Appeals Nos
461 of 1964
Appeals from the judgment and order dated October 11 1962 of the Mysore High Court in Writ Petitions Nos
1248 1267 1269 1294 1298 1311 1312 1318 1341 1354 1355 1382 and 1384
684 MC Setalvad section C Javali 0
C Mathur J B Dadachanji and Ravinder Narain for appellants Nos 1 4 6 45 and 48 76 in C As
430 445 of 1964
AK Sen B R L Iyengar and B R GK Achar for respondents Nos 2 and 3 in C As
430 445 of 1964 and Appellants in C A Nos
446 461 of 1964
M K Nambyar section N Andley Rameshwar Nath and P L Vohrafor respondents in C As
446 447 449 452456 and 459 of1964
J B Dadachanji 0
C Mathur and Ravinder Narain for the Intervener
To appreciate the arguments addressed to us on behalf of the appellants and the respondents it is necessary to give in chronological order the events leading up to the filing of the above writ petitions and their significance
On December 12 1957 the Governor of Mysore made rules called the Mysore Public Service Commission Functions Rules 1957 hereinafter called the Functions Rules relating to the functions of the Mysore Public Service Commission
Rule 3 of these rules provides for recruitment by examination and r 4 with which we are primarily concerned provides for recruitment by selection
Rule 4 is as follows  When recruitment to a service or post is to be made by selection and consultation with the Commission is required the Commission shall 1advise the Government in regard to the conditions of eligibility of candidates 2after the rules to be made have been approved by Government and a requisition for recruitment is received invite applications from intending candidates after giving due publicity to conditions of eligibility nature of com petition number of vacancies to be filled where possible and any other relevant material 3consider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it considers most suitable for ap pointment 685 Note
Nothing contained herein shall preclude the Commission from considering the case of any candidate possessing the prescribed qualifications brought to its notice by Government even if such a candidate has not applied in response to the advertisement of the Government
4forward to the Appointing Authority a list consisting of such number as it may fix of the candidates whom the commission considers most suitable for appointment in order of preference Provided that the Commission may invite Government to nominate an Officer to represent the Service or the Department for whom recruitment is being made to be present at the interview referred to in clause 3 to assist the Commission in its work of selection
 We may here dispose of the point whether these rules are ex ecutive rules or statutory rules made under article 309 of the Constitution
The High Court held that there can be little doubt that to the extent the Rules deal with the topic of regulating recruitment to Civil Services under the State the source of the power could only be the proviso to article 309 of the Constitution In our opinion these rules are not rules made under article 309
First the rules do not expressly say so and secondly the rules are dealing with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts
Under article 320 3 of the Constitution it is the duty of the Government to consult and the duty of the Public Service Commission to advise inter alia on the principles to be followed in making appointments to civil services and posts  and on the suitability of candidates for such appointments promotions or transfers
 Sub rule 1 of r 4 clearly provides the same thing as does article 320 3 b and the other sub rules are really administrative arrangements apparently arrived at between the Commission and the Government as to how the Government and the Public Service Commission will take steps to recruit persons for the State Services or posts
To resume the narrative on February 10 1958 the Governor of Mysore in exercise of the powers conferred by the proviso so article 309 of the Constitution made the Mysore State Civil Services General Recruitment Rules 1957 hereinafter called the General Recruitment Rules
There is no dispute that these are statutory rules and in so far as they direct anything to be done in a particular way the Government would have to comply with the directions
Rule 3 of these Rules on which reliance has been placed by the learned counsel for the respondents to urge that the GoveI Sup Cl66 12 686 cannot recruit Assistant Engineers without framing rules is in the following terms Method of recruitment
Recruitment to the State Civil Services shall be made by competitive examination or by promotion
The method of recruitment and qualifications for each State Civil Service shall be as set forth in the rules of recruitment of such service specially made in that behalf
 It would be convenient to deal with this argument at this stage
Mr Nambiar contends that the words shall be as set forth in the rules of recruitment of such service specially made in that behalf  clearly show that till the rules are made in that behalf no recruitment can be made to any service
We are unable to accept this contention
First it is not obligatory under proviso to article 309 to make rules of recruitment etc before a service can be constituted or a post created or filled
This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules
Secondly the State Government has executive power in relation to all matters with respect to which the Legislature of the State has power to make laws
It follows from this that the State Government will have executive power in respect of List II Entry 41 State Public Services
It was settled by this Court in Ram Jawaya Kapur vs The State of Punjab1 that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws
We see 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
It is hardly necessary to mention that if there is a statutory rule or an act on the matter the executive must abide by that act or rule and it cannot in exercise of the executive power under article 162 of the Constitution ignore or act contrary to that rule or act
In the background of this position we are unable to inter pret r 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf
Rules usually take a long time to make various authorities have to be consulted and it could not have been the intention of r 3 of the General Recruitment Rules 1957 to halt the working of the public departments till rules were framed
This Court considered a similar point in T Cajee vs U Jormanik Siem2 and arrived at a similar conclusion
The following observations of Wanchoo J who delivered the judg 1 2   762 764
687 ment on behalf of the majority bring out clearly the fallacy in Mr Nambiar s argument The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned
In this connection the High Court relied on para 3 1 g of the Schedule which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen
The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either
With respect it seems to us that the High Court has read far more into para 3 1 g than is justified by its language
Paragraph 3 1 is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws
Under para 3 1 g it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them
But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary
The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19 1 b or till the District Council passed laws under para 3 1 g
The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carryinig on administration
Doubtless when regulations are made under para 19 1 b or laws are passed under para 3 1 with respect to the appointment or removal of the personnel of the administration the administrative authorities would be bound to follow the regulations go made or the laws so passed
But from this it does not follow that till the regulations were made or the laws were passed there could be no appointment or dismissal 688 of the personnel of the administration
In our opinion the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule
The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3 1 g cannot be sustained Mr Nambiar in this connection also relied on articles 15 and 16 of the Constitution
He urged that if the executive is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to article 309 articles 15 and 16 would be breached because the appointments in that case would be arbitrary and dependent on the mere whim of the executive
We are unable to hold that articles 15 and 16 in any way lead us to this conclusion
If the Government advertises the appointments and the conditions of service of the appointments and makes a selection after advertisement there would be no breach of article 15 or article 16 of the Constitution because everybody who is eligible in view of the conditions of service would be entitled to be considered by the State
In conclusion we hold that r 3 of the General Recruitment Rules 1957 did not prevent the State from exercising its executive power of appointing Assistant Engineers and determining their conditions of service by executive order
Mr Nambiar had at one stage contended that rules existing in the constituent parts of the new State of Mysore would be available for recruitment as they had been continued under the States Reorganisation Act but it seems to us that these rules would not be available for recruitment purposes because the Government would be recruiting Assistant Engineers for the whole State and not for each of the constituent parts of the State
We may clarify that these remarks only deal with recruitment rules
This brings us to the next event and that is Notification No E 2666 58 9PSC dated October 1 1958 issued by the Mysore Public Service Commission inviting applications in the prescribed form from qualified Indian citizens for recruitment of 40 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department
The Notification prescribes the qualifications pay age limit other conditions for eligibility fee payable and the particulars of the candidates required to be furnished
On March 4 1959 the Governor of Mysore in exercise of the powers conferred by the proviso to article 309 prescribed the maximum age limits for direct recruitment of graduates in Engineering for the posts of Supervisors and Assistant Engineers in the Mysore 689 Public Works Department
These age limits were to prevail until the rules of recruitment specially applicable to Mysore Public Works Department were promulgated
The maximum age limits were made retrospective
It was further provided that anything done or any action taken by the Public Service Commission or other authority in respect of recruitment of Probationary Assistant Engineers between September 1 1958 and the date of this Notification shall be deemed to have been done or taken under the provisions of this Notification
 On the same date the Secretary to the Government of Mysore Public Works Department Bangalore wrote to the Secretary Public Service Commission Bangalore stating inter alia that The Public Service Commission has already taken action to recruit forty probationers in the Public Works Department for being absorbed as Assistant Engineers in due course after satisfactory completion of their training
I am to request the Public Service Commission to take action straightway to invite applications and send a list of 80 candidates in all for appointment as Probationers in the Department
 This clearly shows that the Government was aware of the action taken by the Public Service Commission in issuing the Notification dated October 1 1958
After receipt of this letter the Public Service Commission issued a Notification on May 4 1959 inviting applications from qualified Indian citizens of all classes for recruitment of 80 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department including the 40 posts already advertised in this office Notification No E 3666 58 PSC dated October 1 1958
This Notification laid down the qualifications pay during the period of probation age limits etc
The age limits prescribed were the same as in the State Government Notification dated March 4 1959
The Public Service Commission Notification further included the usual particulars required to be furnished by the candidates
On March 1 1960 the Governor issued a notification containing Order No GAD 7 ORR 60 dated March 1 1960 ordering that for direct recruitment to appointments and posts in the services of the State reservation for Scheduled Caste and Scheduled Tribes shall be 15 and 3
The reservation for other backward classes shall be 25  The rest of the appointments and posts shall be filled up on the basis of merit and shall be open to all classes
 The Public Service Commission then issued a Notification dated April 1 1960 inviting applications for filling up of various posts in the several departments of Government of Mysore
690 including the 80 Probationary Assistant Engineers in the Public Works Department
These were included in Part A  of the Notification and it was provided inter alia in para 22 of the Notification as follows  22
IMPORTANT NOTE iThe vacancies detailed in Part A  of the Statement were previously advertised in this office notifications noted in column 8 against each item and such of the candidates who have already applied for the said vacancyvacancies in response to the previous notification need not apply again
But they may furnish additional information if any if they so desire
iiApplications already received in this office for the vacancies under Part A  will be considered on the basis of the revised classification issued by Government in their Order No GAD 7 ORR 60 dated the 1st March 1960
iiiThe qualifications period of experiencetraining or service the minimum and maximum age limits and all other requirements to be satisfied by the candidates for all the vacancies under Part A  in the statement shall be determined as on the dates noted against each item of vacancyvacancies in column 9 of the statement
ivSuch of the candidates who do not satisfy these conditions as on the dates noted in column 9 of the state ment in respect of Part A  vacancies will not be eligible for the posts
 Column 8 of the statement mentions the previous notifica tions dated May 4 1959 and October 1 1958 and column 9 mentions the date June 8 1959
Column 5 prescribes the qualifications as follows  A degree in Engineering Civil or Mechanical or an equivalent Examination
In addition candidates must have also either undergone practical training or rendered a service in the Technical Cadre of the PWD for a minimum of 6 months
A certificate to that effect issued by the Principal of the college or superior officer under whom they have undergone training or are working must accompany the application
 The maximum age limits were prescribed as under 33 years for Scheduled caste and scheduled tribes 31 years for others 35 years in the case of government servants holding substantive appointments or having 691 continuous government service for a period of not less than 3 years
 In October 1960 the Mysore Public Service Commission interviewed the candidates and on November 2 1960 the Com mission sent to the Government a list of 80 candidates selected by them
On December 3 1960 the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of Mysore Public Works Engineering Department Service
On the same date in exercise of the powers conferred by the proviso to article 309 the Governor of Mysore made the rules called the Mysore Public Works Engineering Department Services Recruitment Rules 1960
It prescribed in respect of each category of posts specified in column of the Schedule methods of recruitment and the minimum qualifications and the period of probation if any
For Assistant Engineers the method of recruitment prescribed was 40 per cent by direct recruitment by the Public Service Commission after interview and oral test 50 per cent by promotion from the cadre of Junior Engineers and 10 per cent by promotion from the cadre of Supervisors
It prescribed the minimum qualifications and age as follows For Direct Recruitment Age Not above 31 years
A pass in Civil or Mechanical Engineering or a Certificate or Diploma from the Institute of Engineers that the candidate has passed Parts A B of the Associate Membership of the Institute of Engineers or equivalent qualification with practical
training for not less than 6 months during or after the course One G Govindaraju Junior Engineer filed a petition under article 226 of the Constitution for a mandamus to the State Government prohibiting the appointment of 80 persons selected by the Public Service Commission
It was contended by him that on December 3 1960 under the proviso to article 309 of the Constitution the Governor had made rules regulating the recruitment to the posts of Assistant Engineers and that under those rules forty per cent of the appointments alone could be made by the Public Service Commission after an interview and an oral test
Various other arguments were urged before the High Court
The Ad vocate General stated before the High Court on behalf of the State Government that the list having been prepared by the Public Service Commission in response to the request made by the State Government in the exercise of its executive power which it possessed under article 162 of the Constitution the State Government was not bound to make appointments only in accordance with that list and that it was open to the State Government not to appoint any of those persons or to appoint only those persons who in its 692 opinion should be appointed amongst them
The High Court felt that this statement made before it by the Advocate General rendered unnecessary any investigation into the contention urged on behalf of the petitioner at that stage
The High Court further observed as follows lm15 It would be for the State Government before it takes a decision on that question to consider the effect of Rule 42 of the Public Service Commission Function Rules made on December 10 1957 Rules 3 and 4 of the Mysore State Civil Services General Recruitment Rules which came into force on February 10 1958 and of the Mysore Public Works Engineering Department Service Recruitment Rules which came into force on December 3 1960 and to further consider whether in the light of those provisions appointments could be made to the posts of Assistant Engineers except in accordance with the provisions of the Rules which came into force on December 3 1960
On this question we should not in my opinion express any opinion at this stage
 With these observations the High Court dismissed the peti tion as premature
This order was passed on September 29 1961
On October 23 1961 in exercise of the powers conferred by the proviso to article 309 of the Constitution and all other powers enabling him in that behalf the Governor of Mysore made certain amendments to the Mysore Public Works Engineering Department Services Recruitment Rules 1960
The effect of these amendments if valid was to make the Mysore Public Works Engineering Department Services Recruitment Rules 1960 retrospective with effect from the first day of March 1958
Para 3 of this Notification further provided 3
To rule 2 the following proviso shall be added and shall be deemed always to have been added namely  Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in column 2 of the Schedule shall not be applicable and the minimum qualifications and the period of probation shall be the following namely Qualifications The candidates must be
a graduate in Engineering Civil or Mechanical or must have passed an equivalent examination and must have either undergone practical training or rendered service in a technical cadre in the Public Works Department for a minimum period 693 not less than six months
A certificate to that effect issued by the Principal of the College or Superior Officer under whom he has undergone training or is working must be enclosed to the application Age limits must not be above i 35 years in the case of Government servantsholding appointment substantively or who have been in continuous Government service for a period of not less than 3 years and political sufferers ii33 years in the case of candidates belonging to Sche duled Castes and Scheduled Tribes iii31 years in the case of Backward Classes iv28 years in the case of others on the last date fixed for the receipt of applications
Period of Probation
Two years
 On October 31 1961 the Governor of Mysore appointed 88 candidates as Probationary Assistant Engineers in the Mysore
Public Works Department and it is these appointments that were challenged before the Mysore High Court in the 16 writ petitions mentioned in the beginning of this judgment
Mr Setalvad contends that under the proviso to article 309 the Governor is entitled to make retrospective rules and the position of the Government while acting under the proviso to article 309 is in no way different from the powers conferred on the legislature under article 309 read with articles 245 and 246 and item 41 of List 11
Mr Setalvad further contends that the Government is not acting as a delegate of any legislature while exercising powers under the proviso to article 309 it is exercising a power conferred by the Constitution directly on the executive and the Constitution has not prescribed any guiding principles to be followed by the State Government while it is exercising powers under the proviso toart
309 because the Constitution treats it having the same powers as the legislature
He further says that the State Government can amend and repeat any existing law relating to State Services continued in force by article 313 of the Constitution
He urges that if the Constitution makers had intended to place any fetters on the powers of the State Government under the proviso these would have been mentioned specifically and he says that we cannot treat it on the same basis as delegated legislation and therefore
even if it be the law which he does not concede that the executive when acting as a delegate under an act of Parliament or an act of a State Legislature cannot make rules retrospectively this principle does not apply to the exercise of powers under the proviso to article 309 of the Constitution
694 Mr Nambiar contends that under an act of Parliament or an act of a State Legislature the executive cannot frame rules retrospectively unless the act specifically empowers it to do so
According to him the position is the same under the proviso to article 309
In our opinion it is not necessary to decide this point in these cases because we are of the view that the appeal can be disposed of on another ground
Assuming for the sake of argument that Mr Nambiar is right that the Mysore State Government could not make rules retrospectively and that the rules are thus void so far as they operate retrospectively we must ignore these rules and see whether the appointments made on October 31 1961 can be upheld
We have come to the conclusion that these appointments can be considered to have been validly made in exercise of the executive power of the State under article 162 of the Constitution
The three notifications issued by the Public Service Commission on October 1 1958 May 4 1959 and April 1 1960 must be treated to have been issued with the consent of the State Government
These notifications are not rules made under article 309 of the Constitution as contended by Mr Nambiar they are mere executive notifications issued by the Public Service Commission at least with the implied consent of the State Government
The passage reproduced above from the letter of the Government dated March 4 1959 clearly shows that the Government was well aware of what the Public Service Commission was doing
It was aware of the action being taken by the Public Service Commission and indeed it can safely be assumed that the Government was aware of each step being taken by the Public Service Commission including the publication of these notifications
The position is that if we accept Mr Nambiar s arguments that these rules purported to be made by the Mysore State Government had no retrospective validity there were no statutory rules to govern the appointment of the 88 persons as Assistant Engineers
We have already held that the Mysore State Civil Service General Recruitment Rules 1957 did not debar the Government from making appointments without making statutory rules
Therefore we hold that these appointments were validly made
Mr Nambiar sought to impeach the appointments on another ground
He said that the appointments violated Mysore Public Works Engineering Department Services Recruitment Rules 1960 dated December 3 1960 because the appointments were made on October 31 1961 and according to him these appointments had also to be made under the statutory rules made on December 3 1960
We are unable to sustain this contention because it took about two years for the Public Service Commission to publish notifications interview candidates and recommend names for appointment
The whole procedure having been 695 followed it could not have been the intention of the Government while framing the rules to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing candidates in October 1960
It was urged in the alternative that the advertisement made by the Public Service Commission notification dated April 1 1960 was different from the rules of March 4 1959 in the matter of fixing the age limits ie while the rules provided 28 years as the maximum age in the case of others the notification provided the maximum age as 31 years
In our view the respondents are not entitled to make a grievance of this difference because there is nothing on the record to show that the ages of those appointed were against the rules of March 4 1959
The learned counsel has not been able to satisfy us that they have suffered in any manner because of this difference in age
There remains one question and that is the question of mala fides which was alleged in the petition
There were 16 petitions but we will take the allegations from the first petition
Paras 16 and 17 in Writ Petition No 1248 of 1961 before the High Court in which the allegations of mala fides have been made read as under Further selection made by the Public Service Commission is arbitrary and made out of collateral considerations
Amongst the selected candidates the following viz 1 Sri D C Channe Gowda who is the son inlaw of the 2nd member of the Public Service Commission an ordinary BE Graduate with only 49 of marks 2 Sri Kencharase Gowda who is the sister s son inlaw an ordinary B E have been selected to the exclusion of myself and several others who had superior qualification both academically and by virtue of seniority in service
17Similarly relations of prominent members of the local Legislature and of Parliament relations of high placed officials including a Minister and an ex Minister have been selected
 The Chairman of the Mysore Public Service Commission filed a counter affidavit and replied to the above paras 16 and 17 as follows  3
Paragraph 16 of the Petitioner s affidavit The statement that the selection made was arbitrary and made out of collateral considerations is incorrect
It is true that Shri D C Channe Gowda was among the candidates selected
The then Second Member of the 696 Public Service Commission abstained from participating in the interview of that candidate
I was not aware at the time of the selection of the relationship of Kencharase Gowda Shri T Krishna Shri Hanume Gowda and Shri M N Narase Gowda to the then Second Member of the Public Service Commission
The then Second Member of the Public Service Commission Shri M K Appajappa is since dead
The dominant factor in making the selection was the performance of the candidate at the interview and the marks secured by the candidate in the Degree Examination was only one of the factors that was taken into consideration
4Paragraph 17 of the Petitioner s Affidavit I was not aware of the relationship if any of the candidates to prominent members of the local Legislature and of Parliament or of high placed officials including a Minister and an ex Minister
I submit that it is also incorrect to suggest that the selections were influenced by any such relationship
The High Court found it unnecessary to investigate this mat ter because it felt that the selections impugned were in valid on other grounds but it observed as follows There is no denying the fact that the facts stated in the pleadings especially in the light of the manner in which they are traversed in the counter affidavit of the Chairman of the Public Service Commission do raise a strong suspicion The High Court might well have abstained from expressing its strong suspicion if it was not going to give its final views on the question of malafides
We are unable to appreciate that the manner in which the counter affidavit of the Chairman of the Public Service Commission is expressed calls for any comment
In para 15 of the affidavit in support of Writ Petition No 1269 of 1961 more details are given of the selected candidates and the counter affidavit filed by the Chairman of the Public Service Commission is common to all the petitions
But even so the details mentioned did not call for any detailed reply
For example it was alleged in para 15 that one Shri DC Channe Gowda who is the son in law of the Second Member of the Public Service Commission Shri Appajappa was an ordinary B E Graduate with only 498  marks
But even if he had only 498  of the marks this is not conclusive to show that he should not have been selected because the whole object of interviewing candidates is to judge their eligibility or suitability apart from the standard displayed by them in the written examination
We are unable to hold that on these facts any mala fides or collateral object has been proved
697 In the result the appeals both of the State and the other appellants are allowed and judgment of the High Court set aside
We may mention that some of the appellants have not prosecuted their appeals but there is no reason why they should not have the benefit of this judgment and exercising our powers under article 142 of the Constitution we direct that in order to do complete justice they should also have the benefit of the judgment given by us
There will be no order as to costs
Appeals allowed


Summary:
By notifications issued in October 1958 May 1959 and April 1960 the Mysore Public Service Commission invited applications for the recruitment of 80 probationary Assistant Engineers 
The qualifications pay age limit and other conditions for eligibility were prescribed by these notifications
On March 1 1960 it was notified by the Governor that for direct recruitment to appointments and posts in the services of the State reservations for Scheduled Castes and Scheduled Tribes would be 15 and 3 and the reservation for other backward classes would be 25
Thereafter in October and November 1960 the Mysore Public Service Commission interviewed the candidates and sent a list to the Government of 80 candidates selected by them
On December 3 1960 the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of the Mysore Public Works Engineering Department Service
On the same date in exercise of the powers conferred by the proviso to article 309 the Governor made the rules called the Mysore Public Service Engineering Department Service Recruitment Rules 1960
These Rules prescribed in respect of each category of specified posts the methods of recruitment whereby only 40 of the appointment could be made after an interview and an oral test and also prescribed the minimum qualifications age limits etc
for Assistant Engineers which were somewhat different from those prescribed in the earlier Notifications of the Mysore Public Service Commission relating to the recruitment of 80 Assistant Engineers
On October 23 1961 the Governor made certain amendments to the 1960 Rules the effect of which was to make those rules retrospective with effect from March 1 1958 and also to waive the requirements of the rules relating to the percentages for direct recruitment educational qualifications and age requirements etc
in respect of direct recruitment of Assistant Engineers for the first time
Thereafter on October 31 1961 the Governor appointed 88 candidates as probationary Assistant Engineers
These appointments were challenged in 16 Writ Petitions filed in the High Court on the grounds inter alia that 1 in view of Rule 3 of the Mysore State Civil Services 683 General Recruitment Rules 1957 which provided that the method of recruitment and qualifications for each State Civil Service shall be set forth in the rules of recruitment of such service specially made in that behalf the Government could not recruit the Assistant Engineers without framing the necessary rules ii the State Government could not make rules retrospectively unless it had express powers to do so under the relevant statute iii the appointments which were made on October 31 1951 had to be made in accordance with the 1960 Rules but in fact were not so made iv some of the appointments were made mala fide
These writ petitions were allowed by the High Court
On appeal to this Court HELD  The appointments of the 88 Assistant Engineers were validly made in the exercise of the executive power of the State under article 162 of the Constitution
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 filled
The State Government has executive power in relation to all matters with respect to which the Legislature of the State hag power to make laws
It follows from this that the State Government will have executive power in respect of List 11 Entry 41 State Public Services
686 C E In this background Rule 3 of the General Recruitment Rules of 1957 cannot be interpreted as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf
686 G Ram Jawaya Kapur vs State of Punjab and T Cajee vs K Jormanic Siem   referred to
Even if it were to be assumed that the rules purported to be made by the State Government had no retrospective validity the position would be that there were no statutory rules governing the appointment of the 88 Assistant Engineers but that could not prevent the State Government from making valid appointments in the exercise of its executive powers
694 P It cannot be said that the appointments made in October 1960 had to be under statutory rules made on December 3 1960
It took about two years for the Public Service Commission to publish notifications interview candidates and recommend names for appoinment
The whole procedure having been followed it could not have been the intention of the Government while framing the rules to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing the candidates in October 1960
694 G 695 B On the facts no mala fide or collateral object had been proved
The Mysore Public Service Commission Function Rules 1957 are not statutory rules made under article 309
First
the rules do not expressly say so and secondly they deal with the functions of the Commission rather than with the rules regarding recruitment to services or posts
685 E