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Swaran Lata Versus Union of India and Ors.

1979 (1) TMI 243 - SUPREME COURT OF INDIA

Civil Appeal No. 628 of 1978 - Dated:- 16-1-1979 - A.P. Sen and V.R. Krishna Iyer JUDGMENT A.P. Sen, J. 1. 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 Court dated February 13, 1976 mainly raises the question whether the appointment of the respondent No. 6, Smt. Prem Lata Dewan by the Chandigarh Administration to the post of Principal, Government Cent .....

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he 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. 3. 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 .....

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scribed 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 Lata Dewan as the candidate most suitable for appointment to the post of Principal, were vitiated because Dr. O.S. Sehgal, Director, Technical Education, Chandigarh assisted the Selection Committee in its deliberations during the interview, on account of his bias, if any, against the appellant. 4. The main argument advanced .....

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ntention 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. 5. There is no warrant for the contention that the power of the Chandigarh Administration in relation to the mode of filling up the post in question, which admittedly is under the control of the Administrator, Chandigarh Administration, stands circumscribed by the terms of the dire .....

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ersonnel for the Union territory of Chandigarh would be provided on deputation by the two States of Punjab and Haryana. The said instructions, so far material, read as follows: 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 filled up by deputation mainly from the Punjab/Haryana State Cadres. .....

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ion 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. 8. These, instructions were in conformity with the earlier decision of 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 stating that the Government had set up a committee h .....

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id instructions issued under Section 84 of the Act were supplemental, incidental or consequential provisions for the reorganisation of the States. The instructions were binding on the State Governments of Punjab and Haryana as also on the Chandigarh Administration in the matter of integration of services: Jagtar Singh v. State of Punjab and Ors. (1972)ILLJ530SC . 10. The key to the interpretation of the aforesaid instructions issued under Section 84 of the Act, obviously lies in the word 'ma .....

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. 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 nature and the effect of the directions issued by the Central Government under Section 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 Pra .....

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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 Articles 2, 3 and 4 of the Constitution is completed, such an incidental provision like Section 84 necessarily ceases to have effect. 13. While it is not disputed that the power to regulate matters relating to services under the .....

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rticle 73 and Article 162 of the Constitution, which is co-extensive with their legislative powers to regulate recruitment and conditions of service, nevertheless it 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 directions issued by the Central Government in relation to the setting up of services in a newly formed State under a l .....

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ade 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, would 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 .....

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are only supplemental incidental or con-sequential to the scheme of re-organisation of services, which is consequential upon the re-organisation of a State. They cannot be given a wider effect than what is intended. 16. It may incidentally be mentioned that on November 1, 1966, i.e., on the appointed day under Section 2(b), the President of India issued an order, in exercise of the powers conferred by the proviso to Article 309 of the Constitution directing that the Administrator of the Union te .....

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n; 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. 17. 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 .....

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e: 'State Public Services': B.N. Nagarajan v. State of Mysore (1967)ILLJ698SC . There is nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. The same view has been taken by this Court in T. Cajee v. U. Jormanik Siem and Anr. (1961)ILLJ652SC and Sant Ram Sharma v. State of Rajasthan and Anr. (1968)IILLJ830SC . The same principle underlies Article 73 of the Constitution in relation to .....

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le 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 Lata Dewan by the Chandigarh Administration to that post, by direct recruitment through the Commission was not invalid. 20. Even assuming that the directions issued by the Central Government under Section 84 of the Act were binding on the Chandigarh .....

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ion that it was not possible to relieve any woman officers in the grade of ₹ 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 ₹ 300-500. This could not obviously be done as it would be contrary to the instructions of the Government of India, Ministry of .....

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, Technical Education by his letter dated October 9, 1974 addressed to the Home Secretary, Chandigarh Administration stated that the qualifications prescribed by the Government of India in the Training Manual for the post of Principal in such institutions were as under: 1. Degree or its equivalent in Mechanical Engineering or Electrical Engineering will be preferred. 2. In the case of degree holder, practical experience of one year in a reputed concern or in a training institute will be desirabl .....

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gazetted scale of ₹ 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 ₹ 350-900 and that throughout the Chandigarh Administration had been appointing Principal of the Institute only from the cadre of Assistant Directresses. 22. In response to Government of Haryana's letter dated September 27/30, 1974, the Chandigarh Adm .....

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ale of pay which she is not already holding in her parent State and also because it was of the opinion that looking to her past performance as Principal during her short stay, it was considered that she would not be a suitable person 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 .....

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e of ₹ 300-500 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 .....

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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 Section 84 of the Act, if at all they were applicable. 24. Viewed from any angle, we must hold that the Chandigarh Administration was within their rights in making the appointment to the post .....

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anch 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 qualifications ? The appellant has nowhere alleged in the writ petition 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 .....

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or laying 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 post of Principal of the Institute are pri .....

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;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 essential qualifications were prescribed by the Chandigarh Administration in consultation 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 suitable cand .....

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andigarh Administration ratified the action of the Commission in making the appointment. The appointment of respondent No. 6, Smt. Prem Lata Dewan cannot, therefore, be challenged on the ground that either the Commission had no power to relax the qualifications or that she did not possess the minimum qualifications prescribed for the post. 27. 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 and Anr.AIR .....

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f the Commission what mode or method it would adopt. That is subject to statutory provisions, if any. Where minimum qualifications for eligibility 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 interview only those can .....

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B. Kholi's case, this Court was concerned with interpretation of items 2 and 3 of Annexure I to the Second Schedule of the Central Health Service Rules, 1963, as amended, 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 .....

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ication and Recruitment) Regulations, 1961, in exercise of its powers under Section 79 of the Electricity Supply Act, 1948. Regulation 8 invests the power of modification of minimum qualifications or experience required for the various categories of posts only in the Board. Regulation 21, however, confers power on the Selection Committee to recommend, in deserving cases, relaxation of the age limit and educational or other qualifications. The Board issued an advertisement inviting applications f .....

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Executive Engineer (E&M) since the advertisement effectively prevented the departmental 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(1). In our view, the decision turned on its own facts. 30. In the present case, as already pointed out, there was no statute or regulation having the force of law by which any qualificat .....

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, had reserved to itself the power to relax the qualifications in deserving cases. It is not that the Commission had relaxed one of the essential qualifications viz. qualification No. (ii) 'Diploma in Technology of three years duration', in the case of respondent No. 6 alone. There were three other candidates who were also interviewed, in relaxation of essential qualifications Nos. (ii) and (iv). The affidavit of Dr. A.C. Mathai, Under Secretary in the Union Public Service Commission sho .....

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; made the two clauses disjunctive, and they were in the alternative. Respondent No. 6 besides being a graduate in Arts also held a three years' Diploma in Home Science from Lady Irwin College, Delhi. 31. It is a matter of common knowledge that Home Science, in some countries called 'domestic economics' or 'domestic science', is a broad field of learning integrating the subject-matters of several disciplines to form a body of knowledge focussed on the problems of the home and .....

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's New International Dictionary, 2nd ed., vol. IV. p. 2590 apart from giving it the meaning of "industrial science", also conveys to it the meaning: any science or systematic knowledge of the industrial arts. The Random House Dictionary of the English Language, p. 1349 gives, some of the meanings of the term as: the application of knowledge for practical ends, as in a particular field: educational technology; the terminology of an art, science, etc.; technical nomenclature. Though .....

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case (supra) this Court observed: This argument was based on the provision in the Annexure I to the Second Schedule which states that the qualifications are relaxable at Commission's discretion in the case of candidates otherwise well qualified. That is no doubt so. But the discretion is given only to the Union Public Service Commission in cases of direct recruitment and not to the Departmental Promotion Committee in cases of promotion. As that is the intent of the law it has to be given ef .....

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selecting respondent No. 6 as a suitable candidate for the post. 33. The next question for consideration is whether there was bias. We are unable to hold from the material on record that there was any bias on the part of Dr. O.S. Sehgal Director, Technical Education, Chandigarh or that he influenced the members of the Selection Committee in any manner, so as to vitiate the selection of respondent No. 6. In our view, the allegations in the writ petition are not sufficient to constitute an avermen .....

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y heavily on the person, who alleges. 34. The Division Bench has pointed out, and we think rightly so, that the principles laid down in Kraipak's case (supra) were not applicable in the facts and circumstances of the present case. It rightly observes that no question of malafides or bias arises as it is clear from the letter written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, Chandigarh Administration wherein he had not said a word against the appellant. All that he said .....

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er. The whole tenor of the document shows that it was written in the best interests of the institution. He as the Director of Technical Education was solely responsible for the due administration of the Institute. The Division Bench has also rightly held that no inference of malafides arises from the letter written by Sri B.S. Ojha, Home Secretary, Chandigarh Administration dated October 11/14, 1974. 35. All that is said is that Dr. O.S. Sehgal, Director, Technical Education, 'for reasons be .....

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third Lady member, saying as to 'how they could take this Lady', meaning the appellant, 'as the Principal' and, therefore, she felt that she was a victim of the machination of Dr. Sehgal. There is nothing on record to substantiate such general and vague allegations of the appellant as to malafides or bias on the part of Dr. Sehgal. Dr. Sehgal in his counter-affidavit has controverted the insinuations made against him. Not a word was said at the hearing about the alleged utterance .....

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hat the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by any extraneous considerations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wron .....

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own that he who seeks to invalidate or nullify any Act for Order, must establish the charge of bad faith and abuse or misuse by Government of its powers. The allegations which are of a personal nature are not borne out at all. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the appellant would be entitled to any relief. On the appellant's own showing, Dr. O.S. Sehgal as Director, Technical Education recorded appreciation of her as Principa .....

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to the instructions of the Government of India and also because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitable person to be appointed as Principal, does not necessarily give rise to an inference of bias on the part of the Chandigarh Administration or Dr. O.S. Sehgal, Director of Technical Education. These were all matters within the competence of the Chandigarh Administration and it was for them to decide the sui .....

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She had willingly, of her own accord, and without any persuasion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central .....

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ications. With this full knowledge, she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds. 39. Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was denial of equal opportunity to her in violation of Article 16(1) can be easily disposed of. It is true tha .....

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