Case: Ramendra Singh Vs. Jagdish Prasad and Others

(Recruitment) Rules, 1964.(b) That the respondent was in Class III service and his appointment by the impugned regulation amounted to his promotion from Class III service to Class I. If so, it is hedged by two limitations as contemplated by sub-clauses (a) and (b) of rule 4 (3) of the Mysore State Civil Services Rules, 1957, i.e. (1) it has to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion, and (2) it has to be on the basis of seniority-cum-merit from among persons eligible for promotion.The stand of the respondent, however, was that (1) he was a local candidate in service and, therefore, the aforesaid rules did not apply to him and the regularisation of his appointment was valid; (2) under Art. 162 of the Constitution regularisation would in itself be a mode of exercise of power of appointment of the Executive Government. Such an appointment even if made in the shape of rules under Art. 309 could not be attacked on the ground of being made for one person just as a piece of legislation could not be attacked on the ground of being made for a particular person or entity.20. The High Court came to the conclusion that the appointment of the respondent could be regularised with effect from any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of the High Court and observed:"No one can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and app ointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination".The Court gave further reasons for holding the regularisation to be bad in law. It observed:"This regularisation is bad for the following reasons, First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade t he appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of t he School of Mines. The pay of the Principal was Rs. 500-800 where as the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs. 75".21. The Court also brought out the distinction between the scope of Art. 309 and Art. 162 of the Constitution. It observed:"There were 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment fo r such services were not made the rule as to appointment by competitive examination or Selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, regularisation by the way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the app ointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection".In view of this clear authority, it cannot be argued for the appellants that t hey could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of Publication of their result of diploma examination are clearly violative of Arts. 14 and 16 of the Constitution inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred national seniority on the contesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petitions in part.22

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

Explanation:
0[ds]The High Court came to the conclusion that the appointment of the respondent could be regularised with effect from any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in appeal, however, reversed the judgment of the High Court andone can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and app ointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitiveCourt gave further reasons for holding the regularisation to be bad in law. Itregularisation is bad for the following reasons, First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade t he appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of t he School of Mines. The pay of the Principal was Rs. 500-800 where as the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs.Court also brought out the distinction between the scope of Art. 309 and Art. 162 of the Constitution. Itwere 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment fo r such services were not made the rule as to appointment by competitive examination or Selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, regularisation by the way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the app ointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the properview of this clear authority, it cannot be argued for the appellants that t hey could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of Publication of their result of diploma examination are clearly violative of Arts. 14 and 16 of the Constitution inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred national seniority on the contesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petitions in part.