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PETITIONER: STATE OF JAMMU & KASHMIR

       Vs.

RESPONDENT: RAJ DULARI RAZDAN & ORS.

DATE OF JUDGMENT15/12/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. KRISHNAIYER, V.R. KAILASAM, P.S. DESAI, D.A. KOSHAL, A.D.

CITATION:  1979 AIR  586            1979 SCR  (2) 870  1979 SCC  (1) 461

ACT:      Jammu  and  Kashmir  Constitution-Section  133(2)  (b), interpretation  -Whether   consulting  the   Public  Service Commission is mandatory.

HEADNOTE:      The appellant  State  Government’s  Order  No.  643-HTE dated July 25, 1969 promoting certain professors was quashed by the High Court of Jammu & Kashmir while allowing the Writ Petition No. 124/69 filed by the respondent.      Leaving out the merits for decision by another Bench of this Court. ^      HELD :  1. What clause (b) of sub-section (2) of s. 133 of the  Jammu &  Kashmir Constitution  requires is  that the Commission shall  be consulted:  (i) on the principles to be followed in  making appointments to civil services and posts and in  making promotions  and transfers from one service to another and  (ii) on  the suitability of candidates for such appointments,   promotions    or   transfers.    No    other interpretation is  really permissible  on the plain language of the  clause.  It  is  not  provided  by  s.  133  of  the Constitution that  all the  members of the Commission should have interviewed  all or  any of  the candidates, or that it was not  permissible  for  the  Commission  to  entrust  the selection to  a committee  consisting of  only  one  of  its members, so  long as  the Commission  reserved to itself the right to  approve or  disapprove the  committee’s report and actually discharged that constitutional responsibility. [872 F-H, 874 B-C]      2. The  question whether the requirement for consulting the Commission  is mandatory  or not  does not arise in this case. [873 A].      3. The  High Court erred in holding that the Commission was not  consulted in  the manner  required by s. 133 of the Jammu & Kashmir Constitution and in regard to the principles to be  followed in  making the  promotions to  the posts  of professors on the suitability of selected candidates for the promotions. [873 B, 874 D-E]

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    On the  facts which  have been brought on the record it is established  that (a)  the Commission  was  consulted  in regard to  the principles  to  be  followed  in  making  the promotions to  the posts  of professors  as laid down in the "Jammu &  Kashmir Professors  of Colleges (Selection) Rules, 1969", and [873 C-D].      (b) the  Commission was consulted on the suitability of the candidates  for promotion  as professors  and the second requirement of  clause (b)  of sub-section (2) of s. 133 was also complied  with, since  the selection of the respondents (to the Writ Petition) was made on the recommendation of the Public  Service  Commission  after  their  names  were  sent strictly in  order of  seniority as  per  direction  of  the Commission, after  they had been interviewed and examined by the Selection  Committee, formed and presided over by one of the members of the Commission as Chairman. [873 F-H, 874 A] 871

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 246 of 1973.      Appeal from  the Judgment  and Order dated 1-11-1971 of the Jammu and Kashmir High Court in W.P. No. 124/69.      S. V.  Gupte, Attorney  General, Altaf  Ahmed  for  the Appellant.      L. N.  Sinha, K.  P. Gupta,  D. B.  Tawkley and  Vineet Kumar for RR 1-21, 23, 25, 27 to 29 and 31-38.      G. L.  Sanghi, R. K. Mehta and Miss Uma Mehta for RR 55 and 72.      S. S. Khanduja for RR 53.      The Judgment of the Court was delivered by      SHINGHAL J.-This  appeal  by  certificate  is  directed against the  judgment of the High Court of Jammu and Kashmir dated November  1, 1971,  in writ  petition No. 124 of 1969. That  petition   was  filed   against  the   promotions   of respondents Nos.  1  to  46  and  others  as  Professors  in supersession of  the claims  of  the  writ  petitioners  who contended that  they were  senior  and  more  qualified  for promotion. The  High Court  allowed the  writ  petition  and quashed the  State Government’s Order No. 643-HTE dated July 25, 1969,  in regard to the appointments of respondents Nos. 3 to  46 and  directed that  it would  be open  to the State Government to  make  a  fresh  selection  of  Professors  in accordance with the law. A review petition was filed against the judgment  but was  dismissed on  September 14, 1972. The State Government  is aggrieved  and has  filed  the  present appeal.      When the  case was taken up for hearing on November 28, 1978. it  was brought  to our  notice  by  counsel  for  the respondents that it will not be possible for them to advance their  arguments   with  reference  to  article  16  of  the Constitution  of   India  as   the  various   sealed  covers containing the  date on  which the selections were made have not been  received from  the High  Court.  Learned  Attorney General  and   the  counsel  for  the  respondents  were  in agreement that  as the constitutional point which arises for consideration in  this case relates to the interpretation of section 133(2) (b) of the Constitution of Jammu and Kashmir, hereinafter referred  to as  the Constitution,  it  will  be enough to  consider, at this stage, whether that section has been correctly  interpreted and  whether the  Public Service Commission for  the State  of Jammu and Kashmir, hereinafter referred  to  as  the  Commission,  has  been  consulted  in

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accordance with  its requirement.  We have accordingly heard the arguments only on these two points, and will confine 872 ourselves to them, leaving the question of the applicability of article 16 of the Constitution of India on the merits for consideration by  the Bench  before which  the case  may  be taken up for hearing hereafter.      The controversy relates to the interpretation of clause (b) of  sub-section (2)  of section  133 of the Constitution which,  when  read  with  the  other  connected  provisions, provides as follows.-           "133 (2) The Commission shall be consulted-           (a) ...............           (b)  on the  principles to  be followed  in making                appointments to  civil services and posts and                in making  promotions and  transfers from one                service to  another and on the suitability of                candidates for  such appointments, promotions                or transfers;           (c)................      and it shall be the duty of the Commission to advise on      any matter  so referred  to them or on any other matter      which the Governor may refer to them:           Provided that  the Governor  may make  regulations      specifying the  matters in which either generally or in      any particular  class of  cases or  in  any  particular      circumstances,  it  shall  not  be  necessary  for  the      Commission to be consulted." Although it  has been  urged in the written arguments of the appellant that  section 133(2) (b) was "not at all attracted in the  matters of  making promotions  in the same service", and its true and correct interpretation would be that "it is applicable only to ’making promotions and transfers from one service to another’," learned Attorney General has, with his usual candour  and fairness, stated that he does not find it possible to support that contention. He has therefore argued that what  clause (b)  of sub-section  (2)  of  section  133 requires is  that the  Commission shall be consulted; (i) on the principles  to be  followed in  making  appointments  to civil services  and  posts  and  in  making  promotions  and transfers from  one service  to another,  and  (ii)  on  the suitability of  candidates for such appointments, promotions or transfers.  He has  urged that as this requirement of the Constitution was duly complied with, the High Court erred in taking a contrary view.      The interpretation  put by  learned Attorney General is quite correct  and we  have no hesitation in approving it as in our opinion no other interpretation is really permissible on the plain language of the clause. 873      The question whether the requirement for consulting the Commission is  mandatory or not does not arise in this case, because it  is not  disputed, and is in fact the case of the appellant State,  that the  Commission  was  consulted.  The question which remains for consideration is whether this was really so.      Learned counsel  for the  respondents was  not able  to refer us  to any  averment in  the writ  petition  that  the Commission  was  not  consulted  either  in  regard  to  the principles to  be  followed  in  making  the  promotions  in question, or  on the  suitability of selected candidates for the promotions.  We have,  all the  same, gone  through  the record, and  we find  that the  State  Government  at  first framed rules on November 15, 1968, for selections to be made to posts  of Professors in the colleges. By Notification No.

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SRO-161 dated  March 25,  1969, those rules were replaced by the  rules   made  by  the  Governor  specifically  for  the appointment of  Professors, which were called the "Jammu and Kashmir Professors  of Colleges (Selection) Rules, 1969." It has been  specifically stated on behalf of the State that it consulted  the   Commission  under   section  133   of   the Constitution, and  as the writ petitioners have not ventured to take  a plea  to the  contrary, we  have no hesitation in holding, on the facts which have been brought on the record, that  the   Commission  was   consulted  in  regard  to  the principles to  be followed  in making  the promotions to the posts of Professors.      We have  also examined  the record to ascertain whether the other  requirement of  clause (b)  of sub-section (2) of section 133 of the Constitution that the Commission shall be consulted  on   the  suitability   of  the   candidates  for promotions to  the posts  of Professors,  has been  complied with. The  State Government  has stated  in its reply to the writ petition  that for  every post  of Professor,  names of four Lecturers, strictly in order of seniority, were sent to the Commission  "at its direction" and they were interviewed and examined  by the  Selection Committee which was "formed" by the  Commission, and  a  member  of  the  Commission  was appointed its  Chairman. It has further been stated that the commission’s recommendation  for selection  was made  on the basis of  the marks obtained by the respondents (to the writ petition) at  the interviews and that the selection was also made "on  the basis  of the  recommendation  of  the  Public Service Commission"  and there  was "no  deviation from  the merit list  prepared by  the Public Service Commission." The State Government has in fact placed on record the minutes of the Commission  dated July  22, 1969,  which make  it  quite clear that  the State  Government referred the selections to the Commission,  a Committee was appointed by the Commission for that purpose, the Committee was 874 presided over  by a  member of the Commission, the report of the Committee was formally submitted to the Commission under the Chairman’s  note dated  June 2, 1969, and the Commission then took  its decision  regarding the  recommendation to be made to  the State  Government  for  the  appointments.  The Commission set out the reasons for its decision, and finally made  its  recommendation  on  merits.  The  Commission  was therefore consulted on the suitability of the candidates for promotion as Professors and the second requirement of clause (b) of  sub-section (2)  of section  133 was  also  complied with. It  is not provided by section 133 of the Constitution that  all   the  members   of  the  Commission  should  have interviewed all or any of the candidates, or that it was not permissible for the Commission to entrust the selection to a committee consisting  of only one of its members, so long as the Commission  reserved to  itself the  right to approve or disapprove the  committee’s report  and actually  discharged that  constitutional  responsibility.  No  argument  to  the contrary has  in fact  been urged for our consideration. Had the Commission  de facto  abdicated its  power in  favour of some committee  composed of  strangers to the Commission the position might have been different. Here, it was not so.      It would  thus appear  that the  High  Court  erred  in holding that  the Commission was not consulted in the manner required by  section 133  of the  Constitution and  that the selection made  by it was invalid for that reason. With this finding we  shall have  the rest of the case for decision by the Bench concerned. V.D.K.    Appeal accepted, leaving

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    the merits for decision by      another Bench of the Court. 875