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PETITIONER: PARVEZ QADIR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/10/1974

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN BHAGWATI, P.N. GOSWAMI, P.K.

CITATION:  1975 AIR  446            1975 SCR  (2) 432  1975 SCC  (4) 318

ACT: All  India Services Act, 1951-Indian Forest Service  (Cadre) Rules  1966-Indian Forest Service (Recruitment) Rules  1965- Rule 4(1)-Consultation with U.P.S.C. when there ultra vires- Confidential    rolls-whether   could  be   considered   for adjudging suitability of a candidate for a higher post-Rules and regulations interchangeable word.

HEADNOTE: By incorporating s. 2-A in the All India Services Act,  1961 the  Indian Forest Service was constituted as an  All  India Service.   The  Government of India made the  Indian  Forest Service  (Cadre) Rules, 1966 and the Indian  Forest  Service (Recruitment) Rules, 1966.  By Rule 3 of the Cadre Rules the Indian Forest Service was constituted for each State and was referred  to as the State cadre.  After the commencement  of the  Recruitment Rules the Central Government  was  enjoined under  Rule 4(1) of the Recruitment Rules to recruit to  the service any Person from amongst the members of State  Forest Service   adjudged   suitable  in   accordance   with   such regulations   as   the  Central  Government  may   make   in consultation with the State Government and the Union  Public Service Commission.  The Indian Forest Service (Fixation  of Cadre  Strength)  Regulations,  1966 came  into  force  with effect  from October 1, 1966 and the Indian  Forest  Service (Initial  Recruitment) Regulations, 1966 came into force  on July  1,  1966.   Regulation 4 of  the  Initial  Recruitment Regulations,deals   with  conditions  of   eligibility   for recruitment  to  the service while regulation 5  deals  with preparation  of lists of suitable officers.   In  accordance with there rules and regulations the initial constitution of the  Service and recruitment thereto was made in  July  1967 but  this  was immediately challenged.  In A. K.  Kraipak  & Ors. etc. v. Union of India and Ors. this Court struck  down the notification and the selections made were set aside. In  a  petition  under article 32 of  the  Constitution  the petitioner questioned the delegation under rule 4(1) to mike regulations  which the Act did not authorise.  He  contended (1)  that  the initial recruitment must be  made  only  from amongst those members who are in State Forest Service on the date  when  the selection was actually made and not  on  the

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date of initial constitution of the cadre; (2) that even  if the selections were to be made from amongst the persons  who were  members of the State Forest Service as on the date  of the initial recruitment confidential rolls of those  persons which have to be considered should be those which have  been written  up to the time when selections were in  fact  made; (3)  that  the  adjudgment of suitability on  the  basis  of confidential  entries  and  other record  is  arbitrary  and consequently regulation 5 was invalid. On  behalf of the State it was contended that the rules  and regulations  should  be read as integrated  rules  regarding recruitment under s. 3 of the Act. Dismissing the petition . HELD  :  There is no justification for  the  application  of articles  14  and 16 of the Constitution to  the  facts  and circumstance of this case. [443 B] (1)The  contention is untenable and must be rejected.   Rule 4(1)  of the Recruitment Rules cannot be read  without  rule 3(1)  be  must  be read together and the  persons  who  were eligible to recruitment were those.  Who on the date of the, constitution of the service were members of the State Forest Service and who conformed to the conditions of eligible set out in regulation 4.  Rule 4(2)  of  the Recruitment Rules further hide it  clear  that after   the  recruitment  under  sub-rule   (1)   subsequent recruitment to the Service had to follow a different  method which was prescribed under clauses (a), (aa) and (b) of that sub-rule. [443 D-E] The  reason why October  1, 1955 was taken as the  date  for the  initial  constitution of the Indian Forest  Service  is that because under rule 3(a) of the Recruit- 433 ment  Rules  recruitment  was  to be  made  at  the  initial constitution  of  the service.  Under regulation  6  of  the initial recruitment Regulations the appointments have to  be made in the State cadres and since the strength of the cadre in  each  State,  was only fixed by the  Fixation  of  Cadre Strength Regulations which came into force with effect  from october  1,  1966, the initial constitution  of  the  Indian Forest Service was as from October 1, 1966.  In other  words the persons who were to be appointed under regulations 6  of the Initial Recruitment Regulations were from those officers of  the  State  Forest  Service who,  on  the  date  of  the constitution  of  the Service namely, October 1,  1966  were eligible for being selected. [442 C-D] If  instead  of considering the persons eligible as  on  the date  of the constitution of the Service on October  1,1966, persons who on the date of their selection were in the State Forest Service alone have to be considered, then, there  may be many people who, though not in service on the date of the constitution  of  service, will become  eligible  for  being considered.   The object of the initial recruitment  to  the Indian Forest Service from amongst those persons in  service who  on  the date of the constitution of  the  service  were members of the State Forest Service was to give advantage of a higher service to the members of the State Forest  Service not  only  in  respect  of status but  in  respect  of  pay, pension,  retirement, age and other service  benefits  which were not available to those under the conditions of  service applicable to the State Forest Service. [442 G-H; 443_B] It  could  not be the purpose of the rules  and  regulations that  initial recruitment not having taken place till  after Kraipak’s case was-decided any subsequent recruitment to the service  under sub-rule (2) of rule 4 could not take  place. [443 F]

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(2)There could be no justification to hold that  suitability of  a  person  has  to  be  adjudged  by  reference  to  the confidentials  written up after the initial constitution  of the  Service on October 1. 1966.  If persons who were to  be considered  for initial recruitment were those who  belonged to  the service on the date of initial recruitment then  the confidentials to be considered were only those pertaining to a  period of prior to that date.  If this were not so  there would  be  discrimination because while the  suitability  of those  in service on the date of initial recruitment bad  to be  considered as on the date of the actual  selection,  the suitability  of those who were dead or retired could not  be considered  by reference to the confidentials of  the  later period. [444 D; B-C] The  selection of persons to be appointed to the service  as on the date of the initial constitution of the Service would be  from  amongst those who were then members of  the  State Forest   Service  notwithstanding  the  fact  that  due   to litigation that selection was long delayed. [444 H] (3)The  adjudgment of suitability of officers for  selection had to be made according to some norms.  In order to achieve this end various methods can be adopted.  It is not for this Court to lay down which of the methods had to be adopted for adjudging  suitability as long as the norms which  had  been adopted  were correlated and relevant to the  adjudgment  of suitability of the officers to be recruited to the  Service. Past performance of an officer being one of the criteria for making  selection the only way to adjudge their  suitability was by perusal of confidential records. [445 D; F; 446A] Often  enough,  the  entries  in  confidential  records  are themselves an insignia of the capacity and capability of the maker as a superior officials as well as a commentary on the quality of the officer against whom that confidential remark is  being made. it is not correct to say that the method  of selection  based  on past performance as  disclosed  by  the confidential records was not the proper method for adjudging suitability of the officer concerned. [446 D; E] R.   L.  Butail v. Union of India & Ors. [ 1 971]  2  S.C.R. 55, referred to. The  criteria laid down in the rules and regulations on  the question of suitability provide sufficient indication as  to the norms applicable for adjudging suitability, namely,  the past performance of the officer as could be gleaned from the confidential  and other records if they exist in respect  of that officer. [417 D] 434 Though the regulations may not be called rule-, and they are purported  to  be made under rule 4(1)  of  the  Recruitment Rules.  in effect they were made under the, power  conferred by  s. 3 of the Act which uses the words  ’regulations’  and ’rules’ as interchangeable words.  "Rules" have been defined in   s.  3(51)  of  the  General  Clauses  Act  to   include regulations’.   Both the rules and regulations were made  by the  same  authority namely, the Central  Government.   They have  also  been  placed before the  Parliament  under  sub- section  (2) of s. 3 of the Act thus fulfilling  the  condi- tions for the enforcement prescribed therein. [441 E-F] The  State  of Uttar Pradesh and Ors.  V. Babu  Ram  Upadhya [1961] 2 S. C. R. 679 and Kailash Nath and Anr. v. State  of U. P., A. I. R. 1957 S. C. 790 referred No  question  of  delegation in rule 4 arises  nor  can  the regulation be said to have been made in excess of the powers conferred by s. 3 of the Act, The provision for consultation with the Public Service Commission contained in rule 4(1) of the  Recruitment Rules is not beyond the power of  the  rule

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making authority in as much as that provision complies  with the  constitutional  requirement for consultation  with  the Public Service Commission. [441 H & G] Arguments for the Petitioner : The  adjudgment of suitability made solely on the  basis  of confidential  reports in the circumstances of this case  had failed to afford equality of opportunity.  The sole basis of adjudging  suitability  had been  the  confidential  reports which had not been communicated to the officers concerned at the  appropriate  time  as contemplated by  the  rules  and, therefore,  were irregular, defective and failed  to  afford opportunity  to improve.  The confidential reports are  mere expressions  and do not relate to particular  incidents  but adjudgment  of suitability based on mere  expressions  could not be said to be the objective material.  The rules did not lay  down  any criteria for adjudging  the  suitability.   A proper selection presupposes that the criteria of  selection were known before hand and were uniform.  The absence of any such criteria renders rule 4 and regulation 5 arbitrary  and violative of article 14 of the Constitution.  Rules refer to the  date of the constitution of service, namely, ist  July, 1966 for a limited purpose.  The purpose of the rule  cannot be  extended.   If the recruitment to the  service  must  be clearly  on  the basis of adjudging of the  suitability  for appointment   as  on  the  date  of  selection,   then   the qualifications  and  disqualifications must be  as  on  that date.   Whenever  the selections’ were held,  there  was  no reason to exclude the period between 1st July, 1966 and  the date of   actual selection for considering the merit of  the candidate. ArgumentS for the Respondent : The expression ’rule includes ’regulation’ made under an Act by virtue of s.     3(51) of the General Clauses Act.  Rules and regulations from one set of integrated ’rules  regarding recruitment  under s. 3 of the- Act.  There was no  question of delegation in rule 4. Under regulation 4 the  eligibility is  "as  on the date of the constitution  of  the  service." Under rule 4(1) of the Recruitment Rules the recruitment  at the initial constitution had to be made as soon as  possible after  1st July, 1966 when the recruitment regulations  came into  force.   Appointments to State cadres had to  be  made with  effect  from 1st October, 1966 when  the  fixation  of cadre  strength  regulations were made,  The  adjudgment  of suitability  on  the basis of service record is not  only  a perfectly  good test for the adjudgment of  suitability  for appointments  in a service but is a perfectly good test  for adjudgment of suitability of State officers for  recruitment to  Indian Forest Service at its initial constitution.   For initial recruitment of the Indian Forest Service from  among State  Forest Service officers who have put in a  number  of years  of service in the State Forest Service to  make  them eligible for recruitment at the initial constitution of  the Indian Forest Service under regulation 4, service records of these  officers regarding the work which they  have  already done throughout these years would be the only correct method of test for adjudging the suitability for recruitment to the Indian  Forest  Service at its initial  constitution.   Past performance  is  an established procedure  for  recruitment. Under  regulation  4 the initial recruitment is to  be  made from  the  officers of the existing  State  Forest  Service. Even  if there was no guide-line regarding suitability  laid down  in  regulation  it follows  that  the  suitability  of officers would 435 have to be adjudged by their past performance which could be

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found  only from their service record.   Regulation  5(2)(a) and (b) clearly indicate that the service records would form the  basis  of suitability of the existing officers  of  the State  Forest  Service  for  recruitment  to  Indian  Forest Service at its initial constitution.  The procedure  adopted by  the  Special  Selection Board under  regulation  was  to select  officers on merit only as reflected in  the  overall assessment  of  the  service records  of  the  State  Forest Officers.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 629 of 1970. Petition Under Article 32 of the Constitution of India. B. R. L. Iyanger and R. L. Kohli for the petitioner. Niren De, Attorney General of India, G. L. Sanghl and R.  N. Sachthey, for respondent No. 1 Niren  De.   Attorney General of India, R. N.  Sachthey  and Sumitra Chakravarty, for respondent No. 2. E.C. Aggarwala and Avinash Karkhanis, for respondent No.  19 Tara Chand Sharma and Uma Datta for the Intervener. The Judgment of the Court was delivered by JAGANMOHAN  REDDY, J.-This petition is the second  round  in the  challenge  of  the initial recruitment  to  the  Indian Forest  Service  from amongst the gazetted officers  of  the Forest Service of each State.  By section 2 of the All India Services  Act LXI of 1961-hereinafter called the  Act’,  the Indian Administrative Service and the Indian Police Service, which  were constituted before the Act, were  recognised  as All-India Services.  Subsequently by the All India  Services (Amendment)  Act,  1963,  enacted, on  September,  6,  1963, section  2-A was added providing for constitution  of  three other All India Services of which the Indian Forest  Service was one.  Section 3 of the Act dealt with the regulation  of recruitment and conditions of service.  It provided:               "  (1)  The  Central  Government  may,   after               consultation  with  the  Governments  of   the               States concerned including the State of  Jammu               and Kashmir, make rules for the regulation  of               recruitment, and the conditions of service  of               persons appointed, to an All-India Service.               (2)All rules made under this section shall  be               laid  for not less than fourteen  days  before               Parliament as soon as possible after they  are               made,   and   shall   be   subject   to   such               modifications,  whether  by way of  repeal  or               amendment, as Parliament may make on a  motion               made  during the session in which they are  so               laid." Section  4  of the Act dealt with  continuance  of  existing rules which prior to the Act were applicable to an All-India Service  and those rules were doomed to be rules made  under the Act. In  order to constitute and bring into being  the  All-India Forest Service the Central Government issued a  notification dated July 13-255 Sup C1/75 436 1966 under section 2-A of the Act and immediately thereafter in  exercise of the powers conferred by sub-section  (1)  of section  3 of the Act made certain Rules, namely the  Indian Forest  Service (Cadre) Rules, 1966-hereinafter referred  to as   "the  Cadre  Rules"  and  the  Indian  Forest   Service (Recruitment)  Rules, 1966-hereinafter referred to  as  "the

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Recruitment Rules".  By rule 3 of the Cadre Rules the Indian Forest Service Cadre was constituted for each State or group of States and the cadre so constituted was to be referred as a "State Cadre", or, as the case may, a "Joint Cadre".   The strength  and  composition of each of the cadres  was  dealt with  by rule 4 of the Cadre Rules under which the  strength and composition of each of the cadres constituted under rule 3  was to be determined by regulations made by  the  Central Government in consultation with the State Government in that behalf.   Sub-rule (2) of rule 4 of the Cadre Rules  further provided that the Central Government shall, at the  interval of every three years, reexamine the strength and composition of each such cadre in consultation with the State Government concerned and may make such alterations therein as it  deems fit.   There are also two provisos to the rule by and  under which  the  Central Government had the power  to  alter  the strength and composition of any cadre at any other time  and similarly the State Government was also empowered to aid for a  period not exceeding one year, and with the  approval  of the  Central Government for a further period  not  exceeding two  years,  to  a State or Joint Cadre one  or  more  posts carrying   duties  or responsibilities of a like  nature  to cadre posts.  Rule 5 provided for the allocation of  members to various cadres by the Central Government in  consultation with  the State Government concerned. it also empowered  the Central  Government,  with  the  concurrence  of  the  State Government  concerned, to transfer a cadre officer from  one cadre to another cadre.  In exercise of the powers conferred by  sub-rule (1) of rule 4 of the Cadre Rules,  the  Central Government,  in  consultation  with  the  State  Government, framed   the  Indian  Forest  Service  (Fixation  of   Cadre Strength)  Regulations,  1966,  fixing.  the  strength   and composition  of the cadres of the Indian Forest  Service  in each  of  the States as specified in  the  Schedule  annexed thereto, with effect from October 1, 1966.  It also made, in exercise  of the powers conferred by sub-rule (1) of rule  4 of the Recruitment Rules, after consultation with the  State Governments  and  the Union Public Service  Commission,  the Indian  Forest  Service (Initial  Recruitment)  Regulations, 1966, which came into force with effect from July 1, 1966. It may be mentioned that under sub-rule (1) of rule 4 of the Recruitment  Rules the Central Government was  enjoined,  as soon  as  may  be after the commencement of  the  Rules,  to recruit  to the Service any person from amongst the  members of the State Forest Service adjudged suitable in  accordance with such regulations as the Central Government may make  in consultation with the State Governments and the  Commission, provided  that no member holding a post referred to in  sub- clause (ii) of clause (g) of rule 2 and so recruited  shall, at the time of recruitment, be allocated to any State  cadre other than the cadre of a Union territory.  Sub-rule (2)  of rule 4 437 of   the  Recruitment  Rules  deals  with   the   subsequent recruitment   and  prescribes  the  different   methods   of recruitment under clause (a), (aa) and (b) of the said  sub- rule.  We are not concerned with sub-rule (2) or with  other sub-rules  of rule 4 and consequently these may be  ignored. Rule 5 of the Recruitment Rules deals with disqualifications for  appointment, such as for instance-(1) a person  who  is not a citizen of India or does not belong to such categories of  persons as may, from time to time, be notified  in  that behalf by the Central Government; (2) a person who has  more than  one wife living or who having a spouse living  marries in any case in which such marriage is void by reason of  its

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taking  place during the life-time of such spouse; (3) or  a married  woman; (4) or a woman who is married to any  person who  has a wife living,-were considered to be  not  eligible for appointment to the service, subject however to the power of the Central Government to exempt them from the  operation of either sub-rule (2) or sub-rule (4)  when it is satisfied that there are special grounds for doing so. Under   regulation 2 of the Indian Forest  Service  (Initial Recruitment)   Regulations,  1966-hereinafter  called   "the Initial Recruitment Regulations", the Central Government was empowered to constitute a Special Selection Board consisting of  the Chairman of the Commission or his  nominee,  certain officers  of the State specified in sub-clauses (i) to  (iv) of  clause  (a),  for selection to  the  State  Cadres,  and certain  officers  mentioned in sub-clauses (i) to  (iv)  of clause (b) for selection to the Cadre of Union  Territories. Regulation  4 of the initial Recruitment  Regulations  deals with conditions of eligibility, regulation 5 the preparation of   list  of  suitable  officers  and  regulation  6   with appointment  to  the Service.  These Regulations  are  given below:-               "4   Conditions  of   eligibilitY.-(1)   Every               officer of The State               Forest   Service   who,   on   the   date   of               constitution of the Service:-               (a)   is holding a cadre post substantively or               holds a lien on such post, or               (b)   (i)  holds substantively a post  in  the               State Forest Service,               (ii)  who has recompleted not less than  eight               years     of    continuous     service(whether               officiating  or substantive) in that  Service,               and               (iii)who  has  completed not less  than  three               years  continuous  service in  an  officiating               capacity in a cadre post or in any other  post               declared  equivalent  thereto  by  the   State               Government  concerned, shall be  eligible  for               selection to the Service in the senior scale. (2)  Every  officer  of the State  Forest  Service  who  has completed  four years of continuous service on the  date  of constitution of the Service shall be eligible for  selection to the service in the junior scale. Explanation-  In computing the period of continuous  service for the purpose of sub-regulation (1)(b) or sub-regulation 438 (2),  there  shall be included any period  during  which  an officer has undertaken (a)  training  in  a diploma course in the  Forest  Research Institute and Colleges, Dehra Dun; or (b)  such  other training as may be approved by the  central Government in consultation with the Commission in any  other institution. 5.   Preparation of list of suitable officers:- (1)The  Board  shall prepare in the order of  preference,  a list  of such officers of State Forest Service  who  satisfy the  conditions  specified  in  regulation  4  and  who  are adjudged  by the Board suitable for appointment to posts  in the senior and junior scales of the Service. (2)  The list prepared in accordance with sub-regulation (1) shall then be referred to the Commission for advice, by  the Central Government along with:-               (a)   the  records  of all officers  of  State               Forest Service included in the list;               (b)   the   records  of  all  other   eligible

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             officers  of the State Forest Service who  are               not  adjudged  suitable for inclusion  in  the               list  , together with the reasons as  recorded               by  the Board for their non-inclusion  in  the               list; and               (c)   the   observations,  if  any,   of   the               Ministry    of    Home    Affairs    on    the               recommendations of the Board. (3)  On receipt of the list, along with the other documents received  from the Central Government, the Commission  shall forward its recommendations to that Government. 6.   Appointment to the Service:-The Officers recommended by the  Commission  under sub-regulation (3)  of  regulation  5 shall be appointed to the Service by the Central Government, subject  to  availability of vacancies, in the  State  Cadre concerned." From a perusal of sub-rule (1) of rule 4 of the  Recruitment Rules it is obvious that the Indian Forest Service had to be constituted as soon as may be after July 1, 1966, which  was the date of commencement of the Rules, and that the  persons to  be recruited to the Service were to be from amongst  the members  of  the State Forests Service who on  the  date  of constitution of the Service were adjudged to be suitable for appointment.  Though the Recruitment Rules were notified  on September 1, 1966, they were deemed to have come into  force with  effect  from July 1, 1966, and the Fixation  of  Cadre Strength  Regulations though made on December 27, 1966  were deemed  to  have  come into effect  from  October  1,  1966. Selections  were, therefore, made in accordance with rule  4 of the Recruitment Rules read with regulations 3,4,5, & 6 of the Initial Recruitment Regulations, 1966, for the number of posts  fixed  under  under the Fixation  of  Cadre  Strength Regulations for each of the States. 439 In  accordance with the aforesaid rules and regulations  the initial constitution of the Service and recruitment  thereto was  made  by  a notification of the  Government  of  India, Ministry  of  Home Affairs, dated July  29,1967.   This  was immediately  challenged by one Kraipak and others  who  were from the cadres of Divisional Forest Officers and  Assistant Conservators of Forests of Jammu and Kashmir, on the  ground that the selections notified were violative of Arts. 14  and 716 of the Constitution, and on the further ground that  the selections in question were vitiated as being opposed to the principles  of  natural justice.  They also  challenged  the vires of section 3 of the All-India Services Act, rule 4  of the Recruitment Rules framed under that Act and regulation 5 of  the  Initial Recruitment Regulations framed  under  rule 4(1) of the Recruitment Rules.  This Court in A. K.  Kraipak & Others etc. v. Union of India and Others struck down  that notification  on the ground that the principles  of  natural justice were not complied with in that one of the  aspirants for  recruitment  to the Service,  namely,  Naqishbund,  the Acting  Chief Conservator of Forests, was also a  member  of the Selection Board.  Though he (Naqishbund) did not sit  in the Selection Board at the time his name was considered.  he participated  in  the deliberations when the  names  of  his rivals  were considered.  It was also admitted that  he  had participated  in the Board’s deliberations  while  preparing the list of selected candidates in order of preference. This list  together,  with  the records  were  forwarded  to  the Ministry of Home Affairs,     which  in turn forwarded  them with its observations to the Union      Public       Service Commission   as  required  by  the  regulations.  In   these circumstances  all  the selections were set  aside  and  not

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merely the     selection of the three Conservators of Forest who  were  excluded.  It was contended  in  that  case  that section 3 of the Act, rule 4       of the Recruitment  Rules and          regulation          5          of           the Initial Recruitment Regulations are void as those provisions conferred  unguided, uncontrolled and uncanalised  power  on the concerned delegates. in so far as the vires of section 3 of the Act was concerned, it was contended that the question was no longer res integra in view       of  the decision  in D.  S. Garewal v. The State of Punjab & Anr.(2) This  Court, however,  thought it unnecessary to go into the question  as it   was  striking  down  the  notification  for   violating principles of natural    justice.   As  a  result  of   this decision regulation 3(1)(a)(iv) was amended  on September 6, 1969  in respect of the composition of the Selection  Boards and by another notification of the same date after  sub-rule (3),  sub-rule (3A) was added to rule 4 of  the  Recruitment Rules.    Sub-rule (3A) reads as follows :               "(3A)  Notwithstanding anything  contained  in               sub-rule (2),               when  the  appointment of any  person  to  the               Service in pursuance of the recruitment  under               sub-rule  (1)  is  declared  invalid  by   any               judgment  or order of any Court,  the  Central               Government  may make fresh  recruitment  under               that sub-rule to fill up such appointment  and               may  give effect to the appointment so  filled               up from the same date on which the appointment               which  is  declared invalid as  aforesaid  has               been given effect to." (1)[1970] 1 S.C.R. 457. (2) [1959] Supp. (1) S.C.R. 792. 440 Though  in this petition the vires of the  Provisions  which were A challenged in Kraipak’s case(1) have been  challenged again,  the  learned Advocate for the  petitioner  ’did  not contest  the  vires  of  s. 3  of  the  Act.   He,  however, questioned  the delegation in rule 4(1) to make  regulations which the Act did not authorise.  That apart, the  selection and  the  notification appointing the gazetted  officers  of Jammu  and Kashmir Forest Service to Indian  Forest  Service has been challenged on the following grounds: (1)  The  rules of recruitment do not lay down any  criteria for adjudging Suitability which has been made solely on  the basis of the confidential reports and as such has failed  to afford  equality  of  opportunity.   Even  apart  from  this objection it is contended that the confidential reports were irregular  and defective, and as they were not  communicated to the concerned persons till August 1967, failed to  afford the  opportunity  which  was intended to  be  given  by  the circulars,  which  is, that the officers  whose  ’blemishes’ were  pointed out should have an opportunity to improve.  in any case, the confidential reports are based on impressions, and suitability based on such impressions cannnot be said to be an objective material. (2)  The opportunity afforded on August 10, 1967 for making representations  against  adverse  entries  gave  room   for favouritism,  D as some adverse entries of persons who  were to   be  selected  were  expunged.   The  selections   were, therefore, not fair, impartial and objective. (3)  A  proper  selection presupposes that the  criteria  of selection  are known before hand and are uniform,  but  when these are not known nor made evident the selection is  bound to be arbitrary. (4)  The  averment that adjudging suitability   was  on  the

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basis   of  the  record  on  or  before  the  date  of   the constitution  of  the Service, i.e. on or  before  July)  1, 1966,  cannot be pressed into service inasmuch as  the  date for  the constitution of the Service, namely,  July1,  1966, was only chosen for the limited purpose of determining inter se  seniority  of the selected officers and  their  relative position  in the Indian Forest Service.  The recruitment  to the  Service  must, therefore, clearly be on  the  basis  of adjudging the suitability for appointment as on the date  of the  selection.   The qualifications  and  disqualifications must  be  as  on  that  date,  such  as  for  instance   the disqualifications  under rule 5. What has to  be  considered for selection is that the officer concerned is available  as on  the  date when he or she is selected.  It  was  not  the intention  of the rules and regulations that merely  because some Forest Officers were alive or in service on the date of the  first  constitution  of  the  Service  they  should  be selected  on a date when such persons are not in service  or not  even  alive  or have lost  their  citizenship  or  have disqualified themselves by marrying several wives etc. The learned Attorney General on the other hand submits  that the first selection to the Indian Forest Service amongst the gazetted  officers  of the State Forest Service must  be  in accordance with the rules and regulations made under section 3 of the Act and these have been (1)  [1970] 1 S.C.R. 457. 441 complied with in making the impugned recruitment.  Under the Recruitment  Rules and the Initial  Recruitment  Regulations the  Central Government has to recruit to the Indian  Forest Service,  as  soon as may be after the commencement  of  the Rules, namely July) 1, 1966, from amongst the members of the State   Forest  Service  persons  adjudged  suitable.    The procedure for making the aforesaid recruitment is laid  down in   the  aforesaid  rules  and  regulations.    The   Board constituted  under  regulation 3 has to prepare  a  list  in order  of preference from amongst the members of  the  State Forest  Service  who  satisfy the  conditions  specified  in regulations  4  and  who are adjudged by  the  Board  to  be suitable  for  appointment to the posts  in  the-senior  and junior  scales of the Service.  After this list is  prepared and  sent to the Union Public Service Commission along  with the  observations  of  the Ministry  of  Home  Affairs,  the Central Government, subject to the availability of vacancies in  the  State  cadres as provided in the  Cadre  Rules,  is empowered to make appointments to the Indian Forest Service. The  constitution  of the Selection Board, as we  have  seen already,  is  provided  under regulation 3  of  the  Initial Recruitment  Regulations and the conditions  of  eligibility for appointment to the Service are provided in regulation 4. Ile Attorney General submits that the rules and  regulations should  be  read as integrated rules  regarding  recruitment under section 3 of the Act. It  is  true that though the regulations may not  be  called rules  and they are purported to be made under rule 4(1)  of the  Recruitment  Rules, in effect they are made  under  the power conferred by section 3 of the Act which uses the words "regulations"  and  "rules" as interchangeable  words.   The marginal   note  to  section  3  of  the  Act  itself   says "Regulation of recruitment and conditions of service" but in the body of the Act what the Central Government is empowered is  to make rules for the regulation of recruitment.   As  a matter of fact " rules" have been defined in section 3(5  1) of  the General Clauses Act to include "regulations".   Both the  rules and regulations were ma e by the same  authority,

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namely,  the Central Government, they have also been  placed before the Parliament under sub-section (2) of section 3  of the  Act thus fulfilling the conditions for the  enforcement prescribed  therein.   See The State of  Uttar  Pradesh  and Others v. Babu Ram Upadhya(1) and Kailash Nath and  another. V. State of U.P.(2) The  provision  for  consultation with  the  Public  Service Commission  contained in rule 4(1) of the Recruitment  Rules is,  in  our view, not beyond the power of  the  rule-making authority  inasmuch  as  that provision  complies  with  the constitutional requirement for consultation with the  Public Service  Commission: [See clauses (2), (3)(a) and (3)(b)  of Art.  320 of the Constitution of India ] An) provision  made which  conforms  with the  constitutional  requirements  is, therefore,  not ultra vires.  In these circumstances,  there is  validity  in  the submission  of  the  learned  Attorney General that no question of any delegation in rule 4  arises nor  can the regulation be said to have been made in  excess of or the powers conferred by section 3 of the Act. (1) [1961] 2 S.C.R. 679. (2) A.I.R. [1957] S. C. 790 442 A  perusal  of  the Act and the Rules  will  show  that  the constitution  of the Indian Forest Service according to  the Cadre Rules has to be made for each State or group of States and  the  strength  of such cadre has to  be  determined  by regulations   made   by   the   Central   Government   after consultation  with the respectively State Governments.   The Indian Forest Service has been constituted by a notification under  section  2-A of the Act with effect from  October  1, 1966,  though  as  we have had occasion  to  point  out  the Recruitment  Rules, the Initial Recruitment Regulations  and the Cadre Rules were enforced as from July 1, 1966.  This is because the Fixation of Cadre Strength Regulations came into force  with  effect from October 1, 1966.   The  reason  why October  1,  1966,  is taken as the  date  for  the  initial constitution  of the Indian Forest Service is  that  because under rule 3(a) of the Recruitment Rules, recruitment was to be  made at the initial constitution of the Service.   Under regulation  6  of the Initial  Recruitment  Regulations  the appointments  have to be made in the State Cadre  and  since the  strength of the Cadre in each State was only  fixed  by the Fixation of Cadre Strength Regulations, which came  into force  with  effect  from  October  1,  1966,  the   initial constitution  of  the  Indian Forest  Service  was  as  from October 1, 1966.  In other words, the persons who are to  be appointed  under  regulation 6 of  the  Initial  Recruitment Regulations  are  from those officers of  the  State  Forest Service who on the date of the constitution of the  Service, namely, October 1, 1966, are eligible for being selected.  A person  eligible  to  be appointed to the  senior  scale  of Service from amongst the members of the State Forest Service must be (a) one who is holding a cadre post substantively or holds   a  lien  on  such  post,  or  (b)  (i)   who   holds substantively  a post in the State Forest Service, (ii)  who has  completed not less than eight years continuous  service (whether  officiating or substantive) in that  Service,  and (iii) who has completed not less than three years continuous service in an officiating capacity in a cadre post or in any other   post  declared  equivalent  thereto  by  the   State Government concerned.  Clause (2) of regulation 4 deals with the  eligibility for selection to the Service in the  junior scale. If  the contention of the petitioner that  the  confidential reports  and  other  records  pertaining  to  the   officers

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eligible  for selection for initial recruitment have  to  be considered  as  on  the date of  actual  selection  or  that persons  who  are in service only on that date  have  to  be considered  for  selection, were right then  the  rules  and regulations   become  meaningless.   On   the   petitioner’s contention instead of considering the persons eligible as on the  date of the constitution of the Service on  October  1, 1966,  in respect of when the initial recruitment has to  be made, persons who on the date of their selection were in the State  Forest Service alone have to be considered.  If  this method is followed, then there may be many people who though not  in  service  on the date of  the  constitution  of  the Service  will become eligible for being  considered.   These may  be  persons  who are  subsequently  appointed,  but  if according  to the cadre strength which is to be fixed  every three  years  under  the  Cadre  Rules  and  Cadre  Strength Fixation  Regulations, the recruitment will be made  not  in respect  of the cadre strength fixed as on the date  of  the constitution of the Service but 443 in respect of the cadre strength fixed at the time when  due to  unforeseen circumstances (such as injunctions and  court proceedings etc.) selections take place several years later. The  object of the initial recruitment to the Indian  Forest Service from amongst those persons in the Service who on the date  of the constitution of the Service are members of  the State  Forest  Service  is to give  advantage  of  a  higher service  to the members of the State Forest Service of  each State not only in respect of status, but in respect of  pay, pension,  retirement age, death-cum-retirement  benefit  and other service benefits which are not available to them under the  conditions  of service applicable to the  State  Forest Service.  It this were not so, then an unsuccessful aspirant can  hold up a selection by ventilating his grievances in  a Court  and  obtaining  a  stay  of  the  implementation   of selections  made and thereby deprive others for no fault  of theirs,  if those benefits which they could  have  otherwise obtained.  If a person who is eligible for selection is dead or  retire, his widow in the former case, and in the  latter case  the  retired person who would have  been  entitled  to those  benefits, would be deprived of those  benefits.   The interpretation  which the petitioner invites us to place  on the  scheme  of the rules and regulations  constituting  the Service  and the recruitments to be made thereto will  cause not only injustice and hardship, but will have the effect of making the whole purpose of initial recruitment otiose.   In our view, rule 4(1) of the Recruitment Rules can not be read without rule 3(1) but must be read together and the  persons who are eligible for recruitment are those who, on the  date of the constitution of the Service, are members of the State Forest  Service  and  who  conform  to  the  conditions   of eligibility set out in regulation 4. Sub-rule (2) of rule  4 of  the Recruitment Rules further makes it clear that  after the  recruitment under sub-rule (1), subsequent  recruitment to  the Service, has to follow a different method  which  is prescribed in clauses (a), (aa) & (b) of that sub-rule.   If the   interpretation  urged  by  the  petitioner’s   learned Advocate is to be accepted, then the initial recruitment not having  taken  place till after the  Kraipak’s  case(1)  was decided any subsequent recruitment to the Service under sub- rule  (2) of rule 4 cannot take place.  Such cannot, in  our view,  be the purpose of the rules and regulations, nor  was it so intended. After Kraipak’s case(2) in order to meet any possible  contention as that urged by the  learned  Advocate for the petitioner, the Central Government appears to  have,

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by  way of abundant caution, added sub-rule (3A) to  rule  4 the  effect  of  which  was to  empower  it  to  make  fresh recruitment  under that sub-rule not with standing  anything contained in sub-rule (2) to fill up such appointments which may  have  been declared invalid by any judgment or  by  any Court  and to give effect to the appointments so  filled  up from  the  same date on which the  appointments  which  were declared  invalid  as, aforesaid had been given  effect  to. That  the Central Government had power to make such  a  rule under s. 3 of the Act has not been challenged and is, in our opinion   undoubted.   In  any  view  of  the  matter,   the contention  that the initial recruitment must be  made  only from  amongst those members who are in State Forest  Service on  the date when the selection is actually made and not  on the date of the initial constitution, is untenable and  must be rejected. 444 It was next contended that even if the selections are to  be made  from amongst the persons who are members of the  State Forest  Service as on the date of the  initial  recruitment, the  confidentials  of  those  persons  which  have  to   be considered  for adjudging their suitability for  appointment should  be those which have been written upto the time  when the  selections  were in fact made.  This argument,  in  our view, has no substance, because a moment’s reflection  would show  that if persons who are to be considered  for  initial recruitment  are  those who belonged to the Service  on  the date  of the initial recruitment, then the confidentials  to be considered are only those pertaining to a period prior to that  date.  If this were not so, and the contention of  the petitioner is accepted, then there would be a discrimination because  while  the suitability of those in service  on  the date  of the initial recruitment has to be considered as  on the  date of the actual selection, the suitability of  those who are dead or retired cannot be considered by reference to the confidentials of a later period, for the obvious  reason that there can be no such record written up after the person has  retired or is dead.  We can find no  justification  for accepting  the  contention of the learned Advocate  for  the petitioner  that suitability of a person has to be  adjudged by reference to the confidentials written up even after  the initial constitution of the Service on October 1, 1966. It  may be observed that the first selection by the  Special Selection  Board was made between October 1966 and May  1967 throughout   India   and  by   several   notifications   the appointments  to  the  initial constitution  of  the  Indian Forest  Service were made with effect from October 1,  1966. In respect of Jammu and Kashmir also the Central  Government by notification dated July 29, 1967 made appointments on the initial  constitution  of  the Indian  Forest.   Service  on October 1, 1966.  In respect of these appointments,  service records considered by the Selection Board were upto 1966 for recruitment at the initial constitution of the Service.   It appears that the first Selection Board for Jammu and Kashmir officers  had  before  it adverse  reports  which  were  not communicated to the concerned officers and consequently  the Central Government directed the State Governments throughout the  whole of India to communicate such adverse  entries  to the   officers  concerned.   The  Special  Selection   Board thereafter  reconsidered the cases of those  officers  whose adverse  reports had not been made available to them  giving them  an opportunity to make representations  against  those adverse reports, and included some of them in the list. As  we have stated already, in Kraipak’s case(1) this  Court had  struck  down  the appointments  to  the  Indian  Forest

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Service, after which the selections had to be made afresh by another  Selection  Board  which did  not  suffer  from  the earlier  defect.  In our view, therefore, the  selection  of persons to be appointed to the Service as on the date of the initial  constitution of the Service would be  from  amongst those  who  were then members of the  State  Forest  Service notwithstanding  the  fact  that  due  to  litigation   that selection was long delayed.  We have also seen that sub-rule (3A)  of  rule  4 of the Recruitment  Rules  was  added  and consequently if the new selections have to be made from  out of  the persons who are members of the State Forest  Service on (1)  [1970] 1 S.C.R. 457. 445 October  1,  1966 any disciplinary  proceedings  or  adverse confidential  remarks in respect of the years subsequent  to that  date cannot be taken into account, in adjudging  their suitability for the initial recruitment ,to the Service  but could  be taken into account in case they were appointed  to the  Service, for initiating disciplinary action  under  the All-India Disciplinary Rules applicable to that Service.  If any disciplinary proceedings were initiated after October 1, 1966  in respect of years subsequent to that date under  the State  Disciplinary Rules, they could not be  considered  by the  Special  Selection  Board for appointment  of  a  State Officer  to  the  Indian  Forest  Service  at  its   initial constitution with effect- from October 1, 1966.  We do  not, therefore,  think that there is any merit in the  contention that the consideration of the Service record of the officers upto 1966 only is violative of Art. 14 of the  Constitution. Any  other  course, as we have pointed out,  would  lead  to discrimination, unfairness and injustice. Lastly it is contended that the adjudgment of suitability on the  basis of the confidential entries and other records  is arbitrary, and consequently regulation 5 is invalid.  It may be  necessary to, point out that the initial recruitment  to the  Indian Forest Service was to be made from  amongst  the gazetted  officers belonging to the State Forest Service  of each  State,  the  number of such selections  being  not  in excess  of  the number of posts available in the  cadre  for each  State.  It is true that the adjudgment of  suitability of  such  officers  eligible for selection has  to  be  made according  to  some norms.  In order to  achieve  this  end, various  methods can be adopted.  There can be a  method  of selection    by   competitive   examination,   another    by examination-cum-viva-voce,  yet a third by viva-voce  alone, or the fourth by the examination of official record or  with a  viva-voce and the fifth by purely on the scrutiny of  the official record.  It is not for this Court to lay down which of  the methods has to be adopted for adjudging  suitability as long as the norms which have been adopted are  co-related and  relevant  to the adjudgment of the suitability  of  the officers  to be recruited to the Indian Forest Service.   It cannot  be  said  that some other method  should  have  been adopted  and the method adopted by the rules or  regulations for  selection  is  improper.  The method  of  selection  by competitive examination in so far as the initial recruitment is concerned has not been adopted, because by contrast  sub- rule  (2)  of rule 4, as can be noticed,  has  adopted  this method  only for the subsequent recruitment to  the  Service after the initial recruitment as provided in sub-rule (1) of rule  4  has  been made.  For the  initial  recruitment  the eligibility of a person to be considered for appointment  to the  Service has already been laid down in regulation  4  of the  Initial Recruitment Regulations and those  officers  of

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the  State  Forest  Service who satisfy  the  conditions  of eligibility can be considered for appointment to the  Indian Forest  Service  and the authorities which have  to  adjudge them suitable are the Special Selection Board and the  Union Public  Service Commission.  It is the duty of  the  Special Selection  Board  to prepare a list from amongst  *he  State Forest  Officers  and such a list can only  be  prepared  in order of seniority if the respective records of each of such officers  is considered and the comparative merit  assessed. The past performance of an officer 446 being  one of the criteria for making select-ion,  the  only way   to  adjudge  their  suitability  is  by   perusal   of confidential records.  It is true that confidential  records do not sometimes give a true picture due to ,the vagaries of the  recording officer.  The human fallibility and  want  of objectivity in the superior officer are factors which cannot be eliminated altogether.  For that matter one can ask  what method is perfect.  For this reason, certain safeguards have been  provided  in  order  to  make  them  as  objective  as possible.  If there is an adverse entry against any  officer that officer is given an opportunity to explain.  After  the explanation  is given, the superior officer as well  as  the Government  ultimately  decide whether that  remark  by  the recording  officer  was justified or not, and if it  is  not justified  the  Government can always  order  its  deletion. Sometimes  vagary may enter into the service  confidentials, and  it cannot be postulated that all superior officers  who have  been  empowered to finalise such entries  will  suffer from any of those traits because the actions of the  officer concerned  may  not have any immediate impact upon  him  and consequently his sense of objectivity will not be dimmed  or strained.   In  our  view, often  enough,  ,the  entries  in confidential  records  are  themselves an  insignia  of  the capacity  and capability of the maker as a superior  officer as  well  as  a commentary on the  quality  of  the  officer against  whom that confidential remark is being noted.   But those  who are charged with the duty to oversee  that  these entries  are  fair,  just  and  objective  quite  often   do intervene and rectify any entry on representation being made against  it at the proper time.  In these circumstances,  we do  not  think that the method of selection  based  on  past performance as disclosed by the confidential records is  not the  proper method for adjudging suitability of the  officer concerned.   See  in this connection the  decision  of  this Court  in R.L. Butail v. Union of India & Ors.(1) where  the rules concerning confidentials were considered. It  is  also  contended that regulation  5  of  the  Initial Recruitment   Regulations   regarding   adjudging   of   the suitability is not valid. The  word ’suitability’ itself  is correlated  with the object of recruitment, namely,  that  a person  has to be considered suitable for appointment  to  a superior service which itself furnishes the norm that he  is considered  suitable  having regard to his  service  in  the State Forest Service.  This in turn refers only to the  past records  of  the service in the State as an officer  of  the State  Forest Service.  The Special Selection  Board  ,under regulation  5(2)(a)  has to adjudge the  suitability  of  an officer from his service records which form the basis of the preparation  of  the  list and the list  so  prepared  after consideration  of  the  records would  reflect  the  overall assessment of the officers of the State Forest Service. The learned Attorney General has referred us to the decision of  this  Court in S. P. Jinadathappa v. R. P.   Sharma  and Others.(2)  At  pp.  26-27 of  that  decision  the  question

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whether  the  words  "suitable tenant"  were  vague  in  the context  in  which they were used, was  considered.  it  was there  held  that though the expression "suitable"  was  not defined, (1) [1971] 2 S.C.R. 55. 447 it  does  not  require  a definition,  because  any  man  of experience  would  know  who is  a  suitable  tenant.   This decision  has been accordingly left to the Rent  Controller. On  the  other  hand,  the  decision  referred  to  by   the petitioner’s  learned  Advocate  in  Harakchand   Ratanchand Benthia  and  Ors. etc.v. Union of India and  ors.(1)has  no application,  in  that the expression  "suitability  of  the applicant"  for the grant of a licence does not provide  any objective  standard or norm.  Each case has to be viewed  in the  context in which the words "suitability" or  "suitable" is used, the object of the enactment and the purpose  sought to be achieved.  In any case the adjudging of suitability as has  been suggested by the method of viva-voce, as  held  by this Court in Janki Prasad Parimoo & Ors etc. etc. v.  State of  Jammu  &  Kashmir  &  Ors.(2)  is  unsatisfactory.   The criteria  laid  down in the rules and  regulations  on  this aspect do, in our view, provide sufficient indication as  to the norms applicable for adjudging suitability, namely,  the past  performance of the officer as can be gleaned from  his confidential  and other records if they exist in respect  of that officer. In so far as the comparative merits of the officers adjudged suitable are concerned, as we have said earlier, this  Court will  not  discharge  the functions vested  in  the  Special Selection Board or in the Union.  Public Service  Commission by  going  into  the question whether  in  fact  the  person selected  is  not  suitable  or a  person  not  selected  is suitable,  for the post in the Indian Forest  Service.   Our attention has been drawn to several adverse remarks given to the  petitioner regarding which, it is said, the  petitioner could not make any representation.  It is submitted that  as these  remarks  were completely subjective, and  since  they have  been taken into consideration the petitioner has  been adversely  affected.  These remarks pertain to the  pre-1966 conduct  of  persons  who  have  been  selected.   In   this connection  our attention was drawn to the  observations  of the  State Forest Service Commission made in its  report  in respect  of certain persons in the State Forest Service  who have been selected to the Indian Forest Service.  There  is, however, nothing to show that these remarks were made  after giving due notice to the persons concerned At any rate, they were  not  in existence at the time  when  the  confidential reports  were  written and if the confidential  reports  for 1966 do not reflect any adverse remarks, as a consequence of any  enquiry  regarding the pre-1966 conduct, it  cannot  be said  that the authorities empowered to adjudge  suitability as  on October 1, 1966 had acted illegally or unjustly.   It has.  been stated, and we have no reason to doubt  it,  that whether  there  were such enquiries the selection  was  made provisionally subject to, the result of that enquiry.  There is also, in our view, justification for (1) [1970] S.C.R. 479, 501. (2) [1973] 3 S.C.R. 236. 448                    . the submission that giving a few instances here and there of adverse  remarks  does not give a complete  picture  of  the entire  service record of the officer concerned.  There  has been no allegation of mala-fide against the Selection  Board or  the Union Public Service Commission nor have  we  before

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us,  as they had before them, a complete record of  all  the officers  to make a comparative assessment of the  worth  of the  officers  of the State Forest Service, nor  is  it  our function  to  do so.  We can find no justification  for  the application of Arts. 14 & 16 to the facts and  circumstances of this case.  In the circumstances we do not think that any of  the remarks alleged in the affidavit of  the  petitioner can be said to affect the selections made. In  the view we have taken, this petition has no merits  and is accordingly dismissed, but in the circumstances,  without costs. P.B.R.                                              Petition dismissed. 449