I A DESAI Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioners in these cases entered service under the Government of the erstwhile State of Bombay in its revenue department in districts, which on the re-organisation of States, became integrated in the new State of Mysore. Some time after the integration, steps were taken to prepare a gradation list or inter seniority list of petitioners and other clerks similarly situated in the light of the rules and binding instructions issued by the Government of the erstwhile State of Bombay. The State Government followed the procedure of first publishing a provisional list, invit ing objections and suggestions and then issuing a final list, after consideration of such suggestions and objections. A final list was also actually published. Thereafter, some of the clerks made further objections by way of representations or appeals addressed to the Divisional Commissioner of the area, contending that on a proper application of the instructions contained in a circular of the Bombay Government bearing No. EDQ. 1053, dated 8-10-1953, they the petitioners were entitled to positions higher than those assigned to the petitioners in these writ petitions. Some of the appellants succeeded and the petitioners were given or assigned later dates of confirmation. They are aggrieved by the said order of the Divisional Commissioner and complain against the same in these writ petitions, on the ground that the circular depended upon by the Divisional Commissioner does not have the force of law or alternatively that the interpretation placed thereon by the Divisional Commissioner is erroneous.

(2.) The same order of the Divisional Commissioner dated the 24th of November, 1967 was challenged in three other W.P. Nos. 2617, 2520 and 2544 of 1967. This Court set aside the order on the ground that there has not been an application of the mind to and a clear decision upon the question of the true meaning to be assigned to the expression 'recruitment' contained in the Bombay Government's circular of 8th October, 1953 and directed the State Government to re-hear the appeals and decide them according to law. There is, thus, no decision on the main question of law raised and discussed before as in these wit petitions. Nor were the present petitioners parties to those writ petitions . We. therefore, proceed to decide these matters on merits, because it will be in public interest to finally pronounce upon the questions which are bound to recur if not finally decided.

(3.) The first contention of lack of competence in the Bombay Government to issue the circular proceeds upon the argument that the subject matter thereof is covered and governed by the Bombay Civil Services Classification and Recruitment Rules promulgated in exercise of the powers under Ss. 241 and 255 of the Government of India Act, 1935 which therefore, have the same status as rules promulgated by the Governor in exercise of the power conferred by the proviso appended to Art. 309 of the Constitution of India. We find, however, that the circular, far from contravening any of the provisions of the said Bombay Civil Services Classification and Recruitment Rules, is actually one within the authority conferred by the said rules themselves Rule 7 thereof reads: "Government shall prescribe the qualifications in respect of are and education which shall be required to be possessed by candidates for admission to the provincial and subordinate service. The qualifications so far prescribed are stated in Appendices C and D." Rule 141 referred to and commented upon both in the affidavit in support of the petitions as well as the arguments, is a rule which is included in Appx. D which, as clearly pointed out in rule 7, collects and states in the same place the various instructions of the Government regarding qualifications already published before the promulgation of the rule. The circular, therefore, must be regarded as either amending or adding to the previous Appx. D, pursuant to the power expressly conferred by rule 7.