TMI Blog1966 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1957, hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission. Rule 3 of these rules provides for recruitment by examination and r. 4 with which we are primarily concerned provides for recruitment by selection. Rule 4 is as follows : When recruitment to a service or post is to be made by selection, and consultation with the Commission is required, the Commission shall (1)advise the Government in regard to the conditions of eligibility of candidates; (2)after the rules to be made have been approved by Government and a requisition for recruitment is received, invite applications from intending candidates after giving due publicity to conditions of eligibility, nature of com- petition, number of vacancies to be filled where possible, and any other relevant material; (3)consider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it considers most suitable for ap- pointment; Note.-Nothing contained herein shall preclude the Commission from considering the case of any candidate possessing the prescribed qualifications brought to its notice by Government, even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to urge that the GoveI Sup Cl/66-12 cannot recruit Assistant Engineers without framing rules, is in the following terms: Method of recruitment.-Recruitment to the State Civil Services shall be made by competitive examination or by promotion. The method of recruitment and qualifications for each State Civil Service shall be as set forth in the rules of recruitment of such service specially made in that behalf. It would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words shall be as set forth in the rules of recruitment of such service specially made in that behalf clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to art. 309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (g) than is justified by its language. Paragraph 3 (1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para 3 (1) (g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19 (1) (b) or till the District Council passed laws under para 3 (1) (g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remarks only deal with recruitment rules. This brings us to the next event, and that is Notification No E. 2666-58-9PSC dated October 1, 1958, issued by the Mysore Public Service Commission inviting applications in the prescribed form from qualified Indian citizens for recruitment of 40 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department. The Notification prescribes the qualifications, pay, age limit, other conditions for eligibility, fee payable and the particulars of the candidates required to be furnished. On March 4, 1959, the Governor of Mysore in exercise of the powers conferred by the proviso to art. 309 prescribed the maximum age limits for direct recruitment of graduates in Engineering for the posts of Supervisors and Assistant Engineers in the Mysore Public Works Department. These age limits were to prevail until the rules of recruitment specially applicable to Mysore Public Works Department were promulgated. The maximum age limits were made retrospective. It was further provided that anything done or any action taken by the Public Service Commission or other authority in respect of recruitment of Probationary Assistant Enginee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification, and it was provided inter alia in para 22 of the Notification as follows : 22. IMPORTANT NOTE: (i)The vacancies detailed in Part 'A' of the Statement were previously advertised in this office notifications noted in column 8 against each item and such of the candidates who have already applied for the said vacancy/vacancies in response to the previous notification need not apply again. But they may furnish additional information, if any, if they so desire. (ii)Applications already received in this office for the vacancies under Part 'A' will be considered on the basis of the revised classification issued by Government in their Order No. GAD 7 ORR 60, dated the 1st March, 1960. (iii)The qualifications, period of experience/training or service, the minimum and maximum age limits and all other requirements to be satisfied by the candidates for all the vacancies under Part 'A' in the statement shall be determined as on the dates noted against each item of vacancy/vacancies in column 9 of the statement. (iv)Such of the candidates who do not satisfy these conditions as on the dates noted in column 9 of the state- ment in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or after the course. One G. Govindaraju, Junior Engineer, filed a petition under art. 226 of the Constitution for a mandamus to the State Government prohibiting the appointment of 80 persons selected by the Public Service Commission. It was contended by him that on December 3, 1960, under the proviso to art. 309 of the Constitution the Governor had made rules regulating the recruitment to the posts of Assistant Engineers, and that under those rules, forty per cent of the appointments alone could be made by the Public Service Commission after an interview and an oral test. Various other arguments were urged before the High Court. The Ad- vocate-General stated before the High Court on behalf of the State Government that the list having been prepared by the Public Service Commission in response to the request made by the State Government in the exercise of its executive power which it possessed under art. 162 of the Constitution, the State Government was not bound to make appointments only in accordance with that list, and that it was open to the State Government not to appoint any of those persons or to appoint only those persons who, in its opinion, should be appointed amongst th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths. A certificate to that effect issued by the Principal of the College or Superior Officer under whom he has undergone training or is working must be enclosed to the application; Age limits must not be above- (i) 35 years in the case of Government servantsholding appointment substantively or who have been in continuous Government service for a period of not less than 3 years and political sufferers; (ii)33 years in the case of candidates belonging to Sche- duled Castes and Scheduled Tribes; (iii)31 years in the case of Backward Classes; (iv)28 years in the case of others; on the last date fixed for the receipt of applications. Period of Probation.-Two years. On October 31, 1961, the Governor of Mysore appointed 88 candidates as Probationary Assistant Engineers in the Mysore. Public Works Department and it is these appointments that were challenged before the Mysore High Court in the 16 writ petitions mentioned in the beginning of this judgment. Mr. Setalvad contends that under the proviso to art. 309 the Governor is entitled to make retrospective rules and the position of the Government while acting under the proviso to art. 309 is in no way different fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment. These notifications are not rules made under art. 309 of the Constitution, as contended by Mr. Nambiar; they are mere executive notifications issued by the Public Service Commission at least with the implied consent of the State Government. The passage reproduced above from the letter of the Government dated March, 4, 1959, clearly shows .that the Government was well aware of what the Public Service Commission was doing. It was aware of the action being taken by the Public Service Commission, and indeed, it can safely be assumed that the Government was aware of each step being taken by the Public Service Commission including the publication of these notifications. The position is that if we accept Mr. Nambiar's arguments that these rules purported to be made by the Mysore State Government had no retrospective validity, there were no statutory rules to govern the appointment of the 88 persons as Assistant Engineers. We have already held that the Mysore State Civil Service (General Recruitment) Rules, 1957, did not debar the Government from making appointments without making statutory rules. Therefore, we hold that these appointments were validly made. Mr. Nambiar sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 17.Similarly, relations of prominent members of the local Legislature and of Parliament, relations of high placed officials including a Minister and an ex-Minister have been selected. The Chairman of the Mysore Public Service Commission filed a counter-affidavit and replied to the above paras 16 and 17 as follows: 3. Paragraph 16 of the Petitioner's affidavit-The statement that the selection made was arbitrary and made out of collateral considerations is incorrect. It is true that Shri D. C. Channe Gowda was among the candidates selected. The then Second Member of the Public Service Commission abstained from participating in the interview of that candidate. I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission. The then Second Member of the Public Service Commission, Shri M. K. Appajappa is since dead. The dominant factor in making the selection was the performance of the candidate at the interview and the marks secured by the candidate in the Degree Examination was only one of the factors that was taken into, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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