9/5/23, 6:56 PM Statutory Provision Can't Be Declared Ultra Vires Without A Specific Challenge In Pleadings : Supreme Court

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Home (/) / Top Stories (/top-stories) / Statutory Provision Can't Be...

Statutory Provision Can't Be Declared Ultra Vires

Without A Specific Challenge In Pleadings : Supreme
Court
Suraj Kumar
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5 Sept 2023 11:09 AM

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The Supreme Court reiterated that to strike down the provisions of a law or to
declare certain rules as ultra vires, there must be a specific pleading and a request
for such a relief in the case.

The Court observed, “It is a trite law that for striking down the provisions of law or
for declaring any rules as ultra vires, specific pleading to challenge the rules and
asking of such relief ought to be made, that is conspicuously missing in the
present case. In the absence of such a pleading, the Union of India did not have an
opportunity to rebut the same. The other side had no opportunity to bring on
record the object, if any, behind the Rules that were brought into force. We are also
of the considered view that in the writ petition seeking a writ of certiorari
challenging the order of the CAT, the High Court ought not to have declared Rule
4(b) as ultra vires in the above fact situation. Therefore, the High Court was not
justified to declare Rule 4(b) as ultra vires.”

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The bench comprising Justices J.K. Maheshwari and Justice K.V. Viswanathan
was hearing an appeal against a judgment of the Orissa High Court which had
declared Rule-4(b) of the Ministry of Information Technology (In-situ promotion
under Flexible Complementing Scheme) Rules, 1998 to be invalid in law and
directed the appellant(herein) to reconsider the promotion of the respondent.

In the present matter, the respondent (Manjurani Routray) was employed as a

Principal System Analyst (Scientist D) at the National Informatics Centre in
Cuttack. She sought promotion from one grade to another as a scientist. A
promotion policy known as the Flexible Complementing Scheme (FCS)was
launched in 1999 by the Department of Personnel and Training. Despite being
called for interviews in 1999 and 2000, she was not recommended for promotion
while her juniors were promoted in 2001. Her representations to authorities
requesting reconsideration were rejected.

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9/5/23, 6:56 PM Statutory Provision Can't Be Declared Ultra Vires Without A Specific Challenge In Pleadings : Supreme Court

Therefore, she approached the Central Administration Tribunal(CAT). During the

pendency of the application, the Ministry of Information Technology (in-situ
Promotion under Flexible Complementing Scheme) Rules 1998 were passed. The
Respondent became eligible for promotion to 'Scientist E' after four years as
'Scientist D.

The Tribunal directed the appellant to clarify the guidelines for selecting scientists
for promotion. It also asked them to inform the respondent about the reasons for
her non-promotion despite receiving a high rating from the Assessment board.

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The Tribunal held, “We are not however impressed with the prayer of the applicant
that the respondents should give her promotion to Scientist E (Grade of Technical
Director) from the date when her juniors were promoted to the said post as the
promotion policy of the scientist is not based on the principle of seniority but
wholly and solely on the basis of merit as propounded by them both in the counter
as well as before us during oral argument.”

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Aggrieved by the same, the respondent filed a writ petition before HC. Although
the legality of Rule 4(b) was not challenged, the HC declared it "ultra vires". It also
instructed the appellant to amend Rule 4(b) in consonance with the Supreme
Court's directives and declared that the promotions under the 'Flexible
Complementing Scheme' should consider both Annual Confidential Reports
(ACRs) and interview scores.

It observed “We declare Rule-4(b) of the Ministry of Information Technology (Insitu

promotion under Flexible Complementing Scheme) Rules, 1998 to be invalid in law
and fixation of the basis of percentage in interview to be excessive and beyond the
limits prescribed by the Hon’ble Apex Court in the case of Ashok Kumar Yadav. We
direct the Opp. Party-Union of India to carry out necessary amendments to Rule-
4(b) in order to make it in consonance with the dicta of the Hon’ble Apex Court.”

The matter finally reached the Apex Court which observed that the respondent
only sought to overturn the order of CAT and didn’t ask to declare Rule 4(b) invalid.

It opined “Considering the prayer made in the writ petition, it is luculent that
respondent no. 1 did not set out any grounds to declare Rule 4(b) of the Rules as
ultra vires. No such relief was even prayed for in the writ petition. The Respondent
No. 1 in the writ petition merely sought a writ in the nature of certiorari to set aside
the order of the CAT. Therefore in the given facts, there was no occasion for the
High Court to declare Rule 4(b) as ultra vires.

Therefore, the Court allowed the appeal and set aside the order of HC.
Consequently, the question of illegality in the denial of promotion to the
respondent does not arise.

Case title: Union of India v. Manjurani Routray

Citation: 2023 LiveLaw (SC) 745

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