{"id":147508,"date":"1984-02-17T00:00:00","date_gmt":"1984-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramendra-singh-vs-jagdish-prasad-and-ors-on-17-february-1984"},"modified":"2016-04-16T14:28:52","modified_gmt":"2016-04-16T08:58:52","slug":"ramendra-singh-vs-jagdish-prasad-and-ors-on-17-february-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramendra-singh-vs-jagdish-prasad-and-ors-on-17-february-1984","title":{"rendered":"Ramendra Singh vs Jagdish Prasad And Ors on 17 February, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramendra Singh vs Jagdish Prasad And Ors on 17 February, 1984<\/div>\n
Equivalent citations: 1984 AIR 885, \t\t 1984 SCR (2) 598<\/div>\n
Author: R Misra<\/div>\n
Bench: Misra, R.B. (J)<\/div>\n
           PETITIONER:\nRAMENDRA SINGH\n\n\tVs.\n\nRESPONDENT:\nJAGDISH PRASAD AND ORS.\n\nDATE OF JUDGMENT17\/02\/1984\n\nBENCH:\nMISRA, R.B. (J)\nBENCH:\nMISRA, R.B. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1984 AIR  885\t\t  1984 SCR  (2) 598\n 1984 SCALE  (1)372\n\n\nACT:\n     Civil service  : persons  not  qualified  appointed  to\nhigher posts  to meet  emergent situation-If  could be given\nseniority over persons appointed under rules subsequently.\n\n\n\nHEADNOTE:\n     In connection  with  the  execution  of  a\t World\tBank\nProject on  an emergency  basis, which\twas required  to  be\ncompleted within  a short  time, the Public Works Department\nof the\tState needed a number of mechanical overseers. Since\nat that time there was acute shortage of qualified overseers\nthe Department\thad appointed,\tas overseers  on provisional\nbasis against the sanctioned posts, certain persons who were\nworking in  the department as sub-overseers even though they\nhad only  appeared in the diploma examination in engineering\nbut had\t not yet passed it. In the meantime, the respondents\n(petitioners before  the High  Court)  were  selected  by  a\nSelection  Committee   constituted  in\taccordance  with  he\nprocedure laid\tdown in\t Bihar Public Works Department Code.\nAfter they passed the diploma examination the Chief Engineer\nhad in 1964 appointed the appellants (contesting respondents\nbefore the  High Court)\t as temporary  overseers against the\nsanctioned posts  from the date of publication of results of\nthe diploma  examination. In  1973,  a\tgradation  list\t was\nprepared  and  some  of\t the  appellants  were\tsubsequently\npromoted to higher posts.\n     The respondents  in a  writ petition  filed in the High\nCourt  had   impugned  the   order  of\tthe  Chief  Engineer\nappointing the appellants reproductively as overseers on the\nground that  while they\t were appointed\t after following the\nprocedure prescribed  under the rules, the appellants at the\ntime  of   their  appointment\tas  overseers  were  neither\nqualified  to  be  appointed  as  overseers  nor  were\tthey\nselected by  a Selection  Committee  constituted  under\t the\nrules and  that in  any event  the appellants  could not  be\nappointed with\tretrospective effect.  Secondly, though\t the\nappellants shown  as seniors to the respondents by the Chief\nEngineer's orders  of 1964,  the  appellants  were  in\tfact\njunior to them and that their later promotion was improper.\n     The High  Court held  that the  Public Works Department\nCode  in   accordances\twith   which  the  respondents\twere\nrecruited    directly\t contained    merely\tdepartmental\ninstructions and had not acquitted statutory force and that,\ntherefore, the\tappointment of\tthe appellants\tcould not be\nheld to\t be invalid on the ground that the department had no\npower to  make retrospective  appointments. It\thowever held\nthat the  revised gradation  list,  showing  the  appellants\nabove the  respondents, on  the basis of the 1964 orders was\nbad in\tlaw. Consequently,  the High Court quashed that part\nof the two orders which had fixed the date of publication of\nthe result  of diploma\texamination as\tthe commencement  of\nlength of service of temporary overseers.\n599\n     In appeal\tto this\t Court is was contended on behalf of\nthe appellants\tthat since  the executive power of the State\nis co-extensive\t with its  legislative power, in the absence\nof  a  statutory  rule\tframed\tunder  Article\t309  of\t the\nConstitution, it  was open  to the executive, in exercise of\nits executive  power under  Art. 162 of the Constitution, to\nmake appointment to meet the exigencies of a situation.\n     Dismissing the appeal,\n^\n     HELD: The\timpugned order\tof 1964\t which purported  to\nappoint the  sub-overseers as  temporary overseers  from the\ndate of\t publication of\t their result of diploma examination\nare  clearly   violative  of  Articles\t14  and\t 16  of\t the\nConstitution inasmuch  as the  respondents had\talready been\nappointed as  overhears by a Selection Committee constituted\nunder the  rules contained  in the  public Works  Department\nCode.  The  1964-order\tmaking\tthe  temporary\tappointments\nconferred national  seniority  on  the\tappellants  for\t the\nperiod they  are actually  working as  sub-overseers in\t the\nlower scales  outside the  cadre of  overseers. The impugned\norders may  not have  resulted in  reduction of rank but yet\nthey did  affect the  seniority\t of  the  respondents  which\neventually  might  result  in  reducing\t their\tchances\t for\npromotion. [613 D-F]\n     There is  no gain-saying  the fact\t that the  executive\npower of  the State  is co-extensive  with  the\t legislative\npower and  that it  is not  necessary that there should be a\nlaw in existence before the executive is enabled to function\nand the\t power of  the executive  is limited  merely to\t the\ncarrying out  of the  laws. There  is nothing  in  terms  of\nArticle 309  which abridges  the powers\t of the executive to\nact under  Article 162 of the Constitution without a law but\nyet if\tthere is  a statutory rule or an Act on a matter the\nexercise of  its executive  power under\t Art. 162, ignore or\nact contrary to that Rule or Act.. [609 B-C]\n     B.N. Nagarajan  & Ors. v. State of Mysore & Ors.<\/a> [1966]\n3 SCR  682; Ram Jawaya Kapur v. State of Punjab [1955] 2 SCR\n225; Rajendra  Narain Singh  & Ors. v. State of Bihar & Ors.\n[1980] 3  SCR 450;  S.B. Patwardhan's  case [1977] 3 SCR 775\nand R.N.  Nanjundappa v. T. Thimmiah & Anr.<\/a>[1972] 2 SCR 799,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 308-
\n313 Of
\n\t\t\t    1977<\/span>
\n     Appeals by\t Special leave\tfrom the  Judgment and Order
\ndated the  8th September,  1975 of  the Patna  High Court in
\nC.W.J.C. Nos. 1419\/73, 467\/74 and 522 of 1974.\n<\/p>\n
     L.N. Sinha, R.P. Singh, R.K. Jain, Suman Kapur, for the
\nAppellant in CA.No. 308 of 1977.\n<\/p>\n
     R.K. Garg. R.P. Singh, R.K. Jain & Suman Kapur, for the
\nAppellant in CA. 309 of 1977.\n<\/p>\n
600<\/span><\/p>\n
     R.K.Jain for the Appellant in CA. 310\/77.\n<\/p>\n
     L.N. Singh\t and D.Gourdhan\t for the  Appellant in\tCAs.
\n311-13
\n     L.N. Sinha,  D. Goburdhan\tfor Respondents\t 3-7 in\t CA.
\n308\/77 and  for Respondents  Nos. 2-6  in CA.  309\/77 &\t for
\nRespondents 2 to 4 in CA No. 310\/77.\n<\/p>\n
     M.K. Ramamurthi D.P. Mukherjee for Respondents 12-13 in
\nCA. No. 308\/77 & RR 9-10 in CA. 310\/77.\n<\/p>\n
     U.S. Prasad for Respondent No. 4 in CA. 309\/77.
\n     G.L. Sanghi, Radha Mohan & M.L. Verma for RR. 1, 2 & 16
\nin CA. 309\/77 & for R-11 in CA. 310 of 1977.\n<\/p>\n
     Jaynarain, R.P.  Singh, R.K.Jain  &  Suman\t Kapoor\t for
\nRespondents in CA. 311-313 of 1977.\n<\/p>\n
     A.K. Sen, Radha Mohan Prasad & M.L. Verma for RR. 1 & 2
\nin CA. 313 of 1977.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     MISRA, J.\tThis bunch  of appeals is directed against a
\ncommon judgment\t and order of the Patna High Court dated 8th
\nSeptember, 1975\t allowing three\t petitions under Art. 226 of
\nthe Constitution in part.\n<\/p>\n
     The  material   facts  to\tbring  out  the\t points\t for
\nconsideration in  these appeals lie in a narrow compass. The
\nPublic Works Department in Bihar had a very small mechanical
\norganisation. In  1962, however,  it undertook the execution
\nof a  World Bank  project. In  that connection\ta number  of
\nmechanical overseers  were needed.  As the project had to be
\nexecuted on an emergency basis within a short time and
\n601<\/span>
\n`there being dearth of qualified overseers, persons who were
\nworking only as sub-overseers or persons who had appeared at
\nthe diploma  examination in  engineering, but had not passed
\nthe same,  were appointed  against the sanctioned posts on a
\nprovisional basis.  There were\tsome others  who  were\talso
\nappointed as  mechanical overseers on temporary basis in the
\nWorld Bank  project, a\twing of the Public Works Department,
\nafter  appearing   before   a\tselection   committee\tduly
\nconstituted according  to r.1,\tAppendix  II  of  the  Bihar
\nPublic Works  Department Code, Ist Edn., 1958, Vol. II. This
\nrule reads:\n<\/p>\n
\t  “All\t permanent   appointments   to\t the   Bihar
\n     Subordinate Engineering Service either by absorption of
\n     temporary or  work-charged Overseers and Estimators, or
\n     by direct\trecruitment,  will  be\tmade  by  the  Chief
\n     Engineer,\tprovided   that\t in   the  case\t  of  direct
\n     recruitment (permanent  or temporary)  appointment will
\n     be made  on the  advice  of  the  committee  of  senior
\n     officers constituted  for the  purpose.  The  committee
\n     will constituted  for the\tpurpose. The  committee will
\n     consist of\t three members including the Chief Engineer,
\n     who will  be the  Chair man of the committee. The other
\n     two members  will be nominated by him with the approval
\n     of the  Government in  the Public Works Department from
\n     time to time”.<\/p><\/blockquote>\n
     The Chief Engineer by orders dated 18th August and 26th
\nSeptember,  1964   appointed  among   others  the  following
\npersons, already  working as sub-overseers in the department
\nas temporary overseers against the sanctioned posts on their
\npassing the diploma examination from the date of publication
\nof their  results of  the diploma  in  mechanical\/electrical
\nengineering examination:\n<\/p>\n
     1.\t Ramendra Singh\n<\/p><\/blockquote>\n
     2.\t Keshav Singh\n<\/p><\/blockquote>\n
     3.\t Bhola Nath Chaudhary\n<\/p><\/blockquote>\n
     4.\t Awadesh Kumar Singh\n<\/p><\/blockquote>\n
     5.\t Rajeshwar Sinha\n<\/p><\/blockquote>\n
     6.\t Ram Chandra Prasad\n<\/p><\/blockquote>\n
     7.\t Udai Narain Singh\n<\/p><\/blockquote>\n
     8.\t Sunil Kumar\n<\/p><\/blockquote>\n
     9.\t Rajnandan Pd. Singh\n<\/p><\/blockquote>\n
     10. Gopal Ram\n<\/p><\/blockquote>\n
     11. Sidh Nath Singh
\n602<\/span>\n<\/p><\/blockquote>\n
     12. Prem  Chand Prasad,  and many\tothers who  are\t not
\nparties here.<\/p><\/blockquote>\n
     It\t appears   that\t a  provisional\t gradation  list  of
\noverseers was prepared. Certain overseers who felt aggrieved
\nby the\tprovisional list  made various\trepresentations\t and
\neventually a  revised gradation\t list dated  17th  November,
\n1973 was prepared, Some of the aforesaid twelve persons were
\npromoted as  Mechanical Sub-Divisional\tofficers by an order
\ndated 13th March, 1974.\n<\/p>\n
     The revised  gradation list  dated 17th  November, 1973
\nand the\t two orders  dated 18th\t August and  26th September,
\n1964 appointing\t the aforesaid\ttwelve persons\tas temporary
\noverseers with retrospective effect and the order dated 13th
\nMarch, 1974  promoting\tsome  of  them\tas  Mechanical\tSub-
\nDivisional Offers  were challenged  by three  separate\twrit
\npetitions: (1)\twrit No.  1419 of  1973 filed by Shyam Dayal
\nPandey, (2) writ No. 467 of 1974 filed by Ful Chand, and (3)
\nwrit No.  522 of  1974 filed  by Jagdish Prasad and Mohammad
\nShamsuddin. The respondents in the three petitions including
\nthe aforesaid twelve persons were common, though differently
\nnumbered.\n<\/p>\n
     It would  be convenient  to identify  the parties\twith
\nreference  to\tthe  writ  petitions.  The  writ-petitioners
\ntherein will  be referred to herein after as the petitioners
\nand the\t above mentioned twelve persons, whose retrospective
\nappointment  has   been\t challenged,   as   the\t  contesting
\nrespondents.\n<\/p>\n
     The case  of the petitioners in the three petitions has
\nbeen that  they were  appointed as  mechanical overseers  on
\ntemporary basis\t in the\t World Bank  project, a\t unit of the
\nPublic Works  Department after\tappearing before a selection
\ncommittee duly\tconstituted according  to r.  1 referred  to
\nabove. The  appointment of  the\t contesting  respondents  by
\norders dated  18th August  and\t26th  September,  1964\twith
\nretrospective effect  has been challenged on the ground that
\nthey were temporary mechanical sub-overseers and had not got
\nthe requisite qualification for being appointed as overseers
\nnor did\t they appear before committee as required by r. 1 of
\nthe PWD\t Code and  in any  case they  could not be appointed
\nwith retrospective  effect. It\twas further pleaded that the
\ncontesting respondents were junior to the petitioners but in
\n603<\/span>
\nthe revised  gradation list  the contesting respondents were
\nshown above the\t   petitioners on the basis of the aforesaid
\ntwo orders  dated 18th\tAugust and 26th September, 1964. The
\npromotion  of\tsome  of   the\tcontesting   respondents  as
\nmechanical sub-divisional  officers was\t also  bad  on\tthat
\naccount.\n<\/p>\n
     The contesting  respondents as  well as  the  State  of
\nBihar filed  a return  justifying  the\tappointment  of\t the
\ncontesting respondents\tas well\t as the\t promotion given  to
\nsome  of  the  contesting  respondents\tas  mechanical\tsub-
\ndivisional officer.  On the  contentions of the parties, the
\nHigh  Court\t     formulated\t the  following\t points\t for
\nconsideration:\n<\/p>\n
     1.\t   Whether  the impugned  gradation  list  had\tbeen
\n\t  prepared in accordance with law?\n<\/p><\/blockquote>\n
     2.\t   Whether  the promotion  of various respondents on
\n\t  the basis of the said gradation list is justified?\n<\/p><\/blockquote>\n
     3.\t  Whether the appointment of the respondents was bad
\n\t  as they  had not  appeared  before  the  selection
\n\t  committee?\n<\/p><\/blockquote>\n
     4.\t   Whether  the orders\tdated 18th  August and\t26th
\n\t  September, 1964  appointing  the  respondents\t and
\n\t  some of  the petitioners  as\ttemporary  overseers
\n\t  from the  date of  publication of  their result of
\n\t  diploma in  mechanical\/electrical\t Engineering
\n\t  examination, are  justified and in accordance with
\n\t  law and  whether the same could have been made the
\n\t  basis for preparing the gradation list?<\/p><\/blockquote>\n
     While  supporting\t the   appointment   of\t  contesting
\nrespondents on merits two preliminary objections were raised
\non behalf  of the  contesting  respondents\t  about\t the
\nmaintainability of the writ petitions:\n<\/p>\n
     1.\t  None of the requisites of r. 1 of the PWD Code was
\n\t  complied with while\t  constituting the selection
\n\t  committee  and   this\t being\t the  position\t the
\n\t  petitioners themselves were not selected by
\n604<\/span>
\n\t  a duly constituted committee, and, therefore, they
\n\t  had no  right to  assail the gradation list and to
\n\t  challenge  the   appointment\tof   the  contesting
\n\t  respondents under Art. 226 of the Constitution.\n<\/p><\/blockquote>\n
     2.\t   The petitioners could not challenge the gradation
\n\t  list\twithout\t assailing  the\t orders\t dated\t18th
\n\t  August and  26th  September,\t1964  on  which\t the
\n\t  gradation list  was  based,  and  the\t petitioners
\n\t  could not  be allowed to assail those orders after
\n\t  a lapse of about 10 years and if they were allowed
\n\t  to  challenge\t  the  gradation   list\t that  would
\n\t  virtually amount to permitting the petitioners  to
\n\t  challenge those orders.<\/p><\/blockquote>\n
     The  High\t Court\toverruled   both   the\t preliminary
\nobjections. The first preliminary objection was overruled on
\nthe ground that the requirements of r. I of the PWD Code are
\nnot mandatory,\tthey are  merely  departmental\tinstructions
\nwhich  had   not  acquired   the  statutory  force  and\t the
\npetitioners could not be non-suited merely because there was
\nno compliance  of r.  1 of  the Code. The second preliminary
\nobjection was  also overruled  on the  grounds: (a) that the
\npetitioners had\t not prayed  for the  quashing of the entire
\norders but they were aggrieved only with that portion of the
\norders by  which the  contesting respondents  were appointed
\nretrospectively from  the date\tof the\tpublication  of\t the
\nresults\t of  diploma  in  mechanical\/electrical\t engineering
\nexamination, which affected the seniority of the petitioners
\nin the\trevised gradation list:(b) that the petitioners came
\nto know\t of the\t two orders  after the\tpreparation  of\t the
\nrevised gradation  list on  17th November,  1973 wherein the
\ncontesting respondents\twere placed  above the\tpetitioners;\n<\/p>\n
(c) that  the Court  was mainly\t concerned with\t the revised
\ngradation list,\t but with  a view  to find out the basis for
\npreparation of\tthe revised gradation list, the Court had to
\nexamine as  to whether\tthe retrospective appointment of the
\ncontesting respondents\tby the\taforesaid two  orders in the
\ncircumstances was  valid. If the Court holds that they could
\nnot have  been appointed  retrospectively that\twould simply
\nchange their position in the revised gradation list and that
\nwould  not   affect  the   appointment\tof   the  contesting
\nrespondents;  and   (d)\t that  ignoring\t the  claim  of\t the
\npetitioners on\tthe ground  of laches or delay is not a rule
\nof law but a rule of practice.\n<\/p>\n
     Coming to the merits, the appointment of the contesting
\nrespon-\n<\/p>\n
605<\/span><\/p>\n
dents was  challenged by  the petitioners on the ground that
\nthey had  not appeared\tbefore the  selection  committee  as
\nrequired by r. 1 and therefore their appointment was illegal
\nand at\tany rate they could not have been placed higher than
\nthe Petitioners in the revised gradation list.\n<\/p>\n
     The High  Court negatived\tthe contention\ton the\tself
\nsame ground  on which  the preliminary\tobjection No.  1 was
\noverruled. Rule\t I of the PWD Code was merely a departmental
\ninstruction and\t it had\t not acquired.\tthe statutory  force
\ntherefore, the\tappointment of\tthe  contesting\t respondents
\ncould not  be held to be invalid merely because they had not
\nappeared before\t the selection committee. Besides, there was
\nno such\t stipulation in\t their initial\torder of appointment
\nnor were  they called  for appearing  before  the  selection
\ncommittee.  Keshav   Singh  and\t Sunil\tKumar,\ttwo  of\t the
\ncontesting respondents\tand one\t Shyam Dayal  Pandey, one of
\nthe petitioners\t in one\t of the\t writ  petitions,  who\twere
\nplaced in  similar situation  as the  contesting respondents
\nwho were  placed in  similar  situation\t as  the  contesting
\nrespondents appeared  before the  selection committee but it
\nwas  due  to  some  misunderstanding  on  the  part  of\t the
\nExecutive  Engineer  (Workshop\tDivision)  under  whom\tthey
\nhappened to  be posted\talthough their\toriginal  letter  of
\nappointment contained  no such\tstipulation that  they would
\nhave to appear before the selection committee.\n<\/p>\n
     On the  crucial point-Whether the two orders dated 18th
\nAugust\tand   26th  September\t1964  making   retrospective
\nappointments were the various authorities cited before it.\n<\/p>\n
     The  Court\t further  held\tthat  the  petitioners\twere
\ninitially appointed  provisionally but\tafter they  appeared
\nbefore\tthe   selection\t committee   they   were   appointed
\ntemporally and,\t therefore, the\t services of the petitioners
\nfrom the  date of  their appointment  could be counted while
\nfixing their  seniority, whereas   those  of the  contesting
\nrespondents, who were provisionally appointed could not have
\nbeen counted  for fixing  their seniority. It also held that
\nthe  revised   gradation   list\t  showing   the\t  contesting
\nrespondents above  the petitioners  on the  basis of the two
\norders dated  18th August and 26th September 1964 was bad in
\nlaw.\n<\/p>\n
     Consequently, the\tHigh Court  quashed only  that\tpart
\nofeth
\n606<\/span>
\ntwo orders  which had  fixed the  date of publication of the
\nresult\tof   diploma  in  mechanical\/electrical\t engineering
\nexamination  as\t the  date  of\tcommencement  of  length  of
\nservices of temporary overseers. The seniority list prepared
\nin pursuance  of the order dated 17th November 1973, insofar
\nas it  relates to  the contesting  respondents vis-a-vis the
\npetitioners in\tthe three  petitions was  also quashed.\t The
\norder of  promotion of\tsome of\t the contesting respondents,
\nnamely, Ramendra  Singh,  Bhola\t Nath  Choudhary,  Rajeshwar
\nSinha, Ramchandra  Prasad and  Udai Narain  Singh  was\talso
\nquashed.\n<\/p>\n
     The contesting  respondents have  now come to challenge
\nthe order  of the High Court by special leave under Art. 136
\nof the Constitution. The State of Bihar has also filed three
\nseparate appeals  against the  same order  and for  the same
\nrelief.\n<\/p>\n
     The crucial  question for consideration in this case is
\nwhether\t the  appointment  of  the  contesting\trespondents,
\narrayed as  appellants in  the first batch of three appeals,
\nby the\ttwo orders  dated 18th\tAugust and  26th  September,
\n1964, with retrospective effect is bad in law.\n<\/p>\n
     Shri A.K. Sen along with Shri G.L. Sanghi appearing for
\nthe petitioners, now arrayed as respondents in these appeals
\nsupported  the\tjudgment  of  the  High\t Court.\t Their\tmain
\ncontention was\tthat  the  contesting  respondents  had\t not
\nacquired the  requisite qualification  on the  date of their
\nappointment and,  therefore,  their  appointment  by  orders
\ndated  16th   August  and   26th   September,\t1964,\twith
\nretrospective effect  was in  the teeth\t of r.\t1 of the PWD
\nCode,  and  in\tany  case  there  can  be  no  retrospective
\nappointment of\tthe contesting\trespondents from the date of
\npassing their  diploma examination  inasmuch as\t it affected
\nthe seniority  of the  petitioners in  the revised gradation
\nlist.\n<\/p>\n
     Shri  Lal\tNarain\tSinha  assisted\t by  She  R.K.\tGarg
\nappearing  for\t the  (petitioners)   contesting  respondent
\nappellants, raised the following three contentions:\n<\/p>\n
     1.\t  The impugned\torders are  about ten  years old and
\n\t  the  petitioners   could  not\t  be  permitted\t  to
\n\t  challenge those  orders after\t the lapse of such a
\n\t  long time.\n<\/p><\/blockquote>\n
607<\/span><\/p>\n
     2.\t  The High  Court itself  had made  a discrimination
\n\t  inasmuch as  the  writ  petitions  against  Keshav
\n\t  Singh and  Awadesh Kumar  Singh have\talready been
\n\t  dismissed.\n<\/p><\/blockquote>\n
     3.\t  In the  absence of  any statutory  rule  or  rules
\n\t  framed under\tArt. 309 of the Constitution, it was
\n\t  open to  the Government  to make  appointments  to
\n\t  suit the exigencies of the situation.<\/p><\/blockquote>\n
     The High  Court has  given\t detailed  reasons  for\t not
\naccepting the  contention of  undue deal  in filing the writ
\npetitions. It  is not necessary to repeat those grounds over
\nagain. We  fully agree with the view taken by the High Court
\nthat the  writ petitions  filed by the petitioners could not
\nbe dismissed on the ground of laches.\n<\/p>\n
     As regards\t the second  contention of  Shri Lal  Narain
\nSingh, we  are of  the view that the mere fact that the writ
\npetitions have\tbeen  dismissed\t against  Keshav  Singh\t and
\nAwadesh Kumar  Singh, will not be a ground for setting aside
\nthe  impugned  order  of  the  High  Court.  The  contesting
\nrespondents have  to show  that the  two orders\t dated\t18th
\nAugust\tand   26th  September,\t 1964  making  retrospective
\nappointments were valid one.\n<\/p>\n
     As regards\t the third contention, Shri Lal Narain Sinha
\nsubmits that  the  executive  power  of\t the  State  is\t co-
\nextensive with\tits legislative\t power and  therefore if the
\nState can  pass an  enactment so  also it can pass orders in
\nexercise of its executive power, as contemplated by Art. 162
\nof the\tConstitution to\t suit the exigencies of a particular
\nsituation. In the instant case, as stated earlier, the World
\nBank project  was undertaken  by the  PWD in  1962. A  large
\nnumber of  mechanical overseers\t were needed  as the project
\nhad to\tbe executed  on emergency  basis within a short time
\nand there  being dearth\t of qualified hands persons who were
\nworking only  as sub-overseers\tor who\thad appeared  at the
\ndiploma\t examination  but  had\tnot  passed  were  appointed
\nagainst sanctioned  posts and were permitted to draw the pay
\nscale of  overseers from  the date  of the  passing  of\t the
\ndiploma examination.\n<\/p>\n
     There is  no denying  the fact that the executive power
\nof the
\n608<\/span>
\nState is  in no way narrower than the legislative power. But
\nthe question  is whether in exercise of that power the State
\nin violation  of Art.  16 of  the  Constitution\t could\tmake
\nretrospective appointment  of the  contesting respondents in
\nthe  instant   case  so\t  as  to  affect  seniority  of\t the
\npetitioners.\n<\/p>\n
     For the  respondents reliance  was placed\ton State  of
\nPunjab v.  Kishan Dass.\t In<\/a> that  case pursuant\t to  certain
\ncharges against\t a police  constable his entire service with
\npermanent effect  was forfeited,  which meant  reducing\t his
\nsalary\tto   the  starting  point  in  the  time  scale\t for
\nconstables. The\t constable challenged  the order by filing a
\nregular suit.  The two courts below decreed the suit holding
\nthat there  was flagrant  violation of\tArt. 311  (2) of the
\nConstitution as\t the impugned order amounted to reduction in
\nrank. This  Court interpreted  the expression  ‘reduction in
\nrank’ and held:\n<\/p>\n
\t  “The\texpression   ‘reduction\t in   rank’  in\t the
\n     article, therefore\t means reduction  from a higher to a
\n     lower  rank   or  post   when  imposed  as\t a  penalty.
\n     Therefore, an  order forfeiting  the past service which
\n     has earned\t a government servant increments in the post
\n     or rank  he  holds,  however  adverse  it\tis  to\thim,
\n     affecting his  seniority within  the rank\tto which  he
\n     belongs, or  his future  chances of  promotion does not
\n     attract the article. His remedy, therefore, is confined
\n     to the rules of service governing his post.”<\/p><\/blockquote>\n
     The impugned  orders in  the instant  case may not have
\nresulted in reduction of rank but all the same they affected
\nthe seniority  of the  petitioners  which  eventually  might
\nresult in reducing their chances for promotion.\n<\/p>\n
     Reliance was  next placed\ton B.N.\t Nagarajan & Ors. v.
\nState of Mysore & Ors. One of the<\/a> arguments advanced in that
\ncase was  that till  the rules\tare made  in that  behalf no
\nrecruitment could be made to any service. This argument was,
\nhowever, repelled by this Court, firstly because, it was not
\nobligatory under  proviso to  Art.  309\t to  make  rules  of
\nrecruitment, etc. before a service could be constituted or a
\n609<\/span>
\npost created  or filled;  secondly the\tState Government had
\nexecutive power\t in relation  to all matters with respect to
\nwhich the  legislature of the State has power to make rules;
\nand it follows from this that the State Government will have
\nexecutive power\t in respect  of List  II,  Entry  41,  State
\npublic Services.  Relying on  Ram Jawaya  Kapoor v. State of
\nPunjab. Ram  was held  that it\twas not necessary that there
\nshould be a law already in existence before the executive is
\nenabled to  function and  that the  powers of  the executive
\nwere limited merely to the carrying out of these laws. There
\nwas nothing  in the  terms of  Art. 309\t of the Constitution
\nwhich abridges\tthe power of the executive to act under Art.
\n162 of\tthe Constitution  without a law. The Court, however,
\nput a  word of\tcaution\t in  mentioning\t that  if  there  is
\nstatuary rule  or an  Act on  the matter, the Executive must
\nabide by  that Act  or rule  and it could not in exercise of
\nexecutive power under Art. 162 of the Constitution ignore or
\nact contrary to that rule or Act.\n<\/p>\n
     The second\t contention in\tthe above  case was that the
\nExecutive could\t not frame  rules retrospectively unless the
\nAct specifically  empowers it to do so. This Court, however,
\nrefrained from\tdeciding this point because in their opinion
\nthe appeal  could be  disposed of  on another  ground.\tThis
\nCourt observed\tthat assuming  for the sake of argument that
\nthe  Mysore   State  Government\t  could\t  not\tmake   rules
\nretrospectively and  that the rules were thus void so far as
\nthey operated  retrospectively, proceeded  to  ignore  those
\nrules and  to  examine\twhether\t the  appointments  made  on
\nOctober 31,  1961 could\t be upheld.  The Court\tcame to\t the
\nconclusion that\t those appointments  could be  considered to
\nhave been validly made in exercise of the executive power of
\nthe State under Art. 162 of the Constitution.\n<\/p>\n
     For the appellants strong reliance was also placed upon
\nRajendra Narain Singh & Ors. v. State of Bihar & Ors. It was
\nlaid  down   in\t that  case  that  in  the  absence  of\t any
\nlegislation on\tthe subject  or\t a  rule  framed  under\t the
\nproviso\t to   Art.  309\t  of  the  Constitution,  the  State
\nGovernment  could   regulate  its  public  services  in\t the
\nexercise of its executive power. In the above case there was
\nno statute  or any  rule framed\t under the provision to Art.
\n309  to\t determine  the\t seniority  as\tbetween\t the  direct
\nrecruits  and\tthe  promotees.\t The  determination  of\t the
\nseniority on the
\n610<\/span>
\nbasis of  continuous officiation was held to be valid on the
\nbasis of the decision in S.B. Patwardhan’s case. There is no
\ngainsaying the fact that the executive power of the State is
\nco-extensive with  the legislative  power, but\twhether\t the
\nexercise of the power can be in such a way as to offend Art.
\n16 of the Constitution. The retrospective appointment of the
\nrespondents in\tthe aforesaid  writ petitions  affected\t the
\nseniority of the respondents.\n<\/p>\n
     This question, however, need not detain us as the point
\nin question  is covered by R.N. Nanjundappa v. T. Thimmiah &
\nAnr. In<\/a>\t that case  the respondent  Thimmiah  was  appointed
\nthrough\t the  Public  Service  Commission  as  an  Assistant
\nGeologist  in  the  Department\tof  Geology  in\t the  Mysore
\nGovernment in  1951 in the grade of Rs. 125-10-175. When the
\nKolar Gold  Fields School  of Mines  was set up in July 1957
\nthe respondent was sent on deputation for two years as Vice-
\nprincipal of the School of Mines. When the then Principal of
\nthe School  of Mines,  who was employed on a part time basis
\non an  allowance of  Rs. 200\/-\tleft on\t 22nd July 1958, the
\nrespondent who\twas Vice-Principal  and was  also doing\t the
\nduties of  Principal since 15th February 1958, was appointed
\nas officiating Principal with effect from 22nd July, 1958 in
\nthe  grade   of\t Rs.  500-30-800  by  an  order\t dated\t25th
\nSeptember, 1958.  On 3rd April, 1959 the State Government in
\nmodification of\t the notification dated 25th September, 1958
\nappointed the  respondent as temporary officiating Principal
\nwith effect  from 15th\tFebruary, 1958. The Mysore Education
\nDepartment Service Rules 1967 regularised the appointment of
\nthe respondent. The relevant portion of the Rules reads:\n<\/p>\n
     “Notwithstanding any  rule made  under the\t proviso  to
\narticle 309 of the Constitution of India, or any other rules
\nor Order  in force  at any  time,  Dr.\tT.  Thimmiah,  B.Sc.
\n(Hons.) Ph.D.  (Lond.) F.G.S.  shall be\t deemed to have been
\nregularly appointed  as Principal, School of Mines, Oragaum,
\nKolar Gold Fields, with effect from 15-2-1958.”\n<\/p>\n
     This rule\twas challenged\tby the appellants on various
\ngrounds:\n<\/p>\n
611<\/span><\/p>\n
     (a)  That the  respondent was  governed by\t the  Mysore
\n\t  Service Regulations,\t1943, the Mysore State Civil
\n\t  Services General  Recruitment) Rules, 1957 as well
\n\t  as  the   Mysore  Education\tDepartment  Services
\n\t  (Technical  Education\t  Department)  (Recruitment)
\n\t  Rules, 1964.\n<\/p><\/blockquote>\n
     (b)  That the  respondent was  in Class III service and
\n\t  his  appointment   by\t the   impugned\t  regulation
\n\t  amounted to  his promotion  from Class III service
\n\t  to Class I. If so, it is hedged by two limitations
\n\t  as contemplated by sub-clauses (a) and (b) of rule
\n\t  4 (3)\t of the\t Mysore State  Civil Services Rules,
\n\t  1957, i.e.  (1) it has to be on the basis of merit
\n\t  and suitability  with due regard to seniority from
\n\t  among persons\t eligible for  promotion, and (2) it
\n\t  has to be on the basis of seniority-cum-merit from
\n\t  among persons eligible for promotion.<\/p><\/blockquote>\n
     The stand\tof the\trespondent, however, was that (1) he
\nwas  a\tlocal  candidate  in  service  and,  therefore,\t the
\naforesaid rules\t did not apply to him and the regularisation
\nof his\tappointment was\t valid; (2)  under Art.\t 162 of\t the
\nConstitution regularisation  would in  itself be  a mode  of
\nexercise  of   power  of   appointment\tof   the   Executive
\nGovernment. Such an appointment even if made in the shape of
\nrules under  Art. 309 could not be attacked on the ground of
\nbeing made  for one  person just  as a\tpiece of legislation
\ncould not  be attacked\ton the\tground of  being made  for a
\nparticular person or entity.\n<\/p>\n
     The  High\t Court\tcame  to  the  conclusion  that\t the
\nappointment of\tthe respondent\tcould  be  regularised\twith
\neffect from  any date as he was a local candidate within the
\nmeaning of the Mysore Government Seniority Rules, 1957. This
\nCourt in  appeal, however, reversed the judgment of the High
\nCourt and observed:\n<\/p>\n
\t  “No one  can deny  the power\tof the Government to
\n     appoint. If  it were a case of direct appointment or if
\n     it were  a\t case  of  appointment\tof  a  candidate  by
\n     competitive  examination  or  if  it  were\t a  case  of
\n     appointment by selection recourse to rule under Article
\n     309 for  regularisation would  not be necessary. Assume
\n     that rules\t under Article\t309 could be made in respect
\n     of\t appointment   of  one\t man  but   there  are\t two
\n     limitations. Article 309 speaks of
\n612<\/span>
\n     rules  for\t  appointment  and   general  conditions  of
\n     service. Regularisation  of appointment by stating that
\n     notwithstanding   any    rules   the   appointment\t  is
\n     regularised strikes at the root of the rules and if the
\n     effect  of\t  the  regularisation\tis  to\tnullify\t the
\n     operation and  effectiveness of  the  rules,  the\trule
\n     itself is open to criticism on the ground that it is in
\n     violation of  current  rules.  Therefore  the  relevant
\n     rules  at\t the  material\ttime  as  to  promotion\t and
\n     appointment are infringed and the impeached rule cannot
\n     be permitted to stand to operate as a regularisation of
\n     appointment of  one person\t in utter  defiance of rules
\n     requiring consideration  of seniority  and merit in the
\n     case of  promotion and  consideration of appointment by
\n     selection or by competitive examination”.<\/p><\/blockquote>\n
     The  Court\t  gave\tfurther\t  reasons  for\tholding\t the
\nregularisation to be bad in law. It observed:\n<\/p>\n
\t  “This regularisation\tis  bad\t for  the  following
\n     reasons, First,  regularisation is not itself a mode of
\n     appointment. Secondly,  the modes\tof  appointment\t are
\n     direct  recruitment   or  selection   or  promotion  or
\n     appointing for  reasons to\t be recorded  in writing  an
\n     officer holding  a post  of  an  equivalent  grade,  by
\n     transfer, from  any other\tservice of  the\t State.\t The
\n     Government\t did   not  contend  it\t to  be\t a  case  of
\n     promotion. If  it were a case of promotion it would not
\n     be valid  because it  would be  a promotion  not on the
\n     basis of  seniority-cum-merit but\ta promotion  of some
\n     one who  was in  Class III to Class I. Even with regard
\n     to appointment  under rule\t 16 by\ttransfer of a person
\n     holding an\t equivalent grade  the appointment  would be
\n     offending the  rules because  it would  not be transfer
\n     from an  equivalent grade.\t Again, merit  and seniority
\n     could not be disregarded because the respondent was not
\n     in the  same class\t as the\t Principal of  the School of
\n     Mines. The\t pay of\t the Principal was Rs. 500-800 where
\n     as the  respondent was  getting a\tsalary of Rs. 165 in
\n     the grade of Rs. 125-165 plus an allowance of Rs. 75”.<\/p><\/blockquote>\n
     The Court\talso brought out the distinction between the
\nscope of  Art. 309  and Art.  162 of  the  Constitution.  It
\nobserved:\n<\/p>\n
613<\/span><\/p>\n
\t  “There were  1957 rules which spoke of appointment
\n     by\t competitive  examination  or  by  selection  or  by
\n     promotion. Even  if specific  rules of  recruitment for
\n     such services  were not made the rule as to appointment
\n     by competitive examination or Selection or by promotion
\n     was  there.  Article  162\tdoes  not  confer  power  of
\n     regularisation. Article  162 does\tnot confer’ power on
\n     the Government  to make  rules for\t the recruitment  or
\n     conditions of service. Rules are not for the purpose of
\n     validating\t an   illegal  appointment   or\t for  making
\n     appointments or  promotions or  transfer.\tRules  under
\n     Article 309  are for  the purpose\tof laying  down\t the
\n     conditions\t of   service  and  recruitment.  Therefore,
\n     regularisation by the way of rules under Article 309 in
\n     the  present   case  by  stating  that  notwithstanding
\n     anything in the rules the appointment of the respondent
\n     was being\tregularised was\t in itself  violation of the
\n     rules as  to appointment and as to cadre and also as to
\n     the proper selection”.\n<\/p><\/blockquote>\n
In view of this clear authority, it cannot be argued for the
\nappellants that\t they could  be appointed with retrospective
\neffect so as to affect the seniority of the respondents. The
\norders dated  18th August  and 26th  September,\t 1964  which
\npurported to  appoint the  sub-overseers  named\t therein  as
\ntemporary overseers  from the  date of\tPublication of their
\nresult of diploma examination are clearly violative of Arts.
\n14 and\t16 of  the Constitution\t inasmuch as the petitioners
\nhad  already   been  appointed\tas  overseers  by  selection
\ncommittee constituted  under the  rules contained  in P.W.D.
\nCode. The  order of  temporary appointment  by the  impugned
\norders dated  18th August and 26th September, 1964 conferred
\nnational seniority  on the  contesting respondents  for\t the
\nperiod while  they were actually working as sub-overseers in
\nthe lower  scale outside  the cadre  of overseers.  The High
\nCourt in  our opinion  was fully  justified in\tallowing the
\nwrit petitions in part.\n<\/p>\n
     For the reasons given above the appeals must fail. They
\nare accordingly dismissed. In the circumstances of the case,
\nhowever, we allow the parties to bear their own costs.\n<\/p>\n
P.B.R.\t\t\t\t\t  Appeals dismissed.\n614<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramendra Singh vs Jagdish Prasad And Ors on 17 February, 1984 Equivalent citations: 1984 AIR 885, 1984 SCR (2) 598 Author: R Misra Bench: Misra, R.B. (J) PETITIONER: RAMENDRA SINGH Vs. RESPONDENT: JAGDISH PRASAD AND ORS. DATE OF JUDGMENT17\/02\/1984 BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J) CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-147508","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamendra Singh vs Jagdish Prasad And Ors on 17 February, 1984 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramendra-singh-vs-jagdish-prasad-and-ors-on-17-february-1984\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramendra Singh vs Jagdish Prasad And Ors on 17 February, 1984 - 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