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392 . ,: JAi NARAIN MISRA A v. STATE OF BIHAR ~ ORS. September 15, 1970 B (J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] Civil cservice-SelectionPost-Director. (If/ Agriculture--Method of filling up.. The Director of Agriculturein the respondent.state havingretired tho State Government' wroteto thePublic Service Commissionrequesting them toselectone of the ! 4 officers shown in the list accompanyingtheletter · C for being promoted as Director. The letterstatedthat the question of senill'rity amongthose officers was still underconsiderationand that the list was not arrangedin accordancewith seniority .. The pay scale of some oftheofficers in the list was Rs. 900 to Rs. 1,400 andothers Rs. 1,260 to Rs. 1,700. Theselection was to be on the basis of meritand suit ability.After examiningthe records,the Commissionrecommended the name of theappellant.The thirdrespondent filed a writpetitionand the D High Courtheld that the thirdrespondent was senior to the appellant andhad greatermerit. The pay scaleof boththe appellantand the third respondent was Rs. 1,200 to Rs. 1,700. Inappealto thisCourt, HELD·. (l) Thepostof Directorof Agriculture is a selection !'OSI andan ex-cadrepost. Selectionto it is madesolely on the basis c,i merit andthe question of senioritywas not Televant. It is for the StateGovern ment to selectthe mostsuitable officer and for dischargingthat responsi bili~y. it was open to theGovernmentto seek the assistanceof thePublic Service Commission.The use of theword promoted in the letter was in appropriate· butthe natureof thepostcannot be changed by the Govern mentusingthat word. Therefore,the HighCourt was not justifiedin going into thequestion df seniority,especiallywhen there w~s no complaint of m~la {ides eitheron thepart of the Government or the Commission. [393 H; 394 B-C, E-F] (2)Rule16 of the Rules regulatingthe Biharand OrissaAgricultural ServicesClass I promulgated on April· 11, !935 is notsupersededby the 1945Ruleswhichapply to Bihar AgriculturalService Class I, Bihar AgriculturalService Class II, GeneralProvincialService and special pools outsidethese cadres.The 1935Rulesdo notcome in the way of the: Government· makingits selection to thepost of Director,and R. 12 of 1945-Rules is not applicable. [395 F. G; 396 BJ CML APPELLATE JURISDICTION : CivilAppealNo. 477 of 1970. Appealfrom the judgment and orderdatedFebruary 12, 1970 of the Patna High Court in CivilWrit JurisdictionCase No. 1067 of .1969. E G H A B c D F F G H J. N. MISHRA V. B!HAR (Hegde, !.) 393' S. V. Gupte and U. P. Singh, for the appellant. · H R. Gokha/e and R. C. Prasad, for respondentNos. I and 2. D. P. Singh. forrespondent No. 3. TheJudgmentof theCourt was delivered by Hegde, J. Theappellantand the thirdrespondentare serving in theAgriculturalDepartment of theBiharGovennment.Till February1968 Mr. B. N. Sinha was theDirectorof theAgricul ture in that State. He retiredin Februaryof thatyear. On November 25 1967the State Govenunent of Biharwroteto the Public Servic~ Com~i~ion requestingthe Commissionto select oneof thefourteen officers shown in the listaccompanyingthat letter tor beingpromoted as Directorof Agriculturi:i. The pay scaleof some of those officers was Rs.. 900-1400 adld others Rs. 1200-1700. ·In thatletterthe Governmentstated that the questionof seniority of those officers is stillunderconsideration andthe list sent was not arqmged in accordancewith seniority. TheCommissionwrote to the Government on April29, 1968ask ing the Government to determinethe seniorityof thoseofficers beforeit is asked to recommendone of themfor beingappointed as Directorof Agriculture.The Government wrote backto the Commission on September23, 1969statingthat the questionof seniority of those officers cannot be easilysettled as there were some complicationsand the Commission should proceedto select one of the officers mentionedin thelist solely on thebasis ol merit andsuitability. After examininir therecordsof all the officers concerned·, the Commissionrecommendedthe nameof theappellant.Immediately thereafterthe third respondent approachedthe HighCourtwith a petitionunder Art. 226 of theConstitutionpraying that the recom mendationof theCommissionmay be quashedand the Govern ment· asked to makethe appointment in accordancewith the rules. TheHighCourtcame to theconclusionthat the third respOtlldent !s seniorto theappellantand has greater merit than the appellant. Henceunder the ruleshe was entitled to be promoted.This is an appeal,by certificateagainst that discussion.Thereafter the Gov ernmentappointedthe thirdrespondent to officiate as Directorof Agriculture. It appearsthat the thirdrespondent is superannuated onthe1st of thismonthbut he hasbeengivena month'sexiension. lt w~s not disputed before us thatthe oostof Directorof Agri culture is aselectionoost. Thereforethe questionof seniority was notrelevantin makingthe selection. It is for the State Gov ernmentto selectsuch officer as it considers as mostsuitable .. In this view we thinkthe HighCourt ;.vas not justifiedin going intc;· 394 SUPREME COURT REPORTS [1971 J 2 S.C.R. the question of seniority nor will we be justifiedin going.into that {)Uestion. It may be notedthat at the timethe .Commission made thisrecommendationthe payscaleof boththe appellant as wel!as the thirdrespondentwas Rs. 1200-1700. So faras thequestionof ·suitability is concerned,the deci sionentirelyrested with the Government. In otherwordsthe ·Government is the solejudgeto d.ecide as to who is the most suit ablecandidatefor being appoiqled as theDirector of Agriculture. . For dischargingihat responsibilityit wasopento the'Government toseekthe assist3J!lce of the Public ServiceCommission. In our .judgmentthe HighCourtwas not justifiedin callingfor the records ·Of the Public ServiceCommissionand goingthroughthe notings made by variousofficers in theCommissionas welJ as the corre's pondencethat passedbetweenthe Commissionand the Gov~rn meht. The HighCourtoverlookedthe fact that the Government . sought.the assistanceof theCommissionand not that of theHigh Courtfor findingout the mostsuitablecandidate.In thiscase therewas no complaint of ma/a {ides eitheron thepart of the Gov ernment or theCommission.That being so the interferenceof the HighCourt i111 the matterof selection madC by theGovernmentwas 11ot called for. The post of Directorof Agriculture is admittedly an ex-cadre post. The selection to thatpost is madesolelyon thebasisof merit.Merely becausethe Governmentin itsletterto the Com missionused the word "promotion", theHighCourtshouldnot havetreatedthe case as one of "promotion". Theword "prdmo tion" used in theGovernment'sletter was an inappropriateword. Whatthe Govenrlment reallymeantwas selection of a person to be posted as theDirector.The natureof thepostcannotbe changed bytheGovernment'susing the word "promotion". Thepost remainsto be a selectionpost. The High Courtwas alsonot rightin opiningthat the recom mendation made by theCommissionwas not i1n accordance with therules.The two rules referredto bytheHighCourtare (1) Rules regulatingthe Biharand Orissa AgriculturalService, Class I l'romulgated on April 11, 1935 and (2) The Rulesregulatingthe recruitmentto BiharAgriculturalService Class I, the BiharAgri culturalService Class II, the Genera] ProvincialService and special postsoutsidethese cadrespromulgatedon July 9, 1945. The HighCourthas come to the conclusionthat 1935 rules were by implicationthough not specificallyrepealed by the 1945 rules. 1935 rulesmake it clearboth irn its preambleas well as bythe definitionof theword ''·Theservice" that thoserules do notapply A B C.ti D E F G H A B c D E F G H J. N. MISHRA V. BIHAR (Hegde, I.) 39& I to theappointmentto thepostof Directorof Agriculture.Fur!her Rule16 of thoserules reads: "The post of the Directorof Agricultureshall remain outsidethe cadreof theservice,but subjectto the provi sionof rule 17 belowit maybe filled at thediscretion ofthelocalgovernmentby a member of theservice." Rule17 says: "None but a memberof theIndianAgricultural Servic~ borne on the cadreof theBiharand Orissa shall be appointedto thepostof theDirectorof Agriculture. so long as any suchmember is availablefor appointment tothepostand whohas not beenheld by the Govern mentof Biharand Orissa to bepermanentlyunfit to holdsuchpost, Provided that wheneverthe localGovernmentcon siderthat no officerof theIndianAgriculturalService borne on thecadreof Biharand Orissa is fit forthepost oftheDirector,the assistanceof theGovernment of Indiashall be soughtwith a viewto procuringa suitable selectionfrom amongthe membe.rsof theIndianAgri cultural Service in otherprovincesbefore any other person is appointedto the post." Froma readingof rules 16 and17 of the1935rules,it is clear thatthe 1935rules did notcomein thewayof theGovernment rna]>ing its selection. Now coming to the1945rules, it is clear fromits preamble thatthose ru!P.s applyonly to ( 1) the BiharAgriculturalService Class 1; (2) theBiharAgricultural Service Class II and (3) the General Provincial Serviceand specialposts outsidethese cadres. Therefe1enceto thepostsoutside the. cadresof ClassI andClass II Services. it was contendedon behalf of theappellant as we!J as on behalfof the State Governmentrefers to posts in ClassI andClass II in additionto cadreposts and not to selectionposts. It is not nercssary for ourpresentpurposeto decidethat question. It is clearfrom rule 12 of the1945rules that theserules do notapply ·inthematterof fillingup thepostof theDirectorof Agriculture. That rulereads: "Whenever the Governordecides that a vacancyshal! befilledby promotion or transfer of anofficeralready intheservice of Government.a reference shall be made tothe Commission toadviseon suchselection.The Commission shal! besuppliedwith the recordsof the officernominatedfor promotion by theDirectorof Agri- / 396' SUPREME COURT REPORTS [197 I J c S.C.R. culture, togetherwith the recordsof officers, if any, who are seniorto the nominatedofficer." We are unableto visualisethat any service rule could h.ivc providedfor the nomination of his successor by an ollicer whc· ;, aboyt to besuperannuated.In ourjudgmentrule 16 of the 1 y:;:; rules is not s;iperseded by the 194) rules. In theresultthis appeal is allowedand the writpetition dis· missed.Taking into considerationthe factthat the thirdrespon dent is already superannuated we make no order as to costs in this appeal. V.P.S. A ppea/ allowed. A B |
