SWARAN LATA v. UNION OF INDIA & ORS .
Citation: [1979] 2 S.C.R. 953; 1979 INSC 7
Court: Supreme Court of India
Bench: V.R. KRISHNA IYER , A.P. SEN
Judgment date:
Case summary
1979 INSC 7. Supreme Court of India judgment dated 1979-01-16. SWARAN LATA v. UNION OF INDIA & ORS . Read the judgment and case details on LawSphereX.
Judgment text
958 SUPREME COURT REPORTS 11979] 2 s. c. R. • SWARAN LATA v. UNION OF INDIA & ORS . • January 16, 1979 [A. P. SEN AND V. R. KRISHNA lYER, JJ. J Constitution-Art. 309, proviso--lf obligatory on the part of the Gov« t~rranent to n:ake rules of recruitment before a sen•u'r! could bl' constituted or a post created or filled. Jntervrctation of statutes-States Reorganisation Act, 1966-S. 84-Scopc of --Section, if an incidental provision-Effect of incidentul provision after its purpose was served. ....... ~ Administrative directions issued by Jhe Central Government for implementing sr:/ien1e of reorganisation Of services-llf co:tltl circ11111scribe tf1e powers of Stare ,Government-Nature of instructions issued. Servire Commission-If has power to relax e. :;sential qualifications in selecting a candidate for a post. 1 Wn:ds and phrases: "1nainly' -Meani11g of. l\1ala fi. des·--Burden of proof-On lVho1n lies.
Section 84 of the States' Reorganisation Act, 1966 empowered the ·Central Government to issue directions to the State Governments of Punjab and Haryana and to the Administrator of the Union t'erritory of Chandigarh "for the purpose of giving effect to the foregoing provisions of this part (of the act)". For filling up the different posts under the control of the Chief ·Commissioner, Chandigarh, the Government of 1ndia issued instructions that the posts should be filled _up by deputation mainly from the Punjab nnd Haryana ·State cadres, and that the officer whose services were sought to be borrowed should have been holding a post, the scale of pay of which was equivalent to the scale of pay of the post in the Chandigarh Administration for which the officer was to be selected on deputation. At the request of the Chandigarh Adn1inistration the Govcrn1nent of Haryruna forwarded a panel of three names,~ including that of the appellant, ..
1 for appointment on deputation to the post of Principal of a \Vom~n s Techni· cal Institute: The post carried a scale of pay of Rs. 350-900. Although • 1he appellant was junior to the other two candidates, she was selected and tempora. rily appointed to the post since at that time she was on a pay scale of Rs. 350--900 in Haryana. Since in the meantime she had been offered a post in Delhi she left the post in Chrl. ndigarh. All efforts to get a suitable candidate either from the State of Haryana or of Punjab having prove ingle Judge of th.. : Tligh Court struck down the appointment of re~pondcnt no. 6 mainly on the ground th4t the presence of the Director of Technk:il Education 1'epresenting the Chandigarh Admini5tration in the interview board Yitiated. her appointinent inasmuch ns he was actuated by bias against 1he appellant. But on appeal a Division Bt.
>nch reversed the order of the single Judge holding that the allegation of nuila (ides or bias had not been made out by the appellant against the representative of tht: Chandigarh A appear that right from March 7, 1974 till • August 14, 1974 when the Chandigarh Administration forwarded requisition to the Union Public Service Commission to advertise the post for direct recruitment, i. e. for nearly 6 months, the Government of Haryana took no action in the matter. During this period, it just persiJ;ted in its stand in forwarding n panel of names of officers carried on the scale of Rs. 30Qc500 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 sponsor-ing 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 the requisition did what was expectetl of them and duly informed the Government of Haryana of their decision to recruit a Principal through the Commission and requested that it may direct the eligible officers from Ha1yana to apply for the post. In response, the Government of Haryana by its letter dated September 27/30, 1974 registered a protest staking a claim as if the post of Principal of the Institute was a Haryana-quova post, i. e. , it could be filled in only by an officer on deputation from the State of Haryana. p 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 s. 84 of the Act, if at all they were applicable.
Viewed from any angle, we must hold that the Chandigarh Administration was within their rights in making the appointment to the post of Principal, Government Central Craf,js Institute for Women, ~ Chandigarh by direct recruitment through the Union Public Service Commission. Thus the appointment of respondent No. 6, Smt. Prem Lata Dewan. as Principal of the Institute '-''aS not invalid as be;ng contrary to the directions issued by the Central Government under s. 84 of the Act inasmuch as the mid d'recUons were not applicable and also because there was no breach thereof, if at all they applied. Al • SWARAN cATA v. UNION (Sen, J. ) 965 That leads us to the other branch 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 quali-fioations ? The appellant has nowhere alleged in the writ pe.
tition 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 cannot be exercised arbitrarily. " In view of this udmission, she cannot be heard to say that the Union Public Service Commission had not such power. Since however the point was argued at length, we think it necessary to deal with it. It is undisputed that there is no statute or regulation having the force of law, by which any qualifications are prescribed for the post of Principal of the Institute. Nor has the Administrator framed uny rules to regulat<> the method of recruitment to such post, or faying 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 pest of Principal of the Institute are pri-marily administrative in nature, but the qualifications prescribed were, however, essentially technical. The Commission, therefore, by its letter dated September 16, 1974 returned the requisition to the Chandigarh Administration, with the observation that they should lay down the qualifications keeping in view the nature and duties of the post. The Chandigarh Administration accordingly on January 2/4, 1975 forwarded a fresh requisition revising the qualifications for the post i. e, including '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 e;lsential qualification' were pre5cribed by the Chandigarh Administration in consulration 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 su. itable candidates. Where qualifications for eligibility are not prescnbed by rules, broad decisions as to the method of recruitment are taken in consultation with the Commission. This require-ment was fulfilled in this particular case. The Chandigarh Administration was fully aware that the Commission had reserved to itself the power to relax the essential qmlifications. The Commission, therefore, acted within its powers in relaxing the qualifications of the candidates called for interview.
In fact, the Chandigarh Administration ratified the action of the Commission in making the appointment. The • appointment of respondent No. 6, Smt. Prem LatJ Dewan cannot, therefore, be challenged on the ground that either the Commiss'on had. no power to relax the qualifications or that she did not possesss the • minimum qualifications prescribed for the post. 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 & Anr. (') that the Union or the State Public Service Commissions cannot select a candidate who docs not possess the qualifications prescribed. We do not see how this decision is of any avail to the appellant.
On the contrary, while laying down that the Government has to fill up posts by appointing those who are selected hy the Public Service Conm1ission and must adhere to the order of merit in the list of candidates sent by the Commission, it observed : "It is entirely in the wisdom and discretion of the Commission what mode or method it would adopt. That is subject to statutory provisions, if any. Where mm1mum qualifications for e! igiblity 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 interyiew only those candidates who fall within those categories, eliminating others who do not satisfy these criteria. " This decision, in our opinion, instead of supporting the appellanr goes against her.
We are of the view that the decision of this Court in Union of India & Ors. v. S. B. Kohli & Anr. (') and that of the Bomb&y High Court in Maharashtra Stale Electricity Board Engineers' Association, Nagpur v. Maharashtra State Electricity Board(') arc both distinguish-able on facts. In S. B. Kholrs case, this Court was concerned with interpretation of items 2 and 3 of Annexure. I to the Second Schedule (I) A. I. R. 1978 M. P. 59. (2) [1973] 3 S. C. R. 117. (3) A. I. R. 1968 Born. 65. SWARAN LATA v. UNION (Sen, J. ) 967 of the Central Health Service Rules, 1963, as nmended, 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 general F. R. C.
5, a Snrgeon must have • a diploma in Orthopaedics before he could be appointed a Profess~r, Reader or Lecturer in Orthopaedics. It was said that to hold otherwise, would me3n that a person who has the qualification of F. R. C. 5 would be deemed to be specialised in Orthopaedics, without his having any snch qualification. In the Maharashtra State Electricity Board's case, (supra) the Board, which is a statutory Corporation, made the Maharashtra State Electricity Board (Classification and Recruitment) Regulations, 1961, in exercise of its powers under s. 79 of the Electricity Supply Act, 1948. Regulation 8 invests the power of modification of minimum qualifications or exeperience required for the various categories of posts only in the B·oard. Regulation 21,, however, confers power on the Selection Committee to recommend, in deserving cases, relaxntion of the age limit and educational or other qualifications.
The Board issued an advertisement inviting applications for the post of Executive Engineer (E&M). The advertisement nowhere mentioned that the minimum requirements of qualifications and experience were liable to be relaxed. This res·cJ! ted in deni'al of equal opportunity to the departmental candidates who could have applied when the post was advertised, if it was known that the qualifications and experience, as advertised, were not rigid and liable to relaxation. The High Court accordingly struck down the direct recruitment of a person to the post of Executive Engineer (E&M) since the advertisement effectively prevented the deFart-mental 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 (I) . In our view, the decision turned on its own facts.
In the present case, as already pointed out, there was no statute or regulation having the force of law by which any qualifications were prescribed for the post of Principal. There were also no rules framed to regulate recruitment and conditions of service of the post under the proviso to Article 309 of the Constitution. It was the exclusive power of the Chandigarh Administration in the absence of any law or rules, to prescribe the essential qualifications for direct recruitment to the post, and, accordingly the qualifications were prescribed in consultation with the Commission. The Commission while adverfr;:p the post, 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 Teehuology 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. J\lathai, Under Secretary in the Union Public Ser- • vice Commission shows that in the case of respondent No. 6, the Commission relaxed essential qualification No. (ii), as under : "Requirement of Diploma of Industrial 'training of two years' duration". It is noteworthy that essential qualification No. 2, as advertised was 'Diploma in Technology of three years· duration or Diploma of Industrial Training of two years' duration with one year's teachers training/C. T. l. ' Indeed, respondent No. 6 had essential qualification No. 2. The word 'or' 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 IrwiR Coliege, Delhi. .
It is a matter of common knowledge that Home Science, in some countries called 'don1cstic 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 their living. It is concerned with all phases of home life and includes the following subjects : child devclop\)lent and family relationships; }1 clothing, textiles and related arts; family economics and home management; food and nutrition; housing and house management. Shorter Oxford Dictionary, 3rd ed. , Vol. II. p. 2253 gives the meaning of 'Technology' as : • "a discourse or treatise on an art or arts; the ter1nino-logy of a particular art or subject: the scientific study of children. " In Webster's ]'! ew International Dictionary, 2nd ed. , vol. IV, p. 2590 apart from giving it the n1eaning of "industrial science'', also conveys to it the meaning : "any science or systematic knowlcdge of the industrial arts.
'' ... SWARAN LATA .. l. '. NIQN ~Sen, J. ) 969 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 : edui:ational technology; the terminology of • an art, science, etc. ; technical non1enclature. " Though in its primary sense it is true that the word 'Technology' in-volves a technical process, invention, method of the like, in the broader sense it embraces non-engineering related curricula pertaining to applied and graphic arts, education, health-care, nutrition, etc. i. e. it .. ,. _ includes technique or prmessiona! skill in any of the subjects enume-rated above. The expression 'Diploma in Technology' is,. therefore, wide enough to include a Diploma in Home Science. In S. B.
Koh/i's case (supra) this Court observed : "This argument was based on the provision in the Annexure I to the Second Schedule which states that the qooli-fications are relaxablc at C01mnission's discretion in the case of candidates otherwise well qualified. That is no doubt so. Bnt the discretion is given ouly 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 Jaw it has to be given effect to. " It was then observed : "Moreover, the Union Public Service Commission when it proceeds to fill up a post by direct recruitment does so by calling for applications by extensive advertisements and it is but reasonable that if on a consideration of all those applications it finds that persons possessing the prescribed qualifications are not a»ailable but there arc persons otherwise well·qualified, they may be selected.
" The Union Public Service Commission was, therefore, perhaps not wrong in selecting respondent No. 6 as a suitable candidate for the post. 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. 0. 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 ou_r view, the allegations in the writ petition are not sufficient to constitute an avern1ent of 111alafides or bias on the part of either the Chandigarh Admu1istrntion or in particular against Dr. 0. S. Sehgal sufficient to vitiate the appointment of respondent No. 6. No malafides as such are imputed against the Union Public Service Commission.
The Court would be justified in refusing to carry on investi-gation into allegations of malafides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. • n The burden of establishing malafides lies very heavily on the person who alleges. • 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 Jetter written by Dr. 0. S. Sehgal dated October 9, 1974 to the Home Secretary, Chandigarh Administration wherein he had not said a word against t11e appellant.
All that he said in his capacity as Director, Technical Education was that on account of the failure to appoint a Principal for quite sometime the Institute was in a bad condition, and that although lie had given charge to the Vice Principal, she did not prove effective, suggesting that the Government of Haryana should be requestccl to lend the services of Smt. Choampa Malhotra as he was prepared to take her back as she had worked for a long time as Principal, in order that the work of the Institute should not suffer. The whole tenor of the document shows that it was written in the best int Sri S. N. Bhanot, Secrcl'ary to the Government of Haryana, Industrial Training Department. Dr. A. C.
Mathai, Under Secretary, Union Public Service Commission has on affidavit stated that 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. 0. 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 wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1.
This circumstance clearly shows that the Selection Committee was wholly uninfluenced by any other consideration except merit. In S. Pratap Singh v. The State of Punjab(') this Conrt laid down 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 me -0£ 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 appel-lanfs own showing, Dr. 0. S. Sehgal as Director, Technical Education recorded appreciation of her as Principal of the Institute. This clearly shows that he had no particular animus against her. Furthermore, as the Division Bench observes, merely because Sri B. S. Ojha, Home Secretary, Chandigarh Administration addressed a letter to Sri S. N.
Bhanot, Secretary to the Government of Hmyana, Industrial Training Department dated October 11/14, 1974 expressing his unwillingness to take the appellant on deputation because sl1e was not holding a substantive rank in the pay scale of Rs. 350-900, (l):A. I. R. 1964 S. C. 72 • . ·~ contrary to the instructions of the Government of India and alllo because the Chandigarh Administration felt that looking to her past performance as Principal during her short stay, she was not a suitJable 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. 0. 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 suitability of candidate for appointment. There is nothing to suggest that the reasons given by the Home Secre- •. tary were not his own reasons based upon his own information.
It is needless to stress that the Home Secretary to the Government of a State holds a very sensitive position and is the nerve centre of the administration fully conversant with the realities. For aught we know, the Home Secretary had his own sources of information. In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuasion by any-one, 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 he<ard 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 Government under s.
84 of the Act or that the Commission had exceeded its powers, by usurping the functions of the Chandigarh Administration, in relaxing the essential qualifications of the rnndidates called for interview or that respondent No. 6 was not eligible for appointment inasmuch as she did not possess the requisite· ~. essential qualifications. She fully know that under the terms of the advertisement, the Commission had reserved to itself the power to relax any of the essential qualifications. 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. Lastly, the contention of rcsponrlent No. 7. S1nt. Usha Wadhwa that the failure of the Union Public Service Conunission to re-advertise the post prevented her from aoplyine. for the post and thereby there was denial of eaual opportunity to her in violation of Article 16(1) can be easily disposed of.
It is trne that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons possessing the qualifications -advertised, as prescribed by the rules, are available and rove submitted their applications. If a relaxation has to be made, there is a duty SWARAN LATA v. UNION (Sen, J. ) 97 3 cast to re-advertise the post. In the instant case, however, the advertisement itself cont'ained a relaxation clause and, therefore, nothing ' prevented respondent No. 7 from making an application, if she felt that she was better, if not equally, qualified as respondent No. 6. The contention appears to be an afterthought and must be rejected. In conclusion, we cannot but express our sympathy for the appei- • lant. This unfortunately is a situation of her own making. The Courts can only act where there is any infringement of a right but not merely on equitable considerations.
We wish to mention that the counsel appearing for the Chandigarh Administration very fairly suggested that if the Government of Haryana were to forward the name of an officer immediately senior to the appellant in the cadre of Head- Mistresses, who may be holding a post in the pay scale of Rs: 350-900 for appointment on deputation in an equivalent post, such officer could be absorbed by the Chandigarh Administration in the pay scale of Rs. 350-900. That being so, the appellant could still be saved from the predicament of being posted as a Head-Mistress in the pay scale of Rs. 300-500 on her reversion to her parent State. This is, however, a matter for the Haryana Government to decide. The result, therefore, is that the apprnl fails and is dismissed. There shall be no order as lo costs. P. B. R. Appeal dismissed ~- • ' •
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