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PETITIONER: SWARAN LATA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/01/1979

BENCH:

ACT:      Constitution-Art, 309,  proviso-If  obligatory  on  the part of  the Government to make rules of recuitment before a servicd could be consitituted or post created or filled.      Interpretation of  statutes-States  Reorganisation  Act 1966-S. 84-Scope  of -Section  If an  incidental  provision- Effect of incidental provision after its purpose was served.      Administrative  directions   issued  by   the   Central Government for  implementing  scheme  of  reorgansiation  of services-If  could   circumscribe  the   powers   of   State Government-Nature of instructions issued.      Service Commission-If  has  power  to  relax  essential qualifications in selceting a candidate for a post.      Words and phrases: "maninly"-Meaning of.      Mala fules-Buredn of proof-On wohomlies.

HEADNOTE:      Section 84  of the  States’  Reorganisation  Act,  1966 empowered the  Central Government to issue directions to the State  Governments   of  Punjab   and  Haryana  and  to  the Admmistrator of  the Union  territory of Chandigarh "for the purpose of giving effect to the foregoing provisions of this part (of the act)". For filling up the different posts under the control  of  the  Chief  Commissioner,  Chandigarh,  the Government of  India  issued  instructions  that  the  posts should be  filled up  by deputation  maninly from the Punjab and  Haryana  State  cadres,  and  that  the  officer  whose services were sought to be borrowed should have been holding a post,  the scale  of pay  of which  was equivalent  to the scale of  pay of  the post  in the Chandigarh Administration for which the officer was to be selected on deputation.      At the  request of  the Chandigarh Adminisration the of Haryana forwarded  a panel of three names, including that of the appellant,  for appointment on deputation to the post of Principal of a Women’s Technical Institute: The post carried a scale  of pay  of Rs.  350-900. Although the appellant was junior to  the other  two candidates,  she was  selected and temporarily appointed to the post since at that time she was on a  pay scale  of Rs.  350-900 in  Haryana. Since  in  the meantime she  had been  offered a post in Delhi she left the post in  Chandigarh. All efforts to get a suitable candidate either from  the State of Haryana or of Punjab having proved unsuccessful the  Chandigarh  Administration  requested  the Union Public  Service Commission  to select  a candidate for the post.      None of  the  candidates  that  applied  for  the  post satisfied all  the prescribed  qualifications for  the post. Therefore, the UPSC relaxed one or the other 954 qualification in  respect of  each  of  the  candidates  and

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eventually selected  respondent No.  6, for  the  post.  The appellant  was   also  one  of  the  candidates  called  for interview; but she was not selecteet.      Allowing the  appellant’s writ  petition a single Judge of the  High Court struck down the appointment of respondent no. 6 mainly on the ground that the presence of the Director of   Technical   Education   representing   the   Chandigrah Administration  in   the  interview   board   vitiated   her appointment inasmuch  as he was actuated by bias against the appellant. But on appeal a Division Bench reversed the order of the  single Judge  holding that  the allegation  of  mala fides or bias had not been made out by the appellant against the representative  of the  Chandigarh Administration in the intervieww board.      The appellant,  on appeal  to this Court contended that (1)  the   post  being   a  deputation   post  in  terms  of instructions issued  by the  Government of India under s. 84 of  the   States’   Reorganisation   Act,   the   Chandigarh Administration had  no authority  to fill  up  the  post  by direct  recruitment   and  (2)   the  Union  Public  Service Commission   had   no   power   to   relax   the   essential qualifications of  the candidates wihout prior concrrence of the Chandigarh Adiministration.      Dismissing the appeal, ^      HELD: 1  (a) The post of Principal of the Institute was not a  "deputation post"  and, theefore, the appoointment of respondent no.  6 to that post by direct recruitment was not invalid.[962 D]      (b) It  is not obligatory under the proviso to Art. 309 to make  rules of  recritment  before  a  service  could  be constituted  or   a  post   created  or  filled.  The  State Government has executive power in relation to all matters in respect of  which the  legislature of the State has power to make laws.  There is  nothing in the terms of Art. 309 which abridges the power of the executive to act under Art. 162 of the Constitution without a law. The same principle underlies Art. 73  in relation  to the  executive power  of the Union. [961 G-H]      In the instant case since there were no rules requiring the Administration  to fill  up the  post by deputation, the Administration  had   the  option   either  to  make  direct recruitment or to take a person on deputation from the State of Punjab cr Haryana. [962 B]      B. N.  Nagarajan v.  State of Mysore, [1966] 3 SCR 682; T. Cajee  v. N. Jormanik Siem & Anr., [1961] 1 SCR 750; Sant Ram Sharma  v. States of Rajasthan & Anr., [1968] 1 SCR 111; referred to.      (c) Moreover the Chandigarh Administration did all that it could,  for selecting  a  candidate  on  deputation  from either Punjab  or Haryana, but could not succeed. It cannot, therefore,  be   asserted  that  there  was  any  breach  of instructions issued by the Central Government under s. 84 of the Act,  even   assuming they  were applicable. [962 E; 964 B;]      (d) The  power of  the Chandigarh Administration cannot be said  to be  circumseribed by the terms of the directions issued by the Central Government 955 under s.  84  of  the  Act.  The  instructions  issued  were supplemental incidental  or consequential  to the provisions for the reorganisation of States. [959 A]      (e) The  meaning of  the  word  "mainly"  used  in  the instruction issued  by the  Government of India must, in the context, mean  "substantially", "as  far as  practicable" or

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"so far as possible". [959 C]      (f) The  directions issued  by the  Central  Government were only for the limited purpose of implementing the scheme for  the   reorganisation  of  services.  When  the  process relating to  integration of  services as  envisaged  by  the supplemental, incidental  or  consequential  provisions  for reorganisation of  services under  a law  was  completed  an incidental provision  like s.  84 necessarily ceases to have effect. Such  power is only kept in suspended animation till the process  of reorganisation  of services is completed and once the  integration of  services was finalised there is no reason  for   a  transitory,   consequential  or  incidental provision like s. 84 to operate in perpetuity. [959 H]      Jagtar Singh  v. State  of Punjab  & Ors.  [1972] 1 SCC 171; referred to.      2(a) There  was no  statute or  regulation  having  the force of law by which any qualifications were prescribed for the post.  No rules  were framed to regulate the recruitment and conditions of service of the post. It was, therefore the exclusive power  of the  Administration,  to  prescribe  the essential  qualifications   for  direct   recruitment.   The qualifications were  prescribed  in  consultation  with  the Commission. [967 H]      (b) The  appellant could  not be heard at this stage to say that the Union Public Service Commission had no power to relax any  of the essential qualifications. Her assertion in the writ  petition was that though the UPSC had the power to relax  the   qualifications  it   could  not   be  exercised arbitrarily. [965 C]      (c) The  Commission acted  well within  its  powers  in relaxing the  qualification of  the  candidates  called  for interview and  in making the appointment, the Administration ratified the Commission’s action. [966 A]      (d) The essential qualifications were prescribed by the Administration in      consultation  with the Commission and while issuing  the advertisement the Commission had reserved to itself  the  power  to  relax  the  qualifications  in  a suitable case. Where qualifications for eligibility were not prescribed by  rules, broad  decisions as  to the  method of recruitment are  taken in  consulation with  the Commission. This  requirement   was  fulfilled   in   this   case.   The Administration was  fully  aware  that  the  Commission  had reserved  to   itself  the  power  to  relax  the  essential qualifications. [965 G-H]      Union of  India &  Ors. v. S. B. Kohli & Anr., [1973] 3 SCR 117; Omprakash v. The State of M. P. & Anr., AIR 1978 MP 59;   Maharashtra   State   Electricity   Board   Engineers’ Association, Nagpur  v. Maharashtra State Electricity Board, AIR 1968 Bom. 65; held inapplicable.      (e) The  appellant could  not approbate  and reprobate. She  knew   fully  well   that,  under   the  terms  of  the advertisement, the  Commission had  reserved to  itself  the power to  relax any of the essential qualifications. Because she had not been selected she could not complain either that direct recruitment 956 through the  UPSC was  invalid or  that the  Commission  had usurped the  functions of  the Chandigarh  Administration in relaxing the essential qualifications. [972 D]      (f) No  relaxation in  essential qualifications  can be made after  an advertisement  had been  issued  and  persons possessing the qualifications advertised for, have submitted their applications. If a relaxation has to be made a duty is cast on  the Commission  to re-advertise  the post.  In  the present case,  however, the  advertisement itself  contained

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the relaxation clause and nothing prevented a candidate with the requisite  qualifications from  making  an  application. [972 H]      3(a) The  burden of  establishing mala  fides lies very heavily on  the person  alleging them.  The Court  would  be justified in  refusing to  carry on  an  investigation  into allegations of  mala fides  if necessary  particulars of the allegation were not given in the writ petition. [970 B]      (b) There  was nothing  on record  to substantiate  the appellant’s general  and vague  allegations as  to the  mala fides or  bias on  the part  of the  Director  of  Technical Education or  that he infuenced the members of the Selection Committee in  any manner  so as  to vitiate the selection. A representative  of   the   Chandigarh   Administration   was associated as  an expert  member to  the limited  extent  of apprising the  Chairman of the Selection Committee as to the nature of  duties to be performed by the selected candidate. There is  nothing wrong in the Commission taking such expert advice. [970 H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 628 of 1978.      Appeal by  Special Leave  from the  Judgment and  Order dated 26-5-77  of the  Delhi High  Court in L.P.A. No. 34 of 1976.      P. P. Rao, N. D. Garg and T. L. Garg for the Appellant.      H. L. S. Lal and Ashok Grover for Respondents 3 and 5.      S. N. Anand and M. N. Shroff for Respondent No. 4.      S. C. Gupta and Ramesh Chand for Respondent No. 6.      C. M. Nayar for Respondent No. 7.      The Judgment of the Court was delivered by      SEN, J. This appeal, by special leave, directed against a judgment  of the  Delhi High  Court dated May 26, 1977, in its appellate  jurisdiction reversing the judgment and order of a  Single Judge  of that  Court dated  February 13,  1976 mainly raises  the question  whether the  appointment of the respondent No.  6, Smt.  Prem Lata  Dewan by  the Chandigarh Administration to  the post of Principal, Government Central Crafts  Institute   for   Women,   Chandigarh,   by   direct recruitment through  the Union Public Service Commission was invalid, as  being contrary  to the directions issued by the Central Government  under s. 84 of the Punjab Reorganisation Act, 1966. 957      The principal  point in  controversy in  the appeal  is whether the  post of  Principal of  the  Government  Central Crafts Institute  for Women,  Chandigarh in the pay scale of Rs. 350-900  was a  ’deputation post’  and  required  to  be filled in  by  the  Chandigarh  Administration  only  by  an officer on  deputation drawing  an equivalent scale from the States of  Haryana and  Punjab or could also be filled up by appointment of  a suitable candidate by advertising the post through the Union Public Service Commission.      Three subsidiary  questions also  arise in  the appeal, namely (1)  whether the Union Public Service Commission had, in fact, exceeded its power by usurping the functions of the newly created  Union territory of Chandigarh by relaxing the essential   qualifications    of   the    candidates   while recommending the  name of  respondent No.  6, Smt. Prem Lata Dewan for  appointment to the post of Principal, and thereby altered the  qualifications  prescribed  by  the  Chandigarh Administration to  regulate recruitment  to that  post;  (2)

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whether the  appointment of respondent No. 6, Smt. Prem Lata Dewan by  the  Chandigarh  Administration  to  the  post  of Principal was  illegal inasmuch  as, she did not possess the requisite essential  qualifications, if  any, prescribed for the post in question; and (3) whether the proceedings of the Selection Committee  dated April 23, 1975 culminating in the selection of  respondent No.  6, Smt. Prem Lata Dewan as the candidate most  suitable for  appointment  to  the  post  of Principal, were vitiated because Dr. O. S. Sehgal, Director, Technical  Education,   Chandigarh  assisted  the  Selection Committee in  its deliberations  during  the  interview,  on account of his bias, if any, against the appellant.      The main  argument advanced  by  the  counsel  for  the appellant, can  be conveniently  considered under two heads: The first  branch of his contention is, that in terms of the instructions issued by the Central Government under s. 84 of the Punjab  Reorganisation Act,  1966, the post of Principal of the  Institute was  ’deputation post’ and, therefore, the Chandigarh Administration  had no  authority to  fill up the post by  direct recruitment  through  Union  Public  Service Commission. The  other branch of the counsel’s contention is that the  Union Public  Service Commission  had no  power to relax the  essential qualifications  of the candidates to be selected at  the interview  without the prior concurrence of the Chandigarh Administration.      There is  no warrant  for the contention that the power of the  Chandigarh Administration in relation to the mode of filling up the 958 post in  question, which  admittedly is under the control of the   Administrator,   Chandigarh   Administration,   stands circumscribed by  the terms  of the directions issued by the Central Government under s. 84 of the Act.      The  decision  must  turn  on  a  construction  of  the instructions  issued  on  November  4,  1966  by  which  the Government  of   India,  Ministry  of  Home  Affairs,  which consequent upon  the amendment  of the  Government of  India (Allocation  of  Business)  Rules,  1961  by  Order  of  the President  of   India  dated   October  30,  1966  was  made responsible  for   the  work   of  the  Union  territory  of Chandigarh. These instructions were issued on the basis that personnel for  the Union  territory of  Chandigarh would  be provided on  deputation by  the two  States  of  Punjab  and Haryana. The  said instructions,  so far  material, read  as follows:           "Except for  the department  of (i)  Printing  and      stationery (ii)  Architecture and  (iii) Post  Graduate      Institute   of    Medical   Education   and   Research,      Chandigarh, the  posts in  the other  departments under      the control  of the Chief Commissioner, Chandigarh will      be  filled   up   by   deputation   mainly   from   the      Punjab/Haryana State Cadres.           In respect of the above-mentioned departments, the      staff will  be taken  en bloc  by the  Chandigarh Union      territory Administration. A committee consisting of the      representatives of  the Governments of Punjab, Haryana,      the Chandigarh  Union territory  Administration and the      Ministry  of  Home  Affairs  has  been  constituted  to      recommend absorption  of personnel against posts in the      Chandigarh Union  territory  Administration,  from  the      Punjab/Haryana State cadres on permanent basis." The aforesaid  communication also  conveyed the order of the Government of  India, Ministry  of Home Affairs, sanctioning the creation  and continuance  of "existing  posts"  in  the Union territory of Chandigarh from November 1, 1966.

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    These instructions  were in conformity with the earlier decision of  the   Government of  India,  Ministry  of  Home Affairs conveyed by the letter of the Chief Secretary to the Government of erstwhile State of Punjab dated August 9, 1966 stating that the Government had set up a committee headed by Sri  V.   Shanker,  I.C.S.,  for  the  finalisation  of  the proposals of  the Departmental  Committees in  regard to the allocation of  the personnel  to the  reorganised States  of Punjab and Haryana and the Union territory of Chandigarh. In regard to the Union territory of Chandigarh, the decision of the Government of India was in these terms: 959           "It may  be presumed  that personnel for the Union      territory of  Chandigarh will be provided on deputation      by the two States of Punjab and Haryana."      The aforesaid  instructions issued  under s.  84 of the Act   were   supplemental,   incidental   or   consequential provisions  for   the  reorganisation  of  the  States.  The instructions were binding on the State Governments of Punjab and Haryana  as also on the Chandigarh Administration in the matter of  integration of services: Jagtar Singh v. State of Punjab & Ors.(1)      The  key   to  the   interpretation  of  the  aforesaid instructions issued  under s.  84 of the Act, obviously lies in  th  word  ’mainly’.  According  to  the  ordinary  plain meaning, the  word  "mainly"  must,  in  the  context,  mean "substantially", "as  far as  practicable"  or  "so  far  as possible." In  Shorter Oxford  Dictionary, 2nd Edn., vol. 1, p. 1189,  the meaning  given is: "For the most part; chiefy, principally". In Webster’s New International Dictionary, 2nd Edn., vol.  III, p.  1483, more  or less the same meaning is given: "Principally, chiefy, in the main".      It seems  to us  that for a proper determination of the question, it  is necessary  first of  all  to  formulate  as clearly as possible the precise nature and the effect of the directions issued  by the  Central Government under s. 84 of the Punjab Re-organisation Act, 1966, which reads:           "84.  Power   of  Central   Government   to   give      directions:  The   Central  Government  may  give  such      directions to  the  State  Governments  of  Punjab  and      Haryana  and   to  the   Administrators  of  the  Union      territories of  Himachal Pradesh  and Chandigarh as may      appear to  it to be necessary for the purpose of giving      effect to the foregoing provisions of this Part and the      State Governments  and the  Administrators shall comply      with such directions."      The use  of the words "for the purpose of giving effect to the  foregoing provisions  of this Part" clearly curtails the ambit  of the  section. The  directions that the Central Government issues  under the  section are only for a limited purpose, i.e.,  for the implementation of the scheme for the re-organisation of  services. When  the process  relating to integration of  services as  envisaged by  the supplemental, incidental or  consequential provisions  for re-organisation of services  under a  law made by the Parliament in exercise of its power under 960 Articles 2,  3 and  4 of the Constitution is completed, such an incidental  provision like  s. 84  necessarily ceases  to have effect.      While it  is not  disputed that  the power  to regulate matters relating  to services  under the  Union of India and under the  various States specified in the First Schedule to the Constitution  is an  exclusive function of the Union and the States  under Entry  70, List I and Entry 41, List II of

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Seventh  Schedule   read  with  Article  309  and  normally, therefore, it  is the  exclusive power  of the Union and the States to  deal with  their services  either in  exercise of their Legislative functions or rule-making powers, or in the absence of  any law or rules, in exercise of their executive power under  Article 73 and Article 162 of the Constitution, which is  co-extensive  with  their  legislative  powers  to regulate recruitment and conditions of service, nevertheless it is  strenuously urged that this power of the Union and of the  States  which  embraces  within  itself  the  power  to regulate the  mode of  recruitment of services must yield to the supplemental,  incidental  or  consequential  directions issued by  the Central Government in relation to the setting up of  services in  a newly formed State under a law made by the Parliament  relatable to  Article 3 of the Constitution, in the  context of  reorganisation of States. To put it more precisely, it  is argued  that the  newly  formed  State  is completely divested  of its power to deal with its services. In Union  of India v. P. K. Roy & Ors.(1) this Court touched upon the  subject, but  expressed no final opinion since the question did not directly arise.      After  the   process  of  integration  of  services  is finalized in  conformity with any law made by the Parliament referred to  in Articles  2 or  3 of  the Constitution,  the supplemental,  incidental   and   consequential   provisions contained therein,  which, by  reason of  Article 4 have the effect to divest the newly formed State of its power to deal with its  services, would  no longer  operate. Such power is only kept  under suspended animation till the process of re- organisation  of   services  is   not  completed.  Once  the integration  of   services  in   a  newly  formed  State  is finalized,  there   is   no   reason   for   a   transitory, consequential or  incidental provision like s. 84 of the Act to operate in perpetuity.      For the  reasons already  stated, there is no basis for the  submission   that  the   supplemental,  incidental   or consequential provisions  which the  Parliament is competent to make  while enacting  a law under Articles 2 or 3 have an overriding effect  for all  times. On  the  plain  words  of Article 4 of the Constitution, a provision like s. 84 of the Act,  or   the  directions   issued  thereunder   are   only supplemental incidental or con- 961 sequential to  the scheme  of re-organisation  of  services, which is  consequential upon the re-organisation of a State. They cannot be given a wider effect than what is intended.      It may  incidentally be  mentioned that  on November 1, 1966,  i.e.,  on  the  appointed  day  under  s.  2(b),  the President of  India issued  an order,  in  exercise  of  the powers conferred  by the  proviso  to  Article  309  of  the Constitution directing  that the  Administrator of the Union territory of  Chandigarh shall  exercise the  power to  make rules in regard to the following matters namely:           (i)  the method  of  recruitment  to  the  Central                Civil Services and posts (Class II, Class III                and  Class   IV)  under   his  administrative                control in connection with the affairs of the                Union territory of Chandigarh;           (ii) the qualifications  necessary for appointment                to such services and posts; and           (iii)the  conditions   of   service   of   persons                appointed to  such services and posts for the                purpose of probation; confirmation, seniority                and promotion:           Provided  that   the  power   conferred  by   this

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    notification shall  not be  exercisable in  respect  of      such services  and posts as are borne on a cadre common      to two or more Union territories."      The Administrator  in exercise  of the powers conferred by the  aforesaid order of the President, framed no rules to regulate recruitment  and conditions  of service of the post of Principal, Government Central Crafts Institute for Women, Chandigarh,  nor  were  any  rules  framed  prescribing  the qualifications necessary for appointment to such posts.      It is  not obligatory  under the proviso to Article 309 to make  rules of  recruitment etc.  before a service can be constituted,  or   a  post   created  or  filed.  The  State Government has executive power in relation to all matters in respect to  which the  Legislature of the State has power to make laws.  It follows  from this  that the State Government will have  executive powers  in respect of List II, Entry 41 of the  Seventh Schedule:  ’State Public  Services’:  B.  N. Nagarajan v.  State of  Mysore.(1) There  is nothing  in the terms of  Article 309 of the Constitution which abridges the power of  the executive  to act  under Article  162  of  the Constitution without a law. The same view has been 962      taken by  this Court  in T. Cajee v. U. Jormanik Siem & Anr. (1) and Sant Ram Sharma v. State of Rajasthan & Anr.(2) The same  principle underlies Article 73 of the Constitution in relation to the executive power of the Union.      There are  thus no  rules and regulations which require the Chandigarh  Administration to  fill up by deputation the vacancy in  the post  of the  Principal, Government  Central Crafts  Institute  for  Women,  Chandigarh.  The  Chandigarh Administration had, therefore, the option to either directly recruit persons  to be  appointed to  the post through Union Public Service  Commission or to request either the State of Punjab or the State of Haryana to send the names of suitable persons whom  the Chandigarh Administration might be willing to appoint.  It must,  accordingly, he held that the post of principal of  the Institute was not a "deputation post" and, therefore, the  appointment of  respondent No.  6, Smt. Prem Lata Dewan by the Chandigarh Administration to that post, by direct recruitment through the Commission was not invalid.      Even assuming that the directions issued by the Central Government under  s. 84  of the  Act  were  binding  on  the Chandigarh Administration,  it is  clear that  there  is  no breach thereof.  From the correspondence that passed between the Chandigarh Administration and the Government of Haryana, there  can   be  no   doubt  whatever  that  the  Chandigarh Administration made their utmost endeavour to get a suitable person on  deputation for  appointment as  Principal of  the Institute. A  long correspondence  on the subject ensued and eventually the  Government of  Haryana by  its letter  dated July 7, 1974, informed the Chandigarh Administration that it was not  possible to relieve any woman officers in the grade of Rs.  350-900  from  the  Industrial  Training  Department except that  of Smt.  Champa  Malhotra  who  was  facing  an inquiry, with a request that the appellant should instead be appointed. The  Government of Haryana was obviously wrong in insisting upon the appointment of an officer in the scale of Rs. 300-500. This could not obviously be done as it would be contrary to  the instructions  of the  Government of  India, Ministry of  Home Affairs  dated August  16,  1971  that  an officer cannot  be appointed  on deputation  to a  post that carried a  higher grade  of pay  in the  Union territory  of Chandigarh. Thus,  the post of Principal in the pay scale of Rs. 350-900  could only  be filled by a person on deputation who manned a post

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963 the scale of pay of which was equivalent to the scale of pay of the Principal i.e. Rs. 350-900.      It appears  that the entire question was re-examined by the  Chandigarh   Administration.  The  Director,  Technical Education by  his letter  dated October 9, 1974 addressed to the Home  Secretary, Chandigarh  Administration stated  that the qualifications  prescribed by the Government of India in the Training  Manual for  the  post  of  Principal  in  such institutions were as under:           1.   Degree  or   its  equivalent   in  Mechanical                Engineering or Electrical Engineering will be                preferred.           2.   In  the  case  of  degree  holder,  practical                experience of  one year  in a reputed concern                or in a training institute will be desirable.           3.   In the  case of  Diploma  holders,  practical                experience of 5 years in a reputed concern or                in a training institute will be desirable. Further, he  mentioned that there was no institution similar to  the  Government  Central  Crafts  Institute  for  Women, Chandigarh either  in the State of Punjab or in the State of Haryana. There  were only  Government Industrial Schools for girls which  were still  in the  process of being developed. These institutions were headed by Head-Mistresses Principals in the  non-gazetted scale  of Rs.  300-500.  He  therefore, rightly pointed out that the posts of Assistant Directresses in the  States of  Punjab and Haryana were equivalent to the post of Principal of the Institute, as they also carried the scale of  Rs. 350-900  and that  throughout  the  Chandigarh Administration  had   been  appointing   Principal  of   the Institute only from the cadre of Assistant Directresses.      In response  to Government  of Haryana’s  letter  dated September  27/30,   1974,  the   Chandigarh   Administration accordingly wrote  on October  11/14, 1974  giving  detailed reasons why  it was  not possible  to take  the appellant on deputation as  Principal because  on her  reversion from her current  assignment   with  the   Delhi   Small   Industries Development Corporation she would be posted as Head Mistress in the  scale of  Rs.  300-500  whereas  the  scale  of  the Principal’s post  at the  Institute was Rs. 350-900 inasmuch as the  Government of  India’s instructions  forbid giving a deputationist a  scale of  pay  which  she  is  not  already holding in  her parent  State and also because it was of the opinion that  looking to  her past  performance as Principal during her  short stay, it was considered that she would not be a suitable person 964 to be  appointed as Principal. The Chandigarh Administration also pointed  out that they were still prepared to take back Smt. Champa  Malhotra as  Principal of the Institute despite the inquiry  against her.  But, the  Government  of  Haryana maintained complete  silence. It  disdained from replying to this letter or from relieving Smt. Champa Malhotra.      It would,  therefore, appear  that right  from March 7, 1974 till August 14, 1974 when the Chandigarh Administration forwarded requisition to the Union Public Service Commission to advertise  the post  for  direct  recruitment,  i.e.  for nearly 6 months, the Government of Haryana took no action in the matter.  During this  period, it  just persisted  in its stand in  forwarding a panel of names of officers carried on the scale  of Rs.  300-500 and  when it  was fully  apprised about  the   true   legal   position   by   the   Chandigarh Administration expressing their inability to take an officer working in  a lower  grade or  to take back the appellant as

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Principal of  the Institute, it still insisted in sponsoring her name,  although this could not be done. This attitude of the   Government   of   Haryana   was   just   inexplicable. Nevertheless, the  Chandigarh Administration by their letter dated August  20, 1974,  i.e., just  within six  days of the requisition did  what was expected of them and duly informed the Government  of Haryana  of their  decision to  recruit a Principal through  the Commission  and requested that it may direct the  eligible officers  from Haryana to apply for the post. In  response, the  Government of Haryana by its letter dated September  27/30, 1974  registered a protest staking a claim as  if the  post of  Principal of  the Institute was a Haryana-quota post,  i.e., it  could be filled in only by an officer on deputation from the State of Haryana. In spite of repeated letters  sent by the Chandigarh Administration, the Government of  Punjab also  did not  send up  the name  of a suitable officer.  In view of these circumstances, it cannot be asserted  that there  was any  breach of the instructions issued by  the Central Government under s. 84 of the Act, if at all they were applicable.      Viewed from any angle, we must hold that the Chandigarh Administration  was   within  their  rights  in  making  the appointment to  the post  of Principal,  Government  Central Crafts Institute for Women, Chandigarh by direct recruitment through  the  Union  Public  Service  Commission.  Thus  the appointment of  respondent No.  6, Smt.  Prem Lata  Dewan as Principal of the Institute was not invalid as being contrary to the  directions issued by the Central Government under s. 84 of  the Act  inasmuch as  the said  directions  were  not applicable and  also because there was no breach thereof, if at all they applied. 965      That leads  us to  the other  branch of the appellant’s contention, and  the question  arises whether in the case of this  particular   post  could   the  Union  Public  Service Commission have  relaxed the  essential qualifications ? The appellant has  nowhere alleged in the writ petition that the Union Public  Service Commission  had no  authority to relax the essential qualifications. On the contrary, she averts in para 21 thereof:           "Though the  Union Public  Service Commission  has      the power  of relaxing  the qualifications but the said      power can not be exercised arbitrarily." In view  of this  admission, she cannot be heard to say that the Union  Public Service  Commission had  not  such  power. Since however  the point  was argued  at length, we think it necessary to deal with it.      It is undisputed that there is no statute or regulation having the  force of  law, by  which any  qualifications are prescribed for  the post  of Principal of the Institute. Nor has the  Administrator framed  any  rules  to  regulate  the method of  recruitment to  such post,  or  laying  down  the qualifications necessary  for appointment to the post or the conditions of  service attached  to the post. The Chandigarh Administration accordingly  while sending up its requisition dated  August   14,  1974   to  the   Union  Public  Service Commission,  suggested   certain  essential   and  desirable qualifications,   keeping   in   view   the   qualifications prescribed by the Government of India in the Training Manual quoted above. The nature and duties of the post of Principal of the Institute are primarily administrative in nature, but the qualifications  prescribed  were,  however,  essentially technical. The  Commission, therefore,  by its  letter dated September  16,   1974  returned   the  requisition   to  the Chandigarh Administration,  with the  observation that  they

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should lay  down the  qualifications  keeping  in  view  the nature and duties of the post. The Chandigarh Administration accordingly  on   January  2/4,   1975  forwarded   a  fresh requisition revising  the qualifications  for the  post i.e, including  ’Administrative   Experience  for  three  years’. Thereafter, the  Commission on  February 1,  1975 advertised the post  with the  essential qualifications  as  suggested, with a relaxation clause. It will, therefore, appear that in the  instant   case,  the   essential  qualifications   were prescribed by  the Chandigarh Administration in consultation with the  Commission and also that the Commission had in the advertisement issued,  reserved to itself the power to relax the qualifications  in case  of suitable  candidates.  Where qualifications for  eligibility are not prescribed by rules, broad decisions as to the method of recruitment are taken in consultation with the Commission. This require- 966 ment was  fulfilled in  this particular case. The Chandigarh Administration was  fully  aware  that  the  Commission  had reserved  to   itself  the  power  to  relax  the  essential qualifications. The  Commission, therefore, acted within its powers in  relaxing the  qualifications  of  the  candidates called for interview. In fact, the Chandigarh Administration ratified  the   action  of  the  Commission  in  making  the appointment. The  appointment of respondent No. 6, Smt. Prem Lata Dewan  cannot, therefore,  be challenged  on the ground that either  the  Commission  had  no  power  to  relax  the qualifications or  that she  did not  possesss  the  minimum qualifications prescribed for the post.      It is,  however, strenuously  urged on  the strength of the decision  of the  Madhya Pradesh High Court in Omprakash v. The  State of  Madhya Pradesh & Anr.(1) that the Union or the  State   Public  Service  Commissions  cannot  select  a candidate  who   does   not   possess   the   qualifications prescribed. We  do not see how this decision is of any avail to the  appellant. On  the contrary,  while laying down that the Government  has to fill up posts by appointing those who are selected  by the  Public  Service  Commission  and  must adhere to  the order of merit in the list of candidates sent by the Commission, it observed:           "It is  entirely in  the wisdom  and discretion of      the Commission what mode or method it would adopt. That      is subject  to  statutory  provisions,  if  any.  Where      minimum qualifications for eligiblity are prescribed by      a statute  or by  the Government,  the  Public  Service      Commission cannot  select  a  candidate  who  does  not      possess  those   qualifications.  However,  the  Public      Service Commission  is free  to screen  the applicants,      classify them  in various categories according to their      plus qualifications  and/or experience,  and  call  for      interyiew only  those candidates  who fall within those      categories, eliminating others who do not satisfy these      criteria." This decision,  in our  opinion, instead  of supporting  the appellant goes against her.      We are  of the  view that the decision of this Court in Union of  India &  Ors. v. S. B. Kohli & Anr.(2) and that of the Bombay High Court in Maharashtra State Electricity Board Engineers’  Association,   Nagpur   v.   Maharashtra   State Electricity Board(3)  are both  distinguishable on facts. In S.  B.   Kholi’s  case,   this  Court   was  concerned  with interpretation of  items 2 and 3 of Annexure I to the Second Schedule 967 of the Central Health Service Rules, 1963, as amended, which

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prescribed  "a   post-graduate  degree   in  the   concerned speciality", and  the question was whether the qualification of F.R.C.  5 satisfied  the qualification prescribed for the post of  Professor of  Orthopaedic Surgery. It was held that the Regulations  framed by the Medical Council required that in addition  to the  general F.R.C. 5, a Surgeon must have a diploma in  Orthopaedics before  he  could  be  appointed  a Professor, Reader  or Lecturer  in Orthopaedics. It was said that to hold otherwise, would mean that a person who has the qualification of  F.R.C. 5 would be deemed to be specialised in Orthopaedics, without his having any such qualification.      In the  Maharashtra  State  Electricity  Board’s  case, (supra) the  Board, which  is a  statutory Corporation, made the Maharashtra  State Electricity Board (Classification and Recruitment) Regulations,  1961, in  exercise of  its powers under s.  79 of the Electricity Supply Act, 1948. Regulation 8   invests   the   power   of   modification   of   minimum qualifications  or  exeperience  required  for  the  various categories of  posts  only  in  the  Board.  Regulation  21, however,  confers   power  on  the  Selection  Committee  to recommend, in  deserving cases,  relaxation of the age limit and educational or other qualifications. The Board issued an advertisement  inviting   applications  for   the  post   of Executive  Engineer   (E&M).   The   advertisement   nowhere mentioned that  the minimum  requirements of  qualifications and experience  were liable  to be relaxed. This resulted in denial equal  opportunity to the departmental candidates who could have  applied when  the post was advertised, if it was known that the qualifications and experience, as advertised, were not  rigid and  liable to  relaxation. The  High  Court accordingly struck  down the  direct recruitment of a person to  the   post  of   Executive  Engineer   (E&M)  since  the advertisement   effectively   prevented   the   departmental candidates from  applying for the post, because their period of experience  was less  than the  advertised  one,  holding that, in  effect, this  was tantamount  to a denial of equal opportunity to  them in  violation of  Article 16(1). In our view, the decision turned on its own facts.      In the  present case, as already pointed out, there was no statute  or regulation  having the  force of law by which any  qualifications   were  prescribed   for  the   post  of Principal. There  were also  no  rules  framed  to  regulate recruitment and  conditions of service of the post under the proviso to  Article 309  of the  Constitution.  It  was  the exclusive power  of the  Chandigarh  Administration  in  the absence of  any law  or rules,  to prescribe  the  essential qualifications for direct recruitment to 968 the post, and accordingly the qualifications were prescribed in consultation  with the  Commission. The  Commission while advertising the  post, had  reserved to  itself the power to relax the  qualifications in deserving cases. It is not that the  Commission   had   relaxed   one   of   the   essential qualifications  viz.  qualification  No.  (ii)  ’Diploma  in Technology  of   three  years  duration’,  in  the  case  of respondent No.  6 alone.  There were  three other candidates who  were   also  interviewed  in  relaxation  of  essential qualifications Nos.  (ii) and  (iv). The affidavit of Dr. A. C. Mathai,  Under Secretary  in  the  Union  Public  Service Commission shows  that in  the case of respondent No. 6, the Commission relaxed  essential  qualification  No.  (ii),  as under :           "Requirement of  Diploma of Industrial Training of      two years’ duration". It is  noteworthy that  essential qualification  No.  2,  as

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advertised  was  ’Diploma  in  Technology  of  three  years’ duration or  Diploma of  Industrial Training  of two  years’ duration with  one year’s  teachers training/C.T.I.’ Indeed, respondent No. 6 had essential qualification No. 2. The word ’or’ made  the two clauses disjunctive, and they were in the alternative. Respondent  No. 6  besides being  a graduate in Arts also  held a  three years’ Diploma in Home Science from Lady Irwin College, Delhi.      It is  a matter  of common knowledge that Home Science, in some  countries called  ’domestic economics’ or ’domestic science’, is  a broad  field  of  learning  integrating  the subject-matters of  several disciplines  to form  a body  of knowledge focussed  on the  problems of  the home  and their living. It  is concerned  with all  phases of  home life and includes the  following subjects  :  child  development  and family relationships;  clothing, textiles  and related arts; family economics  and home  management; food  and nutrition; housing and house management. Shorter Oxford Dictionary, 3rd ed., Vol. II, p. 2253 gives the meaning of ’Technology’ as :           "a discourse  or treatise  on an  art or arts; the      terminology  of   a  particular  art  or  subject;  the      scientific study of children." In Webster’s New International Dictionary, 2nd ed., vol. IV, p. 2590  apart from  giving it  the meaning  of  "industrial science", also conveys to it the meaning :           "any  science   or  systematic  knowledge  of  the      industrial arts." 969 The Random House Dictionary of the English Language, p. 1349 gives some of the meanings of the term as:           "the application  of knowledge for practical ends,      as in  a particular field : educational technology; the      terminology  of   an  art,   science,  etc.;  technical      nomenclature." Though in  its primary  sense it  is  true  that  the  word, ’Technology’ involves a technical process, invention, method of  the   like,  in  the  broader  sense  it  embraces  non- engineering related  curricula  pertaining  to  applied  and graphic arts,  education, health-care,  nutrition, etc. i.e. it includes  technique or  professional skill  in any of the subjects  enumerated   above.  The  expression  ’Diploma  in Technology’ is,  therefore, wide enough to include a Diploma in Home Science.      In S. B. Kohli’s case (supra) this Court observed:           "This argument  was based  on the provision in the      Annexure I to the Second Schedule which states that the      qualifications are relaxable at Commission’s discretion      in the  case of  candidates otherwise  well  qualified.      That is  no doubt  so. But the discretion is given only      to the  Union Public  Service Commission  in  cases  of      direct  recruitment   and  not   to  the   Departmental      Promotion Committee  in cases  of promotion. As that is      the intent of the law it has to be given effect to." It was then observed:           "Moreover, the  Union  Public  Service  Commission      when  it   proceeds  to   fill  up  a  post  by  direct      recruitment does  so by  calling  for  applications  by      extensive advertisements  and it is but reasonable that      if on  a consideration  of all  those  applications  it      finds   that    persons   possessing   the   prescribed      qualifications are  not available but there are persons      otherwise well qualified, they may be selected." The Union  Public Service Commission was, therefore, perhaps not wrong  in selecting  respondent  No.  6  as  a  suitable candidate for the post.

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    The next  question for  consideration is  whether there was bias.  We are unable to hold from the material on record that there  was any  bias on  the part  of Dr.  O. S. Sehgal Director,  Technical   Education,  Chandigarh   or  that  he influenced the  members of  the Selection  Committee in  any manner, so  as to vitiate the selection of respondent No. 6. In our  view, the  allegations in  the writ petition are not sufficient to constitute an averment of malafides or bias on the part of 970 either  the   Chandigarh  Administration  or  in  particular against  Dr.   O.  S.   Sehgal  sufficient  to  vitiate  the appointment of  respondent No.  6. No  malafides as such are imputed against  the Union  Public Service  Commission.  The Court  would   be  justified   in  refusing   to  carry   on investigation into  allegations of  malafides, if  necessary particulars of  the charge making out a prima facie case are not given  in the  writ petition. The burden of establishing malafides lies very heavily on the person who alleges.      The Division  Bench  has  pointed  out,  and  we  think rightly so,  that the principles laid down in Kraipak’s case (supra) were  not applicable  in the facts and circumstances of the present case. It rightly observes that no question of malafides or  bias arises  as it  is clear  from the  letter written by  Dr. O.  S. Sehgal  dated October  9, 1974 to the Home Secretary, Chandigarh Administration wherein he had not said a  word against  the appellant. All that he said in his capacity  as  Director,  Technical  Education  was  that  on account of  the failure  to appoint  a Principal  for  quite sometime the  Institute was  in a  bad condition,  and  that although he  had given charge to the Vice Principal, she did not prove  effective,  suggesting  that  the  Government  of Haryana should  be requested  to lend  the services  of Smt. Champa Malhotra  as he  was prepared to take her back as she had worked  for a  long time as Principal, in order that the work of  the Institute should not suffer. The whole tenor of the document shows that it was written in the best interests of  the   institution.  He  as  the  Director  of  Technical Education was  solely responsible for the due administration of the  Institute. The  Division Bench has also rightly held that no  inference  of  malafides  arises  from  the  letter written by  Sri  B.  S.  Ojha,  Home  Secretary,  Chandigarh Administration dated October 11/14, 1974.      All that  is said  is that  Dr. O. S. Sehgal, Director, Technical Education,  ‘for reasons  best known  to him’, did not went to appoint the appellant and, therefore, ‘must have played an  important part  at the  meeting of  the Selection Committee’ and  was ‘able to prevail upon the other members’ to select  the respondent  No. 6  with a  view so  that  the appellant who  was better  qualified should not be selected. The  appellant   further  averred   that  she   had  in  her representation dated  May 1,  1975, alleged  that after  the interview she  had overheard Dr. O. S. Sehgal talking to the third Lady  member, saying  as to  ‘how they could take this Lady’,  meaning  the  appellant,  ‘as  the  Principal’  and, therefore, she felt that she was a victim of the machination of Dr.  Sehgal.There is  nothing on  record to  substantiate such general  and vague  allegations of  the appellant as to malafides or bias on the part of Dr. 971 Sehgal. Dr. Sehgal in his counter-affidavit has controverted the insinuations  made against  him. Not  a word was said at the hearing  about the  alleged utterance attributed to him. Nothing was brought to our notice to show ill-will or malice on his  part. The  entire arguments are built around the two

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letters, the  one written  by Dr. O. S. Sehgal dated October 9, 1974  to the  Home Secretary,  and the other addressed by Sri B. S. Ojha, Home Secretary, Chandigarh Administration to Sri S.  N. Bhanot,  Secretary to  the Government of Haryana, Industrial Training Department.      Dr. A. C. Mathai, Under Secretary, Union Public Service Commission has  on  affidavit  stated  that  the  Commission relaxsed some of the essential qualifications after applying its own mind, uninfluenced by any extraneous considerations, and denied,  in particular,  that the Commission was advised by  any   extraneous  authority.   Dr.  O.   S.  Sehgal   as Representative  of   the  Chandigarh     Administration  was associated only as an Expert Member and his only duty was to apprise the  Chairman of  the Selection  Committee as to the nature of  duties to be performed by the selected candidate. There  was   nothing  wrong  in  the  Union  Public  Service Commission taking  such expert  advice. We are informed that the Selection  Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits  and   de-merits  placed  her  as  No.  2  While  the respondent No.  6 was  placed as  No. 1.  This circumstances clearly  shows  that  the  Selection  Committee  was  wholly unifluenced by  any other  consideration except merit. In S. Pratap Singh  v. The State of Punjab(1) this Court laid down that he  who seeks  to invalidate  or nullify  any  Act  for Order, must  establish the  charge of bad faith and abuse or misuse by  Government of  its powers.  The allegations which are of  a personal nature are not borne out at all. Further, the allegations  are wholly  irrelevant and  even  if  true, would not  afford a  basis upon which the appellant would be entitled to  any relife. On the appellant’s own showing, Dr. O. S.  Sehgal  as  Dircetor,  Technical  Education  recorded appreciation of  her  as  Principal  of  the  Institute.This clearly shows that he had no particular animus against her.      Furthermore, as  the Division  Bench  observes,  merely because  Sri   B.  S.   Ojhas  Home   Secretary,  Chandigarh Adminisration addressed  a  letter  to  Sri  S.  N.  Bhanot, Secretary to  the Government of Haryana, Industrial Training Department  dated   October  11/14,   1974  expressing   his unwillingness to  take the  appellant on  deputation because she was  not holding  a substantive rank in the pay scale of Rs. 350-900, 972 contrary to  the instructions of the Government of India and also because the Chandigarh Administration felt that looking to her  past performance as Principal during her short stay, she was  not a suitable person to be appointed as Principal, does not  necessarily give  rise to  an inference of bias on the part  of the  Chandigarh Administration  or  Dr.  O.  S. Sehgal, Director  of Technical  Education.  These  were  all matters   within    the   competence   of   the   Chandigarh Administration and it was for them to decide the suitability of candidate  for appointment.  There is  nothing to suggest that the  reasons given  by the  Home Secretary were not his own reasons  based upon  his own information. It is needless to stress  that the  Home Secretary  to the  Government of a State holds  a very  sensitive position  and  is  the  nerve centre of  the  administration  fully  conversant  with  the realities. For aught we know, the Home Secretary had his own sources of information.      In  any  event,  the  appellant  cannot  approbate  and reprobate. She had willingly, of her own accord, and without any persuasion  by anyone, applied for the post, in response to the  advertisement issued  by the  Union  Public  Service Commission for  direct recruitment. She, therefore, took her

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chance and  simply because  the Selection  Committee did not find her  suitable for  appointment, she  cannot be heard to say that  the  selection  of  respondent  No.  6  by  direct recruitment through  the Commission  was invalid,  as  being contrary to  the directions issued by the Central Government under s.  84 of  the Act or that the Commission had exceeded its powers,  by usurping  the functions  of  the  Chandigarh Administration, in  relaxing the essential qualifications of the candidates called for interview or that respondent No. 6 was not  eligible for  appointment inasmuch  as she  did not possess the  requisite essential  qualifications. She  fully know  that   under  the  terms  of  the  advertisement,  the Commission had  reserved to itself the power to relax any of the essential  qualifications. With this full knowledge, she applied for  the post  and she appeared at the interview. We are clearly  of the  opinion that the appellant is precluded from urging these grounds.      Lastly, the  contention of  respondent No. 7, Smt. Usha Wadhwa  that   the  failure  of  the  Union  Public  Service Commission to  re-advertise  the  post  prevented  her  from applying for  the post and thereby there was denial of equal opportunity to  her in  violation of  Article 16(1)  can  be easily disposed  of.  It  is  true  that  no  relaxation  in qualifications can  be made  when an  advertisement has duly been issued inviting applications and persons posscssing the qualifications advertised,  as prescribed  by the rules, are available  and  have  submitted  their  applications.  If  a relaxation has to be made, there is a duty 973 cast to re-advertise the post. In the instant case, however, the advertisement  itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application, if  she  felt  that  she  was  better,  if  not equally, qualified  as  respondent  No.  6.  The  contention appears to be an afterthought and must be rejected.      In conclusion,  we cannot  but express our sympathy for the appellant.  This unfortunately is a situation of her own making.  The   Courts  can  only  act  where  there  is  any infringement  of   a  right  but  not  merely  on  equitable considerations.  We   wish  to  mentions  that  the  counsel appearing for  the  Chandigarh  Administration  very  fairly suggested that  if the Government of Haryana were to forward the name  of an  officer immediately senior to the appellant in the cadre of HeadMistresses, who may be holding a post in the pay  scale of  Rs. 350-900 for appointment on deputation in an equivalent post, such officer could be absorbed by the Chandigarh Administration  in the  pay scale of Rs. 350-900. That being  so, the  applliant could still be saved from the predicament of  being posted  as a  Head-Mistress in the pay scale of  Rs. 300-500  on her reversion to her parent State. This is,  however, a  matter for  the Haryana  Government to decide.      The result,  therefore, is that the appeal fails and is dismissed. There shall be no order as to costs. P.B.R.                                      Appeal dismissed 974