{"id":87943,"date":"1990-03-30T00:00:00","date_gmt":"1990-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-t-bevin-kath-etc-vs-karnataka-public-service-on-30-march-1990-2"},"modified":"2018-06-14T03:34:05","modified_gmt":"2018-06-13T22:04:05","slug":"n-t-bevin-kath-etc-vs-karnataka-public-service-on-30-march-1990-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-t-bevin-kath-etc-vs-karnataka-public-service-on-30-march-1990-2","title":{"rendered":"N.T. Bevin Kath Etc vs Karnataka Public Service … on 30 March, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N.T. Bevin Kath Etc vs Karnataka Public Service … on 30 March, 1990<\/div>\n
Equivalent citations: 1990 AIR 1233, \t\t 1990 SCR (2) 239<\/div>\n
Author: K Singh<\/div>\n
Bench: Singh, K.N. (J)<\/div>\n
           PETITIONER:\nN.T. BEVIN KATH ETC.\n\n\tVs.\n\nRESPONDENT:\nKARNATAKA PUBLIC SERVICE COMMISSION AND ORS.\n\nDATE OF JUDGMENT30\/03\/1990\n\nBENCH:\nSINGH, K.N. (J)\nBENCH:\nSINGH, K.N. (J)\nKASLIWAL, N.M. (J)\n\nCITATION:\n 1990 AIR 1233\t\t  1990 SCR  (2) 239\n 1990 SCC  (3) 157\t  JT 1991 (5)\t282\n 1990 SCALE  (1)659\n CITATOR INFO :\n RF\t    1991 SC2113\t (10)\n E&R\t    1992 SC 749\t (5)\n\n\nACT:\n    Karnataka  Administrative  Services\t  (Tehsildars)\t Re-\ncruitment Special Rules,  1975.' Preparation of select\tlist\nfor  appointment of Tehsildars--Service\t Commission--Whether\nto follow Government Order dated September 6, 1969 or  July,\n9, 1975.\n\n\n\nHEADNOTE:\n    The Karnataka Public Service Commission issued a notifi-\ncation on 23rd May 1975 inviting applications from  in-serv-\nice candidates for recruitment to 50 posts of Tehsildars. In\npara 14 of the notification it was stated that provisions of\n1975  Rules, and Rules 7 to 14 of the Karnataka\t Recruitment\nof Gazetted Probationers (Class I & 11 posts Appointment  by\nCompetitive Examination) Rules, 1966 shall mutatis  mutandis\napply to the conduct of the competitive Examination and\t the\nprovisions  of the Karnataka State Civil  Services  (General\nRecruitment)  Rules, 1957 shall apply in respect of  matters\nfor which no provision is made in the Rules.\n    In preparing the select list and making reservations  to\nthe  various categories, the Commission followed the  direc-\ntions  and  the procedure as contained in  Government  Order\ndated  6th September 1969. The State Government\t refused  to\napprove\t the list and directed the Commission on 23.4.76  to\nprepare the list afresh following the Government Order dated\n7th  July 1975. The Commission thereupon prepared  the\tlist\nafresh\tas  per Government Order of 7th July  1975.  In\t the\nrevised list, the appellants names did not figure.\n    The appellants challenged the validity of the Government\nOrder dated 23rd April 1976 as well as the revised list\t and\nthe validity of the Government Order dated 9th July 1975  by\nmeans of writ petitions before the High Court on a number of\ngrounds. The appellants contended that the Government  Order\ndated 7th July 1975 prescribing mode of preparing the select\nlist  by  making  reservations for  various  categories\t was\ninconsistent  with the statutory Rule 10 of 1966 Rules,\t and\nfurther\t the directions contained therein were violative  of\nArticles 16(1) and 16(4) of the Constitution of India.\n240\n    The\t High  Court rejected both the\tcontentions  holding\nthat  the  directions contained in Government Order  of\t 9th\nJuly 1975 were not violative of Rule 10(2) and there was  no\nviolation of Article 16 of the Constitution. The High  Court\nalso upheld the Government Order dated 23.4.76 directing the\nCommission  to prepare the select list afresh in  accordance\nwith  the mode prescribed vide Government Order of 9th\tJuly\n1975.\n    In\tthis  Court,  the appellants did  not  pursue  their\nchallenge  to  the validity of the  Government\tOrder  dated\n9.7.75\tbut they assailed the validity of  Government  Order\ndated 23.4.76 wherein the Government directed the Commission\nto prepare a revised list in accordance with the  Government\nOrder  dated 9.7.75 on the ground that the Government  Order\nwas not applicable to the pending selection.\n    The appellants also urged that the mode of selection and\nprocedure  for making reservations as prescribed by  Govern-\nment Order of 9th July 1975 was not applicable to the selec-\ntion  as advertisement had been issued in May 1975  and\t the\nprocess\t of  selection had already commenced  prior  to\t the\nissue of Government Order dated 9th July 1975, and that\t the\nrevised\t list of successful candidates prepared by the\tcom-\nmission as per Government directions of 23.4.76 was  illegal\nand contrary to the Rules.\n    On\tbehalf of the Respondents it was submitted that\t the\nlist  of successful candidates had been prepared in  accord-\nance  with Government Order dated 9th July 1975,  the  State\nGovernment was justified in insisting upon the Commission to\nprepare\t the list afresh in accordance with  the  directions\ncontained in the aforesaid order.\n    Allowing the Appeals and setting aside the Order of\t the\nHigh Court,\n    HELD: (1) Where advertisement is issued inviting  appli-\ncations\t for direct recruitment to a category of  posts\t and\nthe  advertisement expressly states that selection shall  be\nmade  in  accordance with the existing rules  or  Government\nOrders\tand if it further indicated the extent\tof  reserva-\ntions  in  favour of various categories,  the  selection  of\ncandidates  in such a case must be made in  accordance\twith\nthe then existing Rules and Government Orders if any.\n    (2)\t Whether the Rules have retrospective effect or\t not\nprimarily  depends  upon the language of the Rules  and\t its\nconstruction to ascertain the legislative intent.\n241\n    (3) Indisputably the Government Order of 9th July\t1975\nsuperseded  all earlier Government Orders including that  of\n6th  September\t1969 but in para II it saved  the  selection\nwhich  was  pending i.e. it saved the  reservations  already\nmade for any category of post or service in respect of which\nadvertisement  had already been issued before the  issue  of\nGovernment  Order  dated 9th July 1975. Para II was  in\t the\nnature\tof a saving clause, and the Commission rightly\tfol-\nlowed the mode of selection prescribed under the  Government\nOrder  in force prior to Government Order of 9th July  1975.\nThe  State Government was bound to give full effect  to\t the\nprovisions  of\tpara II of Government Order dated  9th\tJuly\n1975.  therefore  directions contained in  its\torder  dated\n23.4.76 were illegal [248C-E; 249E]\n    4.\tAnother\t aspect of the instant case  is\t that  where\nadvertisement is issued for direct recruitment to a category\nof  posts expressly stating that selection shall be made  in\naccordance with the existing rules or Government Orders\t and\nalso  indicates\t the  extent of reservations  in  favour  of\nvarious categories, the selection of candidates must be made\nin  accordance\twith these rules and Government\t Order.\t The\ncandidates  who\t applied for selection in pursuance  of\t the\nadvertisement,\tacquired vested right for  being  considered\nfor selection in accordance with the terms and conditions of\nthe advertisement. [249E-G]\n    5. In case the recruitment Rules are amended  retrospec-\ntively\tduring the pendency of the selection then  selection\nhas to be made in accordance with the amended rules. Whether\nrules  have  retrospective effect or not  primarily  depends\nupon  the  language  of the Rules and  its  construction  to\nascertain  the legislative intent, either by express  provi-\nsion  or by necessary implication. If the amended Rules\t are\nnot retrospective in nature the selection must be  regulated\nin accordance with the existing Rules and orders in force at\nthe time of advertisement. [249H; 250A-B]\n    (6) It is a well accepted principle of construction that\nStatutory Rule or Government Order is prospective in  nature\nunless\tit is expressly or by necessary implication made  to\nhave retrospective effect. [251 D]\n    (7) In the instant case, para II of the Government Order\ndated  9th  July 1975 made the Governments  intention  clear\nthat the revised directions which are contained in the\tsaid\nGovernment Order would not apply to the selection in respect\nof  which advertisement had already been  issued.  Therefore\nthe  mode of selection as contained in Annexure to the\tGov-\nernment Order dated 9th July 1975 was not applicable to\t the\nselection for filling 50 posts of Tehsildars pending  before\nthe Public Service Commission. [251G-H]\n242\n    8.\tHaving regard to the facts the circumstances of\t the\ncase.  it would be expedient in the interest of justice\t not\nto interfere with the respondents' appointment but the State\nGovernment  is directed to appoint I the appellants  on\t the\nposts of Tehsildars with retrospective effect. If no  vacan-\ncies  are  available  the State Government  is\tdirected  to\ncreate supernumerary posts of Tehsildars for appointing\t the\nappellants  against those posts. For purposes, of  seniority\nthe  appellants\t should be placed below the  last  candidate\nappointed in 1976 but they will not be entitled to any\tback\nwages. [252F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  2270-73
\nof 1987 & 17 13\/1990.\n<\/p>\n
    From  the  Judgment & Order dated the 11.8.1978  of\t the
\nKarnataka High Court in Writ Petition No. 4609\/76, 4610\/76 &
\n4611 of 1976.\n<\/p>\n
P.P. Rao and S.R. Bhatt for the Appellants.\n<\/p>\n
M. Veerappa for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nSINGH, J. Special leave granted.\n<\/p>\n
    These  appeals  are directed against the judgment  of  a
\nDivision  Bench of the High Court of Karnataka dated  August
\n11,  1978  dismissing the appellants’  writ  petition  under
\nArticle 226 of the Constitution of India challenging validi-
\nty  of\tthe revised select list prepared  by  the  Karnataka
\nPublic\tService Commission for appointment to the  posts  of
\nTehsildars.\n<\/p>\n
    In\tthe State of Karnataka recruitment to the  posts  of
\nTehsildars  is\tregulated by  the  Karnataka  Administrative
\nServices  (Tehsildars)\tRecruitment  (Special)\tRules\t1975
\n(hereinafter  referred\tto  as 1975  Rules).  The  Karnataka
\nPublic\tService Commission (hereinafter referred to  as\t the
\nCommission) issued a Notification on May 23, 1975 (published
\non  May\t 29,  1975) inviting  applications  from  in-service
\ncandidates for recruitment to 50 posts of Tehsildars.  Para-
\ngraph  3 of the Notification specified details of the  posts
\nreserved  for  candidates  belonging  to  Scheduled  Castes,
\nScheduled Tribes and other Backward classes including 10% of
\nposts set apart for Ex-Military Personnel. According to\t the
\nfigures specified, therein, out of 50 posts of
\n243<\/span>
\nTehsildars, 5 posts were reserved for Ex-Military Personnel,
\n7 posts for Schedule Castes, 1 post for Schedule Tribes\t and
\n13  posts  for other Backward classes. Paragraph  3  of\t the
\nadvertisement  stated that in the event of  non-availability
\nof  sufficient number of candidates belonging  to  Scheduled
\nCastes.\t Scheduled Tribes and other Backward classes or\t Ex-
\nMilitary  personnel, for filing to the\treserved  vacancies,
\nsuch vacancies shall be filled up as per Rules in force. The
\nNotification  further gave details of the written  and\tviva
\nvoce  examinations. Para 14 of the Notification stated\tthat
\nthe provisions of 1975 Rules and Rules 7 to 14 of the Karna-
\ntaka  Recruitment of Gazetted Probationers (Class I  and  II
\nposts  Appointment  by Competitive Examination)\t Rules\t1966
\n(hereinafter  referred\tto  as 1966  Rules),  shall  mutatis
\nmutandis apply to the conduct of the competitive examination
\nand  the  provisions of the Karnataka State  Civil  Services
\n(General Recruitment) Rules 1957 (hereinafter referred to as
\n1957  Rules) shall apply in respect of matters for which  no
\nprovision   is\t made  in  the\tRules.\t Pursuant   to\t the
\nadvertisement,\tthe  appellants who were in service  of\t the
\nState Government applied for their selection and appointment
\nto  the posts of Tehsildars. After the\twritten\t examination
\nand  viva  voce test the Commission finalised  the  list  of
\nsuccessful candidates and published the same in the Karnata-
\nka  Gazette dated March 18, 1976. The Commission also  noti-
\nfied  in  additional list of successful candidates  for\t ap-
\npointment to the posts of Tehsildars in accordance with 1975
\nRules,\twhich included the names of the appellants. In\tpre-
\nparing the select list and making reservation to the various
\ncategories,  the Commission followed the directions and\t the
\nprocedure  as  contained in the Government Order  dated\t 6th
\nSeptember 1969. The State Government refused to approve\t the
\nlist prepared by the Commission as in its opinion the reser-
\nvation for the Scheduled Castes, Scheduled Tribes and  other
\nBackward  classes should have been made in  accordance\twith
\nthe  directions\t and procedure contained in  the  Government
\nOrder dated 9th July 1975. The State Government by its order
\ndated  23rd April 1976 directed the Commission to prepare  a
\nfresh  list of successful candidates by making\treservations
\nin accordance with the procedure contained in the Government
\norder dated 9th July 1975. Pursuant to the directions of the
\nState  Government  the Commission prepared the\tselect\tlist
\nafresh,\t after\tmaking reservations in accordance  with\t the
\nprocedure prescribed by the Government Order dated 9th\tJuly
\n1975,  and published the same on 27th May 1976.\t The  appel-
\nlants’\tnames did not figure in the revised list  of  candi-
\ndates. The appellants challenged validity of the  Government
\nOrder  dated  23rd April 1976 as well as  the  revised\tlist
\nprepared  by  the Commission and also the  validity  of\t the
\nGovernment  Order  dated  9th July 1975, by  means  of\twrit
\npetitions before the High Court
\n244<\/span>
\non  a number of grounds. A Division Bench of the High  Court
\nby its order dated 11th August 1978 dismissed the petitions.
\nHence these appeals.\n<\/p>\n
    The appellants had challenged validity of the Government
\nOrder  dated 9th July 1975, prescribing mode  for  preparing
\nthe select list by, making reservation for Scheduled Castes,
\nScheduled  Tribes and other Backward classes, on the  ground
\nthat the same was inconsistent with the statutory Rule 10 of
\n1966  Rules  and further on the ground that  the  directions
\ncontained therein were violative of Articles 16(1) and 16(4)
\nof  the Constitution Of India. The High Court rejected\tboth
\nthe contentions holding that the directions contained in the
\nGovernment  Order dated 9th July 1975 were not violative  of
\nRule  10(2) and there was no violation of Article 16 of\t the
\nConstitution.  The  High Court upheld the  Government  Order
\ndated  23rd April 1976 directing the Commission\t to  prepare
\nthe  select  list afresh in accordance with  the  mode\tpre-
\nscribed\t under\tthe Government Order dated  9th\t July  1975.
\nLearned counsel for the appellants did not pursue the  chal-
\nlenge relating to the validity of the Government Order dated
\n9th July 1975 before us instead he assailed the validity  of
\nthe State Government’s Order dated 23rd April 1976 directing
\nthe Commission to prepare a revised list in accordance\twith
\nthe Government Order dated 9th July 1975, on the ground\t the
\nGovernment Order was not applicable to the selection.
\n    ‘Learned  counsel  for  the appellants  urged  that\t the
\nCommission  had\t rightly  prepared the\tlist  of  successful
\ncandidates published on 18th May 1976 in accordance with the
\ndirections  contained  in  the Government  Order  dated\t 6th
\nSeptember  1969 by making reservation of posts of  Scheduled
\nCastes, Scheduled Tribes and other Backward classes but\t the
\nState  Government wrongly refused to approve the said  list.
\nHe urged that the mode of selection and procedure for making
\nreservation as prescribed by the Government Order dated\t 9th
\nJuly 1975 was not applicable to the selection as  advertise-
\nment had been issued in May 1975, and the process of  selec-
\ntion had already commenced prior to the issue of the Govern-
\nment Order dated 9th July 1975. The revised list of success-
\nful  candidates prepared by the Commission pursuant  to\t the
\nGovernment’s  directions dated 23rd April 1976\twas  illegal
\nand contrary to the Rules. Learned counsel for the  respond-
\nents submitted that the Government Order dated 9th July 1975
\nprescribed  mode of selection and it also prescribed  proce-
\ndure for making reservations for Scheduled Castes, Scheduled
\nTribes\tand  other Backward classes in supersession  of\t the
\nearlier\t Government  Order including  the  Government  Order
\ndated 6th September 1969 therefore the Commission was
\n245<\/span>
\nfound to follow the procedure as prescribed in the aforesaid
\norder  in preparing the select list. Since the list of\tsuc-
\ncessful candidates had not been prepared in accordance\twith
\nthe  Government Order dated 9th July 1975 the State  Govern-
\nment  was  justified  in insisting upon\t the  Commission  to
\nprepare\t the list afresh in accordance with  the  directions
\ncontained in the aforesaid Government Order.
\n    The\t question which requires determination is, which  of
\nthe  two Government Orders, namely, 6th September  1969\t and
\n9th July 1975, the Commission was required to be followed in
\npreparing  the select list for appointment to the  posts  of
\nTehsildars  as both the Government Orders  contained  direc-
\ntions for making reservations in preparing the select  list.
\nIn order to determine the question, it would be necessary to
\nrefer  to  the directions contained in\tthe  two  Government
\nOrders.\t There\tis no dispute that the\trecruitment  of\t in-
\nservice\t candidates for the 50 posts of Tehsildars  in\tdis-
\npute,  was regulated by the 1975 Rules framed under  Article
\n309 of the Constitution as published in the Gazette on
\n20th  March  1975. Rule 5 laid down that the  provisions  of
\nRules 7 to 14 of 1966 Rules shall mutatis mutandis apply  to
\nconduct\t of  competitive examination and the  provisions  of
\nKarnataka  State Civil Services (General Recruitment)  Rules
\n1957  shall apply in respect of matters for which no  provi-
\nsion  is made in the Rules. The aforesaid Rules do not\tpre-
\nscribe\tany procedure for preparation of select list or\t for
\nmaking reservations but in view of Rule 5 the provisions  of
\nother  Rules are made applicable. Rule 10 of  the  Karnataka
\nRules  1966  which provides for reservations  for  Scheduled
\nCastes,\t Scheduled  Tribes and other  Backward\tclasses\t was
\napplicable in view of Rule 5 of 1975 Rules. Rule 10 of\t1966
\nRules is as under:\n<\/p>\n
“10. Reservation for Scheduled Castes, Scheduled Tribes\t and
\nother  backward classes–(1) There shall be  reservation  of
\nvacancies  for\tcandidates belonging  to  Scheduled  Castes,
\nScheduled  Tribes and other Backward Classes to\t the  extent
\nprovided  for  by the Government by any general\t or  special
\norders.\n<\/p>\n
\t  (2)  In filling the vacancies to reserved,  candi-
\ndates who are members of the Scheduled Castes and  Scheduled
\nTribes\tand other Backward Classes shall be  considered\t for
\nappointment  in\t the  order of merit in\t which\ttheir  names
\nappear in the list of successful candidates irrespective  of
\ntheir relative rank as compared with other candidates and to
\nservices according to the reservation made for them in\tsuch
\nservices.\n<\/p>\n
246<\/span><\/p>\n
\t  (3)  If a sufficient number of candidates who\t are
\nmembers of the Scheduled Castes, Scheduled Tribes and  other
\nbackward classes are not available for filling up the vacan-
\ncies reserved for them, such vacancies shall be filled up by
\nthe appointment of other candidates in the list.”
\nPursuant  to Clause (1) of Rule 10 of the  State  Government
\nhas been providing for reservation of vacancies in favour of
\ncandidates  belonging to Scheduled Castes, Scheduled  Tribes
\nand  other  Backward classes by means  of  executive  orders
\nissued\tfrom  time to time. The Government Order  dated\t 6th
\nSeptember  1969, was issued under Rule 10(1) which  provided
\nthat reservations for appointment to post in the State Civil
\nService\t shall\tcontinue to be made in favour  of  Scheduled
\nTribes,\t Scheduled Castes and other Backward classes to\t the
\nextent of 3%, 15% and 30% respectively, where the posts\t are
\nfilled-up  by direct recruitment. Para 5 of  the  Government
\nOrder  directed\t that the Commission  and  other  recruiting
\nauthorities shall follow the procedure prescribed in  Annex-
\nure  2\tto the Government Order in making  reservations\t and
\npreparing  list of selected candidates. There is no  dispute
\nthat  the Commission had prepared the select list which\t was
\npublished  on 18th March 1976 in accordance with the  proce-
\ndure  laid down in Annexure 2 to the Government Order  dated
\n6th September 1969.\n<\/p>\n
    During  the pendency of selection, the State  Government
\nissued the order dated 9th July 1975 revising the extent  of
\nreservation and also prescribing a different mode of  selec-
\ntion.  Para 4 of that Government Order laid down that  while
\nmaking appointment to the State Civil Services,\t reservation
\nin  favour of Scheduled Castes, Scheduled  Tribes,  Backward
\nTribes\tand  other  Backward classes shall be  made  to\t the
\nextent\tof  15%,  3%, 3% and 28% respectively,\tin  case  of
\ndirect\trecruitment.  Para 6 of the Order  further  directed
\nthat  in case of direct recruitment where the  selection  is
\nmade by the Public Service Commission or any other  recruit-
\ning authority, the procedure as prescribed in Annexure 2  to
\nthe Order shall be followed in preparing the list of select-
\ned  candidates.\t Annexure “to the Order prescribed  mode  of
\nselection,  which is quite different than that contained  in
\nAnnexure 2 to the Government Order dated 6th September 1969.
\nIt is not necessary to go into the details of the two  modes
\nas there is no dispute that the Commission had followed\t the
\nprocedure as prescribed under Annexure .? to the Government.
\nOrder dated 6th September 1969 and the list, so prepared was
\nnot approved by the State Government as it was of the  opin-
\nion  that  the Commission should have followed the  mode  of
\nselection as contained in Annexure 2 to the Government Order
\ndated
\n247<\/span>
\n9th July 1975 in preparing the select list.\n<\/p>\n
    It appears that the Commission insisted before the State
\nGovernment  that in view of Para II of the Government  Order
\ndated 9th July 1975 reservations made in favour of Scheduled
\nCastes, Scheduled Tribes and other Backward classes  already
\nnotified before the issue of Government Order dated 9th July
\n1975  remain unchanged therefore the provisions of the\tGov-
\nernment\t Order dated 6th September 1969 had to\tbe  followed
\nboth  in regard to reservations and the mode  of  selection.
\nThe  State  Government by its Order dated  23rd\t April\t1976
\nrefused to accept the Commission’s plea and it directed\t the
\nCommission to prepare a revised list in accordance with\t the
\nprovisions  of\tGovernment Order dated 9th  July  1975.\t The
\nState  Government while rejecting the Commission’s plea\t and
\nissuing the aforesaid direction made observations as under:
\n“Para 11 of the G.O. dated 9th July 1975 supersedes a11\t the
\nprevious  Government  Orders cited in the preamble  to\tthat
\norder, including the G.O. dated 6th September 1969. The same
\npara  states that the order, came into force with  immediate
\neffect,\t but makes only one exception i.e. in the matter  of
\nreservations  already made in the cases of posts  and  serv-
\nices,  for which advertisement had been issued prior to\t the
\ncoming\tinto  force of the G.O. dated 9th  July\t 1975.\tThis
\nmeans  that  except in the matter of  reservations  made  in
\nposts for which applications had already been called for, in
\nall other matters the provisions of the G.O. dated 9th\tJuly
\n1975 would apply. The words are clear that the intention  is
\nalso  clearly spelt out. Hence so far as the mode of  selec-
\ntion is concerned, the one prescribed in Annexure II to\t the
\nG.O. dated 9th July 1975 will have to be followed in respect
\nof  all\t selections made after that date  either  a  literal
\nconstruction  or  a harmonious construction of\tthe  various
\nclauses\t of the G.O. dated 9th July 1975 leads to the  above
\nconclusion. For these reasons the Commission’s view that  in
\nrespect\t of posts already advertised prior to the  issue  of
\nthe Government Order dated 9th July 1975, the mode of selec-
\ntion  prescribed in the earlier Government Orders and to  be
\nfollowed is not acceptable to Government.”\n<\/p>\n
    In our opinion the State Government’s view was  contrary
\nto  the directions contained in para 11 of its\tOrder  dated
\n9th July 1975, which is as under:\n<\/p>\n
248<\/span><\/p>\n
\t  1. This Government Order supersedes the Government
\nOrder  cited in the preamble and shall come into force\twith
\nimmediate effect, subject to the provision that the reserva-
\ntion  already made for any category of posts or service\t and
\nadvertised  before the issue of this Government Order  shall
\nremain\tunchanged and shall be deemed to have  been  validly
\nmade.  All  official memoranda, Circulars  and\tinstructions
\nissued\tin pursuance of the Government Orders superseded  by
\nthis  Government  Order shall also be deemed  to  have\tbeen
\nsuperseded  if such instructions are contrary to the  provi-
\nsions of this Government Order.”\n<\/p>\n
\t\t\t\t     (emphasis supplied).\n<\/p>\n
Indisputably  the aforesaid Government Order superseded\t all
\nearlier\t Government  Orders  on the  subject  including\t the
\nGovernment  Order dated 6th September 1969 but while  super-
\nseding\tthose orders provision was made in para 11  to\tsave
\nthe  selection which was pending. Para 11    clearly  stated
\nthat though earlier Government Orders laying down percentage
\nof  reservation required to be made in favour  of  Scheduled
\nCastes, Scheduled Tribes and other Backward classes  includ-
\ning  the  mode of selection in preparing  the  select  list,
\nstood superseded, but it saved the reservations made for any
\ncategory  of post or service in respect of which  advertise-
\nment had already been issued before the issue of the Govern-
\nment  Order dated 9th July 1975. This follows from  the\t ex-
\npression  “reservations\t already made for  any\tcategory  of
\nposts  or  service and advertised before the issue  of\tthis
\nGovernment Order shall be deemed to have been validly made”.
\nThese  directions  stipulated that where  reservations\twere
\nalready\t made  and advertisement had been  issued,  and\t the
\nselection  was\tpending\t on 9th July 1975,  the\t same  shall
\nremain unaffected and the selection shall be made in accord-
\nance with the earlier Government Orders, and the same  shall
\nbe  treated  to have been made validly. Para 11\t is  in\t the
\nnature\tof a saving clause, its object and purpose,  was  to
\nsave  the  selections in respect of  which  proceedings\t had
\nalready been initiated by issuing advertisement. In view  of
\nthe Government’s own directions, as contained in para 11  of
\nits  Order the amended mode of selection was not  applicable
\ntherefore  the Commission rightly followed the mode  of\t the
\nselection  prescribed under the Government Order  dated\t 6th
\nSeptember  1969\t as admittedly the said Order was  in  force
\nprior to 9th July 1975.\n<\/p>\n
    The State Government’s interpretation of para 11 of\t its
\nOrder dated 9th July 1975 was incorrect and wrong. It failed
\nto  appreciate\tthat in the instant case  reservations.\t had
\nalready been made and
\n249<\/span>
\nnotified under the advertisement published on 18th May 1975.
\nTherefore  the conditions precedent contemplated in para  11
\nwere fully satisfied. In this view the selection made by the
\ncommission  by\tfollowing the reservations and the  mode  of
\nselection as prescribed under the provisions of the  Govern-
\nment Order dated 6th September 1969 were deemed to have been
\nmade validly in accordance with the provisions of para 11 of
\nthe  Government Order. It is relevant to point out that\t the
\nGovernment Orders dated 6th September 1969 and 9th July 1975
\nboth  had been issued by the Government in exercise  of\t its
\nstatutory  power under Rule 10 of 1975 Rules, making  provi-
\nsions for reservations and prescribing mode of selection.  A
\nGovernment  Order  issued in exercise  of  statutory  powers
\nacquires  statutory  force, therefore, the  provisions\tcon-
\ntained\tin  the aforesaid Government  Orders  including\t the
\nprovisions of para 11 of the Government Order dated 9th July
\n1975  also  acquired  statutory character.  Though  para  11
\nsuperseded earlier Government Orders but it expressly  saved
\nthe pending selections where reservations were already\tmade
\nand  advertisement had been issued. Para 11 being  statutory
\nin  nature was binding on the Government and the  Government
\nhad no authority to direct the Commission by means of Admin-
\nistrative Order to revise the Select List in accordance with
\nthe  amended mode of selection as prescribed under the\tGov-
\nernment’s  Order  dated 9th July 1975. In  our\topinion\t the
\nState Government was bound to give full effect to the provi-
\nsions of Para 11 of the Government Order dated 9th July 1975
\nand  therefore directions contained in its order dated\t23rd
\nApril 1976 were illegal.\n<\/p>\n
    There  is  yet  another aspect of  the  question.  Where
\nadvertisement  is  issued inviting applications\t for  direct
\nrecruitment  to a category of posts, and  the  advertisement
\nexpressly states that selection shall be made in  accordance
\nwith  the  existing Rules or Government Orders,\t and  if  it
\nfurther\t indicates the extent of reservations in  favour  of
\nvarious\t categories, the selection of candidates in  such  a
\ncase must be made in accordance with the then existing Rules
\nand  Government\t Orders. Candidates who apply,\tand  undergo
\nwritten\t or  viva voce test acquire vested right  for  being
\nconsidered  for selections in accordance with the terms\t and
\nconditions contained in the advertisement, unless the adver-
\ntisement itself indicates a contrary intention. Generally, a
\ncandidate has right to be considered in accordance with\t the
\nterms  and  conditions set out in the advertisement  as\t his
\nright  crystalises on the date of publication of  advertise-
\nment, however he has no absolute right in the matter. If the
\nrecruitment  Rules  are amended retrospectively\t during\t the
\npendency of selection, in that event selection must be\theld
\nin accordance with the amended Rules. Whether the Rules have
\n238<\/span>
\nretrospective  effect  or not, primarily  depends  upon\t the
\nlanguage of the Rules and its construction to ascertain\t the
\nlegislative  intent. The legislative intent  is\t ascertained
\neither by express provision or by necessary implication,  if
\nthe amended Rules are not retrospective in nature the selec-
\ntion  must  be regulated in accordance with  the  Rules\t and
\norders\twhich  were in force on the date  of  advertisement.
\nDetermination of this question largely depends on the  facts
\nof  each case having regard to the terms and conditions\t set
\nout in the advertisement and the relevant Rules and  orders.
\nLest there be any confusion, we would like to make it  clear
\nthat  a candidate on making application for a post  pursuant
\nto  an advertisement does not acquire any vested  right\t for
\nselection, but if he is eligible and is otherwise  qualified
\nin  accordance\twith the relevant Rules and the\t terms\tcon-
\ntained in the advertisement, he does acquire a vested  right
\nfor  being considered for selection in accordance  with\t the
\nRules  as  they\t existed on the date  of  advertisement.  He
\ncannot be deprived of that limited right on the amendment of
\nRules  during the pendency of selection unless\tthe  amended
\nRules are retrospective in nature.\n<\/p>\n
    In\tB.N.  Nagarajan & Ors. v. State of  Mysore  &  Ors.,<\/a>
\n[1966]\t3  SCR 682, the dispute related to the\tvalidity  of
\nappointment  of\t Assistant  Engineers.\tThe  Public  Service
\nCommission invited applications by issuing Notifications for
\nappointment  to the post of Assistant Engineers\t in  October
\n1958,  May 1959 and April 1960. The Commission\tmade  selec-
\ntion, interviewed the candidates and sent the select list to
\nthe  Government\t in October\/November 1960.  But\t before\t the
\nappointment could be made the Mysore Public Works, Engineer-
\ning  Department Services (Recruitment) Rules 1960 came\tinto
\nforce  which  prescribed  different  provisions\t than  those
\nprescribed in the earlier Notifications in pursuance whereof
\nthe  Public Service Commission had made the selections.\t The
\nvalidity  of the appointment made by the Government  on\t the
\nbasis  of  the selection made by the  Commission  was  chal-
\nlenged.\t The High Court quashed the selection  and  appoint-
\nments  made  in\t pursuance thereof. On\tappeal\tbefore\tthis
\nCourt,\tvalidity  of the appointment were  assailed  on\t the
\nground\tthat since the appointments had been made after\t the
\namendment  of  the Rules the appointments should  have\tbeen
\nmade  in accordance with the amended Rules.  A\tConstitution
\nBench  of  this Court rejected the contention  holding\tthat
\nsince the whole procedure of issuing advertisement,  holding
\ninterviews  and recommending the names having been  followed
\nin  accordance\twith the then existing Rules  prior  to\t the
\nenforcement  of the amended Rules the appointments  made  on
\nthe  basis of the recommendation made by the Public  Service
\nCommission could not be rendered invalid.\n<\/p>\n
250<\/span><\/p>\n
    In\tY.V. Rangaiah v.J. Sreenivasa Rao, [1983] 3 SCC\t 285
\nsimilar Question arose relating to recruitment by promotion.
\nThe question was whether promotion should be made in accord-
\nance  with  the Rules, in force on the\tdate  the  vacancies
\noccurred or in accordance with the amended Rules. The  Court
\nobserved as under:\n<\/p>\n
“The  vacancies\t which occurred prior to the  amended  rules
\nwould  be governed by the old rules and not by\tthe  amended
\nrules.\tIt is admitted by counsel for both the parties\tthat
\nhenceforth  promotion to the post of Sub-Registrar Grade  II
\nwill  be according to the new rules on the zonal  basis\t and
\nnot  on\t the Statewise basis and, therefore,  there  was  no
\nquestion  of challenging the new rules. But the question  is
\nof filling the vacancies that occurred prior to the  amended
\nrules. We have not the slightest doubt that the posts  which
\nfell vacant prior to the amended rules would be governed  by
\nthe old rules and not by the new rules.”\n<\/p>\n
The same view was taken in P. Ganeshwar Rao & Ors. v.  State
\nof Andhra Pradesh & Ors.,<\/a> [1988] Supp. SCC 740. Similar view
\nwas taken in A.A. Calton v. Director of Education & Ors.,<\/a>  [
\n1983] 3SCC 33. It is a well accepted principle of  construc-
\ntion  that a statutory rule or Government Order is  prospec-
\ntive in nature unless it is expressly or by necessary impli-
\ncation made to have retrospective effect. Where\t proceedings
\nare  initiated for selection by issuing\t advertisement,\t the
\nselection should normally be regulated by the then  existing
\nrules  and Government Orders and any amendment of the  rules
\nor  the\t Government Order pending the selection\t should\t not
\naffect\tthe validity of the selection made by the  selecting
\nauthority or the Public Service Commission unless the amend-
\ned rules or the amended Government orders issued in exercise
\nof  its\t statutory power either by express provision  or  by
\nnecessary  intendment indicate that amended Rules  shall  be
\napplicable to the pending selections. See P. Mahendra & Ors.
\nv.  State  of Karnataka & Ors., [1989] 4 Judgment  Today  SC\n<\/p>\n
459.
\n    In\tthe  instant case, para 11 of the  Government  Order
\ndated  9th July 1975 made the Government’s  intention  clear
\nthat  the  revised directions which were contained  in\tthat
\nGovernment  Order would not apply to the selections  in\t re-
\nspect of which advertisement had already been issued, there-
\nfore the mode of selection as contained in Annexure 2 to the
\nGovernment  Order dated 9th July 1975 was not applicable  to
\nthe selection for filling the 50 posts of Tehsildars pending
\nbefore the Public Service Commission. We are, therefore,  of
\nthe opinion that the
\n251<\/span>
\nselect list including the additional list as prepared by the
\ncommission  and published in March 1976 was legal and  valid
\nand  though Government wrongly refused to approve the  same.
\nThe State Government’s Order dated 23rd April 1976 directing
\nthe Commission to prepare fresh list in accordance with\t the
\nmode of selection as contained in Annexure 2 to the  Govern-
\nment Order dated 9th July 1975 was illegal consequently\t the
\nselect\tlist prepared afresh by the Commission\tpursuant  to
\nthe directions of the State Government is not sustainable in
\nlaw.  Since the additional list prepared by  the  Commission
\ncontained the names of the appellants, they were entitled to
\nappointment to posts of Tehsildars. We accordingly allow the
\nappeals set aside the order of the High Court and direct the
\nState  Government to appoint the appellants to the posts  of
\nTehsildars, on the basis of additional list published by the
\nCommission on 18th March 1976.\n<\/p>\n
    During the pendency of the writ petition before the High
\nCourt, appointments were made to the posts of Tehsildars  on
\nthe basis of the revised list prepared by the Commission  in
\naccordance with the directions of the State Government dated
\n23rd  April 1976. Pursuant to the interim direction  of\t the
\nHigh Court the appointment orders contained a specific\tterm
\nthat the appointments would be subject to the result of\t the
\nwrit petition filed by the appellants. Since the  appellants
\nhave succeeded, the respondents’ appointment is liable to be
\nset aside. The respondents have been working for a period of
\nabout  14  years, it would cause great hardship to  them  if
\ntheir  appointment  is\tquashed, and they  are\tdirected  to
\nvacate\tthe office which they have been holding\t during\t all
\nthese  years.  At  the same time the  appellants  have\tbeen
\nwrongly\t denied\t their\tright to the  posts  of\t Tehsildars.
\nHaving\tregard to these facts and circumstances, we  are  of
\nthe  opinion that it would be expedient in the\tinterest  of
\njustice\t not to interfere with the respondents’\t appointment
\nbut  at the same time steps should be taken to\tenforce\t the
\nappellants’ right to the posts of Tehsildars. In this  view,
\nwe direct the State Government to appoint the appellants  on
\nthe posts of Tehsildars with retrospective effect, but if no
\nvacancies  are\tavailable the State Government\twill  create
\nsupernumerary posts of Tehsildars for appointing the  appel-
\nlants  against those posts. We further direct that for\tpur-
\npose of seniority the appellants should be placed below\t the
\nlast  candidate\t appointed  in 1976, but they  will  not  be
\nentitled to any back wages. The appellants will be  entitled
\nto promotion if otherwise found suitable.\n<\/p>\n
In the circumstances of the ,case, parties shall bear  their
\nown costs.\n<\/p>\n
S.B.\t\t\t\t\t\t     Appeals\nallowed.\n252<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N.T. Bevin Kath Etc vs Karnataka Public Service … on 30 March, 1990 Equivalent citations: 1990 AIR 1233, 1990 SCR (2) 239 Author: K Singh Bench: Singh, K.N. (J) PETITIONER: N.T. BEVIN KATH ETC. Vs. RESPONDENT: KARNATAKA PUBLIC SERVICE COMMISSION AND ORS. DATE OF JUDGMENT30\/03\/1990 BENCH: SINGH, K.N. (J) BENCH: SINGH, […]<\/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-87943","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN.T. 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