Full Judgment Text
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PETITIONER:
N.T. BEVIN KATH ETC.
Vs.
RESPONDENT:
KARNATAKA PUBLIC SERVICE COMMISSION AND ORS.
DATE OF JUDGMENT30/03/1990
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
KASLIWAL, N.M. (J)
CITATION:
1990 AIR 1233 1990 SCR (2) 239
1990 SCC (3) 157 JT 1991 (5) 282
1990 SCALE (1)659
CITATOR INFO :
RF 1991 SC2113 (10)
E&R 1992 SC 749 (5)
ACT:
Karnataka Administrative Services (Tehsildars) Re-
cruitment Special Rules, 1975.’ Preparation of select list
for appointment of Tehsildars--Service Commission--Whether
to follow Government Order dated September 6, 1969 or July,
9, 1975.
HEADNOTE:
The Karnataka Public Service Commission issued a notifi-
cation on 23rd May 1975 inviting applications from in-serv-
ice candidates for recruitment to 50 posts of Tehsildars. In
para 14 of the notification it was stated that provisions of
1975 Rules, and Rules 7 to 14 of the Karnataka Recruitment
of Gazetted Probationers (Class I & 11 posts Appointment by
Competitive Examination) Rules, 1966 shall mutatis mutandis
apply to the conduct of the competitive Examination and the
provisions of the Karnataka State Civil Services (General
Recruitment) Rules, 1957 shall apply in respect of matters
for which no provision is made in the Rules.
In preparing the select list and making reservations to
the various categories, the Commission followed the direc-
tions and the procedure as contained in Government Order
dated 6th September 1969. The State Government refused to
approve the list and directed the Commission on 23.4.76 to
prepare the list afresh following the Government Order dated
7th July 1975. The Commission thereupon prepared the list
afresh as per Government Order of 7th July 1975. In the
revised list, the appellants names did not figure.
The appellants challenged the validity of the Government
Order dated 23rd April 1976 as well as the revised list and
the validity of the Government Order dated 9th July 1975 by
means of writ petitions before the High Court on a number of
grounds. The appellants contended that the Government Order
dated 7th July 1975 prescribing mode of preparing the select
list by making reservations for various categories was
inconsistent with the statutory Rule 10 of 1966 Rules, and
further the directions contained therein were violative of
Articles 16(1) and 16(4) of the Constitution of India.
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240
The High Court rejected both the contentions holding
that the directions contained in Government Order of 9th
July 1975 were not violative of Rule 10(2) and there was no
violation of Article 16 of the Constitution. The High Court
also upheld the Government Order dated 23.4.76 directing the
Commission to prepare the select list afresh in accordance
with the mode prescribed vide Government Order of 9th July
1975.
In this Court, the appellants did not pursue their
challenge to the validity of the Government Order dated
9.7.75 but they assailed the validity of Government Order
dated 23.4.76 wherein the Government directed the Commission
to prepare a revised list in accordance with the Government
Order dated 9.7.75 on the ground that the Government Order
was not applicable to the pending selection.
The appellants also urged that the mode of selection and
procedure for making reservations as prescribed by Govern-
ment Order of 9th July 1975 was not applicable to the selec-
tion as advertisement had been issued in May 1975 and the
process of selection had already commenced prior to the
issue of Government Order dated 9th July 1975, and that the
revised list of successful candidates prepared by the com-
mission as per Government directions of 23.4.76 was illegal
and contrary to the Rules.
On behalf of the Respondents it was submitted that the
list of successful candidates had been prepared in accord-
ance with Government Order dated 9th July 1975, the State
Government was justified in insisting upon the Commission to
prepare the list afresh in accordance with the directions
contained in the aforesaid order.
Allowing the Appeals and setting aside the Order of the
High Court,
HELD: (1) Where advertisement is issued inviting appli-
cations for direct recruitment to a category of posts and
the advertisement expressly states that selection shall be
made in accordance with the existing rules or Government
Orders and if it further indicated the extent of reserva-
tions in favour of various categories, the selection of
candidates in such a case must be made in accordance with
the then existing Rules and Government Orders if any.
(2) Whether the Rules have retrospective effect or not
primarily depends upon the language of the Rules and its
construction to ascertain the legislative intent.
241
(3) Indisputably the Government Order of 9th July 1975
superseded all earlier Government Orders including that of
6th September 1969 but in para II it saved the selection
which was pending i.e. it saved the reservations already
made for any category of post or service in respect of which
advertisement had already been issued before the issue of
Government Order dated 9th July 1975. Para II was in the
nature of a saving clause, and the Commission rightly fol-
lowed the mode of selection prescribed under the Government
Order in force prior to Government Order of 9th July 1975.
The State Government was bound to give full effect to the
provisions of para II of Government Order dated 9th July
1975. therefore directions contained in its order dated
23.4.76 were illegal [248C-E; 249E]
4. Another aspect of the instant case is that where
advertisement is issued for direct recruitment to a category
of posts expressly stating that selection shall be made in
accordance with the existing rules or Government Orders and
also indicates the extent of reservations in favour of
various categories, the selection of candidates must be made
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in accordance with these rules and Government Order. The
candidates who applied for selection in pursuance of the
advertisement, acquired vested right for being considered
for selection in accordance with the terms and conditions of
the advertisement. [249E-G]
5. In case the recruitment Rules are amended retrospec-
tively during the pendency of the selection then selection
has to be made in accordance with the amended rules. Whether
rules have retrospective effect or not primarily depends
upon the language of the Rules and its construction to
ascertain the legislative intent, either by express provi-
sion or by necessary implication. If the amended Rules are
not retrospective in nature the selection must be regulated
in accordance with the existing Rules and orders in force at
the time of advertisement. [249H; 250A-B]
(6) It is a well accepted principle of construction that
Statutory Rule or Government Order is prospective in nature
unless it is expressly or by necessary implication made to
have retrospective effect. [251 D]
(7) In the instant case, para II of the Government Order
dated 9th July 1975 made the Governments intention clear
that the revised directions which are contained in the said
Government Order would not apply to the selection in respect
of which advertisement had already been issued. Therefore
the mode of selection as contained in Annexure to the Gov-
ernment Order dated 9th July 1975 was not applicable to the
selection for filling 50 posts of Tehsildars pending before
the Public Service Commission. [251G-H]
242
8. Having regard to the facts the circumstances of the
case. it would be expedient in the interest of justice not
to interfere with the respondents’ appointment but the State
Government is directed to appoint I the appellants on the
posts of Tehsildars with retrospective effect. If no vacan-
cies are available the State Government is directed to
create supernumerary posts of Tehsildars for appointing the
appellants against those posts. For purposes, of seniority
the appellants should be placed below the last candidate
appointed in 1976 but they will not be entitled to any back
wages. [252F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2270-73
of 1987 & 17 13/1990.
From the Judgment & Order dated the 11.8.1978 of the
Karnataka High Court in Writ Petition No. 4609/76, 4610/76 &
4611 of 1976.
P.P. Rao and S.R. Bhatt for the Appellants.
M. Veerappa for the Respondents.
The Judgment of the Court was delivered by
SINGH, J. Special leave granted.
These appeals are directed against the judgment of a
Division Bench of the High Court of Karnataka dated August
11, 1978 dismissing the appellants’ writ petition under
Article 226 of the Constitution of India challenging validi-
ty of the revised select list prepared by the Karnataka
Public Service Commission for appointment to the posts of
Tehsildars.
In the State of Karnataka recruitment to the posts of
Tehsildars is regulated by the Karnataka Administrative
Services (Tehsildars) Recruitment (Special) Rules 1975
(hereinafter referred to as 1975 Rules). The Karnataka
Public Service Commission (hereinafter referred to as the
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Commission) issued a Notification on May 23, 1975 (published
on May 29, 1975) inviting applications from in-service
candidates for recruitment to 50 posts of Tehsildars. Para-
graph 3 of the Notification specified details of the posts
reserved for candidates belonging to Scheduled Castes,
Scheduled Tribes and other Backward classes including 10% of
posts set apart for Ex-Military Personnel. According to the
figures specified, therein, out of 50 posts of
243
Tehsildars, 5 posts were reserved for Ex-Military Personnel,
7 posts for Schedule Castes, 1 post for Schedule Tribes and
13 posts for other Backward classes. Paragraph 3 of the
advertisement stated that in the event of non-availability
of sufficient number of candidates belonging to Scheduled
Castes. Scheduled Tribes and other Backward classes or Ex-
Military personnel, for filing to the reserved vacancies,
such vacancies shall be filled up as per Rules in force. The
Notification further gave details of the written and viva
voce examinations. Para 14 of the Notification stated that
the provisions of 1975 Rules and Rules 7 to 14 of the Karna-
taka Recruitment of Gazetted Probationers (Class I and II
posts Appointment by Competitive Examination) Rules 1966
(hereinafter referred to as 1966 Rules), shall mutatis
mutandis apply to the conduct of the competitive examination
and the provisions of the Karnataka State Civil Services
(General Recruitment) Rules 1957 (hereinafter referred to as
1957 Rules) shall apply in respect of matters for which no
provision is made in the Rules. Pursuant to the
advertisement, the appellants who were in service of the
State Government applied for their selection and appointment
to the posts of Tehsildars. After the written examination
and viva voce test the Commission finalised the list of
successful candidates and published the same in the Karnata-
ka Gazette dated March 18, 1976. The Commission also noti-
fied in additional list of successful candidates for ap-
pointment to the posts of Tehsildars in accordance with 1975
Rules, which included the names of the appellants. In pre-
paring the select list and making reservation to the various
categories, the Commission followed the directions and the
procedure as contained in the Government Order dated 6th
September 1969. The State Government refused to approve the
list prepared by the Commission as in its opinion the reser-
vation for the Scheduled Castes, Scheduled Tribes and other
Backward classes should have been made in accordance with
the directions and procedure contained in the Government
Order dated 9th July 1975. The State Government by its order
dated 23rd April 1976 directed the Commission to prepare a
fresh list of successful candidates by making reservations
in accordance with the procedure contained in the Government
order dated 9th July 1975. Pursuant to the directions of the
State Government the Commission prepared the select list
afresh, after making reservations in accordance with the
procedure prescribed by the Government Order dated 9th July
1975, and published the same on 27th May 1976. The appel-
lants’ names did not figure in the revised list of candi-
dates. The appellants challenged validity of the Government
Order dated 23rd April 1976 as well as the revised list
prepared by the Commission and also the validity of the
Government Order dated 9th July 1975, by means of writ
petitions before the High Court
244
on a number of grounds. A Division Bench of the High Court
by its order dated 11th August 1978 dismissed the petitions.
Hence these appeals.
The appellants had challenged validity of the Government
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Order dated 9th July 1975, prescribing mode for preparing
the select list by, making reservation for Scheduled Castes,
Scheduled Tribes and other Backward classes, on the ground
that the same was inconsistent with the statutory Rule 10 of
1966 Rules and further on the ground that the directions
contained therein were violative of Articles 16(1) and 16(4)
of the Constitution Of India. The High Court rejected both
the contentions holding that the directions contained in the
Government Order dated 9th July 1975 were not violative of
Rule 10(2) and there was no violation of Article 16 of the
Constitution. The High Court upheld the Government Order
dated 23rd April 1976 directing the Commission to prepare
the select list afresh in accordance with the mode pre-
scribed under the Government Order dated 9th July 1975.
Learned counsel for the appellants did not pursue the chal-
lenge relating to the validity of the Government Order dated
9th July 1975 before us instead he assailed the validity of
the State Government’s Order dated 23rd April 1976 directing
the Commission to prepare a revised list in accordance with
the Government Order dated 9th July 1975, on the ground the
Government Order was not applicable to the selection.
’Learned counsel for the appellants urged that the
Commission had rightly prepared the list of successful
candidates published on 18th May 1976 in accordance with the
directions contained in the Government Order dated 6th
September 1969 by making reservation of posts of Scheduled
Castes, Scheduled Tribes and other Backward classes but the
State Government wrongly refused to approve the said list.
He urged that the mode of selection and procedure for making
reservation as prescribed by the Government Order dated 9th
July 1975 was not applicable to the selection as advertise-
ment had been issued in May 1975, and the process of selec-
tion had already commenced prior to the issue of the Govern-
ment Order dated 9th July 1975. The revised list of success-
ful candidates prepared by the Commission pursuant to the
Government’s directions dated 23rd April 1976 was illegal
and contrary to the Rules. Learned counsel for the respond-
ents submitted that the Government Order dated 9th July 1975
prescribed mode of selection and it also prescribed proce-
dure for making reservations for Scheduled Castes, Scheduled
Tribes and other Backward classes in supersession of the
earlier Government Order including the Government Order
dated 6th September 1969 therefore the Commission was
245
found to follow the procedure as prescribed in the aforesaid
order in preparing the select list. Since the list of suc-
cessful candidates had not been prepared in accordance with
the Government Order dated 9th July 1975 the State Govern-
ment was justified in insisting upon the Commission to
prepare the list afresh in accordance with the directions
contained in the aforesaid Government Order.
The question which requires determination is, which of
the two Government Orders, namely, 6th September 1969 and
9th July 1975, the Commission was required to be followed in
preparing the select list for appointment to the posts of
Tehsildars as both the Government Orders contained direc-
tions for making reservations in preparing the select list.
In order to determine the question, it would be necessary to
refer to the directions contained in the two Government
Orders. There is no dispute that the recruitment of in-
service candidates for the 50 posts of Tehsildars in dis-
pute, was regulated by the 1975 Rules framed under Article
309 of the Constitution as published in the Gazette on
20th March 1975. Rule 5 laid down that the provisions of
Rules 7 to 14 of 1966 Rules shall mutatis mutandis apply to
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conduct of competitive examination and the provisions of
Karnataka State Civil Services (General Recruitment) Rules
1957 shall apply in respect of matters for which no provi-
sion is made in the Rules. The aforesaid Rules do not pre-
scribe any procedure for preparation of select list or for
making reservations but in view of Rule 5 the provisions of
other Rules are made applicable. Rule 10 of the Karnataka
Rules 1966 which provides for reservations for Scheduled
Castes, Scheduled Tribes and other Backward classes was
applicable in view of Rule 5 of 1975 Rules. Rule 10 of 1966
Rules is as under:
"10. Reservation for Scheduled Castes, Scheduled Tribes and
other backward classes--(1) There shall be reservation of
vacancies for candidates belonging to Scheduled Castes,
Scheduled Tribes and other Backward Classes to the extent
provided for by the Government by any general or special
orders.
(2) In filling the vacancies to reserved, candi-
dates who are members of the Scheduled Castes and Scheduled
Tribes and other Backward Classes shall be considered for
appointment in the order of merit in which their names
appear in the list of successful candidates irrespective of
their relative rank as compared with other candidates and to
services according to the reservation made for them in such
services.
246
(3) If a sufficient number of candidates who are
members of the Scheduled Castes, Scheduled Tribes and other
backward classes are not available for filling up the vacan-
cies reserved for them, such vacancies shall be filled up by
the appointment of other candidates in the list."
Pursuant to Clause (1) of Rule 10 of the State Government
has been providing for reservation of vacancies in favour of
candidates belonging to Scheduled Castes, Scheduled Tribes
and other Backward classes by means of executive orders
issued from time to time. The Government Order dated 6th
September 1969, was issued under Rule 10(1) which provided
that reservations for appointment to post in the State Civil
Service shall continue to be made in favour of Scheduled
Tribes, Scheduled Castes and other Backward classes to the
extent of 3%, 15% and 30% respectively, where the posts are
filled-up by direct recruitment. Para 5 of the Government
Order directed that the Commission and other recruiting
authorities shall follow the procedure prescribed in Annex-
ure 2 to the Government Order in making reservations and
preparing list of selected candidates. There is no dispute
that the Commission had prepared the select list which was
published on 18th March 1976 in accordance with the proce-
dure laid down in Annexure 2 to the Government Order dated
6th September 1969.
During the pendency of selection, the State Government
issued the order dated 9th July 1975 revising the extent of
reservation and also prescribing a different mode of selec-
tion. Para 4 of that Government Order laid down that while
making appointment to the State Civil Services, reservation
in favour of Scheduled Castes, Scheduled Tribes, Backward
Tribes and other Backward classes shall be made to the
extent of 15%, 3%, 3% and 28% respectively, in case of
direct recruitment. Para 6 of the Order further directed
that in case of direct recruitment where the selection is
made by the Public Service Commission or any other recruit-
ing authority, the procedure as prescribed in Annexure 2 to
the Order shall be followed in preparing the list of select-
ed candidates. Annexure "to the Order prescribed mode of
selection, which is quite different than that contained in
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Annexure 2 to the Government Order dated 6th September 1969.
It is not necessary to go into the details of the two modes
as there is no dispute that the Commission had followed the
procedure as prescribed under Annexure .? to the Government.
Order dated 6th September 1969 and the list, so prepared was
not approved by the State Government as it was of the opin-
ion that the Commission should have followed the mode of
selection as contained in Annexure 2 to the Government Order
dated
247
9th July 1975 in preparing the select list.
It appears that the Commission insisted before the State
Government that in view of Para II of the Government Order
dated 9th July 1975 reservations made in favour of Scheduled
Castes, Scheduled Tribes and other Backward classes already
notified before the issue of Government Order dated 9th July
1975 remain unchanged therefore the provisions of the Gov-
ernment Order dated 6th September 1969 had to be followed
both in regard to reservations and the mode of selection.
The State Government by its Order dated 23rd April 1976
refused to accept the Commission’s plea and it directed the
Commission to prepare a revised list in accordance with the
provisions of Government Order dated 9th July 1975. The
State Government while rejecting the Commission’s plea and
issuing the aforesaid direction made observations as under:
"Para 11 of the G.O. dated 9th July 1975 supersedes a11 the
previous Government Orders cited in the preamble to that
order, including the G.O. dated 6th September 1969. The same
para states that the order, came into force with immediate
effect, but makes only one exception i.e. in the matter of
reservations already made in the cases of posts and serv-
ices, for which advertisement had been issued prior to the
coming into force of the G.O. dated 9th July 1975. This
means that except in the matter of reservations made in
posts for which applications had already been called for, in
all other matters the provisions of the G.O. dated 9th July
1975 would apply. The words are clear that the intention is
also clearly spelt out. Hence so far as the mode of selec-
tion is concerned, the one prescribed in Annexure II to the
G.O. dated 9th July 1975 will have to be followed in respect
of all selections made after that date either a literal
construction or a harmonious construction of the various
clauses of the G.O. dated 9th July 1975 leads to the above
conclusion. For these reasons the Commission’s view that in
respect of posts already advertised prior to the issue of
the Government Order dated 9th July 1975, the mode of selec-
tion prescribed in the earlier Government Orders and to be
followed is not acceptable to Government."
In our opinion the State Government’s view was contrary
to the directions contained in para 11 of its Order dated
9th July 1975, which is as under:
248
1. This Government Order supersedes the Government
Order cited in the preamble and shall come into force with
immediate effect, subject to the provision that the reserva-
tion already made for any category of posts or service and
advertised before the issue of this Government Order shall
remain unchanged and shall be deemed to have been validly
made. All official memoranda, Circulars and instructions
issued in pursuance of the Government Orders superseded by
this Government Order shall also be deemed to have been
superseded if such instructions are contrary to the provi-
sions of this Government Order."
(emphasis supplied).
Indisputably the aforesaid Government Order superseded all
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earlier Government Orders on the subject including the
Government Order dated 6th September 1969 but while super-
seding those orders provision was made in para 11 to save
the selection which was pending. Para 11 clearly stated
that though earlier Government Orders laying down percentage
of reservation required to be made in favour of Scheduled
Castes, Scheduled Tribes and other Backward classes includ-
ing the mode of selection in preparing the select list,
stood superseded, but it saved the reservations made for any
category of post or service in respect of which advertise-
ment had already been issued before the issue of the Govern-
ment Order dated 9th July 1975. This follows from the ex-
pression "reservations already made for any category of
posts or service and advertised before the issue of this
Government Order shall be deemed to have been validly made".
These directions stipulated that where reservations were
already made and advertisement had been issued, and the
selection was pending on 9th July 1975, the same shall
remain unaffected and the selection shall be made in accord-
ance with the earlier Government Orders, and the same shall
be treated to have been made validly. Para 11 is in the
nature of a saving clause, its object and purpose, was to
save the selections in respect of which proceedings had
already been initiated by issuing advertisement. In view of
the Government’s own directions, as contained in para 11 of
its Order the amended mode of selection was not applicable
therefore the Commission rightly followed the mode of the
selection prescribed under the Government Order dated 6th
September 1969 as admittedly the said Order was in force
prior to 9th July 1975.
The State Government’s interpretation of para 11 of its
Order dated 9th July 1975 was incorrect and wrong. It failed
to appreciate that in the instant case reservations. had
already been made and
249
notified under the advertisement published on 18th May 1975.
Therefore the conditions precedent contemplated in para 11
were fully satisfied. In this view the selection made by the
commission by following the reservations and the mode of
selection as prescribed under the provisions of the Govern-
ment Order dated 6th September 1969 were deemed to have been
made validly in accordance with the provisions of para 11 of
the Government Order. It is relevant to point out that the
Government Orders dated 6th September 1969 and 9th July 1975
both had been issued by the Government in exercise of its
statutory power under Rule 10 of 1975 Rules, making provi-
sions for reservations and prescribing mode of selection. A
Government Order issued in exercise of statutory powers
acquires statutory force, therefore, the provisions con-
tained in the aforesaid Government Orders including the
provisions of para 11 of the Government Order dated 9th July
1975 also acquired statutory character. Though para 11
superseded earlier Government Orders but it expressly saved
the pending selections where reservations were already made
and advertisement had been issued. Para 11 being statutory
in nature was binding on the Government and the Government
had no authority to direct the Commission by means of Admin-
istrative Order to revise the Select List in accordance with
the amended mode of selection as prescribed under the Gov-
ernment’s Order dated 9th July 1975. In our opinion the
State Government was bound to give full effect to the provi-
sions of Para 11 of the Government Order dated 9th July 1975
and therefore directions contained in its order dated 23rd
April 1976 were illegal.
There is yet another aspect of the question. Where
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advertisement is issued inviting applications for direct
recruitment to a category of posts, and the advertisement
expressly states that selection shall be made in accordance
with the existing Rules or Government Orders, and if it
further indicates the extent of reservations in favour of
various categories, the selection of candidates in such a
case must be made in accordance with the then existing Rules
and Government Orders. Candidates who apply, and undergo
written or viva voce test acquire vested right for being
considered for selections in accordance with the terms and
conditions contained in the advertisement, unless the adver-
tisement itself indicates a contrary intention. Generally, a
candidate has right to be considered in accordance with the
terms and conditions set out in the advertisement as his
right crystalises on the date of publication of advertise-
ment, however he has no absolute right in the matter. If the
recruitment Rules are amended retrospectively during the
pendency of selection, in that event selection must be held
in accordance with the amended Rules. Whether the Rules have
238
retrospective effect or not, primarily depends upon the
language of the Rules and its construction to ascertain the
legislative intent. The legislative intent is ascertained
either by express provision or by necessary implication, if
the amended Rules are not retrospective in nature the selec-
tion must be regulated in accordance with the Rules and
orders which were in force on the date of advertisement.
Determination of this question largely depends on the facts
of each case having regard to the terms and conditions set
out in the advertisement and the relevant Rules and orders.
Lest there be any confusion, we would like to make it clear
that a candidate on making application for a post pursuant
to an advertisement does not acquire any vested right for
selection, but if he is eligible and is otherwise qualified
in accordance with the relevant Rules and the terms con-
tained in the advertisement, he does acquire a vested right
for being considered for selection in accordance with the
Rules as they existed on the date of advertisement. He
cannot be deprived of that limited right on the amendment of
Rules during the pendency of selection unless the amended
Rules are retrospective in nature.
In B.N. Nagarajan & Ors. v. State of Mysore & Ors.,
[1966] 3 SCR 682, the dispute related to the validity of
appointment of Assistant Engineers. The Public Service
Commission invited applications by issuing Notifications for
appointment to the post of Assistant Engineers in October
1958, May 1959 and April 1960. The Commission made selec-
tion, interviewed the candidates and sent the select list to
the Government in October/November 1960. But before the
appointment could be made the Mysore Public Works, Engineer-
ing Department Services (Recruitment) Rules 1960 came into
force which prescribed different provisions than those
prescribed in the earlier Notifications in pursuance whereof
the Public Service Commission had made the selections. The
validity of the appointment made by the Government on the
basis of the selection made by the Commission was chal-
lenged. The High Court quashed the selection and appoint-
ments made in pursuance thereof. On appeal before this
Court, validity of the appointment were assailed on the
ground that since the appointments had been made after the
amendment of the Rules the appointments should have been
made in accordance with the amended Rules. A Constitution
Bench of this Court rejected the contention holding that
since the whole procedure of issuing advertisement, holding
interviews and recommending the names having been followed
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in accordance with the then existing Rules prior to the
enforcement of the amended Rules the appointments made on
the basis of the recommendation made by the Public Service
Commission could not be rendered invalid.
250
In Y.V. Rangaiah v.J. Sreenivasa Rao, [1983] 3 SCC 285
similar Question arose relating to recruitment by promotion.
The question was whether promotion should be made in accord-
ance with the Rules, in force on the date the vacancies
occurred or in accordance with the amended Rules. The Court
observed as under:
"The vacancies which occurred prior to the amended rules
would be governed by the old rules and not by the amended
rules. It is admitted by counsel for both the parties that
henceforth promotion to the post of Sub-Registrar Grade II
will be according to the new rules on the zonal basis and
not on the Statewise basis and, therefore, there was no
question of challenging the new rules. But the question is
of filling the vacancies that occurred prior to the amended
rules. We have not the slightest doubt that the posts which
fell vacant prior to the amended rules would be governed by
the old rules and not by the new rules."
The same view was taken in P. Ganeshwar Rao & Ors. v. State
of Andhra Pradesh & Ors., [1988] Supp. SCC 740. Similar view
was taken in A.A. Calton v. Director of Education & Ors., [
1983] 3SCC 33. It is a well accepted principle of construc-
tion that a statutory rule or Government Order is prospec-
tive in nature unless it is expressly or by necessary impli-
cation made to have retrospective effect. Where proceedings
are initiated for selection by issuing advertisement, the
selection should normally be regulated by the then existing
rules and Government Orders and any amendment of the rules
or the Government Order pending the selection should not
affect the validity of the selection made by the selecting
authority or the Public Service Commission unless the amend-
ed rules or the amended Government orders issued in exercise
of its statutory power either by express provision or by
necessary intendment indicate that amended Rules shall be
applicable to the pending selections. See P. Mahendra & Ors.
v. State of Karnataka & Ors., [1989] 4 Judgment Today SC
459.
In the instant case, para 11 of the Government Order
dated 9th July 1975 made the Government’s intention clear
that the revised directions which were contained in that
Government Order would not apply to the selections in re-
spect of which advertisement had already been issued, there-
fore the mode of selection as contained in Annexure 2 to the
Government Order dated 9th July 1975 was not applicable to
the selection for filling the 50 posts of Tehsildars pending
before the Public Service Commission. We are, therefore, of
the opinion that the
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select list including the additional list as prepared by the
commission and published in March 1976 was legal and valid
and though Government wrongly refused to approve the same.
The State Government’s Order dated 23rd April 1976 directing
the Commission to prepare fresh list in accordance with the
mode of selection as contained in Annexure 2 to the Govern-
ment Order dated 9th July 1975 was illegal consequently the
select list prepared afresh by the Commission pursuant to
the directions of the State Government is not sustainable in
law. Since the additional list prepared by the Commission
contained the names of the appellants, they were entitled to
appointment to posts of Tehsildars. We accordingly allow the
appeals set aside the order of the High Court and direct the
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State Government to appoint the appellants to the posts of
Tehsildars, on the basis of additional list published by the
Commission on 18th March 1976.
During the pendency of the writ petition before the High
Court, appointments were made to the posts of Tehsildars on
the basis of the revised list prepared by the Commission in
accordance with the directions of the State Government dated
23rd April 1976. Pursuant to the interim direction of the
High Court the appointment orders contained a specific term
that the appointments would be subject to the result of the
writ petition filed by the appellants. Since the appellants
have succeeded, the respondents’ appointment is liable to be
set aside. The respondents have been working for a period of
about 14 years, it would cause great hardship to them if
their appointment is quashed, and they are directed to
vacate the office which they have been holding during all
these years. At the same time the appellants have been
wrongly denied their right to the posts of Tehsildars.
Having regard to these facts and circumstances, we are of
the opinion that it would be expedient in the interest of
justice not to interfere with the respondents’ appointment
but at the same time steps should be taken to enforce the
appellants’ right to the posts of Tehsildars. In this view,
we direct the State Government to appoint the appellants on
the posts of Tehsildars with retrospective effect, but if no
vacancies are available the State Government will create
supernumerary posts of Tehsildars for appointing the appel-
lants against those posts. We further direct that for pur-
pose of seniority the appellants should be placed below the
last candidate appointed in 1976, but they will not be
entitled to any back wages. The appellants will be entitled
to promotion if otherwise found suitable.
In the circumstances of the ,case, parties shall bear their
own costs.
S.B. Appeals
allowed.
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