# SWARAN LATA v. UNION OF INDIA & ORS

- **Citation:** [1979] 2 S.C.R. 953
- **Court:** Supreme Court of India
- **Decided:** 1979-01-16
- **Case number:** Civil Appeal No. 628 of 1978
- **Bench:** A. P. Sen, V. R. KRISHNA lYER
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/swaran-lata-v-union-of-india-ors-7716
- **Pages:** 21

## Headnote

Constitution-Art. 309, proviso--lf obligatory on the part of the Gov«
t~rranent to n:ake rules of recruitment before a sen•u'r! could bl' constituted or
a post created or filled.
Jntervrctation of statutes-States Reorganisation Act, 1966-S. 84-Scopc of
A
B
--Section, if an incidental provision-Effect of incidentul provision after its purC
pose was served .
....... ~
Administrative directions issued by Jhe Central Government for implementing
..
•
sr:/ien1e of reorganisation Of services-llf co:tltl circ11111scribe tf1e powers of Stare
,Government-Nature of instructions issued.
Servire Commission-If has power to relax e.:;sential qualifications in selecting a candidate for a post.
Wn:ds and phrases: "1nainly'
1-Meani11g of.
l\1ala fi.des·--Burden of proof-On lVho1n lies.
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 Administrator of the Union t'erritory 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 1ndia issued instructions that
the posts should be filled _up by deputation mainly from the Punjab nnd 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 Adn1inistration
the
Govcrn1nent
of
Haryruna forwarded a panel of three names,~ including that of the appellant,
for appointment on deputation to the post of Principal of a \Vom~n
1s Techni·
cal Institute: The post carried a scale of pay of Rs. 350-900. Although
1he appellant was junior to the other two candidates, she was selected and
tempora.rily
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 Chrl.ndigarh. All efforts to get a suitable
candidate either from the State of Haryana or of Punjab having prove<l un~
successful 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
D
E
F
G
H
954
SUPRBIE COURT REPORTS
(1979] 2 S.C.R.
A
qualification in re&pect of each of the candidates and eventually selected respondt:.nt No. f., for the post,
The appellant V.'as also one of the candidates
CTIUed for interviev.'; but she was not selected.
B
AHowing th0 appellant's writ ~tition :1 '.>ingle Judge of th..: Tligh Court
struck down the appointment of re~pondcnt no. 6 mainly on the ground th4t
the presence of the Director of Technk:il Education 1'epresenting the Chandigarh Admini5tration in the interview board Yitiated. her appointinent inasmuch
ns he was actuated by bias against 1he appellant.
But on appeal a Division
Bt.>nch reversed the order of the single Judge holding that the
allegation of
nuila (ides or bias had not been made out by the appellant against
the
representative of tht: Chandigarh A<ln1inistn1tion in the interview board.
C
The appellant. on appeal to this Cou't. contended that (I) the post being
a deputation post in terms of instn1ction<; issued by the Government of India
under s. 84 of the States' Reorganis~1tion Act, the Chandigarh Administration
had no authority to fill up the post by dir'ect recruitment and (2) the Union
Public Service Commission had no po\ver to relax the essential qualifications
of the ca~didr:.tes 'vithoLrt prior concurrence of the Chandigarh Administration.
D
Dismisfing the appe<1I,
HELD : 1 (a) The post of Principal of the lnstitu.te wns not a "deputa.
tion post" and, therefore, the app

## Text

_Characters 0–39,765 of 54,911. This is a partial read: ask again with offset=39765 for what follows._

•
•
953
SWARAN LATA
v.
UNION OF INDIA & ORS .
January 16, 1979
[A. P. SEN AND V. R. KRISHNA lYER, JJ.J
Constitution-Art. 309, proviso--lf obligatory on the part of the Gov«
t~rranent to n:ake rules of recruitment before a sen•u'r! could bl' constituted or
a post created or filled.
Jntervrctation of statutes-States Reorganisation Act, 1966-S. 84-Scopc of
A
B
--Section, if an incidental provision-Effect of incidentul provision after its purC
pose was served .
....... ~
Administrative directions issued by Jhe Central Government for implementing
..
•
sr:/ien1e of reorganisation Of services-llf co:tltl circ11111scribe tf1e powers of Stare
,Government-Nature of instructions issued.
Servire Commission-If has power to relax e.:;sential qualifications in selecting a candidate for a post.
Wn:ds and phrases: "1nainly'
1-Meani11g of.
l\1ala fi.des·--Burden of proof-On lVho1n lies.
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 Administrator of the Union t'erritory 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 1ndia issued instructions that
the posts should be filled _up by deputation mainly from the Punjab nnd 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 Adn1inistration
the
Govcrn1nent
of
Haryruna forwarded a panel of three names,~ including that of the appellant,
for appointment on deputation to the post of Principal of a \Vom~n
1s Techni·
cal Institute: The post carried a scale of pay of Rs. 350-900. Although
1he appellant was junior to the other two candidates, she was selected and
tempora.rily
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 Chrl.ndigarh. All efforts to get a suitable
candidate either from the State of Haryana or of Punjab having prove<l un~
successful 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
D
E
F
G
H
954
SUPRBIE COURT REPORTS
(1979] 2 S.C.R.
A
qualification in re&pect of each of the candidates and eventually selected respondt:.nt No. f., for the post,
The appellant V.'as also one of the candidates
CTIUed for interviev.'; but she was not selected.
B
AHowing th0 appellant's writ ~tition :1 '.>ingle Judge of th..: Tligh Court
struck down the appointment of re~pondcnt no. 6 mainly on the ground th4t
the presence of the Director of Technk:il Education 1'epresenting the Chandigarh Admini5tration in the interview board Yitiated. her appointinent inasmuch
ns he was actuated by bias against 1he appellant.
But on appeal a Division
Bt.>nch reversed the order of the single Judge holding that the
allegation of
nuila (ides or bias had not been made out by the appellant against
the
representative of tht: Chandigarh A<ln1inistn1tion in the interview board.
C
The appellant. on appeal to this Cou't. contended that (I) the post being
a deputation post in terms of instn1ction<; issued by the Government of India
under s. 84 of the States' Reorganis~1tion Act, the Chandigarh Administration
had no authority to fill up the post by dir'ect recruitment and (2) the Union
Public Service Commission had no po\ver to relax the essential qualifications
of the ca~didr:.tes 'vithoLrt prior concurrence of the Chandigarh Administration.
D
Dismisfing the appe<1I,
HELD : 1 (a) The post of Principal of the lnstitu.te wns not a "deputa.
tion post" and, therefore, the appointment of respondent no. 6 to that post by
din.•ct rccruit111ent •.vas not invalid. f962 l)]
(b) It is not obligatory under the p10\'iso to Art. 309 to ntake rules. of reE
cruitment before a .service could be {'onstituted or a post created or filled.
The·
State Government ha.s executive power in relation to all matters in respect of
\Vhich th'e legislature of the State has power to make laws.
There is nothing:
in the terms of Arl. 309 which abridges the power of the executive to act
under Art. 162 of the Constitution \Vithout a law. The san1c principle underlies-
~.
Art. 73 in reJation lti the executive pO\\'e·r t1f the Un~on. (!)61 G-ll]
41l
F
In the instrint case since there 'vctc no rules requiring the A.dministration tofill up the post by deputation, the Adminijtration had the -::.•ption either to1nake direct recruit1ni nt or to take a pcr-;on on deputation from the States of
Punjab er Hnryana. [962 BJ
B. N. Nagarajan v. State of Mysore, [1966] 3 SCR 682;
T. Caj<e v. N.
Jonnanik Siem & Anr., [1961] 1 SCR 750;
Sant Rani Sharma v. State of
G
Jlajasthan & A nr., [ 1968] 1 SCR 111; referred to.
H
(c) Moreover the Chandigarh Adn1inistration did all thrit it could,
for
selecting a candid at.: on deputation from either Punjab or Haryana, but could
not succeed.
It C:lnnot, therefore, be asserted that there \\'as any breach of
instructions issued by the Central Government under s. 84 of the Act,
even
assuming they '\'ere applicable. [962 E; 964 B:
(d) 'fhe po\\'er of the Chandigarh Administration cannot be said to
be
circumscribed by the terms of the directions issueJ by the (~entral Government
'- •
•
'
•
SWARAN 1.ATA 1'. UNION
955
under s. 8.t of the Act. 1'he instruction.<i issued were supplemental, incidental
or conseqnentinl to the provisions for the reorganisation or States. (959 A]
(e) The meaning of the \Verd "mainly" used in the in~truction issued by
the Governnlc nt of India must, in the context, mean
11sub5tantially'\ "as far
as practicable'' or "so far as possible". [959 C]
A
(f) The directions issued by the central Government v:ere only for the
B
limited purpose of implementing the scheme for the reorganisation of services.
When the process relating to integration of services as envisaged by the supplemental, incident.al or consequential provisions for reorganisation of
services
under a law was completed an incide-ntal provisioni like s. 84 necessarily ceases
10 have effect. Such power is only kept in suspended animation till the process
of reorganisation of services is con1plcted and once the in1egration of services
was finalised there is no reason for a transitory, consequential or incidental
C
provisien like s. 84 to operate in perpetuity. [959 H]
lagtar Si11Rh v. State of Pu11jab & Ors. [1972] I SCC 171; referred to.
2(a) There was no statute or regulation having the force of law by which
any qualifications \Vere prescribed for the post. No rules
'vcrc
framed to
regulate the recruitment and conditions of service of the post. It was, therefore.
D
the exclusive pov1rer of the Adminj,tration, to prescribe the essential qualifi·
cations
for direct recruitment.
Tire qualifications v;re.rc prescribed in consul·
talion with the Commission. [967 llJ
(b) The appellant could not be heard at this stage to say that the Union
Public Service Comn1ission had no power to relax any of the essential qualifications. Her nssertion in the writ petition '\Vas th3.t though the UPSC had the
E
power to relax the qualifications it could not be exercised arbitraril~'. [965 CJ
(c) The Con1mission acted well within its powers in relaxing the qualifica-
·tion of the candidntcs. called for intcrvic\\' and in maklng the nppointment, the
Administration ratified the Commission's action. (966 A]
(d) 111e ·essential qualificat.ions \\'ere prescribed by the Administration
in
consultation \\'ith the Commission rind \Vhile issuing the
advertisement the
Commission hnd reserved to itself the power to relax the qualifications in
a
suitable case.
\Vhere qualifications for eligibility were not prescribed by rules,
broad decisions as to the method of recruitment are taken in consultation
with. the Comn1ission.
This requirement was fulfilled in
this
case.
The
Administration 'vas fully aware that the Commission had reserved to ilc;e]f
the power to relax the essential qualifications. [965 G-J.f]
Un;.,11 of 111dia & Ors. v. S. R. Ko/1Ti & Anr.. [1973]
3 SCll
117;
·Omprakash v. The State of M. P. & Anr .. AIR 1978 MP 59;
Maharashtra
State EliCtricity Board Engineers' Assacintion, Nagpur v. Malu1r(Lfhtra Stale
Electricity Ronrd, MR 1968 Bom. 65; held inapplicable.
F
G
( e) ·nie appellant could not approbate and reprobate.
She knew fully
well that, under the terms of the nd\'crtiscn1ent, the Commission had reserved
D
to itself the po\vcr to relax any of the essential qualifications.
Becailse she
-had not been selected she could not complain either that t.lircct
recruitment
A
B
956
SUPREME COURT RCPORTS
l l 979] 2 S.(".R,
through the UPSC was invalid or that the Commission had usurped the
functions of the Chandigarh Administration in relaxing the essential qualifications. [972 Dl
(f) No relaxation in essential qualifications can be made after an advertisement had been issued and p'ersoos possessing the qualifications advertised
for, have F·uhmitted their applications.
If no relaxation has to be niade a
duty is cast on the Commi9Sion to re-advertise the post.
In the present ca5e,
ho·.vever, the advertisement itself contained the relaxation clause and nothing prevented a candidate with the requisite qualifications fron1 mating an
application. [972 HJ
3(a) The burden of establishing 1nala {ides lies very heavily on the per5on
C
alleging them. The Court would be justified in refusing to carry on an investi-
~
gation into allegations of 'nala fides if necessary particulars of the allegatioR
~
\Vere noi. ,!liYen in the writ petition. [970 Bl
(b) There was nothing on record to substantiate the appellant's gooeral and
~
vague allegations as to the mala fides or bias 011 the part of the Director of
Technical Education or that he influenced the members of the Selection ComD
mittee in any manner so as to vitiate the selection. A representative of the·
E
F
G
B
Chandigarh Administration was associated as an expert member to the limited
extent of apprising the Chairman of th~lection 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]
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 S.
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 Conrt
dated February 13, 1976 mainly raises
the question
whether the
appointment of the respondent No. 6, Smt. Prem Lala 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 R~organisation Act, 1966.
'
<
..
' ..
• j
SWARAN LATA v. UNION (Sen, J.)
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
Lala 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) whether the appointment of
respondent No. 6, Smt. Prem Lala 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 Lala
Dewan as the candidate most suitable for appointment to the post of
Principal, were vitiated because Dr. 0. S. Sehgal, Director, Technical
Education, Chandigarh assisted the Selection Committee in its delibera·
lions 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
B
c
E
F
G_
::::
958
SUPREME COURT REPORTS
11979] 2 s.c.R.
A
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.
B
The decisioll must tum on a construction of the instructions issue<!
on November 4, 1966 by w)l.ich 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 tl1c basis that personnel for the Union territory o(
.c
'E
:F
Chandigarh would be provided on deputation by the two States of
Punjab and Haryana,
The said instructions, so far matcriaL read as
folk1ws:
"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 tilled up by deputatian 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 persomfol against posts in the Chandigarh Union territory
Administration, from the Punjab/Haryana State cadres on
pcrmanmt basis."
The aforesaid conununication 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.
These instructions were in conformity with the earlier decision of
. G
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 staling that the Government had set up
a committee headed by Sri V. Shanker, J.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
\.ff
and the Union territory of Chandigarh.
In regard to the Union territory of Chandigarh, the decision o[ the Government of India was in
these terms:
j
•
l
.
•
•
•
. ,..
SWARAN LATA v. UNION (Sen, J.)
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."
A
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 GovB
ernments 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" Rrnst, in the
context, mean "substantially", "as. far as practic~ble" or "so far as
possible."
1n Shorter Oxford Dictionary,, 2nd Edn., vol. 1, p.
1189,
the meaning given is : "For the most part; chiefly, principally". lit
Webster's New International Dictionary, 2nd Edn., vol. III, p. 1483,
more or less the same meaning is given: "Principally, chiefly, in the
·n1ainH.
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
natu~ 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 givil)g effect to the foregoing provisions of this
Part and the State Governments and the Administrators
shall comply with such directions."
c
D
E
F
The use of the words "for the purpose of
glVlng effect to tk
foregoing provisions of this Part" clearly curtails the ambit of
the
G
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
H
(1) [1972] I S.C.C. 171.
5~119 SC!/79
"
96 0
SUPREME COURT REPORTS
[1979) 2 S.C.R.
•'
_, ' A
Articles 2, 3 and 4 of the Constitution is completed, such an incidental
provision like s. 84 necessarily ceases to have effect
B
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 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
.C - Constitution, which is co-extensive with their legislative powers to
regulate recruitment
and conditions of
service, nevertheless
1t 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
D
E
F
G
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 th<! 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 d"ll _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, wonld 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
ff
Article 4 of the Constitution, a provision like s. 84 of the Act, or the
directions issued thereunder are only supplemental incidental or con-
(l) [1968]2 S.C.R. 186.
•
l
•
-
'
SWARAN LATA v. UNION (Sen, J.)
961
sequential to the 'scheme of re-organiiation of services, which is conA
sequential upon the re-organisation of a State.
They cannotoe 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
B
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 adc
ministrative 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
D
services and posts for
the purpose of
probation; confirmation, seniority and promotion:
Provided that the power conferred by this 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 filled.
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.(') There is nothing in the terms of Article 309 of the Constitution whkh abrid~es the power of the executive to act under Article
162 of the Constitution without a law.
The same view has
been
(I) [1966] 3 S.C.R. 682.
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taken by this Court in T. Cajee v. U. Jormanik Siem & Anr. (1) and
Sant Ram Sharma v. State of Rajasthan & Anr. (')
The same priuciple 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 Chandiiarh 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 Lala 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 uuder s. 84 of the Act were binding on the Chandigarh Administration, it is clear that there is no breach thereof.
From the correspondence that JYasscd 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 eventu11lly
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. 350900 could only be filled by a person on deputation who manned a post
(l) fl96l] I S.C.R. 750.
(2) [196!] 1 S.C.R. t 11.
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SWARAN LATA v. UNION (Sen, J.)
963
the Scale oi pay of which was equivalent to the srnle of pay of the
A
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 GovernB
ment of India in the Training Manual for the post of Principal in such
institutions were as under :
I. Degree or its equivalent in Mechanical Engineering or
Electrical Engineering will be preferred.
2. In the case of degree holder, pmctical experience of
one
C
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 e.ither 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 Directresscil.
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
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to take the appellant on deputation as Principal because on her reverG
sion from her current assi~ment 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
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opinion that looking to her past performance as Principal during her
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short stay, it was considered that she would not be a suitable person
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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
persiJ;ted in its stand in forwarding n panel of names of officers carried
on the scale of Rs. 30Qc500 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 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 expectetl 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 Ha1yana 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-quova 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.
G
Viewed from any angle, we must hold that the Chandigarh Administration was within their rights in making the appointment to the
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post of Principal, Government Central Craf,js 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 '-''aS not invalid as be;ng conH
trary to the directions issued by the Central Government under s. 84
of the Act inasmuch as the mid d'recUons were not applicable and also
because there was no breach thereof, if at all they applied.
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SWARAN cATA v. UNION (Sen, J.)
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 qualifioations ? The appellant has nowhere alleged in the writ pe.tition
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 cannot be exercised arbitrarily."
In view of this udmission, 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 uny
rules to regulat<> the method of recruitment to such post, or faying 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 pest 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 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 e;lsential qualification'
were pre5cribed by the Chandigarh Administration in consulration 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 su.itable candidates.
Where qualifications for
eligibility are
not prescnbed by rules, broad decisions as to the method of recruitment are taken in consultation with the Commission.
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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 qmlifications.
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 LatJ Dewan cannot,
therefore, be challenged on the ground that either the Commiss'on 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.(') that the Union or the State Public Service
Commissions cannot select a candidate who docs 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 hy
the Public Service Conm1ission 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
mm1mum
qualifications for e!igiblity 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 appellanr goes
against her.
We are of the view that the decision of this Court in Union of
India & Ors. v. S. B. Kohli & Anr. (') and that of the Bomb&y High
Court in Maharashtra Stale Electricity Board Engineers' Association,
Nagpur v. Maharashtra State Electricity Board(') arc both distinguishable on facts.
In S. B. Kholrs case, this Court was concerned with
interpretation of items 2 and 3 of Annexure. I to the Second Schedule
(I) A.I.R. 1978 M.P. 59.
(2) [1973] 3 S.C.R. 117.
(3) A.I.R. 1968 Born. 65.
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SWARAN LATA v. UNION (Sen, J.)
967
of the Central Health Service Rules, 1963, as nmended, which 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 Snrgeon must have
a diploma in Orthopaedics before he could be appointed a Profess~r,
Reader or Lecturer in Orthopaedics.
It was said that to hold otherwise, would me3n that a person who has the qualification of F.R.C. 5
would be deemed to be specialised in Orthopaedics, without his having any snch 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 B·oard.
Regulation 21,, however, confers power on the Selection
Committee to recommend, in deserving cases, relaxntion 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 res·cJ!ted in deni'al of 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 deFartmental 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 (I) .