IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1537 of 2010 Sanjay Kumar Samaiyar, son of Sri Sudhir Chandra Samaiyar, resident of House No.12, Khanger Gali, Diwan Mohalla, Patna City, P.S. Khajekalan, Town and District- Patna ----- Petitioner/Appellant. Versus 1. The State of Bihar through the Principal Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Old Secretariat, Patna. 2. The Principal Secretary, Department of Labour and Employment, Government of Bihar, Patna. 3. The Deputy Secretary, Department of Labour Resources, Government of Bihar, Patna. 4. The Bihar Public Service Commission, through its Deputy Secretary-cum-the Controller of Examination, the Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg (Bailey Road), Patna-1. 5. The Chairman, the Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, (Bailey Road), Patna-1 ------ Respondents/Respondents. ----------- For the Appellant : Mr. Rajesh Kumar, Advocate Mr. Sanjay Mandal, Advocate. For Respondent nos. 1 to 3: Mr. Tej Bahadur Singh (A.A.G. VII), Mr. Rajesh Kumar Mishra (A.C. to AAG VII) For Respondent nos.4 to 5-Mr. Lalit Kishore, A.A.G. I, Mr. Satyabir Bharti (AC to AAG I). ------------- 4. 7.1.2011 The petitioner of C.W.J.C. No. 3861 of 2009 (Sanjay Kumar Samaiyar Vrs. The State of Bihar & Others), has preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the order dated 5.8.2010, whereby the writ petition has been dismissed, and advertisement no.1 of 2009, 2 dated 30.1.2009, for appointment to the posts of Factories Inspector (Basic Grade), has been upheld. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. Respondent no.4 herein published advertisement no. 1 of 2009 (Annexure-1), which had appeared in the local dailies on 30.1.2009, inviting applications for appointment to eleven posts of Factories Inspector, out of which 10 posts were of Factories Inspector (Basic Grade), which required the educational qualification of Chemical Engineering or Production Engineering with further details stated therein. One post was of Factories Inspector (Chemical), and is not in question here. The appellant holds degree of Engineering (Metallurgical), and is, therefore, not eligible to apply for the post of Factories Inspector (Basic Grade). 2.1. He challenged the same by preferring the present writ petition, inter alia, on the ground that the advertisement is inconsistent with the provisions of the Bihar Labour Service (Technical) Rules, 1969 (hereinafter referred to as „the Rules‟), read with the amendment brought by Government notification dated 28.8.1970. The appellant‟s contention in the writ proceeding was that the substantive 3 portion of rule 9 of the Rules prescribes that the minimum educational qualification for a candidate for the post of Factories Inspector is a degree of a recognized University in any branch of engineering, technology, or medicine, or its equivalent, and the proviso thereto authorizes the authorities to confine it to a particular branch “for any particular vacancy”. The writ petitioner had submitted that, on such a power vested by the proviso to rule 9 of the Rules, the State Government has nullified the substantive provision whereby all the 10 posts of Factories Inspector (Basic Grade) is not open to degree-holder of a recognized University in any branch of engineering, but is now confined to the three branches, which is impermissible in law. The contention did not find favour with the learned Single Judge. The writ petition has been dismissed, and the advertisement has been upheld. Hence this appeal at the instance of the writ petitioner. 3. While assailing the validity of the impugned advertisement, learned counsel for the appellant submits that the authorities have, by the advertisement in exercise of its limited authority vested by the proviso to rule 9, has nullified the substantive provision of rule 9, which is 4 impermissible in law. He next submits that such an exercise of power can be confined to “any particular vacancy”, as has been done in the case of Factories Inspector (Chemical), and can not cover such a large number of vacancies. He lastly submits that the authorities have failed to satisfy the court about “the need of Government” to confine it to “any particular vacancy”, as mandated by the proviso to rule 9 of the Rules. He relies on the judgment of the Supreme Court in the case of the Marathwada University Vrs. Seshrao Balwant Rao Chavan, A.I.R. 1989 SC 1582 (Paragraph no.26). 4. The learned Additional Advocate General appearing for respondent nos. 1 to 3 has supported the impugned action. He submits that the State Government has examined the needs of the department and has, therefore, confined the 10 posts of Factories Inspector (Basic Grade) to the two branches indicated in the advertisement. He relies on the judgment of the Supreme Court in the case of Sanjay Kumar Manjul Vrs. The Chairman, UPSC, 2006(4) P.L.J.R. (SC) 287 (Paragraph nos. 25 to 28). He also relies on the judgment of the Supreme Court in the case of A. N. Sehgal Vrs. Raje Ram Sheoran, A.I.R. 1991 S.C. 1406 (Paragraph nos. 14 and 15). 5 5. Learned counsel for respondent nos. 4 and 5 has justified the impugned advertisement and has taken us through the correspondence between the State Government and the Commission leading to the advertisement. 6. The selection process for the appointment in question is governed by the Rules, framed in exercise of powers conferred by Article 309 of the Constitution of India. Rule 9(a) of the Rules as it originally stood at the time it was framed was amended by S.O. No.830, which was published in the Bihar Gazette Extraordinary of 28.8.1970. The same is reproduced hereinbelow: “ The 28th August 1970 S. O. 830.- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Bihar is pleased to make the following amendments to rule 9(a) of the Bihar Labour Service (Technical) Rules, 1969, namely:- AMENDMENTS In rule 9 of the said Rules- (1)for sub-clause (i) of clause (a), the following sub-clause shall be substituted, namely:- “(i) A degree of a recognized University in any branch of engineering, technology or medicine or any other qualification recognized by the State Government by a notification in the Gazette to be equivalent to any of the above mentioned degree: Provided that for any particular vacancy the State Government may specify any particular branch of engineering, technology or medicine depending upon the need of the Government.” 6 7. It is evident on a plain reading of rule 9(a) of the Rules, as it stood at the time of the advertisement, that a candidate with a degree of the recognized University in any branch of engineering, technology, or medicine, or its equivalent degree, is eligible to apply for the post of Factories Inspector (Basic Grade). In order to provide the State Government with the requisite discretion to appoint a Factory Inspector with specific needs, the proviso states that any particular vacancy can be filled up by a candidate of a particular branch of engineering, technology, or medicine, depending upon the need of the Government. It appears to us that due importance and value has to be attached to the substantive provision, and the proviso should not normally be permitted to be exercised in a manner so as to destroy the substantive provision except “for any particular vacancy”, and “depending on the need of the Government”. In the present case, the State Government has exercised its discretion in terms of the proviso for one vacancy, namely, Factories Inspector (Chemical), depending upon the need of the Government. 8. We are, therefore, required to examine whether or not the State Government has been able to satisfy the court 7 about its need so as to fill up all the remaining 10 posts of Factories Inspector (Basic Grade), from the three specialties mentioned in the advertisement to the complete exclusion of the rest prescribed by the substantive provision. By its communication dated 25.3.2008, the State Government in the Department of Labour and Employment, had sent requisition to the Commission for appointment to 10 posts of Factories Inspector (Basis Grade), and one post of Factory Inspector (Chemical). Requisition letter appended thereto, inter alia, prescribes the following qualifications: 18- visf{kr ;ksX;rk & fuEufyf[kr ;ksX;rk esa ls dksbZ ,d ¼d½ 'kS{kf.kd ¼;fn ,d ls vf/kd ;ksX;rk fofgr gS rks ;g crykus dh dkSu lh ;ksX;rk ijeko';d gS vkSj fdl ;ksX;rk dks rjthg@vf/kekU;rk ¼i½ izkpk;Z lsok esa vfHk;ark ¼bfUtfu;j½ ds :i esa O;kikj eaMy dk izek.k i= ¼cksMZ vkWQ VSªM lfVZfQdsV½ ¼[k½ izf'k{k.k ¼x½ vuqHko ¼ii½ rduhdh bfUtfu;j laLFkk dk ,'kksfl;V esEcjf'ki ¼iii½ fdlh ekU;rk izkIr fo'ofo|ky;ksa ls bfUtfu;fjax fMxzhA ¼?k½ vU; ;ksX;rk,a ;Fkk layXu fooj.kh ¼M-½ D;k mi;qZDr ¼d½ ls ¼?k½ rd ;ksX;rk dk Bhd&Bhd vuqikyu fd;k tk;sxk iz'kklfud {kerk ,oa lkekU; ¼vkSjxsukbZftax ;ksX;rk½ gk¡ (Emphasis added) As is evident from Clause (iii), the prescribed qualification reads as “fdlh ekU;rk izkIr fo'ofo|ky;ksa ls 8 bfUtfj;fjax fMxzhÞ 9. To our mind, this was consistent with the substantive portion of rule 9(a) of the Rules. We are not considering exclusion of the remaining two clauses of rule 9(a), namely, “technology or medicine”, because, in view of the frame of the writ petition, we are not called upon to examine the same. In response to the said requisition dated 25.3.2008, the Commission by its communication dated 11.6.2008, to the State Government, raised the following objection: Þ¼i½ vf/k;kpuk izi= dh df.Mdk &18 ÞdÞ esa mfYyf[kr visf{kr ;ksX;rk ,oe~ vf/k;kfpr in gsrq fu;qfDr fu;ekoyh esa mfYyf[kr ;ksX;rk esa vUrj gSAÞ 10. The Commission‟s objection was cryptic and did not state as to in what manner the requisition did not precisely specify as to in what manner the educational qualifications mentioned in the advertisement were inconsistent with rule 9(a) of the Rules. In reply to the query dated 11.6.2008, the State Government replied by its communication dated 26.8.2008, wherein it, inter alia, stated as follows: Þ;ksX;rk& fdlh ekU;rk izkIr fo'ofo|ky; ls eSdsfudy baftfu;fjax] izksMDlu baftfu;fjax vFkok dSfedy baftfu;fjax dh fMxzh vFkok jkT; ljdkj }kjk ekU;rk izkIr fdlh vU; laLFkku ls led{k fMxzhA 9 vuqHko & fdlh iz[;kr QkWeZ vFkok ljdkjh foHkkx ls eSdsfudy baftfu;fjax] izksMDlu baftfu;fjax vFkok dSfedy baftfu;fjax esa nks o"kksZ dk O;ogkfjd vuqHkoA ijUrq fdlh ekU;rk izkIr fo'ofo|ky; ls fMxzh izkIr mEehnokjAÞ 11. It is thus obvious that the State Government in its communication dated 26.8.2008, prescribed the minimum educational qualifications for the posts of Factories Inspector (Basic Grade). 12. On a perusal of the materials placed by the respondents before us, we are in no doubt that the authorities have seriously erred in confining the 10 posts of Factories Inspector (Basic Grade) to the three specialties mentioned in the advertisement. It falls foul of the substantive provision of rule 9(a) of the Rules. 13. This takes us to another vital question, namely, whether or not exercise of power vested in it in terms of the proviso to Rule 9(a) of the Rules is lawful, and fulfills the requirements of law. We are obliged to attach due importance to the expression “any particular vacancy”, occurring in proviso to 9(a) of the Rules. The State Government seems to have exercised the limited power available to it under the proviso so as to annihilate the substantive provision of rule 9(a) of the Rules. 10 14. The State Government has also not taken care to satisfy this Court with the aid of contemporaneous materials that confining the 10 posts to the three specialties was really bonafide and genuinely meant to meet “the need of the Government‟. The State Government has instead confronted this Court with its conclusion, as stated in paragraph 7 of the counter affidavit which is reproduced hereinbelow: “7. That in reply to the statements made in paragraph nos.9 to 14 of the writ petition it is stated that vide notification no.475 Patna Government of Bihar dated 28 August 1970 Amendments to Rule 9(a) of the Bihar Labour Service (Technical) Rules, 1969 published in Bihar Gazette and in the said amendment it has been clearly mentioned that “Provided that for any particular vacancy the State Government may specify any particular branch of Engineering, technology or Medicine depending upon the need of Government”. Thus, it is clear that the government is free to choose any branch of Engineering as per need. “( Emphasis added). 15. Such an approach can not be permitted in law. Every Government is bound by the terms of the statute or the Rules framed thereunder, and can not be permitted to violate the same. In a situation as the present one, where the limited direction vested in the State Government under the proviso, it was duty bound to satisfy this Court with the aid of contemporaneous materials about its needs. The State 11 Government has instead confronted this Court with its conclusion which can not be permitted; otherwise it will erode the power of judicial review conferred on this Court by the Constitution of India. If permitted, it will have dangerous portents for the rule of law, and we strongly disapprove the same. The materials placed before us clearly make out a case of arbitrary exercise of power, and ought to be struck down. 16. Learned counsel for the petitioner has rightly relied on the judgment of the Supreme Court in the case of Marathwada University (Supra). Paragraph no.26 of the same judgment is reproduced hereinbelow: “26. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and can not be ratified.” 17. Learned counsel for respondent nos. 1 to 3 has relied on the following portions of the judgment of the Supreme Court in the case of Sanjay Kumar Manjul (supra): “25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefore. 12 26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same. 27. It is well-settled that the superior courts while exercising their jurisdiction under Article 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post. 28. What was, therefore, permissible for recruitment to the post of Deputy Superintending Archaeologist need not necessarily be held to be permissible for recruitment of Superintending Archaeologist. Once a person holds the post of Deputy Superintending Archaeologist, keeping in view the decision of this Court in Roshan Lal Tandon vs. Union of India [(1968) 1 SCR 185], he may be treated identically; but then it would not mean that while making a direct recruitment to a higher post, the Commission must have jurisdiction to relax the rules. The power of relaxation, it is well-settled, must also be expressly conferred.” We do not see any relevance of the judgment in the present case. This Court has only to interpret the provisions of rule 9(a) of the Rules, and is making no attempt to supplant or supplement the same. 18. Learned Additional Advocate General has also relied on the judgment of the Supreme Court in the case of A. N. Sehgal (supra). In our view, the judgment, instead of supporting the State Government, fully supports the appellant‟s case. Paragraph nos. 14 and 15 of the judgment 13 relied on by the learned Additional advocate General is reproduced hereinbelow: “14. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. 15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.” The judgment in substance lays down the effect that the scope of the proviso is to carve out an exception to the main enactment and should not be used to nullify by implication what the enactment clearly says, nor to set at naught the real object of the main enactment. 19. In conclusion, the advertisement falls foul of rule 14 9(a) of the Rules, and is hereby quashed. The appeal and the writ petition are accordingly allowed. The State Government may issue a fresh requisition to the Commission consistent with the provisions of rule 9(a) of the Rules. In the facts and circumstances of the case, there shall be no order as to costs. Vinay/ ( S. K. Katriar,J. ) ( S. P. Singh, J.)