Ramendra Singh Vs. Jagdish Prasad
& Ors  INSC 35 (17 February 1984)
MISRA, R.B. (J) MISRA, R.B. (J)
VENKATARAMIAH, E.S. (J)
CITATION: 1984 AIR 885 1984 SCR (2) 598 1984
Civil service : persons not qualified
appointed to higher posts to meet emergent situation-If could be given
seniority over persons appointed under rules subsequently.
In connection with the execution of a 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 overseers. Since at that time there was acute shortage of qualified
overseers the Department had appointed, 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 had not yet passed it. In the meantime, the
respondents (petitioners before the High Court) were selected by a Selection
Committee constituted in accordance with he procedure laid down in Bihar Public
Works Department Code.
After they passed the diploma examination the
Chief Engineer had in 1964 appointed the appellants (contesting respondents
before the High Court) as temporary overseers against the sanctioned posts from
the date of publication of results of the diploma examination. In 1973, a
gradation list 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 Chief Engineer appointing the
appellants reproductively as overseers on the ground that while they were
appointed after following the procedure prescribed under the rules, the
appellants at the time of their appointment as overseers were neither qualified
to be appointed as overseers nor were they selected by a Selection Committee
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
appellants were in fact junior to them and that their later promotion was
The High Court held that the Public Works
Department Code in accordances with which the respondents were recruited
directly contained merely departmental instructions and had not acquitted
statutory force and that, therefore, 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 revised gradation
list, showing the appellants above the respondents, on the basis of the 1964
orders was bad in law. Consequently, the High Court quashed that part of the
two orders which had fixed the date of publication of the result of diploma
examination as the commencement of length of service of temporary overseers.
599 In appeal to this Court is was contended
on behalf of the appellants that since the executive power of the State is
co-extensive with its legislative power, in the absence of a statutory rule
framed under Article 309 of the Constitution, it was open to the executive, in
exercise of its executive power under Art. 162 of the Constitution, to make
appointment to meet the exigencies of a situation.
Dismissing the appeal, ^
HELD: The impugned order of 1964 which
purported to appoint the sub-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 overhears by a Selection Committee constituted under the
rules contained in the public Works Department 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 yet they did affect the seniority of the respondents which
eventually might result in reducing their chances for promotion. [613 D-F]
There is no gain-saying the fact that the executive power of the State is
co-extensive with the legislative power and that it is not necessary that there
should be a law in existence before the executive is enabled to function and
the power of the executive is limited merely to the carrying out of the laws.
There is nothing in terms 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 rule or an Act on a matter the exercise of its executive
power under Art. 162, ignore or act contrary to that Rule or Act.. [609 B-C]
B.N. Nagarajan & Ors. v. State of Mysore & Ors.  3 SCR 682; Ram
Jawaya Kapur v. State of Punjab  2 SCR 225; Rajendra Narain Singh &
Ors. v. State of Bihar & Ors.
 3 SCR 450; S.B. Patwardhan's case
 3 SCR 775 and R.N. Nanjundappa v. T. Thimmiah & Anr. 2 SCR
799, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 308- 313 Of 1977 Appeals by Special leave from the Judgment and Order
dated the 8th September, 1975 of the Patna High Court in C.W.J.C. Nos. 1419/73,
467/74 and 522 of 1974.
L.N. Sinha, R.P. Singh, R.K. Jain, Suman
Kapur, for the Appellant in CA.No. 308 of 1977.
R.K. Garg. R.P. Singh, R.K. Jain & Suman
Kapur, for the Appellant in CA. 309 of 1977.
600 R.K.Jain for the Appellant in CA. 310/77.
L.N. Singh and D.Gourdhan for the Appellant
311-13 L.N. Sinha, D. Goburdhan for
Respondents 3-7 in CA.
308/77 and for Respondents Nos. 2-6 in CA.
309/77 & for Respondents 2 to 4 in CA No. 310/77.
M.K. Ramamurthi D.P. Mukherjee for
Respondents 12-13 in CA. No. 308/77 & RR 9-10 in CA. 310/77.
U.S. Prasad for Respondent No. 4 in CA.
G.L. Sanghi, Radha Mohan & M.L. Verma for
RR. 1, 2 & 16 in CA. 309/77 & for R-11 in CA. 310 of 1977.
Jaynarain, R.P. Singh, R.K.Jain & Suman
Kapoor for Respondents in CA. 311-313 of 1977.
A.K. Sen, Radha Mohan Prasad & M.L. Verma
for RR. 1 & 2 in CA. 313 of 1977.
The Judgment of the Court was delivered by
MISRA, J. This bunch of appeals is directed against a common judgment and order
of the Patna High Court dated 8th September, 1975 allowing three petitions
under Art. 226 of the Constitution in part.
The material facts to bring out the points
for consideration in these appeals lie in a narrow compass. The Public Works
Department in Bihar had a very small mechanical organisation. In 1962, however,
it undertook the execution of a World Bank project. In that connection a number
of mechanical overseers were needed. As the project had to be executed on an
emergency basis within a short time and 601 `there being dearth of qualified
overseers, persons who were working only as sub-overseers or persons who had
appeared at the diploma examination in engineering, but had not passed the
same, were appointed against the sanctioned posts on a provisional basis. There
were some others who were also appointed as mechanical overseers on temporary
basis in the World Bank project, a wing of the Public Works Department, after
appearing before a selection committee duly constituted according to r.1,
Appendix II of the Bihar Public Works Department 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-charged Overseers 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 constituted for the purpose. The committee will
constituted for the purpose. The committee will consist of three members
including the Chief Engineer, who will be the Chair man of the committee. The
other two members will be nominated by him with the approval of the Government
in the Public Works Department from time to time".
The Chief Engineer by orders dated 18th
August and 26th September, 1964 appointed among others the following persons,
already working as sub-overseers in the department as temporary overseers
against the sanctioned posts on their passing the diploma examination from the
date of publication of their results of the diploma in mechanical/electrical
1. Ramendra Singh
2. Keshav Singh
3. Bhola Nath Chaudhary
4. Awadesh Kumar Singh
5. Rajeshwar Sinha
6. Ram Chandra Prasad
7. Udai Narain Singh
8. Sunil Kumar
9. Rajnandan Pd. Singh
10. Gopal Ram
11. Sidh Nath Singh 602
12. Prem Chand Prasad, and many others who
are not parties here.
It appears that a provisional gradation list
of overseers was prepared. Certain overseers who felt aggrieved by the
provisional list made various representations 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 March, 1974.
The revised gradation list dated 17th
November, 1973 and the two orders dated 18th August and 26th September, 1964
appointing the aforesaid twelve persons as temporary overseers with
retrospective effect and the order dated 13th March, 1974 promoting some of
them as Mechanical Sub- Divisional Offers were challenged by three separate
writ petitions: (1) writ No. 1419 of 1973 filed by Shyam Dayal Pandey, (2) writ
No. 467 of 1974 filed by Ful Chand, and (3) writ No. 522 of 1974 filed by
Jagdish Prasad and Mohammad Shamsuddin. The respondents in the three petitions
including the aforesaid twelve persons were common, though differently
It would be convenient to identify the
parties with reference to the writ petitions. The writ-petitioners therein will
be referred to herein after as the petitioners and the above mentioned twelve
persons, whose retrospective appointment has been challenged, as the contesting
The case of the petitioners in the three
petitions has 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 to r. 1 referred to above. The appointment of the contesting
respondents by orders dated 18th August and 26th September, 1964 with retrospective
effect has been challenged on the ground that they were temporary mechanical
sub-overseers and had not got the requisite qualification for being appointed
as overseers nor did they appear before committee as required by r. 1 of the
PWD Code and in any case they could not be appointed with retrospective effect.
It was further pleaded that the contesting respondents were junior to the
petitioners but in 603 the revised gradation list the contesting respondents
were shown above the petitioners on the basis of the aforesaid two orders dated
18th August and 26th September, 1964. The promotion of some of the contesting
respondents as mechanical sub-divisional officers was also bad on that account.
The contesting respondents as well as the
State of Bihar filed a return justifying the appointment of the contesting
respondents as well as the promotion given to some of the contesting
respondents as mechanical sub- divisional officer. On the contentions of the
parties, the High Court formulated the following points for consideration:
1. Whether the impugned gradation list had
been prepared in accordance with law?
2. Whether the promotion of various
respondents on the basis of the said gradation list is justified?
3. Whether the appointment of the respondents
was bad as they had not 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 result of diploma in
mechanical/electrical Engineering examination, are justified and in accordance
with law and whether the same could have been made the basis for preparing the
gradation list? While supporting the appointment of contesting respondents on merits
two preliminary objections were raised on behalf of the contesting respondents
about the maintainability of the writ petitions:
1. None of the requisites of r. 1 of the PWD
Code was complied with while constituting the selection committee and this being
the position the petitioners themselves were not selected by 604 a duly
constituted committee, and, therefore, they had no right to assail the
gradation list and to challenge the appointment of the contesting respondents
under Art. 226 of the Constitution.
2. The petitioners could not challenge the
gradation list without assailing the orders dated 18th August and 26th
September, 1964 on which the gradation 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 gradation list that would virtually
amount to permitting the petitioners to challenge those orders.
The High Court overruled both the preliminary
objections. The first preliminary objection was overruled on the ground that
the requirements of r. I of the PWD Code are not mandatory, they are merely
departmental instructions which had not acquired the statutory force and the
petitioners could not be non-suited merely because there was no compliance of r.
1 of the Code. The second preliminary objection 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 respondents were appointed retrospectively from the date of the
publication of the results of diploma in mechanical/electrical engineering
examination, 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 contesting respondents were placed above the petitioners;
(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
aforesaid 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 of the 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.
Coming to the merits, the appointment of the
contesting respon- 605 dents was challenged by the petitioners on the ground
that they had not appeared before the selection committee as required by r. 1
and therefore their appointment was illegal and at any rate they could not have
been placed higher than the Petitioners in the revised gradation list.
The High Court negatived the contention on
the self same ground on which the preliminary objection No. 1 was overruled.
Rule I of the PWD Code was merely a departmental instruction and it had not
acquired. the statutory force therefore, the appointment of the contesting
respondents could not be held to be invalid merely because they had not appeared
before the selection committee. Besides, there was no such stipulation in their
initial order of appointment nor were they called for appearing before the
selection committee. Keshav Singh and Sunil Kumar, two of the contesting
respondents and one Shyam Dayal Pandey, one of the petitioners in one of the
writ petitions, who were placed in similar situation as the contesting
respondents who were placed in similar situation as the contesting respondents
appeared before the selection committee but it was due to some misunderstanding
on the part of the Executive Engineer (Workshop Division) under whom they
happened to be posted although their original letter of appointment contained
no such stipulation that they would have to appear before the selection committee.
On the crucial point-Whether the two orders
dated 18th August and 26th September 1964 making retrospective appointments
were the various authorities cited before it.
The Court further held that the petitioners
were initially appointed provisionally but after they appeared before the
selection committee they were appointed temporally and, therefore, the services
of the petitioners from the date of their appointment could be counted while
fixing their seniority, whereas those of the contesting respondents, who were
provisionally appointed could not have been counted for fixing 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 August and 26th
September 1964 was bad in law.
Consequently, the High Court quashed only
that part ofeth 606 two orders which had fixed the date of publication of the
result of diploma in mechanical/electrical engineering 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 respondents vis-a-vis the petitioners in the three
petitions was also quashed. The order of promotion of some of the contesting
respondents, namely, Ramendra Singh, Bhola Nath Choudhary, Rajeshwar Sinha,
Ramchandra Prasad and Udai Narain Singh was also quashed.
The contesting respondents have now come to
challenge the order of the High Court by special leave under Art. 136 of the
Constitution. The State of Bihar has also filed three separate appeals against
the same order and for the same relief.
The crucial question for consideration in
this case is whether the 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 is bad in law.
Shri A.K. Sen along with Shri G.L. Sanghi
appearing 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 retrospective effect was in the teeth of
r. 1 of the PWD Code, and in any case there can be no retrospective appointment
of the contesting respondents from the date of passing their diploma
examination inasmuch as it affected the seniority of the petitioners in the
revised gradation list.
Shri Lal Narain Sinha assisted by She R.K.
Garg appearing for the (petitioners) contesting respondent appellants, raised
the following three contentions:
1. The impugned orders are about ten years
old and the petitioners could not be permitted to challenge those orders after
the lapse of such a long time.
2. The High Court itself had made a
discrimination inasmuch as the writ petitions against Keshav Singh and Awadesh
Kumar Singh have already been dismissed.
3. In the absence of any statutory rule or
rules framed under Art. 309 of the Constitution, it was open to the Government
to make appointments to suit the exigencies of the situation.
The High Court has given detailed reasons for
not accepting the contention of undue deal in filing the writ petitions. It is
not necessary to repeat those grounds over again. We fully agree with the view
taken by the High Court that the writ petitions filed by the petitioners could
not be dismissed on the ground of laches.
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 and Awadesh Kumar Singh, will not be a
ground for setting aside the impugned order of the High Court. The contesting
respondents have to show that the two orders dated 18th August and 26th
September, 1964 making retrospective appointments were valid one.
As regards the third contention, Shri Lal
Narain Sinha submits that the executive power of the State 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
Art. 162 of the Constitution to suit the exigencies of a particular situation.
In the instant case, as stated earlier, the World Bank project was undertaken
by the PWD in 1962. A large number of mechanical overseers were needed as the
project had to be executed on emergency basis within a short time and there
being dearth of qualified hands persons who were 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 examination.
There is no denying the fact that the
executive power of the 608 State is in no 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 retrospective appointment
of the contesting respondents in the instant case so as to affect seniority of
For the respondents reliance was placed on
State of Punjab v. Kishan Dass. In that case pursuant to certain charges
against a police constable his entire service with permanent effect was
forfeited, which meant reducing his salary to the starting point in the time
scale for constables. The constable challenged the order by filing a regular
suit. The two courts below decreed the suit holding that there was flagrant
violation of Art. 311 (2) of the Constitution as the impugned order amounted to
reduction in rank. This Court interpreted the expression 'reduction in rank'
"The expression 'reduction in rank' in
the article, therefore means reduction from a higher to a lower rank or post
when imposed as a penalty.
Therefore, an order forfeiting the past
service which has earned a government servant increments in the post or rank he
holds, however adverse it is to him, affecting his seniority within the rank to
which he belongs, or his future chances of promotion does not attract the
article. His remedy, therefore, is confined to the rules of service governing
his post." 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
petitioners which eventually might result in reducing their chances for
Reliance was next placed on B.N. Nagarajan
& Ors. v. State of Mysore & Ors. One of the arguments advanced in that
case was 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 rules
of recruitment, etc. before a service could be constituted or a 609 post
created or filled; secondly the State Government had executive power in
relation to all matters with respect to which the legislature of the State has
power to make rules;
and it follows from this that the State
Government will have executive power in respect of List II, Entry 41, State
public Services. Relying on Ram Jawaya Kapoor v. State of Punjab. Ram was held
that it was not necessary that there should be a law already in existence
before the executive is enabled to function and that the powers of the
executive were limited merely to the carrying out of these laws. There was
nothing in the terms of Art. 309 of the Constitution which abridges the power
of the executive to act under Art.
162 of the Constitution without a law. The
Court, however, put a word of caution in mentioning that if there is statuary
rule or an Act on the matter, the Executive must abide by that Act or rule and
it could not in exercise of executive power under Art. 162 of the Constitution
ignore or act contrary to that rule or Act.
The second contention in the above case was
that the Executive could not frame rules retrospectively unless the Act
specifically empowers it to do so. This Court, however, refrained from deciding
this point because in their opinion the appeal could be disposed of on another
ground. This Court observed that assuming for the sake of argument that the
Mysore State Government could not make rules retrospectively and that the rules
were thus void so far as they operated retrospectively, proceeded to ignore
those rules and to examine whether the appointments made on October 31, 1961
could be upheld. The Court came to the conclusion that those appointments could
be considered to have been validly made in exercise of the executive power of
the State under Art. 162 of the Constitution.
For the appellants strong reliance was also
placed upon Rajendra Narain Singh & Ors. v. State of Bihar & Ors. It
was laid down in that case that in the absence of any legislation on the
subject or a rule framed under the proviso to Art. 309 of the Constitution, the
State Government could regulate its public services in the exercise of its
executive power. In the above case there was no statute or any rule framed
under the provision to Art.
309 to determine the seniority as between the
direct recruits and the promotees. The determination of the seniority on the
610 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 offend Art.
16 of the Constitution. The retrospective
appointment of the respondents in the aforesaid writ petitions affected the
seniority of the respondents.
This question, however, need not detain us as
the point in question is covered by R.N. Nanjundappa v. T. Thimmiah & Anr.
In that case the respondent Thimmiah was appointed through the Public Service
Commission as an Assistant Geologist in the Department 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 set up in July 1957 the respondent was sent on deputation
for two years as Vice- principal of the School of Mines. When the then
Principal of the School of Mines, who was employed on a part time basis on an
allowance 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 notification dated 25th
September, 1958 appointed the respondent as temporary officiating Principal
with effect from 15th February, 1958. The Mysore Education Department Service
Rules 1967 regularised the appointment of the respondent. The relevant portion
of the Rules reads:
"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, Oragaum, Kolar
Gold Fields, with effect from 15-2-1958." This rule was challenged by the
appellants on various grounds:
611 (a) That the respondent was governed by
the Mysore Service Regulations, 1943, the Mysore State Civil Services General
Recruitment) Rules, 1957 as well as the Mysore Education Department Services
(Technical Education Department) (Recruitment) Rules, 1964.
(b) That the respondent was in Class III
service and his appointment by the impugned regulation amounted to his
promotion from Class III service to Class I. If so, it is hedged by two
limitations as contemplated by sub-clauses (a) and (b) of rule 4 (3) of the
Mysore State Civil Services Rules, 1957, i.e. (1) it has to be on the basis of
merit and suitability with due regard to seniority from among persons eligible
for promotion, and (2) it has to be on the basis of seniority-cum-merit from
among persons eligible for promotion.
The stand of the respondent, however, was
that (1) he was a local candidate in service and, therefore, the aforesaid
rules did not apply to him and the regularisation of his appointment was valid;
(2) under Art. 162 of the Constitution regularisation would in itself be a mode
of exercise of power of appointment of the Executive Government. Such an
appointment even if made in the shape of rules under Art. 309 could not be
attacked on the ground of being made for one person just as a piece of
legislation could not be attacked on the ground of being made for a particular
person or entity.
The High Court came to the conclusion that
the appointment of the respondent could be regularised with effect from any
date as he was a local candidate within the meaning of the Mysore Government
Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of
the High Court and observed:
"No one can deny the power of the
Government to appoint. If it were a case of direct appointment or if it were a
case of appointment of a candidate by competitive examination or if it were a
case of appointment by selection recourse to rule under Article 309 for
regularisation would not be necessary. Assume that rules under Article 309
could be made in respect of appointment of one man but there are two limitations.
Article 309 speaks of 612 rules for appointment and general conditions of
service. Regularisation of appointment by stating that notwithstanding any
rules the appointment is regularised strikes at the root of the rules and if
the effect of the regularisation is to nullify the operation and effectiveness
of the rules, the rule itself is open to criticism on the ground that it is in
violation of current rules. Therefore the relevant rules at the material time
as to promotion and appointment are infringed and the impeached rule cannot be
permitted to stand to operate as a regularisation of appointment of one person
in utter defiance of rules requiring consideration of seniority and merit in
the case of promotion and consideration of appointment by selection or by
The Court gave further reasons for holding
the regularisation to be bad in law. It observed:
"This regularisation is bad for the
following reasons, First, regularisation is not itself a mode of appointment.
Secondly, the modes of appointment are direct recruitment or selection or
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 promotion it would not be valid because it would be a promotion
not on the basis of seniority-cum-merit but a promotion of someone who was in
Class III to Class I. Even with regard to appointment 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 the
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. 75".
The Court also brought out the distinction
between the scope of Art. 309 and Art. 162 of the Constitution. It observed:
613 "There were 1957 rules which spoke
of appointment by competitive examination or by selection or by promotion. Even
if 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 on the Government to make rules for the recruitment or 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 purpose of laying down the conditions of service and recruitment.
Therefore, regularisation by the way of rules under Article 309 in the present
case by stating that notwithstanding anything in the rules the appointment of
the respondent was being regularised was in itself violation of the rules as to
appointment and as to cadre and also as to the proper 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 26th September, 1964 which purported to appoint the sub-overseers
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 been appointed as overseers by selection committee
constituted under the rules contained in P.W.D.
Code. The order of temporary appointment 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 sub-overseers in the lower scale outside the cadre of
overseers. The High Court in our opinion was fully justified in allowing the
writ petitions in part.
For the reasons given above the appeals must
fail. They are accordingly dismissed. In the circumstances of the case,
however, we allow the parties to bear their own costs.
P.B.R. Appeals dismissed.