vil Appeal Nos
2270 73 of 1987  17 131990
From the Judgment  Order dated the 1181978 of the Karnataka High Court in Writ Petition No 460976 461076  4611 of 1976
PP Rao and SR 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 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 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 161 and 164 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 102 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 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 101 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 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 GO dated 9th July 1975 supersedes a11 the previous Government Orders cited in the preamble to that order including the GO dated 6th September 1969
The same para states that the order came into force with immediate effect but makes only one exception ie 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 GO 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 GO 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 GO 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 GO 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 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 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 BN Nagarajan  Ors
vs State of Mysore  Ors
  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 OctoberNovember 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 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 YV Rangaiah
J Sreenivasa Rao 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
vs State of Andhra Pradesh  Ors 1988 Supp
SCC 740
Similar view was taken in AA Calton vs 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
vs 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 251 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 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
SB Appeals allowed


Summary:
The main point for decision in this appeal by the Municipal Committee of Dhamtari and its President was whether in appointing an Executive Officer in exercise of its powers under section 53A of the C P and Berar Municipalities Act 1922 the State Government acted in a judicial capacity or in an administrative one Complaints having been made against the appellants the additional Deputy Collector was directed to hold an enquiry and on his report the State Government by a notification under that section appointed an Executive Officer of the Municipal Committee for 18 months with specified powers and duties
The appellants were given notice of the said enquiry filed objections 1441 and the President was personally present on some occasions during the enquiry
The notification charged the appellants with incompetency as well as abuse of power
Against that notification the appellants moved the High Court under article 226 of the Constitution for a writ of certiorari quashing the same but their application was rejected by the judge sitting singly
An appeal under the Letters Patent against his decision was summarily dismissed
It was contended before this Court on behalf of the appellants that 1 although the notification purported to be one under section 53A of the Act it was in effect and reality one under section 57 Of the Act that 2 it was therefore incumbent on the Government under section 575 of the Act to afford the appellants an opportunity to furnish explanation and that 3 even if the notification was one under section 53A of the Act the Government was bound by the rules of natural justice to give the appellants an opportunity to defend themselves
Held per curiam that sections 53A and 57 of the C P and Berar Municipalities Act 1922 differed materially in their scope and effect but it was not obligatory under either of them for the Government to take any action at all
Although a finding of incompetency of the Municipal Committee was a condition precedent to action under both the sections the Government was free to choose its remedy as the occasion demanded and it could not be contended that because a notification made under section 53A of the Act along with a finding of incompetency contained some instances of abuse of power as well it must be held to have been made under section 57 of the Act
Nor could the vesting of power in the Executive Officer by the notification however substantial in character be said in effect and reality to amount to a dissolution of the Municipal Committee under section 57 Of the Act
Per Das C T and Kapur J
The real test whether the State Government functioned in a quasi judicial capacity or in an administrative capacity in exercising its powers under section 53A of the Act was whether the statute required it to act judicially either expressly or by implication
The Act contained no express provision to that effect nor could the determination of the fact of incompetency as a condition precedent to any action under that section by itself carry such an implication
In making the notification under section 53A of the Act therefore the Government functioned in an administrative capacity and not in a quasi judicial one
Even so by the enquiry held the State Government afforded the appellants ample opportunity to defend themselves and there could hardly be any ground for complaint
Province Of Bombay vs Kusaldas section Advani 1950 SCR 621 Rex vs Electricity Commissioners  Rex vs London County Council  R vs Legislative Committee Of the Church Assembly 1928 1 KB 411 and Nakkuda Ali s Case  referred to
1442 Per Bhagwati J
Since the enquiry held in this case fully satisfied the requirements of natural justice it was unnecessary to determine for the purpose of this case whether the State r Government in acting under section 53A of the Act did so in a quasi judicial capacity or in an administrative one
Per section K Das J
If the question was one of compliance with the rules of natural justice the enquiry held in the present case could hardly be said to have complied with such rules but since the State Government in acting under section 53A of the Act had only to consider policy and expediency and did at no stage have any form of lis before it its action thereunder was purley of an administrative character not amenable to a writ of certiorari
Manchester Legal Aid Committee  applied
Per Subba Rao J On a proper appreciation of the criteria laid down by section 53A of the Act itself there could be no doubt that it imposed a duty on the State Government to act judicially in ascertaining the fact of the incompetency of the Municipal Committee to perform its duties
It is clear that the determination of such a jurisdictional fact could not have been left to the subjective satisfaction of the Government but was intended to be arrived at objectively and therefore it was incumbent upon the Government to give a reasonable opportunity to the appellants to explain the charge levelled against them
Such enquiry as was held in the instant case could hardly take the place of reasonable opportunity to be given by the Government for the proposed action under section 53A of the Act
Rex vs The Electricity Commissioners 1924 i K B 171 Province of Bombay vs Kusaldas section Advani  and R vs Manchester Legal Aid Committee  referred to