J. & K. PUBLIC SERVICE COMMISSION, ETC.versusDR. NARINDER MOHAN AND ORS. ETC. ETC.

A              J. & K. PUBLIC SERVICE COMMISSION, ETC.
                                          v.
               DR. NARINDER MOHAN AND ORS. ETC. ETC.

                                DECEMBER 7, 1993
B                  [K. RAMASWAMY AND N.P. SINGH, JJ.]

         Constitution of lndi~Ait. 16~The sc~pe and ambit of executive
    power under Article 162.

C        Art. 320 (Section 133 of the J. & K Constitution)-Public Service
    Commission constituted undefL-The purpose behind the power enjoyed by,
    and duty cast upon it.

          Service law-Jammu & Kashmir Medical Education (Gazetted) Service
    Rercruitment Rules-Regularisation directed by the High Court by adopting a
D   procedure not contemplated by the statutory rules is in violation of the- rules
    and in negation of Arts. 14 & 16 of the Constitution.

         Recruitment rules/Executive instructions must comply with Articles 14
    & 16 of the Constitution.
E         Distinction between relaxation of 'rules of recruitment' and 'conditions
    of service'.

          The Respondents No. 1 to 6 were appointed as lecturers on ad-hoc
    basis in different disciplines of medical education on different dates
F   between 12.12.1986 and 12.5.1988. The Govt. relaxed the rules of recruit· '
    ment and appointed on regular basis the respondents No. 1 & 2. The
    appointment of respondents No. 1 & 2 as well as that of the respondents
    no. 3 to 6 was challenged. The respondents in turn filed writ petitions for
    directions to regularise there services. A single judge quashed the appoint-
G   ment of respondents no. 1 & 2 on regular basis holcJing that the Govt.
    neither have power to relax the rules .or recruitment nor have power. to
    regularise their appointment. The appointments of other respondents were
    also quahsed as being ultra vires the Jammu & Kashmir Medical Education
    (Gazetted) Services Recruitment Rules, 1979. The Govt. was directed to fill
    up the posts through Public Service Commission within 3 months and till
H   then the respondents were to continue. The respondents were allowed to
                                          900
                   J & KP.S.C. v. NARINDER MOHAN                         901

be considered for regular recruitment.                                          A
       On appeal, the Division Bench held as the Rules provide for appoint-
ment of ad-hoc lecturers, their appointments were according to Rules; that
the respondents are qualified to hold the posts; that the Govt. has no power
to relax the rules of recruitment; that the respondents are not members of
the service since they were not recruited according to the Rules; it, however, B
directed regularisation of the service cf the respondents in consultation
with the Public Service Commission for appointment as lecturers.

       Three Appeals were preferred against the impugned judgment and
order of the Division Bench : One by Public Service Commission; other by        C
one Dr. 'VR' who sought his appointment as lecturer and also sought
setting aside of the appointment of the respondent; and another by the
State.

      Allowing the Appeals, this Court,
                                                                                D
       HELD : 1. ~e executive power is co-extensive with legislative power
of the State and under Article 162, the State can create Civil posts and fdl
them up according to executive instructions consistent with Arts. 14 and
16 or the Constitution. rt is settled law that once statutory rules have been
made, the appointmt-nt shall be only in accordance with the Rules. 1ht:         E
executive power could be exercised only to fill in the gaps but the instruc-
tions cannot and should not' supplant the law, but would only supplement
the law. (908-C-D]

     2. Having made the rules the executive cannot fall back upon its
general power- under Article 162 to regularise the ad-hoc appoin~ents           F
under the Rules. (908-E]

        3. The establishment of an independent body like PsC, is to ensure
selection of best available persons for appointment to a post to avoid
arbitrariness and· nepotism in the matter of appointment. Commission is
constituted by persons of high ability, varied experience and of undisputed     G
integrity and further assisted by ~rts on the subject. Whenever the
Government is required to make an appointment to a High Public Office,
it is required to consult the PSC. The selection has to be made by PSC and
Government bas to fill up costs by appointing those selected and recom-
mended by the Commission, adhering to the order of merit in the list of         H
    902                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   candidates sent by the PSC. The selection by the Commission, however is
    only a recommendation of the Commission and the final authority for
    appointment is the Government. [909-E-G]
                                                                                  r

          Jatinder Kumar v. State of Punjab, [1985) 1 SCR 899, relied on.

B         4. It is the Constitutional duty of the Commission under Article 320
    to recommend the candidates fulfilling all the requisite qualifications for
    the posts to the Government for being considered for appointment to the
    post concerned. [910-B]

          M.C. Bindal v. V.C. Singh, AIR (1989) SC 154, referred to.
c
           5. The Rules or instructions should be in compliance with the
    requirements of Articles 14 and 16 of the Constitution. The procedure
    prescribed shall be just, fair and reasonable. Opportunity shall be given     c

    to eligible person by inviting application through the public notification
D   and recruitment should be according to the valid procedure and appoint-
    ment should be of the qualifled persons found fit for appointment to a post
    or an office under the State. [911-B]

          6. A little leeway to make ad-hoc appointment due to emergent
    exigencies, does not clothe the executive government with power to relax
E   the recruitment or to regularise_ such appointment nor to claim such
    appointments to be regular or in accordance with rules. Back door ad-hoc·
    appointments at the behest of power source or otherwise and recruitment
    according to rules are mutually antagnostic and strange bed partners.
    They cannot co- exist in the same sheath. The former is in negation of fair
    play. The later are the product of order and regularity. [908-H, 909-A]
F
           '
          7. There is a distinction between 'rules of recruitment' and 'condi-
    tions of service'. The rule of relaxation cannot be exercised in matters of
    recruitment; it would be only- to remove under hardship met the power to
    relax the conditions of service should be exercised and the conditions of
G   the rules of recruitment cannot be relaxed. (910-C, E]

          Keshav Chandra Joshi v. Union of India, [1992) Supp. 1 SCC 272 and
    Syed Khalid Rizvi & Ors. v. Union of India, [1992) Suppl. 3 SCR 180, relied
    on.

H         8. The mode of recruitment suggested by the High Court, name~,
         J & K P.S.C. v."NARINDER MOHAN (RAMASWAMY, J.]                   903

regularisation by placing the service record of the respondents before the       A
P11blic Service Commission and consideration thereof and PSC's recom-
mendation in that behalf is only a hybrid procedure not contemplated by
the Rules. [911-E-F]

      9. Inviting applications for recruitment to fill in notified vacancies
is consistent with the right to apply for by qualified and eligible persons      B
and consideration of their claim to an office or post under the State is a
guarauteed right given under Arts. 14 and 16 of the Constitution. The
direction, therP.fore, issued by the Division Bench is in negation of Arts. 14
and 16 and in violation to the statutory rules. [911-G]

       Dr. A.K Jain v. Union of India, [1988) 1 SCR 335; Dr. P.C.C. Rawani
                                                                                 c
v. Union of India, [1992) 1 SCC 331 and H.C. Putiasamy v. Hon'b/e Chief
Justice of Kamataka, AIR (1991) SC 295, distinguished.

      Civ1L APPELLATE JURISDICTION: Civil Appeal No. 7249-55,
~m~~                                                                             D
     From the Judgment and Order dated 13-5-93 of the Jammu and
Kashmir High Court in L.P.A. Nos. 76/90, 6, 7, 10, 21, 11, and 4/91.

     Vinay Ram Pal appellant in person. V.R. Reddy, A.S.G. O.C.Mathur
and Mrs. Meera Mathur for the Appellants.                                        E
     P.P. Rao, M. H. Baigne, Ashok Mathur, Ashok Grover, R. Sasiprab-
hu and A. Jayaiam for the Respondents.

      The Judgment of the Court was delivered by
                                                                                 F
      K. RAMASWAMY, J. In S.L.P. (C) Nos. 16496-502/93 the delay is
condoned. Special leave is granted in all the cases. The appeals arise from
the common judgment dated May 13, 1993 of the J ammu & Kashmir High
Court, in LPA No. 76/90 and batch.

       Dr. Narinder Mohan (R-1) and Dr. Tariq Parvex (R-2), were ap-             G
pointed as Lecturers on December 12, 1986 and January 21, 1987, respec-
tively. Dr. Jatinder Singh, Dr. K. Mengi Dr. J.P. Singh, R- 3 to 5, were
appointed in the same year 1986 and Dr. Bharat Bhushan Gupta (R-6) was
appointed on May 12, 1988. All their appointments were on ad~hoc basis
in different disciplines of Medical Education. The government relaxed the        H
    904                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A rules of recruitment and appointed on regular basis the respondent No. 1
  and 2 on September 19, 1988 and May 16, 1989 respectively. Their appoint-
  ments and of the respondents 3 to 6 were challenged in several writ
  petitions by Dr. Vinay Rampa!, appellant in CA. 7257/93 (arising out of
  SLP 13043/93) and others. For regular recruitment when applications were
  invited, the recruitment also came to be challenged. The respondents in
B turn filed writ petitions for directions to regularise their service. The
  learned Single Judge by his Judgments dated September 19, 1990 declared
  that the appointments of respondents should be in accordance with the
  Jammu and Kashmir Medical Education (Gazetted) Service Recruitment
  Rules, 1979 (for short 'the Rules'). The Government neither have power
C to relax the rules of recruitment nor have power to regularise the appoint-
  ment of respondents 1 and 2 on regular basis. Accordingly quashed their
  appointments. The appointments of the other respondents were were also
  quashed as being ultra vires of the rules. However, directed their con-
  tinuance in the posts for a period of three months thereafter and the
D Government was directed to fill up the posts of Lecturers on permanent
  basis as per the rules through the Public Service Commission within three
  months from the date. The respondents were permitted to apply for regular
  recruitment and in case any one becomes averaged, the cases may be
  sympathetically considered by relaxing age qualification under Rule 9(3).
  The posts of Lecturers in Medical Education shall be filled up as per the
E Rules. If no regular appointments are made within three months, on its
  expiry, the appointments of the respondents shall stand lapsed. On appeal,
  the Division Bench by the impugned order held that as the Rules provide
  for appointment of ad-hoc Lecturers, their appointments were according
  to Rules. The respondents are possessed of the requisite qualifications to
F hold the posts. The Government have no power under Section 133 of the
  Jammu and Kashmir Constitution (Article 320 of the Constitution of India)
  to relax the rules of recruitment. The respondents are not members of the
  service, since they were not recruited according to the Rules. Therefore,
  directions were given ·as under :

G           "We direct the respondents in terms of decision in A.K Jain v.
            Union of India to regularise the services of all the appellants in
            consultation with the Public Service Commission on evaluation of
            their work and conduct based on the confidential reports within
            three months. Such evaluation shall be done by the Public Service
H           Commission. The doctors so regularised shall be appointed as
        '1 & K P.S.C. v. NARINDER MOHAN [RAMASWAMY, J.]              905

        Lecturers with effect from the date from which they had been A
        continuously working as Lecturers. The respondents shall be at
        liberty to terminate the services of those appellants who are not
        so regularised."

      Calling in question these directions the Public Service Commission    B
(for short 'PSC') the appellant filed the appeals, Dr. Vinay Rampal who
claimed for his appointment but was nbt granted relief, filed a separate
appeal. The State came in appeal against the finding that government have
no power to relax the rules and jurisdiction to make appointment of the
respondents in disregard of the Rules.
                                                                            c
       Shri V.R. Reddy, the learned Additional Solicitor General, appear-
ing for the PSC contended that Dr. V.K Jain's case is not a prei::edent that
the PSC should recruit ad-hoc doctors de horse the Rules, which envisaged
their appointment only by the process of direct recruitment. The ad-hoc
appointments being contrary to the Rules, the direction to regularise the D
services by the PSC is illegal. It is also contended that the PSC has to
conduct its functions under Section 133 of the Jammu and Kashmir Con-
stitution (Article 320 of the Constitution of India), any direction to make
recruitment is in derogation of the Constitution. The rules do not provide
any power to regularise the services of ad hoc doctors. The direction,
therefore, is clearly de horse the law. Shri PP Rao, learned senior counsel, E
sought to support the impugned decision on two grounds. The ad hoc
appointments, though strictly are not according to the Rules, by virtue of
their long service for over four year and by now seven years, the respon-
dents gained enough experience. Equally they settled their lives in the
service, and so they entitled to be regularised. The non- appointment of
them is also denial of the service to the society. Dr. A.K Jain's case F
provides not only the norm but also ratio under Article 141 which the High
Court has rightly followed in giving the impugned directions. It is notorious
that the regular recruitment takes unduly long period. The Rules prescribe
three years' experience as a condition for appointment   as     Lecturer and
unless adhoc appointment has been made; it is difficult to have requisite G
experience. This Court in State of Haryana v. Piara Singh [1992) 4 SCC 118,
gave directions to regularise services of all the ad hoc employees continuing
in service for number of years. The rules put no limitation on the power
of the Government to make recruitment of the doctors by ad hoc appoint-
ment. Adopting rational approach, the directions given by the Division
Bench cannot be termed to be illegal. Alternatively, it. is contended that H
    906                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.               .-
                                                                                     r

A direction may be issued to the State Government to advertise yearwise
  vacancies for recruitment of the candidates who became eligible in that
  year so that the candidates having had requisite qualifications would be
  selected and absorbed from the respective dates and the left over vacancies
  would be thrown open for general recruitment. Shri M.H. Baig, the learned
  senior counsel, appearing for respondent No.s 1 and 2, while stating that
B Dr. A.K Jain's case is not a ratio under Article 141, but to meet out justice,
  in other words to prevent injustice this Court had given directions under
  Article 142 to continue the adhoc doctors in service by regularisation
  through PSC. To butress his argument he stated that during the year 1986
  the State Government had imposed ban on private practice of government
C doctors. Consequently many doctors had resigned from service. Though
  respondents Nos. 1 and 2 who were recruited as doctors in B-grade service
  to serve in rural areas with higher scale of pay, they were asked to and the
  respondents opted for teaching side. Accordingly they have been continu-
  ing on ad hoc b.asis. On completing requisite number of years' service, they
  would ·automatically become eligible for promotion as Associate profes-
D sors. Now directing them to stand in the queue for regular recruitment will
  result in depriving them of the long years of service they have put in. The
  State .Government has power under these circumstances to relax the rules
  and to regularise the appointments. Therefore, to prevent injustice suitable
  direction should be given in that behalf. The learned counsel for the State
   sought to support the Government's power of relaxation of the rules and
E the offending action by regularising the service of respondent Nos. 1 & 2.
           Rule 3 of the Rules empowers the State Government to constitute
    J ammu and Kashmir Medical Education (Gazetted) Service comprising of
    (i) teaching (ii) administrative and (iii) general. The service shall consist
F   of such posts and classes and categories and such number of them to be
    determined by the Government from time to time. At the commencement
    of the Rules on September 19, 1979, the existing posts, classes and
    categories were specified in Schedule-I. Rules 4 provides membership of
    the service. The members of the service shall be such person "as are
G   appointed to the service under the Rules". The proviso says that the
    members continuing immediately before the Rules under Jammu and
    Kashmir Medical Education (Gazetted) Service Recruitment Rules 1974
    shall be deemed to have been appointed to the corresponding posts in the
    service specified in Schedule-II. Clause 'b' of the explanation to Rule 4
    provides that for the purpose of this Rule "any persons appointed to any
H   post in service only by virtue of such deputation, contract, or ad hoc
         J & K P.S.C. v. NARINDER MOHAN [RAMASWAMY, J.]

appointment, shall not be members of the Service". Thereby it is clear that A
unless a member either appointed under 1974 Rules and continuing as such
or appointed to the service in accordance with the Rules, he shall not
become a member of the service. The Explanation 'b' expressly amplifies
that the persons appointed on ad hoc basis, by virtue thereof, shall not
become a member of the service.
                                                                            B
       Rule 5 provides the mode of recruitment. Recruitment and appoint-
ment to the service shall be made by (a) direct recruitment; or (b) promo-
tion by selection in the manner indicated against each post in Schedule-III.
The eligibility of the person for recruitment or promotion to a post in the
service has been specified in Rule 7, the details whereof are not material. C
The method of recruitment has been provided in Rule 8. Sub-Rule (1) of
Rule 8 postulates that while making selections (i) to the post in the teaching
wing of the service, the Commission/Departmental Promotion Committee
shall have regard to the qualifications etc. the details of which are not
material. Under Rule 9, the upper age has been prescribed for eligibility D
of a candidate for recruitment and Sub-Rule {3) gives power to the
Government to relax upper age limit in any case or category of cases. Rule
10 prescribes seniority of the members of the service as regulated under J
& K Civil Services Classification, Control and Appeal, Rules 1956. Rule 11
provides Rule of Reservation for appointment for recruitment either by
selection by direct recruitment or by promotion, to the members of E
Scheduled Castes or any other category or class or permanent residents of.
the State or whom such reservation may be made under orders of the
Government. The persons so appointed shall be on probation as prescribed
in Rule 13, and Schedule-I. In Schedule-III read with Rule 5{b) of the
Rules for recruitment to the posts of Lecturers, including Clinical, F
Phychologist (Non-Medical), the method of recruitment prescribed in
Column-V is "by direct recruitment". A reading of these rules clearly
indicates that a person appointed to the service shall be a member of any
of the services namely teaching wing, administrative wing and general wing.
Appointment shall be only either by direct recruitment or by promotion by
selection. On making recruitment by the PSC and appointment by the State G
Government, such persons shall be on probation and on successful com-
pletion he become a member of the service and he gets his seniority from
the date of the appointment in terms of CCA Rules. Though the Rules do
not expressly give power to the State Govt. to make an ad hoc appointment
but rule (4) visualies appointment on ad hoc basis but such ad hoc H
    908                    SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A appointees, by virtue of such appointment only do not become members
  .of the service. It would appear that Rule 25 of CCA Rules read with Rule
   4, Explanation-b, claimed to be the source of power to make ad hoc
   appointments. Rules 25 speaks of "temporary promotion" for short duration
   of three months but it does not appear to be a direct source of power for
   initial ad hoc appointment. A contention was raised and accepted by the
B Division Bench that the State under Article 162 of the Constitution has
   power to exercise executive power to make ad hoc appointments.

         Existence of statutory Rules in not a conditions precedent to appoint
   an eligible and fit person to a post. The executive power is co-extensive
C with legislative power of the State and under Article 162, the State can
   create civil posts fill them up according to executive instructions consistent
   with Arts .. 14 and 16 of the Constitution. It is settled law that once statutory
   rules have been made, the appointment s.hall be only in accordance with
   the ruies. The executive power could be exercised only to fill in the gaps
D but the instructions cannot and should not supplant the law, but would only
   supplement the law. The Governor exercising the power under proviso to
   S. 125 (Article 309 of the Constitution of India) made the rules which do
   not expressly give the power to the State Government to make ad hoc
   appointments. No such rule has been brought to our notice. No express
  power was conferred and in fact cannot be conferred to relax the rules of
E recruitment. Having made the Rules the executive cannot fall back upon
  its general power under Article 162 to regularise the ad hoc appointments
  under the Rules. Rule 9(3) empowers only to relax the qualification of age
  in particular exigencies which cannot be called in aid to relax the rules of
  recruitment. To tide over unforeseen exigencies, power to make ad hoc
F appointments, may be visualised as envisaged by Explanation-b to Rule 4
  but it expressly states that by virtue of such appointment, the ad hoc
   appointee does not become member of the service. The rules prescribes
   direct recruitment/promotion by selection as the mode of recruitment
  which would be done only by PSC or promotion committee duly constituted
G and by no other body. Therefore, ad hoc employee should be replaced as
  expeditiously as possible by direct recruits. A little leeway to make ad hoc
  appointment due to emergent exigencies, does not clothe the executive
  government with power to relax the recruitment or to regularise such
  ,appointment nor to claim such appointments to be regular on in accord-
  ance with rules. Back door ad hoc appointments at behest of power source
H or otherwise and recruitment according to rules are mutually antagnostic
         :S & KP.S.C. v. NARINDER MOHAN [RAMASWAMY, J.]                   909

and strange bed partners. They cannot co-exist in the same sheath. The            A
former is in negation of fair play. The later are the product of order and
regularity. Every eligible person not necessarily be fit to be appointed to a
post or office under the State, selection according to rules by a properly
constituted commission and fitment for appointment a~sures fairness in
selection and inhibits arbitrariness in appointments. In view of the Explana-
tion-b to Rule 4 the ad hoc appointments to any post in any of the three
                                                                                  B
wings of the services under the rules are there(ore de horse the rules.
Appointments of the respondents 1 to 6 cannot be held to be in accordance
with the Rules.

        It is true that under Article 320 of the Constitution (Section 133 of     C
the Jam.mu and Kashmir Constitution) by operation of the proviso, it shall
not be necessary for the President or the Governor, as the case may be, to
consult the PSC in respect of any service or post in connection with the
affairs of the Union or the State, as the case may be, either in general o_r
in particular class or classes or any particular circumstances, but Clause        "O
(1) of Article 320 postulates that it "shall be the duty of the PSC to conduct
examinations for appointment of service of the Union and the service of
the State, respectively, and to assist the State for recruitment to any service
for which the candidates fulfilling the qualifications are required. Though
it is settled law that consultation is not mandatory but as held by this Court
inlatinder Kumar v. State of Punjab, (1985) 1 SCR 899, that is establish"lent     E
of an independent body like PSC, is to ensure selection of best available
person for appointment to a post to avoid arbitrariness and nepotism in
the matter of appointment. Commission is constituted by persons of high
ability, varied experience and of undisputed integrity and further assisted
by experts on the subject. Whenever the Government is ·required to make           F
an appointment to a high public officer, it is required to consult the PSC
The selection has to be made by the PSC and the Government has to fill
up posts by appointing those selected and recommended by the Commis-
sion, adhering to the order of merit in the list of candidates sent by the
PSC. The selection by the Commission, however, is only a recommendation
of the Commission and the final authority . for appointment is the Govern-
ment. Government cannot appoint a person whose name does not appear
in the list. But it is open to the Government to decide how many appoint-
ments will be made. The process for selection and selection for the purpose
of recruitment against existing or anticipated vacancies, does not create a
right to be appointed to the post which can be enforced by a mandamus.            H
    910                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A· In M.C. Bindal v. R.C. Singh, AIR (1989) SC 134, this Court held that a
   candidate in order tO be cqnsidered for appointment for a post must have
  the requisite qualifications. Under Article 320 (3) (a & b), it is the duty of
  the PSC to consider and to get itself satisfied as to which of the candidates
  have fulfilled the requisites specified in the advertisement. It is the con-
B stitutional duty of the Commission under Article 320 to recommend the
  candidates fulfiqing all the requisite qualifications for the posts to the
  Government for being considered for appointmnet to the post concerned.
  In Keshav Chandra Joshi v. Union of India, (1992] Suppl. 1 SCC 272, one
  of the contentions raised was that Rule 27 of the U.P. Forest Service Rules,
  1952, empowers the Government to relax any conditions of service to
C remove undue hardship and the appointments of the adhoc promotion is
  in accordance with Rule 27. Considering the contention, this Court held
  that "there is a distinction between 'rules of recruitment and 'conditions of
  service'. To become a member of the service in a substantive capacity,
  appointment by the Government shall be preceded by selection of a direct
D recruit by the Public Service Commission; undergoing training in Forestry
  for two years in the college and passing Diploma are conditions precedent."
  "If the contention of the promotees that rules of recruitment are conditions
  of service is accepted, it would be open to the Governor to say that 'I like
  the face of 'A' and I am satisfied that he is fit to be appointed; I dispense
  with the rules of recruitment and probation and appoint 'A straightaway
E to the service in a substantive capacity as Assistant Conservator of Forest."
  Therefore, it was held that rule of relaxation cannot be exercised in matters
  of recruitment. It would be only to remove undue hardship the power to


                                                                                   -
  relax the conditions of service should be exercised and rules relating to
  recruitment of the service should not be relaxed. In Syed "Khalid Rizvi &
F Ors. v. Union of India Ors., C.A. No. 823of1989 etc. dated November 20,
  1992, it was reiterated that appointment to a post in accordance with with
  the Rules is a pre-condition and the conditions of the rules of recruitment
  cannot be relaxed. Rules 3 of the Residuary rules, though empowers the
  Government to relax the rules, it cannot be availed nor have power to relax
  conditions of recruitment. In A.K. Bhatnagar & Ors. v. Union of India,
G (1991] 1 sec 544, this Court held that from among temporary appointees,
  those selected by UPSC became seniors according to the merit determined
  by the PSC and the non selectees would become juniors to them though
  the non selectees were seniors as temporary appomtees.

H         Moreover the proviso to Article 320 (proviso to Section 133 of J. &
    ·.~
         J & K P.S.C. v. NARINDER MOHAN [RAMASWAMY, J.]               911

K Constitution), though gives power to the State Government to specify A
case or class of cases in respect of which consultation with the PSC may
by dispensed with still the recruitment shall be in compliance with either
of the Article 320 (1) and S. 133(1) of the J & K Constitution or by duly
constituted body or authority. The rules or instructions should be in
compliance with the requirements of Articles 14and16 of the Constitution. B
The procedure prescribed shall be just, fair and reasonable. Opportunity
shall be given to eligible persons by inviting application through the public
notification and recruitment should be according to the valid procedure
and appointment should be of the qualified persons found fit for appoint-
ment to a post or an office under the State. Therefore, it must be held that
power of relaxation exercised by the Government is ultra vires of the Rules C
and the High Court is right in holding that Government cannot relax the
rules of recruitment to be made by the PSC. Government have no power
to make regular appointment under the Rules without selection by the
Public Service Commission under s.133(1) read with Rule 5 and Schedule
III of the Rules.
                                                                            D
       The next question is whether the direction given by the High Court
to regularise the services of the respondents is valid in law. It is true that
the ad hoc appointees have been continuing from 1986 onwlll: ds but their
appointments are de horse the Rules. Rules prescribe only two modes of
recruitment, namely, direct recruitment or promotion by selection. As E
regards the Lecturers are concerned, it is only by direct recruitment. The
mode of recruitment suggested by the High Court, namely, regularisation
by placing the service record of the respondents before the PSC and
consideration thereof and PSC's recommendation in that behalf is only
hybrid procedure not contemplated by the Rules. Moreove~, when the F
Rules prescribe direct recruitment, every eligible candidate is entitled to
be considered and recruitment by open advertisement which is one of the
well accepted modes of recruitment. Inviting applications for recruitment
to fill in notified vacancies is consistent with the right to apply for by
qualified and eligible persons and consideration of their claim to an office
or post under the State is a guaranteed right given under Articles 14 and G
16 of the Constitution. The direction, therefore, issued by the Division
Bench is in negation of Arts. 14 and 16 and in violation to the statutory
rules. The PSC cannot be directed to devise a third mode of selection, as
directed by the High Court, nor be mandated to disobey the Constitution
~~~                                                                         H
912   SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.
             J & KP.S.C. v. NARINDER MOHAN [RAMASWAMY,J.)                    913

    or temporary employee should not be replaced by another ad hoc or A
    temporary employee. He must be replaced only by regularly selected
    employee. The ad hoc appointment should not be a device to circumbant
    the rule of reservation. If a temporary on ad hoc employee continued for
    a fairly long spell, the authorities must consider his case for regularisation
    provided he is eligible and qualified according to the rules and his service B
    record is satisfactory and his appointment does not run counter to the
    reservation policy of the State. It is to be remembered that in that case,
    the appointments are only to Class-III or Class-IV posts and the selection
    made was by subordinate selection committee. Therefore, this Court did
    not appr.ar to have intended to lay down as a general rule that in every
    category of ad hoc appointment, if the ad hoc appointee continued for'long C
    period, the rules of recruitment should be relaxed and the appointment by
    regularisation be made. Thus considered, we have no hesitation to hold
    that the direction of the Division Bench is clearly illegal and the learned
    Single Judge is right in directing the State Government to notify the
    vacancies to the PSC and the PSC should advertise and make recruitment D
    of the candidates in accordance with the rules.

          It is difficult to accept the contention of Shri Rao to adopt the chain
    system of recruitment by notifying each year's vacancies and for recruit-
    ment of the candidates found eligible for the respective years. It would be
    fraught with grave consequences. It is settled law that the Government          E
    need not immediately notify vacancies as soon as they arose. It is open, as
    early as possible, to inform the vacancies existing or anticipated to the PSC
    for recruitment and that every eligible person is entitled to apply for and
    to be considered of his claim for recruitment provided he satisfies the
    prescribed requisite qualifications. Pegging the recruitment in chain system
                                                                                    F
    would deprive all ~e eligible candidates as on date of inviting application
    for recruitment offending Articles 14 and 16.

          Accordingly, we set aside the directions issued by the Division Bench
•   of the High Court and confirm those of the Single Judge and direct the
    State Government of the J & K to notify the vacancies to the PSC which G
    would process and complete the selection, as early as possible, within a
    period of six months from the date of the receipt of this order. The State
    Government should on receipt of the recommendation, make appointments
    in the order mentioned in the selection list within a period of two months
    thereafter. Since the respondents have ~en continuing as ad hoc doctors, · H
    914                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   they shall continue till the regularly selected candidates are appointed:
    They are also entitled to apply for selection. In case any of the respondents
    are barred by age, the State Government is directed to consider the case
    for necessary relaxation under Rule 9(3) of the age qualification. If any of
    the respondents are not selected, the ad hoc appointment shall stand
    terminated with the appointment of the selected candidate. The direction
B   sought for by Dr. Vinay Rampa! cannot be given. His appeal is accordingly
    dismissed and the State appeal is also dismissed. The appeal of the PSC
    are accordingly allowed but in the circumstances parties are directed to
    bear their own costs.

    A.G:                                                        Appeal allowed.·