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Kenchia and ors. Vs. State Level Recruitment Committee, Government of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1739 of 1964
Judge
Reported inAIR1966Kant36; AIR1966Mys36
ActsConstitution of India - Article 226
AppellantKenchia and ors.
RespondentState Level Recruitment Committee, Government of Mysore and ors.
Excerpt:
.....petitioners is quashed. - but it was contended that as the government had failed to nominate any officer under clause (iv) if rule 3(2), the committee was not properly constituted. its failure to nominate an officer has made the composition of the committee incomplete. and those words occurring to this clause, they seem really to leave no reasonable doubt, that a discretion is vested in the court below, of denying as well as of allowing an appeal. that being so, it would be in accordance with well accepted canons of construction to interpret the word 'may' as 'must' or 'shall'.see the decision of the supreme court in state of uttar pradesh v. (as he then was) speaking for the court laid down that the word 'may' as 'must' or 'shall' but it is well settled that the word 'may' is capable..........purpose the relevant rule is rule 3(2). it reads:'there shall be a state level (non-ministerial posts) recruitment committee consisting of: (i) secretary to the government of mysore in the concerned department, or his nominee, (chairman), (ii) head of the department concerned or his nominee, (iii) deputy secretary to government or under secretary to government of social welfare department. (iv) such other officer or his nominee as government may, by order, nominate for the specific purpose of selecting candidates for any particular category of posts, for recruitment to state-wide non-ministerial posts.' (5) it was admitted that the committee which recruited respondents 4 to 28 consisted of :1. the secretary to government, planning, housing and social welfare department, (chairman) 2......
Judgment:

Hegde, J.

(1) In this Writ Petition, under Article 226 of the Constitution, the petitioners seek the following reliefs:

1. To quash Notification No.GAD/SLC/14/RNM/63 dated 31-8-1964, marked as Annexure 'K' in the case;

2. To restrain respondents 1 to 3 from terminating the services of the petitioners as Probation officers and further to restrain them from relieving them from their respective posts;

AND

3.To issue a Writ prima facie Quo Warrato to respondents 4 to 28 to show cause under what right they claim to hold the office of Probation Officers and to oust them from the enjoyment of that office.

(2) The material facts of the case are as follows: The petitioners herein were serving as Probation Officers. They were 'local candidates'. Their appointment was purely temporary. In accordance with the Notification issued in No. GAD 114 SRR 61, dated 27-12-1962, a State Level Recruitment Committee was constituted for the purpose of recruiting officers for the non-Ministerial posts at the State Level. The Committee, after calling for applications and interviewing the applicants have recruited respondents 4 to 28. The petitioners who were also applicants and who had been interviewed were not recruited. By an Order dated 23-9-64, the petitioners were informed that their services as local candidates will stand terminated with effect from the date on which the State Level Recruitment Committee candidates report for duty as per paragraph 5(b) of the said Order.

(3) On behalf of the petitioners, it was contended that the recruitment of respondents 4 to 28 is invalid as the Recruitment Committee was not properly constituted and the recruitment was not done in accordance with the Rules bearing on the subject and consequently the recruited candidates could not replace the petitioners. We have to see whether those contentions are sustainable.

(4) The State Level Recruitment Committee was constituted under Rule 3 of the Notification No. GAD 114 SRR 61 dated 27-12-1962. For our present purpose the relevant Rule is Rule 3(2). It reads:

'There shall be a State Level (Non-Ministerial Posts) Recruitment Committee consisting of:

(i) Secretary to the Government of Mysore in the concerned Department, or his nominee, (Chairman),

(ii) Head of the Department concerned or his nominee,

(iii) Deputy Secretary to Government or Under Secretary to Government of Social Welfare Department.

(iv) such other officer or his nominee as Government may, by order, nominate for the specific purpose of selecting candidates for any particular category of posts, for recruitment to State-wide non-Ministerial posts.'

(5) It was admitted that the Committee which recruited respondents 4 to 28 consisted of :

1. The Secretary to Government, planning, Housing and Social welfare Department, (Chairman)

2. The Deputy Secretary to Government, Planning, Housing and Social Welfare Department; and

3. The Chief Inspector of Certified Schools (Members)

(6) Admittedly, the Government did not nominate any officer under clause (iv) of Rule 3(2). The question for decision is whether that omission vitiates the constitution of the Committee.

(7) It was conceded that till 23rd October 1961, recruitment to these posts was done by the Public Service Commission in accordance with the Mysore State Civil Services Class III (Non-Ministerial Posts) Recruitment Rules, 1959. The power of the Public Service Commission to make recruitment to the posts in question was taken away by the Government on 23-10-1961 in exercise of the powers conferred on it under the proviso to sub-Article (3) of Article 320 of the Constitution. Thereafter, as mentioned earlier, that power was given to the State Level Recruitment Committee under the Notification above referred to.

(8) The source of the power of the Committee to make the recruitment in question is the Notification mentioned earlier. It had no inherent power of its own. Hence, the exercise of its powers must be strictly in accordance with the Rules laid down in that Notification. If there is no strict compliance with those Rules then the exercise of the powers is vitiated. Therefore, we have to see whether the Committee was constituted as per the Rules contained in that Notification and whether the Committee had exercised its powers in the manner laid down in that Notification.

(9) It was urged by Sri. Ethiraulu Naidu the learned counsel for the petitioners, that Rule 3(2) requires that there shall be a Committee consisting of 4 members, those members being (1) one of the Secretary to the Government to Mysore in the concerned Department or his nominee. (2) Head of the Department, or his nominee, (2) Head of the Department concerned to his nominee, (3) Deputy Secretary or under Secretary to Government, of Social Welfare Department, and (4)such other officer or his nominee as Government may, by order, nominate for the specific purpose of selecting candidates for any particular category of posts.

(10) In the present case, the Secretary to Government in the concerned Department was there as Chairman of the Committee. Similarly, the Head of the Department was also there as a Member of the Committee. It was not denied that Deputy Secretary to Government, Planning, Housing and Social Welfare Department was also a Member of the Committee. But it was contended that as the Government had failed to nominate any Officer under clause (iv) if Rule 3(2), the Committee was not properly constituted. The contention of the learned counsel for the petitioners was that Rule 3 postulates the existence of a Committee consisting of the persons mentioned therein, one of the members of the Committee being the person to be nominated by the Government under clause (iv) of Rule 3(2) though in making that nomination the Government may designate any officers of its choice. In other words, the nomination of an officer under Rule 3(2)(iv) is 'a must' but the choice of that officer is within the discretion of the Government. On the other hand, the learned Advocate-General appearing for the State, contended that on a proper interpretation of the aforementioned clause (iv) of Rule 3(2), it would be seen that it is left to the discretion of the Government either to nominate an officer under the said clause or not. According to him, if the Government thinks that there is no necessity to nominate such an officer, in respect of any particular recruitment it may choose to do so. He asserted that the omission to nominate an officer under clause does not vitiate the composition of the Committee. In other words, his contention was that the permanent members of the Committee are only three. The nomination of the fourth member is within the discretion of the Government.

(11) Scope of rule 3 and Rule 4 of the Notification appears to be similar. The learned Advocate General did not contend otherwise. Rule 4 deals with the Divisional Level Recruitment Committee. That Rule says:

'(1) There shall be a Divisional Level Recruitment Committee at Bangalore, Mysore, Belgaum and Gulburga each consisting of:

(i) Divisional Commissioner of the Division (Chairman),

(ii) Deputy Director of Public Instruction in the Division, and

(iii) Director of Social Welfare or Assistant Director of Social Welfare.

(iv) Member co-opted under sub-rule (2) of this rule; and

(v) Such other officer or his nominee as Government, by order, nominate for the specific purpose of selecting candidates for any particular category of posts.

for recruitment to Division wide and District wide posts.

(2) In respect of recruitment to posts in a particular department, the seniormost officer of the department concerned shall be co-opted as a Member.'

It was not the contention of the learned Advocate-General that the scope of clause (v) of Rule 4 does in any manner differ from that of clause (iv) of Rule 3(2). Hence, the absence of the word 'and' at the end of Rule 3(2)(iii)cannot be considered to have any significance. All that can be said is that the Rules in question have not been drafter with the required attention and skill. From Rule 4 it is clear that the composition of the Committee is not complete unless the Government nominates an officer for the specific purpose of selecting candidates for the required category of posts. Both Rules 3 and 4 lay down that the Committee in question shall consist of the persons mentioned therein. The Government has no choice in that regard. The word 'may' used in Rule 3(v) merely empowers the Government to choose such officer as it thinks fit bearing in mind the purpose for which the Committee was constituted. The true effect of that clause is that the choosing of an officer is a 'must' but the person to be chosen is left to the discretion of the Government. If it had been otherwise, that clause would have read:

'If the Government so thinks fit, it may, by order, nominate such other officer or his nominee having in mind the specific purpose of selecting candidates for any particular category of posts or words to that effect.

(12) Clause (iv) of Rule 3(1) or Rule 3(2) or clause (v) of Rule 4 are not exceptions to the concerned Rule. They are an integral part of that Rule. This is made obvious by the word 'and' at the end of clause (v) of Rule 4. On a plain reading of these Rules, we are of the opinion that the Government had no discretion in that matter of nominating an officer under clause (iv) of Rule 3(2). It was bound to nominate an officer whoever that officer might be. Its failure to nominate an officer has made the composition of the Committee incomplete.

(13) In this connection Sri Ethirajulu Naidu read to us a passage from Queen v. Alloo Paroo, (1847) 3 Moo India Appeal488 at special p. 492. This is what Lord Brougham state therein:

'Now, first of all, arises upon this, the obvious consideration from the words, that is seems impossible to give a discretionary power of either allowing or denying, in more clear and plain terms, than these terms are, 'full and absolute power to allow or deny.' And then, that is followed by saying that the terms may be regulated by the Court 'in cases in which the said Court may think fit to allow such Appeal,' being a very ordinary expression used in Acts of Parliament, when it is intended that a power given to any officer, or that body, but shall be discretionary in that individual officer or body, to exercise or not, as he or they shall please, and be advised. If the words are 'It shall and may' be so and so done, by such and such officer anybody, then the word 'may' is held in all soundness of construction to confer a power, but the word 'shall' is held to make that power, or the exercise of that power, compulsory; cases are not wanting where, even without the use of so stringent a word as 'shall', it has been held that a power so conveyed must be executed. But where it is intended not to compel, but to leave it optional with the parties, the words 'think fit' are the very ordinary technical and appointed words, to show that the power is not compulsory. And those words occurring to this clause, they seem really to leave no reasonable doubt, that a discretion is vested in the Court below, of denying as well as of allowing an Appeal.'

The ratio of this decision bears on the point under consideration.

(14) Assuming that the contention of the learned Advocate-General that the word 'may' found in clause (iv) of Rule 3(2) has reference to the power of nomination itself and not to the choosing of the official to be nominated, even then we think, that word must be understood as 'must'. It may be remembered that power has been conferred on the Government, under that clause for a public purpose. That power has to be exercised for the benefit of others. That being so, it would be in accordance with well accepted canons of construction to interpret the word 'may' as 'must' or 'shall'. See the decision of the Supreme Court in State of Uttar Pradesh v. Jogendra Singh, : (1963)IILLJ444SC . Therein, Gajendragadkar, J. (as he then was) speaking for the Court laid down that the word 'may' as 'must' or 'shall' but it is well settled that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context; where a discretion is conferred upon a public authority coupled with an obligation are intended to the conferred and imposed. In this connection reference may also be made to a passage in Maxwell's 'Interpretation of Status' (Eleventh Edition as page 231) This is what the learned Author says:

'Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may' or 'shall, if they think fit', or 'shall have power', or that 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases expressions may have--to say the least--a compulsory force, and so would seem to be modified by judicial exposition. On the other hand, in some cases, the authorised person is invested with a discretion, and then those expressions seem divested of that compulsory force, and probably that is the prima facie meaning.'

(15) The purpose behind that clause appears to be, that the recruitment Committee should at least have one person as its member who has special knowledge in the matter of recruitment to the posts concerned.

(16) The recruitment of respondents 4 to 28 was assailed on the ground that it was not made in accordance with rules. It may be remembered that before selecting candidates the Committee did not hold any written or viva-voce examination. It was said on behalf of the respondents 1 to 3 that the selection was made on the basis of interviews held. The question for decision is whether the Committee was competent to recruit persons on the basis of interviews. No provision in the Notification was brought to our notice empowering the Committee to make selection solely on the basis of interviews. The relevant Rules bearing on the question of recruitment are Rules 10 to 13. Rule 10 provides for payment of fees. That Rule contemplates written tests followed decree viva-voce examinations or interviews. That Rule does not say as to how the recruitment should be made. It merely stipulates the fee to be payable. Rule 11 provides that the appropriate Recruitment Committee shall advertise the vacancies in the Mysore Gazette specifying the conditions of eligibility, 'the nature of competition', the number of vacancies to be filled wherever possible, reservations in favour of scheduled castes, scheduled tribes and other backward classes and invite applications from intending candidates. That Rule further requires that abstracts of such advertisements should also be published in English and regional language newspapers. (Underlining (here into ' ') is ours), been fulfilled. The Notification calling for applications does not say a word about the nature of the competition is clause (13) which reads:

'Applicants when called for interview will have to appear at their own costs.'

This clause cannot be interpreted as laying down the nature of the competition. There is hardly any doubt that the Committee has not complied with all the requirements of Rule 11. Rule 12 requires that the Committee should notify the place where the tests or viva-voce examinations would be conducted. Sub-rule (2) Rule 12 says:

'In the case of direct recruitment to State wide cadres, the tests and/or viva-voce examination shall be held at Bangalore and also at such other centres as may be determined by the appropriate Recruitment Committee.'

The inference to be drawn from this sub-rule is that either written or viva-voce examination has to be conducted before recruitments are made.

(17) Now we come to Rule 13. This is what that Rule says:

'(1)The appropriate Recruitment Committee shall make all arrangements for the actual conduct of the tests or via-voce examination.'

This Rule indicates that the Recruitment Committee is bound to conduct either tests or viva-voce examination. The Committee appears to have no discretion in that regard. Rule 13(2) reads:

'In making selections, the appropriate Recruitment Committee shall take into account personality, general knowledge, previous experience of the candidates and the marks obtained in the public examination qualifying for appointment in addition to the marks obtained by them in written tests, if any, conducted.'

There is hardly any doubt that these Rules are haphazardly drafted. These Rules are inconsistent with one another. It is difficult to read them together. As seen earlier, Rule 10 speaks of fees to be levied for written or viva-voce examinations. Rule 12 speaks of tests and viva-voce examinations. R. 13(1) again speaks of tests and viva-voce examinations. Rule 13(2) speaks of marks for personality, general knowledge and previous experience of the candidates, the marks obtained in the public examination qualifying for appointment and the marks obtained by them in written tests, if any, conducted.

(18) Now, assuming that in the instant case, the nature of the competition was as laid down in Rule 13(2), then according to it, firstly, the Committee should have taken into consideration the marks obtained by the candidate in the Public Examinations qualifying for appointment; and to those marks, marks awarded for personality general knowledge and previous experience of the candidates to be added. That is not what was done in this case. The Committee appears to have taken 100 marks as the maximum marks. Out of those, 25 marks were allotted for personality, 25 for general knowledge and 50 marks for previous experience and marks obtained in the Public Examination qualifying for appointment should be taken as such. To those marks, marks obtained for personality, general knowledge and previous experience of the candidates should be added. The learned Advocate-General informed us that only thing taken into consideration by the Recruitment Committee was whether a particular candidate had the required qualification, if he had the required qualification, some marks were allotted for that qualification. This is clearly illegal.

(19) Further, we have to hold, that in view of the decision of this Court in Chandrasekhara v. State of Mysore, 40 Mys LJ 87: (AIR 1963 Mys 292) the Recruitment Committee had no competence to allot marks under different heads. That power should have been exercised by the Governor, under Article 309 of the Constitution.

(20) In view of our above findings we have not thought it necessary to examine the other contentions advanced on behalf of the petitioners.

(21) For the reasons mentioned above, this petition is allowed and the Notification No. GAD/SLC/14 RNM/63 dated 31-8-1964, impugned in this Writ Petition, whereunder respondent 4 to 28 were purported to have been recruited, is hereby quashed.

(22) We do not think it necessary to issue the direction prayed for in clause 3(b) of the petition. Services of the petitioners are purported to have been terminated from the date or dates on which the State Level Recruitment Committee candidates take charge of the posts. Now that we have come to the conclusions that the recruitments in question are invalid, it follows that the petitioners, services have not yet been terminated.

(23) In view of our above conclusions, there is no need to issue the Writ of Quo Warranto prayed for in clause 3(c) of the petition. Further, it may be noted that respondents 4 to 28 are not yet holding any public officer. They have been merely recruited for being appointed to those posts.

(24) The second respondent shall pay the costs of the petitioners. Advocate's fee Rs. 100.

(25) Petition allowed.


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