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TMI Blog1979 (1) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... n deputation drawing an equivalent scale from the States of Haryana and Punjab or could also be filled up by appointment of a suitable candidate by advertising the post through the Union Public Service Commission. 3. Three subsidiary questions also arise in the appeal, namely (1) whether the Union Public Service Commission had, in fact, exceeded its power by usurping the functions of the newly created Union territory of Chandigarh by relaxing the essential qualifications of the candidates while recommending the name of respondent No. 6, Smt. Prem Lata Dewan for appointment to the post of Principal, and thereby altered the qualifications prescribed by the Chandigarh Administration to regulate recruitment to that post; (2) whether the appointment of respondent No. 6, Smt. Prem Lata Dewan by the Chandigarh Administration to the post of Principal was illegal inasmuch as, she did not possess the requisite essential qualifications, if any, prescribed for the post in question; and (3) whether the proceedings of the Selection Committee dated April 23, 1975 culminating in the selection of respondent No. 6, Smt. Prem Lata Dewan as the candidate most suitable for appointment to the post of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committee consisting of the representatives of the Governments of Punjab, Haryana, the Chandigarh Union territory Administration and the Ministry of Home Affairs has been constituted to recommend absorption of personnel against posts in the Chandigarh Union territory Administration, from the Punjab/Haryana State cadres on permanent basis. 7. The aforesaid communication also conveyed the order of the Government of India, Ministry of Home Affairs, sanctioning the creation and continuance of existing posts in the Union territory of Chandigarh from November 1, 1966. 8. These, instructions were in conformity with the earlier decision of the Government of India, Ministry of Home Affairs conveyed by the letter of the Chief Secretary to the Government of erstwhile State of Punjab dated August 9, 1966 stating that the Government had set up a committee headed by Sri V. Shanker, I.C.S., for the finalisation of the proposals of the Departmental Committees in regard to the allocation of the personnel to the reorganised States of Punjab and Haryana and the Union territory of Chandigarh. In regard to the Union territory of Chandigarh, the decision of the Government of India was in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 4 of the Constitution is completed, such an incidental provision like Section 84 necessarily ceases to have effect. 13. While it is not disputed that the power to regulate matters relating to services under the Union of India and under the various States specified in the First Schedule to the Constitution is an exclusive function of the Union and the States under Entry 70, List I and Entry 41, List II of Seventh Schedule read with Article 309 and normally, therefore, it is the exclusive power of the Union and the States to deal with their services either in exercise of their Legislative functions or rule-making powers, or in the absence of any law or rules, in exercise of their executive power under Article 73 and Article 162 of the Constitution, which is co-extensive with their legislative powers to regulate recruitment and conditions of service, nevertheless it is strenuously urged that this power of the Union and of the States which embraces within itself the power to regulate the mode of recruitment of services must yield to the supplemental, incidental or consequential directions issued by the Central Government in relation to the setting up of services in a newly form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch services and posts; and (iii) the conditions of service of persons appointed to such services and posts for the purpose of probation; confirmation, seniority and promotion: Provided that the power conferred by this notification shall not be exercisable in respect of such services and posts as are borne on a cadre common to two or more Union territories. 17. The Administrator in exercise of the powers conferred by the aforesaid order of the President, framed no rules to regulate recruitment and conditions of service of the post of Principal, Government Central Crafts Institute for Women, Chandigarh, nor were any rules framed prescribing the qualifications necessary for appointment to such posts. 18. It is not obligatory under the proviso to Article 309 to make rules of recruitment etc. before a service can be constituted, or a post created or filled. The State Government has executive power in relation to all matters in respect to which the Legislature of the State has power to make laws. It follows from this that the State Government will have executive powers in respect of List II, Entry 41 of the Seventh Schedule: 'State Public Services': B.N. Nagarajan v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions of the Government of India, Ministry of Home Affairs dated August 16, 1971 that an officer cannot be appointed on deputation to a post that carried a higher grade of pay in the Union territory of Chandigarh. Thus, the post of Principal in the pay scale of ₹ 350-900 could only be filled by a person on deputation who manned a post the scale of pay of which was equivalent to the scale of pay of the Principal i.e. ₹ 350-900. 21. It appears that the entire question was re-examined by the Chandigarh Administration. The Director, Technical Education by his letter dated October 9, 1974 addressed to the Home Secretary, Chandigarh Administration stated that the qualifications prescribed by the Government of India in the Training Manual for the post of Principal in such institutions were as under: 1. Degree or its equivalent in Mechanical Engineering or Electrical Engineering will be preferred. 2. In the case of degree holder, practical experience of one year in a reputed concern or in a training institute will be desirable. 3. In the case of Diploma holders, practical experience of 5 years in a reputed concern or in a training institute will be desirable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was fully apprised about the true legal position by the Chandigarh Administration expressing their inability to take an officer working in a lower grade or to take back the appellant as Principal of the Institute, it still insisted in sponsoring her name, although this could not be done. This attitude of the Government of Haryana was just inexplicable. Nevertheless, the Chandigarh Administration by their letter dated August 20, 1974, i.e., just within six days of the requisition did what was expected of them and duly informed the Government of Haryana of their decision to recruit a Principal through the Commission and requested that it may direct the eligible officers from Haryana to apply for the post. In response, the Government of Haryana by its letter dated September 27/30, 1974 registered a protest staking a claim as if the post of Principal of the Institute was a Haryana-quota post, i.e., it could be filled in only by an officer on deputation from the State of Haryana. In spite of repeated letters sent by the Chandigarh Administration, the Government of Punjab also did not send up the name of a suitable officer. In view of these circumstances, it cannot be asserted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, therefore, by its letter dated September 16, 1974 returned the requisition to the Chandigarh Administration, with the observation that they should lay down the qualifications keeping in view the nature and duties of the post. The Chandigarh Administration accordingly on January 2/4, 1975 forwarded a fresh requisition revising the qualifications for the post i.e. including 'Administrative Experience for three years'. Thereafter, the Commission on February 1, 1975 advertised the post with the essential qualifications as suggested, with a relaxation clause. It will, therefore, appear that in the instant case, the essential qualifications were prescribed by the Chandigarh Administration in consultation with the Commission and also that the Commission had in the advertisement issued, reserved to itself the power to relax the qualifications in case of suitable candidates. Where qualifications for eligibility are not prescribed by rules, broad decisions as to the method of recruitment are taken in consultation with the Commission. This requirement was fulfilled in this particular case. The Chandigarh Administration was fully aware that the Commission had reserved to itself t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st-graduate degree in the concerned speciality , and the question was whether the qualification of F.R.C. 5 satisfied the qualification prescribed for the post of Professor of Orthopaedic Surgery. It was held that the Regulations framed by the Medical Council required that in addition to the general F.R.C. 5, a Surgeon must have a diploma in Orthopaedics before he could be appointed a Professor, Reader or Lecturer in Orthopaedics. It was said that to hold otherwise, would mean that a person who has the qualification of F.R.C. 5 would be deemed to be specialised in Orthopaedics, without his having any such qualification. 29. In the Maharashtra State Electricity Board's case, (supra) the Board, which is a statutory Corporation, made the Maharashtra State Electricity Board (Classification and Recruitment) Regulations, 1961, in exercise of its powers under Section 79 of the Electricity Supply Act, 1948. Regulation 8 invests the power of modification of minimum qualifications or experience required for the various categories of posts only in the Board. Regulation 21, however, confers power on the Selection Committee to recommend, in deserving cases, relaxation of the age limit an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or Diploma of Industrial Training of two years' duration with one year's teachers training/C.T.I.' Indeed, respondent No. 6 had essential qualification No. 2. The word 'or' made the two clauses disjunctive, and they were in the alternative. Respondent No. 6 besides being a graduate in Arts also held a three years' Diploma in Home Science from Lady Irwin College, Delhi. 31. It is a matter of common knowledge that Home Science, in some countries called 'domestic economics' or 'domestic science', is a broad field of learning integrating the subject-matters of several disciplines to form a body of knowledge focussed on the problems of the home and their living. It is concerned with all phases of home life and includes the following subjects: child development and family relationships; clothing, textiles and related arts; family economics and home management; food and nutrition; housing and house management. Shorter Oxford Dictionary, 3rd ed., Vol. II, p. 2253 gives the meaning of 'Technology' as: a discourse or treatise on an art or arts; the terminology of a particular art or subject; the scientific study of children. In W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e selection of respondent No. 6. In our view, the allegations in the writ petition are not sufficient to constitute an averment of malafides or bias on the part of either the Chandigarh Administration or in particular against Dr. O.S. Sehgal sufficient to vitiate the appointment of respondent No. 6. Nomalafides as such are imputed against the Union Public Service Commission. The Court would be justified in refusing to carry on investigation into allegations of malafides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing malafides lies very heavily on the person, who alleges. 34. The Division Bench has pointed out, and we think rightly so, that the principles laid down in Kraipak's case (supra) were not applicable in the facts and circumstances of the present case. It rightly observes that no question of malafides or bias arises as it is clear from the letter written by Dr. O.S. Sehgal dated October 9, 1974 to the Home Secretary, Chandigarh Administration wherein he had not said a word against the appellant. All that he said in his capacity as Director, Technical Education was that on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission has on affidavit stated that the Commission relaxed some of the essential qualifications after applying its own mind, uninfluenced by any extraneous considerations, and denied, in particular, that the Commission was advised by any extraneous authority. Dr. O.S. Sehgal as Representative of the Chandigarh Administration was associated only as an Expert Member and his only duty was to apprise the Chairman of the Selection Committee as to the nature of duties to be performed by the selected candidate. There was nothing wrong in the Union Public Service Commission taking such expert advice. We are informed that the Selection Committee had also selected the appellant for the post of Principal although, on evaluation of comparative merits and de-merits placed her as No. 2 while the respondent No. 6 was placed as No. 1. This circumstance clearly shows that the Selection Committee was wholly uninfluenced by any other consideration except merit. In S. Pratap Singh v. The State of Punjab (1966)ILLJ458SC this Court laid down that he who seeks to invalidate or nullify any Act for Order, must establish the charge of bad faith and abuse or misuse by Government of its powers. The alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion had exceeded its powers, by usurping the functions of the Chandigarh Administration, in relaxing the essential qualifications of the candidates called for interview or that respondent No. 6 was not eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully know that under the terms of the advertisement, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge, she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds. 39. Lastly, the contention of respondent No. 7, Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was denial of equal opportunity to her in violation of Article 16(1) can be easily disposed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons possessing the qualifications advertised, as prescribed by the rules, are available and have submitted their applications. If a rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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