Case: Ramendra Singh Vs. Jagdish Prasad and Others

The material facts to bring out the points for consideration in these appeals lie in a narrow compass. The Public Works Department in Bihar had a very small mechanical organisation. In 1962, however, it undertook the execution of a World Bank project. In that connection a number of mechanical overseers were needed. As the project had to be executed on an emergency basis within a short time and `there being dearth of qualified overseers, persons who were working only as sub-overseers or persons who had appeared at the diploma examination in engineering, but had not passed the same, were appointed against the sanctioned posts on a provisional basis. There were some others who were also appointed as mechanical overseers on temporary basis in the World Bank project, a wing of the Public Works Department, after appearing before a selection committee duly constituted according to r.1, Appendix II of the Bihar Public Works Department Code, 1st Edn., 1958, Vol. II. This rulepermanent appointments to the Bihar Subordinate Engineering Service either by absorption of temporary or work-charged Overseers and Estimators, or by direct recruitment, will be made by the Chief Engineer, provided that in the case of direct recruitment (permanent or temporary) appointment will be made on the advice of the committee of senior officers constituted for the purpose. The committee will constituted f or the purpose. The committee will consist of three members including the Chief Engineer, who will be the Chair man of the committee. The other two members will be nominated by him with the approval of the Government in the Public Works Department from time toChief Engineer by orders dated 18th August and 26th September, 1964 appointed among others the following persons, already working as sub-overseers in the department as temporary overseers against the sanctioned posts on their passing the diploma examination from the date of publication of their results of the diploma in mechanical/electrical engineeringRamendra Singh2. Keshav Singh3. Bhola Nath Chaudhary4. Awadesh Kumar Singh5. Rajeshwar Sinha6. Ram Chandra Prasad7. Udai Narain Singh8. Sunil Kumar9. Rajnandan Pd. Singh10. Gopal Ram11. Sidh Nath Singh12. Prem Chand Prasad, and many others who are not partiesappears that a provisional gradation list of overseers was prepared. Certain overseers who felt aggrieved by the provisional list made various representations and eventually a revised gradation list dated 17th November, 1973 was prepared, Some of the aforesaid twelve persons were promoted as Mechanical Sub-Divisional officers by an order dated 13th March,revised gradation list dated 17th November, 1973 and the two orders dated 18th Au gust and 26th September, 1964 appointing the aforesaid twelve persons as temporary overseers with retrospective effect and the order dated 13th March, 1974 promoting some of them as Mechanical Sub- Divisional Offers were challenged by three s eparate writ petitions: (1) writ No. 1419 of 1973 filed by Shyam Dayal Pandey, (2) writ No. 467 of 1974 filed by Ful Chand, and (3) writ No. 522 of 1974 filed by Jagdish Prasad and Mohammad Shamsuddin. The respondents in the three petitions includin g the aforesaid twelve persons were common, though differentlywould be convenient to identify the parties with reference to the writ petitions. The writ-petitioners therein will be referred to herein after as the petitioners and the above mentioned twelve persons, whose retrospective appointment has been challenged, as the contesting respondents.The case of the petitioners in the three petitions has been that they were appointed as mechanical overseers on temporary basis in the World Bank project, a unit of the Public Works Department after appearing before a selection committee duly constituted according to r. 1 referred to above. The appointment of the contesting respondents by orders date d 18th August and 26th September, 1964 with retrospective effect has been challenged on the ground that they were temporary mechanical sub-overseers and had not got the requisite qualification for being appointed as overseers nor did they appear be fore committee as required by r. 1 of the PWD Code and in any case they could not be appointed with retrospective effect. It was further pleaded that the contesting respondents were junior to the petitioners but in the revised gradation list the contesting respondents were shown above the petitioners on the basis of the aforesaid two orders dated 18th August and 26th September, 1964. The promotion of some of the contesting respondents as mechanical sub-divisional officers was al so bad on that account.

Reasoning: 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.