' .

 .. '.

. RAMENDRA SINGH

v ..

JAGDISH PRASAD. AND ORS.

 Febf'uary 17, 1984

. [ E.S. VENKATARAMIAH .AND R.B. MISRA, JJ. :J •

Cit-ii Se; dcc: ersons.1161 qua!ijiefi'appoilit¢d to higher p; stS to n1eet e1nei'gC111 siturition--1! could be given senioity over person~.' apjJoli1ted under . ru!s subsequently. . . . . . .. .. .

. In ontcc; tion ·.\Yith tle cxccu"tion of _a \Volli Banl(,· 1rocct. on _an ~!11.e; gcil.cy . basis, which was required .to be completed within a short tin1e, the Public Works .

Department of the State needed a nu1nber of mechanical ov'erseerS. Since at that time there as accute shortag~-.or qu<ilified overses the Dcpartn1ent had al?pointcd; as.oversee.rs on provisional basis against th© sanctioned posts, certain persons who \Vere worki1; g in the depart1nent as sub-overs~s even though. theY had orily appeared. in the dipfrn110· ~Xamination in engineering but hc.d not yet passed it. ln the 1n1::a1time, the respontjets ·(petitioner~ befoe; the High Court) W'.ere selte"d . by a S;:tection Con1nlittce constituted inaccordancc withdie procedure laid down in. Bih<i.r Public. Works Depa!'h11ent Co.de. After they passed .the d-iplotna CxaminJ.tio:~, h..: Cili_..:r E_:-._g:ine;._r had in ·~964 apoi_nted the ·appel.lants (contst.ing respondats ofor~· tr1~ 1-llgh .-...outl) as ten1porry overseers against the sanctioned posts frOm the date of publica ticin of results of.the diplo1na examintion. In 1973; a grad~ .tion list \Va's. prepared and so1ne Of the appellants wre subsequently pronlotcd to

high.er' posts. . ·

Th~ respondc;.:ntS in a writ petition fitCct in the High Court had inlpugned the order of th.e C_!, k:f Engincci appointing the _appellants retrospectively as oversee.rs on the. ground that while they were apr)oirite<l after folloWinti the procodure pres" .cribed under the rules, ti-le a"ppllants t the time of their appointment as overs$eCrs--.

were nejthr qualified .to be appointed s overseersnor were they selected by a Selec

tio~ 'Con1mit~ consfitutCd under the rules .and that in any event the apP.cllarii-s .could not Qc aPvoiuted with etrospective efre'ct. secondly. thoµgh .the ·.appellants

shown aS seniors to the respondents by th~ chief Engineer.'soi:dersof 1964, _the

aP1J~1lants were in rac'c junior to them anct that their tater" pron1otion was imp.roper.··

' . . ·-.

-j: .. \

The Higll Court held that tbc Publi~ W-0rks :Ocpartent Code n accoljj61_1ce with \Vhich-thy respondents wete recruited. directly contained. merly devartmental irlstri.tctions and .. hvd. not ac(tuired -statutory force .and that, theiefon::, tbe appciint~ inent o.f thC appellants. Could nOt be held to be invii.lid on the ground thnt the department had no poWer to illake retrospective appointments.· It ho, vever held that the~ .fevised , gra4l.tio(l isi, showing .the appelri.nts above . the resp, endents, on. the _bas.is . Qf -the 1964orders was bad.in law .. Consequently, the. Iiigh Court qua.shed that part of the two ofders which.had fixed the date of pi, iblic; atiori Of the resU1t of diploma

cx:afuiation as, the cp1nmenCe1ei-it of length of se1vi~ of tenip6rary oversees.

k:c

/':

RAMENDRA SINGH v. JAGDISH PRASAD ...

In appeal..fo this Cort is was cOnteded on behalf Or" the appCllJ.nts that since the Cxccutivc power .. of the State is co-extensive with its lbgiSlativC pow¢f, n the :absericc of a statutorY .rule.framed :under. Article 309 of the. CoiistitUtion, it was opetf ·to the executive." in eXercise of its excuiive power :Uni; Ie"r-Art. . .162 of.the Collstitu•: tion, !O njake "appoiritment~$to meet' the" exigC1cics of a sitlltioll. . .. ..

DiSn1issing the appeal,

HELD The impugned order oi 1964 which prported to appoitthc s~ ov'crseers as temporary overseers from the date Of publication of their. rc~1:1lt of diplonl'a examination are clear_l.Y vlolatlve Or Articles 14 _and 16 of. the c;:'onstitution ·-inasmuch as the respondents hi:tdalready b"een appointe_d as ovei:eers by. a Seie.:- tion committee. conStitutC<l under the rules contained in.the public Works :i;:>ep_art- .. merit COde.· The 1964-order making. the tempoa:rY. appointments conferred . natiOnal seniority on the appellarits for the period heY aie. actua1ly working as subOverseers fri the lower scales. Ciutside the cadre of Overseers: ·The impugned orderS.inay.llot bave'esultedjri.reduction of rank but yet theydid.· affect the seniority of the .respondents which eventUaUy inight result. ill' reducing thCir cha_nOes for promotion. [613 D-F] ·

ft"~.

There'"iS no gain-sayin& _the fact that the .executive i:iower of the .&ate .is co-· ex!ensiVe with the legislative Power and that. it is.not necessary that. there' should be~ -

law ill existence before the executive is enabled to flinction and the power of the executive is limited.me_rely to the carrying oiit of the laws. Th_e;.e.is nothing in terms. of Article 309 which abridges .the powers or the executie to .act. under Article 162 o'f the Contitution without a la~.· hilt.yet if there i~ a statutorY nile or anAct'On a n'atter the . exercise of its. executive pciwer uder. Art. -162, ignore -Or a.ct Contrary: td .-m~~~ . . .

-1. -· B.N; Nagarajan & Ors.' v. State of My; ore '& Ors, [1966]3 SCR.682; Ram ""'-·-· JafVayll Kapur v. State oj Punjah.[1955] 2 SCR 225; Rajendr.a Narin Sitlih &Ors. . v. State of Bihar & Ors .. [1980] 3 SCR 450; S.B. Patwardhan's case [1977] 3 SCR ns . . ..

-.·

and R.N. Nanjundappa v. T. Tiiinimiah & Anr. [i972] 2 SCR 799, referred to. . . . . .. .

C1v1L APPELLATE'JUR1smcnoN : Civil Appeals NM.

1977.'

308,313 Of

, Appeals by Special leave frol)l the Judgment and Orderdated ' .the 8th September, 1915 of the l'atna IDgh Court in C, W.J.€. Nos.

1419/73; 467/74 and522 ofl974, . . .

. i,, N, Sinha, R.P. Singh., R.K. .Jaiii, Suman Kqpur: for the Appellant in CA. No. 308 of 1977. , . _. .... ' . '

R.K. Garg, R, D., . Singh,

~ Appellat in CA. 309 o( 1977. . '• .• _, . ' .

R.K. Jin & Suman. 'Kapoor, for il1e . ..

.. ·,

G ,,

600 . '. ·SUPREME. COlJRi' REPORTS. .. . . . . R.K:. Jai!l for the Appellaht in CA. 310/77: ' . s . .. . .

(1984) 2 S.C.R ...

.L.N. Sii1gh and D. Gpbiirdhan for•thc AP,, olfa:; t in. Cs. 311-13 .. . •. . .. ,. " .... L.N, Sinha, D. Goburdha;, for Respondents 3-7 in CA.,30S/77 and '.or Respondents Nos. 7-6 in CA. 309/77 &for Responiknts 2 to. 4 tn CA No: 310/77. .

.•;_- •

I ? ··· M. K. Ramamurthi D.P. Mukherjee for .·.CA: No. 308/77 & RR 9'10 in CA. 310/77~

' '

Respondents 12, 13 in.

. . U.S. Prasad for Rspondent No .. 4 in CA. 309/77. ·· .

D .. • G.L. Sanghi, Radlia Mohqn & M.L. 'Verma for RR. !, 2 & 16. in CA. 509/77 & for R-11 in CA: 3iO ofl977.

, . . .... ,. '.. .

. " '._ . . Jaynarai11, R.P;. Singh; R.K. Jain & Suman Kapor. for. Respondents in CA. 311-313 of 1977. ·-* . 't'. -- ' .. ..

. ; A.K. Sen, Radha Mohan.Prasad& M.L. 'Ve/,;,; for R.R. I &.2 iq CA. 313 of 1977:. . • . " .· .. . Th~ judgment of the Court ;,, as delivered by · . . , . , .

. MISRA; 1. This ]mnch of appeals is directed agaist a 'commdn .. judgment and order of the Patna High Court dated 8th September, . 1975 all.; wingthree petitions under Art. 2:26 of the Constitution ln part.· . ' ' . ' .

. . ·. ·. ·. . ·,,. . : .. "- . . The materfal facts to bring .0ut the points for consideration in . these appeals lie in a narrow compass. The Public Works Department · in Ilihar had a very smaU mechanical organisation. In_ 1962, however;. it undertook the execution.of a.WorldBank project. In that conneO:. tion a numt)er or mechanical" overseers were needed. As the project had to be, executedon an ernergency basis within a short time and ' . . . .

' .. ·,.../'

. RAMETDRA: sn:iGH v. J~GDISH PRASR~ (Misra}.). 601

.'there being dearthor'qu; lified overseers, persos ho were .. working . '

ortly as sub-ove.tseers or persons who haCt appe.arcd at the diploma .exaillination in engineering, but had npt passed the sanie.; were appoiil_.,.

A.

ted against the sanctiQl!d posts on a provisional basis. There were.··. . some.others who .were also .. appointed as niechankal overseers on •· '

'.·. teip.porai:y basi~ iilthe World Bartk project; a .wing of the Public Works . • '

~.

...

'- ·-·

Department, after appearing before a seiection committee dly con, stituled according to r. 1, Appendix II cif the.Bihar, Publ.ic Works Department. Code, !st Edi1., 1958, VoL IL Thi.s rule. readi: · .

' "All j, ermanent appoiritmc'nts to the .. Bihar Subordinate , Engineering Service either by absorptiqn ofJempornry or. work; - ,, charged Overseers a1id Estimators; or by direct recruitment,

wiH. be made by the CJ;1iefEngineer, provic; led that in the pase .oC' direct recruitment :(permanent o.r teniporaty)'; appointment will . be mde o.n th; e advice of the fOmmitte of senior officers con:

stitutedfor the purpose. The committee will consist of.·.three members including the Chief. Engineer, who:will be the Chair~· : man .of the committee; Tb.e. other two members will be nomi- . nated by him with the approval of the Government in the Public

Works Department from' time to time". · ' -· - . - .

The: Chief Eilgiileei by oders ~-dated 18th A; gust and 26th'

..i,,..~ Septeiribe~, 1964 , appointed among . others the following. persons,. al- ·

 teady working. as sub-overseers in the department as temporary qver- · seers aginstthe sanctioned posts m their pssing the.diploma eX:ami- . , nation from the .date of j:mblicatipn of their results of the diploma -in .

mechanical/elcctricai engh1eedng examination: ·

. .,·,

~· .

-. __.. ...

1. Ramendra Singh 2.. Keshav'Singh . . .. 3 .. Bho\a Nath Chaudhary • A Awadesh 'Kumar Singh. ·

5. Raje; hwar Sirtlla .6. Ra;,_ Chandra Prasad

7. Udai Narain Singh, ·

_ .. 8~_. Siillil I<llmar ' 9; . Rajnandan Pd. Singh 10, Gopa!Ram ..

IL Sidh Na!Ji Singh_ .

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. i

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. 602

SUPREME COURT REPORTS . [1984] 2 s.c.R.

...

12. '. Prem Chand Prasad, nnd many other? who_ are. not parties ,. here,

It; ppears ihat a provisio11al gr_adation list of overieers was wepared. Certain overseers who fdt aggrieved by the provisional ·]ist inade: various respre_sentations and eventually a revis.ed gradation list dated 17th November, 1973 was prepared.

Some. of the aforesaid twelve persons were promoted as Mechanical Sub-Divisional Officers lby an _order dated !3th __ March,~ 1974.

The revised gradation list dated 17th November, 1973 and the two orders dated J8th' August and 26th September, 1'!64 appointing the aoresaid twelve'Persons as temporary. overseers with retrospecfive . effect and the order dated 13th March, 1974 promoting some of them .. ,

as .Mechanical Sub-Divisional Officers were challe.nged -by three sepa rate writ petitions: (I) writ. Nv. 1419 of 1973 filed. by Shyam Dayal

Pandey, (2) writ No. 467 of 1974 filed by Fu! Chand, and (3) .writ No. 522 of 1974 filed by Jagdish Prasad and Mohammad Shamsuddin.

The respondents in the three petitions includirtg,.the aforesaid twelve persons were. common, though differently numbered.· .... ·.

It wouldbe convenient to identify_ the parties with , reference.

to the writ.petitions .. The writpetitioners therein will be rcferre.d to ~~>(' "'hereinafter as the petitioners and th~:above mentioned twelve persons,: 1 ;.. l whose retrospective appointment has been challenged, as the c.0ntes- . ,_ting respondents. . . .. -.. 81 The _case. of. the petitioµers in the three petitions b.s .been th.at they were ppointed as mechanicaloverseers on temporary basis in. t_he World Bani< prqject, a unitofthe'Public Works Department after appearing before a selection committee duly constituted according to r. 1 referred to above. The appointment of the . contesting respon dents by orders dated 18th August and 26th September, 1964 with retros' pee.live. effect. has been challenged on the ground that they were tern-., porarymechanical sub-overseers and had not got the requisite qualift- · ' cation for being appointed asoverseers' n6r did they appear pefote~ co=ittee as required by r. 1 of the PW.D Code and in any case they could n, ot be appointed with retrospective effect. It was further pleaded that the contestii.1g respondents were-junior tci the petitioners but in •

~··.·

RAMENDR.A SINGH v. JAGDIS.B .PRASAD (Misra 1.) . .603.

the <revised gradation .list-the contesting respondents wete. shown . above .the P'titioners on the basis of the aforsaid two o.rders dated ·.18th August aiid.26th September, 1964. T, he promotion of some.of nhe contesting respondents as mechanical. sub-divisional officers was

'also bad on that account. ' ·

The contesting_respondents as well as the State of Bihar flied a return justifying .. the appointment of !lie contesting respondents as ': wen as the promotion given to some of tM contesting respondents as m?chanical SuiJ.-diVisjO:nal offiers. On thccoi1tntions 9fthe Parties, .., the !Iigh Curt formulated the'following points for consideration:, ... c

. '

 i .. Whthcr .the impugned gradation listhad been prepared in .. acco.rdane with law ? . ·

2. Whether the promotion or various respondets on the basis . of the said grac!otio;1 list is ji.1stified? •

3. Whether th.¢ app0intmentofthe respon~.ents w.1S bad as they. , haf.n?t apPeared.'.bef~e .he sele.qjion. con:-in.itte?· ·. 'I

. 4. Whethe.t the orders dated 18th August and 26th Scptemb7r;

.1964 appointing t.he respondents, and some of the petitioners . as tcmp9rary overseers from. the date of publication or'' their

results of diploma in rii.echanical/electria( engineering ex; mi" ·.

nation, are justiflect.and in c\ccordance with .law .and whether' . the same cm; kl . have beeff made the basis for preparing.

the graciatio1i~.l.!Sr?· •

While supporting. the' app::>!htnient of contestitig respondents on, merits two prelimitiary objctions \V.ere raised on behalf of the ~G contesting res.ron(!ents' about the 'maintainability of the ,,; it petitins: ,

1. None _of the requi; i(es of r: l of the PWD Cod.e was coin plied ,

... with.whiie const.ituting the selection coffimitiee and this.being the position the petiti61\ers: themselves were not selected . by

6,04'

. 'SUPREME COURT REPORTS [1984] 2 s.c.R,:

. '

a dilly constitted committee; and. therefore. they had no right to asail the gradation list and to challenge theappoil1t . '.. .. ment of the contstin.g respondents under Art.. 226 of .the

Constitution.. ·

2. rhe petitioners could not challenge the gradaliordist without assailing the. orders dated. 18th Augusfand 26th September, 1964 on whfoh the.gradation list was based, nd the petitionrs · col)Jd not be allowed to asail those o.rders after a lapse of .. abou't!O years and if they were allowed to challenge the grada

tion Jlst that would' virtually amount to permitting the petitioners to challenge those orders. · J

'' ..

The High Co11rt overruled both the preliminary objections . . Thditst. preliminary objection was overmfod qh the ground, ihatthe

. requirements of. r. l of the PWD Code are not mandatorv, they are .

merely dopartmetal instructions which had .not. acquired the statutory force:[u1d. the petitioners .could not be non-suited merely because there was no compliance ofr. l 'of th~ Code. The cond preliminaty objec-. tion was also overruled on the:grounds: (a) that the petitioners had not'prard for the quashing of the entireorder.s but they were ggrleved ·

...; i,. o.nly with that' portb'n of the orders by which the contesting' res, pon- E donts were appointeq. retrospectively from the date of the publication . of the results of diploma iri 1nechanic; al/cleotrical engineering exatni-. . • . nation, which affected the seniority of the petitioners in the revised ---X' gra'dation list; (b) thatthe petitioners'came to kno,;, ofthe two orders . after.the preparation of tl; ie revised 'gradatiOn list on.· 17th November, :. · 1973 wherein the coatesting responde)ltS were placed above the peti- . F . tioners; (e) that .the. Court was mainly. concerned. with the revisd

. ; gradation list, but. 'vi-th a view.to find out the •btsis for preparation of

 ..• ...

~· the rvised gradation.list the.Court had'to examine as to whether the,.·. retro, spective appointment of the contesting respondents by the afore, said two .. orders .in the .circnn\.stan2es was vaiid .. If, the Court holds that they could not.have been appoint,, d. retros, pectively that w<)ulc'.

G . simpiy cha11ge their positi<in in the revised gradation list and 'that ' would ncit affect !lie. appointment' of'thc contesting respondents; and

(d) that ignoring the claim. of the petitioners on th.c ground of !aches 'or delay is not a rule' of law btii'a rule of practice; .<

-·· .' .. ' - ' . . ' .. ..

H r .. Coming to the ; neri.ts; the appointment of the contesting respon- . •

 R~ MRNDRA SINGH v, 1A.onrsH .PRASAD ( Misra.J:) . . . ' . - ' . 605

dents was challengd by the.potitioncrs on ti1e grond .that thev had.

A , not appoard before the selectioll committee as requ.ired.by r. i and '

ther('f9re their appointment was i'llegai and .'al a11y.ratethey.coulci noi . . hve been'pla2erl'higher than di.e petitioners. in th.e r~ised gradatibn list. - .~

:· ' . .

. B .. The High Court negatived the 6onteniion on ihe selfsame ground op which thOJ preliminary objection No.l was ovef,; uled: Rule 1 of the PWD Code was inerely a departmental instruction. and· if had not .

·~·.· acquired the staiutory force. therefore,. the app<jintmc1i(of the 6on-

I · tesiig respondents culd not be 'held to \Jc invalid merely because

. -.. '

~, .~~. they had.not appeared before the selection committee. Besides, there· C ·

 was o 'such stipulation in their initial ordet ofappointment 11orwere -

~. . ' .

~·.

• ...

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.. '. - - . . . ' ' ·.

- . ,, . . . . .they calle, d for. appearing before the selection committee: Keshav. .. Singh and Sunil Kumar, t\Vo of thecotitesting resporidentsan<lqne Shyam Dayal.Pahey, cme of the petitioners hi.: one of the .writ petitions, who were placed in similar sitation'as the c01itesting respondents . , Wh() were phced in siinihr situation as the coniesiing respondents D

appeaed befoe ihe sekdion committee 'but , it was due to .. soine

•• misunderstanding onthe part of the Executive Engineer (Workshop , Divisi9n) under whom they happened :t0 be' posted although thei.r ; . Originl Jr:t't, er-c_:.f apPo'intrp:e1:1-t c.onti.ne.d-n0 such s_ti_pt.Ilatior1-that tJ1y

. would 'have .. 'to appear l)efore the selection committee, .

 On the cruCial point. whether th.e.twciorders. dated .18th Augttst and .26th Septmber .1964 'making reifospectivc. appoiµlmetits were the various authorities. Cited liefor.e. it. ·

~ •.

The c;; rt fudner hl.d that the petitioners were initially appin- . ted provisionally but after they appeared before the (election committee ·. . !liey were appointed temporarily nd, therefore, the services of the . petitioners: from the date cf their appointment could be cm.; nted while

. fixing their seµi6iity, whereas those.cif the contesting respondents, who

wre. pr6visionally'. appointed' c.o'uld not have Meli ounted for fixing . their setiioritf. Tl alsu heki'that" thc revised gradation liot showing the.·

contesting respondenis above the petitjoners. on the basis. of the .two orders .dated !8th .i\ugust and 26th September 1964 was badjn law. . - . . . -~...... . - . - ' ,,\' . ., .

.· a:msequentJy; .tlie High cciurt quashed only that parfcifeth

..... ·"' _' "

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.G ....

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606 SUPREME QOliRT REPORTS [1984] 2 S.l_:.R •.

. two. xirders whicl{ had fixed the date of publication of the result of. diploma i_n n\echanical/electrical enginecring.ex'amination as the date of commencement of length of services of' temporary .overseers. The seniority list prepared in pursuance of the order dated 17th November ·

1973, insofar as it relates to the contesting rc.spondents vis-a-vis the . petitioners inthe three peiitions was also qushed. The order of pro1;, o-~ tiqn of some .of the contesting respondents, namely,· Ramendra Singh,"· Bhola Nath Choudhary, Rajeshwar Sinha, Ramchandra Praad an.d

Udi Narain 'Singh was also quashed .

.The contesting respondents .have n<;>w come to challenge the . orcjer of the High Court by special leave under Art: 136 of the Con• . stitut.ion. The State of 13ihar has also flied three separate appeals against. the same order and for the same relief. ' .. •

• The cru¢ial question fot consideration in this case is whether . . . . the appointment of the contesting respondents, arrayed as . ppellatits fo th" first b.ttch ofthrceappoals, bythe two orders dated 18th August

ad 26th Septeinber, 1964,. with retrospective effect is bad in law.·

Shri A.K. Sen . along with Shri G.L. Sanghi apparing for the petitioners, now arrayed as tespondents in these appeals supported the judgment of the High Cou"rt. Their .mai)l contention was that the contesting respondents had not acquired .the requisite qualification on the date of their appointment and, therefore, their appointment by orders dated 16th August and 26th- Sept.ember, 1964, witji.·, retrospective effect was in the teeth of r. I .of the PWD Gode, and •in an1{ase there can be no retrospective appointment o.f the CQntesting respondents f; om the date of p1ss.ing their ·, Jiplma exc'mination inasmuch as it affected the senioritY of the petitioners in the revised gradation list:·.

Shri Lal Narain. Sinha ssisted by She R.K. Garg appe, iring . for. the (petitioner~) contesting respondent appeJlants, raised the follo

wing three contentions:

• . . j

- . . . . ·.

I.. TM impugned orders are about ten years ol.d and the., petitioners could not be permitted to cha1knge those orders after the lapse of such. a l9i::. time .

,,.. .

.....

.,,.,

, .

f! /' - .. •

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RAMENDRA SINGH v. JAGDISI! PRASAD (Misra J.) 607

•' .

I ---' .. "" , • 2. The High Curt itself.; fi;; ld inade a discriinaiion inasfnuch as tl1c writptitions agaist Kesli"av Singh and A\vadesh Kumar'r • " Singh have already been dismisse.d. . ·

' J

3. In the absence of. any statutory. rule 'or. rules framed under Art. 309 of the Con'titutidiL it cWaS open to the .Govern- • ment to'make apoointments to suit the exigencies of the situa~;' ·., • . .

I, . . • at1on.· .- \, \

• '"'." .The High Court. has given detailed reasons. for not accepting .

the. c, ontetion of unde dealy in filing the . writ petitions .. It is ot . necessary to' repeat those grounds over again. We fl!IIY agree with the view t.aken by the High Court that the writ petitions filed by. the petitio)'ers cold nt be dismisssd on the groun(! of ]aches.. : .

. I .

As -regards the second contention of Shri Lal Narain Singh; we are of the .view that. the mere fact that the writ petitic)ns have been. dismissed' against Keshav Singh ·."·::i.nd: A"vl{es11~ Kum.ar Singh, will not be a ground.for setting aside the inpugned order of the High '

. . . #" ' . ' ' : Court. The contesting respondents have to ; how that the llvo orde1s

dated 18th .August and' 26th .September,1,1964 making retrospective

'apointments, were valid one. , . '

As regards the third contention, Shri Lal Narain Sinha.submits

., that the executive power of the State is co-extensive with its !egisla.tive

po1ver ancf"therefore, ifthe Statecan nass an enactment so also it can,,· pass .orders :in .exereise .. of i.ts executive power, as contemplaied by Art. 162 ofthe Constitutlon to.suit the eicigencies.ofa particular situa- {ion. In the instant case, as stated eaiJier, the World' Bank project.was undertaken by tbe.PWD inJ962. A large number of mechanical over-' seers WeFe needed as thC project had t~ be executed on emergency , basis within~ short time and thee being dearth of qualified hands

'I, , -·" -': ' , .. - ., ;4;' 'persons .who were. working only as sub_-overseers or who had appeared ,· atthe diplbma exmination.but had not passed wre appoillted"against " sanctioned posts and werepern\itted to draw the pay scale of oversees • fromJhe date "of tli.e .passing of the diploma examinatiQn: . ' . . ' .

' ., .

~' . l ..

J * There is no denying_ the fact that\ the executive power oLthe

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SUPREME COURT REPORTS [1984],2 S, c.R.

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State is irrno way narrower than the legislative power. But the question ·.is whether in exercise of that power tl1e State in violation of Art 16 of the' Constitution could make retiospective appQintment of the con, testing respondents in the instant case so as to affect seniOrity of tile.

ptitio•1ers. . . ' For the respondents reliance was placed on Staid of Punjab v. kishan 'Dass<il. Jn that case pursuant to c?rtain charges against a .police constable hlS entire se'rvice with permanent effect was forfeited, 'whic; h . meant reducing .his salary to the starting point in the time scrtle for constables. The co'nstable challenged the order by filing a regular suit.~ The two courts below decreed the.suit holding that there was flgrant violation of Art. 311 (2) of the Constitution as the impugncd"prder amoucl'ted to reduction in rank. This Court interpreted the expression 'reduction' in rank' arid held': · '

."The expressi; n 'reduction in rank' in the article, .therefore rrteans reduction from a higher to ~"lower rank or post when imposed as,~· pe!1altY: T, herefore, an order forfeiting' the past

servie whi'ch has .. earned a .govern.mcnt servant incren1e111s in.the post or faille he hqlds, however adverse it is to him, affcctirig

his seniority within the rank to which 110 belongs, od1is..future chances of promotion 'does not attract the article. His. remedy, therefore, is confi(\ed to the rules of. service governing his post." . ' The impuged orders in the instant case may not have reulted ii\ reduction of rank but all the same they affected the s1miority of the petiotioners whiCh eventually might result in reducing their chances for promotion.

/ ' . .. . · Reliance was next placed on B.l'f Nagarajan & Ors. _v. ' State.

of Mysore & Ors"l. () 1e of the arguments advanced in that case was that till the rules are made in that behalf no recruitment could be ma& to any service.- This argument was, however, repelled. by this Court;· firstly becat\se, it was not obligatory under proviso to Art. 3o9 to mqke nilts of recruitment, etc. before a service could be consiitute<t'o'r i. - . ' .

-·--<1)rr97])'3 sci. is9 ..

(1) [1955] Z S.C.R. 225. ..

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RAMBND(lASINGH v. JAGDISH PRAS.AD (Misra J.) 60~ . . . . . . . .

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post'created .or filled; seciindly the State Government had executive power in relation to all matters wlth

0 respect to whtchthe.Iegisiature of the State has power to make rules; and it follows' froni this that the tate.Goyernnient will have executive power fn respect of List II, Entry 4L State public Services .. Relying .on Ram.Jawaya Kapa.or .

v. State of l!unjab11l. Rani was held that it was.n9t necessary ihat there should be a law already in existence before the executiv1\.is. enabled to function and that the pdwers of the execi1tive were liniited' merely to the carrying out of these laws. There was nothing in the terms 'of Ari. 309. of the Constitution which abridges .the power: of the exe' cutive to .act under Art. 162 of the Costitution without a la iv. the Court, h6wevet, piit a word ~[caution in mentioni;1g that f there . 'is stautoty rule or an Act on the J11lltter, the Executive iioust abide

by.that Act or ruie'and it' coilld not in exercise f executive power. under .Art. 162 of the .. Constituti011 ignore or .act contrary to. that.

rule or. Act ..

·.I

The secod contention in the above case wa; that the Executive could 1ut frame rules retrospctively unless the Act; peciflcally'em- ,' . powers it to do so. This Court, however, r, frafnect. from deciding this point because in. their .opini)in the :i;:iioal could be disposed of on ·, another ground .. This Court observ.ecf that assuming for the sake of aglifi1ent that . the r.;{ysore State , Goyerninent could not make mks retrospectivtily.and.tlia1 tl\erules were thus void.so.far.as they operated '\',.:_ retrospectively, proceeded to )gnore th6se rules, and td. examine

.;.hether the appointmenttmad\; on Ootober'31, J961 _could be upheif!. . The Court came to the conclusion that those appointments. could'

be considered to have been validly made in exercise of the' ex('cutive

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power.of the Staie under Art. 162 'of.the GonstltulimL · ·- F ., "

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,. . ' . , ,. ' . : ' ( . - - '' pot the appellants.siro\1g reliance was also placed upoh Rajentira' Narain Singh & Ors:v. State of Bihar & Ors. 12 ) It was laid down in that case that in the absence of anylegislation oh th~ subject on a rule framed :.under !he proviso to' Art. 309 of the 'Constitution, the State Government could rezulate' itspublic seryices in the exercise 'of its executive power. In the above case. there wa~ no st.atut!' or any rule frarried under the provision to Art. 309to determine the seniority as between the direct . recruits a1id the. prol\1otec~.

1The detennihat~_oi1 of the sniritv 1op. the

(1) [1906] 3 S.C.R. 68i.

,.:(2) [1980] 3 S.C.R 450. ,

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SUPREME 1::0URT .REPORTS

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A basis of contin'uous officiat'on was held to be valid on the bais .of the decision in S.B. Patwardhmi.'s case.(1) There is no gainsaiing the fact that the executive power of the State is co-extensive 'with the legislative power.- but whctl:ier the exercisz of the -power can be in st1ch a \vav as 't6, offond (\rt. 16 of the Constitution. Th~ retrospective appointment -of the n; sponqents in the aforeasaid writ petiti'ons affected the senioi'ity

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B of the respondents. ' .

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This question, however, need not detain us as the point in question is covered by R.N. Nanjundappa v. T. Thimmiah & Anr: "' rn "'. that case. the respondent 1 Thimmiah was appointed ti\rough the Public Service Conunission as an Assistant Geologi'St in the Depart

ment of Geology in the Mysore Government in 195! in the grade of Rs. 125-10-175. When the Kolar GolJ. Fields School of Mines -

was set up in foly 1'957 the respodent was se1it on deputation;.for two years as. Vice-'Ptlncipal of, the School of Mines. , When the, then

Pri.ncipal of the School of Mines, who was employed on. a part

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time basis o;, an a!1owarice 0f Rs. 200/- left\ on 22nd July 1958, the respondent who was Vice-Principal and wqs also doing the duties .of Principal since 15th Ft>bruary 1958, was appointed as officiating .Principal with effect from 22ncl July, 1958 in the .grade of Rs. 500-30-800 by. an order dated 25th .September, 19 58. On 3rd April, 1959' the Sfate Government in mdification or' the notification dated 25th September, 1958 appointed the respondent as tem- ., porary of!Liating Principal with effect from 15th February, 1958. _ .. ){ The Mysore Education- Department Service Rules' 1967 regularised the appointment of the responde.nt. The revelant portion of the the Rules reads

,; Notwithstnnding a; y rule made under the proviso to artfole 309: of the Constitution of India, or any other' rules or Order in force, t any time, Dr. T. Thimmiah, B.Sc. (Hons.) Ph:D. (Lond.) F.G.S. shall be deemedt~ have been regularly appointed os Principal, School of Mines, Ooragau1w, ., Kolar Gold Fields, with effect from 15-2-1958. ''

This rule was challe!'ged by the appellants on various grounds :

(I) [197.7] 3 S.C.R. 775 .

(2) [1972) 2 S.C.R. ,799 •.

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. RAMENDRA SINGH v. JAGDIS~•PRAS~D(Wisra, J.)

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(a) That the respodent as 'governed.by the Myoe Servife.

Rc•ulati6ns, 1943, the Mysore State Civil•Serviees General

Riruilmen\) Rules, 1957, as well as the Mysore _Education Departinent. Servies (Technical Education Deyartment)

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(Rccruitmnt) Rules,. 1964'

(b) That the respondent was in Class JU servic'e and his appointment by the imougned regulation amounted tO his. promo~ lion' from Class III service to Class I. If so, it is hedged

 by two limittions as contcpla:ed by sub'cluses (a) and -

(b) of rule 4 (3) of the Mysore s.tate Civil Services Rules;

1957, i :e. (!) it has to be hn the basis of merii and suitability . with due regard to se'nio'rity frm among persons eligible fol",

promotion, and (2) it ; has to be on the basis. of senioritycum-merit from among persons. eligible for promotion .

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, The stand of the rspondent, however, was .that (l) l\eqyas a

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!cal cndidate in service and, therefore, the aforesaid rules , did not ' apply to him andJhe egularisation of his appointment was valid; (2) . under "Art.-162 of the Constitution regufarlsation would in itseff be: a mode of exercise of power of appointment .of•thc Execuiive Goverri- -, men!. Such n appointment even If made in.the slrnpe of rules.under : Art. 309 cold not be attacked on the ground of being made forwne

E .. person just as a piece of leglslatjon could not be r.ttacked on the ground of being ma<\flor a particular. person oi entity. .

. 'The High Cpurtcame fo the .conclusion that:the appointment of the .respondent co"illd .be regulrised with .effect fron1 any date as

 F he was a local candidate within the meariing of the Mysore Govern-. , merit Seniority Rules, 1957. This Cnurt in .appeal, however, reversed-. the"judgment of the fligh Court and observed:

. ~"No one can deny th~ power of the Government to appint. · .. G If it were a case ofclirect appointment or if itwere a case of appoint' :.inent. of. a candidate by competitive examination or if itjwere

a case of appointment.by selection. recourse to rule under Article 309 for regularisation would not be necessary. Assume that

• ' • , 1'f - ' ' r_ules under Attic!~ 309 conld be made in respect of appoi_ntment . , H of one man but thereare two limitations.· Article 309 speaks 'of •

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SUPRBME COURT REPORTS [1984] 2 s.c.R.

" : J . ·, ,,. •. 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 ahd 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 materitd time as to promotion ,1nd appointment are infringed and the i111pea.ched rule cannot . be permitted to stand to operate as a regularisation of appoiritment of one perso'n in utter defiance, of rules requiring condsideration of seniority and merit in the case of promotion and co11- . sideratiml' bf appointment by selection or by competitive exami-

.. nation:' .. . . •

The 'court gave further rasons for holding the. regularisation to be bad in law. It obseved · ·

"This regularisation is bad for the following reasons, 'Ffrst, regulai:isati; n is not itself a mode of appointment. Second' . .ly, the modes of appointment are direct reoruitmen\ or selection or promotion or appointing for .reasons to be recorded in }Vfiting . an officer holding a post of an equivlent 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 senioritycum-merit but a promotion of some pne who was in Class III to Class I. Even with regard to appoint- . ment under rule:I6 by transfer of a person holding an.equivalent " grade the appointment would be . offending the rules because it

would nht be . transfer from an t!quivalent grade. Again/ merit . and seniority could nt be disregarded because tJ_ie respondent

was not in the same class as the Principal of the School ofMines . . Tlie pay of the Principal was s. 500'800 where as the respondenlr

was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs. '75".

 . The Court also prought out the distinction. between the scope of Art. 309 and Art:J/62 of the Constitution. It observed i

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RAMENDRA 'SINGii ..

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v. JAGDISH lsAD (Misra[) 613

''There were 1957 rules which s'pokO o.f appointment by

ompetitive efamfnation or by selection or by promotion.Even

'i(spcific rules of recruitment [or, such srviceuvere not made the rule as to a1pointment by competitive examihatiiii1 or

Seiection or by promotion \vas there. Article 162 does not.confer po'wer of regularisation. Article> 162 does not confer power :•on the Goefnmer; t to make rules! for the recr.uitment or . conditions of service. Rules are.not for the'purpose ofvalida- . 'tfog al)illegal appointment or for making appointments orpromotions or transfer. Rules n11der Article" 30'9 ire for the ' • ) ' . ' . l_ ; ''• ·'#' . purpose of laying down the con.ditions of serice ahd recuritment..

 ' Therefore, regularisation by tl'e way of .rules under Article 309 in the present case by stating that. notwitl)standing'any!]:ling .in the rul1:s the apppihtment of the. respondent' was being regula- . rised was in itself iolation of therules as to appointment and as'

to cadi; e and also. as .to the proper selection".

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' In view.of this cfoarauthorlty,. it cannot )le argued Jo;· ilie 'appellants that they conld be appointed with retrospectiveeffect so as to affect

th~ seniority of the respondents. The orders dated .18th August and 26th Septeinbe.r, 1964.which purported .to appoint the sub-overseers.

named tb, ern as temporary '.wer, seers from.the date of Publicati?n of their result.of diploma .examination. are clearly violative of Arts. 14 ·.,. and 16, of the Constitution i.nasmuch as theipetitioners had a.leady. "'-, f , eenappointed as overseers by sel)'ction comniiltee consitituted, uhder the rules contained inP.W.D. Code. The orde'r of temporary appoint- .·· men! by ihe impugned orders dated 18th Angus! and 25th September, -- 1964° onferted national seniority o'u the contesting resp011dents for

 the period while they were actually"w0rking as sub-overseers in the ' ' - . . ·- . 1 . . lower scale outside .the cadre .of overseers.· The ~:ligh Court in. our

opinion ivas fully justified .Jn a110wing the writ petitions in' part. .

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~ •, - ! ' For the reasons given above the appeals must.fail. They are' accordingly dismissed; In the circumst)liices of the c.'\se,, b, owever, •we allow the parties to-bear their own costs. . - * . . '

P.B.R.

A.ppe§l!S dismissd.

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