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PETITIONER: RAMENDRA SINGH

       Vs.

RESPONDENT: JAGDISH PRASAD AND ORS.

DATE OF JUDGMENT17/02/1984

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR  885            1984 SCR  (2) 598  1984 SCALE  (1)372

ACT:      Civil service  : persons  not  qualified  appointed  to higher posts  to meet  emergent situation-If  could be given seniority over persons appointed under rules subsequently.

HEADNOTE:      In connection  with  the  execution  of  a  World  Bank Project on  an emergency  basis, which  was required  to  be completed within  a short  time, the Public Works Department of the  State needed a number of mechanical overseers. Since at that time there was acute shortage of qualified overseers the Department  had appointed,  as overseers  on provisional basis against the sanctioned posts, certain persons who were working in  the department as sub-overseers even though they had only  appeared in the diploma examination in engineering but had  not yet passed it. In the meantime, the respondents (petitioners before  the High  Court)  were  selected  by  a Selection  Committee   constituted  in  accordance  with  he procedure laid  down in  Bihar Public Works Department Code. After they passed the diploma examination the Chief Engineer had in 1964 appointed the appellants (contesting respondents before the  High Court)  as temporary  overseers against the sanctioned posts  from the date of publication of results of the diploma  examination. In  1973,  a  gradation  list  was prepared  and  some  of  the  appellants  were  subsequently promoted to higher posts.      The respondents  in a  writ petition  filed in the High Court  had   impugned  the   order  of  the  Chief  Engineer appointing the appellants reproductively as overseers on the ground that  while they  were appointed  after following the procedure prescribed  under the rules, the appellants at the time  of   their  appointment   as  overseers  were  neither qualified  to  be  appointed  as  overseers  nor  were  they selected by  a Selection  Committee  constituted  under  the rules and  that in  any event  the appellants  could not  be appointed with  retrospective effect.  Secondly, though  the appellants shown  as seniors to the respondents by the Chief Engineer’s orders  of 1964,  the  appellants  were  in  fact junior to them and that their later promotion was improper.      The High  Court held  that the  Public Works Department Code  in   accordances  with   which  the  respondents  were recruited    directly    contained    merely    departmental

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instructions and had not acquitted statutory force and that, therefore, the  appointment of  the appellants  could not be held to  be invalid on the ground that the department had no power to  make retrospective  appointments. It  however held that the  revised gradation  list,  showing  the  appellants above the  respondents, on  the basis of the 1964 orders was bad in  law. Consequently,  the High Court quashed that part of the two orders which had fixed the date of publication of the result  of diploma  examination as  the commencement  of length of service of temporary overseers. 599      In appeal  to this  Court is was contended on behalf of the appellants  that since  the executive power of the State is co-extensive  with its  legislative power, in the absence of  a  statutory  rule  framed  under  Article  309  of  the Constitution, it  was open  to the executive, in exercise of its executive  power under  Art. 162 of the Constitution, to make appointment to meet the exigencies of a situation.      Dismissing the appeal, ^      HELD: The  impugned order  of 1964  which purported  to appoint the  sub-overseers as  temporary overseers  from the date of  publication of  their result of diploma examination are  clearly   violative  of  Articles  14  and  16  of  the Constitution inasmuch  as the  respondents had  already been appointed as  overhears by a Selection Committee constituted under the  rules contained  in the  public Works  Department Code.  The  1964-order  making  the  temporary  appointments conferred national  seniority  on  the  appellants  for  the period they  are actually  working as  sub-overseers in  the lower scales  outside the  cadre of  overseers. The impugned orders may  not have  resulted in  reduction of rank but yet they did  affect the  seniority  of  the  respondents  which eventually  might  result  in  reducing  their  chances  for promotion. [613 D-F]      There is  no gain-saying  the fact  that the  executive power of  the State  is co-extensive  with  the  legislative power and  that it  is not  necessary that there should be a law in existence before the executive is enabled to function and the  power of  the executive  is limited  merely to  the carrying out  of the  laws. There  is nothing  in  terms  of Article 309  which abridges  the powers  of the executive to act under  Article 162 of the Constitution without a law but yet if  there is  a statutory rule or an Act on a matter the exercise of  its executive  power under  Art. 162, ignore or act contrary to that Rule or Act.. [609 B-C]      B.N. Nagarajan  & Ors. v. State of Mysore & Ors. [1966] 3 SCR  682; Ram Jawaya Kapur v. State of Punjab [1955] 2 SCR 225; Rajendra  Narain Singh  & Ors. v. State of Bihar & Ors. [1980] 3  SCR 450;  S.B. Patwardhan’s  case [1977] 3 SCR 775 and R.N.  Nanjundappa v. T. Thimmiah & Anr.[1972] 2 SCR 799, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 308- 313 Of                             1977      Appeals by  Special leave  from the  Judgment and Order dated the  8th September,  1975 of  the Patna  High Court in C.W.J.C. Nos. 1419/73, 467/74 and 522 of 1974.      L.N. Sinha, R.P. Singh, R.K. Jain, Suman Kapur, for the Appellant in CA.No. 308 of 1977.      R.K. Garg. R.P. Singh, R.K. Jain & Suman Kapur, for the

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Appellant in CA. 309 of 1977. 600      R.K.Jain for the Appellant in CA. 310/77.      L.N. Singh  and D.Gourdhan  for the  Appellant in  CAs. 311-13      L.N. Sinha,  D. Goburdhan  for Respondents  3-7 in  CA. 308/77 and  for Respondents  Nos. 2-6  in CA.  309/77 &  for Respondents 2 to 4 in CA No. 310/77.      M.K. Ramamurthi D.P. Mukherjee for Respondents 12-13 in CA. No. 308/77 & RR 9-10 in CA. 310/77.      U.S. Prasad for Respondent No. 4 in CA. 309/77.      G.L. Sanghi, Radha Mohan & M.L. Verma for RR. 1, 2 & 16 in CA. 309/77 & for R-11 in CA. 310 of 1977.      Jaynarain, R.P.  Singh, R.K.Jain  &  Suman  Kapoor  for Respondents in CA. 311-313 of 1977.      A.K. Sen, Radha Mohan Prasad & M.L. Verma for RR. 1 & 2 in CA. 313 of 1977.      The Judgment of the Court was delivered by      MISRA, J.  This bunch  of appeals is directed against a common judgment  and order of the Patna High Court dated 8th September, 1975  allowing three  petitions under Art. 226 of the Constitution in part.      The  material   facts  to  bring  out  the  points  for consideration in  these appeals lie in a narrow compass. The Public Works Department in Bihar had a very small mechanical organisation. In  1962, however,  it undertook the execution of a  World Bank  project. In  that connection  a number  of mechanical overseers  were needed.  As the project had to be executed on an emergency basis within a short time and 601 ‘there being dearth of qualified overseers, persons who were working only as sub-overseers or persons who had appeared at the diploma  examination in  engineering, but had not passed the same,  were appointed  against the sanctioned posts on a provisional basis.  There were  some others  who  were  also appointed as  mechanical overseers on temporary basis in the World Bank  project, a  wing of the Public Works Department, after  appearing   before   a   selection   committee   duly constituted according  to r.1,  Appendix  II  of  the  Bihar Public Works  Department Code, Ist Edn., 1958, Vol. II. This rule reads:           "All   permanent   appointments   to   the   Bihar      Subordinate Engineering Service either by absorption of      temporary or  work-charged Overseers and Estimators, or      by direct  recruitment,  will  be  made  by  the  Chief      Engineer,  provided   that  in   the  case   of  direct      recruitment (permanent  or temporary)  appointment will      be made  on the  advice  of  the  committee  of  senior      officers constituted  for the  purpose.  The  committee      will constituted  for the  purpose. The  committee will      consist of  three members including the Chief Engineer,      who will  be the  Chair man of the committee. The other      two members  will be nominated by him with the approval      of the  Government in  the Public Works Department from      time to time".      The Chief Engineer by orders dated 18th August and 26th September,  1964   appointed  among   others  the  following persons, already  working as sub-overseers in the department as temporary overseers against the sanctioned posts on their passing the diploma examination from the date of publication of their  results of  the diploma  in  mechanical/electrical engineering examination:      1.  Ramendra Singh      2.  Keshav Singh      3.  Bhola Nath Chaudhary

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    4.  Awadesh Kumar Singh      5.  Rajeshwar Sinha      6.  Ram Chandra Prasad      7.  Udai Narain Singh      8.  Sunil Kumar      9.  Rajnandan Pd. Singh      10. Gopal Ram      11. Sidh Nath Singh 602      12. Prem  Chand Prasad,  and many  others who  are  not parties here.      It  appears   that  a  provisional  gradation  list  of overseers was prepared. Certain overseers who felt aggrieved by the  provisional list  made various  representations  and eventually a  revised gradation  list dated  17th  November, 1973 was prepared, Some of the aforesaid twelve persons were promoted as  Mechanical Sub-Divisional  officers by an order dated 13th March, 1974.      The revised  gradation list  dated 17th  November, 1973 and the  two orders  dated 18th  August and  26th September, 1964 appointing  the aforesaid  twelve persons  as temporary overseers with retrospective effect and the order dated 13th March, 1974  promoting  some  of  them  as  Mechanical  Sub- Divisional Offers  were challenged  by three  separate  writ petitions: (1)  writ No.  1419 of  1973 filed by Shyam Dayal Pandey, (2) writ No. 467 of 1974 filed by Ful Chand, and (3) writ No.  522 of  1974 filed  by Jagdish Prasad and Mohammad Shamsuddin. The respondents in the three petitions including the aforesaid twelve persons were common, though differently numbered.      It would  be convenient  to identify  the parties  with reference  to   the  writ  petitions.  The  writ-petitioners therein will  be referred to herein after as the petitioners and the  above mentioned twelve persons, whose retrospective appointment  has   been  challenged,   as   the   contesting respondents.      The case  of the petitioners in the three petitions has been that  they were  appointed as  mechanical overseers  on temporary basis  in the  World Bank  project, a  unit of the Public Works  Department after  appearing before a selection committee duly  constituted according  to r.  1 referred  to above. The  appointment of  the  contesting  respondents  by orders dated  18th August  and  26th  September,  1964  with retrospective effect  has been challenged on the ground that they were temporary mechanical sub-overseers and had not got the requisite qualification for being appointed as overseers nor did  they appear before committee as required by r. 1 of the PWD  Code and  in any  case they  could not be appointed with retrospective  effect. It  was further pleaded that the contesting respondents were junior to the petitioners but in 603 the revised  gradation list  the contesting respondents were shown above the    petitioners on the basis of the aforesaid two orders  dated 18th  August and 26th September, 1964. The promotion  of   some  of   the  contesting   respondents  as mechanical sub-divisional  officers was  also  bad  on  that account.      The contesting  respondents as  well as  the  State  of Bihar filed  a return  justifying  the  appointment  of  the contesting respondents  as well  as the  promotion given  to some  of  the  contesting  respondents  as  mechanical  sub- divisional officer.  On the  contentions of the parties, the High  Court          formulated  the  following  points  for consideration:      1.    Whether  the impugned  gradation  list  had  been

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         prepared in accordance with law?      2.    Whether  the promotion  of various respondents on           the basis of the said gradation list is justified?      3.   Whether the appointment of the respondents was bad           as they  had not  appeared  before  the  selection           committee?      4.    Whether  the orders  dated 18th  August and  26th           September, 1964  appointing  the  respondents  and           some of  the petitioners  as  temporary  overseers           from the  date of  publication of  their result of           diploma in  mechanical/electrical      Engineering           examination, are  justified and in accordance with           law and  whether the same could have been made the           basis for preparing the gradation list?      While  supporting   the   appointment   of   contesting respondents on merits two preliminary objections were raised on behalf  of the  contesting  respondents        about  the maintainability of the writ petitions:      1.   None of the requisites of r. 1 of the PWD Code was           complied with while     constituting the selection           committee  and   this  being   the  position   the           petitioners themselves were not selected by 604           a duly constituted committee, and, therefore, they           had no  right to  assail the gradation list and to           challenge  the   appointment  of   the  contesting           respondents under Art. 226 of the Constitution.      2.    The petitioners could not challenge the gradation           list  without  assailing  the  orders  dated  18th           August and  26th  September,  1964  on  which  the           gradation list  was  based,  and  the  petitioners           could not  be allowed to assail those orders after           a lapse of about 10 years and if they were allowed           to  challenge   the  gradation   list  that  would           virtually amount to permitting the petitioners  to           challenge those orders.      The  High   Court  overruled   both   the   preliminary objections. The first preliminary objection was overruled on the ground that the requirements of r. I of the PWD Code are not mandatory,  they are  merely  departmental  instructions which  had   not  acquired   the  statutory  force  and  the petitioners could not be non-suited merely because there was no compliance  of r.  1 of  the Code. The second preliminary objection was  also overruled  on the  grounds: (a) that the petitioners had  not prayed  for the  quashing of the entire orders but they were aggrieved only with that portion of the orders by  which the  contesting respondents  were appointed retrospectively from  the date  of the  publication  of  the results  of  diploma  in  mechanical/electrical  engineering examination, which affected the seniority of the petitioners in the  revised gradation list:(b) that the petitioners came to know  of the  two orders  after the  preparation  of  the revised gradation  list on  17th November,  1973 wherein the contesting respondents  were placed  above the  petitioners; (c) that  the Court  was mainly  concerned with  the revised gradation list,  but with  a view  to find out the basis for preparation of  the revised gradation list, the Court had to examine as  to whether  the retrospective appointment of the contesting respondents  by the  aforesaid two  orders in the circumstances was  valid. If the Court holds that they could not have  been appointed  retrospectively that  would simply change their position in the revised gradation list and that would  not   affect  the   appointment  of   the  contesting respondents;  and   (d)  that  ignoring  the  claim  of  the petitioners on  the ground  of laches or delay is not a rule

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of law but a rule of practice.      Coming to the merits, the appointment of the contesting respon- 605 dents was  challenged by  the petitioners on the ground that they had  not appeared  before the  selection  committee  as required by r. 1 and therefore their appointment was illegal and at  any rate they could not have been placed higher than the Petitioners in the revised gradation list.      The High  Court negatived  the contention  on the  self same ground  on which  the preliminary  objection No.  1 was overruled. Rule  I of the PWD Code was merely a departmental instruction and  it had  not acquired.  the statutory  force therefore, the  appointment of  the  contesting  respondents could not  be held to be invalid merely because they had not appeared before  the selection committee. Besides, there was no such  stipulation in  their initial  order of appointment nor were  they called  for appearing  before  the  selection committee.  Keshav   Singh  and  Sunil  Kumar,  two  of  the contesting respondents  and one  Shyam Dayal  Pandey, one of the petitioners  in one  of the  writ  petitions,  who  were placed in  similar situation  as the  contesting respondents who were  placed in  similar  situation  as  the  contesting respondents appeared  before the  selection committee but it was  due  to  some  misunderstanding  on  the  part  of  the Executive  Engineer  (Workshop  Division)  under  whom  they happened to  be posted  although their  original  letter  of appointment contained  no such  stipulation that  they would have to appear before the selection committee.      On the  crucial point-Whether the two orders dated 18th August  and   26th  September   1964  making   retrospective appointments were the various authorities cited before it.      The  Court  further  held  that  the  petitioners  were initially appointed  provisionally but  after they  appeared before  the   selection  committee   they   were   appointed temporally and,  therefore, the  services of the petitioners from the  date of  their appointment  could be counted while fixing their  seniority, whereas   those  of the  contesting respondents, who were provisionally appointed could not have been counted  for fixing  their seniority. It also held that the  revised   gradation   list   showing   the   contesting respondents above  the petitioners  on the  basis of the two orders dated  18th August and 26th September 1964 was bad in law.      Consequently, the  High Court  quashed only  that  part ofeth 606 two orders  which had  fixed the  date of publication of the result  of   diploma  in  mechanical/electrical  engineering examination  as  the  date  of  commencement  of  length  of services of temporary overseers. The seniority list prepared in pursuance  of the order dated 17th November 1973, insofar as it  relates to  the contesting  respondents vis-a-vis the petitioners in  the three  petitions was  also quashed.  The order of  promotion of  some of  the contesting respondents, namely, Ramendra  Singh,  Bhola  Nath  Choudhary,  Rajeshwar Sinha, Ramchandra  Prasad and  Udai Narain  Singh  was  also quashed.      The contesting  respondents have  now come to challenge the order  of the High Court by special leave under Art. 136 of the Constitution. The State of Bihar has also filed three separate appeals  against the  same order  and for  the same relief.      The crucial  question for consideration in this case is whether  the  appointment  of  the  contesting  respondents,

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arrayed as  appellants in  the first batch of three appeals, by the  two orders  dated 18th  August and  26th  September, 1964, with retrospective effect is bad in law.      Shri A.K. Sen along with Shri G.L. Sanghi appearing for the petitioners, now arrayed as respondents in these appeals supported  the  judgment  of  the  High  Court.  Their  main contention was  that  the  contesting  respondents  had  not acquired the  requisite qualification  on the  date of their appointment and,  therefore,  their  appointment  by  orders dated  16th   August  and   26th   September,   1964,   with retrospective effect  was in  the teeth  of r.  1 of the PWD Code,  and  in  any  case  there  can  be  no  retrospective appointment of  the contesting  respondents from the date of passing their  diploma examination  inasmuch as  it affected the seniority  of the  petitioners in  the revised gradation list.      Shri  Lal  Narain  Sinha  assisted  by  She  R.K.  Garg appearing  for   the  (petitioners)   contesting  respondent appellants, raised the following three contentions:      1.   The impugned  orders are  about ten  years old and           the  petitioners   could  not   be  permitted   to           challenge those  orders after  the lapse of such a           long time. 607      2.   The High  Court itself  had made  a discrimination           inasmuch as  the  writ  petitions  against  Keshav           Singh and  Awadesh Kumar  Singh have  already been           dismissed.      3.   In the  absence of  any statutory  rule  or  rules           framed under  Art. 309 of the Constitution, it was           open to  the Government  to make  appointments  to           suit the exigencies of the situation.      The High  Court has  given  detailed  reasons  for  not accepting the  contention of  undue deal  in filing the writ petitions. It  is not necessary to repeat those grounds over again. We  fully agree with the view taken by the High Court that the  writ petitions  filed by the petitioners could not be dismissed on the ground of laches.      As regards  the second  contention of  Shri Lal  Narain Singh, we  are of  the view that the mere fact that the writ petitions have  been  dismissed  against  Keshav  Singh  and Awadesh Kumar  Singh, will not be a ground for setting aside the  impugned  order  of  the  High  Court.  The  contesting respondents have  to show  that the  two orders  dated  18th August  and   26th  September,   1964  making  retrospective appointments were valid one.      As regards  the third contention, Shri Lal Narain Sinha submits that  the  executive  power  of  the  State  is  co- extensive with  its legislative  power and  therefore if the State can  pass an  enactment so  also it can pass orders in exercise of its executive power, as contemplated by Art. 162 of the  Constitution to  suit the exigencies of a particular situation. In the instant case, as stated earlier, the World Bank project  was undertaken  by the  PWD in  1962. A  large number of  mechanical overseers  were needed  as the project had to  be executed  on emergency  basis within a short time and there  being dearth  of qualified hands persons who were working only  as sub-overseers  or who  had appeared  at the diploma  examination  but  had  not  passed  were  appointed against sanctioned  posts and were permitted to draw the pay scale of  overseers from  the date  of the  passing  of  the diploma examination.      There is  no denying  the fact that the executive power of the 608

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State is  in no way narrower than the legislative power. But the question  is whether in exercise of that power the State in violation  of Art.  16 of  the  Constitution  could  make retrospective appointment  of the  contesting respondents in the  instant   case  so   as  to  affect  seniority  of  the petitioners.      For the  respondents reliance  was placed  on State  of Punjab v.  Kishan Dass.  In that  case pursuant  to  certain charges against  a police  constable his entire service with permanent effect  was forfeited,  which meant  reducing  his salary  to   the  starting  point  in  the  time  scale  for constables. The  constable challenged  the order by filing a regular suit.  The two courts below decreed the suit holding that there  was flagrant  violation of  Art. 311  (2) of the Constitution as  the impugned order amounted to reduction in rank. This  Court interpreted  the expression  ’reduction in rank’ and held:           "The  expression   ’reduction  in   rank’  in  the      article, therefore  means reduction  from a higher to a      lower  rank   or  post   when  imposed  as  a  penalty.      Therefore, an  order forfeiting  the past service which      has earned  a government servant increments in the post      or rank  he  holds,  however  adverse  it  is  to  him,      affecting his  seniority within  the rank  to which  he      belongs, or  his future  chances of  promotion does not      attract the article. His remedy, therefore, is confined      to the rules of service governing his post."      The impugned  orders in  the instant  case may not have resulted in reduction of rank but all the same they affected the seniority  of the  petitioners  which  eventually  might result in reducing their chances for promotion.      Reliance was  next placed  on B.N.  Nagarajan & Ors. v. State of Mysore & Ors. One of the arguments advanced in that case was  that till  the rules  are made  in that  behalf no recruitment could be made to any service. This argument was, however, repelled by this Court, firstly because, it was not obligatory under  proviso to  Art.  309  to  make  rules  of recruitment, etc. before a service could be constituted or a 609 post created  or filled;  secondly the  State Government had executive power  in relation  to all matters with respect to which the  legislature of the State has power to make rules; and it follows from this that the State Government will have executive power  in respect  of List  II,  Entry  41,  State public Services.  Relying on  Ram Jawaya  Kapoor v. State of Punjab. Ram  was held  that it  was not necessary that there should be a law already in existence before the executive is enabled to  function and  that the  powers of  the executive were limited merely to the carrying out of these laws. There was 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. The Court, however, put a  word of  caution  in  mentioning  that  if  there  is statuary rule  or an  Act on  the matter, the Executive must abide by  that Act  or rule  and it could not in exercise of executive power under Art. 162 of the Constitution ignore or act contrary to that rule or Act.      The second  contention in  the above  case was that the Executive could  not frame  rules retrospectively unless the Act specifically  empowers it to do so. This Court, however, refrained from  deciding this point because in their opinion the appeal  could be  disposed of  on another  ground.  This Court observed  that assuming  for the sake of argument that the  Mysore   State  Government   could   not   make   rules retrospectively and  that the rules were thus void so far as

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they operated  retrospectively, proceeded  to  ignore  those rules and  to  examine  whether  the  appointments  made  on October 31,  1961 could  be upheld.  The Court  came to  the conclusion that  those appointments  could be  considered to have been validly made in exercise of the executive power of the State under Art. 162 of the Constitution.      For the appellants strong reliance was also placed upon Rajendra Narain Singh & Ors. v. State of Bihar & Ors. It was laid  down   in  that  case  that  in  the  absence  of  any legislation on  the subject  or  a  rule  framed  under  the proviso  to   Art.  309   of  the  Constitution,  the  State Government  could   regulate  its  public  services  in  the exercise of its executive power. In the above case there was no statute  or any  rule framed  under the provision to Art. 309  to  determine  the  seniority  as  between  the  direct recruits  and   the  promotees.  The  determination  of  the seniority on the 610 basis of  continuous officiation was held to be valid on the basis of the decision in S.B. Patwardhan’s case. There is no gainsaying the fact that the executive power of the State is co-extensive with  the legislative  power, but  whether  the exercise of the power can be in such a way as to offend Art. 16 of the Constitution. The retrospective appointment of the respondents in  the aforesaid  writ petitions  affected  the seniority of the respondents.      This question, however, need not detain us as the point in question  is covered by R.N. Nanjundappa v. T. Thimmiah & Anr. In  that case  the respondent  Thimmiah  was  appointed through  the  Public  Service  Commission  as  an  Assistant Geologist  in  the  Department  of  Geology  in  the  Mysore Government in  1951 in the grade of Rs. 125-10-175. When the Kolar Gold  Fields School  of Mines  was set up in July 1957 the respondent was sent on deputation for two years as Vice- principal of the School of Mines. When the then Principal of the School  of Mines,  who was employed on a part time basis on an  allowance of  Rs. 200/-  left on  22nd July 1958, the respondent who  was Vice-Principal  and was  also doing  the duties of  Principal since 15th February 1958, was appointed as officiating Principal with effect from 22nd July, 1958 in the  grade   of  Rs.  500-30-800  by  an  order  dated  25th September, 1958.  On 3rd April, 1959 the State Government in modification of  the notification dated 25th September, 1958 appointed the  respondent as temporary officiating Principal with effect  from 15th  February, 1958. The Mysore Education Department Service Rules 1967 regularised the appointment of the respondent. The relevant portion of the Rules reads:      "Notwithstanding any  rule made  under the  proviso  to article 309 of the Constitution of India, or any other rules or Order  in force  at any  time,  Dr.  T.  Thimmiah,  B.Sc. (Hons.) Ph.D.  (Lond.) F.G.S.  shall be  deemed to have been regularly appointed  as Principal, School of Mines, Oragaum, Kolar Gold Fields, with effect from 15-2-1958."      This rule  was challenged  by the appellants on various grounds: 611      (a)  That the  respondent was  governed by  the  Mysore           Service Regulations,  1943, the Mysore State Civil           Services General  Recruitment) Rules, 1957 as well           as  the   Mysore  Education   Department  Services           (Technical  Education   Department)  (Recruitment)           Rules, 1964.      (b)  That the  respondent was  in Class III service and           his  appointment   by  the   impugned   regulation           amounted to  his promotion  from Class III service

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         to Class I. If so, it is hedged by two limitations           as contemplated by sub-clauses (a) and (b) of rule           4 (3)  of the  Mysore State  Civil Services Rules,           1957, i.e.  (1) it has to be on the basis of merit           and suitability  with due regard to seniority from           among persons  eligible for  promotion, and (2) it           has to be on the basis of seniority-cum-merit from           among persons eligible for promotion.      The stand  of the  respondent, however, was that (1) he was  a  local  candidate  in  service  and,  therefore,  the aforesaid rules  did not apply to him and the regularisation of his  appointment was  valid; (2)  under Art.  162 of  the Constitution regularisation  would in  itself be  a mode  of exercise  of   power  of   appointment  of   the   Executive Government. Such an appointment even if made in the shape of rules under  Art. 309 could not be attacked on the ground of being made  for one  person just  as a  piece of legislation could not  be attacked  on the  ground of  being made  for a particular person or entity.      The  High   Court  came  to  the  conclusion  that  the appointment of  the respondent  could  be  regularised  with effect from  any date as he was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957. This Court in  appeal, however, reversed the judgment of the High Court and observed:           "No one  can deny  the power  of the Government to      appoint. If  it were a case of direct appointment or if      it were  a  case  of  appointment  of  a  candidate  by      competitive  examination  or  if  it  were  a  case  of      appointment by selection recourse to rule under Article      309 for  regularisation would  not be necessary. Assume      that rules  under Article  309 could be made in respect      of  appointment   of  one   man  but   there  are   two      limitations. Article 309 speaks of 612      rules  for   appointment  and   general  conditions  of      service. Regularisation  of appointment by stating that      notwithstanding   any    rules   the   appointment   is      regularised strikes at the root of the rules and if the      effect  of   the  regularisation   is  to  nullify  the      operation and  effectiveness of  the  rules,  the  rule      itself is open to criticism on the ground that it is in      violation of  current  rules.  Therefore  the  relevant      rules  at   the  material  time  as  to  promotion  and      appointment are infringed and the impeached rule cannot      be permitted to stand to operate as a regularisation of      appointment of  one person  in utter  defiance of rules      requiring consideration  of seniority  and merit in the      case of  promotion and  consideration of appointment by      selection or by competitive examination".      The  Court   gave  further   reasons  for  holding  the regularisation to be bad in law. It observed:           "This regularisation  is  bad  for  the  following      reasons, First,  regularisation is not itself a mode of      appointment. Secondly,  the modes  of  appointment  are      direct  recruitment   or  selection   or  promotion  or      appointing for  reasons to  be recorded  in writing  an      officer holding  a post  of  an  equivalent  grade,  by      transfer, from  any other  service of  the  State.  The      Government  did   not  contend  it  to  be  a  case  of      promotion. If  it were a case of promotion it would not      be valid  because it  would be  a promotion  not on the      basis of  seniority-cum-merit but  a promotion  of some      one who  was in  Class III to Class I. Even with regard      to appointment  under rule  16 by  transfer of a person

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    holding an  equivalent grade  the appointment  would be      offending the  rules because  it would  not be transfer      from an  equivalent grade.  Again, merit  and seniority      could not be disregarded because the respondent was not      in the  same class  as the  Principal of  the School of      Mines. The  pay of  the Principal was Rs. 500-800 where      as the  respondent was  getting a  salary of Rs. 165 in      the grade of Rs. 125-165 plus an allowance of Rs. 75".      The Court  also brought out the distinction between the scope of  Art. 309  and Art.  162 of  the  Constitution.  It observed: 613           "There were  1957 rules which spoke of appointment      by  competitive  examination  or  by  selection  or  by      promotion. Even  if specific  rules of  recruitment for      such services  were not made the rule as to appointment      by competitive examination or Selection or by promotion      was  there.  Article  162  does  not  confer  power  of      regularisation. Article  162 does  not confer’ power on      the Government  to make  rules for  the recruitment  or      conditions of service. Rules are not for the purpose of      validating  an   illegal  appointment   or  for  making      appointments or  promotions or  transfer.  Rules  under      Article 309  are for  the purpose  of laying  down  the      conditions  of   service  and  recruitment.  Therefore,      regularisation by the way of rules under Article 309 in      the  present   case  by  stating  that  notwithstanding      anything in the rules the appointment of the respondent      was being  regularised was  in itself  violation of the      rules as  to appointment and as to cadre and also as to      the proper selection". In view of this clear authority, it cannot be argued for the appellants that  they could  be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated  18th August  and 26th  September,  1964  which purported to  appoint the  sub-overseers  named  therein  as temporary overseers  from the  date of  Publication of their result of diploma examination are clearly violative of Arts. 14 and  16 of  the Constitution  inasmuch as the petitioners had  already   been  appointed  as  overseers  by  selection committee constituted  under the  rules contained  in P.W.D. Code. The  order of  temporary appointment  by the  impugned orders dated  18th August and 26th September, 1964 conferred national seniority  on the  contesting respondents  for  the period while  they were actually working as sub-overseers in the lower  scale outside  the cadre  of overseers.  The High Court in  our opinion  was fully  justified in  allowing the writ petitions in part.      For the reasons given above the appeals must fail. They are accordingly dismissed. In the circumstances of the case, however, we allow the parties to bear their own costs. P.B.R.                                    Appeals dismissed. 614