A.K Ganguly, J.:— Both these writ petitions have been filed raising identical issues and as such both the writ petitions are decided by this common judgment.
2. In both these writ petitions, substantial challenge has been made to the selection proceeding for appointment to the post of Assistant Environmental Engineer by the Bihar State Pollution. Control Board (hereinafter called the said Board). It is, true that the petitioners who have challenged the said selection proceeding appeared in the same but they are not successful.
3. Now a preliminary objection with great vigour has been urged by the learned counsel for the respondents that the petitioners having appeared in the selection proceeding and having been unsuccessful in the same cannot challenge its legality. On this aspect the trend of judicial opinion in some cases is that once a person appears before a Selection Committee and offers his candidature for the same, he cannot subsequently turn round and say that the selection authorities are not competent or that the selection proceedings were not in accordance with the rules. The rationale behind this Judicial opinion apparently rests on the doctrine of Estoppel. The said doctrine is based on equity. The equity of a case cannot be strait jacketed within rigid formula. It depends on the fact situation which varies from case to case.
4. Apart from that there are many important aspects connected with this question. When a challenge by an unsuccessful candidate to a selection proceeding is barred at the threshold just because he was a candidate, this bar is slapped on him on the assumption that by appearing before the selection proceeding, he has taken a chance and he would not have protested if he had been selected. But as he became un-successful, he is raising his objections to the selection process.
5. This Court, with utmost respect, views it as a line of reasoning but not as any declaration of law under Article 141 of the Constitution. Every one in life takes chances in many situations. In order to survive in today's competitive world one cannot afford to remain supine and indolent but has to be up and doing and take whatever chances that come his way.
6. When a person contests an election in any form, right from the Panchayat to Parliament, he takes a chance. But if he fails, the Court cannot say that having taken a chance, you cannot challenge the election result. Similarly when a student appears in an examination, he takes a chance. But if he fails and if has a case to challenge the examination process, his case cannot be dismissed solely on the ground that he has taken a chance by appearing in the examination. When a business man participates in the tendering process and finds that his tender is not accepted, on an improper ground, the Court cannot fold its hands merely on the ground of his participation in the process.
7. Therefore, how an aspirant for a job which is vitally linked with his livelihood can be told off at the gates by the Court that his grievances about the validity of the selection process will not be examined just because he participated in the selection process. If Court says so, does that not offend the brooding omnipresence of the equality clause in the Constitution?
8. Thus it boils down that an aspirant, even being an aggrieved person, on the sole ground of participation loses his ‘locus’ to challenge illegalities in matters of public employment.
9. But the law relating to locus has undergone a sea change in recent time. The traditional rigours of locus in private law are no longer applicable in public law field. Judges in the past had an instinctive reluctance to relax the rules about locus on the apprehension that a relaxed rule will open ‘flood gates’ of litigation. But that attitude has changed with the gradual expansion of governmental control over citizen's life. Now the Courts, both in England and India, have realised the importance of mellowing down the rigours of law relating to standing especially in the ever widening zone of public law.
10. In this context, the eloquent speech of Lord Denning in R v. Greater London Council, ex parte Blackburn (1976) 3 All. E.R page 184 at page 192 which is very apt is set out below:—
“I regard it as a matter of high constitutional principle that, if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those off ended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.”
(Emphasis added)
11. This speech of Lord Denning delivered as Muster of the Rolls has been approved by Lord Diplock in the House of Lords in Inland Revenue Commissioners v. National Federation of Self-employed and Small Business Limited reported in 1982 Appeal Cases Page 617 at page 641. Even before 1982 the Courts in India are not lagging behind either in the felicity of expression or in the elucidation of the principle. Justice Krishna Iyer's observation in Fertilizer Corporation Kamgar Union (Regd.) Sindri v. Union of India reported in A.I.R 1981 S.C page 344 at page 356, is also very illuminating:—
“If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him.
12. There is another aspect of the matter also. Any participant in a selection process relating to public employment has a fundamental right to have his candidature considered on the basis of valid selection procedure framed in accordance with law and by a properly constituted selection body and in a fair manner. This right of his under Articles 14 and 16 of the Constitution is inherent in him and he cannot be said to have waived the right by being an applicant. Law is quite clear on this point that fundamental right cannot be waived or bartered away. The Constitution Bench of the apex Court in Olga Tellis v. Bombay Municipal Corporation reported in. A.I.R 1986 S.C page 180 at page 192 has lucidly explained the position in the following words:—
“Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake or law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits.”
13. So the applicability of the doctrine of estoppel in view of this Constitution Bench ratio is ruled out. In this case there is no concession by the petitioners, they are, on the other hand, trying to assert their right by challenging the selection proceeding. The Court cannot, in the facts of this case, and having regard to the settled legal position hold that such challenge is not maintainable as the petitioners responded to the impugned selection process. Apart from that an applicant for a post is at the receiving end. He cannot at the start of selection process raise his finger to its legality. If he does so, he, virtually loses whatever chances he has. In a country threatened with un-employment on large scale, it is not humanly expected of an applicant to raise objection at the threshold of a selection process by not participating in it and thereby waste the chances he may have had of succeeding in it. The issue of economic duress and un-equal bargaining power in service jurisprudence which has also received judicial notice and recognition by the Apex Court in Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly in A.I.R 1986 SC Page 1571 and subsequently affirmed by the Constitution Bench in Delhi Transport Corporation's case reported in A.I.R 1991 S.C page 101, is also another aspect of the matter which persuades me to reject the preliminary objection.
14. On this point some decisions have been cited by the learned counsel for the respondents in order to contend that this writ petition should be dismissed on the basis of the preliminary objection alone. The first decision on which reliance has been placed in support of his contention is in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla reported in A.I.R 1986 S.C page 1043. In that decision the primary question which came up for consideration was whether 1947 rules, namely, Subordinate Civil Court Ministerial Establishment Rules, 1947 stood entirely superseded by the rules of recruitment of ministerial staff to the Subordinate Offices, 1950. On a detailed consideration of the question the learned Judge came to the conclusion that 1947 rules have not been superseded in their entirety by the 1950 Rules. After coming to the said conclusion the Court while considering the relief to be granted in the case considered the competing equities in the particular factual aspects of the matter. The Court considered the question that since the High Court had itself observed that as a consequence of the setting aside of the result of the examination held in other district would cause hardship to the applicants who had appeared there, the same yard stick should have been applied in respect of the candidates in the district of Kanpur. It was said that the successful candidates are not responsible for the conduct of examination. So, in the fact of that case, while adjusting the competing equity in the matter of grant of relief, the above observation was made. The same was not observed as a general declaration of law as would appear from the subsequent judgment where the said judgment was distinguished on facts by the Hon'ble Supreme Court. Therefore, the ratio in the case of Om Prakash Shukla (supra) is not strictly applicable to the facts of this case.
15. The next decision which was cited on this point by the learned counsel for the respondents was in the case of Madan Lal v. State of Jammu & Kashmir reported in (1995) 3 S.C.C page 486. The observations made in paragraphs 9 and 10 of the said judgment have been relied upon. On a perusal of those paragraphs, this Court finds that in that case both the petitioners as well as the respondents were all found eligible in the written test and thereafter they were called for interview. Till that stage there was no dispute between the parties. The petitioners appeared in the oral interview as well as the respondents and only because the petitioners did not become successful in the oral interview they filed a writ petition. The ratio in the case of Om Prakash Shukla (supra) was relied on in that case in order to deny the relief. It was stated that once the candidate appeared in the interview and the result of the interview is not favourable to him, he cannot turn round and say that the process of interview was not fair and the Selection Committee was not properly constituted. The Court also stated that the assessment made by the interview Board cannot be questioned before a writ Court as the writ court is not a court of appeal to assess the merits of the candidates and the learned court also took into consideration that one of the sitting learned Judge of the High Court was a member of the Committee to consider the matter relating to the merits of the candidates who were interviewed. Therefore, the learned Court refused to interfere with such assessment by the expert body.
16. Here the fact situation is not that. Here the entire selection procedure was decided on the date of interview. The petitioners' case is that there was no indication that there would be a written test either in the advertisement or in the interview letter. On the date of interview the question of written test was introduced and all the procedure relating to distribution of marks for the written test, academic qualification and interview were decided by the selection committee and not even by the Board. Such a procedure is illegal and the petitioners came to know of the same only when they were appearing in the interview and not before that and as such they had no time to raise, any protest. So here in the facts of this case, the ratio in the case of Madan Lal (supra) are not strictly applicable. In any event it does not appear even in the case of Madan Lal (supra) this ground was treated as a preliminary objection because from paragraph 11 it appears that despite the aforesaid finding the Court proceeded to consider the objection raised by the un-successful candidate about the oral interview and on a detailed consideration of the merits the Court came to the conclusion that such objection is not sustainable.
17. The other case on which reliance was placed was a Division Bench Judgment of this Court in the case of Vinod Kumar v. State of Bihar reported in 1997 L.I.C page 1935. This question also came up for consideration as to whether the writ petition can be entertained at the instance of un-successful candidates after they have participated in the selection process. From the discussion on the factual aspects of the case, it appears that in the case of Vinod Kumar (supra) the petitioner had clear knowledge about there procedure formulated by the B.P.S.C in the matter of holding examination. In spite of such knowledge the procedure was not challenged before this Court and 18000 candidates who have already been appointed pursuant to such procedure were not made parties in the said writ petition. Apart from that on facts it was held that the writ petition also suffers from delay and laches on the part of the petitioner. So in the background of the fact that selection of about eighteen thousand appointees who were impleaded will be disturbed on a delayed petition by the petitioner, the Court refused to exercise its discretion following the ratio in the case of Om Prakash Shukla (supra). It appears that in that case the petitioner had a right to raise a protest about the procedure available in the said examination but without raising any such protest, they appeared in the examination and came to this Court at a very belated stage. So here also on a question of competing equities between the two rival parties, the Court refused to interfere. But the facts situation here is not the same as pointed out above and as will be further pointed out subsequently in this judgment.
18. On the other hand the decision of the Supreme Court in the case of Prem Singh v. Haryana State Electricity Board reported in (1995) 4 S.C.C page 319 the same question was raised about the locus standi of the petitioners to file writ petition on the aforesaid ground that all of them except one participated in the selection process. Repelling the said objection the learned Judges of the Supreme Court held in paragraph 12 as follows:—
“In our opinion, there is no substance in the objection raised with respect to locus standi of the original writ petitioners. The candidates could not have anticipated when they appeared for the interview that the Selection Committee would recommend candidates and the Board would make appointments far in excess of the advertised posts. The petitioner who was not eligible had a just grievance that due to appointments of candidates in excess of the posts advertised he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility.”
19. Here also from the facts situation which would be discussed later on, it would appear that the impugned advertisement was issued for eight vacancies but 12 posts were filled up and those vacancies did not arise either out of reirement or death. Thus it appears that on this question there cannot be any strait jacket formula for rejecting the writ petition just because it was filed at the instance of the candidates who participated in the selection process.
20. The subsequent three Bench judgment of the Supreme Court in the case of Raj Kumar v. Shakti Raj reported in (1997) 9 S.C.C page 527 has taken a view distinguishing its previous judgment in Madan Lal (supra). The ratio in paragraph 16 of the judgment in the case of Raj Kumar (supra) has been expressed as follows:—
“It is true, as contended by Shri Madhava Reddy, that this Court in Madan lal v. State of J & K decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case.”
21. It is, therefore, clear that in the subsequent three Bench judgment of the Supreme Court was conscious of the previous judgment of the Apex Court in Madan Lal (supra) as also the decision on which Madan Lal was based, namely, Om Prakash Shukla (supra) but even then overruled the aforesaid objection having regard to the “glaring illegalities” in the case. This Court being in respectful agreement with the ratio of the subsequent three Bench decisions of the Supreme Court, also cannot sustain this preliminary objection in view of the glaring illegality in the impugned selection process which have been pointed out and discussed hereinbelow in detail.
22. The divergence of judicial opinion on the question of locus in such matters is quite natural. The reason being that in such matters, the Summit Court, on the facts of each case, has given its line of reasoning. So this is not a question affecting the Court's jurisdiction but is largely a practice followed by the Court haying regard to the facts of each case. In this view of mine, I find considerable support from the opinion of Lord Diplock in Inland Revenue Commissioners (supra). The relevant passage is at page 638 of the report and is quoted below:—
“But in the field of public law where the court has a discretion whether or not to make an order preventing conduct by a public officer or authority that has been shown to be ultra vires or unlawful, the question of what qualifications an applicant must show before the court will entertain his application for a particular kind of order against a particular class of public officer or authority seems to me to be one of practice rather than of jurisdiction.
(emphasis supplied).
23. 22-A. So considering all these aspects, discussed above, I am constrained to overrule the preliminary objection.
24. Having thus overruled the preliminary objection, this Court proposes to examine the facts of the case in some details.
25. Initially the appointment of the petitioners was against an advertisement which was issued on 25.9.1987 under the signature of the Principal Secretary of the Board for appointment of the Consultant Engineer on a consolidated emolument of Rs. 1500/- per month. It may be stated in this connection that there were 16 sanctioned posts of Assistant Environmental Engineers and in the year 1987 against the said 16 sanctioned posts, five were working and inrespect of 11 vacancies. The respondent Board required the Bureau of Public Enterprises (hereinafter called the said B.P.E) to recommend for appointment. As the B.P.E was causing delay in making such recommendation, the Board was experiencing great hardship in the performance of its technical jobs and as such the Boards decided to exercise its power conferred under rule 11 of 1966 Rules framed under the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the said Act). Such appointment was initially made for a fixed period. As such the aforesaid advertisement was issued and the petitioners being 1st Class Graduate Engineer in Chemical Engineering applied for the said post and they were interviewed and consequently by notification no. 24/45 dated 17.8.1988 and 31.12.1988 respectively the petitioners were appointed as Consultant Engineers for a period of six months on the aforesaid consolidated salary of Rs. 1500/- per month. Such appointment of the petitioners was extended from time to time till the month of February, 1991. Then consequent upon such request, the B.P.E came with an advertisement No. 2-2/89 inviting applications against 11 posts. The petitioners did apply through the Board and their applications were forwarded by the Principal Secretary but, however, the said advertisement did not reach finality. Thereafter the Board also kept on writing letters and sending reminders to the B.P.E for initiating an advertisement for regular appointments.
26. The Secretary of the said Board also requested the Additional Secretary, Forests and Environment Department (Respondent no. 3) to consider the difficulties experienced by the Board in the sense that the matter is pending with the B.P.E for the last three years and in the absence of B.P.E's recommendation, the matter could not be finalised. Then in the year 1990 the B.P.E came with an advertisement No. 3-4/90 inviting applications for the post of the said Engineer in the said Board and the petitioners having requisite qualification again applied in response to the said advertisement. In the light of the letter No. 17-E dated 16.12.1991 issued by the Forest and Environment Department, the petitioner and five others were appointed as the Environmental Engineer on ad hoc basis vide notification dated 26.2.1991 In the said appointment letter which is Annexure-17 to the writ petition it was stated that such appointment will come to an end on completion of the selection procedure by the B.P.E Thereafter the petitioners on the basis of such appointment were transferred to various places. It is basically against the cancellation of this appointment letter that this writ petition had been filed.
27. The petitioner in his writ petition has alleged malafides and bias against respondent no. 6 as according to the petitioners with the appointment of the said respondent no. 6 things started moving contrary to law and there were many allegations against the misdeeds of respondent no. 6.
28. This Court is not going into those questions in this judgment.
29. Then came the impugned advertisement dated 19.7.93 and the impugned selection procedure initiated by the Board. The same is at Annexure-22. The said notification was issued by the Chairman of the Board along with a subsequent corrigendum and the petitioners applied pursuant to this also.
30. The petitioners were working since 1988 against the very same posts in respect of which advertisements were made in 1993. As such their case is that in order to regularise their appointments, the petitioners applied pursuant to the impugned advertisement.
31. The impugned selection procedure initiated by the said Board was challenged on various grounds by the petitioners. These grounds are enumerated hereunder.
32. Firstly, it is contended by the learned counsel for the petitioners that under the provisions of the said Act, the Pollution Control Board, respondent no. 4, is a State Board within the meaning of section 2(h) of the said Act. It has further been stated that under section 12(3) of the said Act the Board may appoint such Officers and employees as it considers necessary for efficient performance of its functions.
33. Sub-section (3-A) of Section 12 of the said Act is relevant in this connection. The said Sub-section empowers a State Board to make regulations. But such regulations are subject to the approval of the State Government.
34. It is an admitted position that no regulation has been framed, but it has been alleged by the learned counsel for the petitioners that rules have been framed under section 64 of the said Act by the State Government after consultation with the said Board, and the said Rules are called Water (Prevention and Control of Pollution) Rules, 1986. Under the said Rules, especially under rule 8 of the said Rules, provisions have been made for creation and abolition of posts by the State Board. Learned counsel for the petitioners has submitted that the Board shall have to obtain prior sanction of the State Government to create, abolish or appoint any person to a post carrying maximum pay scale of Rs. 2500/- per month. Therefore, learned counsel for the petitioners submits that the power given to the Board under the said rules is a limited power. Rule 8 of the said 1986 Rules is set out below:—
“8. Creation and abolition of posts.—(1) The State Board may create such posts in different scales as it considers necessary for the efficient performance of its functions, make appointment against such posts, abolish such posts so created and consequently terminate the appointments made against such posts:
Provided that the State Board shall obtain prior sanction of the State Government for the creation, abolition of and appointment to posts above the maximum pay scale of Rs. 2,500 (Rupees Two thousand and five hundred) only per month.
(2) Subject to rules, if any, made under sub-section (3) of Section 12 of the State Board shall have full power in the matters of appointments to posts in different scales, promotion, confirmation, transfer and termination of services of officers and employees of State Board.”
35. Relying on the said rules, learned counsel submits that the appointments which were sought to be initiated by the impugned selection procedure are in respect to Class II posts, in those cases the maximum salary exceeds Rs. 2500/- per month. No prior sanction of the State Government has been obtained, as such the impugned appointments are in violation of the aforesaid rules.
36. Further submission that has been made, impugning the selection procedure is that the Board has itself framed a resolution in its 28th meeting held on 16th February, 1987 that in respect of appointment to Class I and Class II posts, power is delegated to the Board, but such power of appointment has to be exercised as per the procedure laid down by the Government.
37. In connection with the said resolution, learned counsel for the petitioners submits that such a procedure has been laid down by the Government of Bihar in Personnel and Administrative Reforms Department, wherein for appointment to Class I and Class II posts in different Boards, Corporations and Companies a selection committee has been constituted under the said Resolution of the Government dated 11th September, 1981. The said resolution of the Government has been issued in the name of the Governor. Learned counsel for the petitioners has submitted that if annexure-19 which is the Board's Resolution is read with the said order of the Government dated 11th September, 1981, it will be clear that procedure for recruitment has been laid down but the said Government order dated 11th September, 1981 has not been followed in the impugned selection proceeding.
38. Learned counsel for the petitioners has further submitted that under section 18 of the said Act, it is made clear that in the performance of its functions, the Board shall be bound by such directions as the Central Government or the State Government may give to it. Relying on the said provisions, learned counsel for the petitioners submits that there is a direction given by the Additional Secretary, Forest and Environment Department dated 26th July, 1993, to the effect that the advertisement that has been issued by the Board for recruitment should not be further proceeded with. In the said letter of the Additional Secretary, specific reference to the advertisement No. 2/93 issued in the news paper ‘Aaj’ has been made with a direction that the said recruitment should not be processed further. Learned counsel for the petitioners submits that ignoring the same the Board proceeded with the selection and it is on the basis of the said selection process that the order of removal of the petitioners from service, dated 2.11.1996 was issued.
39. Apart from that, learned counsel for the petitioners submits that the selection procedure itself was wrong in the sense that there was no procedure laid down for the said selection by the Board. Admittedly, the selection procedure was laid down by the Selection Committee itself and it is on the date of the interview that the petitioners were informed that there will be a written test. According to the petitioner the said procedure is wholly un-reasonable. The petitioners contended that if the selection authority wanted to have a written test, they should have informed the same in the advertisement itself but that was not done. Another objection that has been raised against the selection procedure is that only eight posts were advertised and admittedly 12 persons were appointed.
40. Learned counsel for the State, however, supported the contentions of the petitioners' counsel that the selection was not made in accordance with the procedure prescribed under the law. In the counter affidavit filed in this case by the Additional Secretary, Department of Forest and Environment Government of Bihar, it has been stated that under the said Act and the Rules framed thereunder the State Government has substantial control over the powers of the Board, especially in the matter of appointment of Officers. Learned counsel for the State has relied upon rule 8 of the said Rules, referred to above, which has been framed in consultation with the Board. It has been stated, relying on the said rules that no appointment to the posts carrying the maximum pay scale of Rs. 2500/- per month could be made by the Board without obtaining prior sanction of the State Government. It has also been stated that no decision or regulation of the Board determining the method or procedure for appointment to such posts could be implemented unless the same is approved by the State Government. It has also been stated that the B.P.E which is a wing of the State Government under the Finance Department has a control over the matters relating to selection and recommendation for appointment in Class I and Class II posts and the Board is kept under the purview of the said B.P.E In other words, learned counsel contended that unless the mode and method for recruitment to Class I posts in the Board is sanctioned by the State Government, no appointment to such post may be made and that such appointments can only be made in accordance with the directions of the State Government and in terms of Annexure-7, dated 11th September, 1981. It has also been stated that the post of Assistant Environmental Engineer, carries a maximum pay scale of Rs. 4000/- per month which exceeds the limit of Rs. 2500/- but no prior sanction of the State Government for appointment to this post as required under the proviso to rule 8(1) of the said Rules has been taken. Further, no such appointment has been made pursuant to the recommendation of the B.P.E It is further stated by the learned counsel that the Board has to consult the B.P.E for making appointment, but in fact the selection procedure was initiated by the Board without following the direction of the State Government and the Selection Committee on its own decided the mode and method of such selection without obtaining prior approval of the State Government.
41. In controverting the aforesaid submission made by the learned counsel for the petitioners as also learned counsel for the State, learned counsel for the Board relied on a learned Single Judge judgment of this Court in order to contend that the Board can make the appointment in question and it can also initiate the recruitment procedure.
42. This Court on perusal of the said judgment rendered in C.W.J.C No. 4275 of 1993 dated 7.2.1995 finds that the learned Judge has held “it is true that the Government has been vested with the power in regard to the matter relating to the appointment of the Officers and employees of the Board and that the power of the Board under rule 8 of the Rules cannot be held to be absolute.”
43. The learned Judge further held “the Government can act only in accordance with the powers emanating from the provisions of the said Act or the rules framed thereunder and not otherwise. Any action taken by the State Government beyond the purview of the provisions of the Act or the Rules framed thereunder cannot be sustained.” On a perusal of the said finding of the learned Judge in C.W.J.C No. 4275 of 1993, this Court is of the opinion that the learned Judge has laid down the following propositions:—
(i) The State Government has been vested with the power in relation to matters of appointment of the Officers and employees of the Board.
(ii) The power of the Board under rule 8 of the said Rules is not absolute;
(iii) But the State Government cannot interfere in a manner which is not permissible under the Act and the rules framed thereunder.
44. Learned counsel for the Board further submitted that the B.P.E has no power either under the rules or under the Act. Learned counsel also submitted that the rules, namely, rule 8 of the said Rules, especially, the proviso to rule 8(1) of the said Rules on which reliance has been placed by the petitioner was brought into existence on 30.4.1986 As such under the said Rules restriction about the appointment to posts, the maximum pay scale of which is above Rs. 2500/- must be reasonably construed. Learned counsel also submitted that pay scale from 1986 has been revised. Therefore, restriction on appointment under proviso to rule 8 of the said Rules will apply only to those posts of which the maximum pay scale was Rs. 2500/- on 30.4.1986 The learned counsel submitted that otherwise the rule will become un-workable.
45. Learned counsel again submitted that the procedure which was followed in the matter of impugned selection was a fair procedure and the selection committee consisted of eminent persons and the candidature of all the candidates including those of the petitioners were fairly and-objectively considered. Learned counsel also contended that the B.P.E has no power or control over the functioning of the said Board. While making the said submission, learned counsel relied on a communication from the Central Board dated 22.6.1982 which is addressed to the Member Secretary of the Bihar Board. From the said communication it appears that the B.P.E has no administrative control over the said Board. Learned counsel further submitted that even though posts outside the advertisement were filled up, there is no irregularity in filling up such posts. The posts were filled up because vacancy existed. Learned counsel for the Board, however, admitted the position that the selection was done and the modalities of selection were formulated by the selection committee and not by the Board.
46. Learned counsel appearing for the private respondent nos. 14 and 15 submitted that the letter which was written by the Additional Secretary, Forest and Environment Department dated 26.7.1993 cannot be considered as a communication from the government. In support of this fact learned counsel for the private parties submitted that the Additional Secretary, Forest and Environment Department has no power or jurisdiction to issue any direction to the Chairman of the Board. He further submitted that from the letter in question it cannot be asserted whether the Additional Secretary has been authorised to exercise the power on behalf of the State Government since the order does not contain the recital that the same has been issued in the name of the Governor. So, it cannot be considered to be a direction of the Government. It has been further stated that in the counter affidavit which has been filed by the State Government, the said letter issued by the Additional Secretary has not been referred to. Learned counsel further stated that on receipt of the said order dated 26.7.1993 the Chairman of the Board gave its reply dated 17.8.1993 enclosing the opinion of the then Advocate General, Bihar dated 23.1.1982 and the order of the Cabinet Minister dated 19th January, 1993 and a direction of the Patna High Court. The Chairman of the Board asked for a reply from the said Additional Secretary and made it clear that if within a month reply is not received on the querries raised in the said letter, then there will be no necessity to stay the recruitment process initiated by the said advertisement. Learned counsel for the private respondents, therefore, submitted that no reliance should be placed on the said communication made by the Additional Secretary.
47. Another learned counsel, who appeared for the private respondent nos. 10 to 13, has submitted that his clients have been appointed as Assistant Environmental Engineer (Civil) and the petitioners claim to have been working on the post of Assistant Engineer (Chemical). Therefore, there is no apparent clash of interest between the two sets of employees. Learned counsel further submitted that since the Board is a body corporate under section 4(3) of the said Act having a perpetual succession and a common seal, it must be regarded to be a master in its own house and its autonomy cannot be undermined except under the strict provisions of law. Learned counsel submitted that under section 17 of the said Act, the functions of the State Board have been enumerated and under section 18 of the said Act it is made clear that in the performance of its function under the Act, the State Board shall be bound by such direction in writing that the Central Government or the State Government may give to it. Learned counsel said that in the instant case no direction has been given by the State Government within the meaning of Section 18 of the said Act in the matter of making the impugned appointments. Therefore, no such direction having been given, there is no question of its violation. Learned counsel further submitted that rule 8 of the said Rules are not framed under section 12(3-A) of the said Rules but these rules have been framed under section 64 of the said Act. Learned counsel further stated that since there is a specific provision for making a rule under section 12(3-A) of the said Act relating to method of recruitment and terms and conditions of service, the rule made under section 64 of the said Act is ultra vires the said section inasmuch as the said rules virtually purports to impinge upon the power given to the State Board under section 8 (sic) of the said Act. Learned counsel further submits that under section 64 of the said Act, there is no provision for laying the rules before the Legislative Assembly but there is such a provision under section 63(3) of the said Act relating to similar rules framed by the Central Government. Therefore, the rules framed under section 64 of the said Act, namely, rule 8 of the said Rules cannot be treated as part of the Act. Apart from the aforesaid contentions, both the learned counsel for the private respondents and the learned counsel for the Board have urged that the writ petition should not be entertained in view of the preliminary objections which has been noted and over ruled here-in-above.
48. Before considering the rival contentions of the parties, this Court must consider the nature of control the State Government exercises on the said Board.
49. From a perusal of the provisions of the said Act, it appears that the said Board is constituted and appointed under section 4(1) of the said Act.
50. The said Board shall consist of several members. Most of them are the State Government nominees. It appears from section 4(2)(a) of the said Act that the Chairman has to be nominated by the State Government. Such Chairman has to be nominated by the State Government. Such Chairman may be a whole time or a part time one as the State Government may think fit. Under section 4(2)(b) of the said Act, five members may be nominated by the State Government to represent that Government, then under section 4(2)(c) of the said Act, five members shall be nominated by the State Government from amongst the members of the local authorities functioning within the State. Under Section 4(2)(d) of the said Act, three members may be nominated by the State Government to represent the interest of the Agriculture, Fishery, Industrial Trade or any other interest which in the opinion of the State Government had to be represented. Two persons are to be nominated under section 4(2)(e) of the said Act by the State Government representing the Companies and Corporations owned and controlled by the State Government. A full time Member Secretary is to be appointed by the State Government under section 4(2)(f) of the said Act.
51. It will thus appear that it is the State Government which controls and dictates the total constitution of the said Board and all its Members are either appointed by the State Government or nominated by the State Government. Under section 12(3) of the said Act, rules are to be made by the State Government and subject to such rules, the Board shall have the power to appoint such officers or employees as it considers necessary to perform its function.
52. Under section 12(3-A) of the said Act, the method of recruitment and condition of service of such Officers and employees may be determined by the regulations to be framed by the said Board. But such regulation cannot take effect unless it is approved by the State Government. Under section 18 of the said Act the Board in the performance of its function is bound by the directions in writing of the State Government. It has also been stated in the proviso to section 18(1)(b) of the said Act that whether the direction given by the State Government is inconsistent with the direction given by the Central Board, the matter shall be referred to the Central Government for its decision.
53. Under section 28 of the said Act, the State Government has the power to constitute an appellate authority to hear appeals from the orders passed by the said Board passed under sections 25, 26 and 27 of the said Act. Under section 29 of the said Act, the State Government retains its suo motu power of revision against the order of the State Board. Under section 35 of the said Act, the State Government in each financial year has to make contribution to the State Board to such an extent as it may think necessary to enable the Board to perform its function. Under section 39(2) of the said Act, the State Board shall, during each financial year, prepare in such form as may be prescribed, the annual report giving full account of its activities under the Act during previous financial year and forward the same to the State Government. Under section 62 of the said Act the State Government has the power of supersession of the State Board and the consequence of supersession is that upon publication of notification of such supersession, shall vacate their office as such. Under section 64 of the said Act, the State Government has power to make rules but no such rule shall be varied, amended or repealed without consulting the Board.
54. Following the structure of the said Act as indicated above, which mandates such deep and pervasive control of the State Government over the said Board, it is difficult for this Court to hold that in the matters of selection of candidates, the said Board can defy proviso to rule 8 of the said Rules or that it can ignore any direction issued by the State Government to stop the selection when it is held without complying with the requirement of rule 8 of the said Rules.
55. In taking this view I do not think that I have taken a view different from the one taken by the Hon'ble Mr. Justice Radha Mohan Prasad in C.W.J.C No. 4275 of 1993.
56. Reference in the connection may be made to the decision of the House of Lords relied on by Mr. Lalit Kishore, learned counsel appearing for some of the private respondents in the case between the Trustees of the harbour of Dundes and D & J Nocol reported in 1915 A.C page 550. The factual aspect of the case was that a franchise of ferry within certain defined limits was vested by an Act of Parliament on a statutory body of Harbour Trustees to maintain the service of steamers for ferry traffics. When the steamers were not required for ferry traffic, the Trustees let them out on hire for excursion trips beyond the ferry limits. In these facts the question arose as to the nature of power of contracting to the Corporation outside the Statute, In that context the following observations were made by Viscount Haldana Lord Chancellor at page 556 of the report:
“that the answer to the question whether a Corporation created by Statute has a particular power depends exclusively on whether that power has been expressly given to it by the Statute regulating it or can be implied from the language used.”
(emphasis supplied).
57. Relying on the aforesaid dictum, this Court is of the opinion that the said Board cannot demand any autonomy other than what has been given to it under the Act and the rules framed thereunder in the matter of appointing its Officers and Employees. Judged in this context rule 8 of the said Rules creates, a very positive limitation on Board's power to appoint Officers/employees.
58. Going by the test enunciated by the House of Lords as extracted above, this Court cannot but hold that the said Board cannot afford to ignore the mandate of rule 8 of the Rules. Therefore, the ratio in the decision of the House of Lords instead of supporting the contention of Mr. Lalit Kishore supports the contention raised by the petitioner. The other decision cited by Mr. Lalit Kishore is in the case of Tamalin v. Hannaford reported in 1950 King's Bench page 18. It is also of no assistance to his contention. Learned counsel relied on the observation made in paragraph 24 of the said judgment where it has been said that in the eye of law the Corporation is its own master and is answerable as fully as any other person or Corporation. It is said that it is as much bound by acts of Parliament as any other subjects of the King. It has been further stated that the Corporation is not a Government department nor does its power fall within the purview of the Government.
59. The said doctrine in a different context is not attracted to the present situation. Here admittedly the Board is an agent and instrumentality of the Government and is carrying on governmental function. It is a ‘State’ within the meaning of Article 12 of the Constitution of India.
60. From the discussion made above it would be shown that the Government has its deep and pervasive control on the Board. Therefore, in the matter of appointing all its officers and employees the Board must abide by the provisions of the Act and the rules and the directions given, if any, by the Government and is not “its own master” in these matters.
61. This Court finds that rule of?the said rules which has come up for consideration in this case, especially its proviso, is almost in pari materia with rule 8 of the said Rules framed under section 64 of the said Act by the Central Board after consultation with the Central Board.
62. rule 8 of the said Rules as framed by the Central Government including its proviso is set out below:—
“8. Creation and abolition of posts.—The Central Board may create such posts as it considers necessary for the efficient performance of its functions and may abolish any post, so created:
Provided that for the creation of, and appointments to, posts, the maximum of the scale of which is above Rs. 1,600/- per month, the Central Board shall obtain prior sanction of the Central Government.”
63. This Court, therefore, holds that the contention that rule 8 of the said Rules framed under section 64 of the said Act is ultra vires is wholly without substance.
64. This being the statutory dispensation, it is not possible for this Court to hold that the direction contained in the letter dated 26.7.1993 issued by the Additional Secretary, Forest and Environment Department, Government of Bihar, Patna (hereinafter called the said direction) is against the Statute. On the other hand it appears that section 18 of the said Act expressly permits the State Government to give directions to the Board and such power of the Government to give direction is plenary and the only limitation is that such direction has to be in writing and in this case the direction has been in writing.
65. This Court is also persuaded to hold that the direction is justified also. The impugned appointments are, prima facie, violative of the proviso to rule 8 of the said Rules as they admittedly are in respect of a post Which carries the salary the maximum of which is more than Rs. 2500/- per month.
66. In order to get rid out of this a legal impasse, learned counsel for the respondents harped basically two points, namely, (i) on a reasonable interpretation of the proviso to rule 8 of the said Rules, the maximum salary mentioned therein has to be interpreted as variable with the revision of pay, and (ii) the said direction dated 19.7.1993 cannot be said to be one passed by the Government as it is not in the name of the Governor but can only be said to be a direction given by the Additional Secretary concerned.
67. It is difficult for this Court to accept either of these contentions for the reasons indicated below:
68. It is a well settled rule of construction that where the statute or statutory instruments which call for interpretation admit of no ambiguity and its import is plain, in such cases its plain meaning must be accepted.
69. Any attempt to undermine the plain statutory meaning by any interpretative process is not a sound principle of interpretation. Here the import of rule 8 is absolutely clear that it imposes a ban on the Board's power to create a post or appoint any one to the post the maximum pay scale of which is above Rs. 2500/- without obtaining prior sanction of the State Government. Thus while imposing the ban under the proviso to rule 8, the rule has not imposed any un-workable restriction. But the proviso to the rule enables the State Board to create such posts and to make the appointment thereto carrying a higher salary but that can be done only after obtaining prior sanction of the State Govt. Therefore, if by reason of subsequent revision the pay scale has been revised it was open to the Board to approach the State Govt. for its sanction to allow it to make the appointment in question. But the Board cannot completely defy the mandate imposed under the said proviso and defy it with impunity. Therefore, the impugned appointment having been made to a post which is not permissible in view of the mandate of the proviso under the said rules cannot be sustained admittedly when the Board has not obtained prior sanction of the State Government. On the other hand the Board has defied a direction which was given by the Additional Secretary of the concerned department of the Government by its communication dated 19.7.1993
70. The argument that such communication is not a communication by the Government cannot be accepted by this Court. The said communication is by an authorised person, namely, the Additional Secretary of the said Department. It is no body's case that the said Additional Secretary had any bias or interest in the matter or the said Additional Secretary gave the said direction being motivated by any extraneous consideration. Apart from that, the said direction starts with the word “NIRDESHANUSAR” which means as per direction. The State Government in its affidavit is also objecting to such appointment having regard to rule 8 of the said Rules. The said direction makes specific reference to the impugned advertisement which is annexure-22 and the said direction was based on a statutory basis inasmuch as it wanted the Board to reply within one week the matters relating to roster clearance and also for creation of the post. The point relating to creation of post is squarely covered by the proviso to rule 8 of the Rules. It appears from the disclosure made above by the private respondents, and not by the Board, that on receiving the said direction, the Board did not comply with the same but on the other hand reacted by sending the opinion of a learned Advocate and a letter of the Minister. That cannot be treated as acting in compliance with the direction given by the said communication. Therefore, the Board went ahead with the written test and interview for appointment without complying with the said direction. This Court is of the opinion that this direction is certainly a direction within the meaning of section 18 of the said Act and the Board is bound to comply with the same. This Court has already held that the said direction is a valid and justified one.
71. Now the question is whether the said direction can be considered to be a direction by the Government. The objection of the learned counsel is that the said being not issued in the name of the Governor, that constitutes a breach of the Rules of Business under Article 166 of the Constitution, and renders the direction invalid and it cannot be treated as a direction of the Government.
72. The law in this aspect, is quite well settled that the provisions under Article 166(3) of the Constitution have been framed for more convenient transaction of the business of the Government and from the words of the said Article 166(3) of the Constitution it is clear that the same are directory in nature and not mandatory and any non-compliance thereof is a mere procedural defect. Reference in this connection may be made to the Constitution Bench decision of the Supreme Court in the case of Chitralekha v. State of Mysore reported in A.I.R 1964 S.C page 1823. In that case the letter as sent by the Under Secretary to the Selection Board communicating the Decision of the Government to prescribe interview for regulating admission to the Colleges. It was contended that since the order was not issued in the name of the Governor the same was invalid. It was of course not contended in that case that the order does not exist. In the instant case also it cannot be said that the order cannot exist especially when the learned counsel for the State does not disown it. So overruling the similar objection raised in the case of Chitralekha (supra), Subarao, J., as His Lordship then was, speaking for the majority, observed that it is settled law that the provisions of the Article 166(3) of the Constitution are merely directory and not mandatory in nature and if the same are not complied with, it can still be established as a question of fact that the impugned order was issued by the State Government or the Governor. Therefore, this objection is also overruled.
73. Thus it appears from the discussions made above that the impugned selection proceedings are vitiated for the following infirmities:—
(i) In initiating such recruitment procedure prior sanction of the State Government as contemplated under the proviso to rule 8 of the Rules has not been taken. It is not possible for the petitioners to know at the time of initiating recruitment process whether the Board had obtained prior sanction from the State Government, or not.
(ii) Admittedly the procedure for selection in this case was decided by the Selection Committee itself and neither by the Board nor by the State Government. This position is admitted in the counter affidavit filed by the Board. It is quite well settled by the decisions of the Supreme Court that the selection committee cannot decide the procedure for selection. Reference in this connection may be made to the decision of the Supreme Court in the case of Dr. Krushna Chand Sahu v. State of Orissa reported in A.I.R 1996 S.C page 352 at paragraphs 35, 36 and 37 of the said judgment. After considering the case law on the subject it has been made very clear in that judgment that selection procedure cannot be determined by the Selection Committee. But the same has been done in this case. Here also the petitioners cannot on the date of the interview have any clue on the fact as to who had determined the modalities of the selection process.
(iii) Eight posts were advertised and 12 persons were appointed and even the selection list does not contain the names of respondent nos. 9 to 12. This is also another infirmity and about the same the petitioners cannot have any knowledge on the day of the interview.
(iv) Even though the State intervened by its communication dated 19.7.1993 to stop such recruitment procedure by issuing a direction in writing, the same was not obeyed. Therefore, the provision of section 18 of the said Act was violated by the respondents Board in holding the impugned selection. The petitioners cannot have any knowledge on the day of interview about this inter-departmental communication between the Board and the State.
74. Therefore, the selection procedure in this case is vitiated by ‘glaring defects’ and can be challenged by the petitioners even though they participated in the selection process.
75. Apart from the reasons already discussed by me for rejecting the preliminary objection, I further hold that having regard to such illegality as noticed above in the selection process, the Court felt that it is its duty to maintain the integrity of the Rule of Law and to get the unlawful things stopped. This Court is also of the opinion that the Board, as a public body, has a public accountability and when its action is challenged, it must have to satisfy the Court of the lawfulness of what it has done. This would not have been possible if the writ petition had been dismissed on the preliminary ground. The Court while rejecting the preliminary objection has also kept this public interest in mind apart from the rights of the petitioners.
76. For the reasons aforesaid, the impugned selection proceeding pursuant to the advertisement dated 19.7.1993 is quashed as illegal. But the private respondents who were so selected in 1996 and have been continuing since then may continue on the posts to which they were selected purely on ad hoc basis. The order of removal passed in respect of the petitioners are also quashed. The Respondent Board is directed to reinstate the petitioners also on purely ad hoc basis for the time being within a period of a fortnight from today. A new selection proceeding according to law and after complying with the provisions of rule 8 of the said Rules and also in accordance with the other provisions of the said Act and the rules framed thereunder be initiated by the Board in consultation with B.P.E as early as possible and definitely within a period of four months from today.
77. If no selection procedure is initiated within the aforesaid time of four months, in that case the appointments of the private respondents will not continue beyond the aforesaid period of four months but if the selection procedure is initiated in the manner, as stated above, the appointment of private respondents will continue. Such selection proceeding must come to an end within a period of three months of its initiation and in the said selection both the petitioners and the private respondents will be entitled to participate. If the petitioner or the private respondents fail to qualify in that selection, their ad hoc appointment will come to an end. It is in the interest of the Board and also in the interest of the parties that the aforesaid time frame indicated in this order be followed strictly. The State Government is also directed to co-operate and act promptly and in accordance with law in the matter of completion of the selection process in the manner indicated above.
78. Both these writ petitions are, therefore, allowed to the extent indicated above. There will be no order as to cost.
provisions of rule 8
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