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Friday, April 08, 2016

A dissection of the SC ORDER


The order of Justice Dipak Misra belied our expectations and made us to wait for another four months, call it a destiny. Major portion of the order relates to the Board resolution and the discriminating DA formula which were already thrown open in lower courts, discussed and argued and hence becomes superfluous in the order. Except that the order confers doubling of the IR and will be paid to all who are similarly placed but discriminated there is nothing in the order for us to cherish but only to lament. The following observations made in the order has not gone well with us and needs to be addressed by the case mangers before the Delhi HC and atlast we hope to see the end of the tunnel in the Delhi HC and no more waiting :

1. On scanning of anatomy of rule 55 of 1995 rules WE ARE ABSOLUTELY CLEAR THAT IT DOES NOT CONFER POWERS ON THE CHAIRMAN OF THE CORPORATION TO ISSUE ANY INSTRUCTIONS THAT CAN TRAVEL BEYOND THE RULES.

2. Where the issue of constitutional validity of Para 3A to the Appendix was raised the same deserves to be addressed by the HC.

3. We are inclined to set aside the orders passed by the HCs of Rajasthan, Delhi and P&H and transfer the petitions to the High court of Delhi WHICH WILL DECIDE THE CONSTITUTIONAL VALIDITY OF Para 3 A OF THE APPENDIX TO THE RULES.

4. We clarify that we have not expressed any opinion on the merits of the case EXCEPT THAT THE RESOLUTION COULD NOT BECOME OPERATIVE UNLESS IT WAS CONFIRED THE STATUS OF A RULE AS PROVIDED UNDER SEC 48 OF THE ACT.

5. We have no option as THE PLEADINGS ARE NOT ADEQUATE AS IT SHOULD HAVE BEEN WHILE ASSAILING A CONSTITUTIONAL VALIDITY OF A PROVISION. It is well settled in law that he who has assailed the constitutional validity of a statutory provision or a rule has to specifically assert the grounds for such a challenge.


R.K.Viswanathan