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PETITIONER: MOHINDER SINGH

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT07/04/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1989 AIR 1367            1989 SCR  (2) 437  1989 SCC  (3)  93        JT 1989 (2)    97  1989 SCALE  (1)856  CITATOR INFO :  APL        1989 SC1370  (1)

ACT:      Civil  Services: Haryana State--Recruitment to post  of District    Food   and   Supplies    Officer--Qualifications for--’Five/three   years   experience   as   an    executive officer’--Inspector/Sub-Inspector   in  Food  and   Supplies Department--Whether ’executive officer’ eligible Words and Phrases: ’Officer’--’Employee’--Meaning of.

HEADNOTE:      The  Haryana Public Service Commission  advertised  the filling-up of 4 posts of District Food and Supplies Officers by  direct  recruitment, and prescribed  "five/three  years’ experience as an executive officer" as one of the  essential qualifications.   The   appellant   who   was   working   as Inspector/Sub-Inspector in the Food and Supplies Department, applied  for the post. Some other  Inspectors/Sub-Inspectors also  applied.  Subsequently, the Special Secretary  to  the Haryana Government in the Food and Supplies Department wrote to  the Commission affirming, inter alia, that the  work  of Inspectors/Sub-Inspectors of his Department was of executive nature though they were not officers. The Commission, howev- er,  required the appellants to produce a  certificate  from the State Government to the effect that they had the  requi- site  experience of executive officer. The State  Government did  not  issue such a certificate, and in its  absence  the Commission did not consider the Inspector and  Sub-Inspector candidates as having the requisite qualification.           Thereupon, the appellant filed a writ petition  in the High Court claiming that he had the requisite qualifica- tion.  The learned Single Judge dismissed the writ  petition and the Division Bench dismissed the appeal therefrom.      Before  this Court, it was contended on behalf  of  the appellant  that  the post of Inspectors  and  Sub-inspectors belonged  to the category of executive office, and  that  in earlier  years  certain similarly  situated  Inspectors  and Sub-Inspectors of the Department had been appointed on  that basis. 438 Allowing the appeal, it was,

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   HELD: (1) It was conceded in the Department’s letter  to the  Commission   that ’the  Inspectors/Sub-Inspectors  held executive posts. [440B]     (2) None of the parties has placed any definition of the term ’Officer’ from any Haryana Statute. It is also not  the contention  of  any of the parties that  the  administrative orders  gave a definition to the term. In such a  situation, the common parlance meaning of ’officer’ has to be  accepted for  the purpose of finding out whether Inspectors and  Sub- inspectors held the pest of officer. [440F]     (3) In service jurisprudence even ministerial  employees have  been referred to as officers. The terms ’Officer’  and ’employee’  put together obviously signify the grade of  the establishment  or  post held, the officer  being  higher  in grade to employee. [441G]     (4)  A person invested with the authority of  an  office has been treated as an officer. [441C-D]     (5) Keeping in view the nature and duty assigned to  the Inspector or the Sub-Inspector working in the Department  to whom  powers have been delegated, it cannot be doubted  that the  holders  of pests of Inspector  and  Sub-Inspector  are officers. [441G-H]     G.A. Monterio v. The State of Ajmer, [1956] SCR 682  and Bajrang Lal & Anr. v. State of Rajasthan, [1976] 3 SCR  497, referred to. (6) The appellant was entitled to be considered for recruit- ment in 1980 and since his claim had been over-looked  with- out justification, the State and the Haryana Public  Service Commission  are bound to consider his case now on the  basis that  he  was entitled to recruitment in 1980. In  case  the appellant  is found qualified, be shall be selected for  the post and duly appointed. [442E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  294  of 1982.     From the Judgment and Order dated 8.9.1981 of the Punjab and Haryana High Court in L.P.A. 857 of 1981. 439     P.P. Rao, R. Venkataramani, U.G. Pragasan and S.M.  Garg for the Appellant.     Mahabir  Singh,  Subhash Sharma and C.M. Nayar  for  the Respondents. The Judgment of the Court was delivered by     RANGANATH MISRA, J. This appeal is by special leave  and is  directed  against the appellate judgment of  a  Division Bench  of  the Punjab and Haryana High Court  upholding  the decision of a learned Single Judge of that Court by dismiss- ing the appeal in limine. The Haryana Public Service Commis- sion advertised the filling-up of one Post of D.F.S.C. and 4 posts  of  District  Food and Supplies  Officers  by  direct recruitment. The Commission prescribed, inter alia, that one of the essential qualifications shall be "five/three  years’ experience as an executive officer in a commercial organisa- tion of Government or Semi-Government office before or after acquiring the academic degree" and the Special Secretary  to Haryana  Government in the Food and Supplies Department,  on 20th  of February, 1981, wrote to the Secretary of the  Com- mission affirming that position and added that:                        "Certain Inspectors/Sub-Inspectors of               this Department seem to have sent their appli-               cations (advance copies) to the Commission for               these  posts.  The work  of  Inspectors/  Sub-

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             Inspectors is of executive nature though  they               are not officers. As such, in case the Commis-               sion feels that they fulfil the qualifications               for  the  posts in question,  this  department               have no objection to the names of the  Inspec-               tors/Sub-Inspectors who have applied  directly               to the  Commission, to be considered for these               posts."     The Commission called the appellant and other  similarly placed candidates for interview but required them to produce certificates  from the State Government to the  effect  that they had the requisite experience of executive officer.  The State  Government, however, did not issue such  certificates and  in  their absence the Commission did not  consider  the Inspector and Sub-Inspector candidates as having the  requi- site  qualification for being candidates for the  post.  The selection  was undertaken excluding them. Thereupon  a  writ petition  was filed before the High Court claiming that  the appellant  had  the requisite qualification having  been  an executive officer for the requisite period and his exclusion was unjustified and the selection made by the Com- 440 mission  was hit on account of infraction of the  provisions of Article 16 of the Constitution. The learned Single  Judge negatived this stand and dismissed the writ petition and the Division  Bench upheld the decision of the Single  Judge  by dismissing the appeal in limine.     In  this appeal the sole question for  consideration  is whether  Inspectors and Sub-Inspectors of Food and  Supplies Department are executive officers. That they held  executive posts and for the required period was conceded in Government letter  of 21st of February, 1981. It has, therefore, to  be found  out  whether Inspectors and Sub-Inspectors  could  be treated as officers.     The  selected  candidates were not made parties  to  the writ petition. A civil miscellaneous petition has been filed to  add  them as party-respondents to the  appeal  and  that application  had  been  placed for hearing  along  with  the appeal.     Mr.  P.P.  Rao appearing in support of  the  appeal  has contended  that  the post of Inspectors  and  Sub-Inspectors belonged  to the category of executive office and  the  High Court,  therefore,  came to a wrong conclusion.  In  earlier years certain similarly situated Inspectors and  Sub-Inspec- tors of the Department had been appointed on the basis  that they satisfied the requirements of clause (c) of the  adver- tisement  and  there was no justification  for  a  different basis when further recruitment was undertaken 1980.     None  of  the parties has placed any definition  of  the term  ’Officer’  from any. Haryana Statute. It  is  not  the contention of counsel appearing for any of the parties  that the administrative orders gave a definition to the term.  In such  a situation, the common parlance meaning of  ’officer’ has  to be accepted for the purpose of finding  out  whether Inspectors and Sub-Inspectors held the post of Officer.  The ordinary dictionary meaning of the term ’Officer’ is:               "a  person appointed or elected to a  position               of  responsibility or authority in  a  Govern-               ment, society etc."  Stroud’s  Judicial  Dictionary (5th Edition)  has  given  a variety of instance of "officer" with reference to different statutes. Some of the instances given therein do support Mr. Rao’s stand that an Inspector or Sub-Inspector would  indeed be  an ’officer’ inasmuch as under statutory orders made  in exercise of powers conferred under the Essential Commodities

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Act on the State Government, authority has 441 been  vested  in these categories of  officers  to  exercise jurisdiction.               Black’s Law Dictionary states:                        "In  determining  whether one  is  an               ’officer’  or ’employee’, important tests  are               the tenure by which a position is held, wheth-               er  its duration is defined by the statute  or               ordinance creating it, or whether it is tempo-               rary or transient or for a time fixed only  by               agreement;  whether  it is created by  an  ap-               pointment or election, or merely by a contract               of  employment  by  which the  rights  of  the               parties  are regulated; whether the  compensa-               tion  is by a salary or fees fixed by law,  or               by  a sum agreed upon by the contract of  hir-               ing."               A  person  invested with the authority  of  an               office has been treated as an officer.                   In    Words   and    Phrases    (Permanent               Edition--Volume  29A)  an ’Officer’  has  been               stated to mean:               "a person who is invested with some portion of               the  functions of government to  be  exercised               for the public benefit."               "If  the  powers  and duties  reposed  in  the               incumbent  of  a  position are  such  that  he               exercises the function of the sovereignty, the               incumbent  is an ’Officer’ regardless  of  the               name by which he may be designated." If these tests are applied, the appellant who held an office and  was clothed with functions of sovereignty was an  offi- cer.     In Articles 146 and 229 of the Constitution officers and servants  of the Supreme Court and the High Court  have  re- spectively been provided for. In service jurisprudence  even ministerial employees have been referred to as officers. The terms ’officer’ and ’employee’ put together obviously signi- fy the grade of the establishment or post held,, the officer being  higher in grade to employee. Keeping the  nature  and duty assigned to the Inspector or the Sub-Inspector  working in  the  Department to whom powers have been  delegated,  it cannot be doubted that the holders of posts of Inspector and Sub-Inspector  are officers. We, therefore, accept the  con- tention  of Mr. Rao that the appellant held the post  of  an officer and since the State had conceded 442 that it was an executive office and the appellant was  hold- ing the said post from April, 1973 till September, 1978,  by 1980 when selection was be made he had the requisite  quali- fication.     Mr.  Rao  relied upon decisions of this  Court  in  G.A. Monterio  v. The State of Ajmer, [1956] SCR 682 and  Bajrang Lal  & Anr. v. State of Rajasthan, [1976] 3 SCR 497 in  sup- port  of  his plea that the appellant was an  officer.  Both these cases were with reference to the definition of ’public servant’  in s. 21 of the Indian Penal Code.  On  principle, these  decisions  support  the  conclusion  which  we   have reached.     Counsel appearing for the respondents did not attempt to contend  that if the appellant had the requisite  qualifica- tion when selection was being made and he had been kept  out on  the wrong premises that he did not have  the  qualifica- tion,  he would be entitled to challenge the selection.  The

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selected candidates were, however, not impleaded as respond- ents  in  the writ petition and attempt to implead  them  at this stage is bound to prejudice them. They have now been in service  for more than eight years and respondent no. 4  has even  been holding a promotional post for some time.  We  do not think in such a situation there would be any  justifica- tion  to allow challenge to the recruitment of the  respond- ents.  At  the same time the State had no  justification  to keep out the appellant from consideration. The appellant was entitled to be considered for recruitment in 1980 and  since his  claim  had been overlooked without  justification,  the State and the Haryana Public Service Commission are bound to consider  his case now on the basis that he was entitled  to recruitment in 1980.     Reliance was placed by Mr. Rao on some decisions of  the this  Court, as to the nature of relief that can be  granted in a case of this type. We do not think in the facts of this case, the ratio of the decisions can be applied as a  guide- line.     It  has been brought to our notice that an  enquiry  was undertaken by Government against some of the selected candi- dates  on the allegation that forged/false certificates  had been produced by them in support of qualification/eligibili- ty and in the enquiry a prime facie case had been made  out. We express no opinion about it as it shall be for the  State Government  to  deal with the question and  the  appellant’s appeal has nothing to do with it.     The  appeal is allowed, the order of the learned  Single Judge as also the appellate order are vacated and the  State Government and the 443 Public  Service  Commission  are directed  to  consider  the appellant’s claim for recruitment on the basis of the  noti- fication  for  recruitment. In case the appellant  is  found qualified,  he shall be selected for the post and  duly  ap- pointed. The question of appellant’s seniority is left  open to  be  dealt with by the State Government  in  consultation with the Public Service Commission. The appellant shall have the cost of the appeal. Hearing fee is assessed at  Rs.3,000 to be recovered from the Respondent-State only. R.S.S.                                   Appeal allowed. 444