ivil Appeal No 294 of 1982
From the Judgment and Order dated 891981 of the Punjab and Haryana High Court in LPA 857 of 1981
439 PP Rao R Venkataramani UG Pragasan and SM Garg for the Appellant
Mahabir Singh Subhash Sharma and CM Nayar for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal is by special leave and is directed against the appellate judgment of a Division Bench of the Punjab and Haryana High Court upholding the decision of a learned Single Judge of that Court by dismiss ing the appeal in limine
The Haryana Public Service Commis sion advertised the filling up of one Post of DFSC and 4 posts of District Food and Supplies Officers by direct recruitment
The Commission prescribed inter alia that one of the essential qualifications shall be fivethree years  experience as an executive officer in a commercial organisa tion of Government or Semi Government office before or after acquiring the academic degree and the Special Secretary to Haryana Government in the Food and Supplies Department on 20th of February 1981 wrote to the Secretary of the Com mission affirming that position and added that Certain InspectorsSub Inspectors of this Department seem to have sent their appli cations advance copies to the Commission for these posts
The work of Inspectors Sub Inspectors is of executive nature though they are not officers
As such in case the Commis sion feels that they fulfil the qualifications for the posts in question this department have no objection to the names of the Inspec torsSub Inspectors who have applied directly to the Commission to be considered for these posts
 The Commission called the appellant and other similarly placed candidates for interview but required them to produce certificates from the State Government to the effect that they had the requisite experience of executive officer
The State Government however did not issue such certificates and in their absence the Commission did not consider the Inspector and Sub Inspector candidates as having the requi site qualification for being candidates for the post
The selection was undertaken excluding them
Thereupon a writ petition was filed before the High Court claiming that the appellant had the requisite qualification having been an executive officer for the requisite period and his exclusion was unjustified and the selection made by the Com 440 mission was hit on account of infraction of the provisions of Article 16 of the Constitution
The learned Single Judge negatived this stand and dismissed the writ petition and the Division Bench upheld the decision of the Single Judge by dismissing the appeal in limine
In this appeal the sole question for consideration is whether Inspectors and Sub Inspectors of Food and Supplies Department are executive officers
That they held executive posts and for the required period was conceded in Government letter of 21st of February 1981
It has therefore to be found out whether Inspectors and Sub Inspectors could be treated as officers
The selected candidates were not made parties to the writ petition
A civil miscellaneous petition has been filed to add them as party respondents to the appeal and that application had been placed for hearing along with the appeal
Mr PP Rao appearing in support of the appeal has contended that the post of Inspectors and Sub Inspectors belonged to the category of executive office and the High Court therefore came to a wrong conclusion
In earlier years certain similarly situated Inspectors and Sub Inspec tors of the Department had been appointed on the basis that they satisfied the requirements of clause c of the adver tisement and there was no justification for a different basis when further recruitment was undertaken 1980
None of the parties has placed any definition of the term Officer  from any
Haryana Statute
It is not the contention of counsel appearing for any of the parties that the administrative orders gave a definition to the term
In such a situation the common parlance meaning of officer  has to be accepted for the purpose of finding out whether Inspectors and Sub Inspectors held the post of Officer
The ordinary dictionary meaning of the term Officer  is a person appointed or elected to a position of responsibility or authority in a Govern ment society etc Stroud s Judicial Dictionary 5th Edition has given a variety of instance of officer with reference to different statutes
Some of the instances given therein do support Mr Rao s stand that an Inspector or Sub Inspector would indeed be an officer  inasmuch as under statutory orders made in exercise of powers conferred under the Essential Commodities Act on the State Government authority has 441 been vested in these categories of officers to exercise jurisdiction
Black s Law Dictionary states In determining whether one is an officer  or employee  important tests are the tenure by which a position is held wheth er its duration is defined by the statute or ordinance creating it or whether it is tempo rary or transient or for a time fixed only by agreement whether it is created by an ap pointment or election or merely by a contract of employment by which the rights of the parties are regulated whether the compensa tion is by a salary or fees fixed by law or by a sum agreed upon by the contract of hir ing A person invested with the authority of an office has been treated as an officer
In Words and Phrases Permanent Edition Volume 29A an Officer  has been stated to mean a person who is invested with some portion of the functions of government to be exercised for the public benefit If the powers and duties reposed in the incumbent of a position are such that he exercises the function of the sovereignty the incumbent is an Officer  regardless of the name by which he may be designated
 If these tests are applied the appellant who held an office and was clothed with functions of sovereignty was an offi cer
In Articles 146 and 229 of the Constitution officers and servants of the Supreme Court and the High Court have re spectively been provided for
In service jurisprudence even ministerial employees have been referred to as officers
The terms officer  and employee  put together obviously signi fy the grade of the establishment or post held the officer being higher in grade to employee
Keeping the nature and duty assigned to the Inspector or the Sub Inspector working in the Department to whom powers have been delegated it cannot be doubted that the holders of posts of Inspector and Sub Inspector are officers
We therefore accept the con tention of Mr Rao that the appellant held the post of an officer and since the State had conceded 442 that it was an executive office and the appellant was hold ing the said post from April 1973 till September 1978 by 1980 when selection was be made he had the requisite quali fication
Mr Rao relied upon decisions of this Court in GA Monterio vs The State of Ajmer  and Bajrang Lal  Anr
vs State of Rajasthan  in sup port of his plea that the appellant was an officer
Both these cases were with reference to the definition of public servant  in section 21 of the Indian Penal Code
On principle these decisions support the conclusion which we have reached
Counsel appearing for the respondents did not attempt to contend that if the appellant had the requisite qualifica tion when selection was being made and he had been kept out on the wrong premises that he did not have the qualifica tion he would be entitled to challenge the selection
The selected candidates were however not impleaded as respond ents in the writ petition and attempt to implead them at this stage is bound to prejudice them
They have now been in service for more than eight years and respondent No 4 has even been holding a promotional post for some time
We do not think in such a situation there would be any justifica tion to allow challenge to the recruitment of the respond ents
At the same time the State had no justification to keep out the appellant from consideration
The appellant was entitled to be considered for recruitment in 1980 and since his claim had been overlooked without justification the State and the Haryana Public Service Commission are bound to consider his case now on the basis that he was entitled to recruitment in 1980
Reliance was placed by Mr Rao on some decisions of the this Court as to the nature of relief that can be granted in a case of this type
We do not think in the facts of this case the ratio of the decisions can be applied as a guide line
It has been brought to our notice that an enquiry was undertaken by Government against some of the selected candi dates on the allegation that forgedfalse certificates had been produced by them in support of qualificationeligibili ty and in the enquiry a prime facie case had been made out
We express no opinion about it as it shall be for the State Government to deal with the question and the appellant s appeal has nothing to do with it
The appeal is allowed the order of the learned Single Judge as also the appellate order are vacated and the State Government and the 443 Public Service Commission are directed to consider the appellant s claim for recruitment on the basis of the noti fication for recruitment
In case the appellant is found qualified he shall be selected for the post and duly ap pointed
The question of appellant s seniority is left open to be dealt with by the State Government in consultation with the Public Service Commission
The appellant shall have the cost of the appeal
Hearing fee is assessed at Rs3000 to be recovered from the Respondent State only
RSS Appeal allowed


Summary:
The respondents were working as Scientific Assistants in the office of the Botanical Survey of India in the scale of Rs 210 425
The Third Central Pay Commission had considered the cases of the Scientific Assistants generally and had recommended different levels of scale of pay for them depending upon their education and job content
On the basis of the Pay Commission recommendation the Scientific Assistants in the office of the Botanical Survey of India were allocated Scientific Assistants Level II pay scale with effect from 111973
The respondents on the other hands claimed the scale of Rs550 900 recommended by the Pay Commission for Level I posts which scale was also recommended by the Committee of the Joint Consultative Machinery
The Government referred the matter to a Board of Arbitrators to Consider whether the Scientific Assistants of the Botanical Survey of India were entitled to the revised scale of Rs550 990
The Board however recommended two levels of scale of pay as had been done by the Pay Commission
Feeling aggrieved by the Award of the Board the respondents filed a writ petition which was transferred by the Calcutta High Court to the Central Administrative Tribunal Calcutta
The Tribunal came to the finding that in recommending two levels of scale of pay the Board of Arbitrators had travelled beyond the terms of reference
Accordingly the Tribunal set aside the Award allowed the writ petition and accorded to the respondents the benefit of the scale of pay of Rs550 900
Dismissing the appeal it was HELD l The terms of reference of the Board of Arbitrators was very clear and specific
Under the terms of reference there was no scope for prescribing two levels of PG NO 754 PG NO 755 scale
It was therefore apparent that the Board had acted beyond the terms of reference and its award was illegal and not binding upon the parties758 H759A 2 The Pay Commission had suggested two levels on the basis of nature of scientific work and the qualifications required therefor the higher grade requiring a post graduate education and calling for some degree of originality and capacity for independent work
At the same time the Pay Commission had observed that before dividing the grade of Scientific Assistants into two levels the job content of the post should be taken into account759D790 B C 3 The two levels could be brought into existence if the nature of work which was being performed by the scientific Assistants of the Botanical Survey of India called for some degree of originality and carrying out of independent work and investigation which was the guiding factor for such a division759F G 4 It has been found by the Tribunal that the Scientific Assistants of the Botanical survey of India were not expected to exhibit any originality or capacity for doing any independent work and that the job contents of the existing Scientific Assistants were similar to those of Level II Scientific Assistants recommended by the Pay Commission760F 5 As the job content did not require the qualifications as prescribed by the Commission for the Level l Scientific Assistants it would not be prudent to divide the post of Scientific Assistant into Level I and Level ll
At the same time the existing Scientific Assistants should not be deprived of the pay scale of Rs550 900
The appellants may give effect to the recommendations of the Pay Commission with regard to the future recruitments after framing rules in that regard
760G H 761B