Raj
Kumar & Ors Vs. Shakti Raj & Ors [1997] INSC 150 (11 February 1997)
K.
RAMASWAMY, S. SAGHIR, AHMAD, G.B. PATTANAIK
ACT:
HEAD NOTE:
With
CIVIL APPEAL NOS. 924,925-984 OF 1997 (Arising out of SLP (C) Nos. 4694,
4702-4791 of 1996) AND SPECIAL LEAVE PETITION (C) 8221-8282 & 10357/96
O R
D E R I
N SLP (C) NOs. 8221-82 AND 10357/96 Mr. R.C. Verma, learned counsel
seeks permission to withdraw these petitions. they are accordingly dismissed as
withdrawn.
IN CA
NOS. 923-984 /97 (@ SLP (C) NOS. 4151, 4694 AND 4702 -4761/96 :
Application
for intervention is allowed.
Leave
granted. We have heard learned counsel on both sides.
These
appeals by special leave arise from the Division Bench judgment of the Punjab
& Haryana High Court, Made on December 20, 1995 in CWP No. 6816 of 1995 and batch.
The
admitted facts are that the posts of Canal patwaris in the Irrigation
Department of the State of Haryana are
class II posts in the State Service. Earlier, they were called Irrigation
Booking Clerks and came to be designated as Patwaris in 1981. Prior to the
formation of the State of Haryana on November 1, 1966, the recruitment of Canal
Patwaris was governed by the Punjab Public Works Department (Irrigation Branch)
Patwaris State Service, Class III Rules, 1955 (for Short, '1955 Rules') issued
under proviso to Articles 309 of the Constitution. Rule 2(i) defines
"Apprentice Patwari" to mean a person who after passing the patwar
examination is posted as a reserve against 7% of the limiting scale of Patwaris
sanctioned for a circle. Rule 4 prescribes couditions for appointment to the
service. Rule 5 postulates that no person shall be accepted as candidate Patwari
who is less than 18 years or more than 22 years (now 25 years) of age at the
time of acceptance (proviso being not relevent, omitted). Rule 6 envisages that
"No person shall be appointed to the Service unless he has passed the
Matriculation or School Leaving Certificate Examination of a recognised
university or its equivalent, but preference shall be given to candidates
possessing higher qualifications" (Proviso is not relevant, hence
omitted).
Rule *
postulates that "All appointment to posts in the service shall be made by
the divisional Officers". rule 10 (a) envisages that "Appointments to
the Service shall be made by direct appointment", Rule 10(b) provides
that:
"(b)
The Divisional Officer shall keep a register of accepted candidates for
training purposes.
Not
more than twice the number of candidates required to fill the vacancies for the
ensuing year shall be brought on to the list of accepted candidates and trained
and sent up for the examination. No candidate shall be accepted for anrolment
in the Divisional Candidate's List unless he complies with the conditions
mentioned in Rules 4, 5, 6, 7, and 9 of these Rules." Rule 12 provides
thus:
"12
(a) All candidates, who pass the examination, shall be brought on to the circle
register of passed candidates in serial order of passing the examination. When
a permanent Vacancy occurs in any Division of the Circle. The order of appointment
shall be posted from the circle register irrespective of whether he is serving
in a leave or temporary vacancy in another Division of the Circle. The order of
appointment shall be issued by the Divisional Officer. The name of a passed
candidate who reaches the age of 25 years without having been employed
temporarily as patwari shall be struck off the list.
Provided
that this maximum age limit shall be relaxed in the case of memebers of
Scheduled Castes, Scheduled Tribes and other Backward Classes to the extent of
such period as may be prescribed by Government in this behalf from time to
time, in respect of entry of such candidates into service under Government and
the names of such candidates shall be retained on the list upto that age, it is
the duty of the Superintending Engineer to examine the circles register of
passed candidates early in January each year, in order to see that sufficient
candidates are borne on the register to fill all vacancies that are likely to
occur during the next tow years, and to ensure, as far as possible, that all
candidates shall ordinarily obtain permanent employment before they reach the
maximum age prescribed under this Rule, A selection board consisting of all the
Divisional Officers of the Circles shall sit before June 1st every year to
select the candidates for training for the years in accordance with rule 11.
(b) No
person may be brought on to the circle register of passed candidates unless he
has passed the patwar examination," Rule 14 provides that "the
seniority of members of the Service shall be determined in accordance with
Circle register of passed candidates in serial order of passing the patwar
examination. If the position secured in the examination is the same, in the
case of two or more persons, their seniority shall be determined by age, a
younger member being junior to an older member. Rule 15 adumbrates as under:
"(a)
Member of the service shall be entitled to the pay scales as are given in
Appendix A provided that the scales of pay may be altered by the government as
and when necessary. They shall also be entitled to bonus, they earn in each
crop, in accordance with Chapter 12 of the Revenue Manual.
(b)
Apprentice Patwaris shall receive Rs.32/-per mensum each when not employed in
leave or regular vacancies." It is to be noted that pursuant to a query
raised by the Chief Engineer (Admn.), Irrigation Works, Punjab, by a letter
dated February 5, 1962, the then Punjab Government had clarified that the
recruitment to the posts of Canal Patwaris is to be made through the
Subordinate Service Selection Board (for Short, SSSB'.) After formation of
State of Haryana on January 28, 1970, the Governor, exercising the power under proviso to
Article 309 of the Constitution and in modification of all other Rules in this
behalf, constituted the SSSB for recruitment and appointment to Class III and
IV posts. Para 6 of the notification issued in
this behalf postulates the functions of the Board. Clause (a) thereof
adumbrates that for appointments to Class - III posts under the State
Government, except appointment of officers and employee of the Punjab and Haryana High Court Provided for
in Article 229 of the Constitution of India, the Board shall be consulted.
Clause (d) provides that the Board is also required to be consulted in the
matter of methods of recruitment and the principles to be followed in making
appointments to Class III and class IV posts, under the State Government. The
proviso thereto gives power to the State Government thus:
"Provided
that it shall not be necessary to consult the Board in respect of such posts
and matters as the State Government may, by notification, specify." It
would, thus, be seen that in the matter of recruitment to Class III and Class
IV posts 1970 Rules have modified the 1955 Rules by providing for recruitment
by the Canal Divisional Officer adumbrated in 1955 Rules. Unless there is
exercise of the power under proviso to Rule 6 excluding, by a notification
issued in that behalf, the recruitment of consulting the Board, the recruitment
to 7% posts of the Canal Patwaris in the Irrigation Department is required to
be made through SSSB. A bird's eye examination of the 1955 rules and 1970
notification, both statutory Rules, reveals that the former, to fit into the
frame work of 1970 notification need suitable amendments in particular, in the
matter of the source and method of recruitment, seniority and all related
issues. However, it is the duty of the Court to give harmonious interpretation
to the Rules so as to make them co-exist and work as a continuous whole. It is
unfortunate to notice from the record that the Government was adopting its own
procedure convenient to them, namely, in many a occasion, it appointed Patwaris
on circle basis under the 1955 Rules and in some instances, like the selection
made in the year 1974, the selection came to be made through SSSB. In other
words, the selection and the appointments to the posts of Canal Patwaris under
1955 Rules is not in accordance with the law. However, we need not declare all
the selections and appointments as illegal. It is not in dispute that for the
impugned selection made in the year 1992, The examinations came to be conducted
between April 25 and April
28, 1992 under 1955
Rules. it is also undisputed that common examinations conducted on different
dates in four centres was on uniform pattern of examinations as Statewide one.
The results thereof were declared in 1993.
Subsequent
thereto, the Government have excluded from the purview of the Board by four
notifications, a total of 47 posts of Patwaris. Subsequently, the Government
has constituted a selection committee for selection of Canal Patwaris,
consisting of Chief Engineering, YWS Unit as Chairman, Chief Engineer BWS Unit
as Member, General Manager (0) Irrigation Department as Member Secretary,
Deputy Collector, BWS/C Kaithal as Member and Executive Engineer Canal Hissar
as Co-oted member. They interviewed the candidates and came to select the
appellants in these cases.
The
unofficial respondents, who were unsuccessful in the interview, filed the writ
petitions in the High Court has held that the constitution of Selection
Committed and the selection of the appellants is ultra vires the power of the
Government. The reason in support thereof is that since 1955 Rules occupy the
field for selection, administrative instruction cannot be issued to constitute
Selection and appointment of all the appellants as Canal Patwaris.
Instead,
it directed to make appointment in terms of 1955 Rules, those who appeared in
the examinations conducted between April 25 and April 28, 1992 and remained
successful and fulfilled other qualifications in that behalf. thus these
appeals by special leave.
Shri
K. Madhava Reddy, learned senior counsel and Shri Ranjit Kumar, learned counsel
appearing for the appellants, contend that 1955 Rules have to give place to
1970 notification which envisages selection by the SSSB. By exercise of power
under proviso to para 6 of the 1970 notification , the Government excluded the
posts from the purview of the SSSB. Consequently, the Government came to
appoint the Selection Committee for selection of the candidates. The Committee
has prescribed various guidelines for selection of the candidates. Even
assuming that 1955 Rules would occupy the field, in view of the fact that the
provisions of the Employment Exchange (Compulsory Notification of Vacancies)
Act, 1959 having been in force, Rule 12 of the 1955 Rules had become
inoperative. As a consequence, the maintenance of circle - wise register by the
authorities under 1955 Rules became illegal, the Committee had duly interviewed
the successful candidates in the written examination and selected them on
merit. The unofficial respondents having appeared before the Selection, it
would not be open to them to contend that the selection of the appellants is
invalid in law. It is also contended that the appellants have been working
since the dates of their appointment and, therefore, they cannot be denied of
their appointment and, therefore, they cannot be denied of their appointment
duly mad by the Government.
Shri Jitender
Sharma, learned senior counsel appearing for the unofficial respondents and Shri
Qamarudin, Learned counsel appearing for some of them, contend that the method
of selection adopted by the Committed is without jurisdiction. Having excluded
the posts from the purview of 1970 Rules, the operation of 1955 Rules came into
vogue. As consequence, the only power the Government have is to fallow the
method prescribed in 1955 Rules and Rule 12 made thereunder. The Government,
therefore, was devoid of power to constitute a Committee for selection of the
candidates.
Since
the statutory Rules are in operation the executive instructions cannot be
issued to supplant the statutory Rules. Even on merits also, they pointed out
that the High Court has gone into the select list, method of awarding the marks
which would show that even their own procedure prescribed for awarding the mark
itemwise was not adhered to; instead lumpsum marks come to be awarded to the
candidates which method is arbitrary. It is accordingly contended that
unofficial respondents having secured high marks than the appellants cannot be
deprived of their legitimate expectation to seek appointment in accordance with
the Rules.
Having
regard to the respective contentions, the question is: whether the view taken
by the High Court in quashing the selection and appointment of the appellants
is correct in law? It is rather unfortunate that the State having filed the
appeals has chosen to withdraw the same at the last minute and sought permission
therefor. We have no option but to permit them to withdraw as they do not seek
to contest the matter on merits. Rather we have availed of the assistance
rendered by the learned counsel on either side.
From
the facts, it is seen that 1955 Rules operate as regards the qualifications and
other conditions of eligibility prescribed thereunder. They are statutory
rules.
Equally,
1970 notification of the extant 1955 Rules. In other wards, the source of
manner and method of recruitment for selection of Canal Patwaris stood modified
by 1970 notification. As a consequence, the direct recruitment of Canal Patwaris
shall be made only through SSSB.
Unfortunately,
the Government chose to select candidates at their convenience, sometimes under
1955 Rules ad sometimes under 1970 notification, according to their
convenience. But in this case, they have dispensed with both and instead
constituted a Committee for selection of the candidates having excluded from
the purview of 1970 notification, that too after written examinations were
conducted under 1955 Rules. the question, therefore, is: whether the method of
selection adopted by the Selection Committee is correct in law ? It is seen
that the procedures adopted both under 1955 Rules and 1970 notification are not
correct. After 1970 notification came to be issued, to the extent of the method
and manner of selection of Canal Patwaris, 1955 Rules stood modified and the
only competent authority to select the candidates is SSSB. The Board is
required to advertise the Vacancies and select the candidates but that was not
dome.
On the
other hand, after the examinations were conducted and results declared under
1955 Rules, the posts were taken out from the purview of the Board. The board
did not even conduct the examinations. The power of the governor under proviso
to Article 309 is constituent power and legislative in character subject to an
Act of Legislation. He need not have prior consultation with the Board for
laying the principle of recruitment or withdrawal of the posts from the purview
of the Board. The committee constituted by the Government had not conducted
written examinations. It called for interview all those who were declared
successful in Patwari examination. The selection Committee had evolved a
criteria of awarding marks to select the candidates. For academic
qualifications, they allocated total marks of 25 to be rationalised to come
within the said quota; for the written examination, maximum of 25; 5 marks were
allocated for sports qualifications, for experience, 10 marks; for
extra-curricular activities, 5 marks and for viva voce 30 marks totalling to
100 marks. But, unfortunately, as pointed out by the High Court in the
judgment, they have given a decent burial and go by to their own method of
awarding the marks to the candidates and instead awarded marks in lumpsum. the
High Court has pointed out thus:
"During
the course of arguments, on our direction the respondent- State produced the record prepared by the
Selection Committee after interviewing the candidates. No other record has been
produced in spite of out specific direction.
From a
bare perusal of the record produced it is evident that the Selection Committee
has awarded the marks to every candidate in lump.
No
record has been produced to show that the candidates were awarded marks on itemwise
basis.
The
prescribed criteria is thus:
"Mark
'C,I' Matric 3rd Divn. = 20 Matric 2nd, Prep, or +1 = 21 Matric Ist+SSLC+2 = 22
+2 Ist -BA Part I & II B.A. = 23 B.A. = 24 B.A. Ist or M.A. or B.Ed. etc. =
25 25 PATWARI EXAMINATION 230-240 = 20 241-260 = 21 261-280 = 22 281-290 = 23
291-300 = 24 301- + = 525 25 SPORTS = 5 EXPERIENCE: = 10 Extra-Curricular = 5
20 Viva Voce = 30 30 --------------------------- Total Marks = 100 100
--------------------------- Having prescribed maximum marks for each item,
necessarily they are required to apply the rationale to each of the candidates
in accordance with the academic qualification etc. acquired by the candidates.
1955 Rules give preference in the matter of selection to the person possessing
higher academic qualifications. But, unfortunately, the Government did not
adopt and apply the said rule. Equally, noting has been indicated as to the
marks awarded on each item. they had cut off the marks actually secured in the
written examination and rationalised them to come within 255 quota. Though
prescription of the marks for those items is perfectly valid and legal, but
cutting off the marks actually secured by the candidates in the common written
examination is arbitrary and unwarranted.
It is
not the case that examinations were conducted on circle-wise basis according to
the paper set by each circle.
On the
other hand, the admitted facts are that examinations were conducted between
April 25 And April 28,
1992 at four centres
on different dates in respect of all the candidates.
The
examination papers were of common standard and all were required to write the
same examination. Under those circumstances, the appropriate procedure should
have been to apply the marks as secured by them in the written examination plus
the marks awardable to the respective candidates either on the academic
qualifications or on the sports qualification or experience qualification or
extra- curricular qualification or the marks actually secured in the via voce
and to pool them as total marks secured by each candidates and the merit list
should have been prepared in the light of the Rules. On the basis of the
aggregate marks secured by candidates, select list should have been prepared
and recommendation made to enable them to appear in accordance with the
prescribed Rules: including the rule of reservation applicable to various
categories mentioned in the Rules and allotment made to the respective circles
as envisaged under 1955 Rules and all other rules issued in that behalf.
Unfortunately, this procedure has not been adopted. On the other hand, the
admitted position is that after the candidates were given training for three
months as prescribed under the 1955 Rules and written examination were
conducted, they were again called for from the respective employment exchange
and interviews were conducted thereafter.
A
Bench of three Judges of this court in Excise Superintendent vs. Visweshwara Rao
[(1996) 6 SCALE 6761 had thus:
"It
is common knowledge that many a candidates are unable to have the names
sponsored, thought their names are either registered or are waiting to be
registered in the employment exchange, with the result that the choice of
selection is restricted to only such of the candidates whose names come to be
sponsored by the employment exchange. Under these circumstances, many a
deserving candidates are deprived of the right to be considered for appointment
to a post under the State. Better view appears to be that "It should be
mandatory for the requisitioning authority/establishment to intimate the
employment exchange, and employment exchange should sponsor the names of the
candidates to the requisitioning departments for selection strictly according
to seniority and reservation, as per requisition. In addition, the appropriate
Department or undertaking or establishment, should call for the names by
publication in the newspapers having wider circulation and also display on
their office notice boards or announce on radio, television and employment
news- bulletins; and then consider the cases of all the candidates who have
applied. It that procedure is adopted, fair play would be subserved. The
equality of opportunity in the matter of employment would be available to all
eligible candidates." In view of this legal position, the necessary
requirement should be that they should necessarily not only notify but also
call the names from employment exchange; in addition they should give wide
publicity in the media inviting application from qualified persons for selection.
Instead,
they have adopted the procedure under 1955 Rules.
The
did not call the names from the employment exchange and conducted the
examinations for them. After the selection of the candidates, names of selected
candidates were called from the employment exchange, Obviously, the successful
candidates in the written examinations were asked to approach the employment
exchange of the concerned circle and, accordingly, names came to be sponsored .
The procedure adopted is clearly illegal denying equal opportunity to many candidate
waiting in the register of the concerned employment exchange. Therefore, the
Government hereafter should strictly follow the procedure by not only calling
their names from the employment exchange, but also by publishing in the local
and national news papers and giving wide publicity in the media as well as
getting the written examination and the interview conducted by the SSSB; marks
should be awarded strictly according to the procedure.
Yet
another circumstance is that the Government had not taken out the post from the
purview of the Board, but after the examinations were conducted under the 1955
Rule and after the results were announced, it exercised the power under the
proviso to para 6 of 1970 notification and the post were taken out from the
purview thereof. thereafter the Selection Committee was constituted for
selection of the condidates. The entire procedure is also obviously illegal.
It is
true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs.
State of & K [(1995) 3 SCC 486] and other decisions referred therein had
held that a candidate having taken a chance to appear in an interview and
having remained unsuccessful, cannot turn round and challenge either the
constitution of the selection Board or the method of Selection as being
illegal; he is estopped to question the correctness of the selection. But in
his case, the Government have committed glaring illegalities in the procedure
to get the candidates for examination under 1955 Rules, So also in the method
of selection and exercise of the power in taking out from the purview of the
and also conduct of the selection in accordance with the Rules.
Therefore,
the principle of estoppel by conduct or acquiescence has no application to the
facts in this case, thus, we consider that the procedure offered under the 1955
Rules adopted by the Government or the Committee as well as the action take by
the Government are not correct in law.
The
question then is: what would be the correct procedure under the law? Unfortunately,
no outside candidate has questioned the selection of the candidates in the
interview, In the light of what we have stated in the facts and circumstances,
the appropriate and better course would be that SSSB Should call the names of
all the candidates who were successful in the written examinations conducted
between April 25 and April 28, 1992, inter view the candidates and select them
in accordance with law laid down above. Since the appellants came to be
appointed by virtue of the selection made, they would continue in service till
the proper selection is made and the candidates are appointed in accordance
with the Rules.
The
Government is directed to send within three weeks from the date of the receipt
of the order, all the names of the candidates who became successful in the Patwari
examination conducted between April 25 and April 28, 1992 to the SSSB as per
the results declared. The Board is directed to call, for interview, all the
candidates within four weeks from the date of the receipt of the record from
the Government. The Board is further directed to interview all those candidates
according t the procedure, consider their cases in accordance with the above
law laid down and then select the candidates as per merit list duly applying
the rule of reservation. The Board would recommend to the appointing authority
and appointments would be made strictly in accordance with the merit list
prepared after following the rule of reservation. If any of the candidates
would, at the relevant time become barred by age, necessary relaxation of age
would be given to them and appointment made accordingly.
The
appeals are accordingly allowed and the writ petitions filed in the High Court
stand disposed of No. Costs.
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