1966 (3) TMI 78 - SC - Indian Laws

Supreme Court Upholds State Government's Appointment Power

The Supreme Court analyzed the validity of rules, appointments, and executive powers in a case involving the Mysore Public Service Commission and State ... Recruitment by selection and consultation with the Public Service Commission - executive power of the State under Article 162 - proviso to Article 309 and retrospective rule-making for State services - validity of appointments based on Public Service Commission recommendations with Government consent - statutory recruitment rules not a precondition to executive appointments - mala fides in selection and burden of proofStatutory recruitment rules not a precondition to executive appointments - recruitment by selection and consultation with the Public Service Commission - Whether rule 3 of the Mysore State Civil Services (General Recruitment) Rules, 1957, prevented the State from making executive appointments to the service in the absence of specially made recruitment rules. - HELD THAT: - The Court held that r. 3 could not be read as suspending the executive power of the State to create posts or make appointments until detailed statutory recruitment rules were framed. The proviso to art. 309 does not oust the executive's power under art. 162 to carry on administration, and executive action is permissible so long as it does not contravene any existing statutory rule. The Functions Rules of the Public Service Commission were administrative arrangements concerning how consultation would occur and did not operate as statutory fetters preventing recruitment by executive order.R. 3 of the General Recruitment Rules did not bar the State from exercising executive power to appoint Assistant Engineers in the absence of specially made recruitment rules.Executive power of the State under Article 162 - validity of appointments based on Public Service Commission recommendations with Government consent - proviso to Article 309 and retrospective rule-making for State services - Whether the appointments of 88 Assistant Engineers (made on October 31, 1961) were valid where (a) the State's subsequent rules were alleged to be retrospective and (b) the Public Service Commission had issued prior notifications and recommendations. - HELD THAT: - The Court proceeded on the alternative basis that even if the rules framed under the proviso to art. 309 were ineffective retrospectively, the appointments could still be upheld as valid executive action under art. 162. The Public Service Commission's notifications of October 1, 1958, May 4, 1959 and April 1, 1960 were to be treated as having been issued with the State Government's consent. Given that the recruitment process (advertisement, applications, interviews and recommendation) was carried out with the knowledge and implied consent of the Government, the State could validly make appointments pursuant to that process. The Court further held that the 1960 statutory recruitment rules were not intended to disturb or invalidate appointments made pursuant to the Commission's recommendations resulting from a process begun earlier, and differences in age-limits in advertisement and a subsequent rule did not establish prejudice to the respondents on the record.The appointments were validly made as executive action under Article 162, and could not be invalidated on the ground that later statutory rules purported to operate retrospectively.Mala fides in selection and burden of proof - validity of appointments based on Public Service Commission recommendations with Government consent - Whether mala fides or collateral considerations in the selection by the Public Service Commission were proved so as to vitiate the appointments. - HELD THAT: - Allegations of nepotism and selection for collateral reasons were made in petitions and traversed by the Chairman of the Commission who explained that (i) the member concerned abstained where a relationship existed and (ii) selection was dominated by interview performance and other suitability factors. The High Court expressed a suspicion, but did not investigate because it found other grounds for invalidation. This Court, on the material before it, found that the pleaded facts and the Chairman's averments did not establish mala fides or a collateral purpose sufficient to invalidate the selections; mere relationship or lower degree-class marks did not conclusively prove improper motive where interviews assess suitability beyond written marks.Mala fides or collateral considerations in the selections were not proved and cannot vitiate the appointments.Final Conclusion: The appeals are allowed: the High Court's quashing of the notification and the appointments is set aside; the 88 appointments to the Public Works Department are upheld as valid executive appointments made with the Public Service Commission's recommendations and not vitiated by mala fides, and no order as to costs is made. Issues Involved:1. Validity of the Mysore Public Service Commission (Functions) Rules, 1957.2. Interpretation of the Mysore State Civil Services (General Recruitment) Rules, 1957.3. Authority of the State Government under Article 162 of the Constitution.4. Validity of the appointments made by the State Government.5. Retrospective application of rules under Article 309 of the Constitution.6. Allegations of mala fides in the selection process.Issue-wise Detailed Analysis:1. Validity of the Mysore Public Service Commission (Functions) Rules, 1957:The Supreme Court discussed whether these rules were executive rules or statutory rules made under Article 309 of the Constitution. The High Court had held that these rules could only be made under the proviso to Article 309. However, the Supreme Court opined that these rules were not made under Article 309 as they did not expressly state so and dealt with the functions of the commission rather than laying down recruitment rules. The Court stated that 'sub-rule (1) of r. 4 clearly provides the same thing as does art. 320 (3) (b) and the other sub-rules are really administrative arrangements.'2. Interpretation of the Mysore State Civil Services (General Recruitment) Rules, 1957:Rule 3 of these rules was central to the argument that the government could not recruit Assistant Engineers without framing specific rules. The Court held that it was not obligatory under the proviso to Article 309 to make rules before constituting a service or filling a post. The Court stated, 'We see nothing in the terms of art. 309 of the Constitution which abridges the power of the executive to act under art. 162 of the Constitution without a law.' The Court concluded that Rule 3 did not suspend the executive power of the State until specific recruitment rules were made.3. Authority of the State Government under Article 162 of the Constitution:The Court held that the State Government has executive power in relation to matters within the legislative competence of the State, including State Public Services (List II, Entry 41). The Court cited Ram Jawaya Kapur v. The State of Punjab to support that the executive can function without pre-existing laws. The Court concluded that the State Government could exercise its executive power to make appointments and determine conditions of service by executive order.4. Validity of the appointments made by the State Government:The Court examined the sequence of notifications and actions taken by the Public Service Commission and the State Government, concluding that the appointments were validly made in exercise of the executive power under Article 162. The Court noted, 'The three notifications issued by the Public Service Commission on October 1, 1958, May 4, 1959, and April 1, 1960, must be treated to have been issued with the consent of the State Government.'5. Retrospective application of rules under Article 309 of the Constitution:The Court did not find it necessary to decide whether the State Government could make rules retrospectively under Article 309, as it concluded that the appointments could be upheld under the executive power of the State. The Court assumed for argument's sake that retrospective rules were void but still found the appointments valid under Article 162.6. Allegations of mala fides in the selection process:The Court reviewed the allegations of mala fides and the counter-affidavit filed by the Chairman of the Public Service Commission. The High Court had expressed strong suspicion but did not investigate the matter. The Supreme Court found no conclusive evidence of mala fides or collateral considerations in the selection process. The Court stated, 'We are unable to hold that on these facts any mala fides or collateral object has been proved.'Conclusion:The appeals were allowed, and the judgment of the High Court was set aside. The Supreme Court directed that all appellants, including those who did not prosecute their appeals, should have the benefit of this judgment. The Court exercised its powers under Article 142 of the Constitution to ensure complete justice. There was no order as to costs.