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PETITIONER: RAJ KUMAR & ORS. ETC.

       Vs.

RESPONDENT: SHAKTI RAJ & ORS. ETC.

DATE OF JUDGMENT:       11/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR, AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             With            CIVIL APPEAL NOS. 924,925-984 OF 1997    (Arising out of SLP (C) Nos. 4694, 4702-4791 of 1996)                             AND       SPECIAL LEAVE PETITION (C) 8221-8282 & 10357/96                          O R D E R IN SLP (C) NOs. 8221-82 AND 10357/96      Mr. R.C.  Verma, learned  counsel seeks  permission  to withdraw these  petitions. they are accordingly dismissed as withdrawn. IN CA NOS. 923-984 /97 (@ SLP (C) NOS. 4151, 4694 AND 4702 -4761/96 :      Application for intervention is allowed.      Leave granted.  We have  heard learned  counsel on both sides.      These appeals  by special leave arise from the Division Bench judgment  of the  Punjab & Haryana High Court, Made on December 20, 1995 in CWP No. 6816 of 1995 and batch.      The admitted facts are that the posts of Canal patwaris in the  Irrigation Department  of the  State of  Haryana are class II  posts in  the State  Service. Earlier,  they  were called Irrigation  Booking Clerks  and came to be designated as Patwaris  in 1981. Prior to the formation of the State of Haryana on  November  1,  1966,  the  recruitment  of  Canal Patwaris was  governed by the Punjab Public Works Department (Irrigation Branch) Patwaris State Service, Class III Rules, 1955 (for  Short, ’1955  Rules’)  issued  under  proviso  to Articles  309   of  the   Constitution.  Rule  2(i)  defines "Apprentice Patwari"  to mean a person who after passing the patwar examination  is posted as a reserve against 7% of the limiting scale  of Patwaris  sanctioned for a circle. Rule 4 prescribes couditions for appointment to the service. Rule 5 postulates that  no person  shall be  accepted as  candidate Patwari who is less than 18 years or more than 22 years (now 25 years)  of age  at the  time of acceptance (proviso being not relevent,  omitted). Rule  6   envisages that "No person shall be  appointed to  the Service unless he has passed the Matriculation or School Leaving Certificate Examination of a recognised university  or  its  equivalent,  but  preference shall   be    given   to    candidates   possessing   higher

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qualifications" (Proviso  is not  relevant, hence  omitted). Rule *  postulates that  "All appointment  to posts  in  the service shall  be made  by the divisional Officers". rule 10 (a) envisages  that "Appointments  to the  Service shall  be made by direct appointment", Rule 10(b) provides that:      "(b) The  Divisional Officer  shall      keep   a   register   of   accepted      candidates for  training  purposes.      Not more  than twice  the number of      candidates  required  to  fill  the      vacancies  for   the  ensuing  year      shall be  brought on to the list of      accepted candidates and trained and      sent up  for  the  examination.  No      candidate  shall  be  accepted  for      anrolment   in    the    Divisional      Candidate’s List unless he complies      with the  conditions  mentioned  in      Rules 4,  5, 6,  7, and  9 of these      Rules."      Rule 12 provides thus:      "12 (a)  All candidates,  who  pass      the examination,  shall be  brought      on to the circle register of passed      candidates  in   serial  order   of      passing  the  examination.  When  a      permanent  Vacancy  occurs  in  any      Division of  the Circle.  The order      of appointment shall be posted from      the circle register irrespective of      whether he is serving in a leave or      temporary   vacancy    in   another      Division of  the Circle.  The order      of appointment  shall be  issued by      the Divisional Officer. The name of      a passed  candidate who reaches the      age of 25 years without having been      employed  temporarily   as  patwari      shall  be   struck  off  the  list.      Provided  that   this  maximum  age      limit shall  be relaxed in the case      of memebers  of  Scheduled  Castes,      Scheduled Tribes and other Backward      Classes  to   the  extent  of  such      period  as  may  be  prescribed  by      Government in this behalf from time      to time,  in respect  of  entry  of      such candidates  into service under      Government and  the names  of  such      candidates shall be retained on the      list upto  that age, it is the duty      of the  Superintending Engineer  to      examine  the  circles  register  of      passed candidates  early in January      each year,  in order  to  see  that      sufficient candidates  are borne on      the register  to fill all vacancies      that are likely to occur during the      next tow  years, and  to ensure, as      far   as    possible,   that    all      candidates shall  ordinarily obtain      permanent  employment  before  they      reach the  maximum  age  prescribed      under this  Rule, A selection board      consisting of  all  the  Divisional

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    Officers of  the Circles  shall sit      before  June   1st  every  year  to      select the  candidates for training      for the  years in  accordance  with      rule 11.      (b) No  person may be brought on to      the  circle   register  of   passed      candidates unless he has passed the      patwar examination,"      Rule 14  provides that "the seniority of members of the Service  shall  be  determined  in  accordance  with  Circle register of passed candidates in serial order of passing the patwar  examination.   If  the   position  secured   in  the examination is the same, in the case of two or more persons, their seniority shall be determined by age, a younger member being junior  to an  older member.  Rule  15  adumbrates  as under:      "(a) Member of the service shall be      entitled to  the pay  scales as are      given in  Appendix A  provided that      the scales of pay may be altered by      the   government    as   and   when      necessary.  They   shall  also   be      entitled to  bonus,  they  earn  in      each  crop,   in  accordance   with      Chapter 12 of the Revenue Manual.      (b)   Apprentice   Patwaris   shall      receive Rs.32/-per mensum each when      not employed  in leave  or  regular      vacancies."      It is  to be  noted that  pursuant to a query raised by the Chief  Engineer (Admn.),  Irrigation Works, Punjab, by a letter dated  February 5,  1962, the  then Punjab Government had clarified  that the  recruitment to  the posts  of Canal Patwaris is  to be  made  through  the  Subordinate  Service Selection Board (for Short, SSSB’.)      After formation  of State  of Haryana  on  January  28, 1970, the  Governor, exercising  the power  under proviso to Article 309  of the  Constitution and in modification of all other  Rules  in  this  behalf,  constituted  the  SSSB  for recruitment and  appointment to Class III and IV posts. Para 6 of  the notification  issued in this behalf postulates the functions of  the Board.  Clause (a) thereof adumbrates that for appointments  to Class  -  III  posts  under  the  State Government, except  appointment of  officers and employee of the Punjab  and Haryana  High Court  Provided for in Article 229 of  the  Constitution  of  India,  the  Board  shall  be consulted. Clause  (d)  provides  that  the  Board  is  also required to  be  consulted  in  the  matter  of  methods  of recruitment and  the principles  to be  followed  in  making appointments to  Class III  and class  IV posts,  under  the State Government.  The proviso  thereto gives  power to  the State Government thus:      "Provided  that  it  shall  not  be      necessary to  consult the  Board in      respect of  such posts  and matters      as the  State  Government  may,  by      notification, specify."      It  would,   thus,  be  seen  that  in  the  matter  of recruitment to  Class III and Class IV posts 1970 Rules have modified the  1955 Rules by providing for recruitment by the Canal Divisional  Officer adumbrated  in 1955  Rules. Unless there is  exercise of  the power  under proviso  to  Rule  6 excluding, by  a notification  issued in  that  behalf,  the recruitment of  consulting the  Board, the recruitment to 7%

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posts of  the Canal Patwaris in the Irrigation Department is required to  be made  through SSSB. A bird’s eye examination of the  1955 rules  and 1970  notification,  both  statutory Rules, reveals  that the  former, to fit into the frame work of 1970 notification need suitable amendments in particular, in the  matter of  the source  and  method  of  recruitment, seniority and all related issues. However, it is the duty of the Court  to give harmonious interpretation to the Rules so as to  make them co-exist and work as a continuous whole. It is unfortunate to notice from the record that the Government was adopting  its own  procedure convenient to them, namely, in many  a occasion,  it appointed  Patwaris on circle basis under the  1955  Rules  and  in  some  instances,  like  the selection made  in the  year 1974,  the selection came to be made through  SSSB. In  other words,  the selection  and the appointments to the posts of Canal Patwaris under 1955 Rules is not  in accordance  with the  law. However,  we need  not declare all  the selections  and appointments as illegal. It is not  in dispute  that for  the impugned selection made in the year 1992, The examinations came to be conducted between April 25  and April  28, 1992  under 1955  Rules. it is also undisputed that  common examinations  conducted on different dates in four centres was on uniform pattern of examinations as Statewide one. The results thereof were declared in 1993. Subsequent thereto,  the Government  have excluded  from the purview of  the Board  by four  notifications, a total of 47 posts  of   Patwaris.  Subsequently,   the  Government   has constituted a  selection committee  for selection  of  Canal Patwaris, consisting  of  Chief  Engineering,  YWS  Unit  as Chairman, Chief Engineer BWS Unit as Member, General Manager (0)  Irrigation   Department  as  Member  Secretary,  Deputy Collector, BWS/C  Kaithal as  Member and  Executive Engineer Canal  Hissar   as  Co-oted  member.  They  interviewed  the candidates and came to select the appellants in these cases. The unofficial  respondents, who  were unsuccessful  in  the interview, filed  the writ  petitions in  the High Court has held that  the constitution  of Selection  Committed and the selection of  the appellants is ultra vires the power of the Government. The reason in support thereof is that since 1955 Rules  occupy   the  field   for  selection,  administrative instruction cannot  be issued  to constitute  Selection  and appointment  of   all  the  appellants  as  Canal  Patwaris. Instead, it  directed to  make appointment  in terms of 1955 Rules, those  who appeared  in  the  examinations  conducted between April  25 and April 28, 1992 and remained successful and fulfilled  other qualifications  in  that  behalf.  thus these appeals by special leave.      Shri K.  Madhava Reddy, learned senior counsel and Shri Ranjit Kumar,  learned counsel appearing for the appellants, contend  that   1955  Rules  have  to  give  place  to  1970 notification which  envisages  selection  by  the  SSSB.  By exercise of  power under  proviso to  para  6  of  the  1970 notification ,  the Government  excluded the  posts from the purview of  the SSSB.  Consequently, the  Government came to appoint  the   Selection  Committee  for  selection  of  the candidates. The  Committee has prescribed various guidelines for selection  of the  candidates. Even  assuming that  1955 Rules would  occupy the  field, in view of the fact that the provisions   of    the   Employment   Exchange   (Compulsory Notification of  Vacancies) Act,  1959 having been in force, Rule 12  of the  1955 Rules  had become  inoperative.  As  a consequence, the  maintenance of  circle -  wise register by the  authorities   under  1955  Rules  became  illegal,  the Committee had  duly interviewed the successful candidates in the written  examination and   selected  them on  merit. The

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unofficial respondents having appeared before the Selection, it would  not be  open to them to contend that the selection of the  appellants is  invalid in  law. It is also contended that the  appellants have  been working  since the  dates of their appointment  and, therefore,  they cannot be denied of their appointment  and, therefore,  they cannot be denied of their appointment duly mad by the Government.      Shri Jitender  Sharma, learned senior counsel appearing for the  unofficial respondents  and Shri Qamarudin, Learned counsel appearing  for some of them, contend that the method of  selection   adopted  by   the   Committed   is   without jurisdiction. Having  excluded the posts from the purview of 1970 Rules,  the operation of 1955 Rules came into vogue. As consequence, the only power the Government have is to fallow the method  prescribed  in  1955  Rules  and  Rule  12  made thereunder. The  Government, therefore,  was devoid of power to constitute  a Committee  for selection of the candidates. Since the  statutory Rules  are in  operation the  executive instructions cannot  be issued  to  supplant  the  statutory Rules. Even  on merits  also, they pointed out that the High Court has  gone into the select list, method of awarding the marks  which  would  show  that  even  their  own  procedure prescribed for  awarding the  mark itemwise  was not adhered to;  instead  lumpsum  marks  come  to  be  awarded  to  the candidates which  method is  arbitrary.  It  is  accordingly contended that  unofficial respondents  having secured  high marks than  the  appellants  cannot  be  deprived  of  their legitimate expectation  to seek  appointment  in  accordance with the Rules.      Having  regard   to  the  respective  contentions,  the question is:  whether the  view taken  by the  High Court in quashing the  selection and appointment of the appellants is correct in   law?  It is  rather unfortunate  that the State having filed  the appeals has chosen to withdraw the same at the last  minute and  sought permission therefor. We have no option but to permit them to withdraw as they do not seek to contest the  matter on merits. Rather we have availed of the assistance rendered  by the  learned counsel on either side. From the  facts, it  is seen  that  1955  Rules  operate  as regards  the   qualifications  and   other   conditions   of eligibility prescribed thereunder. They are statutory rules. Equally, 1970  notification of  the extant  1955  Rules.  In other wards,  the source of manner and method of recruitment for selection  of Canal  Patwaris  stood  modified  by  1970 notification. As  a consequence,  the direct  recruitment of Canal  Patwaris   shall   be   made   only   through   SSSB. Unfortunately, the  Government chose to select candidates at their convenience,  sometimes under  1955 Rules ad sometimes under 1970 notification, according to their convenience. But in this  case, they  have dispensed  with both  and  instead constituted a  Committee for  selection  of  the  candidates having excluded  from the purview of 1970 notification, that too after  written examinations  were conducted  under  1955 Rules. the  question, therefore,  is: whether  the method of selection adopted  by the  Selection Committee is correct in law ? It is seen that the procedures adopted both under 1955 Rules and  1970 notification  are not  correct.  After  1970 notification came  to be issued, to the extent of the method and manner  of selection of Canal Patwaris, 1955 Rules stood modified and  the only  competent authority  to  select  the candidates is  SSSB. The  Board is required to advertise the Vacancies and  select the  candidates but that was not dome. On the other hand, after the examinations were conducted and results declared  under 1955 Rules, the posts were taken out from the  purview of  the Board.  The  board  did  not  even

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conduct the  examinations. The  power of  the governor under proviso to  Article 309 is constituent power and legislative in character  subject to  an Act of Legislation. He need not have prior  consultation  with  the  Board  for  laying  the principle of recruitment or withdrawal of the posts from the purview of  the Board.  The  committee  constituted  by  the Government had not conducted written examinations. It called for interview  all those  who were  declared  successful  in Patwari examination.  The selection  Committee had evolved a criteria of  awarding marks  to select  the candidates.  For academic qualifications, they allocated total marks of 25 to be rationalised  to come  within the  said  quota;  for  the written examination,  maximum of  25; 5 marks were allocated for sports  qualifications, for  experience, 10  marks;  for extra-curricular activities,  5 marks  and for  viva voce 30 marks totalling to 100 marks. But, unfortunately, as pointed out by  the High  Court in  the judgment,  they have given a decent burial  and go by to their own method of awarding the marks  to  the  candidates  and  instead  awarded  marks  in lumpsum. the High Court has pointed out thus:      "During the  course   of arguments,      on our  direction  the  respondent-      State produced  the record prepared      by the  Selection  Committee  after      interviewing  the   candidates.  No      other record  has been  produced in      spite of  out  specific  direction.      From a  bare perusal  of the record      produced it  is  evident  that  the      Selection Committee has awarded the      marks to  every candidate  in lump.      No record has been produced to show      that the  candidates  were  awarded      marks on itemwise basis.      The prescribed criteria is thus:      "Mark ’C,I’      Matric 3rd Divn.                    = 20      Matric 2nd, Prep, or +1             = 21      Matric Ist+SSLC+2                   = 22      +2 Ist -BA Part I & II B.A.         = 23      B.A.                                = 24      B.A. Ist or M.A. or B.Ed. etc.      = 25   25      PATWARI EXAMINATION      230-240                              = 20      241-260                              = 21      261-280                              = 22      281-290                              = 23      291-300                              = 24      301- +                               = 525   25      SPORTS                               =  5      EXPERIENCE:                          =  10      Extra-Curricular                     = 5    20      Viva Voce                            = 30   30                             ---------------------------      Total Marks                          = 100  100                             ---------------------------      Having  prescribed   maximum  marks   for  each   item, necessarily they are required to apply the rationale to each of  the   candidates  in   accordance  with   the   academic qualification etc.  acquired by  the candidates.  1955 Rules give preference  in the  matter of  selection to  the person possessing    higher     academic    qualifications.    But, unfortunately, the  Government did  not adopt  and apply the said rule.  Equally, noting  has been  indicated as  to  the marks awarded  on each  item. they  had cut  off  the  marks

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actually secured in the written examination and rationalised them to  come within  255 quota.  Though prescription of the marks for  those items  is perfectly  valid and  legal,  but cutting off  the marks actually secured by the candidates in the common written examination is arbitrary and unwarranted. It is  not the  case that  examinations  were  conducted  on circle-wise basis according to the paper set by each circle. On the  other hand, the admitted facts are that examinations were conducted  between April  25 And April 28, 1992 at four centres on different dates in respect of all the candidates. The examination  papers were of common standard and all were required  to   write  the   same  examination.  Under  those circumstances, the appropriate procedure should have been to apply  the   marks  as   secured  by  them  in  the  written examination plus  the  marks  awardable  to  the  respective candidates either  on the  academic qualifications or on the sports qualification  or experience  qualification or extra- curricular qualification  or the  marks actually  secured in the via voce and to pool them as total marks secured by each candidates and  the merit  list should have been prepared in the light  of the Rules. On the basis of the aggregate marks secured by candidates, select list should have been prepared and  recommendation   made  to  enable  them  to  appear  in accordance with  the prescribed Rules: including the rule of reservation applicable  to various  categories mentioned  in the Rules  and allotment  made to  the respective circles as envisaged under  1955 Rules  and all  other rules  issued in that behalf.  Unfortunately, this  procedure  has  not  been adopted. On  the other  hand, the  admitted position is that after the candidates were given training for three months as prescribed under the 1955 Rules and written examination were conducted, they  were again  called for  from the respective employment   exchange    and   interviews   were   conducted thereafter.      A Bench  of  three  Judges  of  this  court  in  Excise Superintendent vs.  Visweshwara Rao [(1996) 6 SCALE 6761 had thus:      "It is common knowledge that many a      candidates are  unable to  have the      names  sponsored,   thought   their      names are  either registered or are      waiting to  be  registered  in  the      employment   exchange,   with   the      result that the choice of selection      is restricted  to only  such of the      candidates whose  names come  to be      sponsored   by    the    employment      exchange.        Under        these      circumstances,  many   a  deserving      candidates  are   deprived  of  the      right   to    be   considered   for      appointment to  a  post  under  the      State. Better  view appears  to  be      that "It  should be  mandatory  for      the                  requisitioning      authority/establishment to intimate      the   employment    exchange,   and      employment exchange  should sponsor      the names  of the candidates to the      requisitioning   departments    for      selection  strictly   according  to      seniority and  reservation, as  per      requisition.   In   addition,   the      appropriate      Department      or      undertaking    or    establishment,

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    should  call   for  the   names  by      publication   in   the   newspapers      having wider  circulation and  also      display  on   their  office  notice      boards  or   announce   on   radio,      television  and   employment  news-      bulletins; and  then  consider  the      cases of  all  the  candidates  who      have applied.  It that procedure is      adopted,   fair   play   would   be      subserved.    The    equality    of      opportunity  in   the   matter   of      employment would  be  available  to      all eligible candidates."      In  view   of  this   legal  position,   the  necessary requirement should  be that they should necessarily not only notify but  also call the names from employment exchange; in addition they  should  give  wide  publicity  in  the  media inviting application  from qualified  persons for selection. Instead, they  have adopted  the procedure under 1955 Rules. The did  not call the names from the employment exchange and conducted the  examinations for them. After the selection of the candidates,  names of  selected candidates  were  called from the  employment  exchange,  Obviously,  the  successful candidates  in   the  written  examinations  were  asked  to approach the  employment exchange  of the  concerned  circle and, accordingly, names came to be sponsored . The procedure adopted is clearly illegal denying equal opportunity to many candidate  waiting   in  the   register  of   the  concerned employment exchange.  Therefore,  the  Government  hereafter should strictly  follow the  procedure by  not only  calling their names  from  the  employment  exchange,  but  also  by publishing in  the local and national news papers and giving wide publicity  in the  media as well as getting the written examination and  the interview  conducted by the SSSB; marks should be awarded strictly according to the procedure.      Yet another circumstance is that the Government had not taken out  the post from the purview of the Board, but after the examinations  were conducted  under the  1955  Rule  and after the  results were  announced, it  exercised the  power under the  proviso to  para 6  of 1970  notification and the post were taken out from the purview thereof. thereafter the Selection Committee  was constituted  for selection  of  the condidates. The  entire procedure is also obviously illegal. It is  true, as  contended by  Shri Madhava Reddy, that this Court in Madan Lal vs. State  of & K [(1995) 3 SCC  486] and other decisions  referred therein  had held that a candidate having taken  a chance  to appear in an interview and having remained  unsuccessful,  cannot  turn  round  and  challenge either the constitution of the selection Board or the method of Selection  as being  illegal; he  is estopped to question the correctness  of the  selection. But  in  his  case,  the Government  have   committed  glaring  illegalities  in  the procedure to  get the  candidates for examination under 1955 Rules, So  also in  the method  of selection and exercise of the power  in taking  out from  the purview  of the and also conduct of  the selection  in  accordance  with  the  Rules. Therefore,  the   principle  of   estoppel  by   conduct  or acquiescence has  no application  to the facts in this case, thus, we  consider that the procedure offered under the 1955 Rules adopted  by the Government or the Committee as well as the action take by the Government are not correct in law.      The  question  then  is:  what  would  be  the  correct procedure under the law? Unfortunately, no outside candidate has questioned  the  selection  of  the  candidates  in  the

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interview, In  the light of what we have stated in the facts and circumstances,  the appropriate  and better course would be that SSSB Should call the names of all the candidates who were  successful   in  the  written  examinations  conducted between  April  25  and  April  28,  1992,  inter  view  the candidates and  select them in accordance with law laid down above. Since  the appellants  came to be appointed by virtue of the  selection made,  they would continue in service till the  proper   selection  is  made  and  the  candidates  are appointed in accordance with the Rules.      The Government  is directed  to send within three weeks from the  date of the receipt of the order, all the names of the  candidates   who  became   successful  in  the  Patwari examination conducted between April 25 and April 28, 1992 to the SSSB  as per the results declared. The Board is directed to call, for interview, all the candidates within four weeks from the  date  of  the  receipt  of  the  record  from  the Government. The  Board is  further directed to interview all those candidates  according t  the procedure, consider their cases in  accordance with  the above  law laid down and then select the  candidates as  per merit  list duly applying the rule of  reservation.  The  Board  would  recommend  to  the appointing authority and appointments would be made strictly in accordance  with the  merit list prepared after following the rule  of reservation. If any of the candidates would, at the relevant time become barred by age, necessary relaxation of  age   would  be  given  to  them  and  appointment  made accordingly.      The  appeals  are  accordingly  allowed  and  the  writ petitions filed  in the  High Court  stand disposed  of  No. Costs.