Jai Narain Misra Vs. State of Bihar
& Ors  INSC 195 (15 September 1970)
15/09/1970 HEGDE, K.S.
CITATION: 1971 AIR 1318 1971 SCR (2) 392 1971
SCC (1) 30
Civil service-Selection Post-Director of
Agriculture-Method of filling up.
The Director of Agriculture in the
respondent-State having retired the State Government wrote to the Public
Service Commission requesting them to select one of the 14 officers shown in
the list accompanying-the letter for being promoted as Director. The letter
stated that the question of seniority among those officers was still under
consideration and that the list was not arranged in accordance with seniority.
The pay scale of some of the officers in the list was Rs. 900 to Rs. 1,400 and
others Rs. 1,200 to Rs. 1,700. The selection was to be on the basis of merit
and suitability. After examining the records, the Commission recommended the
name of the appellant. The third respondent filed a writ petition and the High
Court held that the third respondent was senior to the appellant and had
greater merit. The pay scale of both the appellant and the third respondent was
Rs. 1,200 to Rs. 1,700.
In appeal to this Court,
HELD (1) The post of Director of Agriculture
is a selection post and an ex-cadre post. Selection to it is made solely on the
basis of merit and the question of seniority was not relevant. It is for the
State Government to select the most suitable officer and for discharging that
responsibility, it was open to the Government to seek the assistance of the
Public Service Commission. The use of the word promoted in the letter was
inappropriate but the nature of the post cannot be changed by the Government
using that word.
Therefore, the High Court was not justified
in going into the question of seniority, especially when there was no complaint
of mala fides either on the part of the Government or the Commission.[393 H;
394 B-C, E-F] (2) Rule 16 of the Rules regulating the Bihar and Orissa
Agricultural Services Class I promulgated on April 11, 1935 is not superseded
by the 1945 Rules which apply to Bihar Agricultural Service Class 1, Bihar
Agricultural Service Class II, General Provincial Service and special posts
outside these cadres. The 1935 Rules do not come in the way of the Government
making its selection to the post of Director, and R. 12 of 1945-Rules is not
applicable. [395 F, G; 396 B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 477 of 1970.
Appeal from the judgment and order dated
February 12, 1970 of the Patna High Court in Civil Writ Jurisdiction Case No. 1067
393 S. V. Gupte and U. P. Singh, for the appellant.
H. R. Gokhale and R. C. Prasad, for
respondent Nos. 1 and 2.
D. P. Singh, for respondent No. 3.
The Judgment of the Court was delivered by
Hegde, J. The appellant and the third respondent are serving in the
Agricultural Department of the Bihar Government.
Till February 1968 Mr. B. N. Sinha was the
Director of the Agriculture in that State. He retired in February of that year.
On, November 25, 1967, the St-ate Government of Bihar wrote to the Public
Service Commission requesting the Commission to select one of the fourteen
officers shown in the list accompanying that letter for 'being promoted as
Director of Agriculture. The pay scale of some of those officers was Rs.
900-1400 and others, Rs. 1200-1700. In that letter the Government stated that
the question of seniority of those officers is still under consideration and
the list sent was not arranged in accordance with seniority.
The Commission wrote to the Government on
April 29, 1968 asking the Government to determine the seniority of those
officer", before it is asked to recommend one of them for being appointed
as Director of Agriculture. The Government wrote back to the Commission on
September 23, 1969 stating that the question of seniority of those officers
cannot be easily settled as there were some complications and the Commission
should proceed to select one of the officers mentioned in the list solely on
the basis of merit and suitability.
After examining the records of all the
officers concerned, the, Commission recommended the name of the appellant.
Immediately thereafter the third respondent
approached the High Court with a petition under Art. 226 of the Constitution
praying that the recommendation of the Commission may be quashed and the
Government asked to make the appointment in accordance with the rules. The High
Court came to the conclusion that the third respondent is senior to the
appellant and has greater merit than the appellant. Hence under the rules he
was entitled to be promoted. This is an appeal by certificate against that
discussion. Thereafter the Government appointed the third respondent to
officiate as Director of Agriculture. It appears that the third respondent is
superannuated on the 1st of this month but be has been given a month's
It was not disputed be-fore us that the post
of Director of Agriculture is a selection post. Therefore the question of
seniority was not relevant in making the selection. It is for the State
Government to select such officer as it considers as most suitable. In this
view we think the High Court was not justified in going into 394 the question
of seniority nor will we be justified in going into that question. It may be
noted that at the time the Commission made this recommendation the pay scale of
both the appellant as well as the third respondent was Rs. 12001700.
So far as the question of suitability is
concerned, the decision entirely rested with the Government. In other words the
Government is the sole judge to decide as to who is the most suitable candidate
for being appointed as the Director of Agriculture. For discharging that
responsibility it was open to the Government to seek the assistance of the
Public Service Commission. In our judgment the High Court was not justified in
calling for the records of the Public Service Commission and going through the
nothings made by various officers in the Commission as well as the
correspondence that passed between the Commission and the Government. The High
Court overlooked the fact that the Government sought the assistance of the
Commission and not that of the High 'Court for finding out the most suitable
candidate. In this case there was no complaint of mala fides either on the part
of the Government or the Commission. That being so the interference of the High
Court in the matter of selection made by the Government was not called for.
The post of Director of Agriculture is
admittedly an excadre post. The selection to that post is made solely on the
basis of merit. Merely because the Government in its letter to the Commission
used the word "promotion", the High Court should not have treated the
case as one of "Promotion". The word "Promotion" used in
the Government's letter was an inappropriate word. What the Government really
meant was selection of a person to be posted as the Director. The nature of the
post cannot be changed by the Government's using the word
"promotion". The post remains to be a selection post.
The High Court as also not right in opining
that the recommendation made by the Commission was not in accordance with the
rules. The two rules referred to by the High Court are (1) Rules regulating the
Bihar and Orissa Agricultural Service, Class I promulgated on April 11, 1935
and (2) The Rules regulating the recruitment to Bihar Agricultural Service
Class 1, the Bihar Agricultural Service Class II, the General Provincial
Service and special posts outside these cadres promulgated on July 9, 1945. The
High Court has come to the conclusion that 1935 rules were by implication
though not specifically repealed by the 1945 rules. 1935 rules make it clear
both in its preamble as well as by the definition of the, word ",The
service" that those rules do not apply 395 to the appointment to the post
of Director of Agriculture.
Further Rule 16 of those rules reads :
"The post of the Director of Agriculture
shall remain outside the cadre of the service, but subject to the provision of
rule 17 below it may be filled at the discretion of the local government by a
member of the service." Rule 17 says :
"None but a member of the Indian
Agricultural Service borne on the cadre of the Bihar and Orissa shall be
appointed to the post of the Director of Agriculture so long as any such member
is available for appointment to the post and who has not been held by the
Government of Bihar and Orissa to be permanently unfit to hold such post,
Provided that whenever the local Government consider that no officer of the
Indian Agricultural Service borne on the cadre of Bihar and Orissa is fit for
the post of the Director, the assistance of the Government of India shall be
sought with a view to procuring a suitable selection from among the members of
the Indian Agricultural Service in other provinces before any other person is
appointed to the post." From a reading of rules 16 and 17 of the 1935
rules, it is clear that the 1935 rules did not come in the way of the
Government making its selection.
Now coming to the 1945 rules, it is clear
from its preamble that those rules apply only to (1) the Bihar Agricultural
Service Class 1;
(2) the Bihar Agricultural Service Class II
and (3) the General Provincial Service and special posts outside these cadres.
The reference to the posts outside the, cadres of Class I and Class II
Services, it was contended on behalf of the appellant as well as on behalf of
the State Government refers to posts in Class I and Class II in addition to
cadre posts and not to selection posts. It is not necessary for our present
purpose to decide that question. It is clear from rule 12 of the 1945 rules
that these rules do not apply in the matter of filling up the post of the
Director of Agriculture. That rule reads :
"Whenever the Governor decides that a
vacancy shall be filled by promotion or transfer of an officer already in the
service of Government, I a reference shall be made to the Commission to advise
on such selection. The Commission shall be supplied with the records of the
officer nominated for promotion by the Director of Agri396 culture, together
with the records of officers, if any, who are senior to the nominated
officer." We are unable to visualise that any service rule could have
provided for the nomination of his successor by an officer who is about to be
superannuated. In our judgment rule 16 of the 1935 rules is not superseded by
the 1945 rules.
In the result this appeal is allowed and the
writ petition dismissed. Taking into consideration the fact that the third
respondent is already superannuated we make no order as to costs in this
V.P.S. Appeal allowed.