Full Judgment Text
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PETITIONER:
SWARAN LATA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT16/01/1979
BENCH:
ACT:
Constitution-Art, 309, proviso-If obligatory on the
part of the Government to make rules of recuitment before a
servicd could be consitituted or post created or filled.
Interpretation of statutes-States Reorganisation Act
1966-S. 84-Scope of -Section If an incidental provision-
Effect of incidental provision after its purpose was served.
Administrative directions issued by the Central
Government for implementing scheme of reorgansiation of
services-If could circumscribe the powers of State
Government-Nature of instructions issued.
Service Commission-If has power to relax essential
qualifications in selceting a candidate for a post.
Words and phrases: "maninly"-Meaning of.
Mala fules-Buredn of proof-On wohomlies.
HEADNOTE:
Section 84 of the States’ Reorganisation Act, 1966
empowered the Central Government to issue directions to the
State Governments of Punjab and Haryana and to the
Admmistrator of the Union territory of Chandigarh "for the
purpose of giving effect to the foregoing provisions of this
part (of the act)". For filling up the different posts under
the control of the Chief Commissioner, Chandigarh, the
Government of India issued instructions that the posts
should be filled up by deputation maninly from the Punjab
and Haryana State cadres, and that the officer whose
services were sought to be borrowed should have been holding
a post, the scale of pay of which was equivalent to the
scale of pay of the post in the Chandigarh Administration
for which the officer was to be selected on deputation.
At the request of the Chandigarh Adminisration the of
Haryana forwarded a panel of three names, including that of
the appellant, for appointment on deputation to the post of
Principal of a Women’s Technical Institute: The post carried
a scale of pay of Rs. 350-900. Although the appellant was
junior to the other two candidates, she was selected and
temporarily appointed to the post since at that time she was
on a pay scale of Rs. 350-900 in Haryana. Since in the
meantime she had been offered a post in Delhi she left the
post in Chandigarh. All efforts to get a suitable candidate
either from the State of Haryana or of Punjab having proved
unsuccessful the Chandigarh Administration requested the
Union Public Service Commission to select a candidate for
the post.
None of the candidates that applied for the post
satisfied all the prescribed qualifications for the post.
Therefore, the UPSC relaxed one or the other
954
qualification in respect of each of the candidates and
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eventually selected respondent No. 6, for the post. The
appellant was also one of the candidates called for
interview; but she was not selecteet.
Allowing the appellant’s writ petition a single Judge
of the High Court struck down the appointment of respondent
no. 6 mainly on the ground that the presence of the Director
of Technical Education representing the Chandigrah
Administration in the interview board vitiated her
appointment inasmuch as he was actuated by bias against the
appellant. But on appeal a Division Bench reversed the order
of the single Judge holding that the allegation of mala
fides or bias had not been made out by the appellant against
the representative of the Chandigarh Administration in the
intervieww board.
The appellant, on appeal to this Court contended that
(1) the post being a deputation post in terms of
instructions issued by the Government of India under s. 84
of the States’ Reorganisation Act, the Chandigarh
Administration had no authority to fill up the post by
direct recruitment and (2) the Union Public Service
Commission had no power to relax the essential
qualifications of the candidates wihout prior concrrence of
the Chandigarh Adiministration.
Dismissing the appeal,
^
HELD: 1 (a) The post of Principal of the Institute was
not a "deputation post" and, theefore, the appoointment of
respondent no. 6 to that post by direct recruitment was not
invalid.[962 D]
(b) It is not obligatory under the proviso to Art. 309
to make rules of recritment before a service could be
constituted or a post created or filled. The State
Government has executive power in relation to all matters in
respect of which the legislature of the State has power to
make laws. There is nothing in the terms of Art. 309 which
abridges the power of the executive to act under Art. 162 of
the Constitution without a law. The same principle underlies
Art. 73 in relation to the executive power of the Union.
[961 G-H]
In the instant case since there were no rules requiring
the Administration to fill up the post by deputation, the
Administration had the option either to make direct
recruitment or to take a person on deputation from the State
of Punjab cr Haryana. [962 B]
B. N. Nagarajan v. State of Mysore, [1966] 3 SCR 682;
T. Cajee v. N. Jormanik Siem & Anr., [1961] 1 SCR 750; Sant
Ram Sharma v. States of Rajasthan & Anr., [1968] 1 SCR 111;
referred to.
(c) Moreover the Chandigarh Administration did all that
it could, for selecting a candidate on deputation from
either Punjab or Haryana, but could not succeed. It cannot,
therefore, be asserted that there was any breach of
instructions issued by the Central Government under s. 84 of
the Act, even assuming they were applicable. [962 E; 964
B;]
(d) The power of the Chandigarh Administration cannot
be said to be circumseribed by the terms of the directions
issued by the Central Government
955
under s. 84 of the Act. The instructions issued were
supplemental incidental or consequential to the provisions
for the reorganisation of States. [959 A]
(e) The meaning of the word "mainly" used in the
instruction issued by the Government of India must, in the
context, mean "substantially", "as far as practicable" or
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"so far as possible". [959 C]
(f) The directions issued by the Central Government
were only for the limited purpose of implementing the scheme
for the reorganisation of services. When the process
relating to integration of services as envisaged by the
supplemental, incidental or consequential provisions for
reorganisation of services under a law was completed an
incidental provision like s. 84 necessarily ceases to have
effect. Such power is only kept in suspended animation till
the process of reorganisation of services is completed and
once the integration of services was finalised there is no
reason for a transitory, consequential or incidental
provision like s. 84 to operate in perpetuity. [959 H]
Jagtar Singh v. State of Punjab & Ors. [1972] 1 SCC
171; referred to.
2(a) There was no statute or regulation having the
force of law by which any qualifications were prescribed for
the post. No rules were framed to regulate the recruitment
and conditions of service of the post. It was, therefore the
exclusive power of the Administration, to prescribe the
essential qualifications for direct recruitment. The
qualifications were prescribed in consultation with the
Commission. [967 H]
(b) The appellant could not be heard at this stage to
say that the Union Public Service Commission had no power to
relax any of the essential qualifications. Her assertion in
the writ petition was that though the UPSC had the power to
relax the qualifications it could not be exercised
arbitrarily. [965 C]
(c) The Commission acted well within its powers in
relaxing the qualification of the candidates called for
interview and in making the appointment, the Administration
ratified the Commission’s action. [966 A]
(d) The essential qualifications were prescribed by the
Administration in consultation with the Commission and
while issuing the advertisement the Commission had reserved
to itself the power to relax the qualifications in a
suitable case. Where qualifications for eligibility were not
prescribed by rules, broad decisions as to the method of
recruitment are taken in consulation with the Commission.
This requirement was fulfilled in this case. The
Administration was fully aware that the Commission had
reserved to itself the power to relax the essential
qualifications. [965 G-H]
Union of India & Ors. v. S. B. Kohli & Anr., [1973] 3
SCR 117; Omprakash v. The State of M. P. & Anr., AIR 1978 MP
59; Maharashtra State Electricity Board Engineers’
Association, Nagpur v. Maharashtra State Electricity Board,
AIR 1968 Bom. 65; held inapplicable.
(e) The appellant could not approbate and reprobate.
She knew fully well that, under the terms of the
advertisement, the Commission had reserved to itself the
power to relax any of the essential qualifications. Because
she had not been selected she could not complain either that
direct recruitment
956
through the UPSC was invalid or that the Commission had
usurped the functions of the Chandigarh Administration in
relaxing the essential qualifications. [972 D]
(f) No relaxation in essential qualifications can be
made after an advertisement had been issued and persons
possessing the qualifications advertised for, have submitted
their applications. If a relaxation has to be made a duty is
cast on the Commission to re-advertise the post. In the
present case, however, the advertisement itself contained
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the relaxation clause and nothing prevented a candidate with
the requisite qualifications from making an application.
[972 H]
3(a) The burden of establishing mala fides lies very
heavily on the person alleging them. The Court would be
justified in refusing to carry on an investigation into
allegations of mala fides if necessary particulars of the
allegation were not given in the writ petition. [970 B]
(b) There was nothing on record to substantiate the
appellant’s general and vague allegations as to the mala
fides or bias on the part of the Director of Technical
Education or that he infuenced the members of the Selection
Committee in any manner so as to vitiate the selection. A
representative of the Chandigarh Administration was
associated as an expert member to the limited extent of
apprising the Chairman of the Selection Committee as to the
nature of duties to be performed by the selected candidate.
There is nothing wrong in the Commission taking such expert
advice. [970 H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 628 of
1978.
Appeal by Special Leave from the Judgment and Order
dated 26-5-77 of the Delhi High Court in L.P.A. No. 34 of
1976.
P. P. Rao, N. D. Garg and T. L. Garg for the Appellant.
H. L. S. Lal and Ashok Grover for Respondents 3 and 5.
S. N. Anand and M. N. Shroff for Respondent No. 4.
S. C. Gupta and Ramesh Chand for Respondent No. 6.
C. M. Nayar for Respondent No. 7.
The Judgment of the Court was delivered by
SEN, J. This appeal, by special leave, directed against
a judgment of the Delhi High Court dated May 26, 1977, in
its appellate jurisdiction reversing the judgment and order
of a Single Judge of that Court dated February 13, 1976
mainly raises the question whether the appointment of the
respondent No. 6, Smt. Prem Lata Dewan by the Chandigarh
Administration to the post of Principal, Government Central
Crafts Institute for Women, Chandigarh, by direct
recruitment through the Union Public Service Commission was
invalid, as being contrary to the directions issued by the
Central Government under s. 84 of the Punjab Reorganisation
Act, 1966.
957
The principal point in controversy in the appeal is
whether the post of Principal of the Government Central
Crafts Institute for Women, Chandigarh in the pay scale of
Rs. 350-900 was a ’deputation post’ and required to be
filled in by the Chandigarh Administration only by an
officer on deputation drawing an equivalent scale from the
States of Haryana and Punjab or could also be filled up by
appointment of a suitable candidate by advertising the post
through the Union Public Service Commission.
Three subsidiary questions also arise in the appeal,
namely (1) whether the Union Public Service Commission had,
in fact, exceeded its power by usurping the functions of the
newly created Union territory of Chandigarh by relaxing the
essential qualifications of the candidates while
recommending the name of respondent No. 6, Smt. Prem Lata
Dewan for appointment to the post of Principal, and thereby
altered the qualifications prescribed by the Chandigarh
Administration to regulate recruitment to that post; (2)
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whether the appointment of respondent No. 6, Smt. Prem Lata
Dewan by the Chandigarh Administration to the post of
Principal was illegal inasmuch as, she did not possess the
requisite essential qualifications, if any, prescribed for
the post in question; and (3) whether the proceedings of the
Selection Committee dated April 23, 1975 culminating in the
selection of respondent No. 6, Smt. Prem Lata Dewan as the
candidate most suitable for appointment to the post of
Principal, were vitiated because Dr. O. S. Sehgal, Director,
Technical Education, Chandigarh assisted the Selection
Committee in its deliberations during the interview, on
account of his bias, if any, against the appellant.
The main argument advanced by the counsel for the
appellant, can be conveniently considered under two heads:
The first branch of his contention is, that in terms of the
instructions issued by the Central Government under s. 84 of
the Punjab Reorganisation Act, 1966, the post of Principal
of the Institute was ’deputation post’ and, therefore, the
Chandigarh Administration had no authority to fill up the
post by direct recruitment through Union Public Service
Commission. The other branch of the counsel’s contention is
that the Union Public Service Commission had no power to
relax the essential qualifications of the candidates to be
selected at the interview without the prior concurrence of
the Chandigarh Administration.
There is no warrant for the contention that the power
of the Chandigarh Administration in relation to the mode of
filling up the
958
post in question, which admittedly is under the control of
the Administrator, Chandigarh Administration, stands
circumscribed by the terms of the directions issued by the
Central Government under s. 84 of the Act.
The decision must turn on a construction of the
instructions issued on November 4, 1966 by which the
Government of India, Ministry of Home Affairs, which
consequent upon the amendment of the Government of India
(Allocation of Business) Rules, 1961 by Order of the
President of India dated October 30, 1966 was made
responsible for the work of the Union territory of
Chandigarh. These instructions were issued on the basis that
personnel for the Union territory of Chandigarh would be
provided on deputation by the two States of Punjab and
Haryana. The said instructions, so far material, read as
follows:
"Except for the department of (i) Printing and
stationery (ii) Architecture and (iii) Post Graduate
Institute of Medical Education and Research,
Chandigarh, the posts in the other departments under
the control of the Chief Commissioner, Chandigarh will
be filled up by deputation mainly from the
Punjab/Haryana State Cadres.
In respect of the above-mentioned departments, the
staff will be taken en bloc by the Chandigarh Union
territory Administration. A committee consisting of the
representatives of the Governments of Punjab, Haryana,
the Chandigarh Union territory Administration and the
Ministry of Home Affairs has been constituted to
recommend absorption of personnel against posts in the
Chandigarh Union territory Administration, from the
Punjab/Haryana State cadres on permanent basis."
The aforesaid communication also conveyed the order of the
Government of India, Ministry of Home Affairs, sanctioning
the creation and continuance of "existing posts" in the
Union territory of Chandigarh from November 1, 1966.
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These instructions were in conformity with the earlier
decision of the Government of India, Ministry of Home
Affairs conveyed by the letter of the Chief Secretary to the
Government of erstwhile State of Punjab dated August 9, 1966
stating that the Government had set up a committee headed by
Sri V. Shanker, I.C.S., for the finalisation of the
proposals of the Departmental Committees in regard to the
allocation of the personnel to the reorganised States of
Punjab and Haryana and the Union territory of Chandigarh. In
regard to the Union territory of Chandigarh, the decision of
the Government of India was in these terms:
959
"It may be presumed that personnel for the Union
territory of Chandigarh will be provided on deputation
by the two States of Punjab and Haryana."
The aforesaid instructions issued under s. 84 of the
Act were supplemental, incidental or consequential
provisions for the reorganisation of the States. The
instructions were binding on the State Governments of Punjab
and Haryana as also on the Chandigarh Administration in the
matter of integration of services: Jagtar Singh v. State of
Punjab & Ors.(1)
The key to the interpretation of the aforesaid
instructions issued under s. 84 of the Act, obviously lies
in th word ’mainly’. According to the ordinary plain
meaning, the word "mainly" must, in the context, mean
"substantially", "as far as practicable" or "so far as
possible." In Shorter Oxford Dictionary, 2nd Edn., vol. 1,
p. 1189, the meaning given is: "For the most part; chiefy,
principally". In Webster’s New International Dictionary, 2nd
Edn., vol. III, p. 1483, more or less the same meaning is
given: "Principally, chiefy, in the main".
It seems to us that for a proper determination of the
question, it is necessary first of all to formulate as
clearly as possible the precise nature and the effect of the
directions issued by the Central Government under s. 84 of
the Punjab Re-organisation Act, 1966, which reads:
"84. Power of Central Government to give
directions: The Central Government may give such
directions to the State Governments of Punjab and
Haryana and to the Administrators of the Union
territories of Himachal Pradesh and Chandigarh as may
appear to it to be necessary for the purpose of giving
effect to the foregoing provisions of this Part and the
State Governments and the Administrators shall comply
with such directions."
The use of the words "for the purpose of giving effect
to the foregoing provisions of this Part" clearly curtails
the ambit of the section. The directions that the Central
Government issues under the section are only for a limited
purpose, i.e., for the implementation of the scheme for the
re-organisation of services. When the process relating to
integration of services as envisaged by the supplemental,
incidental or consequential provisions for re-organisation
of services under a law made by the Parliament in exercise
of its power under
960
Articles 2, 3 and 4 of the Constitution is completed, such
an incidental provision like s. 84 necessarily ceases to
have effect.
While it is not disputed that the power to regulate
matters relating to services under the Union of India and
under the various States specified in the First Schedule to
the Constitution is an exclusive function of the Union and
the States under Entry 70, List I and Entry 41, List II of
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Seventh Schedule read with Article 309 and normally,
therefore, it is the exclusive power of the Union and the
States to deal with their services either in exercise of
their Legislative functions or rule-making powers, or in the
absence of any law or rules, in exercise of their executive
power under Article 73 and Article 162 of the Constitution,
which is co-extensive with their legislative powers to
regulate recruitment and conditions of service, nevertheless
it is strenuously urged that this power of the Union and of
the States which embraces within itself the power to
regulate the mode of recruitment of services must yield to
the supplemental, incidental or consequential directions
issued by the Central Government in relation to the setting
up of services in a newly formed State under a law made by
the Parliament relatable to Article 3 of the Constitution,
in the context of reorganisation of States. To put it more
precisely, it is argued that the newly formed State is
completely divested of its power to deal with its services.
In Union of India v. P. K. Roy & Ors.(1) this Court touched
upon the subject, but expressed no final opinion since the
question did not directly arise.
After the process of integration of services is
finalized in conformity with any law made by the Parliament
referred to in Articles 2 or 3 of the Constitution, the
supplemental, incidental and consequential provisions
contained therein, which, by reason of Article 4 have the
effect to divest the newly formed State of its power to deal
with its services, would no longer operate. Such power is
only kept under suspended animation till the process of re-
organisation of services is not completed. Once the
integration of services in a newly formed State is
finalized, there is no reason for a transitory,
consequential or incidental provision like s. 84 of the Act
to operate in perpetuity.
For the reasons already stated, there is no basis for
the submission that the supplemental, incidental or
consequential provisions which the Parliament is competent
to make while enacting a law under Articles 2 or 3 have an
overriding effect for all times. On the plain words of
Article 4 of the Constitution, a provision like s. 84 of the
Act, or the directions issued thereunder are only
supplemental incidental or con-
961
sequential to the scheme of re-organisation of services,
which is consequential upon the re-organisation of a State.
They cannot be given a wider effect than what is intended.
It may incidentally be mentioned that on November 1,
1966, i.e., on the appointed day under s. 2(b), the
President of India issued an order, in exercise of the
powers conferred by the proviso to Article 309 of the
Constitution directing that the Administrator of the Union
territory of Chandigarh shall exercise the power to make
rules in regard to the following matters namely:
(i) the method of recruitment to the Central
Civil Services and posts (Class II, Class III
and Class IV) under his administrative
control in connection with the affairs of the
Union territory of Chandigarh;
(ii) the qualifications necessary for appointment
to such services and posts; and
(iii)the conditions of service of persons
appointed to such services and posts for the
purpose of probation; confirmation, seniority
and promotion:
Provided that the power conferred by this
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notification shall not be exercisable in respect of
such services and posts as are borne on a cadre common
to two or more Union territories."
The Administrator in exercise of the powers conferred
by the aforesaid order of the President, framed no rules to
regulate recruitment and conditions of service of the post
of Principal, Government Central Crafts Institute for Women,
Chandigarh, nor were any rules framed prescribing the
qualifications necessary for appointment to such posts.
It is not obligatory under the proviso to Article 309
to make rules of recruitment etc. before a service can be
constituted, or a post created or filed. The State
Government has executive power in relation to all matters in
respect to which the Legislature of the State has power to
make laws. It follows from this that the State Government
will have executive powers in respect of List II, Entry 41
of the Seventh Schedule: ’State Public Services’: B. N.
Nagarajan v. State of Mysore.(1) There is nothing in the
terms of Article 309 of the Constitution which abridges the
power of the executive to act under Article 162 of the
Constitution without a law. The same view has been
962
taken by this Court in T. Cajee v. U. Jormanik Siem &
Anr. (1) and Sant Ram Sharma v. State of Rajasthan & Anr.(2)
The same principle underlies Article 73 of the Constitution
in relation to the executive power of the Union.
There are thus no rules and regulations which require
the Chandigarh Administration to fill up by deputation the
vacancy in the post of the Principal, Government Central
Crafts Institute for Women, Chandigarh. The Chandigarh
Administration had, therefore, the option to either directly
recruit persons to be appointed to the post through Union
Public Service Commission or to request either the State of
Punjab or the State of Haryana to send the names of suitable
persons whom the Chandigarh Administration might be willing
to appoint. It must, accordingly, he held that the post of
principal of the Institute was not a "deputation post" and,
therefore, the appointment of respondent No. 6, Smt. Prem
Lata Dewan by the Chandigarh Administration to that post, by
direct recruitment through the Commission was not invalid.
Even assuming that the directions issued by the Central
Government under s. 84 of the Act were binding on the
Chandigarh Administration, it is clear that there is no
breach thereof. From the correspondence that passed between
the Chandigarh Administration and the Government of Haryana,
there can be no doubt whatever that the Chandigarh
Administration made their utmost endeavour to get a suitable
person on deputation for appointment as Principal of the
Institute. A long correspondence on the subject ensued and
eventually the Government of Haryana by its letter dated
July 7, 1974, informed the Chandigarh Administration that it
was not possible to relieve any woman officers in the grade
of Rs. 350-900 from the Industrial Training Department
except that of Smt. Champa Malhotra who was facing an
inquiry, with a request that the appellant should instead be
appointed. The Government of Haryana was obviously wrong in
insisting upon the appointment of an officer in the scale of
Rs. 300-500. This could not obviously be done as it would be
contrary to the instructions of the Government of India,
Ministry of Home Affairs dated August 16, 1971 that an
officer cannot be appointed on deputation to a post that
carried a higher grade of pay in the Union territory of
Chandigarh. Thus, the post of Principal in the pay scale of
Rs. 350-900 could only be filled by a person on deputation
who manned a post
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963
the scale of pay of which was equivalent to the scale of pay
of the Principal i.e. Rs. 350-900.
It appears that the entire question was re-examined by
the Chandigarh Administration. The Director, Technical
Education by his letter dated October 9, 1974 addressed to
the Home Secretary, Chandigarh Administration stated that
the qualifications prescribed by the Government of India in
the Training Manual for the post of Principal in such
institutions were as under:
1. Degree or its equivalent in Mechanical
Engineering or Electrical Engineering will be
preferred.
2. In the case of degree holder, practical
experience of one year in a reputed concern
or in a training institute will be desirable.
3. In the case of Diploma holders, practical
experience of 5 years in a reputed concern or
in a training institute will be desirable.
Further, he mentioned that there was no institution similar
to the Government Central Crafts Institute for Women,
Chandigarh either in the State of Punjab or in the State of
Haryana. There were only Government Industrial Schools for
girls which were still in the process of being developed.
These institutions were headed by Head-Mistresses Principals
in the non-gazetted scale of Rs. 300-500. He therefore,
rightly pointed out that the posts of Assistant Directresses
in the States of Punjab and Haryana were equivalent to the
post of Principal of the Institute, as they also carried the
scale of Rs. 350-900 and that throughout the Chandigarh
Administration had been appointing Principal of the
Institute only from the cadre of Assistant Directresses.
In response to Government of Haryana’s letter dated
September 27/30, 1974, the Chandigarh Administration
accordingly wrote on October 11/14, 1974 giving detailed
reasons why it was not possible to take the appellant on
deputation as Principal because on her reversion from her
current assignment with the Delhi Small Industries
Development Corporation she would be posted as Head Mistress
in the scale of Rs. 300-500 whereas the scale of the
Principal’s post at the Institute was Rs. 350-900 inasmuch
as the Government of India’s instructions forbid giving a
deputationist a scale of pay which she is not already
holding in her parent State and also because it was of the
opinion that looking to her past performance as Principal
during her short stay, it was considered that she would not
be a suitable person
964
to be appointed as Principal. The Chandigarh Administration
also pointed out that they were still prepared to take back
Smt. Champa Malhotra as Principal of the Institute despite
the inquiry against her. But, the Government of Haryana
maintained complete silence. It disdained from replying to
this letter or from relieving Smt. Champa Malhotra.
It would, therefore, appear that right from March 7,
1974 till August 14, 1974 when the Chandigarh Administration
forwarded requisition to the Union Public Service Commission
to advertise the post for direct recruitment, i.e. for
nearly 6 months, the Government of Haryana took no action in
the matter. During this period, it just persisted in its
stand in forwarding a panel of names of officers carried on
the scale of Rs. 300-500 and when it was fully apprised
about the true legal position by the Chandigarh
Administration expressing their inability to take an officer
working in a lower grade or to take back the appellant as
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Principal of the Institute, it still insisted in sponsoring
her name, although this could not be done. This attitude of
the Government of Haryana was just inexplicable.
Nevertheless, the Chandigarh Administration by their letter
dated August 20, 1974, i.e., just within six days of the
requisition did what was expected of them and duly informed
the Government of Haryana of their decision to recruit a
Principal through the Commission and requested that it may
direct the eligible officers from Haryana to apply for the
post. In response, the Government of Haryana by its letter
dated September 27/30, 1974 registered a protest staking a
claim as if the post of Principal of the Institute was a
Haryana-quota post, i.e., it could be filled in only by an
officer on deputation from the State of Haryana. In spite of
repeated letters sent by the Chandigarh Administration, the
Government of Punjab also did not send up the name of a
suitable officer. In view of these circumstances, it cannot
be asserted that there was any breach of the instructions
issued by the Central Government under s. 84 of the Act, if
at all they were applicable.
Viewed from any angle, we must hold that the Chandigarh
Administration was within their rights in making the
appointment to the post of Principal, Government Central
Crafts Institute for Women, Chandigarh by direct recruitment
through the Union Public Service Commission. Thus the
appointment of respondent No. 6, Smt. Prem Lata Dewan as
Principal of the Institute was not invalid as being contrary
to the directions issued by the Central Government under s.
84 of the Act inasmuch as the said directions were not
applicable and also because there was no breach thereof, if
at all they applied.
965
That leads us to the other branch of the appellant’s
contention, and the question arises whether in the case of
this particular post could the Union Public Service
Commission have relaxed the essential qualifications ? The
appellant has nowhere alleged in the writ petition that the
Union Public Service Commission had no authority to relax
the essential qualifications. On the contrary, she averts in
para 21 thereof:
"Though the Union Public Service Commission has
the power of relaxing the qualifications but the said
power can not be exercised arbitrarily."
In view of this admission, she cannot be heard to say that
the Union Public Service Commission had not such power.
Since however the point was argued at length, we think it
necessary to deal with it.
It is undisputed that there is no statute or regulation
having the force of law, by which any qualifications are
prescribed for the post of Principal of the Institute. Nor
has the Administrator framed any rules to regulate the
method of recruitment to such post, or laying down the
qualifications necessary for appointment to the post or the
conditions of service attached to the post. The Chandigarh
Administration accordingly while sending up its requisition
dated August 14, 1974 to the Union Public Service
Commission, suggested certain essential and desirable
qualifications, keeping in view the qualifications
prescribed by the Government of India in the Training Manual
quoted above. The nature and duties of the post of Principal
of the Institute are primarily administrative in nature, but
the qualifications prescribed were, however, essentially
technical. The Commission, therefore, by its letter dated
September 16, 1974 returned the requisition to the
Chandigarh Administration, with the observation that they
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should lay down the qualifications keeping in view the
nature and duties of the post. The Chandigarh Administration
accordingly on January 2/4, 1975 forwarded a fresh
requisition revising the qualifications for the post i.e,
including ’Administrative Experience for three years’.
Thereafter, the Commission on February 1, 1975 advertised
the post with the essential qualifications as suggested,
with a relaxation clause. It will, therefore, appear that in
the instant case, the essential qualifications were
prescribed by the Chandigarh Administration in consultation
with the Commission and also that the Commission had in the
advertisement issued, reserved to itself the power to relax
the qualifications in case of suitable candidates. Where
qualifications for eligibility are not prescribed by rules,
broad decisions as to the method of recruitment are taken in
consultation with the Commission. This require-
966
ment was fulfilled in this particular case. The Chandigarh
Administration was fully aware that the Commission had
reserved to itself the power to relax the essential
qualifications. The Commission, therefore, acted within its
powers in relaxing the qualifications of the candidates
called for interview. In fact, the Chandigarh Administration
ratified the action of the Commission in making the
appointment. The appointment of respondent No. 6, Smt. Prem
Lata Dewan cannot, therefore, be challenged on the ground
that either the Commission had no power to relax the
qualifications or that she did not possesss the minimum
qualifications prescribed for the post.
It is, however, strenuously urged on the strength of
the decision of the Madhya Pradesh High Court in Omprakash
v. The State of Madhya Pradesh & Anr.(1) that the Union or
the State Public Service Commissions cannot select a
candidate who does not possess the qualifications
prescribed. We do not see how this decision is of any avail
to the appellant. On the contrary, while laying down that
the Government has to fill up posts by appointing those who
are selected by the Public Service Commission and must
adhere to the order of merit in the list of candidates sent
by the Commission, it observed:
"It is entirely in the wisdom and discretion of
the Commission what mode or method it would adopt. That
is subject to statutory provisions, if any. Where
minimum qualifications for eligiblity are prescribed by
a statute or by the Government, the Public Service
Commission cannot select a candidate who does not
possess those qualifications. However, the Public
Service Commission is free to screen the applicants,
classify them in various categories according to their
plus qualifications and/or experience, and call for
interyiew only those candidates who fall within those
categories, eliminating others who do not satisfy these
criteria."
This decision, in our opinion, instead of supporting the
appellant goes against her.
We are of the view that the decision of this Court in
Union of India & Ors. v. S. B. Kohli & Anr.(2) and that of
the Bombay High Court in Maharashtra State Electricity Board
Engineers’ Association, Nagpur v. Maharashtra State
Electricity Board(3) are both distinguishable on facts. In
S. B. Kholi’s case, this Court was concerned with
interpretation of items 2 and 3 of Annexure I to the Second
Schedule
967
of the Central Health Service Rules, 1963, as amended, which
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prescribed "a post-graduate degree in the concerned
speciality", and the question was whether the qualification
of F.R.C. 5 satisfied the qualification prescribed for the
post of Professor of Orthopaedic Surgery. It was held that
the Regulations framed by the Medical Council required that
in addition to the general F.R.C. 5, a Surgeon must have a
diploma in Orthopaedics before he could be appointed a
Professor, Reader or Lecturer in Orthopaedics. It was said
that to hold otherwise, would mean that a person who has the
qualification of F.R.C. 5 would be deemed to be specialised
in Orthopaedics, without his having any such qualification.
In the Maharashtra State Electricity Board’s case,
(supra) the Board, which is a statutory Corporation, made
the Maharashtra State Electricity Board (Classification and
Recruitment) Regulations, 1961, in exercise of its powers
under s. 79 of the Electricity Supply Act, 1948. Regulation
8 invests the power of modification of minimum
qualifications or exeperience required for the various
categories of posts only in the Board. Regulation 21,
however, confers power on the Selection Committee to
recommend, in deserving cases, relaxation of the age limit
and educational or other qualifications. The Board issued an
advertisement inviting applications for the post of
Executive Engineer (E&M). The advertisement nowhere
mentioned that the minimum requirements of qualifications
and experience were liable to be relaxed. This resulted in
denial equal opportunity to the departmental candidates who
could have applied when the post was advertised, if it was
known that the qualifications and experience, as advertised,
were not rigid and liable to relaxation. The High Court
accordingly struck down the direct recruitment of a person
to the post of Executive Engineer (E&M) since the
advertisement effectively prevented the departmental
candidates from applying for the post, because their period
of experience was less than the advertised one, holding
that, in effect, this was tantamount to a denial of equal
opportunity to them in violation of Article 16(1). In our
view, the decision turned on its own facts.
In the present case, as already pointed out, there was
no statute or regulation having the force of law by which
any qualifications were prescribed for the post of
Principal. There were also no rules framed to regulate
recruitment and conditions of service of the post under the
proviso to Article 309 of the Constitution. It was the
exclusive power of the Chandigarh Administration in the
absence of any law or rules, to prescribe the essential
qualifications for direct recruitment to
968
the post, and accordingly the qualifications were prescribed
in consultation with the Commission. The Commission while
advertising the post, had reserved to itself the power to
relax the qualifications in deserving cases. It is not that
the Commission had relaxed one of the essential
qualifications viz. qualification No. (ii) ’Diploma in
Technology of three years duration’, in the case of
respondent No. 6 alone. There were three other candidates
who were also interviewed in relaxation of essential
qualifications Nos. (ii) and (iv). The affidavit of Dr. A.
C. Mathai, Under Secretary in the Union Public Service
Commission shows that in the case of respondent No. 6, the
Commission relaxed essential qualification No. (ii), as
under :
"Requirement of Diploma of Industrial Training of
two years’ duration".
It is noteworthy that essential qualification No. 2, as
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advertised was ’Diploma in Technology of three years’
duration or Diploma of Industrial Training of two years’
duration with one year’s teachers training/C.T.I.’ Indeed,
respondent No. 6 had essential qualification No. 2. The word
’or’ made the two clauses disjunctive, and they were in the
alternative. Respondent No. 6 besides being a graduate in
Arts also held a three years’ Diploma in Home Science from
Lady Irwin College, Delhi.
It is a matter of common knowledge that Home Science,
in some countries called ’domestic economics’ or ’domestic
science’, is a broad field of learning integrating the
subject-matters of several disciplines to form a body of
knowledge focussed on the problems of the home and their
living. It is concerned with all phases of home life and
includes the following subjects : child development and
family relationships; clothing, textiles and related arts;
family economics and home management; food and nutrition;
housing and house management. Shorter Oxford Dictionary, 3rd
ed., Vol. II, p. 2253 gives the meaning of ’Technology’ as :
"a discourse or treatise on an art or arts; the
terminology of a particular art or subject; the
scientific study of children."
In Webster’s New International Dictionary, 2nd ed., vol. IV,
p. 2590 apart from giving it the meaning of "industrial
science", also conveys to it the meaning :
"any science or systematic knowledge of the
industrial arts."
969
The Random House Dictionary of the English Language, p. 1349
gives some of the meanings of the term as:
"the application of knowledge for practical ends,
as in a particular field : educational technology; the
terminology of an art, science, etc.; technical
nomenclature."
Though in its primary sense it is true that the word,
’Technology’ involves a technical process, invention, method
of the like, in the broader sense it embraces non-
engineering related curricula pertaining to applied and
graphic arts, education, health-care, nutrition, etc. i.e.
it includes technique or professional skill in any of the
subjects enumerated above. The expression ’Diploma in
Technology’ is, therefore, wide enough to include a Diploma
in Home Science.
In S. B. Kohli’s case (supra) this Court observed:
"This argument was based on the provision in the
Annexure I to the Second Schedule which states that the
qualifications are relaxable at Commission’s discretion
in the case of candidates otherwise well qualified.
That is no doubt so. But the discretion is given only
to the Union Public Service Commission in cases of
direct recruitment and not to the Departmental
Promotion Committee in cases of promotion. As that is
the intent of the law it has to be given effect to."
It was then observed:
"Moreover, the Union Public Service Commission
when it proceeds to fill up a post by direct
recruitment does so by calling for applications by
extensive advertisements and it is but reasonable that
if on a consideration of all those applications it
finds that persons possessing the prescribed
qualifications are not available but there are persons
otherwise well qualified, they may be selected."
The Union Public Service Commission was, therefore, perhaps
not wrong in selecting respondent No. 6 as a suitable
candidate for the post.
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The next question for consideration is whether there
was bias. We are unable to hold from the material on record
that there was any bias on the part of Dr. O. S. Sehgal
Director, Technical Education, Chandigarh or that he
influenced the members of the Selection Committee in any
manner, so as to vitiate the selection of respondent No. 6.
In our view, the allegations in the writ petition are not
sufficient to constitute an averment of malafides or bias on
the part of
970
either the Chandigarh Administration or in particular
against Dr. O. S. Sehgal sufficient to vitiate the
appointment of respondent No. 6. No malafides as such are
imputed against the Union Public Service Commission. The
Court would be justified in refusing to carry on
investigation into allegations of malafides, if necessary
particulars of the charge making out a prima facie case are
not given in the writ petition. The burden of establishing
malafides lies very heavily on the person who alleges.
The Division Bench has pointed out, and we think
rightly so, that the principles laid down in Kraipak’s case
(supra) were not applicable in the facts and circumstances
of the present case. It rightly observes that no question of
malafides or bias arises as it is clear from the letter
written by Dr. O. S. Sehgal dated October 9, 1974 to the
Home Secretary, Chandigarh Administration wherein he had not
said a word against the appellant. All that he said in his
capacity as Director, Technical Education was that on
account of the failure to appoint a Principal for quite
sometime the Institute was in a bad condition, and that
although he had given charge to the Vice Principal, she did
not prove effective, suggesting that the Government of
Haryana should be requested to lend the services of Smt.
Champa Malhotra as he was prepared to take her back as she
had worked for a long time as Principal, in order that the
work of the Institute should not suffer. The whole tenor of
the document shows that it was written in the best interests
of the institution. He as the Director of Technical
Education was solely responsible for the due administration
of the Institute. The Division Bench has also rightly held
that no inference of malafides arises from the letter
written by Sri B. S. Ojha, Home Secretary, Chandigarh
Administration dated October 11/14, 1974.
All that is said is that Dr. O. S. Sehgal, Director,
Technical Education, ‘for reasons best known to him’, did
not went to appoint the appellant and, therefore, ‘must have
played an important part at the meeting of the Selection
Committee’ and was ‘able to prevail upon the other members’
to select the respondent No. 6 with a view so that the
appellant who was better qualified should not be selected.
The appellant further averred that she had in her
representation dated May 1, 1975, alleged that after the
interview she had overheard Dr. O. S. Sehgal talking to the
third Lady member, saying as to ‘how they could take this
Lady’, meaning the appellant, ‘as the Principal’ and,
therefore, she felt that she was a victim of the machination
of Dr. Sehgal.There is nothing on record to substantiate
such general and vague allegations of the appellant as to
malafides or bias on the part of Dr.
971
Sehgal. Dr. Sehgal in his counter-affidavit has controverted
the insinuations made against him. Not a word was said at
the hearing about the alleged utterance attributed to him.
Nothing was brought to our notice to show ill-will or malice
on his part. The entire arguments are built around the two
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letters, the one written by Dr. O. S. Sehgal dated October
9, 1974 to the Home Secretary, and the other addressed by
Sri B. S. Ojha, Home Secretary, Chandigarh Administration to
Sri S. N. Bhanot, Secretary to the Government of Haryana,
Industrial Training Department.
Dr. A. C. Mathai, Under Secretary, Union Public Service
Commission has on affidavit stated that the Commission
relaxsed some of the essential qualifications after applying
its own mind, uninfluenced by any extraneous considerations,
and denied, in particular, that the Commission was advised
by any extraneous authority. Dr. O. S. Sehgal as
Representative of the Chandigarh Administration was
associated only as an Expert Member and his only duty was to
apprise the Chairman of the Selection Committee as to the
nature of duties to be performed by the selected candidate.
There was nothing wrong in the Union Public Service
Commission taking such expert advice. We are informed that
the Selection Committee had also selected the appellant for
the post of Principal although, on evaluation of comparative
merits and de-merits placed her as No. 2 While the
respondent No. 6 was placed as No. 1. This circumstances
clearly shows that the Selection Committee was wholly
unifluenced by any other consideration except merit. In S.
Pratap Singh v. The State of Punjab(1) this Court laid down
that he who seeks to invalidate or nullify any Act for
Order, must establish the charge of bad faith and abuse or
misuse by Government of its powers. The allegations which
are of a personal nature are not borne out at all. Further,
the allegations are wholly irrelevant and even if true,
would not afford a basis upon which the appellant would be
entitled to any relife. On the appellant’s own showing, Dr.
O. S. Sehgal as Dircetor, Technical Education recorded
appreciation of her as Principal of the Institute.This
clearly shows that he had no particular animus against her.
Furthermore, as the Division Bench observes, merely
because Sri B. S. Ojhas Home Secretary, Chandigarh
Adminisration addressed a letter to Sri S. N. Bhanot,
Secretary to the Government of Haryana, Industrial Training
Department dated October 11/14, 1974 expressing his
unwillingness to take the appellant on deputation because
she was not holding a substantive rank in the pay scale of
Rs. 350-900,
972
contrary to the instructions of the Government of India and
also because the Chandigarh Administration felt that looking
to her past performance as Principal during her short stay,
she was not a suitable person to be appointed as Principal,
does not necessarily give rise to an inference of bias on
the part of the Chandigarh Administration or Dr. O. S.
Sehgal, Director of Technical Education. These were all
matters within the competence of the Chandigarh
Administration and it was for them to decide the suitability
of candidate for appointment. There is nothing to suggest
that the reasons given by the Home Secretary were not his
own reasons based upon his own information. It is needless
to stress that the Home Secretary to the Government of a
State holds a very sensitive position and is the nerve
centre of the administration fully conversant with the
realities. For aught we know, the Home Secretary had his own
sources of information.
In any event, the appellant cannot approbate and
reprobate. She had willingly, of her own accord, and without
any persuasion by anyone, applied for the post, in response
to the advertisement issued by the Union Public Service
Commission for direct recruitment. She, therefore, took her
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chance and simply because the Selection Committee did not
find her suitable for appointment, she cannot be heard to
say that the selection of respondent No. 6 by direct
recruitment through the Commission was invalid, as being
contrary to the directions issued by the Central Government
under s. 84 of the Act or that the Commission had exceeded
its powers, by usurping the functions of the Chandigarh
Administration, in relaxing the essential qualifications of
the candidates called for interview or that respondent No. 6
was not eligible for appointment inasmuch as she did not
possess the requisite essential qualifications. She fully
know that under the terms of the advertisement, the
Commission had reserved to itself the power to relax any of
the essential qualifications. With this full knowledge, she
applied for the post and she appeared at the interview. We
are clearly of the opinion that the appellant is precluded
from urging these grounds.
Lastly, the contention of respondent No. 7, Smt. Usha
Wadhwa that the failure of the Union Public Service
Commission to re-advertise the post prevented her from
applying for the post and thereby there was denial of equal
opportunity to her in violation of Article 16(1) can be
easily disposed of. It is true that no relaxation in
qualifications can be made when an advertisement has duly
been issued inviting applications and persons posscssing the
qualifications advertised, as prescribed by the rules, are
available and have submitted their applications. If a
relaxation has to be made, there is a duty
973
cast to re-advertise the post. In the instant case, however,
the advertisement itself contained a relaxation clause and,
therefore, nothing prevented respondent No. 7 from making an
application, if she felt that she was better, if not
equally, qualified as respondent No. 6. The contention
appears to be an afterthought and must be rejected.
In conclusion, we cannot but express our sympathy for
the appellant. This unfortunately is a situation of her own
making. The Courts can only act where there is any
infringement of a right but not merely on equitable
considerations. We wish to mentions that the counsel
appearing for the Chandigarh Administration very fairly
suggested that if the Government of Haryana were to forward
the name of an officer immediately senior to the appellant
in the cadre of HeadMistresses, who may be holding a post in
the pay scale of Rs. 350-900 for appointment on deputation
in an equivalent post, such officer could be absorbed by the
Chandigarh Administration in the pay scale of Rs. 350-900.
That being so, the applliant could still be saved from the
predicament of being posted as a Head-Mistress in the pay
scale of Rs. 300-500 on her reversion to her parent State.
This is, however, a matter for the Haryana Government to
decide.
The result, therefore, is that the appeal fails and is
dismissed. There shall be no order as to costs.
P.B.R. Appeal dismissed
974