Case: Swarn Lata Vs. Union of India &amp; Others

Secretary to the Govern­ment of Haryana, Industrial Training Department.62. Dr. A.C. Mathai, Under Secretary, Union Public Service Com­mission has on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by any ex­traneous considerations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that the Selec­tion Committee was wholly uninfluenced by any after consideration except merit. In S. Pratap Singh v. The State of Punjab AIR 1964 SC 72 this Court laid down that he who seeks to invalidate or nullify any Act or Order must establish the charge of bad faith and abuse or misuse by Govern­ment of its powers. The allegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On the appellant’s own showing, Dr. O.S. Sehgal is Director, Technical Education recorded appreciation of her as principal of the Insti­tute. This clearly shows that he had no particular animus against her.63. Furthermore, as the Division Bench observes, merely because Sri B.S. Ojja, Home Secretary, Chandigarh Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana, Indus­trial Training Department dated October 11/14, 1974 expressing his unwil­lingness to take the appellant on deputation because she was not holding a substantive rank in the pay scale of Rs. 350-900, contrary to the instruction of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarh Admi­nistration or Dr. O S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the suitability of a candidate for appointment. There is nothing to suggest that the reasons given by the Home Secretary were not his own reasons based upon his own information. It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully convergent with the realities. For aught we know, the Home Secretary had his own sources of information.64. In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuesion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essential qualifi­cations of the candidate called for interview or that respondent No. 6 was eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of the advertise­ment, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.65. Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was a denial of equal opportunity to her in violation of Article 16(1) can be easily dis­posed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons pos­sessing the qualifications advertised, as prescribed by the rules are available and have submitted their applications, to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application if she felt that she was better. If not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected.66. In conclusion, we cannot but express our sympathy for the appel­lant. This unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely an equi­table considerations. We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant to in the cadre of Head-Mistresses, who may be holding a post in the pay scale of Rs. 350-900 for appointment on deputation in an equivalent post, such officer, could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide.67.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]33. There is no warrant for the contention that the power of the Chandigarh Administration in relation to the mode of filling up the post in question, which admittedly is under the control of the Administrator,Administration, stands circumscribed by the terms of the directions issued by the Central Government under Section 14 of the Act.It seems to us that for a proper determination of question, it is necessary first of all to formulate as clearly as possible the precise nature and the effect of the directions issued by the Central Government under Section 84 of the Punjab Re-organisation Act,The use of the wordsthe purpose of giving effect to theprovisions of theclearly curtails the ambit of the Section. The directions that the Central Government issues under the Section are only for a limited purpose i.e., for the implementation of the scheme for theof services. When the process relating to integration of service as envisaged by the supplemental, incidental or consequential provisions forre-organisation of servicesunder a law made by the Parliament in exercise of its power under Arts. 2, 3 and 4 of the Constitution is completed, such an incidental provision like Section 84 necessarily ceases to have effect.39. While it is not disputed that the power to regulate matters relating to services under the Union of India and under the various States specified in the First Schedule to the Constitution is an exclusive function of the Union and the States under Entry 70, List 1 and Entry 41, List II of Seventh Schedule read with Article 309 and normally therefore, it is the exclusive power of the Union and the States to deal with their services either inof their Legislative functions or rule-making powers, or in the absence of any law or rules, in exercise of their executive power under Article 73 and Article 162 of the Constitution, which is co-extensive with their Legislative powers to regulate recruitment and conditions of service, nevertheless it is strenuously urged that his power of the Union and of the States which embraces within itself the power to regulate the mode of recruitment of service must yield to the supplemental, incidental or consequential directions issued by the Central Government in relation to the setting up of services in a newly formed State under a law made by the Parliament relatable to Art. 3 of the Constitution, in the context of re-organisation of States.For the reasons already stated there is no basis for thethat the supplemental, incidental or consequential provisions which the Parliament is competent to make while enacting a law under Articles 2 or 3 have an overriding effect for all times. On the plain words of Article 4 of the Constitution, a provision like Section 84 of the Act, or the directions issued thereunder are only supplemental, incidental or consequential to the scheme of re-organisation of a State. They cannot be given a wider effect than what is intended.There are thus no rules and regulations which requires the Chandigarh Administration to fill up by deputation the vacancy in the post of the Principal, Government Central Crafts Institute for Women,The Chandigarh Administration had, therefore, the option to either directly recruit persons to be appointed to the post through Union Public Service Commission or the request either of the State of Punjab or the State of Haryana to send the names of suitable persons whom the Chandigarh Administration might be willing to appoint. It must, accordingly, be held that the post of Principal of the Institute was not ad, therefore, the appointment of respondent No. 6, Smt. Prem Lata Dewan by the Chandigarh Administration to that post, by direct recruitment through the Commission was not invalid.Even assuming that the directions issued by the Centralunder Section 84 of the Act were binding on the Chandigarh Administration, it is clear that there is no breach thereof. From the correspondence that passed between the Chandigarh Administration and the Government of Haryana, there can be no doubt whatever that the Chandigarhmade their utmost endeavour to get a suitable person on deputation for appointment as Principal of the Institute. A long correspondence on the subject ensued and eventually the Government of Haryana by its letter dated July 7, 1974 informed the Chandigarh Administration that it was notto relieve any women officers in the grade of Rs. 350-900 from the Industrial Training Department except that of Smt. Champa Malhotra who was facing an inquiry, with a request that the appellant should instead be appointed. The Government of Haryana was obviously wrong in insisting upon the appointment of an officer in the scale of Rs, 300-500. This could obviously be done as it would be contrary to the instructions of theof India, Ministry of Home Affairs dated August 16, 1971 that an officer cannot be appointed on deputation to a post that carried a higher grade of pay in the Union Territory of Chandigarh. Thus, the post of Principal in the pay scale of Rs. 350-900 could only be filled by a person on deputation who manned a post the scale of pay of which was equivalent to the scale of pay of the Principal i.e., Rs.therefore, rightly pointed out that the post of Assistant Directoresses in the States of Punjab and Haryana were equivalent to the post of Principal of the Institute, as they also carried the scale of Rs. 350-900 and that throughout the Chandigarh Administration had - been appointing Principal of the Institute only from the cadre of Assistant Directoresses.It would, therefore, appear that right from March 7, 1974 till August 14, 1974 when the Chandigarh Administration forwarded requisition to the Union Public Service Commission to advertise the post for direct recruitment i.e., for nearly 6 months, the Government of Haryana took no action in the matter. During this period, it just persisted in its stand in forwarding a panel of names of officers carried on the scale of Rs. 300-500 and when it was fully apprised about the true legal position by theAdministration expressing their inability to take an officer working in a lower grade or to take back the appellant as Principal of the Institute, it still insisted in sponsoring her name, although this could not be done. This attitude of the Government of Haryana was just inexplicable. Nevertheless, the Chandigarh Administration by their letter dated August 20, 1974 i.e., just within six days of the requisition did what was expected of them and duly informed the Government of Haryana of their decision to recruit a Principal through the Commission and requested that it may direct the eligible officers from Haryana to apply for the post, In response, theof Haryana by its letter dated September 27/30, 1974 registered a protest staking a claim as if the post of Principal of the Institute was a Haryana-quota post, i.e., it could be filled in only by an officer onfrom the State of Haryana. In spite of repeated letters sent by the Chandigarh Administration, the Government of Punjab also did not send up the name of a suitable officer. In view of these circumstances, it cannot be asserted that there was any breach of the instructions issued by the Central Government under Section 84 of the Act, if all they were applicable.Viewed from any angle, we must hold that the Chandigarh Administration was within their rights in making the appointment to the post of Principal, Government Central Crafts Institute for Women,by direct recruitment through the Union Public Service Commission. Thus the appointment of respondent No. 6, Smt. Prem Lata Dewan as Principal of the Institute was not invalid as being contrary of the directions issued by the Central Government under Section 84 of the Act inasmuch as the said directions were not applicable and also because there was no breach thereof, if at all theyappellant has nowhere alleged in the writ petition that the Union Public Service Commission had no authority to relax the essentialview of this admission, she cannot be heard to say that the Union Public Service Commission had no such power. Since however the point was argued at length, we think it necessary to deal with it.It is undisputed that there is no statute or regulation having the force of law, by which any qualifications are prescribed for the post of Principal of the Institute Nor has the Administrator framed any rules to regulate the method of recruitment to such post, or laying down thenecessary for appointment to the post or the conditions of service .attached to thedo not see how this decision is of any avail to the appellant. On the contrary, while laving down that the Government has to fill up posts by appointing those who are selected by the Public Service Commission and must adhere to the order of merit in the list of candidates sent by thedecision, in our opinion, instead of supporting the appellant goes against her.We are of the view that the decision of this Court in Union of India and Ors. v. S. B. Kohli and Anr., (1973) 3 SCR 117   and that of the Bombay High Court in Maharashtra State Electricity Board Engineers Association, Nagpur v. Maharashtra State Electricity Board, AIR 1968 Bom. 75  are both ‘ distinguishable on facts.In the present case, as already pointed out, there was no statute or regulation having the force of law by which any qualifications were prescribed for post of Principal. There were also no rules framed to regulate recruitment and conditions of service of the post under the proviso to Article 309 of the Constitution. It was the exclusive power of the Chandigarh Administration in the absence of any law or rules, to prescribe the essential qualifications for direct recruitment to the post, and,the qualifications were prescribed in consultation with the Commission. The Commission while advertising the post, and had reserved to itself the power to relax the qualifications in deserving cases. It is not that thehad relaxed one of the essential qualifications viz., qualification No. (ii) ‘Diploma in Technology of three yearsin the case of respondent No. 6 alone. There were three other candidates who were also interviewed in relaxation of essential qualifications No. (ii) andin its primary sense it is true that the wordinvolves a technical process, invention, method of the like, in the broader sense it embraces non-engineering related curricula pertaining to applied and graphic arts, education, health-care, nutrition, etc. i.e. it includes technique or professional skill in any of the subjects enumerated above. The expression ‘Diploma inis, therefore, wide enough to include a Diploma in HomeUnion Public Service Commission was, therefore, perhaps not wrong in selecting respondent No. 6 as a suitable candidate for theare unable to hold from the material on record that there was any bias on the part of Dr. O.S. Sehgal, Director, Technical Education, Chandigarh or that he influenced the members of the Selection Committee in anyso as to vitiate the selection of respondent No. 6. In our view, the allegations in the writ petition are not sufficient to constitute an averment of mala fides or bias on the part of either the Chandigarh Administration or in particular against Dr. O.S. Sehgal sufficient to vitiate the appointment of respondent No. 6 mala fides as such are imputed against the Union Public Service Commission. The Court would be justified in refusing to carry on investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing Mala fides lies very heavily on the person who alleges.The Division Bench has pointed out, and we think tightly so that the principles laid down incase (supra) were not applicable in the facts and circumstances of the present case. It rightly observes that no question of mala fides or bias arises as it is clear from the letter written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, Chandigarh Administration wherein he had not said a word against the appellant. All that he said in his capacity as Director, Technical Education was that on account of the failure to appoint a Principal for quite sometime the Institute was in a bad condition, and that although he had given charge to the Vice Principal, she did not prove effective suggesting that the Government of Haryana should be requested to lend the services of Mrs. Champa Malhotra as he was prepared to take her back as she had worked for a long time principal in order that the work of the Institute should not suffer. The whole tenor of the document shows that it was written in the best interests of theHe is the Director of Technical Education was solely responsible for the due administration of the Institute. The Division Bench has also rightly held that no inference of mala fides arises from the letter written by Shri B.S. Ojha, Home Secretary, Chandigarh Administration dated October 11/14,is nothing on record to substantiate such general and vague allegations of the appellant as to Mala fides or bias on the part of Dr. Sehgal in his counter-affidavit has controverted the insinuations made against him. Not a word was said at the hearing about the alleged utterance attributed to him. Nothing was brought to our notice to show ill-will or malice on his part. The entire arguments are built around the two letters, the one written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, and the other addressed by Shri B.S. Ojha, Home Secretary, Chandigarh Administration to Shri S.N. Bhanot, Secretary to theof Haryana, Industrial Training Department.Dr. A.C. Mathai, Under Secretary, Union Public Servicehas on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by anyconsiderations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that theCommittee was wholly uninfluenced by any after consideration exceptallegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On theown showing, Dr. O.S. Sehgal is Director, Technical Education recorded appreciation of her as principal of theThis clearly shows that he had no particular animus against her.Furthermore, as the Division Bench observes, merely because Sri B.S. Ojja, Home Secretary, Chandigarh Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana,Training Department dated October 11/14, 1974 expressing histo take the appellant on deputation because she was not holding a substantive rank in the pay scale of Rs. 350-900, contrary to the instruction of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarhor Dr. O S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the suitability of a candidate for appointment. There is nothing to suggest that the reasons given by the Home Secretary were not his own reasons based upon his own information. It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully convergent with the realities. For aught we know, the Home Secretary had his own sources of information.In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuesion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essentialof the candidate called for interview or that respondent No. 6 was eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of thethe Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was a denial of equal opportunity to her in violation of Article 16(1) can be easilyof. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and personsthe qualifications advertised, as prescribed by the rules are available and have submitted their applications, to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application if she felt that she was better. If not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected.In conclusion, we cannot but express our sympathy for theThis unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely anconsiderations. We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant to in the cadre of Head-Mistresses, who may be holding a post in the pay scale of Rs. 350-900 for appointment on deputation in an equivalent post, such officer, could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide.