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PETITIONER: JAI NARAIN MISRA

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 15/09/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. GROVER, A.N.

CITATION:  1971 AIR 1318            1971 SCR  (2) 392  1971 SCC  (1)  30

ACT: Civil service-Selection Post-Director of  Agriculture-Method of filling up.

HEADNOTE: The  Director of Agriculture in the respondent-State  having retired  the  State Government wrote to the  Public  Service Commission requesting them to select one of the 14  officers shown in the list accompanying-the letter for being promoted as  Director.   The  letter  stated  that  the  question  of seniority among those officers was still under consideration and  that  the  list was not  arranged  in  accordance  with seniority.   The  pay scale of some of the officers  in  the list  was Rs. 900 to Rs. 1,400 and others Rs. 1,200  to  Rs. 1,700.   The selection was to be on the basis of  merit  and suitability.   After examining the records,  the  Commission recommended the name of the appellant.  The third respondent filed a writ petition and the High Court held that the third respondent  was  senior  to the appellant  and  had  greater merit.   The pay scale of both the appellant and  the  third respondent was Rs. 1,200 to Rs. 1,700. In appeal to this Court, HELD (1) The post of Director of Agriculture is a  selection post  and an ex-cadre post.  Selection to it is made  solely on the basis of merit and the question of seniority was  not relevant.  It is for the State Government to select the most suitable officer and for discharging that responsibility, it was  open  to the Government to seek the assistance  of  the Public Service Commission.  The use of the word promoted  in the  letter  was inappropriate but the nature  of  the  post cannot  be  changed  by  the  Government  using  that  word. Therefore,  the High Court was not justified in  going  into the  question  of seniority, especially when  there  was  no complaint of mala fides either on the part of the Government or the Commission.[393 H; 394 B-C, E-F] (2)  Rule  16 of the Rules regulating the Bihar  and  Orissa Agricultural Services Class I promulgated on April 11,  1935 is  not  superseded by the 1945 Rules which apply  to  Bihar Agricultural  Service  Class 1, Bihar  Agricultural  Service Class  II,  General  Provincial Service  and  special  posts

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outside these cadres.  The 1935 Rules do not come in the way of  the  Government  making its selection  to  the  post  of Director, and R. 12 of 1945-Rules is not applicable. [395 F, G; 396 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 477 of 1970. Appeal  from the judgment and order dated February 12,  1970 of the Patna High Court in Civil Writ Jurisdiction Case  No. 1067 of 1969.                             393 S.   V. Gupte and U. P. Singh, for the,appellant. H.   R. Gokhale and R. C. Prasad, for respondent Nos. 1  and 2. D.  P. Singh, for respondent No. 3. The Judgment of the Court was delivered by Hegde, J. The appellant and the third respondent are serving in  the  Agricultural Department of  the  Bihar  Government. Till  February 1968 Mr. B. N. Sinha was the Director of  the Agriculture  in that State.  He retired in February of  that year.  On, November 25, 1967, the St-ate Government of Bihar wrote  to  the  Public  Service  Commission  requesting  the Commission  to select one of the fourteen officers shown  in the  list  accompanying that letter for ’being  promoted  as Director  of  Agriculture.  The pay scale of some  of  those officers  was  Rs. 900-1400 and others, Rs.  1200-1700.   In that  letter  the  Government stated that  the  question  of seniority of those officers is still under consideration and the list sent was not arranged in accordance with seniority. The  Commission  wrote to the Government on April  29,  1968 asking  the Government to determine the seniority  of  those officer",  before it is asked to recommend one of  them  for being appointed as Director of Agriculture.  The  Government wrote  back to the Commission on September 23, 1969  stating that  the question of seniority of those officers cannot  be easily  settled  as there were some  complications  and  the Commission  should  proceed to select one  of  the  officers mentioned  in  the  list solely on the basis  of  merit  and suitability. After  examining the records of all the officers  concerned, the,  Commission  recommended  the name  of  the  appellant. Immediately  thereafter the third respondent approached  the High   Court  with  a  petition  under  Art.  226   of   the Constitution   praying  that  the  recommendation   of   the Commission may be quashed and the Government asked to  make the  appointment  in accordance with the  rules.   The  High Court  came to the conclusion that the third  respondent  is senior  to  the  appellant and has greater  merit  than  the appellant.   Hence  under the rules he was  entitled  to  be promoted.   This  is an appeal by certificate  against  that discussion.   Thereafter the Government appointed the  third respondent  to  officiate as Director  of  Agriculture.   It appears  that the third respondent is superannuated  on  the 1st of this month but be has been given a month’s extension. It was not disputed be-fore us that the post of Director  of Agriculture is a selection post.  Therefore the question  of seniority  was not relevant in making the selection.  It  is for  the  State  Government to select  such  officer  as  it considers as most suitable.  In this view we think the  High Court was not justified in going into 394 the question of seniority nor will we be justified in  going into  that question.  It may be noted that at the  time  the

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Commission  made this recommendation the pay scale  of  both the appellant as well as the third respondent was Rs.  1200- 1700. So  far  as the question of suitability  is  concerned,  the decision  entirely  rested with the  Government.   In  other words  the Government is the sole judge to decide as to  who is  the most suitable candidate for being appointed  as  the Director    of    Agriculture.    For    discharging    that responsibility  it  was open to the Government to  seek  the assistance  of  the  Public  Service  Commission.   In   our judgment the High Court was not justified in calling for the records  of the Public Service Commission and going  through the nothings made by various officers in the Commission as well   as  the  correspondence  that  passed   between   the Commission  and the Government.  The High  Court  overlooked the  fact that the Government sought the assistance  of  the Commission  and not that of the High ’Court for finding  out the  most  suitable candidate.  In this case  there  was  no complaint of mala fides either on the part of the Government or  the Commission.  That being so the interference  of  the High Court in the matter of selection made by the Government was not called for. The  post  of Director of Agriculture is admittedly  an  ex- cadre  post.  The selection to that post is made  solely  on the  basis of merit.  Merely because the Government  in  its letter to the Commission used the word "promotion", the High Court   should  not  have  treated  the  case  as   one   of "Promotion".  The word "Promotion" used in the  Government’s letter  was  an  inappropriate word.   What  the  Government really  meant was selection of a person to be posted as  the Director.   The nature of the post cannot be changed by  the Government’s  using the word "promotion".  The post  remains to be a selection post. The High Court as also not right in opining that the  recom- mendation made by the Commission was not in accordance  with the rules.  The two rules referred to by the High Court  are (1)  Rules  regulating  the Bihar  and  Orissa  Agricultural Service,  Class I promulgated on April 11, 1935 and (2)  The Rules  regulating  the  recruitment  to  Bihar  Agricultural Service  Class 1, the Bihar Agricultural Service  Class  II, the  General  Provincial Service and special  posts  outside these  cadres promulgated on July 9, 1945.  The  High  Court has  come  to  the  conclusion  that  1935  rules  were   by implication  though  not specifically repealed by  the  1945 rules. 1935 rules make it clear both in its preamble as well as by the definition of the, word ",The service" that  those rules do not apply 395 to  the appointment to the post of Director of  Agriculture. Further Rule 16 of those rules reads :               "The post of the Director of Agriculture shall               remain  outside the cadre of the service,  but               subject  to the provision of rule 17 below  it               may  be filled at the discretion of the  local               government by a member of the service."               Rule 17 says :               "None but a member of the Indian  Agricultural               Service  borne on the cadre of the  Bihar  and               Orissa  shall be appointed to the post of  the               Director  of Agriculture so long as  any  such               member  is  available for appointment  to  the               post and who has not been held by the  Govern-               ment  of  Bihar and Orissa to  be  permanently               unfit to hold such post,               Provided  that whenever the  local  Government

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             consider   that  no  officer  of  the   Indian               Agricultural  Service  borne on the  cadre  of               Bihar  and Orissa is fit for the post  of  the               Director, the assistance of the Government  of               India shall be sought with a view to procuring               a suitable selection from among the members of               the  Indian  Agricultural  Service  in   other               provinces before any other person is appointed               to the post."               From a reading of rules 16 and 17 of the  1935               rules, it is clear that the 1935 rules did not               come  in the way of the Government making  its               selection.               Now coming to the 1945 rules, it is clear from               its  preamble that those rules apply  only  to               (1)  the Bihar Agricultural Service  Class  1;               (2)  the Bihar Agricultural Service  Class  II               and  (3)  the General Provincial  Service  and               special  posts  outside  these  cadres.    The               reference to the posts outside the, cadres  of               Class   I  and  Class  II  Services,  it   was               contended  on behalf of the appellant as  well               as on behalf of the State Government refers to               posts  in Class I and Class II in addition  to               cadre posts and not to selection posts.  It is               not  necessary  for  our  present  purpose  to               decide  that question.  It is clear from  rule               12  of the 1945 rules that these rules do  not               apply in the matter of filling up the post  of               the Director of Agriculture.  That rule  reads               :               "Whenever the Governor decides that a  vacancy               shall be filled by promotion or transfer of an               officer already in the service of  Government,               I a reference shall be made to the  Commission               to  advise on such selection.  The  Commission               shall  be  supplied with the  records  of  the               officer   nominated  for  promotion   by   the               Director of Agri-               396               culture,   together   with  the   records   of               officers,  if  any,  who  are  senior  to  the               nominated officer." We are unable to visualise that any service rule could  have provided  for the nomination of his successor by an  officer who  is about to be superannuated.  In our judgment rule  16 of the 1935 rules is not superseded by the 1945 rules. In  the result this appeal is allowed and the writ  petition dismissed.   Taking  into consideration the  fact  that  the third  respondent is already superannuated we make no  order as to costs in this appeal. V.P.S.                   Appeal allowed. 397