2025 (5) TMI 45 - HC - Indian Laws

Validity of extension/re-employment to the post of Director Animal Husbandry after superannuation - suitability and eligibility - exercise the power of re-employment - HELD THAT - The sole ground for extension/re-employment was the recommendation of the Hon ble Minister upon which the Hon ble Chief Minister had already approved six months re-employment. Prior to that the file was not processed at all by the Department. Therefore once a decision had already been taken by the Hon ble Chief Minister who on earth much less a lesser mortal could have bye- passed the order. Obviously such decision had to be justified at all costs. The respondent-State admittedly did not at all consider whether other eligible candidates are available in the Department. This attitude of the State certainly tilts the balance of equality and administrative exigencies towards private/individual interest rather than public interest. Administrative orders of the present kind must serve a greater public interest. It must be passed on public grounds and the said expression is of wide magnitude and cannot have such a limited meaning that because merely a person being a Director he must continue in the Department more particularly the provisions of Chapter 22 of the Hand Book which are mandatory were required to be followed. We need to reiterate that normally the power of the Government in regard to the re-employment/extension is absolute but is subject to the conditions and limitations provided in the rules or instructions. Once the Government forms the opinion that it is in public interest then correctness of such opinion can normally be not challenged before the Courts. However if such decision is arbitrary it will be open for the Court to interfere in such matters. After all it is the Government itself while incorporating Clause 22 has specifically mentioned it would be appreciated that in each case of extension or re-employment it is not only the next man who misses promotion but often several people miss consequential promotions all along the hierarchical strata. Thus one person getting re-employment/extension means deferment of promotion for six or seven persons . No doubt it is the Government which is the final authority to take such a decision. The decision is subjective but ought to be data based bonafide and in public interest as well as in the interest of administration of service of the State. Ordinarily the burden of showing the exceptional circumstances and public grounds is on the State and it must be reflected from the record. Administrative orders of the present kind must serve a greater public interest. It must be passed on public grounds and it is for this precise reason that the respondents in their wisdom provided for a proper procedure for processing cases of extension in service/re-employment. It is more than settled that extension in service/reemployment is only to be made in exceptional circumstances whereas the instant case is one spoil system as the reemployment has been made illegally. Merely because the recommendation has come from an elected representative would not justify the extension/re-employment in absence of satisfaction recorded. Since the respondents have failed to follow the procedure as contemplated in Chapter 22 of the Hand Book on Personal Matters which as per directions of this Court passed in CWPIL No. 201 of 2017 titled as Court on its own motion vs. State of H.P and another decided on 19th December 2017 have been held to be binding on the State Government and further directed to be followed in letter and spirit. Therefore the re-employment granted to respondent No. 4 cannot be countenanced and the same is required to be quashed and set aside. Therefore both the writ petitions are allowed. The re-employment granted to respondent No. 4 is quashed and set aside with immediate effect. The official respondents are directed to convene a fresh DPC and since petitioner in CWP No. 231 of 2025 namely Vishal Sharma was illegally deprived of his case from consideration for promotion is required to be considered along-with other eligible candidates in the DPC so convened. Thus the writ petitions stand disposed of so also the pending applications if any.

Summary

The core legal questions considered by the Court in these writ petitions include:

1. Whether the re-employment of the respondent No. 4 to the post of Director, Animal Husbandry, after superannuation, was lawful and in accordance with the applicable legal framework and procedural requirements.

2. Whether the provisions of Chapter 22 of the Handbook on Personal Matters, Government of Himachal Pradesh, which govern extension and re-employment of government servants, were complied with in granting re-employment.

3. Whether the decision to grant re-employment was taken in the larger public interest and based on exceptional circumstances as mandated by the rules.

4. Whether the petitioners, who were eligible for promotion to the post of Director, were unlawfully deprived of their opportunity due to the re-employment of respondent No. 4.

5. To what extent the Court can examine the suitability and eligibility of the re-employed officer and the justifiability of the reasons for re-employment.

6. Whether the executive instructions and administrative orders issued by the State Government are binding and must be strictly followed by the authorities.

Issue-wise Detailed Analysis

Issue 1: Legality of Re-employment of Respondent No. 4

The relevant legal framework includes Chapter 22 of the Handbook on Personal Matters, Government of Himachal Pradesh, which distinguishes between extension and re-employment, and lays down strict criteria and procedural safeguards for granting re-employment after superannuation. The Fundamental Rules (FR) 56(d) also prescribe that no government servant shall be granted extension beyond the age of retirement except in very limited circumstances.

The Court noted that re-employment is permissible only in really exceptional circumstances and must be justified by public interest along with either the unavailability of suitable successors or the outstanding merit of the retiring officer. Mere recommendation by a Minister or the incumbent's fitness to discharge duties does not suffice.

The Court examined the facts and found that the re-employment was granted solely based on the Minister's recommendation and the approval of the Chief Minister for a six-month period. There was no evidence that the required criteria, such as the unavailability of suitable successors or exceptional merit, were satisfied or recorded in the file.

The Court emphasized that the decision to re-employ must be objective, data-based, and reflect bona fide public interest rather than private or political considerations.

Issue 2: Compliance with Chapter 22 of the Handbook on Personal Matters

The Court analyzed the procedural requirements laid down in Chapter 22, particularly Clause 22.6, which prescribes a detailed procedure for processing extension/re-employment cases. This includes conducting a systematic review well in advance, scrutinizing the character roll and personal file for integrity, furnishing a certificate of integrity, considering eligible officers for promotion, and filling out a prescribed proforma with detailed justifications.

The Court found that the procedure was not followed in letter or spirit. The departmental file lacked the certificate of integrity, the prescribed proforma, and any record of consideration of other eligible candidates or reasons for non-selection of successors. The file was processed only after the Minister's recommendation and Chief Minister's approval, indicating a lack of prior systematic review and adherence to procedure.

The Court reiterated its earlier directions from a previous judgment that Chapter 22 and FR 56(d) must be strictly followed, and any deviation would amount to contempt of Court.

Issue 3: Public Interest and Exceptional Circumstances

The Court stressed that extension or re-employment must be granted only in exceptional circumstances and in the larger public interest. It noted that the Government's own instructions recognize that re-employment of one person delays promotions for multiple others, thus affecting morale and fairness.

In the instant case, the only ground for re-employment was the Minister's recommendation citing the officer's hard work and efficiency. However, no independent or objective assessment was recorded to demonstrate that other officers were not ripe for promotion or that the officer was of outstanding merit.

The Court observed that the decision appeared to be motivated by individual or political considerations rather than genuine public interest, thus failing the acid test of fairness and reasonableness.

Issue 4: Deprivation of Petitioners' Promotion Opportunity

The petitioners were within the zone of consideration for promotion to the Director post and had submitted representations highlighting their service records and eligibility. The Court noted that re-employment of respondent No. 4 effectively deprived the petitioners of their legitimate opportunity for promotion.

Since the re-employment was held illegal and contrary to the rules, the Court directed the respondents to convene a fresh Departmental Promotion Committee (DPC) meeting and consider the petitioners' cases along with other eligible candidates.

Issue 5: Justiciability of Suitability and Eligibility of Re-employed Officer

The Court clarified that it cannot ordinarily go into the subjective suitability or eligibility of the re-employed officer, as the power to grant re-employment is traceable to the Constitution and is generally a policy decision of the Government.

However, the Court retains jurisdiction to examine whether the procedure and criteria laid down by law and executive instructions have been complied with, and whether the decision is arbitrary or mala fide.

In this case, since the procedure was not followed and the decision was arbitrary, the Court intervened.

Issue 6: Binding Nature of Executive Instructions and Administrative Orders

The Court relied on authoritative precedents holding that executive instructions issued by the Government are binding on the administrative authorities and must be scrupulously followed to avoid arbitrariness and ensure fair play.

The Court cited judgments emphasizing that acts must be done in the prescribed manner and failure to follow mandated procedures invalidates the action.

The Court held that the Government cannot act contrary to its own instructions in the absence of statutory provisions allowing such deviation.

Significant Holdings

"Henceforth no employee shall be given extension or be re-employed beyond the age of superannuation/retirement save and except, in accordance with the Chapter-22 of the Hand Book on Personnel Matters Vol-II (2nd Edition) and the provisions of Fundamental Rules 56(d). Letter and spirit of the criteria prescribed and the Rules framed be strictly followed."

"The decision of the Government in reemploying a Government servant, thus, must stand the acid test of duel criteria afore referred."

"The Government is obliged to balance the need for re-employment in public interest on the one hand and its obligation to consider the cases of other eligible candidates or their non-availability on the other."

"Merely because the recommendation has come from an elected representative, would not justify the extension/re-employment, in absence of satisfaction recorded."

"The administrative orders of the present kind must serve a greater public interest. It must be passed on public grounds and the said expression is of wide magnitude and cannot have such a limited meaning that because merely a person being a Director, he must continue in the Department."

"When the State lays down executive instructions for taking any action, it is imperative on its part to scrupulously follow the same, to avoid arbitrariness and ensure fair-play."

"Acts must be done in a prescribed manner and in no other way, the conditions of rules and prescribed procedure must be satisfied and there must be application of mind."

"Extension in service/re-employment is only to be made in exceptional circumstances."

The Court ultimately quashed and set aside the re-employment granted to respondent No. 4, holding it illegal for failure to comply with the mandatory provisions of Chapter 22 and the binding directions of the Court. The Court directed the respondents to convene a fresh DPC meeting to consider the petitioners' promotion cases along with other eligible candidates, thus restoring the principle of fairness and adherence to rule of law in public service appointments.