{"id":20731,"date":"1971-12-08T00:00:00","date_gmt":"1971-12-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-n-nanjundappa-vs-t-thimmiah-anr-on-8-december-1971"},"modified":"2018-01-22T17:40:45","modified_gmt":"2018-01-22T12:10:45","slug":"r-n-nanjundappa-vs-t-thimmiah-anr-on-8-december-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-n-nanjundappa-vs-t-thimmiah-anr-on-8-december-1971","title":{"rendered":"R. N. Nanjundappa vs T. Thimmiah & Anr on 8 December, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R. N. Nanjundappa vs T. Thimmiah & Anr on 8 December, 1971<\/div>\n
Equivalent citations: 1972 AIR 1767, \t\t 1972 SCR (2) 799<\/div>\n
Author: A Ray<\/div>\n
Bench: Ray, A.N.<\/div>\n
           PETITIONER:\nR.   N. NANJUNDAPPA\n\n\tVs.\n\nRESPONDENT:\nT.   THIMMIAH & ANR.\n\nDATE OF JUDGMENT08\/12\/1971\n\nBENCH:\nRAY, A.N.\nBENCH:\nRAY, A.N.\nPALEKAR, D.G.\n\nCITATION:\n 1972 AIR 1767\t\t  1972 SCR  (2) 799\n 1972 SCC  (1) 409\n CITATOR INFO :\n R\t    1979 SC1676\t (5)\n RF\t    1980 SC2086\t (7)\n F\t    1984 SC 885\t (27)\n\n\nACT:\nCivil  Service--state  Rules  providing\t for  'methods'\t  of\nrecruitment\t by\t selection,\t or\t competitive\nexamination--Appointment  of  Class III Officer to  Class  I\npost, in the absence of 'rules' of recruitment--Validiry--If\ncould be treated as appointment of 'local candidate'.\nConstitution   of  India,  1950,  Arts.\t 14,  16,  162\t and\n309--Appointment  if violative of Arts. 14 and 16--Scope  of\nArts. 162 and 309.\n\n\n\nHEADNOTE:\nIn  1957,  the respondent, who was working as  an  Assistant\nGeologist  in Class III Service, was sent on  deputation  as\nVice-Principal\tof  the School of Mines, in the\t State\tFrom\n15th  February,\t 1958, he was also doing the duties  of\t the\nPrincipal.    In  September,  1958,  the  State\t  Government\nappointed him as officiating Principal but on 3rd April 1959\nmodified   the\t order\tand  appointed\thim   as   temporary\nOfficiating  Principal with effect from the  15th  February,\n1958.  On 9th January, 1967, the Mysore Education Department\nService\t Rules were published by which appointment  of\tthe\nrespondent,  with effect from 15th February, 1958 was  regu-\nlarised.   The\tappellant,  who\t was  the  Principal  of   a\nGovernment  Polytechnic,  and  was  in\tClass  11   Service,\ncontended that the respondent's appointment was in breach of\nthe Mysore State Civil Services (General Recruitment) Rules,\n1957,\tand   the  Mysore  Education   Department   Services\n(Technical  Education Department Recruitment)  Rules,  1964,\nand offended Arts, 14 and 16 of the Constitution.\nThe  High  Court  held\tthat  the  respondent  was  a  local\ncandidate  within  the\tmeaning\t of  the  Mysore  Government\nSeniority  Rules, 1957, and therefore his appointment  could\nbe regularised with effect from any date.\nAllowing the appeal to this Court,\nHELD  :\t (1)  Rule  3 of the  Mysore  State  Civil  Services\n(General Recruitment) Rules, 1957, which were in force\tfrom\nFebruary 1, 1958, speaks of the method of recruitment to the\nState  Civil  Service  by  competitive\texamination,  or  by\nselection,  or by promotion.  The  respondent's\t appointment\nwas  not  by competitive examination nor was it\t a  case  of\ndirect\trecruitment either in the year 1958 or at any  time.\nIf  it\twere a case of direct recruitment there\t would\thave\nbeen  advertisements for the post, and candidate would\thave\nbeen selected on merit. [808 E-H]\n(2)The appointment of the respondent could not be said\tto\nbe  by promotion because, under r. 4 of the 1957  Rules,  it\nshould\tbe on the basis of merit and suitability or  on\t the\nbasis of seniority-cum-merit from among persons eligible for\npromotion.  Moreover, the State contended that it was not  a\ncase of promotion, but was a case of selection on the  basis\nthat  the respondent was the only person fit for  the  post.\n[806 E-G; 811 C-D]\n(3)It is true that the rules of recruitment were not  made\nuntil 1964. Even sothe\tthree'-methods of  recruitment\tare\nspecific.  If it is a case of electionit should have  been\nafter consulting the Public- Service commission orthe\nAdvisory   or  Election\t Committee,  or'   the\t ;appointing\nauthority,   and  should  have\tbeen  made  after   inviting\napplications.  'To say that the\n800\nappellant  was the only eligible candidate, is to  deny\t the\nrights of others to apply. [805 F; 808 E-H]\n(4)Rule\t 16 of the 1957 rules provides for  relaxation\tof\nrules relating to appointment and qualifications, and one of\nthe  instances\tof relaxation is when  the  Government,\t for\nreasons\t to  be\t recorded in writing,  appoints\t an  officer\nholding\t a  post of equivalent grade by\t transfer  from\t any\nother  service of the State.  But, in the present case,\t the\nrespondent did not belong to a grade which Could be said  to\nbe  equivalent, within the meaning of r. 8(1) of the  Rules,\nto that of the Principal of School of Mines.  Therefore,  it\ncould  not  be a case of transfer.  In fact,  the  rule\t was\nneither available, nor acted on the present case. [806\tG-H;\n807 A-C]\n(5)The\tState Government has no power to make a\t rule  for\nregular\t rising\t an  appointment  under\t Art.  309  of\t the\nConstitution,\tsince  the  Article  speaks  of\t rules\t for\nappointment   and  general  conditions\tof  service,   Regu-\nlarisation  of appointment by stating that  \"notwithstanding\nany  rules  the appointment is regularised\" strikes  at\t the\nroot  of existing rules prescribing promotion, selection  or\ncompetitive   examination   as\t methods   of\trecruitment.\nTherefore  the\tregularisation\twas  in\t violation  of\t the\nArticle. [808 A-D]\nChampaklal Chimanlal Shah v. Union of India,<\/a> [1964] 5 S.C.R.\n190 and State of Mysore v. Padmanabhacharya,<\/a> [1966] 1 S.C.R.\n994, referred\nto.\n(6)(a)\tThe  contention\t that a rule under  Art.  309  for\nregularisation\twould itself be a form of  recruitment\tread\nwith  reference\t to  the power under Art.  162\tis  unsound,\nbecause regularisation is not a form of appointment. [809 G]\n(b)In  the  present case, the regularisation  with  effect\nfrom February 15, 1958, notwithstanding any rules cannot  be\nsaid  to  be  in  exercise of  the  power  under  Art.\t162.\nArticles  162 and 309 operate in different areas,  and\twhen\nthe  Government acted under Art. 309 they cannot be said  to\nhave acted also Linder Art. 162 [809 G-H; 810 A-B]\n(c)If  the  appointment itself was in  infraction  of  the\nRules or in violation of the provisions of the Constitution,\nthe  illegality\t cannot\t be  regularised..  Ratification  or\nregularisation\tis  possible of an act which is\t within\t the\npower and province of the authority and there has been\tsome\nnoncompliance  with procedure which does not go to the\troot\nof the appointment.  Article 162 does not confer either\t the\npower of regularisation nor the power to make rules for\t the\nrecruitment  or conditions of service.\tThere may be a\trule\nfor person or one post, but rules are meant for\t recruitment\nand  conditions\t of  service, and not  for  the\t purpose  of\nvalidating  illegal appointments or promotions or  transfer.\n[810 B-D; 814 D]\nB.N.  Nagarajan & Ors. v.  State of- Mysore & Ors. [1966]\n3 S.C.R. 682, followed.\n(7)(a) The High Court erred in holding that the respondent\nwas a local candidate within the meaning of the 1957  rules.\nA  local  candidate is a temporary  government\tservant\t not\nappointed  regularly  as per rules of  recruitment  to\tthat\nservice.   But two government servants cannot  be  appointed\nsubstantively  to the same permanent post at the  same\ttime\nexcept\tas  a  temporary measure.  The\trespondent,  in\t the\npresent case, was a permanent government servant and was  on\ndeputation  having a lien on his post as Assistant  Lecturer\nGeology\t when  he was appointed to officiate  as  Principal.\nTherefore,  it\tcannot\tbe said that  he  was  substantively\nappointed  to the post of Principal.  If the respondent\t was\nappointed as\n801\na  temporary measure to the post of Principal, it would\t not\ntherefore  be  as  a local candidate, but  as  a  Government\nservant\t appointed to another post as a\t temporary  measure.\n[810 D-E; 813 A-C]\n(i)Moreover  the  orders  of  appointment  as  officiating\nPrincipal in September 1958 and the modified order in  April\n1959, state that proposals to fill the post by advertisement\nthrough\t the  State  Public  Service  Commission  should  be\nforwarded.  They show that the respondent was not treated as\na local candidate, but was appointed as a temporary  measure\ntill  proper  appointment is made through the  State  Public\nService\t Commission  from persons possessing  the  necessary\nqualifications. [811 G-H]\n(8)When\t the  State Public Service Commission  agreed  for\nregularisament ofthe  respondent, but only to  regularise\nthe appointment to the post of Principal. [813 F-G]\n(9)The\t High  Court  was  wrong  in  holding\tthat   the\nappointment  of the respondent did not offend Arts.  14\t and\n16.   Under the 1964-rules the recruitment for the post\t was\nby  promotion  from  the cadre of Heads of  sections  or  by\ndirect 'recruitment and Principals of Polytechnics and Heads\nof sections belonged to a common cadre and should have\tbeen\nconsidered for the appointment.\t As the appellant and others\nwere not given equal opportunity and treatment in regard  to\nthe appointment, there was discrimination. [814 F-H; 815  A-\nF]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2357  of
\n1968.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nSeptember 12, 1968 of the Mysore High Court in Writ Petition
\nNo. 473 of 1967.\n<\/p>\n
A.   K.\t Sen,  S.  S.  Javali  and  M.\tVeerappa,  for\t the
\nappellant.\n<\/p>\n
A.   R.\t Somanatha Iyer, 0. P. Malhotra, J.  P.\t  Dadachanji
\nand C.\t  S. Srinivasa Rau, for respondent No. 1.
\nBera Reddy and R. H. Dhebar, for respondent No. 2.
\nThe Judgment of the Court was delivered by
\nRay,  J.  This\tis  an appeal  by  special  leave  from\t the
\njudgement  dated  12 September, 1968 of the  High  Court  of
\nMysore dismissing by a common judgment a group of petitions.
\nThe  appellant\tchallenged the Mysore  Education  Department
\nService\t Rules\tdated  9  February  1967  published  in\t the
\nnotification No. ED. 91DGO 58, on 9 February, 1967.
\nThe Rules impeached by the appellant are as follows
\n\t      “In  exercise of the powers conferred  by\t the
\n\t      proviso to Article 309 of the Constitution  of
\n\t      India, and all
\n\t      802<\/span>
\n\t      other powers enabling him in this behalf,\t the
\n\t      Governor of Mysore hereby makes the  following
\n\t      rules, namely :-<\/p>\n
\t      1.Title  : These rules may be  called  the
\n\t      Mysore\tEducation    Department\t    Services
\n\t      (Technical   Education   Department   (Special
\n\t      Recruitment) Rules, 1967.\n<\/p>\n
\t      2.Provisions relating to regularisation of
\n\t      appointment  of  Principal, School  of  Mines,
\n\t      Ooragaum, Kolar Gold Fields.\n<\/p>\n
\t      Notwithstanding\tany  rule  made\t under\t the
\n\t      proviso to article 309 of the Constitution  of
\n\t      India, or any other rules or Order in force at
\n\t      any time, Dr. T. Thimmiah, B.Sc. (Hons.) Ph.D.
\n\t      (Lond.)  F.G.S. shall be deemed to  have\tbeen
\n\t      regularly\t appointed as Principal,  School  of
\n\t      Mines,  Ooragaum,\t Kolar\tGold  Fields,\twith
\n\t      effect from 15-2-1958.\n<\/p>\n
\t       By order and in the name of
\n\t       the Governor of Mysore
\n\t       Sd\/- S. N. Sreenath
\nUnder Secretary to Government Education Department”.
\nThe  appellant\twas  posted  as\t ‘additional  in-charge’  of
\nTechnical Education, Bangalore.\t There were other  petitions
\nbefore\tthe  Mysore  High Court\t similarly  challenging\t the
\naforesaid Service Rule.\t The petitioners in those cases were
\nthe  Principal\tof the Polytechnic at Mysore;  Head  of\t the
\nMechanical Engineering Section, C.P.C. Polytechnic,  Mysore;
\nPrincipal  of  the  Polytechnic, Hassan;  and  Principal  of
\nB.D.T. College of Engineering, Devangere.
\nThe   appellant\t joined\t as  lecturer  in  Physics  at\t the
\nUniversity  Department of the Government of Mysore in  1941.
\nIn  1946  the  appellant  took a  post\tgraduate  degree  in
\nChemical  Engineering at Madras University.   The  appellant
\nwas  then  posted  as  Lecturer\t in  Chemical\tEngineering,
\nGovernment  Engineering\t College, Bangalore.   In  1949\t the
\nappellant   was\t promoted  and\tposted\t as   Superintendent
\n(Principal), Government Polytechnic, Devangere in the  grade
\nof  Rs.\t 200-20-300.  In 1954 the appellant  was  posted  as
\nPrincipal, Polytechnic College at Hassan in the grade of Rs.
\n200-20-300.  The appellant was confirmed in the year 1957 in
\nthe grade of Rs. 200-20-300 in Class II with effect from  12
\nDecember,  1949.   On 1 January, 1957 the pay scale  of\t the
\nappellant was revised at Rs. 250-600.\n<\/p>\n
The respondent Thimmiah graduated and was appointed  through
\nthe  Public  Service  Commission  in the  year\t1951  as  an
\nAssistant  Geologist  in the Department of  Geology  in\t the
\nMysore Government in the grade of Rs. 125-10-175.\n<\/p>\n
803<\/span><\/p>\n
The  respondent went to the United Kingdom and\treturned  in
\n1957  with a Ph.D. in Geology.\tIn the month of\t July,\t1957
\nthe  establishment  of\tthe School of Mines  at\t Kolar\tGold
\nFields\twas  sanctioned\t in  the  Department  of   Technical
\nEducation.  The respondent who was in 1957 a Lecturer in the
\nDepartment  of Geology was deputed for appointment  is\tVice
\nPrincipal  of the School of Mines at Kolar Gold Fields.\t  On
\n15  February, 1958 the respondent was asked to\tperform\t the
\nduties of the Principal.  On 22 July, 1958 Isaac son who was
\nthe  Principal of the School of Mines at Kolar\tGold  Fields
\nleft.\tOn 25 September, 1958 the respondent  was  appointed
\nofficiating Principal of the School of Mines on a  temporary
\nbasis  with effect from 22 July, 1958.\tOn 3 July, 1959\t the
\nrespondent  was\t appointed  Principal with  effect  from  15
\nFebruary,  1958.  The Government of India in the  year\t1959
\nwrote  to the State Government that the respondent  did\t not
\npossess\t    qualifications    and    proposed\t  prescribed
\nqualifications\tfor  the-  Principal  of  School  of  Mines.
\nQualifications\twere proposed by the Director  of  Technical
\nEducation  in  the month of August, 1959.  In the  month  of
\nAugust,\t 1960  the  respondent was promoted  in\t his  parent
\nDepartment of Geology as Geologist.\n<\/p>\n
In  the\t year 1962 the appellant made an  application  under
\nArticle\t 226 challenging the officiating appointment of\t the
\nrespondent.   The High Court of Mysore on 17 November,\t1963
\ndismissed the appellant’s application as premature,  because
\nthe Government was going to frame rules for recruitment\t for
\nthe Department.\n<\/p>\n
In  the month of May, 1964 rules of recruitment were  framed
\nby the Government for the Department of Technical Education.
\nIn  the year 1967 Rules were made under Article 309  of\t the
\nConstitution regularising the appointment of the  respondent
\nas Principal, School of Mines with effect from 15  February,
\n1958.\n<\/p>\n
The  Kolar  Gold Fields, School of Mines was set up  in\t the
\nmonth  of July, 1957.  The respondent was sent in the  month
\nof  August,  1957  on  deputation  for\ttwo  years  as\tVice
\nPrincipal  of the School of Mines.  The respondent was\tthen
\nworking\t as an Assistant Geologist.  The then  Principal  of
\nthe School of Mines was Isaacson.  He was employed on a part
\ntime basis on an allowance of Rs. 200 p.m. On 22 July,\t1958
\nwhen Isaacson left the respondent who was the Vice Principal
\nhad  been  doing  the  duties  of  the\tPrincipal  since  15
\nFebruary, 1958.\t The State Government on 25 September,\t1958
\nappointed  the respondent Thimmiah as officiating  Principal
\nwith  effect from 22 July, 1958 in the grade of Rs.  500-30-\n<\/p>\n
800.  On 3 April, 1958 the State Government in\tmodification
\nof  the\t notification of 25 September,\t1958  appointed\t the
\nrespondent  as temporary officiating Principal\twith  effect
\nfrom
\n804<\/span>
\n15  February,  1958.  The impugned  rules  regularising\t the
\nAppointment of the respondent with effect from 15  February,
\n1958 came into existence on 9 February, 1967.
\nThe appellant contended that the respondent was governed  by
\nthe Mysore Service Regulations, 1943, the Mysore State Civil
\nServices  (General Recruitment) Rules, 1957 as well  as\t the
\nMysore\tEducation Department Services  (Technical  Education
\nDepartment)  (Recruitment) Rules, 19 4. The  appellant\talso
\ncontended that the respondent was in Class III service, and,
\ntherefore, the impeached regularisation of the\trespondent’s
\nappointment  was  in  breach  of  the  aforesaid  Rules\t and
\nRegulations   and  offended  Articles  14  and\t16  of\t the
\nConstitution.  The contention of the respondent before\tthe
\nHigh Court was that the appointment to a civil post could be
\nmade  in  three ways : one by promotion;  second  by  direct
\nrecruitment;   and  the\t third\tby  regularisation   of\t  an
\nappointment  which had been initially made irregularly.\t  It
\nWas  also contended in the High Court, though there  was  no
\nsuggestion  in the affidavit or in the return in  answer  to
\nthe  petition, that the respondent was a local candidate  in
\nservice,  and, therefore, under rule 8 (27A) of\t the  Mysore
\nCivil Services Rules, 1957 the rules would not apply to\t the
\nrespondent and the regularisation “,as valid.
\nAn additional argument was advanced in this Court that under
\nArticle\t 162  of the Constitution  regularisation  would  in
\nitself be a mode of exercise of power of appointment of\t the
\nExecutive  Government.\tRegularisation was said to have\t the
\nconsequence  of impressing upon the appointment the  quality
\nof   permanence\t and  the  elimination\tof   precariousness.
\nAccording  to the State such an appointment even if made  in
\nthe  shape of rules under Article 309 could not be  attacked
\non  the ground of being made for one person just as a  piece
\nof legislation could not be attacked on the ground of  being
\nmade for a particular person or entity.\n<\/p>\n
The  High Court held that the respondent was a local  candi-
\ndate within the meaning of Rule 1-A of the Mysore Government
\nSeniority  Rules, 1957 and therefore the appointment of\t the
\nrespondent  could be regularised with effect from any  date.
\nThe  High  Court  expressed no opinion on  the\tquestion  of
\nseniority  among the several petitioners inter se.  On\tthat
\nbasis  the High Court held that there could be\ta  temporary
\nemployment  and recognition of a temporary servant as  quasi
\npermanent  employee  without violating Articles 14  and\t 16.
\nThe  High  Court  held\tthat  the  appointment\tof  a  local
\ncandidate could not be said to be discriminatory or a denial
\nof  equal opportunity.\tThe High Court also held  that\twhen
\nthe respondent was appointed temporarily in 1958 there\twere
\nno qualifications prescribed for the post and there were  no
\ncadre and recruitment rules.\n<\/p>\n
805<\/span><\/p>\n
On  17\tAugust, 1957 when the respondent was sent  on  depu-
\ntation\tas Vice Principal his post was counted as that of  a
\nlecturer.   When Issacson left the School of Mines and\twhen
\nthe  respondent was asked to be in charge as  Principal\t and
\nthereafter   when  the\trespondent  was\t in  the  month\t  of
\nSeptember,  1958 appointed to officiate as  Principal  which
\nwas  Class I service with effect from 15 February, 1958\t the
\nrespondent  had been on deputation from foreign service\t and
\nin the affidavit it was stated that it was Class III service
\nto which the respondent belonged and the appointment of\t the
\nrespondent  to the post of Principal of the School of  Mines
\nwas challenged by the appellant to amount to promotion\tfrom
\nClass III to Class I.\n<\/p>\n
Under rule 57 of the Mysore Civil Service Regulations,\t1943
\nan  officer  could be sent on deputation on  such  temporary
\nduty for the performance of which there is no permanently or
\ntemporarily sanctioned appointment.  Deputation however\t was
\nnot  permissible under Rule 57 without the sanction  of\t the
\nGovernment.\n<\/p>\n
The question here is whether an officer like the  respondent
\nwho was sent on deputation could be said not to be  governed
\nby any rule and be a local candidate as contended for by the
\nState.\tAt the relevant time in the month of February,\t1958
\nthe Mysore State Civil Service (General Recruitment)  Rules,
\n1957  were  in existence inasmuch as those rules  came\tinto
\nforce on 1 February, 1958.  The Mysore State Civil  Services
\nRules,\t1957 defined ‘direct recruitment’,  ‘promotion’\t and
\n‘selection’.\tDirect\trecruitment  would  be\t appointment
\notherwise than by promotion or transfer.  Promotion would be
\nappointment  of a Government servant from a post,  grade  of
\nservice\t or  class of service, to a higher  post  or  higher
\ngrade  of  service or higher class  of\tservice.   Selection
\nwould be after consulting the Commission or the Advisory  or
\nthe Selection Committee, or the appointing Authority.\tRule
\n3  of the Mysore State Civil Services Rules, 1957 speaks  of
\nmethod\tof recruitment to the State Civil Service to  be  by
\ncompetitive  examination  or by selection or  by  promotion.
\nJudged\tby these rules the appointment in the  present\tcase
\ncould  be said to be only by promotion.\t Indisputably  there
\nwas  neither any competitive examination not  any  selection
\nnor  it was a case of direct recruitment.   Sub-clauses\t (a)
\nand  (b)  of Rule 4(3) of the Mysore  State  Civil  Services
\nRules,\t1957 lay down the restrictions as to recruitment  by
\npromotion.  The restrictions are two-fold in sub-clauses (a)
\nand  (b). First, if it :is to a selection post or to a\tpost
\nto be filled by promotion or by selection of a person on the
\nbasis of merit and suitability in all respects to  discharge
\nthe  duties of the post it is with due regard  to  seniority
\nfrom  among persons eligible for promotion.  The  second  is
\nrecruitment by
\n806<\/span>
\npromotion  to  a post other than that referred\tto  in\tsub-
\nclause\t(1)  by\t selection  of a  person  on  the  basis  of
\nseniority-cum-merit,  that  is\tseniority  subject  to\t the
\nfitness of the candidate to discharge the duties of the post
\nfrom among persons eligible for promotion.
\nIn 1958 the post of the Principal of the School of Mines was
\na penurious post.  The pay of the Principal was Rs.  500-800
\nat  that time.\tThe respondent was getting a salary  of\t Rs.
\n165 plus Rs. 75, in the month of February 1958 and his grade
\nof  scale  was from Rs. 125-175.  The  respondent  had\tbeen
\nsubstantively appointed to the post of a lecturer in Geology
\nfrom which he was sent on deputation.  The respondent  under
\nRule  17 of the General Rules regarding lien on\t appointment
\nand  admissibility  of\tallowances could  not  be  appointed
\nsubstantively  to  two or more permanent posts at  the\tsame
\ntime  except as a temporary measure.  Then again under\tRule
\n20(1) of the General Rules regarding lien on appointment the
\nGovernment shall suspend the lien of a Government servant on
\na  permanent  post  which he holds substantively  if  he  is
\nappointed  in  a  substantive capacity.\t  In  the  month  of
\nFebruary, 1958 the respondent was on deputation and having a
\nlien  on post as Assistant Lecturer of Geology when  he\t was
\nappointed  to officiate as Principal, School of Mines,\tand,
\ntherefore,  it could not be said that he  was  substantively
\nappointed to the post of a Principal.\n<\/p>\n
The  appointment of the respondent as officiating  Principal
\nin  the month of February, 1958 could be only by  promotion.
\nThe two impediments to the case of recruitment by  promotion
\nhave  already been noticed in rule 4(3) sub-clauses (a)\t and\n<\/p>\n
(b) of the Mysore State Civil Services (General Recruitment)
\nRules, 1957.  Under sub-clause (a) it is to be on the  basis
\nof  merit and suitability with due regard to seniority\tfrom
\namong persons eligible for promotion.  Under sub-clause\t (b)
\nit  is to be on the basis of seniority-cum-merit from  among
\npersons\t eligible for promotion.  It is not the case of\t the
\nGovernment that it was a case of promotion because there  is
\nno  material  to  show that merit  and\tsuitability  in\t all
\nrespects  with\tdue regard to seniority from  among  persons
\neligible for promotion were considered.\n<\/p>\n
The  Mysore  State  Civil Services Rules, 1957\tin  Rule  16
\nspeaks\tof relaxation of rules relating to  appointment\t and
\nqualifications\tand  one of the instances of  relaxation  is
\nthat  the  Government  may for reasons\tto  be\trecorded  in
\nwriting (a) (i) appoint to a post an officer of the  Defence
\nServices,  an  All India Service or a Civil Service  of\t the
\nUnion  or the Civil Service of any other State and  (ii)  an
\nofficer holding a post of an equivalent grade, by  transfer,
\nfrom  any  other  service of the  State.   Equivalent  grade\n<\/p>\n
-fined in the more Civil Services Rules 1957 which came
\n807<\/span>
\ninto  effect on 10 February, 1958.  Rule 8(1) of the  Mysore
\nCivil  Services\t Rules,\t 1958 speaks  of  class\t and  grade.
\nAppointments  are said to be in the same ‘Class’  when\tthey
\nare  in the same department, and bear the same\tdesignation,
\nor  have,  been declared by Government to be  in  the  same,
\nclass.\tAppointments in the same class are sometimes divided
\ninto  ‘grades’\taccording  to pay.  The\t post  of  Principal
\nSchool of Mines was said to be Class 1. It was said that  in
\nthe month of February, 1958 there were no classes.  But\t the
\nrespondent did not belong to a grade which could be said  to
\nbe  equivalent\tgrade  to that of the  Principal  School  of
\nMines.\tTherefore it could not be a case of transfer  within
\nthe meaning of the aforesaid Rule 16.\n<\/p>\n
The  Mysore  Technical\tEducation  Rules  which\t came\tinto
\nexistence  on  5 May, 1964 referred to two classes  and\t the
\nPrincipal,  School of Mines was in Class I and the Heads  or
\nPrincipal of Polytechnics were in Class I. In 1964 the\tpost
\nof Assistant Geologist was in Class III and not identical in
\nrank.\t The  respondent  alleged  that\t he  was   appointed
\ntemporarily  to\t the post of Principal, School of  Mines  in
\nFebruary, 1958 and thereafter he was appointed under Article
\n162  of the Constitution because of his qualifications.\t  It
\nwill  appear from the affidavit evidence that the  appellant
\nin  1957  was  Principal of the\t Government  Polytechnic  at
\nDavangere and was in the grade, of Rs. 200-20-300.
\nThe  respondent\t was  in 1956 an Assistant  Geologist  at  a
\nsalary of Rs. 165\/- in the scale of Rs. 125-10-175.  In 1964
\nthe  appellant\twas  in Class III under the  1964  Rules  as
\nPrincipal  of Polytechnic whereas the respondent was in\t the
\nsubstantive post of Assistant Geologist which under the 1964
\nRules  was in Class 111.  Therefore when the appointment  of
\nthe  respondent was attempted to be regularised with  effect
\nfrom  1958 the respondent was being placed at a position  of
\nadvantage.\n<\/p>\n
The  appointment of the respondent by promotion or  transfer
\nis inherently indefensible.  The respondent was in Class III
\nservice.   He was being appointed to Class 1. If it  were  a
\ncase  of promotion persons in the same grade  and  seniority
\nand  merit were to be considered.  The appellant was  senior
\nto the respondent.  There were other petitioners before\t the
\nHigh  Court  who were senior to the  respondent.   When\t the
\nappellant  made an application to the Mysore High  Court  in
\nthe  year 1962 the application was dismissed because it\t was
\nfound  to be premature as the Government was  preparing\t the
\ncadre  and recruitment rules.  The High Court left  it\topen
\nand  said  if and when the appointment\twas  regularised  it
\nwould  be  open to the appellant to take such steps  as\t law
\npermits.\n<\/p>\n
808<\/span><\/p>\n
It  was contended on behalf of the State that under  Article
\n309  of the Constitution the State has power to make a\trule
\nregularising  the  appointment.\t Shelter  was  taken  behind
\nArticle 162 of the Constitution andthe\tpower  of   the
\nGovernment to appoint. No one can deny thepower\t of   the
\nGovernment  to\tappoint.   If  it  were\t a  case  of  direct
\nappointment  or\t if  it\t were a case  of  appointment  of  a
\ncandidateby competitive examination or if it were a case of
\nappointment by selection recourse to rule under Article\t 309
\nfor  regularisation  would not be  necessary.\tAssume\tthat
\nRules under Article 309 could be made in respect of appoint-
\nment of one man but there are two limitations.\tArticle\t 309
\nspeaks\tof rules for appointment and general  conditions  of
\nservice.   Regularisation  of appointment  by  stating\tthat
\nnotwithstanding\t any  rules the appointment  is\t regularised
\nstrikes\t at the root of the rules and if the effect  of\t the
\nregularisation is to nullify the operation and effectiveness
\nof  the rules, the rule itself is open to criticism  on\t the
\nground that it is in violation of current rules.   Therefore
\nthe relevant rules at the material time as to promotion\t and
\nappointment  are infringed and the impeached rule cannot  be
\npermitted  to  stand  to  operate  as  a  regularisation  of
\nappointment  of\t one  person  in  utter\t defiance  of  rules
\nrequiring  consideration of seniority and merit in the\tcase
\nof  promotion and consideration of appointment by  selection
\nor by competitive examination.\n<\/p>\n
It  was contended on behalf of the State that Rule 3 of\t the
\nMysore\tState Civil Services Rules, 1957 spoke of method  of
\nrecruitment   to  be  by  competitive  examination,  or\t  by
\nselection,  or by promotion.  The method of recruitment\t and
\nqualifications\tfor each State Civil Service were to be\t set
\nforth  in the rules of recruitment but there were  no  rules
\nuntil  the  year  1964.\t  In 1964  the\trule  spoke  of\t the
\nPrincipal of School of Mines to be Class I and the method of
\nrecruitment for the Principal of School of Mines was to fill
\nup the post by promotion from the cadre of Heads of Sections
\nor  by\tdirect recruitment.  It was said on  behalf  of\t the
\nrespondent that he was the only eligible candidate in  1964,
\nand, therefore, his appointment was valid.  This is  opposed
\nto  facts.   It is not a case of direct recruitment  in\t the
\nyear 1958 or at any time.  The State made rules in the\tyear
\n1967  to  regularise  the  appointment\tfrom  the  month  of
\nFebruary,  1958.   Again,  if  it  were\t a  case  of  direct
\nrecruitment one Would expect proper materials for the direct
\nrecruitment.   There should be advertisements for the  post.
\nCandidates  have  to be selected.  Their  respective  merits
\nwould have to be considered.  To say that the appellant\t was
\nthe only eligible candidate is to deny the rights of  others
\nto apply for such eligibility tests.\n<\/p>\n
Counsel\t on  behalf of the State relied on the\tdecision  of
\nthis  Court  in Champaklal Chimanlal Shah v.  The  Union  of
\nIndia<\/a>(1)
\n(1) [1964] 5 S.C.R. 190.\n<\/p>\n
809<\/span><\/p>\n
and  the observations at page 201 of the report : “That\t the
\nGovernment have to employ temporary servants to satisfy\t the
\nneeds of a particular contingency and such employment  would
\nbe  perfectly legitimate.” No exception could ordinarily  be
\ntaken  to such appointment.  The appointment in the  present
\ncase does not fall under that category.\t The appointment was
\nin  breach  of rules as a case of promotion.  It was  not  a
\ncase of direct recruitment.  It was not a case of  temporary
\nappointment.   It was not a case of appointment of  a  local
\ncandidate.  This Court in the case of The State of Mysore v.
\nPadmanabhacharya<\/a> etc.(1) dealt with a rule under Article 309
\nto the effect that the respondents in that case having\tbeen
\ninvalidly  retired  should have been  validly  retired\tfrom
\nservice\t  on  superannuation.\tThe  notification   of\t the
\nGovernment  under Article 309 was issued on 25\tMarch,\t1959
\nthere validating the action taken in retiring the respondent
\nand  others upon their attaining the age of 55\tyears.\t The
\nrespondents  contended before the High Court that they\twere
\nentitled to continue in service upto the age of 58 years and
\nnot  to\t be  retired at the age of 55 years in\tview  of  an
\nexception carved out by note 4 to rule 294(1) of the  Mysore
\nCivil Services Regulations.  This Court did not express\t any
\nopinion\t as  to\t the  power of the  Legislature\t to  make  a
\nretrospective\tprovision   under  Article   309   but\t the
\nnotification retiring certain persons on superannuation\t was
\nstruck\tdown  by  this Court in these words :  “We  are,  of
\nopinion that this notification cannot be said to be a  rule,
\nregulating  the\t recruitment and conditions  of\t service  of
\npersons\t appointed to the services and posts  in  connection
\nwith the affairs of the State.\tAll that the rule does is to
\nsay  in so many words that certain persons who had been,  in
\nview of our decision on this point, invalidly retired should
\nbe  deemed  to\thave been validly retired  from\t service  on
\nsuperannuation.\t It would if given effect contravene Article
\n311 of the Constitution.  Such a rule in our opinion is\t not
\na rule contemplated under the proviso to Article 309”.
\nThe  contention\t on behalf of the State that  a\t rule  under
\nArticle\t 309  for  regularisation of the  appointment  of  a
\nperson would be a form of recruitment read with reference to
\npower  under Article 162 is unsound and\t unacceptable.\t The
\nexecutive has the power to appoint.  That power may have its
\nsource\tin Article 162.\t In the present case the rule  which
\nregularised  the appointment of the respondent\twith  effect
\nfrom  15 February, 1958 notwithstanding any rules cannot  be
\nsaid  to be in exercise of power under Article 162.   First,
\nArticle\t 162  does not speak of rules  whereas\tArticle\t 309
\nspeaks\tof rules.  Therefore, the present case\ttouches\t the
\npower  of the State, to make rules under Article 309 of\t the
\nnature impeached here.\tSecondly, when the Government acted
\n(1)  [1966] 1 S.C.R. 994.\n<\/p>\n
810<\/span><\/p>\n
under  Article\t309 the Government cannot be  said  to\thave
\nacted  also under Article 162 in the same breath.   The\t two
\nArticles operate in different areas.  Regularisation  cannot
\nbe  said to be a form of appointment.  Counsel on behalf  of
\nthe  respondent\t contended that\t regularisation\t would\tmean
\nconferring  the\t quality of permanence\ton  the\t appointment
\nwhereas\t counsel  on  behalf of\t the  State  contended\tthat
\nregularisation\tdid  not mean permanence but that it  was  a
\ncase of regularisation of the rules under Article 309.\tBoth
\nthe  contentions are fallacious.  If the appointment  itself
\nis  in infraction of the rules or if it is in  violation  of
\nthe  provisions\t of the Constitution  illegality  cannot  be
\nregularised.  Ratification or regularisation is possible  of
\nan  act\t which\tis  within the power  and  province  of\t the
\nauthority  but\tthere  has  been  some\tnon-compliance\twith
\nprocedure  or  manner which does not go to the root  of\t the
\nappointment.  Regularisation cannot be said to be a mode  of
\nrecruitment.   To accede to such a proposition would  be  to
\nintroduce a new head of appointment in defiance of rules  or
\nit may have the effect of setting at naught the rules.
\nIn  the present case, it was said that the respondent was  a
\nlocal  candidate  within the meaning of rule 8(27A)  of\t the
\nMysore Civil Services Rules, 1957 which came into effect  on
\n1  March,  1958.  A local candidate is defined\tthere  as  a
\nlocal  candidate in service meaning a  temporary  Government
\nservant not appointed regularly as per rules of\t recruitment
\nto that service.  When the appointment of a local  candidate
\nwould  be  regularised it would be in  consonance  with\t the
\nrules.\t  A  contention\t was  advanced\ton  behalf  of\t the
\nrespondents that Rules 3, 4 and 14 in the Mysore State Civil
\nService\t Rules, 1957 which came into effect on 10  February,
\n1958  would  not apply until rules of  recruitment  as\tcon-
\ntemplated in Rule 3 were brought into existence.  In support
\nof  that contention reliance was placed on the\tdecision  of
\nthis  Court  in B. N. Nagarajan Ors. v. State  of  Mysore  &
\nOrs.<\/a>(1). In that case a question arose as to the validity of
\nappointments of 88 Assistant Enginers who were appointed  in
\nOctober, 1961.\tIt was contended that the appointments there
\nwere  to have been in consonance with the Rules\t which\tcame
\ninto  existence\t in December, 1960.  It was  held  that\t the
\nDecember 1960 Rules were not intended to cover\tappointments
\nof  persons  who had been interviewed  and  recommended\t for
\nappointment by the Public Service Commission in the month of
\nNovember,  1960\t prior to the making of the rules.   It\t was
\nalso  held in that case that the absence of rules would\t not
\ntake  away  the power of the executive\tGovernment  to\tmake
\nappointments under Article 162 of the Constitution.  In\t the
\npresent\t case, the contention on behalf of  the\t respondents
\nthat the regularisation was itself a mode of appointment
\n(1)  [1966] 3 S.C.R. 682.\n<\/p>\n
811<\/span><\/p>\n
under Article 162 of the Constitution is unsound.  The Rules
\ncame  into  existence  in the present  case  in\t 1964.\t The
\nregularisation\t was   made   in   the\t year\t1967.\t The
\nregularisation\twas made with effect from  1958.  Therefore,
\nthe  Rules  became applicable.\tThe  regularisation  in\t the
\npresent\t case  was also bad because  even  without  specific
\nmethods\t of recruitment appointments could be made  only  by
\nselection  or promotion or transfer from  equivalent  grade.
\nThe  method of recruitment and qualification for each  State
\nCivil Service was to be setforth in the rules of recruitment
\nof such service specialty made in that behalf.
\nIt  follows  that in the present case in the face  of  rules
\nwhich spoke of recruitment to be by competitive\t examination
\nor by selection or by promotion, these are the three  modes
\nof  appointment.   Even\t if the method\tof  recruitment\t and
\nqualifications\tare  not  laid\tdown  the  three  modes\t are
\nspecific.   Counsel on behalf of the State stated  that\t the
\nrespondent  was\t not  promoted but that it  was\t a  case  of
\nselection because the respondent was the only person fit for
\nthat  post.  A selection would have to be made\tby  inviting
\napplicants and then selecting them.  The State relied on the
\naffidavit of the Deputy Secretary to the Government that the
\nrespondent  was a highly qualified person and there were  no
\nother  qualified  persons available to fill up the  post  of
\nPrincipal  of  the School.  It was therefore said  that\t the
\nGovernment found that the respondent was the only  candidate
\nfound suitable and he was therefore selected.  The affidavit
\ndoes  not say that he was selected on the basis\t that  other
\ncandidates   were  interviewed\tand  that  claim  of   other
\ncandidates  were considered.  In Nagarajan’s  case  (supra’)
\nthis Court said that if rules were made the Executive  would
\nhave  to follow the Rules and the Executive could not  under
\nArticle 162 of the Constitution ignore the Rule.  Therefore,
\nin  the\t present  case\tthe  Executive\tacted  illegally  in
\nregularising the appointment of the respondent Thimmiah.
\nIn  the present case, the respondent was appointed  tempora-
\nrily  as  officiating Principal on 25 September\t 1958  until
\nfurther\t orders.   In  foot note I to the  letter  dated  25
\nSeptember,  1958 communicating the order it was stated\tthat
\nthe Director of Technical Education was requested to forward
\nproposals  to fill the post by advertisement through  Mysore
\nPublic Service Commission.  Again on 3 April, 1958 when\t the
\nrespondent   was   appointed  temporarily   as\t officiating
\nPrincipal  with effect from 15 February, 1958 until  further
\norders\ta  similar  foot  note\twas  given  in\tthat  letter
\ncommunicating  the order to the effect that the Director  of
\nTechnical  Education would forward proposals to fill up\t the
\npost   by  advertisement  through  Mysore   Public   Service
\nCommission.   These letters totally repel the suggestion  of
\nthe  respondent\t being a local\tcandidate.   ‘These  letters
\ncontain\t intrinsic evidence that the appointment was  to  be
\nmade, ‘by advertisement through Mysore
\n812<\/span>
\nPublic Service Commission so that persons who would  possess
\nthe necessary qualifications would be able to apply for\t the
\nsame for consideration.\n<\/p>\n
The case of promotion is totally impermeable in the  present
\ncase.  There were three classes of services under the Mysore
\nCivil  Services (Classification, Control and Appeal)  Rules,
\n1957.\tRule 5 classified the services under  four  classes.
\nClass I consisted of gazetted posts with the minimum pay  of
\nnot  less  than\t Rs. 350 p.m. Class 11\twas  to\t consist  of
\ngazetted  posts\t other than those referred to  in  Class  1.
\nClass  III was to consist of non-gazetted posts\t of  Primary
\nSchool\t teacher,   Assistant\tInspector   of\t Shops\t and
\nEstablishments,\t  Compounders,\tVillage\t Accountants,\tBill
\nCollectors  and other posts the pay or maximum pay of  which
\nif  on\ta time scale is more than Rs. 90.  Class IV  was  to
\nconsist\t of non-gazetted posts classified in  the  Schedule.
\nThere,\twere  three Schedules.\tPromotion would have  to  be
\nunder\trule  4\t of  the  Mysore  Civil\t Services   (General
\nRecruitment)   Rules,  1957  on\t the  basis  of\t merit\t and
\nsuitability or on the basis of seniority-cum-merit.  Rule 16
\nof  the 1957 General Recruitment Rules speaks of  relaxation
\nof  rules relating to appointment and  qualifications.\t The
\nGovernment  has\t power to relax any rule  and  may  appoint
\npersons for reasons to be recorded in writing inter alia  to
\na  post of an equivalent grade by transfer.  In the  present
\ncase, it was not an appointment by transfer from one post to
\na  post\t of  an\t equivalent  grade  under  the\trules.\t The
\nrelaxation  under  Rule\t 16  of\t the  Mysore  Civil  Service
\n(General Recruitment) Rules, 1957 for a specified period  of
\nthe   qualifications  prescribed  for  purposes\t of   direct
\nrecruitment   of   candidates  possessing   the\t  prescribed
\nqualifications was neither available nor done in fact in the
\npresent case.  Therefore it could not be said here that\t the
\nappointment was by promotion because the respondent did\t not
\nhold the post of an equivalent grade.\n<\/p>\n
It  is said on behalf of the State that the  appointment  of
\nthe  respondent was justified on the following grounds.\t  In
\nthe  year 1958 the respondent was appointed on, a  temporary
\nbasis.\t The  Government  has  power  to  make\ta  temporary
\nappointment.  The respondent was, according to the rules,  a
\nlocal  candidate.  A  local  candidate\tcould  be  appointed
\nirrespective  of rules.\t Up to the year 1964 there  were  no
\nrules  fixed with regard to cadre or appointment.   In\t1964
\nwhen   the  cadre  and\trecruitment  rules  were  made\t the
\nrespondent  was\t the only qualified person.  There  were  no
\nspecific rules for regularisation. The Government has  power
\nunder  Article 162 to regularise appointments.\tRules  under
\nArticle\t 309  can be made for one  Person.   Therefore,\t the
\nrespondent was\tvalidly appointed.\n<\/p>\n
813<\/span><\/p>\n
The  contentions on behalf of the State and  the  respondent
\nare  unacceptable.   A\tlocal candidate\t means\ta  temporary
\nGovernment servant not appointed regularly.  The  respondent
\nwas a permanent Government servant at the material time.  He
\nwas  already  in service.  Under the rules in force  in\t the
\nyear  1958  two\t Government  servants  cannot  be  appointed
\nsubstantively  to the same permanent post at the same  time.
\nA  Government  servant\tcannot\tbe  appointed  substantively
\nexcept as a temporary measure to two or more permanent posts
\nat  the\t same  time.   Therefore,  if  the  respondent\twere
\nappointed as a temporary measure to the post of Principal it
\nwould  be  not\tas a local candidate  but  as  a  Government
\nservant\t appointed to another post as a\t temporary  measure.
\nThis  happened\tin 1958.  When the appellant  impeached\t the
\nappointment  of the respondent before the Mysore High  Court
\nin 1962 the State Government stated that the rules had\tbeen
\nframed\tand forwarded to the Public Service  Commission\t and
\nthe  post of the Principal had to be filled up by  promotion
\nfrom   the  cadre  of  Heads  of  Sections  or\t by   direct
\nrecruitment.   The  qualifications for\tdirect\trecruitments
\nwere also given.  It was also stated before the Mysore\tHigh
\nCourt that the matter of regularisation of the respondent in
\nthe  post  was under consideration and\tthe  Public  Service
\nCommission  had agreed to the regularisation and the  matter
\nwas to be considered by the Government and the decision\t was
\nto  be\tgiven in that behalf.  In that context,\t the  Mysore
\nHigh  Court said that no useful purpose would be  served  in
\npronouncing on the questions raised in the writ petitioN and
\nif   and   when\t the  appellant\t felt  aggrieved   by\tsuch
\nregularisation it would be open to him to take such steps.
\nIt  is in this background that when regularisation was\tmade
\nin the year 1967 that the appellant came up before the\tHigh
\nCourt  challenging  the regularisation.\t When  it  was\tsaid
\nbefore the Mysore High Court in 1962 that the Public Service
\nCommission agreed to regularisation it did not mean that the
\nPublic\t Service   Commission  agreed  to   regularise\t the
\nappointment of the respondent.\tAll that the Public  Service
\nCommission did was to regularise the appointment to the post
\nof  the Principal.  The regularisation by the State  of\t the
\nappointment is with effect from 1958.  This  reguularisation
\nis bad for the following reasons.  First, regularisation  is
\nnot  itself a mode of appointment.  Secondly, the  modes  of
\nappointments  are  direct recruitment or selection  or\tpro-
\nmotion\tor appointing for reasons to be recorded in  writing
\nan  officer  holding  a\t post of  an  equivalent  grade,  by
\ntransfer,  from\t any  other  service  of  the,\tState.\t The
\nGovernment  did not contend-, it to be a case of  promotion.
\nIf it were a case of promotion it would not be valid because
\nit  would be a promotion not on the basis of  seniority-cum-
\nmerit but a promotion of some one
\n814<\/span>
\nwho  was  in  Class  III to Class I.  Even  with  regard  to
\nappointment under rule 16 by transfer of a person holding an
\nequivalent  grade  the appointment would  be  offending\t the
\nrules  because it would not be transfer from  an  equivalent
\ngrade.\tAgain, merit and seniority could not be\t disregarded
\nbecause\t the  respondent was not in the same  class  as\t the
\nPrincipal of the School of Mines.  The pay of the  Principal
\nwas Rs. 500-800 whereas the respondent was getting a  salary
\nof Rs. 165 in the grade of Rs. 125-165 plus an allowance  of
\nRs. 75.\n<\/p>\n
The  contention\t of the State that there were no  rules\t and
\nthat  the Government was free to appoint the  respondent  is
\nwrong.\tThere were 1957 rules which spoke of appointment  by
\ncompetitive  examination  or by selection or  by  promotion.
\nEven if specific rules of recruitment for such services were
\nnot   made  the\t rule  as  to-appointment   by\t competitive
\nexamination or selection or by promotion was there.  Article
\n162  does not confer power of regularisation.\tArticle\t 162
\ndoes  not confer power on the Government to make  rules\t for
\nthe recruitment or conditions of service.  There can be rule
\nfor  one  person  or  one  post\t but  rules  are  meant\t for
\nrecruitment  and conditions of service.\t Rules are  not\t for
\nthe  purpose  of validating an illegal\tappointment  or\t for
\nmaking appointments or promotions or transfer.\tRules  under
\nArticle\t 309  are  for\tthe  purpose  of  laying  down\t the
\nconditions  of\tservice\t and  recruitment.   Therefore,\t the
\nregularisation\tby  way of rules under Article\t309  in\t the
\npresent case by stating that notwithstanding anything in the
\nrules\tthe appointment\t of  the  respondent   was   being
\nregularised  was  in  itself violation of the  rules  as  to
\nappointment  and  as  to cadre and also\t as  to\t the  proper
\nselection. if the respondent were to be appointed by  direct
\nrecruitment,  there should have been  advertisements.\tThen
\nothers\twould have the opportunity of applying.\t That  would
\nbe proper selection.\n<\/p>\n
Counsel\t on behalf of the appellant contended that  Articles
\n14 and 16 of the Constitution were infringed by the impugned
\nregularisation\t by   rules  under  Article   309   of\t the
\nConstitution  inasmuch\tas  the\t appellant  and\t the   other
\npetitioners   in  the  High  Court  were  not  given   equal
\nopportunity  and treatment in regard to the appointment\t and
\nthere  was also discrimination.\t It was said on,  behalf  of
\nthe   respondent   that\t the  appellant\t did   not   possess
\nqualifications prescribed by the 1964 Rules.  The  appellant
\ndisputed that contention.  ‘Me appellant and the  respondent
\nbelonged to the same class of service.\n<\/p>\n
The Mysore Education Department Services Technical Education
\nDepartment)  (Recruitment)  Rules, 1964\t provided  that\t the
\nmethod\tof recruitment for the post of Principal, School  of
\nMines was by, promotion from the cadre of Heads of  Sections
\nor  by direct recruitment.  The minimum\t qualifications\t for
\ndirect
\n815<\/span>
\nrecruitment  were age limit of 40 years and M.Sc. Degree  in
\napplied\t Geology with five years experience in Mining.\t The
\nappointment of the respondent was not by direct\t recruitment
\nat any stage.  The appointment of the respondent was  sought
\nto be justified by the State and the respondent first on the
\nground\tof  promotion  and  second  on\tthe  ground  of\t the
\nrespondent  possessing\tthe  qualification.   The  appellant
\ncontended  that\t the  appellant was  the  Principal  of\t the
\nPolytechnics  since  the  year\t1949.\tThe  appellant\talso
\ncontended  that the appellant was senior to the\t respondent.
\nThe  Principals of Polytechnics and the Heads  of  sections,
\naccording  to the contention of the appellant,\tbelonged  to
\nthe common cadre.  Therefore, the appellant alleged that the
\nappellant  was eligible for promotion under the 1964  Rules.
\nThe case of promotion could not be considered by considering
\nonly the respondent.  Again, the impeached rules do not show
\nthat  it was a case of promotion but that it was a  case  of
\nregularisation\tof an appointment with effect from the\tyear
\n1958.\n<\/p>\n
If  it\twas  the case of selection  the\t appellant  and\t the
\nrespondent and others should have been considered.  The 1964
\nRules  prescribed  qualifications for the first\t time.\t The
\n1964  Rules provided appointment by promotion or  by  direct
\nrecruitment.\tThe  appellant\talleged\t eligibility.\t The
\nappellant was Head of a Section.  The respondent was also  a
\nHead  of a Section.  They both belonged to the\tsame  cadre.
\nTherefore, the impugned rule affects the appellant not\tonly
\nin regard to his eligibility but also his seniority.
\nThe High Court was wrong in holding that the appointment  of
\nthe  respondents  was defensible as a  local  candidate\t and
\ntherefore  the appointment did not offend Article 14 and  16
\nof the Constitution.\n<\/p>\n
For  these  reasons, the judgment of the High Court  is\t set
\naside.\t The appeal is allowed.\t The impeded Rules  dated  9
\nFebruary, 1967 published in the notification No.  ED.91DGO58
\nare  declared  to  be void.  There will be no  order  as  to
\ncosts.\n<\/p>\n
V.P.S.\t\t\t\t      Appeal allowed.\n816<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R. N. Nanjundappa vs T. Thimmiah & Anr on 8 December, 1971 Equivalent citations: 1972 AIR 1767, 1972 SCR (2) 799 Author: A Ray Bench: Ray, A.N. PETITIONER: R. N. NANJUNDAPPA Vs. RESPONDENT: T. THIMMIAH & ANR. DATE OF JUDGMENT08\/12\/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G. CITATION: 1972 AIR […]<\/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-20731","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR. N. Nanjundappa vs T. 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