of the deciding authority can be quashed if it has abused its jurisdiction. It can be said to have abused its jurisdiction when it exercises power for an improper purpose, or extraneous considerations, or in bad faith, or leave out relevant consideration.”

The petition was filed by Avtar Singh Kalra and 17 other senior HC assistants alleging “undue favour” to Rajbir by Justice Kaul by “distribution of largesse” and “relaxing rules” by superseding them. Rajbir joined as driver in the High Court on March 18, 1991. It was on December 20, 2010, during the tenure of then Chief Justice Mukul Mudgal (now retired), that Rajbir was given out-of-turn promotion from driver to assistant.

He was then designated as assistant protocol officer and posted at the Chief Justice’s secretariat. Later, Justice Kaul, in July 2014, extended another out-of-turn promotion to Rajbir as Superintendent Grade-II as redesignated his as protocol officer to the Chief Justice.

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