# JAi NARAIN MISRA v. STATE OF BIHAR ~ ORS

- **Citation:** [1971] 2 S.C.R. 392
- **Court:** Supreme Court of India
- **Decided:** 1970-09-15
- **Case number:** Civil Appeal No. 477 of 1970
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jai-narain-misra-v-state-of-bihar-ors-5327
- **Pages:** 5

## Headnote

Civil cservice-Selection Post-Director. (If/ Agriculture--Method of
filling up.
.
The Director of Agriculture in the respondent.state having retired tho
State Government' wrote to the Public Service Commission requesting them
to select one of the ! 4 officers shown in the list accompanying the letter
· C
for being promoted as Director. The letter stated that the question of
senill'rity among those officers was still under consideration and that the
list was not arranged in accordance with seniority .. The pay scale of some
of the officers in the list was Rs. 900 to Rs. 1,400 and others Rs. 1,260
to Rs. 1,700.
The selection was to be on the basis of merit and suitability.
After examining the records, the Commission recommended the
name of the appellant. The third respondent filed a writ petition and the
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High Court held that the third respondent was senior to the appellant
and had greater merit. The pay scale of both the appellant and the third
respondent was Rs. 1,200 to Rs. 1,700.
In appeal to this Court,
HELD·. (l) The post of Director of Agriculture is a selection !'OSI
and an ex-cadre post.
Selection to it is made solely on the basis c,i merit
and the question of seniority was not Televant. It is for the State Government to select the most suitable officer and for discharging that responsibili~y. it was open to the Government to seek the assistance of the Public
Service Commission. The use of the word promoted in the letter was inappropriate· but the nature of the post cannot be changed by the Government using that word. Therefore, the High Court was not justified in going
into the question df seniority, especially when there w~s no complaint of
m~la {ides either on the part of the Government or the Commission.
[393 H; 394 B-C, E-F]
(2) Rule 16 of the Rules regulating the Bihar and Orissa Agricultural
Services Class I promulgated on April· 11, !935 is not superseded by the
1945 Rules which apply to Bihar Agricultural Service
Class I,
Bihar
Agricultural Service Class II, General Provincial Service and special pools
outside these cadres.
The 1935 Rules do not come in the way of the:
Government· making its selection to the post of Director, and R. 12 of
1945-Rules is not applicable. [395 F. G; 396 BJ
CML APPELLATE JURISDICTION : Civil Appeal No. 477 of
1970.
Appeal from the judgment and order dated February 12, 1970
of the Patna High Court in Civil Writ Jurisdiction Case No. 1067
of .1969.
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J. N. MISHRA V. B!HAR (Hegde, !.)
393'
S. V. Gupte and U. P. Singh, for the appellant.
· H R. Gokha/e and R. C. Prasad, for respondent Nos. I
and 2.
D. P. Singh. for respondent No. 3.

## Text

392
. ,:
JAi NARAIN MISRA
A
v.
STATE OF BIHAR ~ ORS.
September 15, 1970
B
(J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
Civil cservice-Selection Post-Director. (If/ Agriculture--Method of
filling up.
.
The Director of Agriculture in the respondent.state having retired tho
State Government' wrote to the Public Service Commission requesting them
to select one of the ! 4 officers shown in the list accompanying the letter
· C
for being promoted as Director. The letter stated that the question of
senill'rity among those officers was still under consideration and that the
list was not arranged in accordance with seniority .. The pay scale of some
of the officers in the list was Rs. 900 to Rs. 1,400 and others Rs. 1,260
to Rs. 1,700.
The selection was to be on the basis of merit and suitability.
After examining the records, the Commission recommended the
name of the appellant. The third respondent filed a writ petition and the
D
High Court held that the third respondent was senior to the appellant
and had greater merit. The pay scale of both the appellant and the third
respondent was Rs. 1,200 to Rs. 1,700.
In appeal to this Court,
HELD·. (l) The post of Director of Agriculture is a selection !'OSI
and an ex-cadre post.
Selection to it is made solely on the basis c,i merit
and the question of seniority was not Televant. It is for the State Government to select the most suitable officer and for discharging that responsibili~y. it was open to the Government to seek the assistance of the Public
Service Commission. The use of the word promoted in the letter was inappropriate· but the nature of the post cannot be changed by the Government using that word. Therefore, the High Court was not justified in going
into the question df seniority, especially when there w~s no complaint of
m~la {ides either on the part of the Government or the Commission.
[393 H; 394 B-C, E-F]
(2) Rule 16 of the Rules regulating the Bihar and Orissa Agricultural
Services Class I promulgated on April· 11, !935 is not superseded by the
1945 Rules which apply to Bihar Agricultural Service
Class I,
Bihar
Agricultural Service Class II, General Provincial Service and special pools
outside these cadres.
The 1935 Rules do not come in the way of the:
Government· making its selection to the post of Director, and R. 12 of
1945-Rules is not applicable. [395 F. G; 396 BJ
CML APPELLATE JURISDICTION : Civil Appeal No. 477 of
1970.
Appeal from the judgment and order dated February 12, 1970
of the Patna High Court in Civil Writ Jurisdiction Case No. 1067
of .1969.
E
G
H
A
B
c
D
F
F
G
H
J. N. MISHRA V. B!HAR (Hegde, !.)
393'
S. V. Gupte and U. P. Singh, for the appellant.
· H R. Gokha/e and R. C. Prasad, for respondent Nos. I
and 2.
D. P. Singh. for respondent No. 3.
The Judgment of the Court was delivered by
Hegde, J.
The appellant and the third respondent are serving
in the Agricultural Department of the Bihar Govennment.
Till
February 1968 Mr. B. N. Sinha was the Director of the Agriculture in that State.
He retired in February of that year.
On
November 25 1967 the State Govenunent of Bihar wrote to the
Public Servic~ Com~i~ion requesting the Commission to select
one of the fourteen officers shown in the list accompanying that
letter tor being promoted as Director of Agriculturi:i.
The pay
scale of some of those officers was Rs.. 900-1400 adld others
Rs. 1200-1700. ·In that letter the Government stated that the
question of seniority of those officers is still under consideration
and the list sent was not arqmged in accordance with seniority.
The Commission wrote to the Government on April 29, 1968 asking the Government to determine the seniority of those officers
before it is asked to recommend one of them for being appointed
as Director of Agriculture.
The Government wrote back to the
Commission on September 23, 1969 stating that the question of
seniority of those officers cannot be easily settled as there were
some complications and the Commission should proceed to select
one of the officers mentioned in the list solely on the basis ol merit
and suitability.
After examininir the records of all the officers concerned·, the
Commission recommended the name of the appellant. Immediately
thereafter the third respondent approached the High Court with a
petition under Art. 226 of the Constitution praying that the recommendation of the Commission may be quashed and the Government· asked to make the appointment in accordance with the rules.
The High Court came to the conclusion that the third respOtlldent
!s senior to the appellant and has greater merit than the appellant.
Hence under the rules he was entitled to be promoted.
This is an
appeal, by certificate against that discussion.
Thereafter the Government appointed the third respondent to officiate as Director of
Agriculture.
It appears that the third respondent is superannuated
on the 1st of this month but he has been given a month's exiension.
lt w~s not disputed before us that the oost of Director of Agriculture is a selection oost.
Therefore the question of seniority
was not relevant in making the selection.
It is for the State Government to select such officer as it considers as most suitable .. In
this view we think the High Court ;.vas not justified in going intc; ·
394
SUPREME COURT REPORTS
[1971 J 2 S.C.R.
the question of seniority nor will we be justified in going .into that
{)Uestion.
It may be noted that at the time the .Commission made
this recommendation the pay scale of both the appellant as wel! as
the third respondent was Rs. 1200-1700.
So far as the question of ·suitability is concerned, the decision entirely rested with the Government.
In other words the
·Government is the sole judge to d.ecide as to who is the most suitable candidate for being appoiqled as the Director of Agriculture .
. For discharging ihat responsibility it was open to the 'Government
to seek the assist3J!lce of the Public Service Commission.
In our
.judgment the High Court was not justified in calling for the records
·Of the Public Service Commission and going through the notings
made by various officers in the Commission as welJ as the corre'spondence that passed between the Commission and the Gov~rn
meht.
The High Court overlooked the fact that the Government
. sought. the assistance of the Commission and not that of the High
Court for finding out the most suitable candidate.
In this case
there was no complaint of ma/a {ides either on the part of the Government or the Commission. That being so the interference of the
High Court i111 the matter of selection madC by the Government was
11ot called for.
The post of Director of Agriculture is admittedly an ex-cadre
post.
The selection to that post is made solely on the basis of
merit. Merely because the Government in its letter to the Commission used the word "promotion", the High Court should not
have treated the case as one of "promotion".
The word "prdmotion" used in the Government's letter was an inappropriate word.
What the Govenrlment really meant was selection of a person to be
posted as the Director.
The nature of the post cannot be changed
by the Government's using the word
"promotion".
The post
remains to be a selection post.
The High Court was also not right in opining that the recommendation made by the Commission was not i1n accordance with
the rules.
The two rules referred to by the High Court are (1)
Rules regulating the Bihar and Orissa Agricultural Service, Class I
l'romulgated on April 11, 1935 and (2) The Rules regulating the
recruitment to Bihar Agricultural Service Class I, the Bihar Agricultural Service Class II, the Genera] Provincial Service and special
posts outside these cadres promulgated on July 9, 1945.
The
High Court has come to the conclusion that 1935 rules were by
implication though not specifically repealed by the 1945 rules.
1935 rules make it clear both irn its preamble as well as by the
definition of the word ''·The service" that those rules do not apply
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J. N. MISHRA V. BIHAR (Hegde, I.)
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to the appointment to the post of Director of Agriculture. Fur!her
Rule 16 of those rules reads :
"The post of the Director of Agriculture shall remain
outside the cadre of the service, but subject to the provision of rule 17 below it may be filled at the discretion
of the local government by a member of the service."
Rule 17 says :
"None but a member of the Indian Agricultural
Servic~ borne on the cadre of the Bihar and Orissa shall
be appointed to the post of the Director of Agriculture.
so long as any such member is available for appointment
to the post and who has not been held by the Government of Bihar and Orissa to be permanently unfit to
hold such post,
Provided that whenever the local Government consider that no officer of the Indian Agricultural Service
borne on the cadre of Bihar and Orissa is fit for the post
of the Director, the assistance of the Government
of
India shall be sought with a view to procuring a suitable
selection from among the membe.rs of the Indian Agricultural Service in other provinces before any other
person is appointed to the post."
From a reading of rules 16 and 17 of the 1935 rules, it is clear
that the 1935 rules did not come in the way of the Government
rna]>ing its selection.
Now coming to the 1945 rules, it is clear from its preamble
that those ru!P.s apply only to ( 1) the Bihar Agricultural Service
Class 1; (2) the Bihar Agricultural Service Class II and (3) the
General Provincial Service and special posts outside these cadres.
The refe1ence to the posts outside the. cadres of Class I and Class II
Services. it was contended on behalf of the appellant as we!J as on
behalf of the State Government refers to posts in Class I and Class
II in addition to cadre posts and not to selection posts.
It is not
nercssary for our present purpose to decide that question.
It is
clear from rule 12 of the 1945 rules that these rules do not apply
·in the matter of filling up the post of the Director of Agriculture.
That rule reads :
"Whenever the Governor decides that a vacancy shal!
be filled by promotion or transfer of an officer already
in the service of Government. a reference shall be made
to the Commission to advise on such selection.
The
Commission shal! be supplied with the records of the
officer nominated for promotion by the Director of Agri-
/
396'
SUPREME COURT REPORTS
[197 I J c S.C.R.
culture, together with the records of officers, if any, who
are senior to the nominated officer."
We are unable to visualise that any service rule could h.ivc
provided for the nomination of his successor by an ollicer whc· ;,
aboyt to be superannuated.
In our judgment rule 16 of the 1 y:;:;
rules is not s;iperseded by the 194) rules.
In the result this appeal is allowed and the writ petition dis·
missed. Taking into consideration the fact that the third respondent is already superannuated we make no order as to costs in this
appeal.
V.P.S.
A ppea/ allowed.
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