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PETITIONER: B.     N. NAGARAJAN AND ORS.

       Vs.

RESPONDENT: STATE OF MYSORE AND ORS.

DATE OF JUDGMENT: 01/03/1966

BENCH:

ACT: Constitution of India, Art. 309, proviso-Scope of. Mysore Stale Civil Services (General Recruitment) Rules 1957 r.  3  Provision  for  service rules to  be  made  for  each service-Whether  in  absence  of such rules  has  effect  of suspending  executive power of Stale under Art. 162 to  make service appointments. Mysore   Public  Works,  Engineering   Department   Services (Recruitment)  Rules 1960-Considered-Mysore  Public  Service Commission  (Functions) Rules, 1957-Whether statutory  rules under Art. 309.

HEADNOTE: By notifications issued in October 1958, May 1959 and  April 1960,   the   Mysore  Public  Service   Commission   invited applications   for  the  recruitment  of   80   probationary Assistant  Engineers-.- The qualifications, pay,  age  limit and  other  conditions for eligibility  were  prescribed  by these notifications. On March 1, 1960, it was notified by the Governor, that  for direct recruitment to appointments and posts in the services of   the  State,  reservations  for  Scheduled  Castes   and Scheduled  Tribes would be 15% and 3%; and  the  reservation for other backward classes would be 25%. Thereafter, in October and November 1960, the Mysore  Public Service  Commission  interviewed the candidates and  sent  a list to the Government of 80 candidates selected by them. On December 3, 1960, the Government of Mysore sanctioned the establishment  of the State Service Cadre in respect of  the Mysore Public Works Engineering Department Service.  On  the same  date,  in  exercise of the  powers  conferred  by  the proviso  to Art. 309 the Governor made the rules called  the Mysore   Public  Service  Engineering   Department   Service (Recruitment) Rules 1960.  These Rules prescribed in respect of   each  category  of  specified  posts  the  methods   of recruitment,  whereby only 40% of the appointment  could  be made after an interview and an oral test and also prescribed the  minimum qualifications, age limits, etc. for  Assistant Engineers   which   were  somewhat  different   from   those prescribed in the earlier Notifications of the Mysore Public Service  Commission  relating  to  the  recruitment  of   80 Assistant Engineers. On October 23, 1961 the Governor made certain amendments  to the  1960 Rules the effect of which was to make those  rules retrospective  with effect from March 1, 1958 and  also,  to waive  the  -requirements  of  the  rules  relating  to  the percentages    for    direct    recruitment,     educational qualifications,  and  age requirements, etc. in  respect  of direct  recruitment  of Assistant Engineers  for  the  first

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time. Thereafter,  on October 31, 1961, the Governor appointed  88 candidates  as  probationary  Assistant  Engineers.    These appointments  were challenged in 16 Writ Petitions filed  in the  High Court on the grounds inter alia, that (1) in  view of Rule 3 of the Mysore State Civil Services 683 (General  Recruitment) Rules, 1957, which provided that  the method  of  recruitment and qualifications  for  each  State Civil Service shall be set forth in the rules of recruitment of   such  service  specially  made  in  that  behalf,   the Government could not recruit the Assistant Engineers without framing the necessary rules; (ii) the State Government could not make rules retrospectively unless it had express  powers to do so under the relevant statute; (iii) the  appointments which  were  made  on October 31, 1951 had  to  be  made  in accordance with the 1960 Rules but in fact were not so made; (iv)  some of the appointments were made mala  fide.   These writ petitions were allowed by the High Court. On appeal to this Court, HELD  : The appointments of the 88 Assistant Engineers  were validly  made in the exercise of the executive power of  the State under Art. 162 of the Constitution. It  is not obligatory under the proviso to Art. 309 to  make rules   of  recruitment  etc.  before  a  service   can   be constituted  or  a  post  created  or  filled.   The   State Government  has executive power in relation to  all  matters with respect to which the Legislature of the State hag power to  make  laws.   It  follows  from  this  that  the   State Government  will have executive power in respect of List  11 Entry 41 "State Public Services". [686 C-E] In this background, Rule 3 of the General Recruitment  Rules of  1957 cannot be interpreted as suspending  the  executive power  of the State till rules of recruitment of  a  service are specially made in that behalf. [686 G] Ram Jawaya Kapur v. State of Punjab, [1955] 2 S.C.R. 225 and T. Cajee v. K. Jormanic Siem, [1961] 1 S.C.R. 750,  referred to. Even if it were to be assumed that the rules purported to be made  by the State Government had no retrospective  validity the  position  would be that there were no  statutory  rules governing the appointment of the 88 Assistant Engineers; but that  could  not prevent the State  Government  from  making valid appointments in the exercise of its executive  powers. [694 P] It cannot be said that the appointments made in October 1960 had  to be under statutory rules made on December  3,  1960. It took about two years for the Public Service Commission to publish  notifications, interview candidates  and  recommend names  for  appoinment.   The whole  procedure  having  been followed,  it  could  not have been  the  intention  of  the Government,  while framing the rules, to cover  appointments made  in  pursuance  of the recommendations  of  the  Public Service Commission made in November 1960 after  interviewing the candidates in October 1960. [694 G-695 B] On  the  facts, no mala fide or collateral object  had  been proved. The Mysore Public Service Commission (Function) Rules,  1957 are  not  statutory rules made under Art. 309.   First.  the rules do not expressly say so; and secondly, they deal  with the  functions of the Commission rather than with the  rules regarding recruitment to services or posts. [685 E]

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 430. 461 of 1964. Appeals  from the judgment and order dated October 11,  1962 of the Mysore High Court in Writ Petitions Nos. 1248,  1267, 1269,  1294-1298, 1311, 1312, 1318, 1341, 1354,  1355,  1382 and 1384. 684 M.C. Setalvad, S. C. Javali, 0. C. Mathur, J. B. Dadachanji, and Ra.vinder Narain, for appellants Nos. 1-4, 6-45 and  48- 76 (in C.   As. Nos. 430-445 of 1964). A.K.  Sen,  B.  R. L. Iyengar and B. R.  G.K.  Achar  for respondents  Nos. 2 and 3 (in C. As.  Nos. 430-445 of  1964) and Appellants (in C. A. Nos. 446-461 of 1964). M.   K.  Nambyar,  S. N. Andley, Rameshwar Nath  and  P.  L. Vohra,for  respondents (in C. As.  Nos. 446,  447,  449- 452,456 and 459 of1964). J.   B.  Dadachanji, 0. C. Mathur and Ravinder  Narain,  for the Intervener. The Judgment of the Court was delivered by Sikri,  J  These  appeals, by special  leave,  are  directed against  the  judgment  of  the  High  Court  of  Mysore  at Bangalore in 16 Writ Petitions filed before it, quashing the notification  of the Government bearing No. P. W. 10 SAG  59 dated October 31, 1961, and the appointments made thereunder of 88 Assistant Engineers in the Public Works Department  of the State Government. To appreciate the arguments addressed to us on behalf of the appellants and the respondents, it is necessary to give,  in chronological order, the events leading up to the filing  of the  above  writ  petitions  and  their  significance.    On December 12, 1957, the Governor of Mysore made rules  called the  Mysore  Public Service  Commission  (Functions)  Rules, 1957,  hereinafter called the Functions Rules,  relating  to the functions of the Mysore Public Service Commission.  Rule 3 of these rules provides for recruitment by examination and r.  4  with which we are primarily  concerned  provides  for recruitment by selection.  Rule 4 is as follows : "When  recruitment  to a service or post is to  be  made  by selection, and consultation with the Commission is required, the Commission shall (1)advise  the Government in regard to the  conditions  of eligibility of candidates; (2)after  the  rules  to be made  have  been  approved  by Government  and a requisition for recruitment  is  received, invite  applications from intending candidates after  giving due  publicity to conditions of eligibility, nature of  com- petition,  number of vacancies to be filled where  possible, and any other relevant material; (3)consider  all  applications received and  when  necessary interview   such   candidates  as  fulfil   the   prescribed conditions  and  whom  it considers most  suitable  for  ap- pointment; 685 Note.-Nothing contained herein shall preclude the Commission from  considering the case of any candidate  possessing  the prescribed   qualifications   brought  to  its   notice   by Government,  even  if such a candidate has  not  applied  in response to the advertisement of the Government. (4)forward  to the Appointing Authority a list  consisting of  such  number as it may fix, of the candidates  whom  the commission considers most suitable for appointment in  order of preference; Provided  that  the  Commission  may  invite  Government  to

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nominate  an  Officer  to  represent  the  Service  or   the Department for whom recruitment is being made, to be present at  the  interview referred to in clause (3) to  assist  the Commission in its work of selection." We may here dispose of the point whether these rules are ex- ecutive rules or statutory rules made under art. 309 of  the Constitution.  The High Court held that "there can be little doubt  that to the extent the Rules deal with the  topic  of regulating  recruitment to Civil Services under  the  State, the  source of the power could only be the proviso  to  art. 309  of the Constitution." In our opinion, these  rules  are not  rules  made under art. 309.  First, the  rules  do  not expressly  say so, and secondly, the rules are dealing  with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts.  Under art.  320  (3) of the Constitution, it is the  duty  of  the Government  to  consult and the duty of the  Public  Service Commission  to advise, inter alia "on the principles  to  be followed  in  making  appointments  to  civil  services  and posts.....  and  on the suitability of candidates  for  such appointments, promotions or transfers." Sub-rule (1) of r. 4 clearly provides the same thing as does art. 320 (3) (b) and the  other sub-rules are really administrative  arrangements apparently  arrived  at  between  the  Commission  and   the Government  as to how the Government and the Public  Service Commission will take steps to recruit persons for the  State Services or posts. To resume the narrative, on February 10, 1958, the  Governor of  Mysore,  in  exercise of the  powers  conferred  by  the proviso  so  art. 309 of the Constitution, made  the  Mysore State  Civil  Services (General  Recruitment)  Rules,  1957, hereinafter called the General Recruitment Rules.  There  is no  dispute that these are statutory rules and in so far  as they  direct  anything to be done in a particular  way,  the Government would have to comply with the directions.  Rule 3 of  these  Rules, on which reliance has been placed  by  the learned  counsel for the respondents to urge that the  GoveI Sup Cl/66-12 686 cannot recruit Assistant Engineers without framing rules, is in the following terms: "Method  of  recruitment.-Recruitment  to  the  State  Civil Services  shall  be made by competitive  examination  or  by promotion.  The method of recruitment and qualifications for each State Civil Service shall be as set forth in the  rules of  recruitment  of  such service  specially  made  in  that behalf." It  would be convenient to deal with this argument  at  this stage.  Mr. Nambiar contends that the words "shall be as set forth in the rules of recruitment of such service  specially made  in that behalf " clearly show that till the rules  are made  in  that  behalf no recruitment can  be  made  to  any service.  We are unable to accept this contention.  First it is not obligatory under proviso to art. 309 to make rules of recruitment, etc., before a service can be constituted or  a post  created or filled.  This is not to say that it is  not desirable  that  ordinarily  rules should  be  made  on  all matters  which are susceptible of being embodied  in  rules. Secondly,  the  State  Government has  executive  power,  in relation   to  all  matters  with  respect  to   which   the Legislature of the State has power to make laws.  It follows from  this  that the State Government  will  have  executive power  in  respect  of  List  II,  Entry  41,  State  Public Services.  It was settled by this Court in Ram Jawaya  Kapur v.  The  State of Punjab(1) that it is  not  necessary  that

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there  must  be  a  law  already  in  existence  before  the executive is enabled to function and that the powers of  the executive  are limited merely to the carrying out  of  these laws.   We  see  nothing in the terms of  art.  309  of  the Constitution  which abridges the power of the  executive  to act under art. 162 of the Constitution without a law.  It is hardly  necessary  to mention that if there is  a  statutory rule  or an act on the matter, the executive must  abide  by that act or rule and it cannot in exercise of the  executive power  under  art.  162 of the Constitution  ignore  or  act contrary to that rule or act. In  the background of this position we are unable to  inter- pret r. 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of  a service  are specially made in that behalf.   Rules  usually take  a  long time to make; various authorities have  to  be consulted  and it could not have been the intention of r.  3 of the General Recruitment Rules, 1957, to halt the  working of  the  public departments till rules  were  framed.   This Court considered a similar point in T. Cajee v. U.  Jormanik Siem(2) and arrived at a similar conclusion.  The  following observations of Wanchoo, J., who delivered the judg (1)  [1955] 2 S.C.R. 225. (2) [1961] 1 S.C.R. 750, 762-764. 687 ment  on  behalf  of the majority,  bring  out  clearly  the fallacy in Mr. Nambiar’s argument: "The High Court has taken the view that the appointment  and succession  of a Siem was not an administrative function  of the  District  Council and that the District  Council  could only act by making a law with the assent of the Governor  so far as the appointment and removal of a Siem was  concerned. In this connection, the High Court relied on para 3 (1)  (g) of  the Schedule, which lays down that the District  Council shall  have  the  power to make laws  with  respect  to  the appointment and succession of Chiefs and Headmen.  The  High Court seems to be of the view that until such a law is  made there  could be no power of appointment of a Chief  or  Siem like  the  respondent and in consequence there would  be  no power of removal either.  With respect, it seems to us  that the High Court has read far more into para 3 (1) (g) than is justified  by  its  language.  Paragraph 3 (1)  is  in  fact something  like  a  legislative  list  and  enumerates   the subjects on which the District Council is competent to  make laws.   Under para 3 (1) (g) it has power to make laws  with respect  to  the  appointment or  succession  of  Chiefs  or Headmen and this would naturally include the power to remove them.  But it does not follow from this that the appointment or  removal  of  a Chief is a legislative  act  or  that  no appointment or removal can be made without there being first a law to that effect." "Further  once  the power of appointment  falls  within  the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as  a corollary.  The Constitution could not  have  intended that  all administration in the autonomous districts  should come to a stop till the Governor made regulations under para 19  (1) (b) or till the District Council passed  laws  under para 3 (1) (g).  The Governor in the first instance and  the District  Councils thereafter were vested with the power  to carry on the administration and that in our opinion included the power to appoint and remove the personnel for  carryinig on  administration.   Doubtless when  regulations  are  made under  para 19 (1) (b) or laws are passed under para  3  (1) with respect to the appointment or removal of the  personnel of the administration, the administrative authorities  would

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be  bound to follow the regulations go made or the  laws  so passed.   But  from this it does not follow  that  till  the regulations  were made or the laws were passed, there  could be no appointment or dismissal 688 of the personnel of the administration.  In our opinion, the authorities  concerned would at all relevant times have  the power  to appoint or remove administrative  personnel  under the  general power of administration vested in them  by  the Sixth Schedule.  The view therefore taken by the High  Court that  there  could  be  no appointment  or  removal  by  the District  Council without a law having been first passed  in that behalf under para 3 (1) (g) cannot be sustained." Mr.  Nambiar in this connection also relied on arts. 15  and 16  of the Constitution.  He urged that if the executive  is held  to  have  power  to make  appointments  and  lay  down conditions  of service without making rules in  that  behalf under  the  proviso to art. 309, arts. 15 and  16  would  be breached  because  the appointments in that  case  would  be arbitrary  and dependent on the mere whim of the  executive. We  are unable to hold that arts. 15 and 16 in any way  lead us  to  this conclusion.  If the Government  advertises  the appointments   and   the  conditions  of  service   of   the appointments and makes a selection after advertisement there would be no breach of art. 15 or art. 16 of the Constitution because everybody who is eligible in view of the  conditions of service would be ,entitled to be considered by the State. In  conclusion we hold that r. 3 of the General  Recruitment Rules,  1957, did not prevent the State from exercising  its executive  power  of  appointing  Assistant  Engineers   and determining their conditions of service by executive order. Mr.  Nambiar had at one stage contended that rules  existing in the constituent parts of the new State of Mysore would be available  for recruitment as they had been continued  under the States Reorganisation Act, but it seems to us that these rules  would  not  be  available  for  recruitment  purposes because   the  Government  would  be  recruiting   Assistant Engineers  for  the  whole State and not  for  each  of  the constituent  parts of the State.  We may clarify that  these remarks only deal with recruitment rules. This  brings us to the next event, and that is  Notification No  E.  2666-58-9PSC dated October 1, 1958,  issued  by  the Mysore  Public Service Commission inviting  applications  in the  prescribed  form  from qualified  Indian  citizens  for recruitment  of 40 Probationary Assistant Engineers  in  the Executive Cadre of the Mysore Public Works Department.   The Notification prescribes the qualifications, pay, age  limit, other  conditions  for  eligibility,  fee  payable  and  the particulars of the candidates required to be furnished.   On March  4,  1959, the Governor of Mysore in exercise  of  the powers  conferred by the proviso to art. 309 prescribed  the maximum  age limits for direct recruitment of  graduates  in Engineering  for  the  posts of  Supervisors  and  Assistant Engineers in the Mysore 689 Public  Works Department.  These age limits were to  prevail until  the  rules  of recruitment  specially  applicable  to Mysore  Public  Works  Department  were  promulgated.    The maximum age limits were made retrospective.  It was  further provided  that  "anything done or any action  taken  by  the Public  Service Commission or other authority in respect  of recruitment  of  Probationary  Assistant  Engineers  between September 1, 1958 and the date of this Notification shall be deemed  to have been done or taken under the  provisions  of this Notification."

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On the same date the Secretary to the Government of  Mysore, Public Works Department, Bangalore, wrote to the  Secretary, Public  Service Commission, Bangalore, stating  inter  alia, that; "The  Public Service Commission has already taken action  to recruit  forty probationers in the Public  Works  Department for  being  absorbed as Assistant Engineers  in  due  course after  satisfactory completion of their training.  I  am  to request  the  Public  Service  Commission  to  take   action straightway  to  invite applications and send a list  of  80 candidates  in  all for appointment as Probationers  in  the Department." This  clearly  shows that the Government was  aware  of  the action taken by the Public Service Commission in issuing the Notification dated October 1, 1958. After receipt of this letter, the Public Service  Commission issued a Notification on May 4, 1959, inviting  applications "from   qualified  Indian  citizens  of  all   classes   for recruitment  of 80 Probationary Assistant Engineers  in  the Executive  Cadre  of  the Mysore  Public  Works  Department, including  the  40 posts already advertised in  this  office Notification  No. E-3666-58 P.S.C. dated October  1,  1958". This  Notification laid down the qualifications, pay  during the  period of probation, age limits, etc.  The  age  limits prescribed  were  the  same  as  in  the  State   Government Notification  dated  March  4,  1959.   The  Public  Service Commission   Notification   further   included   the   usual particulars required to be furnished by the candidates.   On March 1, 1960, the Governor issued a notification containing Order  No. GAD 7 ORR 60 dated March 1, 1960, ordering  "that for  direct  recruitment to appointments and  posts  in  the services  of the State, reservation for Scheduled Caste  and Scheduled  Tribes shall be 15% and 3%.  The reservation  for other  backward  classes  shall  be 25 %  The  rest  of  the appointments  and posts shall be filled up on the  basis  of merit and shall be open to all classes." The  Public  Service Commission then issued  a  Notification dated April 1, 1960, inviting applications for filling up of various  posts in the several departments of  Government  of Mysore,. 690 including  the  80 Probationary Assistant Engineers  in  the Public Works Department.  These were included in Part ’A’ of the Notification, and it was provided inter alia in para  22 of the Notification as follows : "22.  IMPORTANT NOTE: (i)The  vacancies  detailed in Part ’A’ of  the  Statement were  previously  advertised in  this  office  notifications noted  in  column  8  against each  item  and  such  of  the candidates   who   have  already  applied   for   the   said vacancy/vacancies  in response to the previous  notification need  not  apply  again.  But they  may  furnish  additional information, if any, if they so desire. (ii)Applications  already received in this office  for  the vacancies under Part ’A’ will be considered on the basis  of the  revised  classification issued by Government  in  their Order No. GAD 7 ORR 60, dated the 1st March, 1960. (iii)The qualifications, period of  experience/training or service, the minimum and maximum age limits and all other requirements  to be satisfied by the candidates for all  the vacancies   under  Part  ’A’  in  the  statement  shall   be determined  as  on  the dates noted  against  each  item  of vacancy/vacancies in column 9 of the statement. (iv)Such  of  the  candidates  who  do  not  satisfy  these conditions  as on the dates noted in column 9 of the  state-

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ment in respect of Part ’A’ vacancies, will not be  eligible for the posts." Column  8 of the statement mentions the  previous  notifica- tions  dated May 4, 1959 and October 1, 1958, and  column  9 mentions  the date "June 8, 1959".  Column 5 prescribes  the qualifications as follows : "A  degree  in  Engineering  (Civil  or  Mechanical)  or  an equivalent  Examination.  In addition candidates  must  have also  either  undergone  practical training  or  rendered  a service  in the Technical Cadre of the P.W.D. for a  minimum of  6  months. (A certificate to that effect issued  by  the Principal of the college or superior officer under whom they have  undergone training or are working must  accompany  the application." The maximum age limits were prescribed as under - "33 years for Scheduled caste and scheduled tribes, 31 years for  others,  35 years in the case  of  government  servants holding substantive appointments or having 691 continuous government service for a period of not less  than 3 years." In  October  1960  the  Mysore  Public  Service   Commission interviewed the candidates and on November 2, 1960, the Com- mission  sent  to  the Government a list  of  80  candidates selected  by them.  On December 3, 1960, the  Government  of Mysore  sanctioned  the establishment of the  State  Service Cadre   in  respect  of  Mysore  Public  Works   Engineering Department  Service.  On the same date, in exercise  of  the powers conferred by the proviso to art. 309, the Governor of Mysore  made  the  rules  called  the  Mysore  Public  Works Engineering  Department Services (Recruitment) Rules,  1960. It  prescribed,  in  respect  of  each  category  of   posts specified in column of the Schedule, methods of  recruitment and the minimum qualifications and the period of  probation, if any.  For Assistant Engineers, the method of  recruitment prescribed  was  40 per cent by direct  recruitment  by  the Public Service Commission after interview and oral test;  50 per  cent by promotion from the cadre of  Junior  Engineers, and 10 per cent by promotion from the cadre of  Supervisors. It prescribed the minimum qualifications and age as follows: "For Direct Recruitment Age-Not  above  31  years.  A pass in  Civil  or  Mechanical Engineering  or a Certificate or Diploma from the  Institute of  Engineers that the candidate has passed Parts A.  B.  of the  Associate Membership of the Institute of  Engineers  or equivalent  qualification with practical. training  for  not less than 6 months during or after the course." One G. Govindaraju, Junior Engineer, filed a petition  under art.  226  of the Constitution for a mandamus to  the  State Government   prohibiting  the  appointment  of  80   persons selected by the Public Service Commission.  It was contended by  him that on December 3, 1960, under the proviso to  art. 309  of  the  Constitution  the  Governor  had  made   rules regulating  the  recruitment  to  the  posts  of   Assistant Engineers, and that under those rules, forty per cent of the appointments  alone  could  be made by  the  Public  Service Commission  after  an interview and an oral  test.   Various other  arguments were urged before the High Court.  The  Ad- vocate-General stated before the High Court on behalf of the State  Government that the list having been prepared by  the Public Service Commission in response to the request made by the State Government in the exercise of its executive  power which  it possessed under art. 162 of the Constitution,  the State Government was not bound to make appointments only  in accordance with that list, and that it was open to the State

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Government not to appoint any of those persons or to appoint only those persons who, in its 692 opinion,  should be appointed amongst them.  The High  Court felt  that  this statement made before it by  the  Advocate- General  rendered  unnecessary any  investigation  into  the contention urged on behalf of the petitioner at that  stage. The High Court further observed as follows: .lm15 "It  would  be for the State Government before  it  takes  a decision  on that question, to consider the effect  of  Rule 4(2)  of  the Public Service Commission  (Function),  Rules, made on December 10, 1957, Rules 3 and 4 of the Mysore State Civil  Services General Recruitment Rules, which  came  into force  on February 10, 1958, and of the Mysore Public  Works Engineering  Department Service (Recruitment)  Rules,  which came into force on December 3, 1960, and to further consider whether in the light of those provisions, appointments could be  made  to  the posts of Assistant  Engineers,  except  in accordance with the provisions of the Rules which came  into force  on  December 3, 1960.  On this question,,  we  should not, in my opinion, express any opinion at this stage." With these observations, the High Court dismissed the  peti- tion  as premature.  This order was passed on September  29, 1961.   On  October  23, 1961, in  exercise  of  the  powers conferred by the proviso to art. 309 of the Constitution and all  other powers enabling him in that behalf, the  Governor of  Mysore  made  certain amendments to  the  Mysore  Public Works, Engineering Department Services (Recruitment)  Rules, 1960.  The effect of these amendments, if valid, was to make the  Mysore  Public Works  Engineering  Department  Services (Recruitment)  Rules, 1960, retrospective with  effect  from the  first day of March, 1958.  Para 3 of this  Notification further provided: "3.  To  rule 2, the following proviso shall  be  added  and shall be deemed always to have been added, namely :- "Provided that in respect of direct recruitment of Assistant Engineers   for  the  first  time  under  these  rules   the percentages  relating to direct recruitment and  recruitment by promotion specified in column 2 of the Schedule shall not be applicable and the minimum qualifications and the  period of probation shall be the following, namely:- Qualifications-The   candidates  must  be.  a  graduate   in Engineering  (Civil  or Mechanical) or must have  passed  an equivalent  examination  and  must  have  either   undergone practical training or rendered service in a technical  cadre in the Public Works Department for a minimum period 693 not  less  than six months.  A certificate  to  that  effect issued  by the Principal of the College or Superior  Officer under  whom he has undergone training or is working must  be enclosed to the application; Age limits must not be above- (i)  35 years in  the  case  of  Government  servantsholding               appointment substantively or who have been  in               continuous Government service for a period  of               not less than 3 years and political sufferers; (ii)33  years in the case of candidates belonging to  Sche- duled Castes and Scheduled Tribes; (iii)31 years in the case of Backward Classes; (iv)28 years in the case of others; on the last date  fixed for the receipt of applications. Period of Probation.-Two years." On  October  31, 1961, the Governor of Mysore  appointed  88 candidates  as  Probationary  Assistant  Engineers  in   the

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Mysore.    Public   Works  Department  and   it   is   these appointments  that  were challenged before the  Mysore  High Court in the 16 writ petitions mentioned in the beginning of this judgment. Mr. Setalvad contends that under the proviso to art. 309 the Governor  is  entitled to make retrospective rules  and  the position of the Government while acting under the proviso to art. 309 is in no way different from the powers conferred on the  legislature under art. 309 read with arts. 245 and  246 and item 41 of List 11.  Mr. Setalvad further contends  that the   Government  is  not  acting  as  a  delegate  of   any legislature  while  exercising powers under the  proviso  to art.  309;  it  is  exercising  a  power  conferred  by  the Constitution directly on the executive and the  Constitution has not prescribed any guiding principles to be followed  by the State Government while it is exercising powers under the proviso  toart.  309,  because the  Constitution  treats  it having the same powers as the legislature.  He further  says that the State Government can amend and repeat any  existing law  relating to State Services continued in force  by  art. 313 of the Constitution.  He urges that if the  Constitution makers  had intended to place any fetters on the  powers  of the  State  Government under the proviso, these  would  have been  mentioned  specifically, and he says  that  we  cannot treat  it  on the same basis as delegated  legislation  and, therefore,.  even  if  it  be the law,  which  he  does  not concede, that the executive when acting as a delegate  under an  act  of  Parliament or an act of  a  State  Legislature, cannot  make rules retrospectively, this principle does  not apply  to the exercise of powers under the proviso, to  art. 309 of the Constitution. 694 Mr.  Nambiar contends that under an act of Parliament or  an act of a State Legislature the executive cannot frame  rules retrospectively  unless the act specifically empowers it  to do so.  According to him the position is the same under  the proviso to art. 309.  In our opinion, it is not necessary to decide this point in these cases because we are of the  view that  the  appeal  can be disposed  of  on  another  ground. Assuming for the sake of argument that Mr. Nambiar is  right that  the  Mysore  State Government  could  not  make  rules retrospectively and that the rules are thus void, so far  as they operate retrospectively, we must ignore these rules and see  whether the appointments made on October 31, 1961,  can be  upheld.   We  have come to  the  conclusion  that  these appointments can be considered to have been validly made  in exercise of the executive power of the State under art.  162 of the Constitution.  The three notifications issued by  the Public  Service Commission on October 1, 1958, May  4,  1959 and April 1, 1960, must be treated to have been issued  with the  consent of the State Government.   These  notifications are  not rules made under art. 309 of the  Constitution,  as contended   by   Mr.  Nambiar;  they  are   mere   executive notifications  issued  by the Public Service  Commission  at least with the implied consent of the State Government.  The passage  reproduced above from the letter of the  Government dated March, 4, 1959, clearly shows .that the Government was well aware of what the Public Service Commission was  doing. It was aware of the action being taken by the Public Service Commission,  and indeed, it can safely be assumed  that  the Government was aware of each step being taken by the  Public Service  Commission  including  the  publication  of   these notifications.   The  position  is that  if  we  accept  Mr. Nambiar’s arguments that these rules purported to be made by the  Mysore State Government had no retrospective  validity,

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there  were no statutory rules to govern the appointment  of the 88 persons as Assistant Engineers.  We have already held that  the Mysore State Civil Service  (General  Recruitment) Rules,  1957,  did  not debar  the  Government  from  making appointments without making statutory rules.  Therefore,  we hold that these appointments were validly made. Mr.  Nambiar sought to impeach the appointments  on  another ground.   He  said  that the  appointments  violated  Mysore Public  Works Engineering Department Services  (Recruitment) Rules,   1960,   dated  December  3,   1960,   because   the appointments were made on October 31, 1961, and according to him,  these  appointments  had also to  be  made  under  the statutory rules made on December 3, 1960.  We are unable  to sustain this contention because it took about two years  for the  Public  Service Commission  to  publish  notifications, interview  candidates and recommend names  for  appointment. The whole procedure having been 695 followed,  it  could  not have been  the  intention  of  the Government  while  framing the rules to  cover  appointments made  in  pursuance  of the recommendations  of  the  Public Service Commission made in November 1960 after  interviewing candidates in October 1960. It was urged in the alternative that the advertisement  made by the Public Service Commission notification dated April 1, 1960  was different from the rules of March 4, 1959, in  the matter  of  fixing  the age limits, i.e.,  while  the  rules provided 28 years as the maximum age in the case of  others, the  notification provided the maximum age as 31 years.   In our  view  the  respondents  are  not  entitled  to  make  a grievance of this difference because there is nothing on the record to show that the ages of those appointed were against the  rules  of March 4, 1959.  The learned counsel  has  not been  able  to  satisfy us that they have  suffered  in  any manner because of this difference in age. There remains one question and that is the question of  mala fides  which  was alleged in the petition.   There  were  16 petitions  but we will take the allegations from  the  first petition.   Paras  16 and 17 in Writ Petition  No.  1248  of 1961,  before  the High Court, in which the  allegations  of mala fides have been made read as under: "Further selection made by the Public Service Commission  is arbitrary   and  made  out  of  collateral   considerations. Amongst the selected candidates, the following viz., (1) Sri D.  C. Channe Gowda, who is the son-inlaw of the 2nd  member of the Public Service Commission, an ordinary B.E.  Graduate with only 49% of marks; (2) Sri Kencharase Gowda, who is the sister’s son-inlaw, an ordinary B. E. have been selected  to the exclusion of myself and several others, who had superior qualification, both academically and by virtue of  seniority in service. 17.Similarly, relations of prominent members of the  local Legislature  and  of Parliament, relations  of  high  placed officials including a Minister and an ex-Minister have  been selected." The Chairman of the Mysore Public Service Commission filed a counter-affidavit  and replied to the above paras 16 and  17 as follows: "   3.  Paragraph  16  of  the  Petitioner’s   affidavit-The statement that the selection made was arbitrary and made out of collateral considerations is incorrect.  It is true  that Shri  D. C. Channe Gowda was among the candidates  selected. The then Second Member of the 696 Public  Service Commission abstained from  participating  in

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the  interview  of that candidate.  I was not aware  at  the time  of  the selection, of the relationship  of  Kencharase Gowda,  Shri  T. Krishna, Shri Hanume Gowda and Shri  M.  N. Narase Gowda to the then Second Member of the Public Service Commission.   The then Second Member of the  Public  Service Commission,  Shri  M.  K.  Appajappa  is  since  dead.   The dominant factor in making the selection was the  performance of  the candidate at the interview and the marks secured  by the candidate in the Degree Examination was only one of  the factors that was taken into, consideration. 4.Paragraph 17 of the Petitioner’s Affidavit-I was not aware of the relationship, if any, of the candidates to  prominent members  of  the local Legislature and of Parliament  or  of high  placed  officials  including a  Minister  and  an  ex- Minister.   I  submit that it is also incorrect  to  suggest that   the   selections   were  influenced   by   any   such relationship". The High Court found it unnecessary to investigate this mat- ter  because it felt that the selections impugned  were  in- valid on other grounds, but it observed as follows: "There  is no denying the fact that the facts stated in  the pleadings,  especially in the light of the manner  in  which they are traversed in the counter affidavit of the  Chairman of  the  Public  Service  Commission,  do  raise  a   strong suspicion." The High Court might well have abstained from expressing its strong suspicion if it was not going to give its final views on  the question of malafides.  We are unable to  appreciate that  the  manner  in which  the  counter-affidavit  of  the Chairman of the Public Service Commission is expressed calls for any comment.  In para 15 of the affidavit in support  of Writ Petition No. 1269 of 1961 more details are given of the selected  candidates and the counter-affidavit filed by  the Chairman  of the Public Service Commission is common to  all the  petitions.  But even so, the details mentioned did  not call for any detailed reply.  For example, it was alleged in para  15 that one Shri D.C. Channe Gowda who is the  son-in- law  of the Second Member of the Public Service  Commission, Shri  Appajappa,  was an ordinary B. E. Graduate  with  only 49.8 % marks.  But even if he had only 49.8 % of the  marks, this is not conclusive to show that he should not have  been selected because the whole object of interviewing candidates is to judge their eligibility or suitability apart from  the standard  displayed by them in the written examination.   We are  unable  to hold that on these facts any mala  fides  or collateral object has been proved. 697 In  the result the appeals both of the State and  the  other appellants  are allowed and judgment of the High  Court  set aside.  We may mention that some of the appellants have  not prosecuted  their  appeals but there is no reason  why  they should not have the benefit of this judgment, and exercising our  powers  under art. 142 of the Constitution,  we  direct that  in order to do complete justice they should also  have the  benefit of the judgment given by us.  There will be  no order as to costs. Appeals allowed. 698