1. Dispute over appointment to a newly created post via a composite method before the notification of specific recruitment rules. (Para 1 , 2 , 3 , 7 )
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1998 Supreme(SC) 50
1998(9) Supreme 214
Supreme Court of India
S. Saghir Ahmad & D.P. Wadhwa, JJ.
B.N. Sinha -Appellant
versus
Union of India & Ors. -Respondents
Civil Appeal No. 4610 of 1992
With
C.A. Nos. 14563-64 of 1998
(Arising out SLPs (C) Nos. 14206- 14206A of 1992)
Decided on 14-1-1998
Recruitment rules applicable to a specific post cannot be extended to another distinct post not listed in the rules' schedule. Judicial bodies cannot legislate by applying existing rules to a post not contemplated by the government, especially when the post is separate and distinct.
Headnote:All India Radio Civil Construction Wing (Class I and Class II Posts) Recruitment Rules, 1975 (as amended)-Chief Engineer (Civil) Level II Rules, 1990-Post of Chief Engineer (Civil) Level II created on 28.8.1986-Recruitment Rules not made - UPSC consulted-Commission suggested ‘composite method’ of making appointment-Post advertised - Appellant selected-Appointed to post on deputation-In absence of suitable departmental candidate-Recruitment Rules notified on 16.11.1990 - Whether 1975 Rules could be made applicable to appointment-Post of Chief Engineer distinct-Not covered by Schedule of 1975-(as amended)-Even during interregnum-Period between date post created and date on which rules made - Tribunal committed manifest error of Law in holding that in absence of Recruitment Rules-Post regulated by Recruitment Rules of 1975.
Held : When the post of Chief Engineer Level II was created on sanction from the President, it was not included in the Schedule. Since the applicability of the Rules was restricted to the posts mentioned in the Schedule the Recruitment Rules would not apply to be a post not included in the Schedule, including that of Chief Engineer Level II, for which the Government itself made separate Rules known as “All India Radio (Chief Engineer (Civil) Level II) Recruitment Rules, 1990”, which were published vide notification dated 16.11.1990. Even during the interregnum, namely, the period between the date on which the post of Chief Engineer (Civil) Level II was created and the date on which the Rules for that post were made, the Rules for making appointment on the post of Chief Engineer (Civil) Level I could not be made applicable to the post in question as their applicability was restricted to the posts mentioned in the Schedule. (Para 9)
The Tribunal, by the impugned judgment, by stretching the Recruitment Rules, 1975 to a post, namely, the post of Chief Engineer (Civil) Level II, has only attempted to legislate on a subject which was not its business. The Rules of Statutory Interpretation or the Rules of a subordinate legislation, including Rules made under Article 309 of the Constitution, do not empower any judicial or quasi-judicial body to apply the law to a situation or object which was not contemplated by the legislature while making a law, or by the Government while making the rule. The Tribunal, thus, committed a manifest error of law in holding that in the absence of any rule regulating the appointment on the post of Chief Engineer (Civil) Level II, the Recruitment Rules of 1975 would apply to that power. (Para 10)
Legal Category Hierarchy
Table of Contents
2. Whether recruitment rules for a similar post apply to a distinct newly created post in the absence of specific rules. (Para 4 )
3. The post was distinct and not listed in the schedule of existing rules, rendering those rules inapplicable during the interregnum. (Para 7 , 8 , 9 )
4. Recruitment rules limited to a specific schedule cannot be extended by a court to a distinct post not contemplated by the rule-making authority. (Para 8 , 9 , 10 )
5. Appeal allowed, Tribunal's judgment set aside, and the appointment upheld. (Para 11 , 14 )
6. Can recruitment rules for one post be applied to another similar post if the latter is not mentioned in the rules' schedule?
No. If the applicability of the rules is restricted to posts specified in a schedule, those rules cannot be applied to a separate and distinct post not included in that schedule. (Para 8 , 9 )
7. Does a judicial body have the power to extend the application of subordinate legislation to a situation not contemplated by the rule-making authority?
No. Rules of statutory interpretation do not empower judicial or quasi-judicial bodies to apply the law to a situation or object not contemplated by the legislature or government while making the rule. (Para 10 )
8. How can a post be filled when no formal recruitment rules exist at the time of creation?
The government may consult the Union Public Service Commission for advice on the mode and manner of appointment, such as adopting a composite method of promotion and deputation. (Para 2 , 7 )
Judgment
S. Saghir Ahmad, J.-The dispute in the present appeal relates to the post of Chief Engineer (Civil) Level II, on which the appellant was appointed after due selection.
2. The post of Chief Engineer (Civil) Level II in the Civil Construction Wing of All India Radio was created on 28.8.1986. At the time of the creation of the post, there were no Recruitment Rules. Consequently, the Government of India referred the matter to the Union Public Service Commission for its advice as to the mode and manner of making appointment to the post. The Commission, by its letter dated 9.9.1988 advised that till the Recruitment Rules are made, appointment on the post of Chief Engineer (Civil) level II may be made by a composite method, namely, by a promotion from amongst the suitable departmental candidates and if a suitable departmental candidate was not available, the post could be filled up by transfer on deputation.
3. In pursuance of the advice tendered by the Commission, an advertisement was made on 11th October, 1988 inviting applications for appointment on this post. The advertisement brought forth several outsiders as also departmental candidates, including the appellant and Respondent 4, who were interviewed by the Commission on 23-7-1990 and in the absence of a suitable departmental candidate, the appellant was selected and appointed to the post which he joined on 27.8.1990 on deputation from another department. It may be mentioned that the Recruitment Rules concerning the post in question were notified on 16-11-1990.
4. Respondent 4, who was one of the candidates for the post in question and was interviewed by the Commission, challenged the appointment of the appellant on the ground that in the absence of rules relating to this post, the Rules made under Article 309 of the Constitution for making appointment on the post of Chief Engineer (Civil) Level I should have been followed. This contention was upheld by the Tribunal, which by its impugned judgment dated 22.11.1991 held that the appointment of the appellant on the post in question was illegal. The direction was issued to the Government of India and other respondents concerned for making the appointment on the post in accordance with the Rules as they existed prior to 16.11.1990. The Tribunal indicated that, since the post of Chief Engineer (Civil) level II was created in the cadre of Chief Engineer (Civil) Level I, this post should also be regulated by the Rules applicable on making appointment to the post of Chief Engineer (Civil) Level I. The judgment passed by the Tribunal, in our opinion, is wholly erroneous and cannot sustained.
5. The Civil Construction Wing in All India Radio was constituted in 1973. The Rules which were first promulgated for regulating service conditions in the Civil Construction Wing were known as “All India Radio, Civil Construction Wing (Class I and Class II Posts) Recruitment Rules 1975” (for short Recruitment Rules). They came into force on 9.12.1975. The highest post indicated in these Rules was the post of Additional Chief Engineer (Civil Construction) which was abolished and in its place a post of Chief Engineer (Civil) was created, vide notification dated 23.12.1981. With the creation of this new post, the Recruitment Rules were amended.
6. The post of Chief Engineer (Civil Construction) was, however, abolished with effect from 17.9.1984, and in its place, the post of Chief Engineer (Level II) in the scale of pay of Rs. 2500-2750 was created. On 17.10.1985, the Recruitment Rules were amended and in place of the post of Chief Engineer, the post of Chief Engineer (Level I) was indicated in the Rules.
7. The post of Chief Engineer (Civil) Level II was created on 28.8.1986. It was a new post created with the sanction of the President. This post was not included in the Schedule appended to the Recruitment Rules (as amended) and therefore, these Rules were not made applicable to the said post. It was for this reason that the Government of Ind
