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

2. The facts giving rise to this appeal, in short, are asUnion Territory of Chandigarh came into existence under Section 4 of the Punjab Re-organization Act, 1966 comprising of the city of Chandigarh and the territories specified in the Second Scheduleto with effect from November 1, 1966 i.e., the appointed day under Section 2(b).The Government Central Crafts Institution for Women, Chandigarh (hereinafter referred to as the Institute) is run and administered by the Chandigarh Administration and is under the control of the Director of Technical Education Chandigarh. The Institute is meant for teaching women for a period of two years different crafts such as tailoring,leather work, embroidery, toy-making, automatic-machine embroidery etc.4. On the appointed day i.e. on November 1, 1966, the post of Principal in the Institute in the pay scale of Rs. 350-900 was held by Smt. Champa Malhotra on deputation from the erstwhile State of Punjab. She was however, allocated to the State of Haryana under Section 82. By virtue of S. 83, she continued to hold the same post as such i.e., on deputation.5. In 1973, Smt. Champa Malhotra was reverted to her parent State i.e. the State of Haryana, on account of certain charges of financiallevelled against her by the Chandigarh Administration. At the request of the Chandigarh Administration, in August 1973, the Government of Haryana forwarded a panel of three names including that of the appellant Smt. Swaran Lata Bhandari for appointment on deputation against the post of Principal of the Institute but placed her at No. 3 because she was junior to the other two. On September 11, 1973 the Chandigarh Administration appointed the appellant to be the Principal till further orders. This was because the Government of Haryana, had in the meanwhile, appointed the appellant as Assistant Director (Women) of the Industrial TrainingHaryana on a pay scale of Rs. 350-900 on an ad-hoc basis. The names of the other two, though they were seniors to her could not beas according to the Government ofinstructions dated August 16, 1971, they were not drawing salary in the scale of Rs. 350-900 which was the scale for the principal of the Institute. According to these instructions, it was contemplated that an officer who comes on deputation to theAdministration must man a post, the scale of pay which is equivalent to the scale of pay which the deputationist is drawing in his or her parent State, as otherwise, it would amount to promotion in rank if this was not done.6. Meanwhile, on August 30, 1973, the Delhi Small Industries Development Corporation addressed a letter to the Government of Haryana requesting for the appellant Smt. Swaran Lata Bhandari, by name, for being sent on deputation for appointment as Assistant Manager (Training of the Corporation, with a request that the Government may intimate the date by which she could be relieved to join her new duties with the Corporation. The Chandigarh Administration received a letter from the Government of Haryana signifying its assent to her being sent on deputation to the Delhi Small Industries Development Corporation Accordingly, on October 18, 1973, the Director of Technical Education, Chandigarh forwarded this letter to the appellant. On the same day, i.e., in just over a period of one month of her joining the duties as Principal, the appellant gave her consent to take up her new assignment with the Delhi Small Industries Developmentpresumably because in addition to the pay, she was also entitled to deputation (duty) allowance as also the Central Government dearness and city compensatory allowances, besides house rent allowance at the rate of 30 per cent of her pay. She, therefore, abandoned the post of Principal of the Institute because of much better financial prospects at Delhi. On February 26, 1974, the Chandigarh Administration placed her services at the disposal of the Delhi Small Industries Development Corporation. She was relieved of the post of Principal on March 4, 1974 and joined her duties at Delhi on the next day.7. On March 7, 1974, the Chandigarh Administration had again to request the Government of Haryana to forward a fresh panel of names with the conditions that the officers recommended should be in the grade of Rs. 350-900. A long correspondence on the subject ensued between the Chandigarh Administration and the Government of Haryana ultimately wrote to the Chandigarh Administration that it was not possible to forward the names of any women officer in the grade of Rs. 350-900 in theEventually, on August 14, 1974 the Chandigarh Administration forwarded a requisition to the Union Public Service Commission forto the post of Lady Principal in the Institute stating no rules had been framed to regulate recruitment to the post. The requisition, however,certain essential qualifications and desired the Commission to advertise the post. On August 20, 1974 the Chandigarh Administrationthe Government of Haryana about its decision to recruit a Lady Principal directly through the Union Public Service Commission, with a request that it may direct the eligible officers from Haryana to apply for the post to the Commission.11. When the Government of Haryana was informed of the decision, Sri S.N. Bhanot, Secretary to the Government of Haryana, IndustrialDepartment, addressed a letter to Sri B.S. Ojha, Home Secretary, Chandigarh Administration, on September 27/30, 1974 stating that the Government of Haryana was surprised at the decision to appoint theThe Union Public Service Commission, had in the meanwhile, on September 16, 1974, returned the requisition to the Chandigarhstating that it was not considered expedient to advertise the post with the qualification as suggested, desiring that a fresh requisition be forwarded showing qualification fully relevant to the job requirements.13. On October 9, 1974, Dr. O. S. Sehgal, Director TechnicalChandigarh, addressed a letter to the Home Secretary, Chandigarh Administration stating that though an earnest effort had been made to fill up the post by a regular incumbent on deputation from the State of Haryana and Punjab, it was not possible to get a suitable person, and on account of the failure to appoint a Principal for quite sometime, the Institute was in a bad condition and that though he had given charge to Smt. Malika Arora, Vice-Principal, she did not prove effective and consequently, he had to face lot of difficulties and ultimately had to give the charge to a lecturer.keeping in view the totality of the situation obtaining at the Institute, he suggested that the State of Haryana should be requested to lend theof Smt. Champa Malhotra to take charge as Principal on deputation since she had worked as such for a period of the nine years. He further stated that he had an opportunity to watch her work for a period of about one and a half year and found that she could exercise effective control over theThis recommendation was obviously made in the larger interest of the Institute in order that the work should not suffer.14. On October 11/14, 1974, Sri B.S. Ojha, Home Secretary,Administration addressed a letter to Sri S.N. Bhanot, Secretary to the Government of Haryana, Industrial Training Department, in reply to his letter dated September 27/30, 1974 referred to above, and apropos their telephonic talk, stating that the Chandigarh Administration had failed to get a suitable person either from the State of Haryana or Punjab and it was not possible to take the appellant Smt. Swaran Lata Bhandari on deputation as Principal because on her reversion she would be posted in the scale of Rs. 300-500 whereas the scale of thepost in the Institute under the Chandigarh Administration was Rs. 350-900 and the Government ofinstructions forbid giving on deputation a scale of pay which the deputationist was not holding already in his parent State. Furthermore, he stated that after a review of her performance as Principal of the Institute during her short stay, it was considered that the appellant would not be a suitableto be appointed as Principal again. He further stated that the entire question had been re-examined and the Chandigarh Administration was still willing to take back Smt. Champa Malhotra who had previously worked as Principal and accordingly made a request that her service may be madeOn November 27, 1974, the Chandigarh Administration again reminded the Government of Haryana to relieve Smt. Champa Malhotra in order that she may be appointed as Principal on deputation, but theof Haryana took no action in the matter.16. On January 2/4, 1975, the Chandigarh Administration forwarded a fresh requisition revising the qualifications for the post asDegree in Technology with one year professional teaching experience in a reputed concern/training institutes; and(ii) Three years experience in Administrative capacity, OR (i) Degree in Arts or Science.(iii) Diploma in Technology of three years duration or Diploma of Industrial Training of two years duration with one year teachers training/C.T.I.(iv) Five years professional/teaching experience in a reputed concern/ training institute; and(v) Three years experience in Administrative capacity.On February 1, 1975, the Union Public Service Commission advertised the post with the aforementioned essential qualification as suggested. It, however, added a relaxation clause to the followingdiscretion in case of candidates otherwiselast date of receipt of applications was March 3, 1975.18. It appears that on publication of the aforesaid advertisement, the Government of Haryana suddenly woke up. On March 7, 1975, Sri S N. Bhanot, Secretary to the Government of Haryana, Industrial Training Department sent a letter to Sri G. V. Gupta, Home Secretary, Chandigarh Administration protesting against the decision taken by the Chandigarh Administration to appoint a person by direct recruitment. It was pointed out that the post of Principal had throughout been manned by an officer on deputation from the State of Haryana, and if the post were to be filled up by direct recruitment, it would reduce the representation of the State of Haryana in the matter of appointments in the Chandigarh Administration, and this would be contrary to the policy followed by the Administration that the appellant would not be a suitable person which, according to him was wholly unjustified and without any basis, because nothing adverse to her had been mentioned in the report of her work for the period during which she functioned as Principal. He accordingly wanted that the Chandigarh Administration should withdraw the requisition placed with the Union Public Service Commission, and appoint instead the appellant Smt. Swaran Lata Bhandari to the Principal.19. In response to the said advertisement issued by the Commission for appointment by direct recruitment for the post of Principal of the Institute the appellant, Smt. Swaran Lata Bhandari, holding the post of Development Officer-cum-Assistant Manager, Delhi Small IndustriesCorporation and respondent No. 6, Smt. Prem Lata Dewan,the post of Group Instructor at the Institute, both being officers on deputation from the State of Haryana, applied for the post of the Principal of the Institute.20. Meanwhile, the Union Public Service Commission had received seven applications. Of these, one was rejected for want of particulars. All the remaining six applicants, including the appellant Smt. Swaran Lata Bhandari and respondent No. 6, Smt. Prem Lata Dewan were called for interview even though some of them lacked one or other of the qualifications out of the four essential qualifications indicated. The respondent No. 6, Smt. Prem Lata Dewan was found by the Commission to possess all the essential qualifications except qualifications No. (ii) Diploma in Technology of three years duration. The Commission cleared her for interview by relaxing essential qualification No. (ii) in exercise of its powers conferred under the relaxation clause. It may be mentioned that the respondent No. 6 was not the only candidate who was called for interview by relaxingqualifications. There were three other candidates who were alsoin relaxation of essential qualifications Nos. (ii) and (iv).21. The Commission prepared summaries of the qualificationby each of the candidate called for interview and forwarded them to Dr. O. S. Sehgal, Director Technical Education, Chandigarh, who had been nominated by the Chandigarh Administration to be its representative in the Selection Committee, inviting his comments, if any. The Director ofEducation made no comments. Thereby, it appears that the Chandigarh Administration agreed to the relaxation of the qualifications in the case of some of the candidates, including that of the respondent No. 6.22. On April 23, 1975 the Commission interviewed the candidates. Dr. O. S. Sehgal, who was present as the representative of the Chandigarh Administration was associated with the Interview Board. His function was to apprise the President of the Interview Board of the precise nature of the duties expected to be performed by the candidates selected for the post. He was in no way connected with the selection of the candidates. Thefor selecting the candidates, who were summoned for interview rested entirely with the Commission.23. The Commission by its letter dated May 7, 1975 recommended that respondent No. 6, Smt. Prem Lata Dewan be appointed to the post of Principal, but before the Administrator, Union Territory of Chandigarh could actually pass the order of appointment, the appellant along with Smt. Usha Wadhwa, respondent No. 7, filed a writ petition before the Delhi High Court on May 15, 1975. The respondent No. 6, Smt. Prem Lata Dewan was accordingly appointed as Principal, Government Central Crafts Institute for Women, Chandigarh, subject to the result of the writ petition.24. The appellant in her writ petition challenged the selection of respondent No. 6, Smt. Prem Lata Dewan by the Commission for the post of Principal of the Institute on three grounds, namely, (i) the post of Principal, Government Central Crafts Institute for Women, Chandigarh was ach had to be filled in by appointing a person on deputation from the State of Haryana and, therefore, the Chandigarh Administration could not have advertised the post for direct recruitment through the Union Public Service Commission; (ii) the selection ofNo. 6, Smt. Prem Lata Dewan by the Union Public Servicewas vitiated inasmuch as the Selection Board which selected herof Dr. O. S. Sehgal, Director, Technical Education, who was actuated with bias against the appellant and was able to prevail upon the other members to select respondent No. 6, in order to exclude the appellant as he was interested in not selecting her; and (iii) the relaxation of the essential qualifications of the candidates called for interview by the Commission was wholly arbitrary and illegal. No criteria or guide-lines had been laid down as to the extent by which the qualifications would be relaxed while making the selection, nor was there any concurrence of the Chandigarhtaken to the relaxation of the qualifications of respondent No. 6. This was evidently done with a view to select respondent No 6. Smt. Prem Lata Dewan because of the personal interest of the Director, Technical Education who was present at the interview; and (iv) the relaxation of essentialby the Commission was in violation of the fundamental rights guaranteed by Articles 14 and 16 of the Constitution because respondent No. 7, Smt. Usha Wadhwa who was equally, if not better, qualified than respondent No. 6, would have applied for the post, had she known that such essential qualifications would have been relaxed.25. While repelling the contention of the appellant that the post of Principal of the Institute was a ‘deputationa Single Judge of the High Court by his judgment dated February 13, 1976, observed that the practice of filling up the post of the Principal by an officer on deputation from the State of Haryana, did not confer on her any right to the post, inasmuch as, the arrangement between the Government as to taking a particular officer on deputation from the State of Haryana or Punjab was political in nature and as such cannot be enforced in a court of law much less can it be theof any legal rights to a private party. Furthermore, he refrained from expressing any opinion whether the power of relaxation of the essential qualifications of the candidates could be exercised by the Union Public Service Commission, as according to him, it was a matter which falls within the exclusive jurisdiction of the Commission and not the Court. He observed that it was not possible to lay down the precise extent of relaxation because the Commission was a high powered body of experts and the adjudging of qualifications must be left to its discretion.26. The Single Judge, however, struck down the appointment of respondent No. 6, Smt. Prem Lata Dewan on the ground that the mere presence of Dr. O. S. Sehgal, Director, Technical Education, theof the Chandigarh Administration in the Interview Board, vitiated her appointment, in as much as, he was actuated with bias against the appellant. Following the decision of this Court in A. K. Kraipak v. Union of India (1970) 1 SCR 457   he observed that his presence must have its own impact on its decision as the influence he has exercised could be imperceptible and his bias was likely to operate it in a subtle manner.27. On appeal, a Division Bench of the Delhi High Court by its judgment dated May 26, 1977 reserved the judgment of the Single Judge, dated February 13, 1976 and held that the observations made by the Single Judge against Dr. O. S. Sehgal, Director, Technical Education were wholly uncalled for and were not in any way substantiated by the material on record. It pointed out that no mala fides were imputed as such against the Union Public Service Commission and as regards Dr. O. S. Sehgal, apart from the mere assertion of mala fides or bias, there were no allegationsto support the assertion. Nor are there any facts alleged or particulars given of any previous enmity or grudge, if any, on his part against the appellant. In dealing with the question, it rightly observed that for arriving at a finding as to mala fides, the approach of the Court should be to consider all the allegations together, and to find out whether those allegations when established, are sufficient to prove malice or ill-will, and whether theorder is the result of such malice or ill-will.28. Applying this test, the Division Bench on an over-all consideration of all the facts appearing, held that the allegations of mala fides or bias made by the appellant against Dr. O. S. Sehgal were not made out. In reaching the conclusion that it did, it observed that merely because Shri B S. Ojha, 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 stating that it was not possible to take the appellant on deputation as Principal because on her reversion as Head Mistress she would be posted on a lower scale of Rs. 300-500 which would be contrary to the instructions of the Government of India and also because she was not a suitable person to be appointed as Principal, looking to her past performance, as such, it would not unnecessarily, give rise to an inference of bias on the part of Dr. O. S. Sehgal, the representative of the Chandigarh Administration on the Selection Committee. In its view, the reasons given were by the Home Secretary on the basis of his ownand it could not be said that the formation of his opinion was only on the information, if any, supplied by Dr. O S. Sehgal. In view of the letter of the Home Secretary, there was nothing wrong on the part of Dr. O. S. Sehgal, in his capacity as Director, Technical Education to send the communication dated October 19, 1974 giving his comments as to the various aspects relating to the Institute and other matters connected there with. He was obviously not satisfied with the existing arrangement of giving charge of thepost to a subordinate, and having regard to the totality of the situation, and keeping in view the larger interest of thefelt that the Chandigarh Administration should request the Government of Haryana to lend the service of Smt. Champa Malhotra to take charge as Principal of the Institute. More so, because the earnest efforts of theAdministration to fill up the post by a regular and suitable person on deputation from the States of Punjab and Haryana had failed. It was of the view that this recommendation for taking back Smt. Champa Malhotra, despite the inquiry against her in the past, seemed to be the best under all the circumstances prevailing. The Division Bench held that merely because of this it could not be said that Dr. O.S. Sehgal, Director, Technicalwas actuated with bias.29. The Division Bench seemed to agree with the view of the Single Judge that the alleged practice, i.e. the arrangement between thefor taking an officer on deputation from the States of Punjab and Haryana as Principal of the Institute was political in nature and did not confer any right on the appellant. It, however, held that the post of Principal of the Institute was not one which the Chandigarh Administration was bound to fill up by taking an officer on deputation. It held that the Chandigarh Administration tried its best to avail of the services of an officer on deputation from the State of Punjab or the State of Haryana, and having failed in their efforts to do so, they had no option but to have a suitable person recruited directly through the Union Public Service Commission. It further held that the selection of the suitable candidate called for interview by the Commission by relaxing one or more essential qualifications was not arbitrary particularly in view of the fact that the Commission had itselfthe essential qualifications and had also reserved to itself in thethe power to relax the qualifications in case of candidates, otherwise well-qualified. It rejected the contention of respondent No. 7, Smt. Usha Wadhwa that there was denial of equal opportunity to apply for the post, by observing that the Commission had specifically stated in the advertisement that the essential qualifications were relaxable at thediscretion. In its view, the relaxation clauses in the advertisement was sufficientthat all persons otherwise well-qualified were free to apply, and nothing prevented respondent No. 7, from applying for the post. The Division Bench held that the Commission acted within its right in relaxing essential qualification No. (ii). i.e. Diploma in Technology of three years duration, in the case of respondent No. 6, Smt. Prem Lata Dewan. It was not for the High Court to sit in judgment over the discretion exercised by thewhich was a bona fide exercise of its powers.

Reasoning:
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.