-RAMENDRA SINGH ,
~ JAGDISH PRASAD AND ORS. a ' February 17, 1984 of ES. 5. VENKATARAMIAE, AND R.B. Misia ¥E4" Cc vil Ser Hees persons ‘not qualified appointed to higher posts to nieet emergent situation—If could be given Seniority over persons appointed tuider rales subsequently.
In connection with the execution ofa World Bank Project.on an emergency .basis, which was required to ‘be completed within a short time, the Public Works , Department of the State needed a number of mechanical overseurs. Since at that time. there was accute sitortage-of qualified overseers the Department had appoin- - . ©
.ted, as-overseers on provisional basis against the sanctioned: posts, certain persons ,
- . who were working in the department as sub-overseers even though. they had only appeared in the diploma’ examination in engineering but hed not yet passed’it. ln the reantime, the respondents (petitioners before the High Court) were: selected | ‘by a Sclection Committee constituted in’ accordance witli the procedure laid down ~. in, Bihar Public, Works Department Code. After they passed the diploma examination the Caicf Bagineer had in -1964 appointed the appellants (contesting respondaats | bafore ths High Court) as tempordry overseers against the sanctioned posts ‘ from the date of publication of results of the diploma examination. In 1973; a grada- tion tist was prepared and some of the appellants were subsequently promoted to higher’ posts. .
"The respondents in a'writ petition filed in the High Court’ had’ impugned the order of the Citic! Engineer appointing the appellants retrospectively as overseers on the ground that while thy were appointed after following the procedure prescribed under the cules, the appz!lants at the time of their appointment as oversseers-_ were meithér qualified to be appointed as overseers Nor were they sélected by a Selec tion + Cotimittes constituted under ‘the rules.and that in any event the appellants could not be appointed with retrospective effect, Secondly, though - the .appellants shown as seniors to the respondents by the ‘Chief Engineer’s orders: of 1964, the appe ilants were in fact jupior to them and that their later’ promotion was improptr,
The High Court held that the Public Works Department Code j in acconglénce with which “the respondents wére recruited’ directly contained. merely departmental ”
instructions and hed. not acquired statutory force and that, -thetefore, the appointment of the appellants could not be held to be invalid on the ground that the department had no power to make’ retrospective appointments, : It however held that the « _ -Fevised ‘gradation list, showing the appellanis above the respondents, on the basis
. Of the 196 orders was bad-in law..Consequently, tlie High Court quashed that part of the two orders which had fixed the date of pyblication of the result of diploma exatnination ag-the commencement of length of service of teniporary overseers.
Y
Tn appeatto this Courti is was contended on behalf of’ the: appetlants that since
* the ‘éxccutive power. of the State is co-extensive with its logislative’ power, in the |
' absence ofa statutory rule framed ‘under Article 309 of the Coristitution, it was open:
‘to the executive, in exercise of its executive power under “Art. .162 of, the Constitus’:
: tion, to make appoinitments"to meet the exigeticies of a situation.
Dismissing the appeal,
: ‘HELD + . The impugned ‘order of 1964 which purported to appoint: ‘the Mi. overseers as temporary overseers from the date of publication ‘of their, result of - diploma examination are clearly violative of Articles 14 and 16 of. the Constitution _ ‘inasmuch as the respondents had. already been appointed as overeers by. a Selec- _ tion Committee. constituted under the rules contained in the public Works Depart-
Ment Code. The 1964-order making the temporary. appointments conferred ._ _national seniority on the appellants’ for the period they are, actually: working as ~
‘sub-overseers in’ the lower scales. outside the cadre of overseers. - The impugned orders. may not have resulted:in reduction of rank but yét they did. affect the -seniority of the respondents which _ eventually: might ‘Tesult in reducing their ¢ chances for ;
promotion. [613 D-F]
on There’ is no gain-saying the fact that the executive power of the’ State i is co= . . extensive with the legislative Power and that i it is.not necessary that- there should be’ a law in existencé before the executive is- enabled to function and the power of the executive is limited merely to the carrying out of the laws. There i is nothing interms, _* of Article’ 309 which abridges the powers of the executive to-act under Article 162 | of the Constitution without a law. but.yet if there is a statutory mule or an: Act’ on a
. matter the . exercise of its executive power under. ‘Art.-162, ignore or act contrary. to 7 > ‘that Rule or Act. [609 B-C] .
BN: Nagarajan & Ors. ¥v. * State of Mysore ' ‘& Ors, [1966 3 SCR. 682; Ram
- ‘Jawaya Kapur v. State of Punjab 1955] 2 SCR 225; Rajendra Narain Singh & Ors.
‘vy. State of Bihar & Ors. {1980] 3 SCR 450; $.B. Patwardhan’s case [1977] 3 SCR 775 and RN. Naijundanea, v. Tr. Thinimiah & Anr. 1972] 2 SCR 799, referred to.
_— Civ Anpstaare SorIsprcriON Givi Appéals Nos. 308: 313 of -
_, )
LC Appeats, by Special leave ‘from the Judgment and Order ‘dated : the ‘th September, 1975 of the Patna High Court in C.W.. €. Nos, . ”
Mis/T3, 461/74 and. 522° of ‘1974. oe, on -
L: N. Sinha, RP. - Singh;- RK “Jain, Suman Kapur, ‘for the a Appellant in CA. No, 308 of 1977.
‘
R. K. Garg, R. P., ‘Singh, RK. Tain & : Sima Kapoor, for the re
* Appellant in, CA. 309 of 197, : eo
_RAMENDRA SINGIT v. Mobis PRASAD ne: 599 :
_ tes *
-«
600 - oan me SUPREME couRT * REPORTS [1984] 2 scr.
R K. Fain for the Appeliant in CA: oir,
7 og . . .
- LN: Sinha. D. “Goburdhan for Respondents 3 Tin CA. 308/77 and. See for Respondents Nos. 2-6 in CA. 309/77. & ‘for Respondents 2, to: 4 - in CA No.. 310/77.
M. K. “Rammnur thi DP. Mukher jee for Respordeits 12- 13 4 ‘in, coe ci No. 308/77 & RR 9-10in CA, nom at ret
-: US. Prasad r en in cA 97."
G. L. ‘Sanghi, Radlia Mohan. & M. LE. ‘Verma’ ‘for RR. 1, 2°&. 16 :
oo in cA, 309/77 & for R- 11 in CA: 3i0 of- 1977.
i - Jaynarain, RP. Singh, RK. Jain & Suman Kapoor for, Res-
. pondents: in CA. 31: 313 of 1977,
A. K. Sen, ‘Railha Mohan Prasad’ é M. L. Verina for RR. a & 2 i vin, cA. 313 of 1977, a “he “Jadenient : the Cour was delivered by’ ~ Misra; 1. This’ bunch of appeals i is “directed, against a‘common ve judgment and order: of the Patna High’ Court dated: 8th-s September, 7 - 1975 allowing: three petitions under Art. 226 of the Constitution in part. .
. TEN. Sigh and OF cae fw Appa in CAS, 31 3
“The material facts to bring out the points for. consideration in- a these ‘appeals lie in a natrow-compass. The Public Works Department ©’
"in Bihar had a very small mechanical organisation. In 1962, however, a it undertook the execution of a World Bank project. In that connec: tion a number of . ‘mechanical’ overseers were needed. As the project had to be, execyted onan emergency basis within a short time’ and -
" .exainination in engineering, but had not passed the same, were appein-" me
[RAMBTDRA “SINGH ¥ TAGISH PRASRD ior J. ) : 601
7 ‘there being death, of qualified overseers, persons who were” working only as, sub- -oveiseers of persons. who:had appeared at the: diploma
‘> ted against the sanctignéd’ posts on a provisional basis. There: were.”
“some. others who. ‘were also. appointed | as mechanical overseers on” a temporary | basis i in the World Bank project, a.wing of the’ Public Works” Department, after appearing before a selection, committee ‘duly con; °° stituted, according, to r. 1, Appendix iI of ‘the. Bihar, Public ‘Works. . : Departiient, Code, Ist Edn., 1958, Vol. II. This rule. reads:
'
All permanent. appointments to: the, Bihar Subordinate
-: ‘Engineering Service. either. by absorption of temporary or. work: - : 7
P i¢ Charged Overséers and Estimators; - or by direct recruitment, - ‘will be‘ made by the Chief: Engineer, provided that. in’ the-case of :"
direct recruitment | ‘(permanent ‘or temporary) appointment will -:
- be ‘made on the advice-of the committee of senior officers con: — stituted ‘for the purpose. The committee will consist: of-- three - ~members. including the Chief. Engineer, who. “will be the Chair-"
° Works: Department front’ time to time”. te ye fe “
~The: ‘Chief f Brigineer. by “ofders | “dated: 18th 1 August and 26 _Septeniber, 1964 appointed | among | others the, following. persons, al- * ; Teady working. as sub- overseers in the department as temporary over- _s S€ers against, the sanctioned, ‘posts ‘on their passing the: diploma _ exami-. ~ tation from the date of publication. of their results of the diploma in . “mechanical/electtical engineering examination: ; .
*, Ramendra Singh’
- Bhola Nath ‘Chaindhary
* Awadesh Kumar. Singh _- us Rajeshwar. Sinha 8 -Ram Chandra Prasad Udai ‘Narain Singh, Sunil Kumar 8 Se . Rajnandan ‘Pd. Singh rr Gopal Ram | me ee RS Sen ep Aw er | te
"Keshav. Singh cl . an we oS wat -
‘Sidh - “Nath Singh | ve oe a : ae a a a 7 rd
Cc oa te
. a
.ios
—_ aoe | oe . ) man of the committee. The. other: two “members will. be nomi-. nated by him with the approval of the Government in ‘the Public co
‘ hereinafter as the petitioners and the above mentioned twelve persons,‘
| 602 oe ~ SUPREME couRT RE ports i984) 2 SCR,
7. 12. Prem Chand Prasad, and many others who are, not pasties x here. :
. ro . «
Te appeats that : a provisional gradation list of overseers was pre- ' pared. Certain overseers who felt aggrieved by. the -provisional ‘list ° _ made. various respresentations and eventually a revised gradation list - ~ dated 17th November, 1973 was prepared. Some. of the aforesaid
*” :
twelve persons were promoted as Mechanical. Sub-Divisional Officers
By an order dated 13th’ Mar ch, "1974,
‘The revised gradation. list: dated {7th November, 1973 and the
'- two-orders dated 18th’ August and 26th September, 1964 appointing the aoresaid twelve:persons as temporary. overseers with retrospective . effect and the order dated 13th March, 1974 promoting some of them | as Mechanical Sub-Divisional Officers were challenged by three sepa-
- rate. writ petitions: (1) writ, No. 1419 of 1973 filed-by Shyam Dayal: . _ Pandey, (2) writ No. 467 of 1974 filed, by F ul Chand, and (3) writ No... ¢
522 of 1974 filed by Jagdish Prasad and Mohammad Shamsuddin.
The respondents in the three petitions includinghe: aforesaid twelve .
persons were common, though differently numbered.” re a would be convenient to identify. the parties. with ‘reference. to the: writ. petitions, The writ-petitioners therein will be. referred to
; _cwhose retrospéctive ‘appointment h has been challenged, as the contes- .
_ . ting respondents.
of . . : . a : wae a se et
EP "The casé Sof the petitioners in the three petitions lias been that they were. appointed as mechanical: overseers on temporary basis in the World Bank project, a unit-of-the’Public Works Department after
- appearing before a ‘selection committee duly constituted’ according
=, a, 4 to r. 1 referred to above. The appointment of the contesting respon- 7 dents by orders dated 18th August and 26th September, 1964 with retros-
. pective. effect has been challenged on the ground that they were tem- J porary ‘mechanical sub-overseers and had not got the requisite qualifi- ° cation for being appointed aS ‘overseers nor did they appear before committee as réquired- by r. 1 of the PWD Code and in any case they _.
could not be appoirited with retrospective effect. It was further pleaded that the contesting respondents were: * junior to ‘the Petitioners but in the revised eradation ist, the conte sting respondents’ v were: shown’
* above: the petitioners on the basis of the aforesaid two orders dated. .18th August arid.26th September, 1964. The: promotion of some-of
_RAMENDRA SINGH Y. JAGDISH PRASAD (Misra J. y 603°...
Fee contesting respondents as mechanical, sub-divisional officers was o a
_ also’ bad on that - account,
* The contesting, respondents as well as the State of Bihar. filed.a~
“atom justifying” the: appointment of . the contesting respondents as $
". well'as the promotion. given’ to "some of thé contesting. respondents as mechanical : sud- divisional offizers. On tire contentions of the parties, the High Court formulated, the’ “following points for consideration:
ow
A Whether the impugned giadation list ha | been prepared in: a accordance. with law 2.
2. Whether ‘the promotion of various respondents on ‘the basis
“of the said A grade tion. list is justified? aa
. | 3. Whether the Appsintment of the. respondents wis bad: as they . had no t appeared: ‘before the selection committee? 4, Whether the orders: dated 18th August and 26th ‘September; + 1964) appointing the respondents'and some of the petitioners
_ as temporary overseers from, the date of publication of their
“+ results of diploma in m2chanical/electrical engineering exami+_
‘nation, dre ‘justified: and in accordance with law and whether
+ the-same. could have been: made the _ basis for preparing. ' the gradation. list? °° .
; While jupporting the’ appoiatmient ‘of contesting ‘respondents . on, merits two ‘preliminary, objection 1s’ Were raised on. ‘behalf® ‘of the contesting respondents about the maintainability of the writ petitions:
+ None. of the Je requisites of r of the PWD Code was ss complied _, With while constituting the: selection committee and this being , " “the position the potitioiiers: themselves were not selected by
~
. 604 + - _ SUPREME, COURT REPORTS 7 (i984). 2 S.C.R:.
Ow “daly constititted : committee} -and, therefore, they liad no
“ri ight to assail: the gradation list and to challenge the appoint-
Constitution.
, 2.-The petitioners could not challenge the gradation list ‘without . _ + -assailing the. orders dated. 18th August’and 26th September, . . . 1964 0n which the. gtadation'list was based, and the petitioners _
-.~ could not be allowed to assail ‘those orders after a lapse of
- about 10 years and if they were allowed to challenge the grada-_ tion. list. that would’ virtually , amount to permitting the ‘pete © os tioners to challenge those: orders,
«7
‘The High Court overruled both the preliminary objections.
_ The first. preliminary objection was: overruled on the ground,that the ° -— * requirements of .r. 1 of the PWD. Code are not mandatory, they are .
. merely. departmental instructions: which had not ‘aéquired thé statutory ‘force: and, the petitioners, could not be noa-suited merely because there _ “was ino compliance of-r. 1 ‘of the Code. The cond preliminary objec: .
tion. was also overruled on .the-grounds: (a) that the petitioners had not prayed for the quashing of the entire orders but they were aggrieved. - only with that’ portion of the-orders by which the contesting responents were appointed rétrospectively from‘the date of the publication of the results of diploma in méchanical/clectrical engineering exaini--: . nation, ‘which affected ‘the seniority of: the petitioners in the revised ~ _ “gradation list; (b) that the petitioners ‘came to know of the two orders “_after.the preparation of the revised gradation list-on. 17th November, - 1973 «wherein the co: atesting respondents. were placed above the peti-: - tionérs; |(c) that the Court was mainly concerned with the revised '; -gradation.list, but with a view-to find out the basis for preparation of |. : the revised gradation list the -Court had‘to examine as to whether the | * retrospective appointment of. the ‘contesting respondents by the afores said-two. orders .in the circumstances was valid. If,the Court holds... - ’ that ‘they could not-have been. appointed. retrospectively that would simply change their position in the.revised gradation list and ‘that. would not affect the appointment ofthe contesting respondents; ‘and | (d) that ignoring the claim, of the petitioners:on the ground of laches ,
. or delay is not a rule of law but’ a rule of ‘practice: .
>
“ment of the ‘contesting respondents | under. Art. 226 of the |
£. Coming to the merits; the appointment of the contesting respon-
*« eo
RAMENDRA, san v. YAGDISH PRASAD (Mistasl) 2 605.
Mee dents was challenged by the. ‘petitionsts: on the ‘ground. that they had. 7 _ mot appeared. before the selection committee as required _by r. Jeand.). : therefore their appointment was illegal and ‘at any ratethey could not. ~ oo have beentplaced higher than ‘the petitioners j in the revised gradation, 7
“The Hi eh Court negatived the éontention on the. sil same »é ground .
on which: the. preliminary objection No. 1 was oversuled: Rule 1 of the ny
The Court further held that the petitioriers were initially’ appoitt- 7 ts ted ‘provisionally but after they appeared before the. selection committee “they were appointed temporarily. and, therefore, the sérvices of the“. petitioners from the date of their appointment could: be courted’ while ° 7 fixing their senidtity, whereas those of the contesting - ‘respondents; who - | were provisionally. appointed’ could not ‘have ‘beet couiited for: fixing yo + 8 a,
PWD Code was merely d departmental instruction. and- it had not: . ; - acquired the statutory force, therefore,- the appointment. ‘of the concoe testing: respondents’ could not. be. held to. ‘be invalid: merely ‘because: "they had not appeared before the selection committee. Besides, there «*. was no such: stipulation i in. their jnitial. ordet. of- appointment. nor’were they called for, appearing. before - the’ selection - committee: Keshav. ” "Singh and Sunil Kumar, two of the contesting respondents: and’ orie - _ Shyam. Dayal. Pandey, one of the: petitioners in‘one of the writ ‘peti- “s 7 “tions, ‘who were placed in similar situation as the contestin g respondents a - swho were placed in similar situation-as- the contesting respondents J appeared before - the selection committee but it was due to some ° a misunderstanding’ on the part of the Executive Engineer (Workshop. ~ Division) -under whom: they. happen2d ‘to be’> posted - although ‘their ~~ _ original Ietter- or appointment contained: ‘no such: stipul: ation-that’ they aa - would have. ‘to appear before the: selection committee, uy :
a,
= their seniority. It also held that’ the revised gradation list’ showing the - . contesting: respondents above the’ petitioners on ‘the basis’ of the. two “orders dated. 18th Anguat # and, 26th September, 1964 was bad: in law. |
“On the crucial point whether the two- otders “dated: 18th August a and 26th. September 1964. ‘making retiospective . appointments were = ‘the various authorities. cited before it. °
* Consequently, the High ‘Court quashed “a he. gan rae a . — re . 8 :
y
.oh
606 7 aa - SUPREME: cour REPORTS mo [1984] 2 S.G.R. | ed
~ two, orders which had fixed the date of. publication of the: result of. ‘diploma i in mechanical/electrical enginecring examination as the date” ‘of commencement of length of services of temporary overseers. The seniority list prepared in pursuance of the order dated 17th November -
' 1973, insofar, as it relates to the contesting réspondents vis-a-vis the .
petitioners in the three petitions was also qushed. ‘The order of promo-§ tion of some.of the contesting respondents, namely, Ramendra Singh, —
Bhola Nath Choudhary, Rajéshwar Sinha, Ramchandra Prasad and
‘fe
U Udai Narain ‘Singh: was also’quashed. . an
' wis
The contesting respondents’ ‘have now come ‘to challenge the:
order of the High Court by special leave: under-Art: 136 of the Con- ° Stitution. The State of’ Bihar has also ‘filed three separate appeals, a
“against the sa me order. and for the same ‘relief,
° toe - . . c)
"The crucial question fot consideration in this case is whether te appointment ‘of the contesting respondents, ‘arrayed as .appellants in the first batch. of three appeals, by-the two orders. dated 18th August and 26th September, 1964, _ with retrospective effect i is bad,in law.
¢
"Shei AK. Sen along with Shri GL. Sanghi apparing for: the petitioners, now arrayed: as respondents in these ‘appeals supported.
__ the judgment of the High Court. Their main contention was that the ‘contesting respondents. had not acquired the requisite. qualification - on the date of their appointment and, therefore, their appointment by orders dated 16th August and. 26th. September, 1964, with retrospec-. tive effect was in the teeth of r. l.of the PWD Gode, and*in an¥ease there can: be no retrospective appointment of the contesting respondents
7 from the date of passing their diploma exemination. inasthuch as it - affected: the seniority of the petitioners in the revised gradation list. ”
a a »
Shri. Lal Narain ‘Sinha assisted by. She RK. Garg: anpearing for. the (petitioners) contesting respondent appellants, Faised the f ollo- wing three contentions:
ee mo, eo aoa . 1.. Tlé impugned orders are about ten years old and the. peti-
“tioners could not be permitted to challenge those orders’ after the lapse of. such a lor, time.
wee + v7 * se 8” The High Court itselfjhad made a discrithination inasmuch as . , the writ” petitions against Keshav Singh and Awadesh: Kumar‘ a
Singh have: already been dismissed. -
-,° 3, In the absence | ‘of, any statutory rule or: rules framed an under Art. 309 of the. Coristitution, it was open to the Govern-
« ment to make appointments to suit the exigencies of the situa- 2 eo. 7 ation. 2 re Cre ‘
¥
Poot. The High Court has: given detailed. reasons . for not accepting”:
the contention of undue. dealy in filing the “writ petitions, ‘It is not necessary ‘to Tepeat those -grounds over. again. We. -fully agree’ _ with the-view taken by: the Hi gh Court that the writ petitions filed by _ 7 the petitioners could not be dismissed on the ground of laches.:
s r . "As regards the second contention of Shri Lal Narain Singh; we - are of the view that the mere fact that the writ petitions have been | - dismissed ‘ against Keshav Singh cand / Awadesh” ‘Kumar Singh,
_ will not bé a ground for setting aside the : impugned order of the High |
« Court. The contesting respondents have ‘fo show that the two orders
_ dated .18th August and’ 26th. ‘September, 964 making retrospective
, apointments were valid: one. . ; oo oop ie
7. As regarils the third contention; Shri Lal Narain Sinha submits 1 that the executive power of the Staté is co-extensive with its legislative power and therefore if-the State- -can pass an enactment so also, it can. pass orders in. exercise. of its’ executive power, as contemplated by wo, RAMENDRA SINGH V. JAGDISH PRASAD > (Misra J) 607 yet
Art. 162 of the Constitution to suit the exigencies ‘ofa particular situa- _
-tion: In the instant case, as stated earlier, the World Bank project was . _ undertaken by the. PWD in. 1962. A large number of mechanical over-* seers. were needed as the project I had to be exécuted on, emergency cbasis within ‘a short tim and there be eing dearth of qualified. hands
“persons. who weré working only.as sub-overseers or who had appeared —
‘at the diploma examination but had not passed were appointed against _ sanctioned posts and were-permitted to draw the pay scale of overseers . from the date of the passing of the diploma examinatiqn: - en
Ny
' There is no denying. the fact that| the executive power of.the aos
Moe
BO as aa vooN
608 . ~ SUPREME COURT REPORTS | [1984]. 2 S. CR
A | “State is inno way. narrower than the legislative power, But the question “is whether in exercise ‘of that power the State in violation’ of Art. 16
'“. of the’ Constitution could make rétrospective appgintment of the con;
. -* ” testing respondents i in the instant case so as to affect seniority of the. sO __ Petitio: yeTS, o. —— :
-
B | | ye yoo. For the respondénts reliance -was placed on Staté of Punjab v. Rishan ‘Dass, Tn that case pursuant to certain charges against a police constable hig entire service with permanent effect was forfeited, which ‘meant reducing his salary to the starting point in the time seale for . _ + constables. The constable challenged the order by filing a regular suit.ny “C The. two courts below decreed the-suit-holding that there was flagrant ~ . violation of Art. 311 (2) of ihe Constitution as the impugned" 4 order “amourfted to reduction in tank. This Court interpr eted the expression “seduction in rank’ anid heid: .
x
DD: oC _ “The expression ‘reduction.in rank’ in the article, therefore eans reduction from a higher to a lower rank or post when ~ Pa) imposed as a-penalty. Therefore, an order forfeiting’ the past "service which has. earned a government servant increments "inthe post or rank he holds, however adverse itis to him, affecting his seniority within the rank to which hé belongs, or his future * i Oe ~ chances of promotion ‘does not attract the article. His remedy, ‘ therefore, is confined to the rules of service governing his post.” 4
“? :
. The impugned orders in the instant case may not have resulted. “= > in reduction of rank but all the same they affected, the seniority of the . F _ petiotioners which eventually might result in ) reducing their chances a for Promotion. 7 * ' ‘ . . ‘Reliance was next placed on B.N: Nagarajan & Ors. v.. State. * of Mysore & Ors®, Ore of the arguments advanced in that case was o G. that till the rules are made in that behalf no recruitment could be made ~* to any service. This argument was, however, repelled by this Court, firstly because, it was not obligatory under proviso to Art. 309 to make | . rulés of recruitment, ete. before a service could be constituted or :
eg .
H . = me) [1971] 35. CR. 389. (1) [1955] 2 S.CR. 225. 7”
sobs mo i
‘othe State has powet to make tules;' and it follows from this that . ~ the State Goyernment will have executive power in. respect of List
" RAMENDRA SINGH ¥. JAGDISH PRASAD (Misra J.) 609 - post’ ‘created or filled; Secondly the. State Government had ¢ executive AD power in relation to all matters with respect to which‘the, legislature of -
“TI, Entry 41, State public Services. Relying on Ram Jawaya. Kapoor v. State of Punjab". Rami was held that it was not necessary that there Should be a law alteady in: existence before’ the. executive: “ig.” enabled, a B to function and ‘that the powe ers of the executive were limited merely .
' to the carrying out of these’ laws. ‘There was wnothing i in the terms \of
Art. 309 of the Constitution which abridges the ‘power of the exe:
‘cutive to act under Art. 162 of the Constitution without a law. The: ~ ": Court, however, piit a word: of caution id mentioning that’ if there: ‘js stautory rule or an: “Act on the matter, the Executive must abide © Cc by that Act of rule‘dnd: it’could: not in exercise bf executive power. an t
' powers it todo so. This Court, however, refrained from deciding this’.
under Art. 162 of the Constitution ignore or act contrary to that | rule OF, Act..
i .
"- - The second contention in the above case-was that the Executive.» D~ could not frame rules retrospectively unless the Act: specifically’ em- point because ‘in: their. opinion the a pedl could be disposed of on
’ another ground. This Court obsérvéd that assuming for the: sake ‘of .
agument that .the Mysore State Goyerninent could not make rules
_ retrospectively ‘and that the rules were thus void'so fat-as théy operated E ~ wh.
retrospectively, proceeded to. _ignore ‘those rules: and td examine whether the appointments-made on Oxtober'31,,1961 could be upheld.
. The Court camé-to the conclusion that those appointments. could ’
be considered to have been validly made ‘in exercise of the ‘executive +
. power ofth the State ‘under Art. 162 of the Constitution.
1 % . “For. the appellants. strohg reliance was also placed upoh “Rajendra” Narain Singh & Ors. State of Bihar & Ors. (2) It was laid down in that ‘ease that in the absence of any legislation on the subject ora tule framed “under the proviso to” Art. 309 of the Constitution, the State Govern; ment could regulate its ‘public seryices in the exercise’ ‘of its executive G- power. In the above case. there was no statute or any rule framed under the provision to Art. 309 to determine the séniority as between the direct. - recruits and the ‘Promoters. ‘The determination of the seniority ‘on the t t z
“W196 3 SCR, 62K - Ss OH.
‘a Q) 11980} 3 Ss. CR 450... - q - a ‘.
Ho (1977) 3 SCR. 775.
enn Oo ve . . '
610. SUPREME COURT REPORTS — [1984] 2s.c.R.
basis of continuous officiation was held to be valid on-the basis of the decision in S.B. Patwardhan’s case.(+) There is no gainsaying the fact that the executive power of the State is co-extensive with the legislative power, but whether the exercise of the power can be in such a way as *to,offond Art. 16 of the Constitution. The retrospective appointment
“ of the respondents i in the aforeasaid writ petitions affected the seniotity of the Fespondents.
x . \ . .
This question, however, need not detain us as the point in
- question is covered by R.N. Nanjundappa v. T. Thimmiah & Any.) In that case the respondent: Thimmiah was appointed through the
Public Service: Commission as an Assistant Geologist in the Depart- ”
ment of Geology in the Mysore Government in 1951 in the grade of Rs. 125-10-175. When the Kolar Gold Fields School of Mines was setup in July 1957 the respoadent was sent on deputation for two years as. Vice-principal ofsthe School of Mines. ,When the then Principal of the School of Mines, who was employed ona part time basis on an allowazice of Rs. 200/- left\on 22nd July 1958, the respondent who was Vice-Principal and was also doing the duties of Principal since 15th February 1958, was appointed as officiating
Principal with effect from 22nd July, 1958 in the grade of,
‘Rs. 500-30-800 by. an order dated 25th September, 1958. On 3rd April, 1959 the State Government in modification of the notifica-
" tion dated 25th September, 1958 appointed the respondent as tem- _- poraty officiating’ Principal with effect from 15th February, 1958.
The Mysote Education- Department Service Rules’ 1967 regularised the appointment of the respondent. The revelant portion of the the Rules reads : sO a
“Notwithstanding any rule made under the proviso to’ article 309° of the Constitution of India, or any other rules or Order in force, at any time, Dr. T. Thimmiah, B.Sc. (Hons.) Ph:D. (Lond.) F.G.S, shall be deemed. to have been regularly appointed as Principal, School of Mines, Ooragaum, ,Kolar Gold Fields, with effect from 15-2-1958.”
| Q)[I972J2SCR799. -
' of
This rule: was challenged by the appellants on various | grounds : . mo, a
"nce * a Regulatidns; 1943, the Mysore State Civil-Services General’
se a . \ - . rs a ; of being made” for a particular. person or entity, aN 4 1 ' - an ey ont oe a ee ; . a RAMENDRA SINGH Y. JAGDISH PRASAD > (Wisra, J). _ «° 6It ee
(a) That the respondent: was ‘governed: by the Mysore Service A Df ae Recruitment), Rules, 1957-'as well as the Mysore Education." 7 Department. ‘Services (Technical Education Department) po Ue
(Recruitment) Rules, 1964¢ 7 _: Y
" (b) That the respondent was in Class IU service and his appoint-.
we ~, ° ment by the imougned regulation amounted to his. promo- . oN oF op ei, ° tion* from Class HI service to Class J. If so, it is hedged -
“a by two limitations as contemplated by’ ‘sub-caluses (a) and’s-
AG —— (b) of rule 4 (3) of the Mysore State Civil Services. Rules,
. 1957, ive. (1) it has to belon the, basis of merit and suitability — a oe \, ; 28 7 with due regard to senidrity from among persons eligible for , ot . ". promotion, and (2) it‘ ‘has to be on the basis. of seniority- -. cum-merit from among persons. eligible for promotion. . nn s - wot . . “ :
. The stand of the respondent, however, was that (1) les was 'a-
» local candidate in service and, therefore, the aforesaid: miles did not . x ~ ” apply to him and the regularisation of his appointment was valid; (2) 0 yt “under ‘Act.:162 of the.Constituition regularisation would in itself bea ar
- mode of exercise of power of appointment ofthe Executive Govern- > “ ~. ment. Such an Appointment even if made in the shape of rules under ~ - Art. 309 could not be ‘attacked on the ground of being made forzone E.
. person just asa piece of legislation could not bea itiacked on the ground | or
~ ‘ ee . . . : . ae
‘The ‘High Court: came ‘fo the, conclusion’ ‘that- ‘the appointment of the. respondent’ could -be regularised with | effect from: any dite as -F ~ he was a local candidate within the’ meaning of. the: Mysore Govern-. * ment Seniority Rules, 1957. This Court in appeal, however, reversed . the’ judgment 7 the High Court and observed:
a!
No
“No one can deny the power of the Government to appoint. an ene If it were a case of direct appointment or if itwere a case of appoint: _ment ofa candidate by competitive examination or if it were
‘a case of appointment. by selection recourse to rule under “Article .f oe 309 for regularisation would not be necessary. Assume that _ "+. rules under. Atticle 309 could be made'in respect of appointment ~ FY. . of one man but there: ‘are two limitations.’ Article 309 speaks, of ’ Sloe, ss
‘p.
1 1
SUPREME COURT REPORTS. {1984] 2 SOR. . rules for: appointment and general conditions of service. Regulari- sation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules ahd if the ‘effect of ‘the regularisatidn. is to niullify the
_ operation and effectiveness of the rules, the rule itself is open to
“and. appointment are’ infringed and the impeached rule cannot - ' be permitted to stand to operate as 4 regularisation of appoint- . ’ ment of one person in utter defiance of rules requiring condside- - criticism on the ‘ground that it is. in violation of current rules,
‘Therefore the relevant rules ‘at the material time as to promotion ration of Seniority and merit in the case of promotion and con- sideration of appointnient by selection or by competitive exarhi-
. nation”
. ! \ Ly * . . - . . »
“The” Court gave. further « reasons for holding the reglatisaticn to be bad in law. It observed : . ot
- “This regularisation is bad for. the following reasons,
"First, regularisation is not itself a mode of appointment. Second- .
Jy, the modes of appointment are direct recruitment-or selection of promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer,
= ‘from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promo-
Lr fos tion it would ‘not be valid because it would be a promotion not ..
on the basis of seniority-cum-merit buta promotion of some one who was in Class I] to Class I. Even with regard to appoint-
_ soent under rule’16 by transfer of a person holding an-equivalent
“: grade the appointment would be . offending the rules because it - would. not be. transfer from an Equivalent grade. Again, merit and seniority could not be disregarded because the respondent
- was not in thé same class as the Principal of the School of Mines. . The pay of the Principal was Rs. 500-800 where as the respondent’ was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus”
an allowance of Rs. 15”.
"The Court also prought, out the distinction. between the scope of Att. 309 and Art.*1/62 of the Constitution. It observed } fete
. j » : . ®
~reee"
"26th September, 1964 which putported - to appoint the sub-overseers.-
++ vt mc “
7 ‘ a . . ry . . 4
““Theie were 1957 ules which ‘Spoke of appointment by .
compttitive- examination of by selection or by promotion.Even
' = Gf specific rules of recruitment for/such services. were not made . ° the. rule as to appointment by competitive examination or
" Selection or by’ promotion was there. Article 162 does not confer power of regularisation. Article: 162° does not confer power
~ son the. Governiment. to make. rules: for the recruitment ot ‘ conditions of service. Rules are not for the, purpose of validating an? illegal ‘appointment’ or — for making ‘appointments or promotions or transfer. Rules under “Article? 309. are for the | , SG purpose of laying down the conditions of service and recuritment.
Therefore, regularisation -by the way of rules under Article 309 ‘in the present case by stating that. ‘notwithstanding’ anything in "the rulbs the appointment of the. respondent’ was being regula- | rised was in itself violation of the rules as to appointment and as * to cadre and also as to the proper s selection’’.
“In view of this clear authority, it cannot be argued for ‘the ‘appellants . _ that they could be appointed with retrospective effect so as to affect _ the seniority of the respondents. The orders dated 18th August and named therein as temporary overseers from: the date of Publication ‘of their result. of diploma | examination, are clearly violative of Arts, 14. ¢ and: 16 of the: Constitution inasmuch. as the, , Petitioners had: already.
Z “, been appointed as overseers by selection. committee. consitituted under
% :
The rules contained in‘P.W.D. Code. The order of temporary appoint- ~~ ment by the’ impugned orders dated 18th August and 26th ‘September,,
~~ 1964 conferred national seniority on the contesting ‘respondents for* ". the period while they were actually” “working as stib-overseers in the ..
_ lower scale outside the cadre of overseers. The High Court ‘in. our ‘ opinion was fully justified 3 in allowing the writ petitions in 1 part.
vs ‘ .
rwe allow the parties to-bear their own costs. i rr
XQ
' ‘P.B.R. mc , a, roe TI Appeals dismissed. ,
\. RAMENDRA siNGH V. JAGDISH hs (Misra J) 7 61B
For the reasons given above the appeals: * must fail. They ‘are « accordingly dismissed: In the circumstances of the . case, however, ©