Appeal Nos
1730311993
From the Judgment and Order dated 3061992 and 291992 of the Jammu and Kashmir High Court in LPA No 16190
and CW P No 135288
DD Thakur MH Baig
Rajendra Mal Tatia Indra Makwana and K K Gupta for Suresh A Shroff  Co for the Appellants
VR Reddy Addl
Solicitor General and Ashok Mathur for the Respondents
The Judgment of the Court was delivered by BP JEEVAN REDDY J
Heard counsel for the parties
Leave granted in SLPs 1260892 and 1641892
The appeals are directed against the judgment of the Division Bench of the Jammu and Kashmir High Court allowing a special appeal preferred by the State of Jammu and Kashmir against the judgement of the learned Single Judge
The learned Single Judge had allowed the writ petition filed by the appellants herein
The matter pertains to approval and publication of the select list of District Munsifs prepared by the Jammu and Kashmir Public Service Commission
On May 28 1984 the High court intimated the Government of ten vacancies in the category of munsifs and requested the Government to initiate appropriate steps for selection of candidates
The government wrote to the public service commission and the latter issued the notification and put the process in motion
Written test was held in the year 1985
viva voce was also held
At that stage the High Court requested the government with a copy forwarded to the public service commission to select twenty candidates in the place of ten
This was done on December 10 1985
The government in turn requested the public service commission on December 27 1985 to select twenty 100 candidates
On March 11 1986 the Public Service Commission sent three select lists
one containing twenty candidates the other containing three scheduled castes candidates and a waiting list of ten candidates
From the record placed before us by the learned counsel for the State of Jammu and Kashmir it appears that the government received several complaints against the selection process
The government appears to have been satisfied prima facie with some of those complaints and was toying with the idea of scrapping the entire list and asking for a fresh selection
The select list sent by the commission was kept pending without being approved as required by Rule 39 of the Jammu and Kashmir Civil Service Judicial Recruitment Rules 1967
Meanwhile the High Court had been pressing for approval of the names in view of a number of vacancies and the consequent accumulation of work
Number of courts were without presiding officers
In particular the High Court said there was urgent need for at least thirteen Munsifs
In the circumstances the government approved on December 23 1986
tile names of thirteen persons out of the list recommended by the public service commission and Published the same
They were appointed on December 30 1986
Meanwhile a writ petition had been tiled in the High Court for a direction to the Government to approve and publish the list recommended by the public Service commission
On December 30 1986
the Advocate General for the State stated before the court that the Government has already approved thirteen entries and that the question of approval of the remaining persons in the list was under the active consideration of the Government
Recording the said statement the writ petition was dismissed as settled
The Government however did not approve any of the other names in the lists
evidently in view of the very same reasons for which they were disinclined initially to approve the said lists
Meanwhile the candidates in the select list below serial No 13 were pressing the Government to approve and publish the list
The High Court was also addressing the government from time to time to approve the list in view of certain vacancies arising since the appointment of the thirteen Munsifs aforementioned
Since no further names were being approved by the Government the writ petition from which these appeals arise was filed on September 14 1988
The writ petition was allowed on July 111990 by a learned Single Judge and a direction was issued to the State Government to approve and publish the list of 101 the remaining candidates submitted by the public service commission to it for appointment as munsifs immediately in accordance with the Rules of 1967 and to consider the appointment of such candidates including the writ petitioners as munsifs in the vacancies existing or likely to exist in accordance with the recommendations to be made by the High Court
On appeal the Division Bench disagreed with the learned Single Judge
The Bench held that approval and publication of the select list by the Government under Rule 39 is not a mere ministerial act but a meaningful one
It is open to the government to examine the select list carefully and to reach its own conclusion regarding the suitability and merits of the candidates and publish the names of only those candidates who are found suitable
While approving the list the Division Bench held the State Government cannot alter or temper with the order of merit determined by the commission but it is certainly open to the government to stop at a particular point where it feels that a particular candidate is not meritorious and not to approve the remaining list
The government is not bound to fill up the existing vacancies within a particular time frame
The mere inclusion in the select list also does not confer upon the candidates any indefeasible right to appointment
The recommendations of the commission are not binding upon the State Government held the Division Bench
In the facts and circumstances of the case it must be held that the remaining seven names in the select list have been disapproved by the government
The writ petition also suffers from leaches
The persons who had meanwhile become eligible and qualified to apply for the said post should also be given a chance
A list prepared as far back as 1985 86 cannot be directed to be approved in the year 1992
In these appeals it is submitted by the learned counsel for the appellants that once the public service commission prepares and recommends a select list the government has no power to sit in judgment over it
It is bound to approve the list as recommended
The function of the government under Rule 39 of the 1967 Rules is merely ministerial and formal
Even otherwise the government has not disclosed any reasons for not approving the seven names while approving the first thirteen
The government s action is arbitrary and capricious
It is indeed vitiated by inadmissible and extraneous considerations
The government cannot be allowed an absolute power in the matter
On the other hand it is contended by Sri Dipankar Gupta learned Solicitor General appearing for the State of Jammu and 102 Kashmir that the function of the government under Rule 39 is not merely formal or ministerial
The government being the appointing authority is entitled to scrutinise the list prepared by the public service commission
It is open to the government either to approve or disapprove the list either wholly or in part
As a matter of fact a large number of complaints were received by the government against the said selection and many of them were also found to be not without substance
However in view of the pressing need expressed by the High Court the first thirteen candidates in the list were approved in the interest of judicial administration
The remaining seven names were not approved inasmuch as no vacancies were available at that time
In all the circumstances of the case the Hon ble Chief Minister took a decision on March 28 1988 not to approve any further names and to go in for fresh selection
Inasmuch as the vacancies at the end of the year 1986 were not more than thirteen the refusal to approve the remaining seven is a valid and bonafide exercise of power and discretion on the part of the government
The appellants have no legal right to be appointed just because their names have been included in the select list prepared by the public service commission
The first requisition by the High court was sent in May 1984
The written test was held in 1985
The select list was recommended in March 1986
After a lapse of more than seven years the said list cannot now be directed to be given effect to the learned Solicitor general submitted
Such a direction would deprive a large number of persons who have become qualified and eligible to apply and complete for the said post meanwhile of the opportunity of applying for the said post
Many of them may even become age barred meanwhile he submitted
It is true that the government is the appointing authority for the munsifs but it is misleading to assert that in the matter of selection and appointment the government has an absolute power
Such an argument does violence to the constitutional scheme
The Constitution has created a public service commission and assigned it the function of Conducting examinations for appointments to the services of the Union or to the services of the State as the case may be
According to Article 320 clause 1 this is the primary function of the commission
The Government is directed to consult the public service commission on all matters relating to methods of recruitment to civil services and to civil posts and on the principles to be followed in making
appointment to civil services and posts and on the suitability of candidates for 103 such appointment among other matters
An examination of Articles 317 to 320 makes it evident that the constitution Contemplates the commission to he an independent and effective body outside the governmental control
This is an instance of application of the basic tenet of democratic form of government viz diffusion of governing power The idea is not to allow the concentration of governing power in the hands of one person authority or organ
It is in the light of this constitutional scheme that one has to construe Rules 39 and 41 of the 1967 Rules
They read as follows 39Final List The list of selected candidates after it is approved shall be published by the Government Gazette and a copy thereof shall be sent to the court along with the Waiting list if any furnished by the commission for record in their office
Security to the list The list and the Waiting list of the selected candidates shall remain in operation for a period of one year from the date of its publication in the Govt
Gazette or till it is exhausted by appointment of the candidates whichever is earlier provided that nothing in this Rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will in operation till the list or the waiting list is exhausted
 Construed in the above light Rule 39 in our opinion does not confer an absolute power upon the government to disapprove or cancel the select list sent by the public service commission
Where however the government is satisfied after due enquiry that the selection has been vitiated either on account of violation of a fundamental procedural requirement or is vitiated by consideration of corruption favourtism or nepotism it can refuse to approve the select list
In such a case the government is bound to record the reasons for its action and produce the same before a Court if and when summoned to do so apart from placing the same before the Legislature as required by clause 2 of Article 323
Indeed clause 2 of Article 323 obliges the Governor of a State to ray a copy of the annual report received from the 104 commission before the Legislature together with a memorandum explaining as respect the cases if any where the advice of the commission was not accepted and the reasons for such non acceptance
 Evidently this is meant as a check upon the power of the government
This provision too militates against the theory of absolute power in the government to disapprove or reject the recommendations of the commission
For the same reason it must be held that the government cannot pick and choose candidates out of the list
Of course where in respect of any particular candidate any material is discovered disclosing his involvement in any criminal activity the government can
always refuse to appoint such person but this would not be a case touching the select list prepared and recommended by the commission
It is equally not open to the government to approve a part of the list and disapprove the balance
In this case it may be remembered that the government itself had asked for a list of twenty and the commission had sent a list of twenty
we are not concerned with the waiting list sent by the commission at this stage
It could not have been approved in part and rejected in part
The number of vacancies available on the date of approval and publication of the list is not material
By merely approving the list of twenty there was no obligation upon the government to appoint them forthwith
Their appointment depended upon the availability of vacancies
A reading of Rule 41 makes this aspect clear
The list remains valid for one year from the date of its approval and publication
If within such one year any of the candidates therein is not appointed the list lapses and a fresh list has to be prepared
In this case no doubt a number of complaints appears to have been received by the government about the selection process
We have seen the note file placed before us
It refers to certain facts and complaints
But if the government wanted to disapprove or reject the list it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded
Not having done that and having approved the list partly thirteen out of twenty names the cannot put forward any ground for not approving the remaining list
I indeed when it approved the list to the extent of thirteen it ought to have approved the entire list of twenty or have disapproved the entire list of twenty
The objection the government have pertains to the very process of selection ie to the entire list and not individually to any of the remaining seven candidates
It is true that mere inclusion in the select list does not confer upon 105 the candidates included therein an indefeasible right to appointment State of Haryana vs Subhash Chandra Marwaha AIR 1 973 SC2216 MS Jain vs
State of Haryana AIR and State of Kerala vs A Lakshmikutty AIR but that is only one aspect of the matter
The other aspect is the obligation of the government to act fairly
The whole exercise cannot be reduced to a farce
Having sent a requisitionrequest to the commission to select a particular number of candidates for a particular category in pursuance of which the commission issues a notification holds a written test conducts a notification holds a written test conducts interviews prepares a select list and then communicates to the government the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment
We do not think that any government can adopt such a stand with any justification today
This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash vs Union of India 1991 1 3 SCC47 where the earlier decisions of this court are also noted
The following observations of the court are apposite It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied
Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post
Unless the relevant recruitment rules so indicate the State is under no legal duty to fill up all or any of the vacancies
However it does not mean that the State has the licence of acting in an arbitrary manner
The decision not to fill up the vacancies has to he taken bona fide for appropriate reasons
And if the vacancies or any of them are filled up the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test and no discrimination can be permitted
This correct position has been consistently followed by this Court and we do not find any discordant note in the decisions in State of Hary 106 ana vs Subhash Chander Marwahs Neelima
Shangla vs State of Haryana or Jatendra Kumar vs State of Punjab
 We may reiterate that the principle of Article 323 referred to hereinabove is equally relevant on the nature of the power of the government in such a matter
Looked at from the above stand point it appears that the government s action in not approving the rest of the seven names in the Select list is unsustainable but there are certain circumstances which induce us not to interfere in this matter
They are i During the period of one year from the date of approval of  thirteen names 2312198630121986 no vacancy bid arisen
which means that even if the list of twenty had been approved and published on December 23 or December 30
1986 none of the seven persons would have been appointed
At the end of one year
the list lapis and becomes inoperative
The first letter of the High Court stating that one or two more vacancies have arisen and requesting the Government to approve the remaining names was sent only on August 131988 ie long after the expiry of the one year period
Any direction at this stage to approve the list would be a futile exercise
The list cannot be operated with respect to the vacancies existing as on today and ii When the government failed to act within a reasonable period from the date of the order December 30 1986  of the High Court in writ petition 131684 which was disposed of recording the statement of the Advocate General  the petitioners ought to have moved in the matter
They did not do so
They waited for more then twenty months and approached the High Court only on September 14
This delay in our opinion disentitles the petitioners from any relief in the facts and circumstances of the case
For the above reasons the appeals fail and are dismissed
No costs
WRIT PETITION C NO
81 OF 1993 107 The petitioner in this writ petition was included in the waiting list prepared by the public service commission
Since the appeals preferred by the candidates at serial No 14 onwards in the main list have themselves failed
there is no question of giving any relief to this petitioner
The writ petition accordingly fails and is dismissed
No costs
V P R Appeals dismissed


Summary:
Parliament enacted In 1983 the National Oilseeds and Vegetable Oils Development Board Act 1983 to provide for the development under the control of the Union of the Oilseeds Industry and the Vegetable Oils Industry and for matters connected therewith
The Act contemplated the establishment of a board called the National Oilseeds and Vegetable Oils Development Board and the Constitution of Oilseeds and Vegetable Oils Development Fund for promoting the purposes of the Act
The Vegetable Oils Cess Act 1983 was simultaneously enacted to levy and collect by way of cess for the purpose of the National Oilseeds and Vegetable Oils Development Board Act1983 a duty of excise on vegetable oils produced in any mill in India at such rate not exceeding Rs 5 per quintal on vegetable oil
This Cess Act was however repealed by Section 12 of the Cotton  Copra and Vegetable Oils Cess Abolition Act 1987
Chapter 5 of the  said Act carried the heading Collection and Payment of Arrears of Duties and Excise 
The petitioners who were manufacturers of vegetable oil which was subject to the cessduty of excise under Section 3 of the Cess Act in their writ petitions to this Court questioned the validity of the levy and collection of cess for the period commencing on 1st March 1986 and ending with 31st March
It was contended that 1 In his Budget Speech delivered on 2821986 while presenting the Budget 52 1986 87 the Union Finance Minister had stated that as an endeavour to reduce the number of cesses it had been decided to dispense with the cession cotton copra and vegetable oils and that this statement was exemplified and implemented by way of a communication from the Directorate of Vanaspati
It is not open to the Government to go back upon the said decision and demand cess for the period subsequent to March 1 1986 and 2 By virtue of Sub section 4 of Section 3 of the Cess Act Rule 8 of the Central Excise Rules is attracted among other provisions of the Central Excise Act and Rules
Reading the budget proposals of the Finance Minister and the letter of the Directorate of Vanaspati together it must be held that vegetable oils have been exempted from the levy under Section 3 1
Dismissing the Writ Petitions this Court HELD 1 a The cess having been imposed by a Parliamentary enactment could he rendered inoperative only by a parliamentary enactment
Such repealing enactment came only in the year 1987 with effect from April 1 1987
58 C b The repealing Act expressly provided in Section 13 that the cess due before the date of said repeal but not collected shall be collected according to law as if the Cess Act is not repealed
This provision amounts to a positive affirmation of the intention of the parliament to keep the said imposition alive and effective till the date of the repeal of the Cess Act
58 1
 c In the face of the aforesaid statutory provisions no rights can he founded nor can the levy of the cess be said to have been dispensed with by virtue of the alleged decision referred to in the Finance Minister s speech or on account of the letter dated August 11 1986
58 E d The Finance Minister s speech is not law
The Parliament may or may not accept his proposal
Indeed in this case it did not accept the said proposal immediately but only a ear later
It is only from the date of the repeal that the said levy becomes inoperative
2 a The cess imposed under section 3 1 of the Cess Act
is a duty of Excise as stated in Section 3 Itself
Therefore the Central Board of Excise and Customs was perhaps competent to grant exemption even in the case of said cess though no definite opinion on this question need be expressed since it was not debated
Suffice It to say that the Central Government cannot again be brought in under sub rule 2 of rule 8 in the place of the Central Board nor can the Directorate of Vanaspati and Vegetable Oils be equated to the Central Board of excise and customs
58 H 59 A b The words so far as may bell occurring In section 3 4 of the Cess Act cannot be stretched to that extent
Above all It Is extremely doubtful whether the power of exemption conferred by rule 8 can be carried to the extent of nullifying the very Act itself
It would be difficult to Wee that by virtue of the power of exemption the very levy created by Section 3 1 can be dispensed with
Doing so would amount to nullifying the Cess Act Itself
Nothing remains thereafter to be done under the cess Act
Even the language of Rule 8 does not warrant such extensive power Rule 8 contemplates merely exempting of certain excisable goods from the whole or any part of the duty leviable on such goods
59 B 3
The power of exemption cannot be utilised to dispense with the very levy created under Section 3 of the Cess Act or for that matter under Section 3 of the Central Excise Act
59 E Kesavananda Bharti Sripadagalvaru and others vs State of kerala and another AIR 1973 SC 1461 62 G relied on