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MOHINDER SINGH A v.

STATE OF HARYANA & ORS.

APRIL 7, 1989

[RANGANATH MISRA AND G.L. OZA, JJ.] B

Civil Services: Haryana State-Recruitment to post of District Food anti Supplies Officer-Qualifications for-'Five/three years experience as an executive officer'-lnspector/Sub-Inspector in Food and- Supplies Department-Whether 'executive officer' eligible

Words and Phrases: 'Officer'-'Emp/oyee'-Meaning of. c

The Haryana Public Service Commission advertised the filling'up of 4 posts of District Food and Supplies Officers by direct recruitment, and prescribed "five/three years' experience as an executive officer" as one of the essential qualifications. The appellant who was D

- working as Inspector/Sub-Inspector in the Food and Supplies Department, applied for the post. Some other Inspectors/Sub-Inspectors also applied. Subsequently, the Special Secretary to the Haryana Government in the Food and Supplies Department wrote to the Commission affirming, inter alia, that the work of Inspectors/Sub-Inspectors of his Department was of executive nature though they were not officers. The E Commission, however, required the appellants to produce a certificate from the State Government to the effect that they had the requisite experience of executive officer. The State Government did not issue such a certificate, and in its absence the Commission did not consider the Inspector and Sub-Inspector candidates as having the requisite qualification.

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Thereupon, the appellant filed a writ petition in the High Court claiming that he had the reqnisite qualification. The learned Single Judge dismissed the writ petition and the Division Bench dismissed the appeal therefrom.

Before this Court, it was contended on behalf of the appellant that the post of Inspectors and Sub-Inspectors belonged to the category of execntive office, and that in earlier years certain similarly sitnated Inspectors and Sub-Inpectors of the Department had been appointed -on that basis.

A Allowing the appeal, it was,

HELD: (1) It was conceded in the Department's letter to the Commission that the Inspectors/Sub-Inspectors held executive posts. [440B]

(2) None of the parties has placed any definition of the term \--' 'Officer' from any Haryana Statute. It is also not the contention of any 't of the parties that the administrative orders gave a definition to the term. In such a situation, the common parlance meaning of 'officer' has to be accepted for the purpose of finding out whether Inspectors and Sub-Inspectors held the post of officer. [440F]

(3) In service jurisprudence even ministerial employees have been ~· referred to as officers. The terms 'Officer' and 'employee' put together obviously signify the grade of the establishment or post held, the officer being higher in grade to employee. [441G)

( 4) A person i.nvested with the authority of an office has been treated as an officer. [441C-D]

( 5) Keeping in view the nature and duty assigned to the Inspector or the Sub-Inspector working id the Department to whom powers have E been delegated, it cannot be doubted that the holders of posts of Inspector and Sub-Inspector are officers. [441G-H]

G.A. Monterio v. The State of Ajmer, [1956) SCR 682 and Bajrang Lal & Anr. v. State of Rajasthan, [1976) 3 SCR 497, referred to.

(6) The appellant was entitled to be considered for recruitment in 1980 and since his claim had been over-looked without justification, the State and the Haryana Public Service Commission are bound to consider his case now on the basis that he was entitled to recruitment in 1980. In case the appellant is found qualified, he shall be selected for the post G and duly appointed. [442E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 294 of 1982.

From the Judgment and Order dated 8.9.1981 of the Punjab and H Haryana High Court in LP.A. 857of1981.

P.P. Rao, R. Venkataramani, U.G. Pragasan and S.M. Garg for A the Appellant.

Mahabir Singh, .Subhash Sharma and C.M. Nayar for the Respondents.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. This appeal is by special leave and is directed against the appellate judgment of a Division Bench ·of the Pun jab and Haryan~ High Court upholding the decision of a learned Single Judge of that Court by dismissing the appeal in limine. The Haryana Public Service Commission advertised the filling-up of one Post of D.F.S.C. and 4 posts of District Food and Supplies Officers by direct recruitment. The Commission prescribed, inter alia, that one of the essential qualifications shall be "five/three years' experience as an executive officer in a commercial organisation of Government or Semi-

Govemment office before or after acquiring the academic degree" and the Special Secretary to Haryana Government in the Food and Supplies Department, on 20th of February, 1981, wrote to the' Secretary of the Commission affirming that position and added that:

"Certain Inspectors/Sub-Inspectors of this Department seem to have sent their applications (advance copies) to the Commission for these posts. The work of Inspectors/ Sub-Inspectors is of executive nat'\re though they are not officers. As such, in case the Commission feels that they fulfil the qualifications for the posts in question, this department have no objection to the names of the Inspectors/Sub-Inspectors who have applied directly to the Commission, to be considered for these posts."

The Commission called the appellant and other similarly placed candidates for interview but required them to produce certificates from the State Government to the effect that they had the requisite experience of executive officer. The State Government, however, did

not issue such certificates and in their absence the Commission did not G consider the Inspector and Sub-Inspector candidates as having the requisite qualification for being candidates for the post. The selection was undertaken excluding them. Thereupon a writ petition was filed before the High Court claiming that the appellant had the requisite qualification having been an executive officer for the requisite period and his exclusion was unjustified and the selection made by the Com- H

A mission was hft on account of infraction of the provisions of Article 16 of the (.::onstitution. The learned Single Judge negatived this stand and dismissed the writ petition and the Division Bench upheld the decision of the Single Judge by dismissing the appeal in limine.

B In this appeal the sole question for consideration is whether Inspectors and Sub-Inspectors of Food and Supplies Department are executive officers. That they held executive posts and for the required period was conceded in Government letter of 21st of February, 1981.

It has, therefore, to be found out whether J; nspectors and Sub- Inspectors could be treated as officers.

The selected candidates were not made parties to the writ peti- C tion. A civil miscellaneous petition has been filed to add them as party-respondents to the appeal and that application had been placed for hearing along with the appeal.

Mr. P.P. Rao appearing in support of the appeal has contended --(> that the post of Inspectors and Sub-Inspectors belonged to the category of executive office and the High Court, therefore, came to a wrong conclusion. In earlier years certain similarly situated Inspectors and Sub-Inspectors of the Qepartment had been appointed on the basis that they satisfied the requi.J:ements of clause ( c) of the advertisement and there was no justification for a different basis when further E recruitment was.undertaken.in 1980.

None of the parties has placed any definition of the term 'Officer' from any Haryana Statute. It is not the contention of counsel appearing for any of the parties that the administrative orders gave a definition to the term. In such a situation, the common parlance mean- F ing of 'officer' has to be accepted for the purpose of finding out whether Inspectors and Sub-Inspectors held the post of Officer. The ordinary dictionary meaning of the term 'Officer' is:

"a person appointed or elected to a position of responsibility or authority in a Government, society etc."

Stroud's Judicial Dictionary (5th Edition) has given a variety of instance of "officer" with reference to different statutes. Some of the instances given therein do support Mr. Rao's stand that an Inspector or Sub-Inspector would indeed be an 'officer' inasmuch as under statutory orders made in exercise of powers conferred under the H Essential Commodities Act on the State Government, authority has

been vested in these categories of officers to exercise jurisdiction.

Black's Law Dictionary states:

"In determining whether one is an 'officer' or 'employee', important tests are the tenure by which a position is held, whether its duration is defined by the statute or ordinance creating it, or whether it is temporary or transient or for a time fixed only by agreement; whether it is created by an appointment or election, or merely by a contract of employment by which the rights of the parties are regulated; whether the compensation is by a salary or fees fixed by law, or by a sum agreed upon by the contract of hiring."

A person invested with the authority of an office has been treated as an officer.

In Words and Phrases (Permanent Edition-Volume 29A) an D 'Officer' has been stated to mean:

"a person who is invested with some portion of the functions of government to be exercised for the public benefit."

"If the powers and duties reposed in the incumbent of a l! position are such that he exercises the function of the sovereignty, the incumbent is an 'Officer' regardless of the name by which he may be designated."

If these tests are applied, the appellant who held an office and was clothed with functions of sovereignty was an officer.

In , Articles 146 and 229 of the Constitution officers and servants of the Supreme Court andthe High Court have respectively been ro vided for. In service jurisprudence even ministerial employees have been referred to as officers. The terms 'officer' and 'employee' put together obviously signify the grade of the establishment or 'post he[d, . G the officer being higher in grade to employee. Keeping the nature and duty assigned to the Inspector or the Sub' Inspector working in the Department to whom powers have been delegated, it cannot be doubted that the holders of posts of Insp.ector and Sub-Inspector are officers. We, therefore, accept the contention of Mr. Rao that the _'lppellant held the post of an officer and since the State had conceded H

that it was an executive office and the appellant was holding the said

A post from April, 1973 till September, 1978, by 1980 when selection was to be made he, had the requisite qualification.

Mr. Rao relied upon decisions of this Court in G.A. Monterio v.

The State of Ajmer, (1956] SCR 682 and Bajrang Lal & Anr. v. State of B Rajasthan, [1976] 3 SCR 497 in support of his plea that the appellant 'y was an officer. Both these cases were with reference to the definition of 'public servant' in s. 21 of the Indian Penal Code. On principle, 't these decisions support the conclusion which we have reached.

~ Counsel appearing for the respondents did not attempt to contend c that if the appellant had the requisite qualification when selection was being made and he had been kept out on the wrong premises that he • did not have the qualification, he would be entitled to challenge the selection. The selected candidates were, however, not impleaded as respondents in the writ petition and attempt to implead them at this stage is bound to prejudice them. They have now been in service for 0 more than eight years and respondent no. 4 has even been holding a promotional post for some time. We do not think in such a situation there would be any justification to allow challenge to the recruitment of the respondents. At the same time the State had no justification to keep out the appellant from consideration. Tne appellant was entitled -+ to be considered for recruitment in 1980 and since his claim had been E overlooked without justification, the State and the Haryana Public

Service Commission are bound to consider his case now on the basis that he was entitled to recruitment in 1980. -

Reliance was placed by Mr. Rao on some decisions of the this Court, as to. the nature of relief that can be granted in a case of this f type. We do not think in the facts of this case, the ratio of the decisions can be applied as a guideline.

fi It has been brought to our notice that an enquiry was undertaken ...._,

by Government against some of the selected candidates on the allegation that forged/false certificates had been produced by them in sup- G port of qualification/eligibility and in the enquiry a prime facie case ... had been made out. We express no opinion about it as it shall be for the State Government to deal with the question and the appellant's appeal has nothing to do with it.

The appeal is allowed, the order of the learned Single Judge as H also the appellate order are vacated and the State Government and the

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MOHINDER SINGH v. STAIB OF HARYANA (MISRA, J.] 443

Public Service Commission are directed to consider the appellant's claim for recruitment on the basis of the notification for recruitment.

In case the appellant is found qualified, he shall be selected for the post and duly appointed. The question of appellant's seniority is left open to be dealt with by the State Government in consultation with the Public Service Commission. The appellant shall have the cost of the appeal. Hearing fee is assessed at Rs.3,000 to be recovered from the Respondent-State only.

R.S.S.

Appeal allowed.