PETITIONER:
STATE OF JAMMU & KASHMIR
Vs.
RESPONDENT:
RAJ DULARI RAZDAN & ORS.
DATE OF JUDGMENT15/12/1978
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
KRISHNAIYER, V.R.
KAILASAM, P.S.
DESAI, D.A.
KOSHAL, A.D.
CITATION:
1979 AIR 586 1979 SCR (2) 870
1979 SCC (1) 461
ACT:
Jammu and Kashmir Constitution-Section 133(2) (b),
interpretation -Whether consulting the Public Service
Commission is mandatory.
HEADNOTE:
The appellant State Government's Order No. 643-HTE
dated July 25, 1969 promoting certain professors was quashed
by the High Court of Jammu & Kashmir while allowing the Writ
Petition No. 124/69 filed by the respondent.
Leaving out the merits for decision by another Bench of
this Court.
^
HELD : 1. What clause (b) of sub-section (2) of s. 133
of the Jammu & Kashmir Constitution requires is that the
Commission shall be consulted: (i) on the principles to be
followed in making appointments to civil services and posts
and in making promotions and transfers from one service to
another and (ii) on the suitability of candidates for such
appointments, promotions or transfers. No other
interpretation is really permissible on the plain language
of the clause. It is not provided by s. 133 of the
Constitution that all the members of the Commission should
have interviewed all or any of the candidates, or that it
was not permissible for the Commission to entrust the
selection to a committee consisting of only one of its
members, so long as the Commission reserved to itself the
right to approve or disapprove the committee's report and
actually discharged that constitutional responsibility. [872
F-H, 874 B-C]
2. The question whether the requirement for consulting
the Commission is mandatory or not does not arise in this
case. [873 A].
3. The High Court erred in holding that the Commission
was not consulted in the manner required by s. 133 of the
Jammu & Kashmir Constitution and in regard to the principles
to be followed in making the promotions to the posts of
professors on the suitability of selected candidates for the
promotions. [873 B, 874 D-E]
On the facts which have been brought on the record it
is established that (a) the Commission was consulted in
regard to the principles to be followed in making the
promotions to the posts of professors as laid down in the
"Jammu & Kashmir Professors of Colleges (Selection) Rules,
1969", and [873 C-D].
(b) the Commission was consulted on the suitability of
the candidates for promotion as professors and the second
requirement of clause (b) of sub-section (2) of s. 133 was
also complied with, since the selection of the respondents
(to the Writ Petition) was made on the recommendation of the
Public Service Commission after their names were sent
strictly in order of seniority as per direction of the
Commission, after they had been interviewed and examined by
the Selection Committee, formed and presided over by one of
the members of the Commission as Chairman. [873 F-H, 874 A]
871
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 246 of
1973.
Appeal from the Judgment and Order dated 1-11-1971 of
the Jammu and Kashmir High Court in W.P. No. 124/69.
S. V. Gupte, Attorney General, Altaf Ahmed for the
Appellant.
L. N. Sinha, K. P. Gupta, D. B. Tawkley and Vineet
Kumar for RR 1-21, 23, 25, 27 to 29 and 31-38.
G. L. Sanghi, R. K. Mehta and Miss Uma Mehta for RR 55
and 72.
S. S. Khanduja for RR 53.
The Judgment of the Court was delivered by
SHINGHAL J.-This appeal by certificate is directed
against the judgment of the High Court of Jammu and Kashmir
dated November 1, 1971, in writ petition No. 124 of 1969.
That petition was filed against the promotions of
respondents Nos. 1 to 46 and others as Professors in
supersession of the claims of the writ petitioners who
contended that they were senior and more qualified for
promotion. The High Court allowed the writ petition and
quashed the State Government’s Order No. 643-HTE dated July
25, 1969, in regard to the appointments of respondents Nos.
3 to 46 and directed that it would be open to the State
Government to make a fresh selection of Professors in
accordance with the law. A review petition was filed against
the judgment but was dismissed on September 14, 1972. The
State Government is aggrieved and has filed the present
appeal.
When the case was taken up for hearing on November 28,
1978. it was brought to our notice by counsel for the
respondents that it will not be possible for them to advance
their arguments with reference to article 16 of the
Constitution of India as the various sealed covers
containing the date on which the selections were made have
not been received from the High Court. Learned Attorney
General and the counsel for the respondents were in
agreement that as the constitutional point which arises for
consideration in this case relates to the interpretation of
section 133(2) (b) of the Constitution of Jammu and Kashmir,
hereinafter referred to as the Constitution, it will be
enough to consider, at this stage, whether that section has
been correctly interpreted and whether the Public Service
Commission for the State of Jammu and Kashmir, hereinafter
referred to as the Commission, has been consulted in
accordance with its requirement. We have accordingly heard
the arguments only on these two points, and will confine
872
ourselves to them, leaving the question of the applicability
of article 16 of the Constitution of India on the merits for
consideration by the Bench before which the case may be
taken up for hearing hereafter.
The controversy relates to the interpretation of clause
(b) of sub-section (2) of section 133 of the Constitution
which, when read with the other connected provisions,
provides as follows.-
“133 (2) The Commission shall be consulted-
(a) ……………
(b) on the principles to be followed in making
appointments to civil services and posts and
in making promotions and transfers from one
service to another and on the suitability of
candidates for such appointments, promotions
or transfers;
(c)…………….
and it shall be the duty of the Commission to advise on
any matter so referred to them or on any other matter
which the Governor may refer to them:
Provided that the Governor may make regulations
specifying the matters in which either generally or in
any particular class of cases or in any particular
circumstances, it shall not be necessary for the
Commission to be consulted.”
Although it has been urged in the written arguments of the
appellant that section 133(2) (b) was “not at all attracted
in the matters of making promotions in the same service”,
and its true and correct interpretation would be that “it is
applicable only to ‘making promotions and transfers from one
service to another’,” learned Attorney General has, with his
usual candour and fairness, stated that he does not find it
possible to support that contention. He has therefore argued
that what clause (b) of sub-section (2) of section 133
requires is that the Commission shall be consulted; (i) on
the principles to be followed in making appointments to
civil services and posts and in making promotions and
transfers from one service to another, and (ii) on the
suitability of candidates for such appointments, promotions
or transfers. He has urged that as this requirement of the
Constitution was duly complied with, the High Court erred in
taking a contrary view.
The interpretation put by learned Attorney General is
quite correct and we have no hesitation in approving it as
in our opinion no other interpretation is really permissible
on the plain language of the clause.
873
The question whether the requirement for consulting the
Commission is mandatory or not does not arise in this case,
because it is not disputed, and is in fact the case of the
appellant State, that the Commission was consulted. The
question which remains for consideration is whether this was
really so.
Learned counsel for the respondents was not able to
refer us to any averment in the writ petition that the
Commission was not consulted either in regard to the
principles to be followed in making the promotions in
question, or on the suitability of selected candidates for
the promotions. We have, all the same, gone through the
record, and we find that the State Government at first
framed rules on November 15, 1968, for selections to be made
to posts of Professors in the colleges. By Notification No.
SRO-161 dated March 25, 1969, those rules were replaced by
the rules made by the Governor specifically for the
appointment of Professors, which were called the “Jammu and
Kashmir Professors of Colleges (Selection) Rules, 1969.” It
has been specifically stated on behalf of the State that it
consulted the Commission under section 133 of the
Constitution, and as the writ petitioners have not ventured
to take a plea to the contrary, we have no hesitation in
holding, on the facts which have been brought on the record,
that the Commission was consulted in regard to the
principles to be followed in making the promotions to the
posts of Professors.
We have also examined the record to ascertain whether
the other requirement of clause (b) of sub-section (2) of
section 133 of the Constitution that the Commission shall be
consulted on the suitability of the candidates for
promotions to the posts of Professors, has been complied
with. The State Government has stated in its reply to the
writ petition that for every post of Professor, names of
four Lecturers, strictly in order of seniority, were sent to
the Commission “at its direction” and they were interviewed
and examined by the Selection Committee which was “formed”
by the Commission, and a member of the Commission was
appointed its Chairman. It has further been stated that the
commission’s recommendation for selection was made on the
basis of the marks obtained by the respondents (to the writ
petition) at the interviews and that the selection was also
made “on the basis of the recommendation of the Public
Service Commission” and there was “no deviation from the
merit list prepared by the Public Service Commission.” The
State Government has in fact placed on record the minutes of
the Commission dated July 22, 1969, which make it quite
clear that the State Government referred the selections to
the Commission, a Committee was appointed by the Commission
for that purpose, the Committee was
874
presided over by a member of the Commission, the report of
the Committee was formally submitted to the Commission under
the Chairman’s note dated June 2, 1969, and the Commission
then took its decision regarding the recommendation to be
made to the State Government for the appointments. The
Commission set out the reasons for its decision, and finally
made its recommendation on merits. The Commission was
therefore consulted on the suitability of the candidates for
promotion as Professors and the second requirement of clause
(b) of sub-section (2) of section 133 was also complied
with. It is not provided by section 133 of the Constitution
that all the members of the Commission should have
interviewed all or any of the candidates, or that it was not
permissible for the Commission to entrust the selection to a
committee consisting of only one of its members, so long as
the Commission reserved to itself the right to approve or
disapprove the committee’s report and actually discharged
that constitutional responsibility. No argument to the
contrary has in fact been urged for our consideration. Had
the Commission de facto abdicated its power in favour of
some committee composed of strangers to the Commission the
position might have been different. Here, it was not so.
It would thus appear that the High Court erred in
holding that the Commission was not consulted in the manner
required by section 133 of the Constitution and that the
selection made by it was invalid for that reason. With this
finding we shall have the rest of the case for decision by
the Bench concerned.
V.D.K. Appeal accepted, leaving
the merits for decision by
another Bench of the Court.
875