# R. N. NANJUNDAPPA v. T. THIMMIAH & ANR

- **Citation:** [1972] 2 S.C.R. 799
- **Court:** Supreme Court of India
- **Decided:** 1971-12-08
- **Bench:** A. N .. Ray, D. G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-n-nanjundappa-v-t-thimmiah-anr-5549
- **Pages:** 17

## Headnote

Civil Service-State Rules providing for 'methods' of recruitment by
prct11olion,
selection,
or
co1npeti1ive
examination-Appointment of
Ciass Ill Officer to Clc.ss I post, i11 the absence of 'rules' of recruitmentVali.lity-lf could be treated as appointment of 'local candidate'.
Constitution of India, 1950, A.rts. 14, 16, 162 and 309-Appointment
ij violaJive of Ari.. 14 and 16-Scope of Arts. 162 and 309.
In 1957, the respondent, who was working as an Assistant Geologiat
in Class III Service, was sent on deputation as Vice-Principal of. the
School of Min~s, in the State
From 15th February, 1958, he was also
doing the duties of the Principal.
In September, 1958, the State Govemn.,nt appointed him as officiating Principal but on 3rd April 1959 modi·
lied the order and appointed him as temporary Officiating Principal with
effect from the 15th February, 1958. On 9th January, 1967, the Mysore
Education Department Service Rules were published by which appointment of the r.espondent, with effect from 15th February, 1958 was regularised.
The appellant, who was the Principal of a Government Polyt<elmic. and was in Class 11 Service. contended that the respondent's
appointment was in breach of the Mysore State Civil Ser.ices (General
Recruitment) Rules, 1957, and the Mysore Education Department Services
(Technical Education Depart°"m Recruitment) Rules, 1964, and offended
Arts. \~ and 16 of the Constitution.
-
The High Court held that the respondent was a local candidate within
th<! me-.ining of the Mysore Governn1ent Senioritv Rules, 1957, and therefore his appointment could be regularised with effect from any date.
Allowing the appeal to this Court,
HELD: (l) Ru1" 3 of the Mysore State Civil Services (General
Recruitment) Rules, 1957, which were in force from February l, 1958,
speaks of the method of recruitment to the State Civil Service by comp!titive examination, or by selection, or by promotion. The respondent's
appointment was not by competitive examination nor was it a case or
direct recruitment either in the year 1958 or at any time. If it were a
case of direct recruitment there would have been advertisements for the
pust. anJ candidati.s would have been selected on merit. '[808. E-H]
(C.I The appointment of the respondent could not be said to be by
promotion because, under r. 4 of the 1957 Rules, it should be on the
basis of n1erit and suitability or on the basis of seniority-<"uni-merit from
among persons eligible for promotion.
Moreover, the State contended
that it was not a c\lse of promotion. but was a case of selection .on the
basis that the respondent was the only person .fit for tee post. (806 E.-G;
811 C-D]
I 3) It is true that the rules of recruitment were not made until 1964.
Ev.a so the three methods of recruitment are specific. If it is a case of
selection it should have been after consulting the Public Service COmmis-
'ion or the Advisory or Selection Committee, or the appointing authority,
and should have been made after inviting amilications. 'ro ~ay Iha! the
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(1972] 2 S C.R.
appellant was the only eligible candidate, is to deny the rights of others
to apply. [805 F; 808 E-H]
(4) Rule 16 of the 1957 rules provides for relaxation of rules relating to appointment and qualifications, and orie of the instances of relaxation is when the Government, for reasons to be recorded in writing,
appoints an officer holding a post of equivalent grade by transfer from
any other service of the State.
But, in the present case, the respondem
did not beJong to a grade which could be said· to be equivalent, within
the moaning of r. 8 ( 1) 9f the Rules, to that of the Principal of School
of Mines.
Therefore, it could not be a case of transfer.
Jn fact, the
rule was neither available, nor acted on the pr'5ent case. [806 G-H; 807
A-CJ
(5) The State Government has no power to make a rule for regularising an appointment under Art. 309 of the Constitution, since the Article
speaks of rul_es for appointment and gener

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799
R. N. NANJUNDAPPA
v.
T. THIMMIAH & ANR.
December 8, 1971
[A. N .. RAY AND D. G. PALEKAR, JJ.)
Civil Service-State Rules providing for 'methods' of recruitment by
prct11olion,
selection,
or
co1npeti1ive
examination-Appointment of
Ciass Ill Officer to Clc.ss I post, i11 the absence of 'rules' of recruitmentVali.lity-lf could be treated as appointment of 'local candidate'.
Constitution of India, 1950, A.rts. 14, 16, 162 and 309-Appointment
ij violaJive of Ari.. 14 and 16-Scope of Arts. 162 and 309.
In 1957, the respondent, who was working as an Assistant Geologiat
in Class III Service, was sent on deputation as Vice-Principal of. the
School of Min~s, in the State
From 15th February, 1958, he was also
doing the duties of the Principal.
In September, 1958, the State Govemn.,nt appointed him as officiating Principal but on 3rd April 1959 modi·
lied the order and appointed him as temporary Officiating Principal with
effect from the 15th February, 1958. On 9th January, 1967, the Mysore
Education Department Service Rules were published by which appointment of the r.espondent, with effect from 15th February, 1958 was regularised.
The appellant, who was the Principal of a Government Polyt<elmic. and was in Class 11 Service. contended that the respondent's
appointment was in breach of the Mysore State Civil Ser.ices (General
Recruitment) Rules, 1957, and the Mysore Education Department Services
(Technical Education Depart°"m Recruitment) Rules, 1964, and offended
Arts. \~ and 16 of the Constitution.
-
The High Court held that the respondent was a local candidate within
th<! me-.ining of the Mysore Governn1ent Senioritv Rules, 1957, and therefore his appointment could be regularised with effect from any date.
Allowing the appeal to this Court,
HELD: (l) Ru1" 3 of the Mysore State Civil Services (General
Recruitment) Rules, 1957, which were in force from February l, 1958,
speaks of the method of recruitment to the State Civil Service by comp!titive examination, or by selection, or by promotion. The respondent's
appointment was not by competitive examination nor was it a case or
direct recruitment either in the year 1958 or at any time. If it were a
case of direct recruitment there would have been advertisements for the
pust. anJ candidati.s would have been selected on merit. '[808. E-H]
(C.I The appointment of the respondent could not be said to be by
promotion because, under r. 4 of the 1957 Rules, it should be on the
basis of n1erit and suitability or on the basis of seniority-<"uni-merit from
among persons eligible for promotion.
Moreover, the State contended
that it was not a c\lse of promotion. but was a case of selection .on the
basis that the respondent was the only person .fit for tee post. (806 E.-G;
811 C-D]
I 3) It is true that the rules of recruitment were not made until 1964.
Ev.a so the three methods of recruitment are specific. If it is a case of
selection it should have been after consulting the Public Service COmmis-
'ion or the Advisory or Selection Committee, or the appointing authority,
and should have been made after inviting amilications. 'ro ~ay Iha! the
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SUPREME COURT REPORTS
(1972] 2 S C.R.
appellant was the only eligible candidate, is to deny the rights of others
to apply. [805 F; 808 E-H]
(4) Rule 16 of the 1957 rules provides for relaxation of rules relating to appointment and qualifications, and orie of the instances of relaxation is when the Government, for reasons to be recorded in writing,
appoints an officer holding a post of equivalent grade by transfer from
any other service of the State.
But, in the present case, the respondem
did not beJong to a grade which could be said· to be equivalent, within
the moaning of r. 8 ( 1) 9f the Rules, to that of the Principal of School
of Mines.
Therefore, it could not be a case of transfer.
Jn fact, the
rule was neither available, nor acted on the pr'5ent case. [806 G-H; 807
A-CJ
(5) The State Government has no power to make a rule for regularising an appointment under Art. 309 of the Constitution, since the Article
speaks of rul_es for appointment and general conditions of service.
Regulari•ation of appointment by stating that "notwithstanding any rules the
appointment is regularised" strikes at the root of existing rules prescribing promotion, selection or competitive examination as methods of !recruitment.
Therefore the regularisation was in violation of the Article. [808
A-DJ
Champakla/ Chimanla/ Shc.h v. Union of India, [1964J 5 S.C.R. 190
and State of Mysore v. Padmanabhacharya, [1966J I S.C.R. 994, referred
to.
(6) (a) The contention that a rule under Art. 309 for regularisation
wpuld itself be a form of recruitment read with referenc,e to the power
under Art. 162 is unsound, because regularisation is not a form of
appointment. [809 GJ
(b) Jn the present case, the regularisation with effect from February 15, 1958, notwithstanding any rules cannot" be. said to be in exercise
of the power under Art. J 62.
Articles 162 and 309 operate in. different
areas, and when the Gov.ernment acted under Art. 309 they cannot be
said to have acted also under Art. 162 [809 G-H; 810 A-BJ
( c) If the appointment itself was in infraction of the Rules or in
violation of the provisions of the Constitution, the illegality cannot be
regularised.. Ratification or regularisation is possible of an act which
is within the power and province of the authority and there has been some
non-compliance with procedure which does not go to the root of the
appointment. Article 162, does not confer either the power of regularisation nor the power to make rules for the recruitment or conditions of
service. There may be a rule for person or one post, but rules are meant
for recruitment and conditions of serviee, and not for the purpose of
validating illegal appointments or
promotio_ns or transfer_
[810 B-D;
814 D]
B. N. Nagarajan & Ors. v. State of Mysore & Ors. [1966J 3 S.C.R. 682,
followed.
(7) (a) The High Court erred in holding that the respondent was a
local candidate within the meaning of the 1957 rules. A local c:andidate
is a temporary government servant not appointed regularly as per rules
of recruitment to that service.
But two government servants cannot be
appointed substantively to the same permanent post at the same time
except as a temporary measure. The respondent. in the present case, was
a permanent government servant and was on deputation having a Hen
on his post as Assistant Lecturer Geology when he was appointed to offi·
ciale as Principal. Therefore, it cannot be said that he was substantively
appointed to the post of Principal. If the respondent was appomted as
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NANJUNDAPPA V. THIMMIAH (Ray, J.)
801
a temporary measure to the post of Principal, it would not therefore be
as a local candidate, but as a Government servant appointed to another
post as a temporary measure. [810 D-E; 813 A-CJ
( b) Moreover the orders of appointment as officiating Principal ~n
Segtemter 1958 and the modified order in April 1959, state that proposals to fill the post by advertisement through the State Public Service
Commission should be forwarded.
They show that the respondent was
not treated as a local candidate, but was appointed as a temporary measure
rill proper appointment is ·made through the State Public Service Com·
mission from persons possessing the necessary qualificatioRs. [&11 G-Hl
(8) When the State Public Service Commission agreed for regularisa·
lion it did not mean that the Commission agreed to regularise the appointment of the respondent, but only to regularise the appointment to the post
of Principal. [813 F-G]
(9) The High Court was wrong in holding that the appointment of
the respondent did not offend Arts. 14 and 16.
Under the 1964-rule•
the recruitment for the post was by promotion from the cadre of Heads
of sections or by direc.t · recruitment and Prinfi~als of Polytechnics and
Heads of sections belonged to a common cadre and should have been
considered for the appointment.
As
t~.e appellant and others were not
given equal opportunity and treatment in regard to the appointment,
there was discrimination. [814 F-H; 815 A-F]
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 2357 of
1968.
Appeal by special leave from the judgment and order dated
September 12, 1968 of the Mysore High Court in Writ Petition
No. 473 of 1967.
A. K. Sen, S. S. Java/i and M. Veerappa, for the appellant.
A. R. Somanatha Iyer, 0. P. Malhotra. J. P. Dadachanji and
C. S. Srinivasa Rau, for respondent No. 1.
Bera Reddy and R. H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Ray, J.
This is an appeal by special leav~ from the judge•
m~nt dated 12 Septemf?er, -1968 of the High Court of Mysore dismtssmg by a common judgment a group of petitions.
The appellant challenged the Mysore Education Department Service Rules
dated 9 February 1967 published in the notification No. ED 91DGO 58, on 9 February, 1967.
·
The Rules impeached by the appellant are as follows :-
"I~ exercise of the powers conferred by the proviso
to Article 309 of the Constitution of India, and all
802
SUPREME COURT REPORTS
(1972] 2 S.C.R.
other powers enabling him in this behalf, the Governor
of Mysore hereby makes the following rules, namely :-
!. Title : These rules may be called the
Mysore
Education Department Services (Technical Education
Department (Special Recruitment) Rules, 1967.
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2. Provisions relating to regularisation of appointB·
ment of Principal, School of Mines, Ooragaum, Kolar
Gold Fields.
Notwithstanding any rule made under the proviso to
article 309 of the Constitution of India, or any other
rules or Order in force at any time, Dr. T. Thimmiah,
B.Sc. (Hons.) Ph.D. (Land.) F.G.S. shall be deemed
to have been regularly appointed as Principal, School
of Mines, Ooragaum, Kolar Gold Fields, with effect
from 15-2-1958.
By order and in the name of
the Governor of Mysore
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Sd/- S. N. Sreenath
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Under Secretary to Government Education Department".
The appellant was posted as 'additional in-charge' of Technical Education, Bangalore.
There were other petitions before the
Mysore High Court similarly challenging the aforesaid Service
Rule.
The petitioners in those cases were the Principal of the
Polytec~nic at Mysore; Head of the
Mechanical
Engineering
Section, C.P .C. Polytechnic, Mysore; Principal of the Polytechnic, Hassan; and Principal of B.D.T. College of Engineering,
Devangere.
The appellant joined as lecturer in Physics at the University
Department of the Government of Mysore in 1941.
In 1946
the appellant took a post graduate degree in Chemical Engineering at Madras University.
The appellant was then posted as
Lecturer in Chemical
Engineering,
Government
Engineering
College, Bangalore.
In 1949 the appellant was promoted and
posted as Superintendent (Principal), Government Polytechnic.
Devangere in the grade of .Rs. 200-20-300.
In 1954 the appellant was posted as Principal, Polytechnic College at Hassan in the
grade of Rs. 200-20-300.
The appellant was confirmed in the
year 1957 in the grade of Rs. 200-20-300 in Class II with effect
from 12 December, 1949.
On 1 January, 1957 the pay scale
of the appellant was revised at Rs. 250-600.
The respondent Thimmiah graduated and was
appointed
through the Public Service Commission in the year 19 51 as an
Assistant Geologist in the Department of Geology in the Mysore
Government in the grade of Rs. 125-10-175.
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NANJUNDAPPA V. THIMMIAH (Ray, J.)
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The respondent went to the United Kingdom and returned in
1957 with a Ph.D. in Geology.
In the month of July, 1957 the
establishment of the School of Mines at Kolar Gold Fields was
sanctioned in the Department of Technical Education. The respondent who was in 1957 a Lecturer in the Department of Geology was deputed for appointment dS Vice Principal of the School
of Mines at Kolar Gold Fields.
On 15 February, 1958 the respondent was asked to perform the duties of the Principal.
On
22 July, 1958 Isaacson who was the Principal of the School of
Mines at Kolar Gold Fields left.
On 25 September, 1958
the
respondent was appointed officiating Principal of the School of
Mines on a temporary basis with effect from 22 July, 1958. On
3 July, 1959 the respondent was appointed Principal with effect
from 15 February, 1958.
The Government of India in the year
1959 wrote to the State Government that the respondent did not
possess qualifications and proposed prescribed qualifications for
the Principal of School of Mines.
Qualifications were proposed
by the Director of Technical Education in the month of August,
1959.
In the month of August, 1960 the respondent was promoted in his parent Department of Geology as Geologist.
In the year 1962 the appellant made an application under
Article 226 challenging the officiating appointment of the respondent.
The High Court of Mysore on 1 November, 1963 dismissed the appellant's application as pre-mature, because the Government was going to frame rules for recruitment for the Department.
In the month of May, 1964 rules of recruitment were framed
by the Government for the Department of Technical Education.
In the year 1967 Rules were made under Article 309 of the
Constitution regularisin_g the appointment of the respondent as
Principal, School of Mines with effect from 15 February, 1958.
The Kolar Gold Fields, School of Mines was set up in the
month of July, 1957.
The respondent was· sent in the month of
August, 1957 on deputation for two years as Viae Principal of the
School of Mines.
The respondent was then working as an Assistant Geologist.
The then Principal of the School of Mines was
Isaacson.
He was employed on a part time basis on an allowance
of Rs. 200 p.m.
On 22 July, 1958 when Isaacson left the respondent who was the Vice Principal had been doing the duties of
the Principal .since 15 February, 1958.
The State Government
on 25 September, 1958 appointed the respondent Thimmiah as
officiating Principal with effect from 22 July, 1958 in the grade
of Rs. 500-30-800.
On 3 April, 1958 the State Government in
modificaion of the notification of 25 September, 1958 appointed
the respondent as temporary officiating Principal with effect from
804
SUPREME COURT REPORTS
[1972] 2 S.C.R.
15 February, 1958. The impugned rules regularising the appoint-
~ent o~ the respondent with effect from 15 February, 19 5 8 came
mto existence on 9 February, 1967.
The appellant contended that the respondent was governed
by the Mysore Service Regulations, 1943 the Mysore State Civil
Services (General Recruitment) Rules, i 957 as well as
the
Mysore Education Department Services (Technical Education
Department) (Recruitment) Rules, 1964. The appellant
also
contended that the respondent was in Class III service, and, therefore, the impeached regularisation of the respondent's appointment was m breach of the aforesaid Rules and Regulations and
offended Articles 14 and 16 of the Constitution. The contention of the respondent before the High Court was that the appointment to a civil post could be made in three ways : one by promotion; second by direct recruitment; and the third by regularisation of an appointment which had been initially made irregularly.
It was also contended in the High Court, though there was no
suggestion in the affidavit or in the return in answer to the petition,
that the respondent was a local candidate in service, and, therefore, untler rule 8 (27 A) of the Mysore Civil Services Rules, 1957 I
the rules would not apply to the respondent and the regularisation
was valid.
An additional argument was advanced in this Court that under
Article 162 of the Constitution regularisation would in itself be
a mode of exercise of power of appointment of the Executive
Government. Regularisation was said to have the consequence
of impressing upon the appointment the quality of permanence
and the elimination of precariousness.
According to the State
such an appointment even if made in the shape of rules under
Article 309 could not be attacked on the ground of being made
for one person just as a piece of legislation could not be attacked
on the ground of being made for a particular person or entity.
The High Court held that the respondent was a local candidate within the meaning of Rule 1-A of the Mysore Government
Seniority Rules, 1957 and therefore the appointment of the respondent could be regularised with effect from any date. The
High Court expressed no opinion on the question of seniority
among the several petitioners inter se.
On that basis the High
Court held that there could be a temporary employment and
recognition of ·a temporary servant as quasi permanent employee
without violating Articles 14 and 16.
The High Court held that
the appointment of a local candidate could not be said to be discriminatory or a denial of equal opportunity, The High Court
also held that when the respondent was appointed temporarily
in 1958 there were no qualifications prescribed for the post and
there were no cadre and recruitment rules.
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NANJUNDAPPA V. THIMMIAH (Ray, J,)
805
On 17 August, 1957 when the .respondent was sent on deputation as Vice Principal his post was counted as that of a lecturer.
When Issacson left the School of Mines and when the respondent
was asked to be in charge as Principal and thereafter when the
respollPent was in the month of September, 1958 appointed to
officiate as Principal which was Class I service with effect from
15 February, 1958 the respondent had been on deputation from
foreign service and in the affidavit it was stated that it was Class
. III service to which the respondent belonged and the appointment
of the respondent to the post of Principal of the School of Mines
was chalfonged by the appellant· to amount to promotion from
Class III to Class I.
Under rule 57 of the Mysore Civil Service Regulations, 1943
an officer could be sent on deputation on such temporary duty
for the performance of which there is no permanently or temporarily sanctioned appointment. Deputation however was not permissible under Rule 57 without the sanction of the Government.
The question here is whether an officer like the respondent
who was sent on deputation could be said not to be governed by
any rule and be a local candidate as contended for by the State.
At the relevant time in the month of February, 1958 the Myrore
State Civil Service (General Recruitment) Rules, 1957 were in
existence inasmuch as those rules came into force on 1 February,
1958.
The Mysore State Civil Services Rules,
1957 defined
'direct recruitment', 'promotion' and 'selection'.
Direct recruitment would be appointment otherwise than by promotion or
tiansfer.
Promotion would be appointment of a Gcvernment servant from a post, grade of service or Class of service, to a higher
post or higher grade of service or higher class of service. Selection would be after consulting the Commission or the Advisory
or the Selection Committee, or the appointing Authority.
Rule
3 of the Mysore State Civil Services Rules,
1957 speaks of
method of recruitment to the State Civil Service to .be by competitive examination or by selection or by promotion.
Judged by
these rules the appointment in the present cas'e could be said to
be only by promotion.
Indisputably there was neither any competitive examination nor any selection nor it was a case of direct
recruitment.
Sub-clauses (a) and (b) of Rule 4(3) of the
Mysore State Civil Services Rules, 1957 lay down the restrictions
as to recruit.ment by promotion. The restrictions are two-fold in
sub-clauses (a) and (b).
First, if it is to a selection post or to
a post to be filled by promotion or by selection of a person on
the basis of merit and suitability in all respects to discharge the
duties of the post it is with due regard to seniority from among
persons eligible for promotion.
The second is recruitment by
4-L736S,pCI/72
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SUPREME COURT REPORTS
(1972) 2 S.C.R.
promotion to a post other than that referred to in sub-clause (a)
by selection of a person on the basis of seniority-cum-merit, that
is seniority subject to the fitness of \he candidate to discharge the
duties of the post from among persons eligible for promotion.
In 1958 the post of the Principal of the School of Mines was
a permanent post.
The pay of the Principal was Rs. 500-800 at
that time.
The respondent was getting a salary of Rs. 165 plus
Rs. 75, in the month of February 1958 and his grade of scale was
from Rs. 125-175.
The respondent
had been
substantively
appointed to the post of a lecturer in Geology from which he was
sent on deputation.
The respondent under Rule 17 of the General Rules regarding lien on appointment and admissibility of
allowances could not be appointed substantively to two or more
permanent posts at the same time except as a temporary measure.
Then again under Rule 20 (a) of the General Rules regarding
lien on appointment the Government shall suspend the lien of a
Government servant on a permanent post which he holds su bstantively if he is appointed in a substantive capacity.
In the month
of February, 1958 the respondent was on deputation and having
a lien on post as Assistant Lecturer of Geology when he was
appointed to officiate as Principal, School of Mines, and, therefore, it could not be said that he was substantively appointed to
the post of a Principal.
The appointment of the respondent as officiating Principal in
the month of February, 1958 could be 'only by promotion.
The
two impediments to the case of recruitment by promotion have
already been noticed in rule 4(3) sub-clauses (a) and (b) of the
Mysore State Civil Services (General Recruitment) Rules, 1957.
Under sub-clause (a) it is to be on the basis of merit and suitability with due regard to seniority from among persons eligible
for promotion.
Under sub-clause (b) it is to be on the basis of
seniority-cum-merit from among persons eligible for promotion.
It is not the case of the Government that it was a case of promotion because there is no material to show that merit and suitability
in all respects with due regard to seniority from among persons
eligible for promotion were considered.
The Mysore State Civil Services Rules, 1957 in Rule
16
speaks of relaxation of mies relating to appointment and qualifications and one of the instances of relaxation is that the Government may for reasons to be recorded in writing (a)(i) appoint
to a post an officer of the Defence Services, an All India Service
or a Civil Service of the Union or the Civil Service of any other
State and (ii) an officer holding a post of an equivalent grade, by
transfer from any other service of the State.
Equivalent grade
is defin~d in the Mysore Civil Services Rules 1957 which came
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NANJUNDAPPA V. THIMMIAH (Ray, J.)
807
into effect on 10 February, 1958. Rule 8 (1) of the Mysore Civil
Services Rules, 1958 speaks of class and grade.
Appointments
are said to be in the same 'Class' when they are in the same
department, and bear the same designation, or have been declared by Government to be in the same class.
Appointments in the
same class are sometimes divided into 'grades' according to pay.
The post of Principal School of Mines was said to be Class I. It
was said that in the month of February, 1958 there were no
classes.
But the respondent did not belong to a grade which
could be said to be equivalent grade to that of the Principal
School of Mines.
Therefore it could not be a case of transfer
within the meanin~ of the aforesaid Rule 16.
The Mysore Technical Education Rules which
came into
existence on 5 May, 1964 referred to two classes and the Principal, School of Mines was in Class I and the Heads or Principal
of Polytechnics were in Class I.
In 1964 the post of Aosistant
Geologist was in Class III and not identical in rank.
The respondent alleged that he was appointed temporarily to the post of
Principal, School of Mines in February, 1958 and thereafter he
was appointed under Article 162 of the Constitution because of
his qualifications. - It will appear from the affidavit evidence that
ihe appellant in 1957 was Principal of the Government Polytechnic at Davangere and was in the grade of Rs. 200-20-300.
The respondent was in 1956 an Assistant Geologist at a
salary of Rs. 165/- in the scale of Rs. 125-10-175. In 1964 the
appellant was in Class II under the 1964 Rules as Principal of
Polytechnic whereas the respondent was in the substantive post of
Assistant Geologist which under the 1964 Rules was in Class III.
Therefore when the appointment of the respondent was attempted
to be regularised with effect from 1958 the respondent was being
placed at a position of advantage.
The appointment of the respondent by promotion or transfer
is inherently indefensible.
The respondent was in Class III service.
He was being appointed to Class I. If it were a case of
promotion persons in the same grade and seniority and merit were
to be considered.
The appellant was senior to the respondent.
There were other petitioners before the High Court who were
senior to the respondent.
When the appellant made an application to the Mysore High Court in the year 1962 the application
was dismissed because it was found to be pre-mature as
the
Government was preparing the cadre and recruitment rules. The
High Court left it open and said if and when the appointment was
regularised it wuold be open to the appellant to take such steps
as law permits.
808
SUPREME COURT REPO~TS
[1972] 2 S.<;.R.
It was contended on behalf of the State that under Article 309
of the Constitution the State has power to make a iule regularising the appointment.
Shelter was taken behind Article 162 of
the Constitution and the power of the Government to appoint.
No one can deny the power of the Government to appoint. If it
were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a
case of appointment by selection recourse to rule under Article
309 for regularisation would not be necessary.
Assume that
Rules under Article 309 could be made in respect of appointment of one man but there are two lin1itations.
Article
309
speaks of rules for appointment and general conditions of service.
Regularisation of appointment by stating that notwithstanding any
rules the appointment is regularised strikes at the root of the rules
and if the effect of the regularisation is to nullify the operation and
effectiveness of the rules, the rule itself is open to criticism on
the ground that it is in violation of current rules.
Therefore the
relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannot be permitted
to stand to operate as a regularisation of appointment of one .person in utter defiance of rules requiring consideration of seniority
and merit in the case or promotion and consideration of appointment by selection or by competitive examination.
It was contended on behalf of the State that Rule 3 of the
Mysore State Civil Services Rules, 1957 spoke of method of
recruitment to be by competitive examination, or by selection, or
by promotion. The method of recruitment and qualifications for
each State Civil Service were to be setforth in the rules of recruitment but there were no rules until the year 1964. In 1964 the
rule spoke of the Principal of School of Mines to be Class I and
the method of recruitment for the Principal of School of Mines
wns to fill up the post by promotion from the cadre of Heads ot
Sections or by direct recruitment.
It was said on behalf of the
respondent that he was the only eligible candidate in 1964, and.
therefore, his appointment was valid.
This is opposed to facts.
ft is not a case of direct recruitment in the year 1958 or at any
time.
The State made rules in the year 1967 to regularise the
appointment from the month of February, 1958.
Again, if it
were a case of direct recruitment one would expect proper materials for the direct recruitment.
There should be advertisement.~
for the post.
Candidates have to be selected.
Their respeqtive
merits would have to be considered.
To say that the app)ellant
was the only eligible candidate is to deny the rights of others to
apply for such eligibility tests.
Counsel on behalf of the State relied on the decision of this
Court in Champak/al Chimanlal Shah v. The Union of India(')
(I) [1964] 5 S.C.R. 190~
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NANJUNDAPPA V. THIMMIAH (Ray, J.)
809
and the observations at page 201 of the report : "That the Gove,rnment have to employ temporary servants to satisfy tlie needs
-0f a particular contingency and such employment would be perfectly legitimate."
No exception could ordinarily be taken
to
such appointment.
The appointment in the present case does
not fall under that category.
The appointment was in breach of
rules as a case of promotion.
It was not a case of direct recruitment. It was not a case of temporary appointment.
It was not
a case of appointment of a local candidate.
This Court in the
case of The State of Mysore v. Padmanabhacharya etc. (1) dealt
with a rule under Article 309 to the effect that the respondents in
that case having been invalidly retired should have been validly
retired from service on superannuation.
The notification of the
Government under Article 309 was issued on 25 March,
1959
there validating the action taken in retiring the respondent and
others upon their attaining the age of 55 years.
The respondents
contended before the High Court that they were entitled to continue in service upto the age oi 58 years and not to be retired at
the age of 5 5 years in view of an exception carved out by note
4 to rule 294(a) of the Mysore Civil Services Regulations. This
Court. did not express any opinion as to the power of the Legislature to make a retrospective pr9vision under Article 309 but the
notification retiring certain persons on superannuation was struck
down by this Court in these words : "We are of opinion that this
notification ca.nnot be said to be a rule regulating the recruitment
and conditions of service of persons appointed to the services and
posts in connection with the affairs of the State.
All that the rule
does is to say in so many words that certain persons who had
been, in view of our decision on this point, invalidly retired should
be deemed to have been validly retired from service on superannuation.
It would if given effect c0ntravene Article 311
of the
Constitution.
Such a rule in our opinion is not a rule contemplated under the proviso to Article 309".
The contention on behalf of the State that a rule under Article
309 for regularisation of the appointment of a person· would be
a form of recruitment read with reference to power under Article
162 is unsound and unacceptable.
The executive has the power
to appoint.
That powel'. may have its source in Article 162. In
the present case the rule which regularised the appointment of
the respondent with effect from 15 February, 1958 notWithstanding any rules cannot be said to be in exercise of power under
Article 162.
First, Article 162 does not speak of rules whereas
Article 309 speaks of rules.
Therefore, the present case touches
the power of the State to make rules under Article 309 of the
nature impeached here.
Secondly, when ·the Government acted
(!) [19661 I S.C.R. 994.
810
SIJPREME COURT REPORTS
(1972 J 2 S.C.R.
under Article 309 the Government cannot be sail' to have acted
also under Article 162 in th.: same breath.
The two Articles
operate in different areas.
Regularisation cannot be said to be a
fom1 of appointment. Counsel on behali of the respondent contended that regularisation would mean conferring the quality of
permanence on the appointment whereas counsel on behalf of the
State contended that regularisation did not mean permanence but
that it was a case of regularisation of the rules under Article 309.
Both the conte.ntions are fallacious. If the appointment itself is
in infraction of the rules or if it is in violation of the provisions
of the Constitution illegality cannot be regularised.
Ratification
or regularisation is possible of an act which is within the power
and provmce of the authority but there has been some non-compliance with procedure or manner which does n0t go to the root
of the appointment.
Regularisation cannot be said to be a mode
of recruitment.
To accede to such a proposition would be to
mtroduce a new head of appointment in defiance of rules or it
may have the effect of setting at naught the rules.
In the present case, it was said that the respondent was
a
local candidate within the meaning of rule 8(27A) of the Mysore
Civil Services Rules, 1957 which came into effect on 1 March,
1958.
A local candidate is defined there as a local candidate in
service meaning a temporary Government servant not appointed
regularly as per rules of r.~cruitment to that service.
When the
appointmer.t of a local candidate would be regularised it would
be in consonance with the rules.
A contention was advanced on
behalf of the respond,!nts that Rules 3, 4 and 14 in the Mysore
State Civil Service Rules, 1957 which came into effect on
10
Febru:iry, 1958 would not apply until rules of recruitment as contemplated in Rule 3 were brought into existence.
In support of
tllat contention reliance was placed on the decision of this Court
in B. N. Nagarajan & Ors. v. State of Mysore & Ors.(').
In
that case a question arose as to the validity of appointments of 88
A•;sistant Enginers who were appointed in October,
1961.
It
was contended that the appointments there were to have been in
consonance with the Rules which came into existence in December, 1960.
It was held that the December 1960 Rules were not
intended to cover appointments of persons who had been intervi.iwed and recollllllended for appointment by the Public Service
Commission in the month of November, 1960 prior to the making
of the rules.
It was also held in that case that the absence of
rules would not take away the power of the executive Government to make appointments under Article 162 of the Constitu-
•ion.
In the present case, the contention on behalf of the respondents that the regularisation was itself a mode of appointment
(l) [1966] 3 S.C.R. 682.
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NANJUNDAPPA V. THIMMIAH (Ray, J.)
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under Article 162 of the Constitution is unsound.
The Rules
came into existence in the present case in 1964. The regularisation was made in the year 1967.
The regularisation was made
with effect from 1958.
Therefore, the Rules became applicable.
The regularisation in the present case was also bad because even
without specific methods of recruitment appointments could be
B · made only by selection or promotion or transfer from equivalent
grade.
The method of recruitment and qualification for each
State Civil Service was to be setforth in the rules of recruitment of
~uch service specially made in that behalf.
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It follows that in the present case in the face of rules which
spoke of recruitment 19 be by competitive examination or by
selection or by pro1ll9tion, these are the three modes of
appointment.
Even if lhe method of recruitment and qualifications are not laid down the three modes are specific.
Counsel on
behalf of the State stated that the respondent was not promoted
but that it was a case of selection because the respondent was
the only person fit for that post.
A selection would have to be
made by inviting applicants and then selecting them.
The State
relied on the affidavit of the Deputy Secretary to the Government
that the respondent was a highly qualified person and there were
no other qualified persons available to fill up the post of Principal
of the School.
It was therefore said that the Government found
that the respondent was the only candidate found suitable and
he was therefore selected.
The affidavit does not say that he was
selected on the basis that other candidates were interviewed and
that claim of other candidates were considered.
In Nagarajan's
case (supra) this Court said that if rules were made the Executive
would have to follow the Rules and the Executive could not under
Article 162 of the Constitution ignore the Rule.
Therefore, in
the present case the Executive acted illegally in regularising the
F · appointment of the respondent Thimmiah.
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In the present case, the respondent was appointed temporarily as officiating Principal on 25 September 1958 until further
orders.
In foot note l to the letter dated 25 September, 1958
communicating the order it was stated that the Director of Technical Education was requested to forward proposals to fill the post
by advertisement through Mysore Public Service
Commission.
Again on 3 April, 1958 when the respondent was appointed temporarily as officiating Principal with effect from
15
February,
1958 until ftirther orders a similar foot note was given in that
letter communica1ing the order to the effect that the Director of
Techr.ical Education would forward proposals to fill up the post
by advertisement through Mysore Public
Service Commission.
These letters totally repel· the suggestion of the respondent being
a local candidate.
These letters contain intrinsic evidence that
the appointment was to be made by advertisement through Mysore
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812
SUPREME COURT REPORT,S
[1972] 2 S.C.R.
Public Service Commission so that persons who would possess the
necessary qualifications would be able to apply for the same for
consideration.
The case of promotion is totally impermissible in the present
case.
There were three classes of services under the Mysore
Civil Service; (Classification, Control and Appeal) Rules, 1957.
Rule 5 class1tied the services under four classes.
Class I consisted of gazetted posts with the· minimum pay of not less
than
Rs. 350 p.m. Ctass II was to consist of gazetted posts other than
those referred to in Class I.
Class III was to consist of nongazetted posts of Primary· School teacher, Assistant Inspector of
Shops and. Establishments, Compounders, Village
Accountants,
Bill Collectors and other posts the pay or maximum pay of which
if on a time scale is more than Rs. 90.
Class IV was to consist
of non-gazetted posts classified in the Schedule.
There were three
Schedules.
Promotion would have to be under rule 4 of the
Mysore Civil Services (General Recruitment)
Rules,
1957 on
the basis c.f merit and suitability or on the basis of seniority-cummerit.
Rule 16 of the 1957 General Recruitment Rules speaks
of relaxation of rules relating to appointment and qualifications.
The Government has power to relax any rule and may appoint
persqns for reasons to be recorded in writing inter alia to a post
of an equivalent grade by transfer.
In the present case, it was
not an appointment by transfer from one post to a post of
an
equivalent grade under the rules.
The relaxation under Rule 16
of the Mysore Civil Service (General Recruitment) Rules, 1957
for a specified period of the qualifications prescribed for purposes
of direct recruitment of candidates possessing
the
prescribed
qualifications was neither available nor done in fact in the present
case.
Therefore it could not be said here that the appointment
was by promotion because the respondent did not hold the post
of an equivalent grade.
It is said on behalf of the State that the appointment of the
respondent was justified on the following grounds.
In the year
1958 the respondent was appointed on a temporary basis.
The
Government has power to make a temporary appointment. The
respondent was, according to the rules, a local
candidate.
A
local candidate could be appointed irrespective of rules.
Up to
the year 1964 there were no rules filled with regard to cadre or
appointment.
In 1964 when the cadre and recruitment rules
were made the respondent was the only qualified person.
There
were no specific rules for regularisation.
The Government has
power under Article 162 to
regularise
appointments.
Rules
under "Article 309 can be· made for one person.
Therefore.