JUDGMENT S. R. Singh, J.
1. The controversy in Special Appeal No. 191 of 1998 State of U. P. and others v. Smt. Shakuntala Shukla as well as in special appeals and writ petitions connected thereto pertains to validity of selection of Sub-Inspectors of Police for promotion to the rank of Circle Inspector. The special appeal sterns from the Judgment and order dated 20.2.1998 whereby the learned single Judge allowed the Smt. 'Shakuntala Shukla v. State of U. P. and others, Civil Misc. Writ Petition No. 20716 of 1997 and quashed the impugned selection of Sub-Inspectors for promotion to the rank of Circle Inspectors and issued consequential directions to the authorities concerned to initiate fresh selection in the light of the observations embodied in the Judgment. Since the challenge in all the special appeals and writ petitions converged to the self same select-list 1996-97, all the petitions and special appeals were lumped together with the aforesaid Special Appeal No. 191 of 1998 for decision as a composite case. It would be worthwhile to recall here that some of the connected petitions were instituted before the Lucknow Bench of this Court, but since challenge in the connected petitions too was focussed on the self-same select-list, recourse was taken to clause 14 of the Amalgamation Order, 1948 for marshalling of all such petitions for their disposal along with special appeal aforestated. In fact, in Writ Petition Nos. 3712 (L) of 1997, 3751 (L) of 97, 3733 (L) of 1997. 3776 (L) of 1997, 3785 (L) of 1997, 3787 (L) of 1997, the learned Judge who was in seisin of the matter at Lucknow Bench of this Court, scripted the following questions and commended the matter to be heard and disposed of by a two Judges Bench.
(1) Whether the Departmental Selection Committee constituted for the purpose of selection of Sub-Inspectors, Civil Police for promotion to the rank of Inspector. Civil Police, having adopted the criterion of 'merit' alone for selection, has not contravened the provisions of "The Uttar Pradesh Government Services Criteria for Recruitment by Promotion Rules. 1994" which lays down that posts for all services (excepting the post of Head of Department and Officer immediately below him) to be filled up by promotions, shall be made on the basis of seniority subject to rejection of the unfit.
(2) Whether the provisions of the Uttar Pradesh Government Services Criteria for Recruitment by Promotion Rules. 1994 do not apply to the police personnel?
(3) Whether in case the answer to question No. 1 is in the affirmative the selection/select list contained in Annexure-1 in some writ petitions and Annexures-1 and 2 in others is not bad in law and liable to be quashed?
2. The impugned selection of Sub-Inspectors of Police for promotion to the rank of Circle Inspector was made on the basis of 'merit' as visualised by G.O. dated 5.11.1965 which reads as under :
"From :
Sri R. K. Dar, Up Sachiv.
Uttar Pradesh Shasan, To.
The Inspector General of Police.
Uttar Pradesh, Allahabad/Lucknow.
Dated Lucknow : November 5, 1965 Home (Police-A) Sub. : Method of Selection of Sub-Inspectors for promotion to the rank of Inspectors.
(A) The existing quota system by which a certain number of Sub-Inspectors are at present selected from each Range should be abolished. Sub-Inspectors Civil Police who have put in not less than 10 years service as such (and are below 50 years of age) on the 1st day of January of the year in which the selection is made will now be eligible for promotion to the post of Inspector. The range Dy. Inspector General of Police will send to the Police Headquarters every year the following list :
(i) Lists of Sub-Inspectors. Civil Police considered suitable for officiating promotion as Inspector in order of seniority in a prescribed form, which may be laid down by the Police Headquarters.
(ii) Lists of Sub Inspectors, Civil Police, who are not considered, fit for officiating promotion with brief reasons.
The Departmental Selection Committee will thereafter have a final consolidated list prepared of Sub-Inspectors Civil Police, considered suitable for officiating promotion arranged in the order of their seniority. From the final consolidated list, four times the number of Inspectors required to be approved for officiating promotion will be called for interview by the Departmental Selection Committee as constituted by Government vide G.O. No. 4381-A/VI11-A-268/ 1961, dated August 2. 1962. The assessment made by the Committee will be done by selection on merit, and a list of approved candidates will be prepared on which the names of selected candidates will arrange in order of their seniority. Those who are borne on the approved list of an earlier year will rank above those selected and brought on an approved list of a later year.
(B) On the occurrence of substantive vacancies appointment to them shall be made from amongst the candidates on the approved list prepared under Para 'A' on the basis of suitability. The claims of the candidates passed over will be considered in the subsequent selection. The selection will be made by the Departmental Selection Committee and there will be no further interview of the candidates for filling in the substantive vacancies.
(C) Candidates selected for substantive appointment will be placed on two years' probation in accordance with the provisions of para 403 (3) of the Police Regulations. The period of service rendered by them as Inspector of Police in a temporary or officiating capacity will be counted towards the period of probation.
2. The above orders shall come into force with Immediate effect.
Yours faithfully, Sd./- R. K. Dar Up Sachlv.
No................. (1)/VIIl-A-of date Copy forwarded for information to Grih (Police-E) Vibhag.
By order (R. K. Dar) Up Sachiv."
3. It may be noted that the expression "1st day of January" occurring in para (A) of the G.O. has been substituted by expression "1st day of April" and the expression "and are below 50 years of age" used therein has been omitted with a view of enlarging the field of eligibility vide G.Os dated 7th November. 1972 and 5th March, 1974 respectively.
4. The first question that calls for determination is as to whether the Government Order dated 5.11.1965 which envisages 'merit' as the criterion for selection of the Sub-Inspectors of Police for promotion to the rank of Circle Inspector is still operative or it stands overridden by the U. P. Government Servants (Criterion for Recruitment by Promotion) Rules. 1994 (in short the 'Rules') made by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution and published in the U. P. Gazette (Extraordinary) Part IV. Section (ka) dated 10th October. 1994 vide Notification No. 13/34/19-Ka-1/1994. dated October 10. 1994 which visualises the criterion of 'seniority subject to the rejection of unfit', for promotion to the posts in all services to be filled by promotion excepting the posts of the H.O.D.. a post one rank below the post of H.O.D. and a post in any service carrying the pay scale, the maximum of which is Rs. 6.700 or above. Rule 4 of the Rules reads as under :
"4. Criterion for recruitment by promotion.--Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale, the maximum of which is Rs. 6,700 or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion including a post where promotion is made from a non-gazetted post to a Gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit."
5. The Rules apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required and "have effect notwithstanding anything to the contrary contained in any other service Rules made by the Governor under the proviso to Article 309 of the Constitution, or Orders, for the time being in force." Concededly, the post of Inspector is not in respect of which consultation with P.S.C. Is required and it will brook no dispute that if at all the Rules are held to be applicable, the criterion therein for selection for Sub-Inspectors for promotion to the rank of Inspector would be "seniority subject to the rejection of the unfit" and not 'merit' as contemplated in the Government Order dated 5th November, 1965. Therefore, the impugned selection which was made on the basis of the G.O. would be unsustainable being basically illegal.
6. We have heard Sri S. C. Budhwar, learned Senior Advocate appearing for some of the selected candidates and Sri P. M. N. Singh, Additional Advocate General in support of the impugned select-list and Sarvsri Dinesh Dwivedi. Ashok Khare, R. B. Singhal and the learned Advocate appearing for the petitioners of writ petitions which were filed in the Lucknow Bench of this Court in support of the impugned Judgments under challenge in special appeals and in opposition to the impugned select-list. Sri S. C. Budhwar and Sri P. M. N. Singh canvassed by invoking the 'doctrine of occupied field' that the impugned selection of Sub-Inspectors for promotion to the rank of Circle Inspector was rightly made on the basis of 'merit' vide the G.O. dated 5.11.63. The Rules made by the Governor in exercise of power under the proviso to Article 309 of the Constitution, proceeds the submission, has been rightly not invoked in that the Rules made by the Governor in exercise of powers under 'the proviso to Article 309 being of general applicability cannot override the G.O. dated 5.11.65 which is a special provision traceable for Its source of power to the Police Act, 1861 [in short 'the Act'). According to the learned counsel, the G.O. dated 5.11.65 is tantamount to a statutory Order and, therefore, it cannot be superseded by the general Rules referred to above which, proceeds the submission, does not fall in the category of Delegated Legislation. On the other hand. It has been submitted by the learned counsel appearing for the unsuccessful Sub-Inspectors that the G.O. dated 5.11.65 is in the nature of executive instructions traceable for its source of power to Article 162 of the Constitution and, therefore, it stood superseded by the Rules, which have an overriding effect.
7. In order to appreciating the question, it would be necessary to advert to the related provision of the Police Act. 1861 and those of the Constitution. Section 2 of the Police Act. 1861 which postulates for establishment and Constitution of Police force reads as under :
"(2) Constitution of the post.--The entire police establishment under the State Government, shall for purposes of this Act be deemed to be one Police force and shall be formally enrolled and shall consist of such number of officers and men and shall be constituted in such manner as shall from time to time be ordered by the State Government.
Subject to the provisions of this Act pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as may be determined by the State Government."
Sub-sections (2) and (3) of Section 46 of the Police Act, may also be quoted here for ready reference, being relevant to the issues referred to herein :
"(2) ..... the State Government may, from time to time by notification in the Official Gazette, make Rules consistent with this Act :
(a) ............
(b) .............
(c) generally for giving effect to the provisions of this Act.
|3) All Rules made under this Act may from time to time, be amended, added to or cancelled by the State Government."
8. Articles 309 and 313 will also have to be referred to for answer to the question will depend on interpretation of these provisions visa-vis the related provisions of the Police Act, 1861 and the character of the G.O. In question. Therefore, Articles 309 and 313 too are quoted as under :
"309. Recruitment and conditions of Service of persons serving the Union or a State.--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State :
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor ("**) of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make Rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any Rules so made shall have effect subject to the provisions of any such Act.
* * * * *
313. Transitional provisions.--Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution."
9. The Police Act, 1861 though a pre-Constitution Act is salvaged by virtue of the provisions contained in Article 372(1) of the Constitution notwithstanding repeal of the Indian Independence Act, 1947 and the Government of India Act, 1935 by virtue of Article 395 of the Constitution. Similarly, Rules made under the Act and as in force immediately before the commencement of the Constitution too were saved. Article 372(1) of the Constitution is excerpted below for ready reference.
372. Continuance in force of existing laws and their adaptation.--(1) Notwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."
10. The expression 'existing law', as defined in Article 366(10) of the Constitution "means any law, ordinance, order, bye-laws. Rules or regulations passed or made before the commencement of this Constitution by a Legislature, authority or person having power to make such law, ordinance, order, bye-law, rules or regulation". This phrase has the same meaning as the term 'law in force' used in Article 372. 'Police (including railway and village police) is now a State subject being covered by item No. 2 of List II of the Seventh Schedule. The Police Act, 1861 however, comes within the purview of 'existing law' or 'the law in force' within the meaning of Article 372(1) of the Constitution and being a law in force immediately before the commencement of the Constitution "shall continue in force ..... until altered or repealed or amended by competent Legislature or other competent authority" consistent with the provisions of the Constitution as visualised by Article 372(1) of the Constitution. The phrase "subject to the other provisions of this Constitution" used in Article 372(1) has been aptly explained in Kanpur Oil Mills v. Judge (Appeals) Sales Tax. Kanpur Range, AIR 1955 All 99, by V. Bhargava. J., in these words :
"What this really means is that, if any existing law conflicts with any provision in the Constitution, that provision of the existing law would be void. Of course, it does not mean that a law, which was made by a competent Legislature before the Constitution, which the Legislature may not be competent to make after the Constitution, will also be void. All that is required is that the law should have been made by a competent Legislature at the time of making and after the passing of the Constitution, it should not be contrary to any provision of the Constitution, and should not violate any fundamental right or other ban imposed by the Constitution against such a law."
We share this view and hold that if 'existing law' or 'law in force' governing conditions of service of Government servants is violative of Articles 14. 16 and 311 of the Constitution, the same would be liable to be struck down being void. Otherwise, it would continue in force until amended, repealed or modified.
11. The expression "until other provision is made in this behalf under the Constitution" occurring in Article 313 is significant. There is no denying the fact that "other provision can be made by an Act of the appropriate Legislature or by an Ordinance promulgated by the President in the case of services and posts in connection with the affairs of the Union of India, and, the Governor in respect of State Services and posts or by Rules made by the appropriate authority in exercise of power under the proviso to Article 309 or by Rules made in exercise of power under the appropriate statute. Existing rules, regulations or orders governing service conditions of Police Officers of subordinate ranks can be altered or repealed or amended as visualised by Article 372 and implied by Article 313. Such existing rules, regulations or orders would cease to be in force after provision is made in that behalf under the Constitution. Governor is the 'competent authority' within the meaning of Article 372(1) in relation to the services and posts in connection with the affairs of the Slate. Article 309 is no doubt subject to the provisions of Articles 14. 16 and 311 of the Constitution but it is not 'subordinate' or 'subject' to Article 313.
12. Article 309 of the Constitution makes it abundantly clear that recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State may be regulated by Act of the State Legislature subject, of course- to the provisions of the Constitution. The proviso to Article 309 makes it competent for the Governor or his nominee to make rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the State. The Rules so made "under this Article" shall be "subject to the provisions of this Constitution" and shall remain operative "until provision in that behalf is made by or under an Act of the appropriate Legislature and any rules so made "shall have effect subject to the provisions of such Act". The stipulation that the Rule so made shall remain in force and provision in that behalf is made by or under an Act of the appropriate Legislature "is significant. It means that the rules made under the proviso to Article 309 are transitory and cease to have effect as soon as provision in that behalf is made by or under an Act of the appropriate Legislature". The converse will also be true. In other words, if pro-visions regulating recruitment and conditions of service have already been made "by or under an Act of the appropriate Legislature", the rule making power under the proviso to Article 309 shall not be invoked. This is what the "doctrine of occupied field" implies.
13. In Shri A. B. Krishna and others v. State of Karnataka and others, JT 1998 (1) SC 613, the Supreme Court was called upon to resolve the conflict between special rules made by the State Government under Section 39 of Fire Force Act. 1964 thereby laying down that promotion to the post of Leading Firemen would be based on qualifying examination as a condition precedent to promotion and Karnataka Civil Services (General) Recruitment Rules. 1977 as amended in 1982 providing thereby that promotion to the posts of H.O.D. and Additional H.O.D. would be made by selection while promotion on all other posts would be made in the 'seniority-cum-merit' and not by selection. The Supreme Court held as under :
"6. It is primarily the Legislature namely, the Parliament or the State Legislative Assembly in whom power to make law regulating the recruitment and conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State is vested. The legislative field indicated in this Article is the same as is indicated in Entry 71 of List 1 of the Seventh Schedule or Entry 41 of List 11 of that Schedule. The proviso however, gives power to the President or the Governor to make service Rules but this is only a transitional provision as the power under the proviso can be exercised only so long as the Legislature does not make an Act whereby recruitment at public posts as also other conditions of service relating to that post are laid down.
7. The rule-making function under the proviso to Article 309 is a legislative function. Since Article 309 has to operate subject to other provisions of the Constitution, it is obvious that whether it is an Act made by the Parliament or the State Legislature which lays down the conditions of service or it is the Rule made by the President or the Governor under the proviso to that Article they have to be in conformity with the other provisions of the Constitution specially Articles 14, 16, 310 and 311.
8. The Fire Services under the State Government were created and established under the Fire Force Act. 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of Fire Service. Since Fire Service had been specially established under an Act of the Legislature and the Government, in pursuance of the power conferred upon it under that Act has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules. 1977 would affect the special provisions validly made for Fire Services. As a matter of fact under the scheme of Article 309 of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service the power of ' Executive, including the President or the Governor as the case may be, is totally displaced on the principle of "Doctrine of Occupied Field'. If, however, any matter is not touched by that enactment it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter.
9. It is no doubt true that the rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise. Governor, under Article 309 and Government under Section 39, but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the Legislature has already made a law and the field is occupied. In that situation. Rules can be made under the Law so made by the Legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule-making power given under an Act constitute Delegated or sub-ordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and therefore on the principle of "occupied field", the Rules under Article 309 cannot supersede the Rules made by the Legislature.
10. So far as the question of implied supersession of the Rules made under Section 39 of the Act by the General Recruitment Rules, as amended in 1977, is concerned, it may be pointed out that the basic principle, as set out in Maxwell's Interpretation of Statutes (11th Edn., page 168), is that :
"A general later law does not abrogate an earlier special one by mere Implication :
Generalia specialibus non derogant, or. In other, words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subject specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases, it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."
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14. Applying the above principles to the instant case. It will be noticed that the Rules made by the State Government under Section 39 of the Act prescribe the qualifying examination as a condition precedent for promotion to the post of leading Firemen.
These Rules have not been touched, altered or amended and they exist in their original form. What has been done by the Government is that it has amended the General Recruitment Rules by providing therein that any promotion made on the higher post would not be on the basis of examination if any prescribed, but on the basis of seniority. This is a Rule made by the Executive namely, the Governor under Article 309 of the Constitution. The amendment in the General Recruitment Rules would not have the effect of displacing or altering the Rules made under Section 39 of the Fire Force Act. 1964 as the Act of the Legislature would have precedence over any Rule made by the Executive under the proviso to Article 309.
15. As pointed out earlier, fire service was created and established under Fire Force Act. 1964 made by the State Legislature which gave rule-making power to the State Government. Instead of amending the General Recruitment Rules, the Government could well have exercised its power under Section 39 of the Fire Force Act. 1964 and amended the Rules specially made for the fire services, the Government, however in its wisdom did not do it obviously because it never intended to touch the fire services specially created by the State Legislature."
14. In Ajai Kumar v. Union of India, AIR 1984 SC 1130, it has been held by the Supreme Court that in the event of a conflict between the two statutes, general rule to be followed is that the latter abrogates the earlier one. A prior law, it has been held, would yield to the latter general law, if either of the two following conditions is satisfied ; (i) the two are inconsistent with each other ; (ii) there is some express reference in the latter of the earlier enactment. In the instant case, not only there is a conflict as to the criterion of selection for promotion between the two rules but the general rule provides that it wilt have an effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force. Mohan Karan v. State of U. P. and another, JT 1998 (2) SC 521, also reinforces the view that overriding effect of the latter general rule cannot be discounted. The Latin Maxim 'Generalia Specialibus Non Derogant", i.e., "Special excludes the general" will have no application if the intention of the rule-making authority is otherwise.
15. In Edward Milts Company v. State of Ajmer. AIR 1955 SC 25, the question was whether an order under Section 94(3) Government of India Act investing the Chief Commissioner with the authority to administer province was "law in force"? Mukherji, J.. speaking for Five-Judged Bench of the Supreme Court has held that there is no material difference between the expression "an existing law" occurring in Article 366(10) and "law in force" occurring in Article 372 and laid down the following proposition.
"In our opinion, the words law in force as used in Article 372 are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law. We agree with Mr. Chatterji that an order must be legislative and not the executive order before it could come within the definition of law. We do not agree with him however, that the order made by the Governor General in the present case under Section 94(3) of the Government of India Act is a mere executive order."
It is noteworthy that in the case aforestated, the order made under Section 94(3) of the Government of India Act, 1935 invested the Chief Commissioner with the authority to administer a province and it was in this view of the matter that their lordships of the Supreme Court held that such an order "is really in the nature of a legislative provision which defines the rights and powers of the Chief Commissioner in respect of that province."
16. in Shri A. B. Krishna, the field was occupied by statutory rules made by the State Government in exercise of power conferred upon it by the Statute regulating promotion to the post of Leading Firemen and it was, therefore, held by Invoking the "Doctrine of Occupied Field", that latter amendment made in the general rule providing therein a different criterion for promotion would not override the special rules made in exercise of rule making power conferred by the Statute. The observation that : "If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter" is significant. The Act by itself does not lay down the manner of selection of Sub-Inspectors for promotion to the rank of Inspector. it no doubt empowers the State Government to 'determine' the conditions of service of members of subordinate ranks of any police force. The State can do it by rules made under Section 46(2) read with Section 2 of the Act or by executive instructions issued in exercise of power under Article 162 of the Constitution. Section 7 of the Act and the provisions contained in the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 made in exercise of powers under Section 46(2)(c) read with Section 2 of the Act furnish an example of 'occupied field'. Section 7. It may be pointed out, is "subject to the provision of Article 311 of the Constitution and to such rules as the State Government may, from time to time, make under this Act". The heading of the Section, which starts with the word : "Appointment" is misleading. There is nothing about the manner of 'appointment' in Section 7 which provides for punishment of any police officer of subordinate rank on being found to be "remiss or negligent in the discharge of his duty or unfit for the same". Unlike Section 7, there is no provision in the Act laying down that promotion of Sub-Inspectors to the rank of. Inspector shall be governed by such rules as the State Government may from time to time make "under this Act". Had it been so, the proviso to Article 309 would not have been Invoked. The "Doctrine of Occupied Field" is therefore, not attracted in the matters of promotion of Sub-Inspectors to the rank of Inspector in the absence of statutory rules governing promotions. Mere existence of executive instruction regulating promotion was not enough to attract the doctrine and exclude the exercise of rule-making power under the proviso to Article 309 of the Constitution. Mere provision in the Act to make rules will also not attract the "Doctrine of Occupied Field". In order to attract the doctrine, there must also be statutory rules governing conditions of service or there must be some provision in the Act, as in Section 7 that a particular service condition shall be such as the State Government may from time to time provide by making rules "under this, Act". In the latter eventuality rules cannot be made under the proviso to Article 309 unless the statute itself is suitably amended. The observations made in para 9 of the Report (Judgments Today) in Shri A. B. Krishna's case are to be understood in the backdrop of the facts of the case that special rules made under the statute were occupying the field and the general rules were not intended to override the special rules.
17. The G.O. dated 5.11.65 is not a notified rule made under Section 46(2) read with Section 2 of the Police Act. 1861. It is in the nature of executive instructions having the force of law in the absence of statutory rules to the contrary. In the scheme of our Constitution, the Governor is the Executive Head of the State and all executive powers of the State are vested in the Governor by virtue of Article 154 and subject to the provisions of the Constitution, the executive powers of a State extend to the matters with respect to which the State Legislature has power to make law in view of Article 162 of the Constitution. In our opinion, the G.O. In question is traceable for the source of its power to the executive power of the State vested in the Governor under Article 162. The function of the Governor under the proviso to Article 309 is purely legislative. The exercise of power under the proviso to Article 309 cannot be fettered by any executive order in that the executive power of State is subject to the provisions of this Constitution. The legislative powers of the Governor under the proviso to Article 309 is coextensive with those of the State Legislature in the field of service under the State. In Ram Avtar v. State of U. P.. AIR 1962 AH 328 (FB). Dwivedi, J., (as he then was) while concurring with Oak. J. (as he then was) spoke as under on the amplitude of power of the Governor under the proviso to Article 309 of the Constitution :
"The proviso is expressed in broad strokes. The scheme and setting of it both suggest that the Governor is constituted a coordinate authority with the State Legislature and is invested with as extensive powers as the Legislature itself for effective regulation of service conditions of State Servants for public weal."
* * * * * It has been argued that the powers of the Governor should not be assimilated to those of the State Legislature with respect to regulation of conditions of service, as the latter, unlike the former, is sovereign. The argument seems to proceed from misapprehension of the status of the State Legislature in our country and of the source spring of its powers. The State Legislature. I venture to think. Is not a Sovereign Legislature for it does not possess unlimited powers, and Its acts are not uncontrollable its powers are conditioned, both affirmatively and negatively, by the Constitution : its acts may be set at naught by Courts if they are found by them to be inconsistent with the Constitution. The true fountain of its powers is thus the Constitution. It derives power to enact a retrospective rule as ancillary to its power to law-making for the peace, order and good Government of the State for the principle that grant of a specific power necessarily carries with it the grant of all power which are necessary for effective execution of the granted power. Under the Constitution a true characterisation of the State Legislature would. I think, be : it is limited as to choice-of matters : but unlimited as to choice of means in most matters."
It has, however, been argued for the State and the successful candidates that the G.O. dated 5.11.65 is in the nature of a statutory order. The submission cannot be countenanced. The G.O. In question is no doubt a source of law being in the nature of executive instruction but it is subordinate to the supreme legislation--a statute as well as delegated legislation. A statute made by a sovereign Legislature, it may be observed, is subject to the Constitution alone whereas a subordinate legislation--'rules', 'regulations', 'bye-laws', and 'orders' are subject to the Constitution as well as the Statute, if any, under which the subordinate legislation might have been made. The expression 'order' is normally used to describe the Instrument of the exercise of executive power or the power to take Judicial or quasi-judicial decisions. However, "the word 'Order' has not been only used to signify the power of taking executive, judicial or quasi-Judicial decisions but has also been used to confer extensive power of making delegated legislation". Principle of Statutory Interpretation. (6th Edn.) by G. P. Singh.
18. Delegated legislation permitted by enabling Acts appears under different names, without there being any clear-cut demarcation between all of them. 'Rule' and 'order' are by far the most common names under which the delegated legislation is permitted. Section 3(51) of the General Clauses Act. 1897 contains definition of 'rule' in the following words : " 'rule' shall mean a rule made in exercise of the power conferred by any enactment and shall include a regulation made under any enactment". The word 'regulation' has been used in Constitution Acts where power to govern certain territories is conferred by making 'regulations' and the word is defined in Section 3(50) General Clauses Act in terms : " 'Regulation' shall mean a Regulation made by the President under Article 240 of the Constitution : and shall include a Regulation made by the President under Article 243 thereof and a Regulation made by the Central Government, under the Government of India Act. 1870, or the Government of India Act. 1915, or the Government of India Act, 1935". But as expressed in the definition of 'rule', a 'Regulation may be made as a rule and then it partakes the character of a rule. When power to make delegated legislation is conferred on different authority by the same Act, the words 'rules' and 'regulations' may be utilised to distinguish the source and to subordinate the matter to the former but sometimes, the same authority may be authorised to make rules in respect of certain matters and regulations in respect of others and the distinction, if any, may lie in the conditions under which these powers may be exercised ....." (See Principle of Statutory Interpretation 6th Edn. by Justice G. P. Singh). In Sukhdeo Singh v. Bhagatram. AIR 1975 SC 1331, the Supreme Court speaking through Ray, C.J., has held as under :
"24. Broadly stated, the distinction between rules and regulations on the one hand and administrative instructions on the other is that rules and regulations can be made only after reciting the source of power whereas administrative instructions are not issued after reciting source of power.- Second, the executive power of a state is not authorised to frame rules under Articles 162. This Court held that the Public Works Department Code was not a subordinate legislation See G. Fernondez v. State of Mysore, (1967) 3 SCR 636 : AIR 1967 SC i 753, The rules under Article 309 on the other hand constitute not only the constitutional rights of relationship between the State and the Government Servants but also establish that there must be specific powers to frame rules and regulations.
* * * * * "33. There is no substantial difference between a rule and a regulation Inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. Tne existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory statute and impose restriction on the employer and the employee with no option to vary the conditions. As ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damaged because personal service is not capable of enforcement in cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies in the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under the statutory powers, the Court would presume the existence of a duty to observe the rules of natural Justice and compliance with rules and regulations imposed by statute.
19. There is no express provision in the Act authorising the State Government to make regulations. Not all the provisions contained in the U. P. Regulation are necessarily statutory in character nor can it be said that all of them partake of the character of statutory rules. However, going by the definition of 'Rule' given in the General Clauses Act, it can be said that the regulations, which have been made as rules under Sections 12 and 46(2), will partake of the character of rules. It may be observed that generally power to make regulations is conferred on statutory authorities and bodies while power to make rules is conferred on Governments. In our considered view, the G.O. dated 5.11.65 falls short of being a statutory order and concededly it is not a rule made under Section 46(2) read with Section 2 of the Act. Instances of statutory orders of legislative character are offered by Orders issued under Acts of appropriate Legislature e.g., the Control Orders issued under Section 8 of the Essential Commodities Act. 1955, Molasses Control Order, 1961 issued under Section 18G of the Industries (Development and Regulation) Act, 1951. Removal of Difficulties Orders issued under the provisions of the U. P. Intermediate Education Act, 1921 and the U. P. Secondary Education Service Selection Boards Act. 1982. A statutory order is a kind of delegated legislation, which owes its existence to a Statute and is required to be notified and published in some form or the other. Unlike the Statutes referred to above, there is no provision in the Police Act. 1861 visualising that the service condition of the police officers of subordinate ranks shall be such as the State Government 'may by order, provide or prescribe' the usual legislative way of authorising the State Government to issue statutory orders. The word 'determine' used in the second part of Section 2 of the Act means 'determine', by the notified rules as provided in Section 46(2)(c) of the Act or the executive directions issued under the general power of administration read with Article 162 of the Constitution and in the absence of statutory rules under Section 46(2)(c) read with Section 2 of the Act, by such rules as may be made by the Governor in exercise of power under the proviso to Article 309.
20. In Hari Shanker Baghla v. State of U. P., AIR 1954 SC 465, the Supreme Court sustained the provisions of Section 3 of the Essential Supply [Temporary Powers) Act. 1946 which gave wide powers to the Central Government to make 'orders' for regulating or prohibiting the production, supply and distribution of Essential Commodity and trade and commerce therein as the section provided that power conferred therein was to be exercised for "maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability on fair prices". The orders issued under the said provision also furnished example of statutory orders.
21. Statutory orders are required to be published in one form or the other. In the case of Johnson v. Sargant 1928 (I) KB 101, an order of the Food Controller called Beans. Peas and Pulse (Requisition) Order 1917, was made on 16th May. 1917 but was in fact published or made known to the trade on the morning of 17th May. 1917. It was held by Bailhache, J., that the order did not take effect until the morning of 17th and therefore, could not be contravened on 16th. The reasoning of the decision is that the statutes of Parliament get antecedent publicity as they are publicly enacted and so they come into operation on the earliest moment of the date on which they are passed. But this is not true of delegated legislation that does not receive any prior publicity and it does not come into operation untfl it is made known. Principle so laid down in Johnson v. Johnson was expressly approved by the Supreme Court in Haria v. State of Rajasthan, AIR 1951 SC 467. In B. K. Srinivasan v. State of Karnataka, (1987) I SCC 658. the Supreme Court held : "Unlike parliamentary legislation which is publicly made, the delegated kgislation or subordinate legislation is often made unobtrusively in the chambers of a Minister, Secretary to the Governor or other official dignitary. It is, therefore, necessary that subordinate legislation only take effect from the date it is published or promulgated in some suitable manner, whether such publication of promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication". It was further held by the Supreme Court in Srinivasan's case that if the mode of publication is prescribed by the Statute that must be followed ; if the mode of publication is prescribed by the subordinate legislation itself and the mode so prescribed is reasonable that mode must also be followed ; but if there is neither any mode of publication prescribed by the statute nor by the subordinate legislation or when the mode prescribed by the subordinate legislation is unreasonable, it will take only when it is published through the customarily recognised official channel, namely the Official Gazette or some other reasonable mode of publication ; and in cases where a few Individual or persons in a small local area are concerned, publication or promulgation by other means may be sufficient--See Justice G. P. Singh on Interpretation of Statutes. 6th Edn. p. 616-17.
22. Concededly, the G.O. In question was not published. The argument that though the G.O. In question is a statutory order but its publication was not necessary cannot be accepted. The fact that it was not published in the Official Gazette is also a pointer to being in the nature of executive direction issued in exercise of power under Article 162 of the Constitution as distinguished from statutory orders, which are required, as of rule, to be published. Executive instructions operating in a field cease to be operative as soon as the field is covered by any statutory rules or rules made under the proviso to Article 309 of the Constitution. The criterion of selection by promotion of Sub-Inspectors to the rank of Inspector as laid down in the G-O. dated 5.11.65 stood obliterated after the Rules were notified in view of overriding effect of the Rules. It would be evident from Rule 2 of the Rules that not only any other service rule made by the Governor under the proviso to Article 309 of the Constitution has been overridden but the Rules override "orders, for the time being in force" as well. In view of non-obstante clause contained in Rule 2 of the Rules as also in view of wide language employed Jn Rule 4 of the Rules, it is evident that criterion for recruitment by promotion as laid down in the Rules overrides any other service rules made by the Governor in respect of any post to be filled by promotion in all services under the Rule-making power of the Governor under the proviso to Article 309 of the Constitution and "orders, for the time being in force".
23. In Ram Chand Shanker Deodhar v. State of Maharashtra, AIR 1974 SC 259, a Constitution Bench of the Supreme Court relying on its two earlier decisions in B. N. Nagrajan v. State of Mysore. AIR 1966 SC 1942 and Sant Ram Sharma v. State of Rajasthan. AIR 1967 SC 1910, held that in the absence of legislative rules, it was competent for the State Government to take decision in exercise of its executive power under Article 162 of the Constitution. The matter was also considered in the case of Union of India v. S. S. Soma Sundaram Vishwanath. AIR 1988 SC 2255, wherein the Supreme Court held as under :
"It is well settled that the norms regarding recruitment and promotion of the officer belong to the Civil Service can be laid down either by a law made by the appropriate Legislature or by the rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued in Article 73 of the Constitution of India in the case of Civil Services in the Government of India and under Article 162 of the Constitution of India in the case of Civil Services in the State Governments, if there is a conflict between the executive Instructions and the rules made under the proviso to Article 309 of the Constitution of India the rule made under the proviso to Article 309 of the Constitution of India prevail and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the taw made by the appropriate Legislature, the latter prevails."
The principles aforestated find their echo in Paluru Ram Krishnaiah v. Union of India. AIR 1990 SC 166. In ' such view of the matter, we are of the considered view that the Rules which have been made under the proviso to Article 309 will prevail over the G.O. dated 5.11.1965 which is no better than executive instructions issued in exercise of power under Article 162 of the Constitution. Needless to say that the distinction in respect of rule making powers as visualised by Section 241 of the Government of India Act, 1935 which empowered the Governor of a Province to make rules regarding services of the Province, and posts in connection with the affairs of a:Province and Section 243 thereof which provided that "Notwithstanding anything in the foregoing provisions of this Chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces respectively" has not been maintained under the Constitution of India. It is not in dispute that members of subordinate ranks of various police forces in State now come under the purview of the rule-making power of the Governor under Article 309 and their service conditions other than those specified in Section 7 of the Act can be regulated by rules made under the proviso to Article 309 in as much as matters relating to disciplinary action are to be governed by "such rules as the State may from time to time make under this Act". Unlike the service conditions relating to punishment visualised by Section 7. there is no provision in the Act visualising that promotion of Sub-Inspectors to the rank of Inspector shall be governed only by such rules as may be made by the State Government under the Act.
24. it was then urged on behalf of the State and the successful candidates that the rules do not have retrospective effect. The learned Additional Advocate General submitted that the rules were published on 10.10.1994 whereas the process of selection initially had started on 17.4.1993. The learned Additional Advocate General further submitted that the field of eligibility was altered by a G.O. dated 16.4.1994 and consequently fresh nomination was called for vide order dated 6.5.1994. The order by which fresh nominations were asked for too was Issued prior to publication of the rules and therefore, submitted the learned Additional Advocate General, the rules cannot be given retroactive effect. Reliance was placed on N. T. Devinkatti v. Karnataka P.S.C., 1990 (3) SCC 157. in our opinion, the decision relied upon by the learned counsel has no application to the facts of the present case. That was a case of appointment by direct recruitment and the advertisement therein expressly stated that "appointment shall be made in accordance with the existing rule or order" and was in this backdrop that the Supreme Court held that candidate on making application for the post pursuant to the advertisement did acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement General rule of statutory interpretation as expounded in the said decision is that the statutory rule or Government order is prospective in nature unless it is, expressly or by necessary implication, made to have retrospective effect. Rule 2 of the Rules with which we are concerned, clearly provides that these rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution or orders, for the time being in force. The expression 'for the time being in force' occurring in Rule 2 clearly indicates that the rules will apply to 'recruitment by promotion' pending selection at the commencement of the Rules, Concededly the interview started on 6.12.1996 and concluded on 12.6.1997. The Rules had already been notified much earlier on 10.10.1994.
25. Albeit the matter in hand can be disposed of in view of our conclusions that the selection of Sub-Inspectors for promotion to the rank of Inspector is governed on the criterion "seniority subject to the rejection of the unfit" as provided in the Rules and not on the basis of "merit" as visualised by the G.O. dated 5..11.1965 but we feel called to scan the reason for its substance assigned by the learned single Judge to lend prop to Its order quashing the impugned selection. A perusal of the judgment under challenge in special appeals would evince that the impugned selection has been quashed on ground of being vitiated for reasons : firstly, that the selection for promotion to the rank of Inspector was not done 'every year' as contemplated by Regulation 438 of the U. P. Police Regulations : secondly, that the allocation of 50% marks for oral test was "wholly arbitrary" ; thirdly that the 'impugned selection caused great injustice to the senior Sub-Inspectors who had unblemished service records while were not selected but junior persons many of whom even had adverse entries and unsatisfactory record have been selected' ; and fourthly, that a reasonable time was not given in interview for each candidate in that "on an average, an Interview lasted for a minute or so and such Interview could not be viewed very meaningfully in assessing merit". For reasons unfolded herein below, we regretfully have dissent with the reasoning as they stand, of given by the learned single Judge.
26. As provided in Regulation 436 of the U. P. Police Regulation, promotion to the rank of Police Prosecutor and Circle Inspector is made on a provisional basis. Regulation 438 enjoins a duty upon the Inspector General of Police to determine "annually the total number of names to be included in a provisional list of officers approved for permanent promotion to the rank of Public Prosecutor and Circle Inspectors" and "convene a Committee to select requisite number of Sub-Inspectors .....and determine afresh order of seniority for purposes of permanent promotion". The Government Order dated November 5, 1965, which purports to supersede, and modify, the related provisions in the Police Regulations and "present orders" on the subject, with respect to the method of selection of Sub-Inspectors for promotion to the rank of Inspectors, also enjoins a duty upon the Range Dy. Inspector General of Police to send to the Police Headquarters 'every year' (i) list of Sub-Inspectors Civil Police considered suitable for officiating promotion as Inspector in order of seniority in a prescribed form which may be laid down by the Police Headquarters, (ii) list of Sub-Inspectors, Civil Police, who are not considered fit for officiating promotion with brief reasons. Clause (A) of Paragraph 1 of the G.O. dated 5.11.1965 further provides that those who are in the list of the earlier year would rank above those selected and brought on approved list of a latter year. Relying upon these provisions and the decision of the Supreme Court in Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575 and Union of India v. Vipin Chand Hiralal, 1996 (6) SCC 721, the learned single Judge held if vacancies for several years are lumped together, the provisions aforestated "would be rendered nugatory". In Rizvi's case (supra), the Supreme Court was considering Rule 5 and other related rules of I.P.S. (Appointment by Promotion) Regulations, 1955. Regulation 5 (1) of the said Regulations visualises that each Committee 'may' ordinarily meet on intervals not exceeding one year and prepare a list of such members of the said police service as are found "to be suitable for promotion to the service".
K. Ramaswarni. J., speaking for a three-Judge Bench of the Supreme Court in Rizvi's case (supra), held as under :
The word 'may' in Regulation 5 indicates that the Committee ordinarily meets at intervals not exceeding one year..... though the word "may" indicates that it is not mandatory to meet at regular intervals, since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of the promotee officers for consideration of their claims for promotion as I.P.S. Officer, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and it shall be reviewed and revised from time to time as exigencies demand."
In paragraph 34 of the Report, the Supreme Court weighed up with the consequences of failure to prepare the select list every year and held as under :
"We have therefore, no hesitation to hold that preparation of select list every year is mandatory. It would subserve the object of the Act and the rules and afford equal opportunity to the promotee officer to reach higher echelons of the service. The dereliction of statutory duty must be satisfactorily accounted for by the State Government concerned and the Court take serious note of wanton infraction."
27. Rizvi's case, came up for consideration in Ram Chand Dayaram Cawande v. Union of India and others. JT 1996 (6) SC 361, decided by two-Judges Bench of which K. Ramaswarni, J., was also a member. It was held "no employee has a right to promotion but has right to be considered for promotion according to rules. Chances of promotion are not condition of service but every incumbent of substantive post in a lower grade has a legitimate expectation for promotion and to be considered for promotion in accordance with the Rules". It was, therefore, held on Rizvi's case, that preparation of the select list every year is mandatory. The State Government is enjoined to account for dereliction of statutory duty satisfactorily to the Court.
28. Rizvi's case, again came for evaluation in Civil Appeal No. 3891-3894/93 arising out of S.L.P. Nos. 2998-3001/89, decided on July 20, 1993, H. R. Kasturi Rangan and others v. Union of India and others, by a Three-Judges Bench of the Supreme Court. Following observations made therein, may be usefully quoted :
"It is clear from the observations which follow that the importance of performing these exercise annually was emphasised and it was pointed out that in the event of any failure, the lapse must be satisfactorily explained by the State Government concerned. This is itself an indication of the purpose for which the performance of that exercise annually was described as mandatory without saying that its breach Invalidates the subsequent action....."
* * * * * ".....It is therefore, believed that failure to prepare the select list annually was not accepted as a ground to invalidate the select list for that reason atone in Rizvi's case. It is in this manner that the word 'mandatory' used in para 34 has to be understood."
The view taken in Kasturi Range's case finds its echo in Civil Appeal Nos. 16759-16771/90 arising out of S.L.P. (C) Nos. 8324-8326/90. decided on 9.12.1990 wherein it has been held as under :
"It has been rightly explained in Kasturi Ranga's case, that the word 'ordinarily' in Regulation 5 means that State Government must prepare the select list every year and ordinarily that should be the practice but tf there are good reasons for not doing so and the Court is satisfied that there were valid reasons for not preparing the select list for subsequent years.
Regulation 74 would come into operation and the previous list would continue to remain in force."
29. The learned single Judge in the Instant case missed to the reason part of the failure to prepare the select list annually. It is not disputed that previous Circle Inspector List 11 Selection (1989-90) had taken place in the year 1991 and the result of the same had been declared in February, 1992. Thereafter the process for selection of Circle Inspector List II was started in the year, 1993. in paragraph 21 of the affidavit filed in support of the Special Appeal No. 191 of 1998. it has been asserted that "due to political uncertainty, communal disturbances and the alarming law and order problems as well as on account of the fact that the respective Director General of Police U. P. had to be transferred in quick succession, therefore, the process of the selection had to be suspended". Because of the suspension of the process of selection, then it is further asserted, character roll entries were returned to the respective district Headquarters for making the entries upto date and in the process a lot of time was consumed. After completion of the requisite formalities, the process of selection was re-started on 14.12.1994 but "under the orders of then Director General of Police, U. P. due to unavoidable reasons, the interview was postponed until further orders". (See paragraph 22 of the affidavit filed in support of the Special Appeal). In paragraph 23, it has been stated that in the meantime, the State Government Issued the G.O. dated 16.4.1994 in which it was provided that candidates who possessed the prescribed eligibility qualification (10 years service) on the first date of April of the year of selection should be considered. Earlier first day of January of the year of selection was the cut-off date for determining eligibility qualification but with a view to enlarging the field of eligibility, the expression 'first day of January' was substituted by "first day of April". As a result nominations were initiated afresh and ultimately interview process started on 9.12.1996. Regard being had to the fact situation of the case, we are of the view that failure to make selection "every year" was satisfactorily accounted for and mere failure to hold selection every year would not vitiate the select list.
30. We, however, agree with the learned single Judge that "the authority should have taken the vacancy of each year separately and should have considered the persons eligible in that particular year only and they should not have clubbed all the vacancies together". This view taken by the learned single Judge finds reinforcement from the decision in Union of India v. Vipin Chand Hiralal Shah, The Supreme Court after considering the case of Union of India v. Mohan Lal Kapoor, 1973 (2) SCC 836, and Rizvi's case (supra) has laid down the following proposition :
"Failure on the part of the Selection Committee to meet during a, particular year would not dispense with the requirements of preparing the select list for that year. If for any reason Selection Committee is not able to meet during a particular year, the Committee when it meets next should while making the selection prepare a separate select list of each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers who were eligible and fell within the zone of consideration for selection in that year."
31. Coming to grips with the next question whether the selection was vitiated due to allocation of 50% marks for oral test, we find that the learned single Judge has placed reliance on the decision of the Supreme Court in Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 ; Ashok alias Suman Sukaad v. State of Karnataka. AIR 1992 SC 80 and Madhukar Pakru Singal v. Rajendra D. Gaikwad, 1995 (6) SC 42. In support of his conclusion that only 50% marks have been assigned for oral interview. The reasoning employed by the learned single Judge is unsustainable. As a matter of fact, percentage of marks for oral test would depend on the mode of selection, the level of the post for which selection is sought to be made and the expected standard of performance of duties attached to the post. In Liladhar v. State of Rajasthan and others. 1982 (1) SCR 320. there was allocation of 25% of the total marks for the viva voce examination in that written examination carried 300 marks and viva voce carried 100 marks. The Supreme Court considered the question as to what weight should be attached to oral test as against written examination qua the proposition laid down in Ajai Hasia v.. Khaliq Mujib Sharavardi and others etc., 1991 (2) SCR 791 ; Kaushal Kumar Gupta v. State of Jammu and Kashmir and others. 1984 (3) SCR 407 and held as under :
"It is now well recognised that while a written examination assesses a candidate's knowledge and Intellectual ability and an interview test is valuable to assess the candidates' overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview tests there are yet no written test which can evaluate the candidates initiative, alertness, resourcefulness, dependableness, co-operativeness capacity for clear and logical presentation ; effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to read Intellectual and moral Integrity. Some of these qualities may be evaluated perhaps with some degree of error by an interview test much depending on the constitution of the interview Board."
In Ashok Kumar Vadav and others etc. etc. v. State of Haryana etc. etc., 1985 Suppl. (1) SCR 657, the Selection for the Haryana Civil Service (Executive and Allied Services) was made on the basis of written examination and Interview. The allocation of marks for the interview was 3.3% in the case of Ex-service officers and 22.2% in the case of other candidates. After quoting the observations of Chlnappa Reddy. J., in Liladhar's case (supra), it has been observed by the Apex Court as under :
"A competitive examination may be based exclusively on written examination or it may be exclusively an interview or it may be mixture of both. It is natural for the" Government to decide what kind of competitive examination would be appropriate in a given case..... It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed Jor the interview test. Of course, the marks must be minimal so as to avoid charges of arbitrariness but not necessarily always. There may be posts and appointments where the only proper method of selection is by way of a viva voce test."
32. In Harijinder Singh Sodhi v. State of Punjab and others, JT 1996 (9) SC 443, the selection was on the basis of appraisal of service record and the personality by allocating 50% marks for the service record and 50% for interview as in the present case. The Supreme Court repelled the argument that allotment of 50% marks for interview was arbitrary in the following words :
"We find no force in the contention. It is not the case that any written examination was conducted for consideration of claims of the parties. Accordingly, the Public Service Commission and the Government had applied the principle of keeping 50% marks for the written and 50% for the interview."
33. In Indian Air Lines Corporation v. Capt. K. C. Shukla and others. 1993 (1) SCC 17, the Supreme Court was considering whether allocation of 50% marks for oral test as against 50% for annual confidential report, could lead to arbitrariness, the Supreme Court held that "it would be unsafe to strike down the rules as arbitrary when the evaluation was job-oriented". As a matter of fact, selection in the instant case was to be made on the basis of Interview by the selection committee by allocating 50% marks for service record, etc..
i.e., length of service (5) education, (5) A.C.R.'s (15), rewards and punishment (15), training course, distinction and sports (10) total 50 marks--has in fact reduced the chances of arbitrariness. We are, therefore, of the view that the learned single Judge fell into error in holding that the selection was vitiated due to reasons of allocation of 50% marks for interview.
34. So far as the conclusion of the learned single Judge that the interview could not be viewed meaningful in assessing merit for the reason that sufficient time was not given to each candidate is concerned, we are not impressed by the reasoning. On a perusal of the record, we find that the unsuccessful candidates have secured fairly good marks in Interview. For example, Smt. Shukla secured 39 out of 50 marks for interview, Surendra Kumar Verma secured 40 out of 50. There is no material on record to hold that the selection committee which consisted of high ranking officers acted on extraneous considerations and there is no legitimate basis to hold that the unsuccessful candidates were in any manner subjected to any discrimination in the matter of allotment of marks in personality test.
35. The only other point that needs to be considered is the effect of the judgment in State of U. P. through Dy. Inspector General of Police Karmik, U. P. Police Head Quarters. Allahabad v. Sri Rangnath Shukla, Special Appeal No. 450 of 1992, decided on 20.12.1994. The said special appeal arose out of similar judgment of the same learned single Judge rendered in Writ Petition No. 5233 of 1989. It was certainly not in 'respect of the same selection with which we are concerned. The only question considered therein was as to whether allocation of 50% marks for Interview was excessive. The view we have taken in this case is in accord with the view taken by the Division Bench in that case.
36. It may be pointed out that in Writ Petition No. 23137 of 1997, all the selected candidates were served and Sri S. C. Budhwar represents some of them. The case of unrepresented candidates shall be deemed to be represented in view of the law laid down in Pramod Verma's case, AIR 1985 SC 1676.
37. The Impugned selection is, however, unsustainable for the reasons firstly, that the criterion of "seniority subject to the rejection of the unfit" as laid down in the Rules was not followed ; and secondly, that selection committee failed to prepare the list for each year, keeping in view the number of vacancies in that year after considering the Sub-Inspectors of Police who were eligible and fell within zone of consideration for selection that year as laid down by the Supreme Court in Union of India v. Vipin Chand Hira Lal (supra).
38. In the result the appeals fail ; and are dismissed. The orders passed by the learned single Judge are maintained though partly on different reasons. The writ petitions succeed and are allowed. The concerned authorities are directed to hold the selection afresh in accordance with law and in the light of the observations made in this judgment. Interim orders are discharged. In the fact situation of the case, we however, make no orders as to costs.