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CASE NO.: Appeal (civil)  4281-4289 of 2003 Appeal (civil)  4280 of 2003 Appeal (civil)  4279 of 2003 Appeal (civil)  4278 of 2003

PETITIONER: (Arising out of S. L. P. (C) Nos. 3032-3040/2002) (Arising out of S.L.P. (C) No. 4079 of 2002) (Arising out of S.L.P. (C) No. 4077 of 2002) (Arising out of S.L.P. (C) No.____(CC1629) of 2003)

State of Uttaranchal & Ors.      State of Uttaranchal & Ors. State of Uttaranchal & Ors. State of Uttaranchal & Ors.                                      

RESPONDENT: Vs. Sidharth Srivastava & Ors.                       Bharat Pal & Ors.        Rajpal Singh Pahawa & Ors.       Ravindra Pratap Singh & Ors.     

DATE OF JUDGMENT: 05/06/2003

BENCH: Shivaraj V. Patil & Arijit Pasayat.      

JUDGMENT:

J U D G M E N T

Shivaraj V. Patil J.

       Delay condoned in SLP (C) No.____/2003(CC  1629/2003).

       Leave granted in all the SLPs.

       These appeals are by the State of Uttaranchal  assailing the common judgment and order dated 6th  November, 2001 passed by the Division Bench of the High  Court of Uttaranchal.   

       Resolution of, the dispute in these appeals  depends on the answer to the question whether the  selection made by the Uttar Pradesh Public Service  Commission, prior to formation of State of Uttaranchal,  is binding on the State of Uttaranchal so as to appoint  selected candidates to the services in the State of  Uttaranchal having due regard to Article 323(2) of the  Constitution of India and Section 78(4) of The Uttar  Pradesh Reorganisation Act, 2000.

       Uttar Pradesh Public Service Commission (UPPSC)  published advertisement inviting applications for 544  posts of J.E. Civil/Technical  (507 Civil + 37  Technical).  The result of selection was published on  4.1.2000.  The UPPSC sent its recommendations to the  U.P. Government on 30.10.2000.  The U.P. Government  forwarded the recommendations on 31.10.2000 to the

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Chief Engineer’s Office, Hill Cadre, Almora.  The  separate State of Uttaranchal came into existence on  9.11.2000.  U.P. Government forwarded the UPPSC  recommendations in respect of posts in Hill Cadre to  the Government of Uttaranchal.  On 29.8.2001,  Government of Uttaranchal issued the order not to  appoint the selected candidates mentioning two reasons  that â\200\223 (1) the new reservation policy of the State of  Uttaranchal is different from that of U.P. and (2)  practical and legal difficulties "in such a  situation" in giving appointments to the candidates  recommended by the UPPSC.  The selected candidates,  aggrieved by the same, filed a batch of writ petitions  assailing the said order, impleading State of  Uttaranchal and its officers, State of Uttar Pradesh  and its officers and UPPSC.  The Division Bench of the  High court, by the common impugned judgment allowed the  writ petitions and issued direction to the State of  Uttaranchal to give appointments to the writ  petitioners.  The High Court took the view that the  recommendations made by the UPPSC of the erstwhile  State of U.P. were binding on new State of Uttaranchal.   

       On behalf of the appellants the following  contentions were urged: -

(1)     Under Article 323(2) of the Constitution of India,  it shall be the duty of a State Public Service  Commission to present annually to the Governor of  the State a report of the work done by the  Commission.  The Governor shall, on receipt of  such report, cause a copy thereof together with a  memorandum explaining, as respects the cases, if  any, where the advice of the Commission was not  accepted, the reasons for such non-acceptance to  be laid before the State Legislature of the State.

(2)     Section 78(1) of The Uttar Pradesh Reorganisation  Act 2000 (for short ‘the Act’) declares that the  Public Service Commission of the existing State of  Uttar Pradesh shall be the Public Service  Commission from the appointed day for the State of  Uttar Pradesh.  Section 78(4) clearly provides  that the report of UPPSC would be presented under  Article 323(2) to the Governors of the States of  Uttar Pradesh and Uttaranchal. But it was the  Governor of Uttar Pradesh alone who was to cause  the report alongwith Memorandum explaining the  reasons for non-acceptance of the advice of the  Commission to be laid before the Legislature of  the State of U.P.  The reason why the Legislature  provided "it shall not be necessary to cause such  report or any such memorandum to be laid before  the Legislative Assembly of the State of  Uttaranchal" was because the UPPSC was not a  joint Commission since State of Uttaranchal was  not even in existence and no functions could be  rendered by the pre-existing UPPSC in respect of  the new State of Uttaranchal.

(3)     In view of the express parliamentary intention  that such a report need not be laid before the  Legislative Assembly of the State of Uttaranchal  suggests that the report of the UPPSC is not  binding upon the State of Uttaranchal which would

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have to constitute its own Public Service  Commission for the purpose of discharging  constitutional duties vide Article 315.

(4)     Section 86 of the Act is a residuary provision.   It deals with the effects of the pre-existing  laws.  Even assuming, the U.P. Service  (Reservation in favour of Scheduled Castes &  Scheduled Tribes and Other Backward Clauses) Act,  1994 continued to be in force within the  territories of Uttaranchal, it does not oblige the  State of Uttaranchal to follow a similar policy of  reservation.

(5)     The decision of the State of Uttaranchal dated  29.8.2001 not to appoint the selected candidates  on the recommendations of the UPPSC is not an  unconstitutional act and no fault can be found  with the said decision.  For the purpose of  appointment to public services, the State of  Uttaranchal is to have due regard to Article 315  of the Constitution.  In view of Section 78(4) of  the Act, communication of the State of U.P.  forwarding the list of candidates to the appellant  State has also no legal force.

(6)     The order passed by the Government that after the  constitution of the State of Uttaranchal, the  reservation policy having been changed and that a  decision that candidates  recommended by the UPPSC  should not be appointed in various departments of  the Government of Uttaranchal, is a decision which  is valid and consistent with the autonomy and the  freedom of the executive action enjoyed by a  newly-born State.

(7)     The High Court committed an error in wrongly  construing the relevant constitutional provisions  and Section 78(4) of the Act in judging the  validity of the order dated 29.8.2001 of the State  of Uttaranchal.

(8)     Re-organisation of a State is an event which  necessarily alters the existing State affairs.   Merely because the Governor of the State of U.P.  did not reverse the report of the UPPSC did not  oblige the State of Uttaranchal to make  appointments of the candidates selected by UPPSC.

(9)     Even though a person is placed in the merit list  of selected candidates, he did not have an  indefeasible right to be appointed as held by this  Court; validity of the State action in these  appeals must be viewed with reference to the  creation of a new State and its commitment to make  appointments to the public services within the  State on the basis of the recommendations of the  Public Service Commission.  Though, there cannot  be any arbitrary refusal to appoint, there must be  a nexus between the existence of a Public Service  Commission for a State and its recommendations  before the State Government.  In the present  cases, there was no advertisement by the State of  Uttaranchal and no selection was made by  Public  Service Commission of the State of Uttaranchal;

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hence to rely upon recommendations of the UPPSC  for appointments to the erstwhile Hill Cadre would  be legally apposite.

       Opposing these submissions and supporting the  impugned judgment, submissions made on behalf of the  respondents were ;-

(1)     The decision dated 29.8.2001 of the State of  Uttaranchal cannot be justified on the basis of  Section 78(4) of the Act.  As can be seen from the  said decision, it is not based on Section 78(4) of  the Act but based on the change of the reservation  policy by the new State of Uttaranchal; the State  cannot add such fresh reasons subsequently in the  shape of an affidavit or otherwise.  When the  statutory functionary makes an order based on  certain grounds, its validity must be judged by  the reasons so mentioned and cannot be  supplemented by fresh reasons.   

(2)     The reservation policy of the State of U.P. is  embodied in the Uttar Pradesh Services  (Reservation for Scheduled Castes, Scheduled  Tribes and Other Backward Classes) Act, 1994.  The  said Act continues to remain in force in  Uttaranchal in terms of Section 86 of the Act as  it has not been amended or repealed by the  Uttaranchal Legislature.  The executive decision  dated 29.8.2001 cannot prevail over U.P. Act,  1994.  Consequently, the decision dated 29.8.2001  was unsustainable.

(3)     The affidavit of the U.P. Government shows that it  had accepted the recommendations of the UPPSC.   The letter of Chief Engineer, Uttaranchal, PWD,  Almora dated 4.1.2001 refers to the letter of  UPPSC dated 30.10.2000 to the Chief Engineer, PWD,  and the subsequent letter dated 7.11.2000 of the  UPPSC to the Chief Engineer, Almora, both were  prior to the re-organisation.  Therefore, no  further acceptance by the Uttaranchal Government  was involved in these cases.

(4)     The further fact that Uttaranchal Government has  been making appointments of candidates selected by  the UPPSC even after U.P. State was re-organised  vide appointment letters dated 28.9.2000 and dated  1.3.2001 establishes that the Uttaranchal State  considered the recommendations of the UPPSC prior  to re-organisation as valid and binding.  It is  not open to the State Government to resile from  this position subsequently.

(5)     The conduct of Uttaranchal Government in making  some appointments and refusing to make other  appointments recommended by the UPPSC is not only  inconsistent and arbitrary but also lacks bona  fide.  The object behind the decision of 29.8.2001  appears to be to bypass the constitutional  requirement as well as the recruitment rules made  under Article 309 of making appointments only  through the Public Service Commission.

(6)     Section 78(4) requires the report of the UPPSC as

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to the work done by the Commission prior to the  date of re-organisation shall be presented under  Article 323(2) not only to the Governor of U.P.  but also to the Governor of the State of  Uttaranchal.  While for the Governor of Uttar  Pradesh, it was mandatory to place the report of  the UPPSC before the Legislative Assembly of U.P.,  in the case of the advice of the Commission was  not accepted in some cases as far as the Governor  of Uttaranchal is concerned, it said that "it  shall not be necessary" to cause such report or  any such memorandum to be laid before the  Legislative Assembly of the State of Uttaranchal.   The words "it shall not be necessary" only mean  that it is not obligatory but discretionary.   There is no prohibition to cause such report or a  memorandum to be laid before Uttaranchal Assembly  if the Governor so desires.  Parliament in  exercise of powers mandated the UPPSC to present  its report to the Governor of Uttaranchal also  shows its clear intention that recommendations of  the UPPSC are equally binding on Uttaranchal as  well.

(7)     The absence of mandatory legislative check in the  case of Uttaranchal, does not in any way affect  the accountability of the State Government to the  judiciary in the instant case which is an  independent constitutional requirement.  The High  Court was right in holding that the reasons given  in the decision of the Government of Uttaranchal  dated 29.8.2001 are not valid.

(8)      As held in P.Mahendran & Ors. Vs. State of  Karnataka & Ors. [(1990) 1 SCC 411] and N.T. Devin  Katti & Ors. vs. Karnataka Public Service  Commission & Ors. [(1990) 3 SCC 157] selection of  appointment has to be made in accordance with the  rules in force at the time of initiation of the  selection process i.e. the publication of  advertisement.  Therefore, change of reservation  policy  subsequent to the selection cannot come in  the way of making appointments on the basis of the  selection made by the UPPSC for the posts  earmarked in the Hill Region of U.P. which became  an integral part of the State of Uttaranchal on  the appointed day.

(9)     When there are clear vacancies and there are  candidates selected in accordance with law by a  constitutional body, namely, UPPSC and there is  urgent need to fill up the said vacancies, it is  wholly arbitrary on the part of the State not to  fill up the vacancies by the candidates selected  and recommended by the UPPSC and going in for  fresh recruitment bypassing the Public Service  Commission.

       It is useful to notice the provisions of the  Constitution of India and the Act to the extent they  are relevant, in examining the rival contentions, urged  on behalf of either side.

RELEVANT PROVISIONS OF THE CONSTITUTION OF INDIA

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"Article 2:- Admission on establishment  of new States - Parliament may by law  admit into the Union, or establish, new  States on such terms and conditions as  it thinks fit."

       Under Article 153, there shall be a Governor for  each State.  The executive power of the State shall be  vested in the Government and shall be exercised by him  either directly or through officers subordinate to him  in accordance with the Constitution.  Under Article  168, for every State, there shall be a Legislature.   There shall be a High Court for each State as per  Article 214.   

"Article 309 â\200\223 Recruitment and  conditions of service of persons serving  the Union or a State:- " Subject to the  provisions of this Constitution, Acts of  the appropriate Legislature may regulate  the recruitment, and conditions of  service of persons appointed, to public  services and posts in connection with  the affairs of the Union or of any  State:

Provided .............any such Act."

"Article 315. Public Service  Commissions for the Union and for the  States â\200\223 (1) Subject to the provisions  of this article, there shall be a Public  Service commission for the Union and a  Public Service Commission  for each  State.

(2)     Two or more States may agree  that there shall be one Public Service  commission for that group of States and  if a resolution to that effect is passed  by the House, where there are two  Houses, by each House of the Legislature  of each of those States Parliament may  by law provide for the appointment of a  Joint State Public Service Commission  (referred to in this Chapter as Joint  Commission) to serve the needs of those  States.

(3)     Any such law as aforesaid may  contain such incidental and  consequential provisions as may be  necessary or desirable for giving effect  to the purposes of the law.

(4)     The Public Service Commission  for the Union, if requested so to do by  the Governor of a State, may, with the  approval of the President, agree to  serve all or any of the needs of the  State.

(5)     References in this Constitution  to the Union Public Service Commission  or a State Public Service Commission

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shall, unless the context otherwise  requires, be construed as references to  the Commission serving the needs of the  Union or, as the case may be, the State  as respects the particular matter in  question."

"Article 320 :- Functions of Public  Service Commissions â\200\223 (1) It shall be  the duty of the Union and the State  Public Service Commissions to conduct  examinations for appointments to the  services of the Union and the services  of the State respectively.

(2)     It shall also be the duty of the  Union Public Service Commission, if  requested by any two or more States so  to do, to assist those States in framing  and operating schemes of joint  recruitment for any services for which  candidates possessing special  qualifications are required.

(3)     The Union Public Service  Commission or the State Public Service  Commission as the case may be, shall be  consulted-

(a)     on all matters relating to methods  of      recruitment to civil  services and for        civil posts;

(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)     .................... (d)     .................... (e)     ....................     

(4)     ....................

(5)     ..................."

       Under Article 320, it shall be duty of the Union  and the State Public Service Commissions to conduct  examinations for appointments to the services of the  Union and the services of the State respectively.   The Union Public Service Commission or the State  Public Service Commissions, as the case be, shall be  consulted on the matters enumerated under Article  320(3) which include all matters relating to methods  of recruitment to civil services and for civil posts.   

"Article 323 :- Reports of Public  Service Commissions â\200\223 (1)...............  .............

(2)     It shall be the duty of a State

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Commission to present annually to the  Governor of the State a report as to the  work done by the Commission, and it  shall be the duty of a Joint Commission  to present annually to the Governor of  each of the States the needs of which  are served by the Joint commission a  report as to the work done by the  Commission in relation to that State,  and in either case the Governor shall,  on receipt of such report, cause a copy  thereof together with a memorandum  explaining, as respects the cases, if  any, where the advice of the Commission  was not accepted, the reasons for such  non-acceptance to be laid before the  Legislature of the State."

RELEVANT PROVISIONS OF THE UTTAR PRADESH  REORGANISATION ACT, 2000

"Section 2:-    In this Act, unless  the context otherwise requires:-

(a) to (d)      .......................

(e)     "existing State of Uttar Pradesh"  means the State of Uttar Pradesh as  existing immediately before the  appointed day;

(f) to (j)........................"

Section 3:- "On and from the appointed  day, there shall be formed a new State  to be known as the State of Uttaranchal  comprising the following territories of  the existing State of Uttar Pradesh,  namely:-

Pauri Garhwal, Tehri Garhwal, Uttar  Kashi, Chamoli, Dehradun, Nainital,  Almora, Pithoragarh, Udham Singh  Nagar, Bageshwar, Champawat,  Rudraprayag and Hardwar districts,

And thereupon the said territories shall  cease to form part of the existing State  of Uttar Pradesh."

       Provisions as to services are made under Part VIII  of the Act in Section 72 to 78.  Under Section 77,  the Central Government has power to give necessary  directions to the State Government of U.P. and the  State Government of Uttaranchal for the purpose of  giving effect to the foregoing provisions of Part  VIII.   

Section 78:-    "(1) The Public  Service for the existing State of Uttar  Pradesh shall, on and from the appointed

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day, be the Public Service Commission  for the State of Uttar Pradesh.

(2)...................................

(3)...................................

(4)     The report of the Uttar Pradesh  Public Service Commission as to the work  done by the Commission in respect of any  period prior to the appointed day shall  be presented under clause (2) of article  323 to the Governors of the States of  Uttar Pradesh and Uttaranchal, and the  Governor of the State of Uttar Pradesh  shall, on receipt of such report, cause  a copy thereof together with a  memorandum explaining as far as  possible, as respects the cases, if any,  where the advice of the Commission was  not accepted, the reasons for such non- acceptance to be laid before the  Legislature of the State of Uttar  Pradesh and it shall not be necessary to  cause such report or any such memorandum  to be laid before the Legislative  Assembly of the State of Uttaranchal."

Section 86:-     "The provisions of Part II shall not be  deemed to have affected any change in  the territories to      which the Uttar  Pradesh Imposition of Ceiling of Land  Holding Act, 1961 and any other law in  force immediately before the appointed  day, extends or applies, and territorial  references in any such law to the State  of Uttar Pradesh shall, until otherwise  provided by a competent Legislature or  other competent authority be construed  as meaning the territories within the  existing State of Uttar Pradesh before  the appointed day."

       The facts that are not in dispute are:          The State of Uttaranchal was formed from 9.11.2000  as per Section 3 of the Act.  UPPSC published  advertisement inviting applications for 544 posts of  J.E. Civil/Technical â\200\223 (507 Civil + 37 Technical).  The  result of selection was published on 4.1.2000.  UPPSC  sent its recommendations to the U.P. Government on  30.10.2000.  The U.P. Government forwarded the  recommendations on 31.10.2000 to the Office of the  Chief Engineer, Hill Cadre, Almora.  Government of  Uttaranchal, by order dated 29.8.2001, took a decision  not to appoint the candidates selected by the UPPSC  pursuant to selections made on 4.1.2000 giving two  reasons â\200\223 (1) that the new reservation policy of the  State is different from that of the State of U.P. and  (2) there were practical and legal difficulties "in  such a situation" in giving appointments to the  candidates recommended by the UPPSC.  The aggrieved  candidates filed writ petitions assailing the said  order in the High Court of Uttaranchal impleading State

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of Uttaranchal and its officers, State of U.P. and its  officers and UPPSC.         After Independence from time to time the States  were reorganized, created or carved out from an  existing State for historical or administrative and  other reasons and at times consequent upon the  demand/agitations of people of particular region/area  the States were reorganized or new States were formed  for better administration, development and promotion of  the interest of particular region or area of a State  keeping in mind the overall development, needs and  requirements of that region or area.         Under Article 2 of the Constitution, Parliament  may be law admit into the Union, or establish, new  States on such terms and conditions as it thinks fit.   The Parliament passed the Act to provide for the  reorganization of the existing State of Uttar Pradesh  and for matters connected therewith.  As per Section 3  of the Act a new State known as the State of  Uttaranchal, comprising certain territories of the  existing State of Uttar Pradesh, was formed, which came  into existence from the appointed day being 9.11.2000.   Under the scheme of the Constitution there shall  be Governor for each State, there shall be a  Legislature for every State and there shall be a High  Court for each State.  So also there shall be a Public  Service Commission for each State under Article 315 of  the Constitution.  Article 315(2) provides that two or  more States may agree to have a joint Public Service  Commission for that group of States.  As per the  resolution of the State Legislatures, Parliament may by  law, in such case, provide for the appointment of a  joint State Public Service Commission.  Further, the  Public Service Commission for the Union, if requested  so by the Governor of a State, may, with the approval  of the President, agree to serve all or any of the  needs of the States as per Article 315(4).  We may  notice here itself that State of Uttaranchal has  neither agreed for appointment of a joint Public  Service Commission under Article 315(2) nor requested  the Union Public Service Commission to serve its needs  under Article 315(4).  Under Article 309, subject to  the provisions of the Constitution, Acts of the  appropriate Legislature may regulate the recruitment,  and conditions of service of persons appointed, to  public services and posts in connection with the  affairs of the Union or of any State.  Under this  provision the Legislature of the State of Uttaranchal,  after coming into existence, has power to regulate the  recruitment, and conditions of service of persons  appointed, to the public services and posts in  connection with the affairs of the State of  Uttaranchal.         Functions of the Public Service Commissions are  enumerated in Article 320 of the Constitution.  It  shall be the duty of the Union and the State Public  Service Commission to conduct examinations for the  appointments to the services of Union and the services  of the State respectively.  The Union Public Service  Commission or the State Public Service Commission, as  the case may be, shall be consulted on all matters  relating to methods of recruitment to civil services  and for civil posts; on the principles to be followed  in making appointments to civil services and posts,  etc.

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       Under Article 323(2) a duty is cast on a State  Commission to present annually to the Governor of the  State a report as to the work done by the Commission,  and it shall be the duty of a joint Commission to  present annually to the Governor of each of the State  the needs of which are served by the joint Commission.   The Governor shall on receipt of such report, cause a  copy thereof together with a memorandum explaining, as  respects the cases, if any, where the advice of the  Commission was not accepted, the reasons for such non- acceptance to be laid before the Legislature of the  State.  As per Section 2(e) of the Act "existing State  of Uttar Pradesh" means the State of Uttar Pradesh as  existing immediately before the appointed day.  Section  78(1) of the Act clearly states that the Public Service  Commission for the existing State of Uttar Pradesh  shall, on and from the appointed day, be the Public  Service Commission for the State of Uttar Pradesh.  In  other words, UPPSC continues to be the Public Service  Commission for the State of Uttar Pradesh only,  excluding new State of Uttaranchal.  Section 78(4) of  the Act requires the UPPSC to present a report as to  the work done by the Commission in respect of any  period prior to the appointed day under Article 323(2)  of the Constitution to the Governors of the States of  Uttar Pradesh and Uttaranchal.  But it specifically  states that the Governor of the State of Uttar Pradesh  shall, on receipt of such report, cause a copy thereof  together with memorandum explaining as far as possible,  as respects the cases, if any, where the advice of the  Commission was not accepted, the reasons for such non  acceptance to be laid before the Legislature of the  State of Uttar Pradesh and it shall not be necessary to  cause such report or any such memorandum to be laid  before the Legislative Assembly of the State of  Uttaranchal.  UPPSC is not a joint Commission for the  States of Uttar Pradesh and Uttaranchal.  The State of  Uttaranchal did not take recourse to Article 315(2) to  have a joint Public Service Commission for both the  States.  Under Article 2 of the Constitution,  Parliament may by law admit into Union or establish new  States on such terms and conditions as it thinks fit.   New State of Uttaranchal is formed on the terms and  conditions contained in the Act.  The UPPSC of the  existing State of Uttar Pradesh shall be the Public  Service Commission for the State of Uttar Pradesh as  already stated above.  It is not the Public Service  Commission for the State of Uttaranchal.  If it were to  be so, provisions could have been made in Section 2  read with Section 78 of the Act to include State of  Uttaranchal within the domain of UPPSC till such time  Uttaranchal State Public Service Commission came into  existence.  Hence, the selection of the candidates made  by UPPSC cannot be accepted as selection made for the  State of Uttaranchal in the light of Section 78(4) of  the Act.  For the immediate purpose, Section 78 of the  Act dealing with the Public Service Commission has to  be looked into carefully.  Under Section 78(4), there  is no legislative command or compulsion to the Governor  of State of Uttaranchal to place report submitted by  UPPSC alongwith the memorandum explaining why advice of  the Commission was not accepted.  The reason as to why  the Parliament provided specifically that "it shall  not be necessary to cause such report or any such  memorandum to be laid before the Legislative Assembly

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of the State of Uttaranchal" appears to be that the  UPPSC not being a joint Commission and it being a  Public Service Commission for the State of Uttar  Pradesh under Section 2(e) read with Section 78(1) of  the Act, its report could not be placed before the  State Legislature of Uttaranchal.  State of Uttaranchal  was not in existence when the UPPSC initiated the  selection process for the posts in question and no  functions could be rendered by pre-existing UPPSC in  respect of new State of Uttaranchal.  It was contended  that UPPSC sent the report to the Governor of  Uttaranchal as required under Section 78; there was no  prohibition from placing the said report and memorandum  containing explanation before the State Legislature of  Uttaranchal.  We find it difficult in accepting this  contention having due regard to the language and  contents of Section 78(4) of the Act.  A clear  distinction can be seen in the said provision.  First  part of the provision speaks of UPPSC sending the  report to both the Governors and second part requires  the Governor of Uttar Pradesh alone to cause the report  and the memorandum to be laid before the Legislature of  State of Uttar Pradesh only.  The express parliamentary  intention that such a report need not be laid before  the Legislative Assembly of the State of Uttaranchal  makes the position clear that the report of the UPPSC  is not binding upon the State of Uttaranchal.  The  State of Uttaranchal would have to constitute its own  Public Service Commission to meet the constitutional  requirement for the purpose of discharging its duties  under Article 315.  Further, appointment to services in  the State of Uttaranchal shall have to be in consonance  with Articles 315, 320 and 323 of the Constitution  consistent with autonomy and the freedom of executive  action enjoyed by newly born State of Uttaranchal.   Part VIII of the Act contains Sections 72 to 78 dealing  with services; Section 72 relates to All-India Services  and Sections 73 to 76 with other services; Section 77  gives power to Central Government to give directions.   Provisions are made in Section 78 as to the State  Public Service Commission.  In this Part, provisions  are made for protection of service conditions and  services of the persons already in service.  There is  no such provision made in Section 78 protecting the  selection made by the UPPSC prior to the formation of  the new State of Uttaranchal to contend that the  candidates selected by the UPPSC shall be appointed by  the State of Uttaranchal.  Under these circumstances,  the communication of the Government of Uttar Pradesh or  UPPSC forwarding list of selected candidates to the  appellant-State has no legal sanctity or force to bind  the State of Uttaranchal so as to compel it to appoint  the non-official respondents.         The argument made on behalf of the respondents  that the State cannot add fresh reasons to the impugned  order dated 29.8.2001 subsequently in the shape of  affidavit or otherwise and that when a statutory  functionary makes an order based on certain grounds,  its validity must be judged only by the reasons so  mentioned citing the case of M.S. Gill and another vs.  Chief Election Commissioner, New Delhi and others [1978  (2) SCR 272] is not acceptable.           The said order reads:- "No. 1358/Personnel-2/2001 From:

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       Rakesh Sharma         Secretary, Government of Uttaranchal To,         All the Principal Secretaries/         Secretary,         Govt. of Uttaranchal Personnel Deptt.   Dehradun Dated 29th  August, 2001 Subject:        Action to the  recommendations of the Public Service  Commission, U.P. for appointments in  various departments.

Sir,         I have been directed to state that  after constitution of the State of  Uttaranchal, the Govt. of Uttar Pradesh  has sent the recommendations of the  selected candidates by the Public  Service Commission, U.P. Allahabad for  appointment to the various posts in  various departments of the Government of  Uttaranchal.  The said recommendations  have been sent keeping in view the  departmental constitution and  reservation position of the earlier  state of Uttar Pradesh, whereas after  constitution of the State of Uttaranchal  the reservation policy has been changed.   In such a situation, there will be  various miscellaneous legal difficulties  in giving appointments to the  candidates, list of which has been sent  by the Govt. of Uttar Pradesh in  accordance with the recommendations. 2.      Therefore, in this regard after  thorough consideration it has been  decided that the candidates recommended  by the Uttar Pradesh Public Service  Commission may not be appointed in  various departments of the Government of  Uttaranchal. 3.      Therefore it is requested to take  further action accordingly. Yours faithfully, Sd/-illegible (Rakesh Sharma) Secretary No. (1) Personal-2/2001 of even dated Copy forwarded for information and  necessary action to:- 1.      The Secretary of His Excellency the          Governor of Uttaranchal. 2.      The Secretary, Reconstitution, Govt.  of Uttaranchal. 3.      The Commissioner of Reconstitution,          Govt. of Uttaranchal, Lucknow. 4.      The Secretary, Co-ordination, Govt.  of U.P. Lucknow. 5.      All the Sections of the Secretariat,          Uttaranchal. 6.      Departmental Book. By Order         (Rakesh Sharma) Secretary"

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       It is evident from the above order that the  consideration was made in regard to the action to be  taken on the basis of the recommendations of the Public  Service Commission, U.P., for appointments in various  departments.  It is also stated therein that after the  constitution of the State of Uttaranchal, the  reservation policy has been changed and there will be  various miscellaneous legal difficulties in giving  appointments to the candidates, list of which has been  sent by the Government of Uttar Pradesh in accordance  with the recommendations of UPPSC.  In conclusion, it  is said that after thorough consideration, it has been  decided that the candidates recommended by the Uttar  Pradesh Public Service Commission may not be appointed  in various Departments of the Government of  Uttaranchal.  It is true that there is no express  reference to Section 78(4) of the Act in the  aforementioned order.  But reading the order as a  whole, it gives an impression that after the  Constitution of the State of Uttaranchal, there has  been change in the reservation policy; there were  various miscellaneous and legal difficulties in giving  appointments to the candidates selected by the UPPSC as  forwarded by the Government of Uttar Pradesh and that  after thorough consideration, a decision was taken not  to appoint the candidates recommended by the UPPSC in  various departments of the Government of Uttaranchal.   This being the position, it appears to us that while  passing the order, the provision of Section 78(4) and  other provisions of the Act and the relevant  constitutional provisions were kept in mind when there  was thorough consideration before taking a decision as  stated in the order.  Mere non-reference or omission to  mention of Section 78(4) in the order, does not take  away its legal effect.  The appellants have only  elaborated the reasons to support the said order.  It  is not possible to agree that the appellants tried to  justify the aforementioned order by subsequent fresh  reasons.  The High Court committed an error in holding  that the reasons cited by the State Government of  Uttaranchal in the order dated 29.8.2001 were not valid  relying on the decision of this Court in Asha Kaul  (Mrs.) and another vs. State of Jammu & Kashmir and  others [(1993) 2 SCC 573], in the light of the facts of  the present case and in view of what is stated above.   This apart, in view of the discussion made above and  having regard to clear constitutional and legal  position that the selections made by UPPSC are not  binding on the State of Uttaranchal on the basis of the  facts that are not in dispute, the argument advanced on  behalf of the respondents being devoid of merit is  rejected.         In terms of Section 86 of the Act, it was argued  that the reservation policy of the State of U.P. is  embodied in the Uttar Pradesh Services (Reservation for  Scheduled Castes, Scheduled Tribes and Other Backward  Classes) Act, 1994, the executive decision dated  29.8.2001 cannot override the U.P. Act of 1994(supra)  because the State Act continues to remain in force in  Uttaranchal by virtue of the Section 86 of the Act.   Assuming that be the position, as and when Uttaranchal  State Public Service Commission proceeds to make  selection, the policy contained in the U.P. Act of 1994  is to be followed unless it is amended by the

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Legislature of the State of Uttaranchal.  It cannot  also be contended that the State of Uttaranchal has no  right to have its own reservation policy to meet the  requirements of the new State having due regard to  various factors.  Moreover, when the selection made by  the UPPSC itself, as already stated above, is not for  the State of Uttaranchal and it has no legal or binding  effect to compel the State of Uttaranchal to appoint  the selected candidates, the question of applying  reservation policy as embodied in U.P. Act of 1994 does  not arise.  Consequently, this contention also fails.         The other contention that the affidavit of the  U.P. Government shows that it had accepted the  recommendations of the UPPSC, the letter of Chief  Engineer, Uttaranchal, PWD, Almora dated 4.1.2001  referring to the letter of UPPSC dated 30.10.2000 to  the Chief Engineer, PWD and the letter dated 7.11.2000  of UPPSC to the Chief Engineer, Almora being prior to  the formation of the new State of Uttaranchal, no  further acceptance of the Uttaranchal Government was  required.  In view of the discussion already made above  that the UPPSC recommendations in relation to selection  of the candidates have no legal force and are not  binding on the State of Uttaranchal, we find no merit  in this contention as well.  It may also be added here  itself that a person placed in the merit list of  selected candidates has no indefeasible right to be  appointed as held by this Court.  No doubt, there  cannot be an arbitrary refusal to appoint a selected  candidate.  In the instant case, the action of the  State of Uttaranchal must be judged with reference to  the creation of new State and its functions,  obligations and duties to make appointments to the  public services within the State on the basis of the  recommendations of the Public Service Commission of the  State.  As is clear from the facts in the present case,  there was no advertisement by the State of Uttaranchal,  no rules were framed by the State of Uttaranchal, no  selection was made by Public Service Commission for the  State of Uttaranchal. Hence, the State of Uttaranchal  was not obliged to make appointments of the non- official respondents on the basis of the selection made  by the UPPSC even though the recommendations were  forwarded to the State of Uttaranchal.  On the facts it  is not a case where the Government of Uttaranchal has  refused to make appointments arbitrarily.         A grievance was made that Uttaranchal Government  has been making appointments arbitrarily picking up  some candidates selected by the UPPSC even after the  U.P. State was re-organised and is not making  appointments of other candidates selected by the UPPSC;  there is lack of bona fides on the part of the State of  Uttaranchal in making the order dated 29.8.2001.  If  any appointments are made contrary to law and the stand  taken by the State of Uttaranchal and if there is any  mala fide, they may affect such appointments on a  proper challenge by the aggrieved persons but that does  not help the non-official respondents to get them  appointed by the State of Uttaranchal.           It was also urged on behalf of the non-official  respondents that the selection and appointment has to  be made in accordance with the rules in force at the  time of initiation of the selection process, i.e.  publication of advertisement and, therefore, change of  reservation policy subsequent to the selection cannot

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come in the way of earmarked vacancies for the Hill  Region of U.P. which became an integral part of the  State of Uttaranchal.  This is an untenable grievance  in view of the discussion made above while dealing with  the question whether the selection made by UPPSC is  binding on the State of Uttaranchal.  The rules in  force at the time of initiation of the selection  process have to be applied in making selection but that  does not help the non-official respondents in seeking  appointments by the State of Uttaranchal on the basis  of selection made by UPPSC.         It was also urged that if there were vacancies and  the candidates were selected in accordance with the law  by UPPSC and there was urgent need to fill up the said  vacancies, it is wholly arbitrary on the part of the  appellants not to fill up the vacancies by the  candidates recommended by the UPPSC and going in for  fresh recruitment.  This submission is again without  any force in law.  When we have already held that the  selection made by UPPSC is not binding on the State of  Uttaranchal, no direction could be given to appoint the  non-official respondents as is done by the High Court  in the impugned judgment.         In the impugned judgment the High Court held that  the recommendations of Public Service Commission of  erstwhile State of Uttar Pradesh for appointment on the  posts under Hill Sub Cadre Rules, 1992, which were  received prior to the appointed day by the State  Government of erstwhile State of Uttar Pradesh, are  binding on the State of Uttaranchal, and, in that view,  directed the appellants to give appointments to the  candidates selected and recommended by the UPPSC.  The  reasons recorded by the High Court in doing so are: - 1.      From the Government Order dated 29.8.2001, it is  clear that the Government of Uttaranchal denied to  accept the recommendations of UPPSC.  It does not  say that no appointment shall be given on the  basis of recommendations of UPPSC.  Therefore, the  said Government Order is liable to be ignored for  the purpose of giving appointment on the  recommendations of UPPSC and in that view there  was no need to quash the said Government Order. 2.      There is yet another reason for not quashing the  said Government Order as the same has been issued  after the appointed day and the State of  Uttaranchal has established its own Public Service  Commission.  Now the appointments are to be made  in consultation with Uttaranchal Public Service  Commission as per the changed policy mentioned in  the Government Order. 3.      In view of a Constitution Bench judgment of this  Court in Shankarasan Dash vs. Union of India  [(1991) 3 SCC 47] and Division Bench judgment of  this Court in Asha Kaul (Mrs.) and others vs.  State of Jammu and Kashmir and others [(1993) 2  SCC 573], though no indefeasible right for  appointment can be claimed on the basis of  recommendations made by the Public Service  Commission but equally the Government has no  absolute right to reject the recommendations and  to refuse appointment to the recommended  candidates; there has to be valid and reasonable  ground for not accepting the recommendations of  the Public Service Commission for appointment on  the posts for which the selection was held by the

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Commission. 4.      Though the impugned order dated 29.8.2001 was to  be ignored the reasons stated there for not  accepting the recommendations of the Commission  are not valid reasons as those reasons were not  the reasons for not accepting the recommendations  of the Public Service Commission. 5.      The recommendations were made by the UPPSC and  were duly received by the State Government of  erstwhile State of Uttar Pradesh prior to the  appointed day.  The recommendations were made  strictly in accordance with the Rules then  prevailed prior to the appointed day.  Under  Section 78 of the Act, in case of non acceptance  of the recommendations of the Commission the  Governor of Uttar Pradesh had to place the report  before the Uttar Pradesh Legislative Assembly for  not accepting the recommendations.  Admittedly,  all the recommendations received by the erstwhile  State of Uttar Pradesh have been sent to the State  of Uttaranchal and they were not reversed by the  Governor for being placed with reasons before the  Assembly of the State of Uttar Pradesh.         The High Court misread the Government Order dated  29.8.2001 and drew wrong inference in saying that the  Government of Uttaranchal denied acceptance of the  recommendations but did not say that no appointment  shall be given on the basis of the recommendations of  UPPSC.  If the Government of Uttaranchal has denied to  accept the recommendations of UPPSC, essentially it  follows that no appointment could be given.  This apart  in the very order in paragraph 2 it is specifically  stated that "therefore, in this regard after thorough  consideration it has been decided that the candidates  recommended by the UPPSC may not be appointed in  various departments of the Government of Uttaranchal".   Thus, the reason given by the High Court that the  Government of Uttaranchal though denied to accept the  recommendations of UPPSC but did not deny to give  appointment and as such the said Government Order could  be ignored, does not stand to reason and it is  untenable.         The other reason given to ignore the said  Government Order is that the same was issued after the  appointed day.  Merely because the said Government  Order was issued after the appointed day it could not  be simply ignored without considering the legality and  validity of that order, in the light of the relevant  constitutional provisions and provisions of the Act.   The order exists unless it is quashed or it ceases to  operate for any other reason.         There is no difficulty in accepting the principles  laid down in the cases of Shankarsan Dash and Asha Kaul  (Mrs.) (supra).  But the High Court failed to apply  those principles correctly to the facts of the present  cases.  As stated by the High Court it is settled law  that a candidate whose name is included in the select  list does not get indefeasible right for appointment on  the basis of the recommendations made by the Public  Service Commission, but at the same time the Government  has no absolute right to reject the recommendations and  refuse appointment to the candidates recommended  without a valid and reasonable ground for not accepting  the recommendations of UPPSC.  The High Court found  that the reasons given in the Government Order dated

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29.8.2001 were not valid reasons for not accepting the  recommendations of UPPSC.  While discussing whether the  recommendations of UPPSC are binding on the State  Government of Uttaranchal, keeping in view the  constitutional provisions and in particular Section  78(4) of the Act, we have already expressed above that  the recommendations of the UPPSC are not binding to  compel the State of Uttaranchal to give appointments to  the candidates recommended by the UPPSC.  It is not  possible to accept the view of the High Court that the  reasons given in Government Order dated 29.8.2001 are  not valid.  On the other hand, we find that the reasons  given in the said order are valid and reasonable.  At  any rate it cannot be said that the State of  Uttaranchal arbitrarily or whimsically refused to give  appointments to the selected candidates.         The interpretation placed by the High Court on  Section 78 of the Act is also wrong.  Merely because  the recommendations received by the erstwhile State of  Uttar Pradesh had been sent to State of Uttaranchal and  they were not reversed by the Governor for being placed  with the reasons before the Assembly of State of Uttar  Pradesh under Section 78 of the Act, it cannot be held  that the recommendations made by the UPPSC were binding  on Government of Uttaranchal.  In this regard we have  already made the legal position clear.  Hence it is  unnecessary to deal with the same any further.  In our  view, looking to the reasons recorded by the High Court  in the impugned judgment, which are neither tenable nor  acceptable, the impugned judgment cannot be allowed to  stand.         It was also urged in the alternative that the  State of Uttar Pradesh may be directed to give  appointments to the non-official respondents.  This  aspect was neither raised before the High Court not it  was considered.  Hence, we do not wish to deal with the  same.  All that we can say is that this order shall not  come in the way of the State of Uttar Pradesh, if so  advised, to consider the claims of the non-official  respondents for appointments based on the selection  made by UPPSC.  Having regard to the peculiar situation  in which the non-official respondents are placed, we  would like to say that in case the non-official  respondents apply as and when the applications are  invited for selection either by UPPSC or by the  Uttaranchal State Public Service Commission in future  within a period of three years, the UPPSC or the  Uttaranchal State Public Service Commission shall  consider them for selection subject to their satisfying  all other eligibility requirements but relaxing the  upper age limit.         Having due regard to all aspects and in the light  of what is stated above, the question set out in the  beginning is answered in the negative.  Hence the  impugned judgment and order of the High Court cannot be  sustained.  In this view, we find merit in these  appeals.  They are entitled to succeed.  Accordingly,  the impugned judgment and order are set aside and the  appeals are allowed but with no order as to costs.

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