Full Judgment Text
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PETITIONER:
B. N. NAGARAJAN AND ORS.
Vs.
RESPONDENT:
STATE OF MYSORE AND ORS.
DATE OF JUDGMENT:
01/03/1966
BENCH:
ACT:
Constitution of India, Art. 309, proviso-Scope of.
Mysore Stale Civil Services (General Recruitment) Rules 1957
r. 3 Provision for service rules to be made for each
service-Whether in absence of such rules has effect of
suspending executive power of Stale under Art. 162 to make
service appointments.
Mysore Public Works, Engineering Department Services
(Recruitment) Rules 1960-Considered-Mysore Public Service
Commission (Functions) Rules, 1957-Whether statutory rules
under Art. 309.
HEADNOTE:
By notifications issued in October 1958, May 1959 and April
1960, the Mysore Public Service Commission invited
applications for the recruitment of 80 probationary
Assistant Engineers-.- The qualifications, pay, age limit
and other conditions for eligibility were prescribed by
these notifications.
On March 1, 1960, it was notified by the Governor, that for
direct recruitment to appointments and posts in the services
of the State, reservations for Scheduled Castes and
Scheduled Tribes would be 15% and 3%; and the reservation
for other backward classes would be 25%.
Thereafter, in October and November 1960, the Mysore Public
Service Commission interviewed the candidates and sent a
list to the Government of 80 candidates selected by them.
On December 3, 1960, the Government of Mysore sanctioned the
establishment of the State Service Cadre in respect of the
Mysore Public Works Engineering Department Service. On the
same date, in exercise of the powers conferred by the
proviso to Art. 309 the Governor made the rules called the
Mysore Public Service Engineering Department Service
(Recruitment) Rules 1960. These Rules prescribed in respect
of each category of specified posts the methods of
recruitment, whereby only 40% of the appointment could be
made after an interview and an oral test and also prescribed
the minimum qualifications, age limits, etc. for Assistant
Engineers which were somewhat different from those
prescribed in the earlier Notifications of the Mysore Public
Service Commission relating to the recruitment of 80
Assistant Engineers.
On October 23, 1961 the Governor made certain amendments to
the 1960 Rules the effect of which was to make those rules
retrospective with effect from March 1, 1958 and also, to
waive the -requirements of the rules relating to the
percentages for direct recruitment, educational
qualifications, and age requirements, etc. in respect of
direct recruitment of Assistant Engineers for the first
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time.
Thereafter, on October 31, 1961, the Governor appointed 88
candidates as probationary Assistant Engineers. These
appointments were challenged in 16 Writ Petitions filed in
the High Court on the grounds inter alia, that (1) in view
of Rule 3 of the Mysore State Civil Services
683
(General Recruitment) Rules, 1957, which provided that the
method of recruitment and qualifications for each State
Civil Service shall be set forth in the rules of recruitment
of such service specially made in that behalf, the
Government could not recruit the Assistant Engineers without
framing the necessary rules; (ii) the State Government could
not make rules retrospectively unless it had express powers
to do so under the relevant statute; (iii) the appointments
which were made on October 31, 1951 had to be made in
accordance with the 1960 Rules but in fact were not so made;
(iv) some of the appointments were made mala fide. These
writ petitions were allowed by the High Court.
On appeal to this Court,
HELD : The appointments of the 88 Assistant Engineers were
validly made in the exercise of the executive power of the
State under Art. 162 of the Constitution.
It is not obligatory under the proviso to Art. 309 to make
rules of recruitment etc. before a service can be
constituted or a post created or filled. The State
Government has executive power in relation to all matters
with respect to which the Legislature of the State hag power
to make laws. It follows from this that the State
Government will have executive power in respect of List 11
Entry 41 "State Public Services". [686 C-E]
In this background, Rule 3 of the General Recruitment Rules
of 1957 cannot be interpreted as suspending the executive
power of the State till rules of recruitment of a service
are specially made in that behalf. [686 G]
Ram Jawaya Kapur v. State of Punjab, [1955] 2 S.C.R. 225 and
T. Cajee v. K. Jormanic Siem, [1961] 1 S.C.R. 750, referred
to.
Even if it were to be assumed that the rules purported to be
made by the State Government had no retrospective validity
the position would be that there were no statutory rules
governing the appointment of the 88 Assistant Engineers; but
that could not prevent the State Government from making
valid appointments in the exercise of its executive powers.
[694 P]
It cannot be said that the appointments made in October 1960
had to be under statutory rules made on December 3, 1960.
It took about two years for the Public Service Commission to
publish notifications, interview candidates and recommend
names for appoinment. The whole procedure having been
followed, it could not have been the intention of the
Government, while framing the rules, to cover appointments
made in pursuance of the recommendations of the Public
Service Commission made in November 1960 after interviewing
the candidates in October 1960. [694 G-695 B]
On the facts, no mala fide or collateral object had been
proved.
The Mysore Public Service Commission (Function) Rules, 1957
are not statutory rules made under Art. 309. First. the
rules do not expressly say so; and secondly, they deal with
the functions of the Commission rather than with the rules
regarding recruitment to services or posts. [685 E]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 430. 461 of
1964.
Appeals from the judgment and order dated October 11, 1962
of the Mysore High Court in Writ Petitions Nos. 1248, 1267,
1269, 1294-1298, 1311, 1312, 1318, 1341, 1354, 1355, 1382
and 1384.
684
M.C. Setalvad, S. C. Javali, 0. C. Mathur, J. B. Dadachanji,
and Ra.vinder Narain, for appellants Nos. 1-4, 6-45 and 48-
76 (in
C. As. Nos. 430-445 of 1964).
A.K. Sen, B. R. L. Iyengar and B. R. G.K. Achar for
respondents Nos. 2 and 3 (in C. As. Nos. 430-445 of 1964)
and Appellants (in C. A. Nos. 446-461 of 1964).
M. K. Nambyar, S. N. Andley, Rameshwar Nath and P. L.
Vohra,for respondents (in C. As. Nos. 446, 447, 449-
452,456 and 459 of1964).
J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for
the Intervener.
The Judgment of the Court was delivered by
Sikri, J These appeals, by special leave, are directed
against the judgment of the High Court of Mysore at
Bangalore in 16 Writ Petitions filed before it, quashing the
notification of the Government bearing No. P. W. 10 SAG 59
dated October 31, 1961, and the appointments made thereunder
of 88 Assistant Engineers in the Public Works Department of
the State Government.
To appreciate the arguments addressed to us on behalf of the
appellants and the respondents, it is necessary to give, in
chronological order, the events leading up to the filing of
the above writ petitions and their significance. On
December 12, 1957, the Governor of Mysore made rules called
the Mysore Public Service Commission (Functions) Rules,
1957, hereinafter called the Functions Rules, relating to
the functions of the Mysore Public Service Commission. Rule
3 of these rules provides for recruitment by examination and
r. 4 with which we are primarily concerned provides for
recruitment by selection. Rule 4 is as follows :
"When recruitment to a service or post is to be made by
selection, and consultation with the Commission is required,
the Commission shall
(1)advise the Government in regard to the conditions of
eligibility of candidates;
(2)after the rules to be made have been approved by
Government and a requisition for recruitment is received,
invite applications from intending candidates after giving
due publicity to conditions of eligibility, nature of com-
petition, number of vacancies to be filled where possible,
and any other relevant material;
(3)consider all applications received and when necessary
interview such candidates as fulfil the prescribed
conditions and whom it considers most suitable for ap-
pointment;
685
Note.-Nothing contained herein shall preclude the Commission
from considering the case of any candidate possessing the
prescribed qualifications brought to its notice by
Government, even if such a candidate has not applied in
response to the advertisement of the Government.
(4)forward to the Appointing Authority a list consisting
of such number as it may fix, of the candidates whom the
commission considers most suitable for appointment in order
of preference;
Provided that the Commission may invite Government to
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nominate an Officer to represent the Service or the
Department for whom recruitment is being made, to be present
at the interview referred to in clause (3) to assist the
Commission in its work of selection."
We may here dispose of the point whether these rules are ex-
ecutive rules or statutory rules made under art. 309 of the
Constitution. The High Court held that "there can be little
doubt that to the extent the Rules deal with the topic of
regulating recruitment to Civil Services under the State,
the source of the power could only be the proviso to art.
309 of the Constitution." In our opinion, these rules are
not rules made under art. 309. First, the rules do not
expressly say so, and secondly, the rules are dealing with
the functions of the commission rather than with laying down
the rules regarding recruitment to services or posts. Under
art. 320 (3) of the Constitution, it is the duty of the
Government to consult and the duty of the Public Service
Commission to advise, inter alia "on the principles to be
followed in making appointments to civil services and
posts..... and on the suitability of candidates for such
appointments, promotions or transfers." Sub-rule (1) of r. 4
clearly provides the same thing as does art. 320 (3) (b) and
the other sub-rules are really administrative arrangements
apparently arrived at between the Commission and the
Government as to how the Government and the Public Service
Commission will take steps to recruit persons for the State
Services or posts.
To resume the narrative, on February 10, 1958, the Governor
of Mysore, in exercise of the powers conferred by the
proviso so art. 309 of the Constitution, made the Mysore
State Civil Services (General Recruitment) Rules, 1957,
hereinafter called the General Recruitment Rules. There is
no dispute that these are statutory rules and in so far as
they direct anything to be done in a particular way, the
Government would have to comply with the directions. Rule 3
of these Rules, on which reliance has been placed by the
learned counsel for the respondents to urge that the GoveI
Sup Cl/66-12
686
cannot recruit Assistant Engineers without framing rules, is
in the following terms:
"Method of recruitment.-Recruitment to the State Civil
Services shall be made by competitive examination or by
promotion. The method of recruitment and qualifications for
each State Civil Service shall be as set forth in the rules
of recruitment of such service specially made in that
behalf."
It would be convenient to deal with this argument at this
stage. Mr. Nambiar contends that the words "shall be as set
forth in the rules of recruitment of such service specially
made in that behalf " clearly show that till the rules are
made in that behalf no recruitment can be made to any
service. We are unable to accept this contention. First it
is not obligatory under proviso to art. 309 to make rules of
recruitment, etc., before a service can be constituted or a
post created or filled. This is not to say that it is not
desirable that ordinarily rules should be made on all
matters which are susceptible of being embodied in rules.
Secondly, the State Government has executive power, in
relation to all matters with respect to which the
Legislature of the State has power to make laws. It follows
from this that the State Government will have executive
power in respect of List II, Entry 41, State Public
Services. It was settled by this Court in Ram Jawaya Kapur
v. The State of Punjab(1) that it is not necessary that
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there must be a law already in existence before the
executive is enabled to function and that the powers of the
executive are limited merely to the carrying out of these
laws. We see 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. It is
hardly necessary to mention that if there is a statutory
rule or an act on the matter, the executive must abide by
that act or rule and it cannot in exercise of the executive
power under art. 162 of the Constitution ignore or act
contrary to that rule or act.
In the background of this position we are unable to inter-
pret r. 3 of the General Recruitment Rules as suspending the
executive power of the State till rules of recruitment of a
service are specially made in that behalf. Rules usually
take a long time to make; various authorities have to be
consulted and it could not have been the intention of r. 3
of the General Recruitment Rules, 1957, to halt the working
of the public departments till rules were framed. This
Court considered a similar point in T. Cajee v. U. Jormanik
Siem(2) and arrived at a similar conclusion. The following
observations of Wanchoo, J., who delivered the judg
(1) [1955] 2 S.C.R. 225. (2) [1961] 1 S.C.R. 750, 762-764.
687
ment on behalf of the majority, bring out clearly the
fallacy in Mr. Nambiar’s argument:
"The High Court has taken the view that the appointment and
succession of a Siem was not an administrative function of
the District Council and that the District Council could
only act by making a law with the assent of the Governor so
far as the appointment and removal of a Siem was concerned.
In this connection, the High Court relied on para 3 (1) (g)
of the Schedule, which lays down that the District Council
shall have the power to make laws with respect to the
appointment and succession of Chiefs and Headmen. The High
Court seems to be of the view that until such a law is made
there could be no power of appointment of a Chief or Siem
like the respondent and in consequence there would be no
power of removal either. With respect, it seems to us that
the High Court has read far more into para 3 (1) (g) than is
justified by its language. Paragraph 3 (1) is in fact
something like a legislative list and enumerates the
subjects on which the District Council is competent to make
laws. Under para 3 (1) (g) it has power to make laws with
respect to the appointment or succession of Chiefs or
Headmen and this would naturally include the power to remove
them. But it does not follow from this that the appointment
or removal of a Chief is a legislative act or that no
appointment or removal can be made without there being first
a law to that effect."
"Further once the power of appointment falls within the
power of administration of the district the power of removal
of officers and others so appointed would necessarily follow
as a corollary. The Constitution could not have intended
that all administration in the autonomous districts should
come to a stop till the Governor made regulations under para
19 (1) (b) or till the District Council passed laws under
para 3 (1) (g). The Governor in the first instance and the
District Councils thereafter were vested with the power to
carry on the administration and that in our opinion included
the power to appoint and remove the personnel for carryinig
on administration. Doubtless when regulations are made
under para 19 (1) (b) or laws are passed under para 3 (1)
with respect to the appointment or removal of the personnel
of the administration, the administrative authorities would
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be bound to follow the regulations go made or the laws so
passed. But from this it does not follow that till the
regulations were made or the laws were passed, there could
be no appointment or dismissal
688
of the personnel of the administration. In our opinion, the
authorities concerned would at all relevant times have the
power to appoint or remove administrative personnel under
the general power of administration vested in them by the
Sixth Schedule. The view therefore taken by the High Court
that there could be no appointment or removal by the
District Council without a law having been first passed in
that behalf under para 3 (1) (g) cannot be sustained."
Mr. Nambiar in this connection also relied on arts. 15 and
16 of the Constitution. He urged that if the executive is
held to have power to make appointments and lay down
conditions of service without making rules in that behalf
under the proviso to art. 309, arts. 15 and 16 would be
breached because the appointments in that case would be
arbitrary and dependent on the mere whim of the executive.
We are unable to hold that arts. 15 and 16 in any way lead
us to this conclusion. If the Government advertises the
appointments and the conditions of service of the
appointments and makes a selection after advertisement there
would be no breach of art. 15 or art. 16 of the Constitution
because everybody who is eligible in view of the conditions
of service would be ,entitled to be considered by the State.
In conclusion we hold that r. 3 of the General Recruitment
Rules, 1957, did not prevent the State from exercising its
executive power of appointing Assistant Engineers and
determining their conditions of service by executive order.
Mr. Nambiar had at one stage contended that rules existing
in the constituent parts of the new State of Mysore would be
available for recruitment as they had been continued under
the States Reorganisation Act, but it seems to us that these
rules would not be available for recruitment purposes
because the Government would be recruiting Assistant
Engineers for the whole State and not for each of the
constituent parts of the State. We may clarify that these
remarks only deal with recruitment rules.
This brings us to the next event, and that is Notification
No E. 2666-58-9PSC dated October 1, 1958, issued by the
Mysore Public Service Commission inviting applications in
the prescribed form from qualified Indian citizens for
recruitment of 40 Probationary Assistant Engineers in the
Executive Cadre of the Mysore Public Works Department. The
Notification prescribes the qualifications, pay, age limit,
other conditions for eligibility, fee payable and the
particulars of the candidates required to be furnished. On
March 4, 1959, the Governor of Mysore in exercise of the
powers conferred by the proviso to art. 309 prescribed the
maximum age limits for direct recruitment of graduates in
Engineering for the posts of Supervisors and Assistant
Engineers in the Mysore
689
Public Works Department. These age limits were to prevail
until the rules of recruitment specially applicable to
Mysore Public Works Department were promulgated. The
maximum age limits were made retrospective. It was further
provided that "anything done or any action taken by the
Public Service Commission or other authority in respect of
recruitment of Probationary Assistant Engineers between
September 1, 1958 and the date of this Notification shall be
deemed to have been done or taken under the provisions of
this Notification."
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On the same date the Secretary to the Government of Mysore,
Public Works Department, Bangalore, wrote to the Secretary,
Public Service Commission, Bangalore, stating inter alia,
that;
"The Public Service Commission has already taken action to
recruit forty probationers in the Public Works Department
for being absorbed as Assistant Engineers in due course
after satisfactory completion of their training. I am to
request the Public Service Commission to take action
straightway to invite applications and send a list of 80
candidates in all for appointment as Probationers in the
Department."
This clearly shows that the Government was aware of the
action taken by the Public Service Commission in issuing the
Notification dated October 1, 1958.
After receipt of this letter, the Public Service Commission
issued a Notification on May 4, 1959, inviting applications
"from qualified Indian citizens of all classes for
recruitment of 80 Probationary Assistant Engineers in the
Executive Cadre of the Mysore Public Works Department,
including the 40 posts already advertised in this office
Notification No. E-3666-58 P.S.C. dated October 1, 1958".
This Notification laid down the qualifications, pay during
the period of probation, age limits, etc. The age limits
prescribed were the same as in the State Government
Notification dated March 4, 1959. The Public Service
Commission Notification further included the usual
particulars required to be furnished by the candidates. On
March 1, 1960, the Governor issued a notification containing
Order No. GAD 7 ORR 60 dated March 1, 1960, ordering "that
for direct recruitment to appointments and posts in the
services of the State, reservation for Scheduled Caste and
Scheduled Tribes shall be 15% and 3%. The reservation for
other backward classes shall be 25 % The rest of the
appointments and posts shall be filled up on the basis of
merit and shall be open to all classes."
The Public Service Commission then issued a Notification
dated April 1, 1960, inviting applications for filling up of
various posts in the several departments of Government of
Mysore,.
690
including the 80 Probationary Assistant Engineers in the
Public Works Department. These were included in Part ’A’ of
the Notification, and it was provided inter alia in para 22
of the Notification as follows :
"22. IMPORTANT NOTE:
(i)The vacancies detailed in Part ’A’ of the Statement
were previously advertised in this office notifications
noted in column 8 against each item and such of the
candidates who have already applied for the said
vacancy/vacancies in response to the previous notification
need not apply again. But they may furnish additional
information, if any, if they so desire.
(ii)Applications already received in this office for the
vacancies under Part ’A’ will be considered on the basis of
the revised classification issued by Government in their
Order No. GAD 7 ORR 60, dated the 1st March, 1960.
(iii)The qualifications, period of experience/training
or service, the minimum and maximum age limits and all other
requirements to be satisfied by the candidates for all the
vacancies under Part ’A’ in the statement shall be
determined as on the dates noted against each item of
vacancy/vacancies in column 9 of the statement.
(iv)Such of the candidates who do not satisfy these
conditions as on the dates noted in column 9 of the state-
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ment in respect of Part ’A’ vacancies, will not be eligible
for the posts."
Column 8 of the statement mentions the previous notifica-
tions dated May 4, 1959 and October 1, 1958, and column 9
mentions the date "June 8, 1959". Column 5 prescribes the
qualifications as follows :
"A degree in Engineering (Civil or Mechanical) or an
equivalent Examination. In addition candidates must have
also either undergone practical training or rendered a
service in the Technical Cadre of the P.W.D. for a minimum
of 6 months. (A certificate to that effect issued by the
Principal of the college or superior officer under whom they
have undergone training or are working must accompany the
application."
The maximum age limits were prescribed as under -
"33 years for Scheduled caste and scheduled tribes, 31 years
for others, 35 years in the case of government servants
holding substantive appointments or having
691
continuous government service for a period of not less than
3 years."
In October 1960 the Mysore Public Service Commission
interviewed the candidates and on November 2, 1960, the Com-
mission sent to the Government a list of 80 candidates
selected by them. On December 3, 1960, the Government of
Mysore sanctioned the establishment of the State Service
Cadre in respect of Mysore Public Works Engineering
Department Service. On the same date, in exercise of the
powers conferred by the proviso to art. 309, the Governor of
Mysore made the rules called the Mysore Public Works
Engineering Department Services (Recruitment) Rules, 1960.
It prescribed, in respect of each category of posts
specified in column of the Schedule, methods of recruitment
and the minimum qualifications and the period of probation,
if any. For Assistant Engineers, the method of recruitment
prescribed was 40 per cent by direct recruitment by the
Public Service Commission after interview and oral test; 50
per cent by promotion from the cadre of Junior Engineers,
and 10 per cent by promotion from the cadre of Supervisors.
It prescribed the minimum qualifications and age as follows:
"For Direct Recruitment
Age-Not above 31 years. A pass in Civil or Mechanical
Engineering or a Certificate or Diploma from the Institute
of Engineers that the candidate has passed Parts A. B. of
the Associate Membership of the Institute of Engineers or
equivalent qualification with practical. training for not
less than 6 months during or after the course."
One G. Govindaraju, Junior Engineer, filed a petition under
art. 226 of the Constitution for a mandamus to the State
Government prohibiting the appointment of 80 persons
selected by the Public Service Commission. It was contended
by him that on December 3, 1960, under the proviso to art.
309 of the Constitution the Governor had made rules
regulating the recruitment to the posts of Assistant
Engineers, and that under those rules, forty per cent of the
appointments alone could be made by the Public Service
Commission after an interview and an oral test. Various
other arguments were urged before the High Court. The Ad-
vocate-General stated before the High Court on behalf of the
State Government that the list having been prepared by the
Public Service Commission in response to the request made by
the State Government in the exercise of its executive power
which it possessed under art. 162 of the Constitution, the
State Government was not bound to make appointments only in
accordance with that list, and that it was open to the State
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Government not to appoint any of those persons or to appoint
only those persons who, in its
692
opinion, should be appointed amongst them. The High Court
felt that this statement made before it by the Advocate-
General rendered unnecessary any investigation into the
contention urged on behalf of the petitioner at that stage.
The High Court further observed as follows:
.lm15
"It would be for the State Government before it takes a
decision on that question, to consider the effect of Rule
4(2) of the Public Service Commission (Function), Rules,
made on December 10, 1957, Rules 3 and 4 of the Mysore State
Civil Services General Recruitment Rules, which came into
force on February 10, 1958, and of the Mysore Public Works
Engineering Department Service (Recruitment) Rules, which
came into force on December 3, 1960, and to further consider
whether in the light of those provisions, appointments could
be made to the posts of Assistant Engineers, except in
accordance with the provisions of the Rules which came into
force on December 3, 1960. On this question,, we should
not, in my opinion, express any opinion at this stage."
With these observations, the High Court dismissed the peti-
tion as premature. This order was passed on September 29,
1961. On October 23, 1961, in exercise of the powers
conferred by the proviso to art. 309 of the Constitution and
all other powers enabling him in that behalf, the Governor
of Mysore made certain amendments to the Mysore Public
Works, Engineering Department Services (Recruitment) Rules,
1960. The effect of these amendments, if valid, was to make
the Mysore Public Works Engineering Department Services
(Recruitment) Rules, 1960, retrospective with effect from
the first day of March, 1958. Para 3 of this Notification
further provided:
"3. To rule 2, the following proviso shall be added and
shall be deemed always to have been added, namely :-
"Provided that in respect of direct recruitment of Assistant
Engineers for the first time under these rules the
percentages relating to direct recruitment and recruitment
by promotion specified in column 2 of the Schedule shall not
be applicable and the minimum qualifications and the period
of probation shall be the following, namely:-
Qualifications-The candidates must be. a graduate in
Engineering (Civil or Mechanical) or must have passed an
equivalent examination and must have either undergone
practical training or rendered service in a technical cadre
in the Public Works Department for a minimum period
693
not less than six months. A certificate to that effect
issued by the Principal of the College or Superior Officer
under whom he has undergone training or is working must be
enclosed to the application;
Age limits must not be above-
(i) 35 years in the case of Government servantsholding
appointment substantively or who have been in
continuous Government service for a period of
not less than 3 years and political sufferers;
(ii)33 years in the case of candidates belonging to Sche-
duled Castes and Scheduled Tribes;
(iii)31 years in the case of Backward Classes;
(iv)28 years in the case of others; on the last date fixed
for the receipt of applications.
Period of Probation.-Two years."
On October 31, 1961, the Governor of Mysore appointed 88
candidates as Probationary Assistant Engineers in the
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Mysore. Public Works Department and it is these
appointments that were challenged before the Mysore High
Court in the 16 writ petitions mentioned in the beginning of
this judgment.
Mr. Setalvad contends that under the proviso to art. 309 the
Governor is entitled to make retrospective rules and the
position of the Government while acting under the proviso to
art. 309 is in no way different from the powers conferred on
the legislature under art. 309 read with arts. 245 and 246
and item 41 of List 11. Mr. Setalvad further contends that
the Government is not acting as a delegate of any
legislature while exercising powers under the proviso to
art. 309; it is exercising a power conferred by the
Constitution directly on the executive and the Constitution
has not prescribed any guiding principles to be followed by
the State Government while it is exercising powers under the
proviso toart. 309, because the Constitution treats it
having the same powers as the legislature. He further says
that the State Government can amend and repeat any existing
law relating to State Services continued in force by art.
313 of the Constitution. He urges that if the Constitution
makers had intended to place any fetters on the powers of
the State Government under the proviso, these would have
been mentioned specifically, and he says that we cannot
treat it on the same basis as delegated legislation and,
therefore,. even if it be the law, which he does not
concede, that the executive when acting as a delegate under
an act of Parliament or an act of a State Legislature,
cannot make rules retrospectively, this principle does not
apply to the exercise of powers under the proviso, to art.
309 of the Constitution.
694
Mr. Nambiar contends that under an act of Parliament or an
act of a State Legislature the executive cannot frame rules
retrospectively unless the act specifically empowers it to
do so. According to him the position is the same under the
proviso to art. 309. In our opinion, it is not necessary to
decide this point in these cases because we are of the view
that the appeal can be disposed of on another ground.
Assuming for the sake of argument that Mr. Nambiar is right
that the Mysore State Government could not make rules
retrospectively and that the rules are thus void, so far as
they operate retrospectively, we must ignore these rules and
see whether the appointments made on October 31, 1961, can
be upheld. We have come to the conclusion that these
appointments can be considered to have been validly made in
exercise of the executive power of the State under art. 162
of the Constitution. The three notifications issued by the
Public Service Commission on October 1, 1958, May 4, 1959
and April 1, 1960, must be treated to have been issued with
the consent of the State Government. These notifications
are not rules made under art. 309 of the Constitution, as
contended by Mr. Nambiar; they are mere executive
notifications issued by the Public Service Commission at
least with the implied consent of the State Government. The
passage reproduced above from the letter of the Government
dated March, 4, 1959, clearly shows .that the Government was
well aware of what the Public Service Commission was doing.
It was aware of the action being taken by the Public Service
Commission, and indeed, it can safely be assumed that the
Government was aware of each step being taken by the Public
Service Commission including the publication of these
notifications. The position is that if we accept Mr.
Nambiar’s arguments that these rules purported to be made by
the Mysore State Government had no retrospective validity,
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there were no statutory rules to govern the appointment of
the 88 persons as Assistant Engineers. We have already held
that the Mysore State Civil Service (General Recruitment)
Rules, 1957, did not debar the Government from making
appointments without making statutory rules. Therefore, we
hold that these appointments were validly made.
Mr. Nambiar sought to impeach the appointments on another
ground. He said that the appointments violated Mysore
Public Works Engineering Department Services (Recruitment)
Rules, 1960, dated December 3, 1960, because the
appointments were made on October 31, 1961, and according to
him, these appointments had also to be made under the
statutory rules made on December 3, 1960. We are unable to
sustain this contention because it took about two years for
the Public Service Commission to publish notifications,
interview candidates and recommend names for appointment.
The whole procedure having been
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followed, it could not have been the intention of the
Government while framing the rules to cover appointments
made in pursuance of the recommendations of the Public
Service Commission made in November 1960 after interviewing
candidates in October 1960.
It was urged in the alternative that the advertisement made
by the Public Service Commission notification dated April 1,
1960 was different from the rules of March 4, 1959, in the
matter of fixing the age limits, i.e., while the rules
provided 28 years as the maximum age in the case of others,
the notification provided the maximum age as 31 years. In
our view the respondents are not entitled to make a
grievance of this difference because there is nothing on the
record to show that the ages of those appointed were against
the rules of March 4, 1959. The learned counsel has not
been able to satisfy us that they have suffered in any
manner because of this difference in age.
There remains one question and that is the question of mala
fides which was alleged in the petition. There were 16
petitions but we will take the allegations from the first
petition. Paras 16 and 17 in Writ Petition No. 1248 of
1961, before the High Court, in which the allegations of
mala fides have been made read as under:
"Further selection made by the Public Service Commission is
arbitrary and made out of collateral considerations.
Amongst the selected candidates, the following viz., (1) Sri
D. C. Channe Gowda, who is the son-inlaw of the 2nd member
of the Public Service Commission, an ordinary B.E. Graduate
with only 49% of marks; (2) Sri Kencharase Gowda, who is the
sister’s son-inlaw, an ordinary B. E. have been selected to
the exclusion of myself and several others, who had superior
qualification, both academically and by virtue of seniority
in service.
17.Similarly, relations of prominent members of the local
Legislature and of Parliament, relations of high placed
officials including a Minister and an ex-Minister have been
selected."
The Chairman of the Mysore Public Service Commission filed a
counter-affidavit and replied to the above paras 16 and 17
as follows:
" 3. Paragraph 16 of the Petitioner’s affidavit-The
statement that the selection made was arbitrary and made out
of collateral considerations is incorrect. It is true that
Shri D. C. Channe Gowda was among the candidates selected.
The then Second Member of the
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Public Service Commission abstained from participating in
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the interview of that candidate. I was not aware at the
time of the selection, of the relationship of Kencharase
Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N.
Narase Gowda to the then Second Member of the Public Service
Commission. The then Second Member of the Public Service
Commission, Shri M. K. Appajappa is since dead. The
dominant factor in making the selection was the performance
of the candidate at the interview and the marks secured by
the candidate in the Degree Examination was only one of the
factors that was taken into, consideration.
4.Paragraph 17 of the Petitioner’s Affidavit-I was not aware
of the relationship, if any, of the candidates to prominent
members of the local Legislature and of Parliament or of
high placed officials including a Minister and an ex-
Minister. I submit that it is also incorrect to suggest
that the selections were influenced by any such
relationship".
The High Court found it unnecessary to investigate this mat-
ter because it felt that the selections impugned were in-
valid on other grounds, but it observed as follows:
"There is no denying the fact that the facts stated in the
pleadings, especially in the light of the manner in which
they are traversed in the counter affidavit of the Chairman
of the Public Service Commission, do raise a strong
suspicion."
The High Court might well have abstained from expressing its
strong suspicion if it was not going to give its final views
on the question of malafides. We are unable to appreciate
that the manner in which the counter-affidavit of the
Chairman of the Public Service Commission is expressed calls
for any comment. In para 15 of the affidavit in support of
Writ Petition No. 1269 of 1961 more details are given of the
selected candidates and the counter-affidavit filed by the
Chairman of the Public Service Commission is common to all
the petitions. But even so, the details mentioned did not
call for any detailed reply. For example, it was alleged in
para 15 that one Shri D.C. Channe Gowda who is the son-in-
law of the Second Member of the Public Service Commission,
Shri Appajappa, was an ordinary B. E. Graduate with only
49.8 % marks. But even if he had only 49.8 % of the marks,
this is not conclusive to show that he should not have been
selected because the whole object of interviewing candidates
is to judge their eligibility or suitability apart from the
standard displayed by them in the written examination. We
are unable to hold that on these facts any mala fides or
collateral object has been proved.
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In the result the appeals both of the State and the other
appellants are allowed and judgment of the High Court set
aside. We may mention that some of the appellants have not
prosecuted their appeals but there is no reason why they
should not have the benefit of this judgment, and exercising
our powers under art. 142 of the Constitution, we direct
that in order to do complete justice they should also have
the benefit of the judgment given by us. There will be no
order as to costs.
Appeals allowed.
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