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SUPREME COURT OF INDIA
E.S. VENKATARAMIAH AND R.B. MISRA, JJ.
Ramendra Singh and others etc., Appellants
Versus
Jagdish Prasad and others etc.,
Civil Appeals Nos. 308-310 with 311 - 313 of 1977
Decided on 17-2-1984.
WITH
State of Bihar and others, Appellants
Versus
Shyam Dayal Pandey and others, Respondents.
Advocates appeared
Mr. L. N. Sinha, Sr. Advocate, M/s. R. P. Singh, R. K. Jain, Suman Kapur, Advocates with him for Appellant in C. A. No. 308 of 1977; Mr. R. K. Garg, Sr. Advocate, M/s R. P. Singh, R. K. Jain and Suman Kapoor, Advocates with him, for Appellant in C. A. No. 309 of 1977; Mr. R. K. Jain, Advocate for Appellant 886 in C. A. No. 310/77; Mr. L. N. Singh, Sr. Advocate, Mr. D. Goburdhan, Advocate with him, for Appellant in C. As. 311-13/77; Mr. L. N. Sinha, Sr. Advocate, Mr. D. Goburdhan, Advocate with him, for Respondents 3-7 in C. A. No. 308/77, Respondents Nos. 2-6 in C. A. No. 309/77 and for Respondents 2 to 4 in C. A. No. 310/77 Mr. M. K. Ramamurthi, Sr. Advocate, Mr. D.P. Mukherjee, Advocate with him, for Respondents 12-13 in C. A. No. 308/77 and RR 9-10 in C. A. 310/77; Mr. U. S. Prasad, Advocate, for respondent No. 4 in C. A. No.309/77; Mr. G. L. Sanghi, Sr. Advocate, M/s. Radha Mohan and M. L. Verma, Advocates with him, for Respondents 1, 2 and 6 in C. A. No. 309/77 and for Respondent 11 in C. A. No. 310 of 1977; Mr. Jaynarain and M/s R. P. Singh, R. K. Jain and Suman Kapoor, Advocates, for Respondents in C. As. Nos. 311-313 of 1977; Mr. A. K. Sen, Sr. Advocate, Mr. Radha Mohan Prasad and M. L. Verma, Advocates with him, for Respondents 1 and 2 in C. A. No. 313 of 1977.
Constitution of India,1950 – Article 14, 226, 309 and 16 - Appointed as mechanical overseers - Temporary basis - Selection committee - Appointed as mechanical overseers on temporary basis in World Bank Project, a unit of Public Works Department after appearing before a selection committee duly constituted according to R. 1 referred to above - Appointment of contesting respondents by orders dated with retrospective effect has been challenged on ground that they were temporary mechanical sub-overseers and had not got requisite qualification for being appointed as overseers nor did they appear before selection committee as required by R. 1 of PWD Code and in any case they could not be appointed with retrospective effect - Whether appointment of contesting respondents, arrayed as appellants in first batch of three appeals, by two orders dated - Whether in exercise of that power State in violation of Art. 16 of Constitution could make retrospective appointment of contesting respondents in instant case so as to affect seniority of petitioners - Whether impugned gradation list had been prepared in accordance with law? -Whether promotion of various respondents on basis of said gradation list is justified? - Whether appointment of respondents was bad as they had not appeared before selection committee ? – Held, There can be rule for one person or one post but rules are meant for recruitment and conditions of service - Rules are not for purpose of validating an illegal appointment or for making appointments or promotions or transfer - Rules under Art. 309 are for purpose of laying down conditions of service and recruitment - Therefore, regularisation by way of rules under Art. 309 in present case by stating that notwithstanding anything in rules appointment of respondent was being regularised was in itself violation of rules as to appointment and as to cadre and also as to proper selection - Orders dated which purported to appoint the sub-overseers named therein as temporary overseers from date of publication of their result of diploma examination are clearly violation of Arts. 14 and 16 of Constitution inasmuch as petitioners had already been appointed as overseers by selection committee constituted under, rules contained in P.W.D. Code - Order of temporary appointment by impugned orders dated conferred notional seniority on contesting respondents for period while they were actually working as sub-overseers in lower scale outside cadre of overseers - Appeals dismissed.
JUDGMENT
MISRA, J.:— This bunch of appeals is directed against a common judgment and order of the Patna High Court dated 8th September, 1975 (reported 1976 (1) Serv LR 407) allowing three petitions under Art. 226 of the Constitution, in part.
2. The material facts to bring out the points for consideration in these appeals lie in a narrow compass. The Public Works Department in Bihar had a very small mechanical organisation. In 1962, however, it undertook the execution of a World Bank Project. In that connection a number of mechanical overseers were needed. As the project had to be executed on an emergency basis within a short time and there being dearth of qualified overseers, persons who were working only as sub-overseers or persons who had appeared at the diploma examination in engineering, but had not passed the same, were appointed against the sanctioned posts on a provisional basis. There were some others who were also appointed as mechanical overseers on temporary basis in the World Bank Project, a wing of the Public Works Department, after appearing before a selection committee duly constituted according to R. 1, Appendix II of the Bihar Public Works Department Code, 1st Edn., 1958, Vol. II. This rule reads :
"All permanent appointments to the Bihar Subordinate Engineering Service either by absorption of temporary or work-charged Overseers and Estimators, or by direct recruitment, will be made by the Chief Engineer, provided that in the case of direct recruitment (permanent or temporary) appointment will be made on the advice of the committee of senior officers constituted for the purpose. The committee will consist of three members including the Chief Engineer, who will be the Chairman of the committee. The other two members will be nominated by him with the approval of the Government in the Public Works Department from time to time."
3. The Chief Engineer by orders dated 18th August and 26th September, 1964 appointed among others the following Persons, already working as sub-overseers in the department as temporary overseers against the sanctioned posts on their passing the diploma examination from the date of publication of their results of the diploma in mechanical / electrical engineering examination :
1. Ramendra Singh
2. Keshav Singh
3. Bhola Nath Chaudhary
4. Awadesh Kumar Singh
5. Rajeshwar Sinha
6. Ram Chandra Prasad
7. Udai Narain Singh
8. Sunil Kumar
9. Rajnandan Pd. Singh
10. Gopal Ram
11. Sidh Nath Singh
12. Prem Chand Prasad, and many others who are not parties here.
It appears that a provisional gradation list of overseers was prepared. Certain overseers who felt aggrieved by the provisional list made various representations and eventually a revised gradation list dated 17th November, 1973 was prepared. Some of the aforesaid twelve persons were promoted as Mechanical Sub-Divisional Officers by an order dated 13th March, 1974.
4. The revised gradation list dated 17th November, 1973 and the two orders dated 18th August and 26th September, 1964 appointing the aforesaid twelve persons as temporary overseers with retrospective effect and the order dated 13th March, 1974 promoting some of them as Mechanical Sub-Divisional Officers were challenged by three separate writ petitions : (1) writ No. 1419 of 1973 filed by Shyam Dayal Pandey, (2) writ No. 467 of 1974 filed by Ful Chand, and (3) writ No. 522 of 1974 filed by Jagdish Prasad and Mohammad Shamsuddin. The respondents in the three petitions including the aforesaid twelve persons were common, though differently numbered.
5. It would be convenient to identify the parties with reference to the writ petitions. The writ petitioners therein will be referred to hereinafter as the petitioners and the above-mentioned twelve persons, whose retrospective appointment has been challenged, as the contesting respondents.
6. The case of the petitioners in the three petitions has been that they were appointed as mechanical overseers on temporary basis in the World Bank Project, a unit of the
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