STATE OF ORISSAversusMD. FAKIRUDDIN AND DR. (MRS.) GIRISHABALA MOHANTY

                  STATE OF ORISSA                                            A
                          v.
 MD. FAKIRUDDIN AND DR. (MRS.) GIRISHABALA MOHANTY

                          OCTOBER 14, 1993
                                                                             B
          (S.C. AGRAWAL AND N. VENKATACHALA, JJ.)

     Service Law:

     Education Service
                                                                             c
       Orissa Education Service (Senior Administrative Grade) Recruitment
Rules, 1990 rr.9, 10, JJ, 12, 13-Director, Higher Education-Appointment-
Eligibility-By promotion of Principals (Grade I) ·oi three years' service as
such with a provision for relaxation of requirement of minimum service
experience and in absence of a suitable candidate, by trans/er of a Director D
of Education Department-Held, Rules do not provide for appointment being
made from Principals (Grade I) not possessing required minimum experience
by relaxing service experience by State Government itself, without reference to
Educational Promotion Board and State Public Service Commission.

      Rule 9 of Orissa Education Service (Senior Administrative Grade)       E
Recruitment Rules, 1990 their prior to as stool amendments In 1992,
provided that appointment to the post of Director, Higher Education
should be made by way of promotion from among the officers having
rendered service of three years as Principal (Grade-I). The promotion was
to be based on merit and sultablllty with due regard to seniority. The       F
Government was also enabled to relax the condition of minimum service
experience if adequate number of persons with the required experience
were not available.

      The appellant-State issued order dated 24.6.1992 appointing respon-
dent no.2 (in both the appeals) as Director, Higher Education by transfer    G
from the post of Director, Elementary Education, as none of the Principals
(Grade-I) could satisfy the requirement of minimum service experience
and the Government after examining the question of relaxation of service
experience, decided not to so relax. Respondents No.1 in both the appeals
challenged the said order before the Orissa Administrative Tribunal.         H
                                   269
    270                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A         Meanwhile, Rule 9 was amended by the Orissa Education Service
    (Senior Administrative Grade) Recruitment (Amendment) Rules, 1992. In
    the amended Rule 9, though almost all the provisions of rule 9 of 1990
    Rules, were retained and rearranged in its sub-rules (1) and (3) but a
    provision was inserted as sub-rule (2) to the effect that notwithstanding
    anything contained i.n sub-rule (1) where a suitable candidate with the
B   required experience was not available to fill up the post of Director, Higher
    Education and the Government was of the opinion that relaxation of such
    requirement would not be in public interest, it may fill up the post by
    transfer of an officer who had held the post of a Director under the
    Education Department.
c
          The appellant state after the amendment of r.9, again decided not to
    relax the requirement of minimum period of three years' experience as
    envisaged by sub-rule(l), and on 17.10.1992 is sued a fresh order appoint·
    ing by transfer respondent no.2 as Director, Higher Education.
D
          The Tribunal allowed the applications of respondents no.1 and
    quashed the order of appointment of respondent no.2 as Director, Higher
    Education holding that the same was vitiated by law as there was no
    mate.rial indicating that the State Government before the said appoint-
    ment had considered the cases of all the Principals (Grade-I). It directed
E   the State Government to consider the cases of all the Principals Grade I
    and decide whether the required minimum experience could be relaxed for
    appointment of any of the Principals Grade I as Director Higher Educa·
    tion and make such appointment. Aggrieved, the State Government filed
    the appeals. Allowing the appeals, and setting aside the Tribunal's order,
F   this Court

        HELD 1.1 In view of the overriding effect of sub-rule (2) on sub·
  rule(l) of Rule 9 of the Orissa Education Service (Senior Administrative
  Grade) Recruitment Rules, 1990 as amended in 1992, it cannot be said that
  the cases of each of the Principals (Grade-I) have to be considered for
G relaxation even though they did not possess the minimum experience of
  three years as Principal (Grade-I), as a condition precedent for filling up
  the post of Director, Higher Education by transfer of an officer who had
  held the post of Director in the Education Department. The plain language
  employed in the sub-rule makes it incumbent on the State Government to
H take a decision on the question whether it would be in the public interest
             STATEv. FAKIRUDDIN[VENKATACHALA,J.)                        271

to relax the minimum requirement of experience of three years as Prin· A
cipals(Grade·I) for considering their cases for appointment as Director,
Higher Education, before taking up the question of appointment of others
by transfer. (278-H, 279·A·C]

      1.2. The scheme of the provisions of the Orissa Education Service
(Senior Administrative Grade) Recruitment Rules 1990 does not provide          B
for appointment of Director, Higher Education being made from the
Principal(Grade-1), who are not possessing the required minimum ex·
perience by relaxing the required minimum experience, by the State
Government itselr, as the provisions of the Rules exclude the possibility of
the Government examining the cases of Principals(Grade·I) for appoint·         C
ment as Director, Higher Education by promotion, without reference to the
Departmental Promotion Board and the State Public Service Commission.
                                                                [280·B·C]
      CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 5434-35
~~                                                                             D
       From the Judgment and order dated 6.4.93 of the Orissa Adminis-
trative Tribunal in O.A. Nos. 1088 and 1587 of 1992.

      V.R.Reddy, A.S.G. and Raj Kumar Mehta for the Appellant.

      S.K. Dholakia and J.K. Das for the Respondents.
                                                                               E

      The Judgment of the Court was delivered by

      VENKATACHALA, J. Leave is granted.

       These appeals of the State of Orissa are directed against the common F
Judgment dated April 6, 1993 in O.A. Nos. 1088 and 1587 of 1992 of the
Orissa Administrative Tribunal. By that Judgment, the Tribunal has not
only quashed the Orissa Government Order dated October 17, 1992, by
which respondent-2, Dr. (Mrs.) Girishbala Mohanty, the Director, Elemen-
tary Education of its Education Department had come to be transferred G
and posted on ad hoc basis as the Director, Higher Education of its
Education Department, but also has directed the Orissa State Government
to fill-up the vacancy in the post of Director, Higher Education caused by
such quashing. Further, that direction is required to be implemented by
Orissa Government after considering the cases of all officers belonging to
Orissa Education Service of Senior Administrative Grade constituted H
    272                  SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A   under the Orissa Education Service (Senior Administrative Grade)
    Recruitment Rules, 1990, to be called 'the Education Service Rules, 1990',
    as regards relaxation of the requisite number of years of experience ac-
    cording to the Education Service Rules, 1990, as stood amended by the
    Orissa Education Service (Senior Administrative Grade) Recruitment
    (Amendment) Rules, 1992, to be called 'the Education Service Amend-
B   ment Rule, 1992', if otherwise merited and suitable having due regard to
    seniority.

          The 'Education Service Cadre' under the Education Service Rules
    was comprised of all the posts categorised as Principals of Grade-I and
C   Director of Higher Education and the other posts to be brought by the
    State Government from time to time into that cadre.

         Rule 9 of the Education Service Rules, 1990, which provided for
    appointment to the post of 'Director' read thus :

D           "9. Appointment of Director - (1) Appointment to the post of
            Director, Higher Education shall be made by promotion from
            among the Principals (Grade-I).

               2. In order to be considered eligible for promotion to the post
            of Director, Higher Education, a P1incipal (Grade-I) should have
E           rendered service as such for a period of three years.

               Provided that if adequate number of persons with such ex-
            perience are not available in the rank of Principals (Grade-I) this
            requirement may be relaxed by Govt.

F              3. Promotion to the post of Director, Higher Education, shall
            be based on merit and suitability with due regard to seniority."

        'Definitions' clause in Rule 2 defined 'College' as meaning a Govern-
  ment College imparting + 3 Education and of above standard. Clause (g)
G and (i) of the said Rule defined the 'Lead College' as the college of
  Government of Orissa and 'Principal (Grade-I)' as the Principal of the
  Lead College. Rule 10 thereof, which deals with the Departmental Promo-
  tion Board and its constitution and functions reads thus :

            "10. Departmental Promotion Board - (1) There shall be a
H           Departmental Promotion Board (hereinafter referred to as the
                 STAIB v. FAKIRUDDIN [VENKATACHALA, J.]                     273

            Board), for considering promotion to the post of Director, Higher      A
            Education, which shall consist of the. following :·

               (a)    The Chief Secretary/Additional - :        Chairman
                      Chief Secretary.

               (b) Secretary, Education and Youth               Member             B
                   Services Department

                (c)   An eminent educationist not               Member
                      below the rank of Professor or
                      an Officer of the rank of
                      Secretary to Government of
                                                                                   c
                      Orrisa to be nominated by
                      the Government.

                (d) Additiona/Joint/Deputy -                    Convener.
                    Secretary, Education and Youth                                 D
                    Services Department.

                 2(a). The Board shall meet ordinarily in the month of June
             every year to consider cases for promotion against the vacancies
             including those anticipated in the course of subsequent 12 .month.    E

                 The Board shall consider cases of all eligible officers coming
             with the Zone of Consideration as defined in the Orissa Civil
             Service (Zone of Consideration for Promotion) Rules, 1988 ~d

..           prepare a list of such officers as are found by them to be suitable
             for appointment as Director of Higher Education.                      F

                (b) The number of names included in the list shall be twice the
             number of vacancies."

            Rule 11 thereof provides for consultation with the Commission in · G
     relation to the list of officers found suitable for appointment as Director,
     Higher Education, prepared by the Board under Rule 10(2) thus :

             "11(1). Consultation with the Commission - The list prepared by
             the Board under rule 10(2) shall be forwarded to the Commission
             for recommendation alongwith the following documents, namely :-       H
    274                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A                (a) Records of all eligible officer included in the list;

                 (b) Records of all officers included in the zone of considera-
                 tion who are proposed to be superseded along with the
                 reasons recorded by the Board for such supersession;

B                (c) The other procedure as laid down in clauses (c) to (t) of
                 sub-rule (1) of Rule 6 shall be followed. mutatis mutandis.

                (2) The Commission shall consider the list prepared by the
            Board along with the documents received from Government and
            convey its recommendation to the Government. The Commission
c           shall assign reason for making any alteration in the panel prepared
            by the Board."

         Rule 12 thereof which provides for a Select List to be prepared, and
  . Rule 13 thereof which provides for appointment of persons to the post of
D Director, read thus:
            "12. Select List· (1) The recommendation of Commission shall be
            placed before the Government for approval and shall form the
            select list after approval by the Government with or without
            modification if any.
E
               (2) The select list shall ordinarily be in force a period of one
            year, or till the next select list is prepared, whichever is later."

            "13. Appointment· Appointment to the post of Director, of any

F
            other post included in that category of the Service, shall be made
            in the same order in which the names appears in the select list and
            the inter se seniority of the officers so appointed to such rank shall
                                                                                     -
            be in that order."        -

          With the coming into force of the Education Service Rules, 1990 on
G 21.3.1990, respondents-I and 2 and a few others, who became the Prin-
  cipals (Grade-I) of Lead Colleges got into the category of posts of Prin-
  cipals (Grade-I) of the cadre of 'Education Service Cadre' constituted
  under those Rules, but none of the Principals (Grade-I) in the service so
  constituted, became entitled for appointment to the post of the,Director,
                                                                /
  Higher Education in the same service, in that, none of them could satisfy
H the requirement in Rule 9 requiring three years' period of service as
             STATEv. FAKIRUDDIN [VENKATACHALA,J.)                      275

Pri~cipals {Grade-I). This situation led to the appointment of Prof. L.K.     A
Das, Director, Secondary Education of the Education Department as the
very first Director of Higher Education in Education Service Cadre' newly
constituted under the Education Service Rules, 1990 by transfer and ap-
pointment under. Government Order dated October 31, 1990. Even when
Prof. L.K. Das was due to retire on June 30, 1992, none of the Principals
{Grade-I) in the 'Education Service Cadre' constituted by the Education       B
Service Rules, 1990, had come to acquire the required minimum experi-
ence of having served for three years as Principal (Grade-I), as would
entitle them to be considered for appointment as Director, Higher Educa-
tion in the 'Education Service Cadre' under the Rules. The Orissa Govern-
ment, which examined the question of rel&xation in the requirement of         C
minimum experience of three years as Principal (Grade-I) for appointment
as Director, Higher Education, decided not to so relax. In this situation
the Government of Orissa considered several alternatives open to it in the
matter of appointment to be made to the post of Director, Higher Educa-
tion. Ultimately, it decided appoint Dr. (Mrs.) Girishbala Mohanty, the
Director, Elementary Education, as Director, Higher Education by her          D
transfer from the post of Director, Elementary Education, which she had
held then. The State Government Order dated June 24, 1992 was accord-
ingly issued appointing Dr.(Mrs.) Girishbala Mohanty, Director, Elemen-
tary Education, as Director, Higher Education. It is that appointment
Order, which was questioned by respondent-1, who was then a Member of
Service Selection Board, by filing O.A. No. 1088 of 1992, before the Orissa   E
Administrative Tribunal under section 19 of the Administrative Tribunals
Act, 1985 on June 29, 1992, despite the admitted fact that he did not
possess the minimum experience of three years as Principals {Grade-I) in
lead College as required under Rule 9 of the Education Service Rules,
1990. Similar application. O.A. No. 1587 of 1992 came to be filled before
                                                                              F
the same Tribunal on July 13, 1992 by Dr. Gangadhar Sahu respondent-!,
who did not also possess the minimum experience of three years as
Principal (Grade-I) as required for appointment as Director, Higher
Education under Rule 9 of the Education Service Rules, 1990. When the
said application were pending consideration before the Orissa Administra-
tive Tribunal, certain interim order were made in them. This situation led    G
to the need to amend Rule 9 of the Education Service Rules, 1990 by the
Education Service Amendment Rules, 1990 with effect from October 7,
1992. The amended Rule 9 read :

            "9. Appointment of Director - (1) Appointment to the post of
                                                                              H
    276                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A            Director, Higher Education shall be made by way of promotion
             from among the Principals (Grade-I) who have rendered service
             as such for a period of not less than three years.

              Provided that where no suitable· candidate having the requisite
          . · experience is available, the Government may relax such require-
B             ment as it may consider necessary or expedient. .

                 (2) Notwithstanding anything contained in sub-rule (1), where
             a suitable candidate with the experience proviC:ed in sub-rule (1)
             is not available to fill up the post of Director, Higher Education
             and the Government is of the opinion that the relaxation of such
c            requirement under the proviso to the said sub-rule will not be in
             public interest, it may fill up the post by transfer of an Officer who
             has held the P?St of a Director under the Education Department.

                 (3) Selection for promotion or appointment, as the case may
D            be, to the post of Director, Higher Education, shall be based on
             merit and suitability with due regard to seniority."

          Even after the amendment of Rule 9 of the Education Service Rules,
    1990, the Government took a positive decision not to relax the requirement
    of minimum period of three years experience as Principal (Grade-I) for
E . appointment as Director, Higher Education, Consequently on October 17,
    1992 the State Government issued a fresh appointment order appointing
    by transfer Dr. (Mrs.) Girishbala Mohanty to the post of Director, Higher
    Education. It is this circumstance, which required the Tribunal to decide
    the applications filed before the Tribunal under section 19 of the Ad-
F ministrative Tribunal Act, 1985 and pending consideration, on the question
    of legality of the appointment order dated October 17, 1992 by which Dr.
    (Mrs.) Girishbala Mohanty was appointed as Director, Higher Education
    as well as the validity of the amended Rule 9 amended by the Education
    Service Amepdment Rules, 1992. The Tribunal, which considered the
   mutter, however, found that there being no material placed before it by the
G State Government which indicated that the State Government had con-
   sidered the cases of all the Principals (Grade-I) for appointment as Direc-
   tor, Higher Education before appointment of Dr. (Mrs.) Girishbala
   Mohanty, Director, Elementary Education as Director, Higher Education
   that that appointment was vitiated by law. The Tribunal, at the same time,
H did not consider it necessary to examine the constitutionality of the Educa-
            STATEv. FAKIRUDDIN[VENKATACHALA,J.)                        277

tion Service Amendment Rule, 1992. As a consequence of its first finding,     A
it quashed the Order dated October 17, 1992 by which Dr. (Mrs) Girish-
bala Mohanty was appointed as Director, Higher Education and directed
the State Government to consider the cases of all Principal (Grade-I) and
decide whether the required minimum experience of three years as Prin-
cipals (Grade-I) could be relaxed for appointment of any one of them as       B
Director, Higher Education and make such appointment. The applications
of respondent-! and 2 were accordingly allowed by the Tribunal by its
Order dated April 6, 1993. It is that judgment which is under challenge
before us in these appeals, requiring the examination of its correctness or
otherwise.
                                                                              c
       Mr. V.R. Reddy, the learned Additional Solicitor General, appearing
for the State Government contended that the Tribunal had fallen into a
grave error in taking the view that under the amended Rule 9 of ~
Education Service Rules, 1990 it was not open to the State Government to
make appointment by transfer of a Director of Elementary Education as D
Director, Higher Education unless it found on consideration of the merit ·.'
and the suitability of each Principal (Grade-I), having regard to his/her due
seniority, was not entitled to relaxation. He sought to point out that the
statutory scheme for appointment of Director, Higher Education envisaged
under the Rules does not permit the consideration of the cases of all the
Principals (Grade-I) who did not possess the required minimum ex- E
perience as to their entitlement for relaxation by considering the merit of
their cases as to the suitability for appointment as Director, Higher Educa-
tion. He also placed before U;S the file of the State Government to show
that the Government even after the amendment of Rule 9 in the.Education
Service Rules, 1990 had found that relaxation of the Rules relating to F
minimum experience of three years provided under Rule 9 for appointment
of Principals (Grade-I) as Director, Higher Education would not be in
public interest. This course was adopted by him to impress upon us that
the Tribunal before whom the same file had been placed, had erroneously
taken the view that the Government before making the Order dated
October 17, 1992 appointing Dr. (Mrs.) Girishbala Mohanty as Director, G
Higher Education had not examined the question of relaxation of three
years minimum experience in the cases of Principals (Grade-I) for appoint-
ment of any of them as Director, Higher Education. On the other hand,
Mr. S.K. Dholakia learned Senior Counsel sought to support the Judgment
of the Tribunal under appeal by urging that the Tribunal had rightly held H
      278                    SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

 ' A the view that the cases of Principals (Grade-I) could have been considered
      on their merits for appointment as Director, Higher Education by making
      the relaxation in one or the other cases, as to the minimum requirement
      of three years experience as Principal (Grade-I). He did not, however,
      question the constitutional validity of the amended Rule 9 of the Education
  B   Service Rules, 1990.

            In the light of the said. arguments of learned counsel on both sides,
      what is requi,red to be considered by us is as to whether the rule which had
      provided for appointment of Director, Higher Education by transfer, re-
      quired as a condition precedent that the Government should have ex-
  C   amined the cases of all Principals (Grade-I) who did not possess the
      minimum experien~e of three years, to find as to the merit or suitability for
      appointment as Director, Higher Education.

             Sub-rule (1) of Rule 9 of the Education Service Rules, 1990, as
 D     amended by the Education Servic~ Amendment Rules, 1992, while
      provides that appointment to the post of Director, Higher Education shall
      be made by way of promotion from among the Principals (Grade-I) who
      have rendered service as such for a period of not less than three years, by
      its proviso declares that where no suitable candidate having the requisite
      experience is available, the Government may relax such requirement as it
· E   may consider necessary or expedient. Coming to sub-rule (2) it stat.es that
      notwithstanding anything contained in sub-rule (1), where a suitable can-
      didate with the experience provided in sub-rule (1) is not available to fill
      up the post of Director, Higher Education and the Government is of the
      opinion that the relaxation of such requirement under the proviso to the
 F    said sub~rule will not be in public interest, it may fill up the post by transfer
      of an Officer who has held the post as Director under the Education
      Department. Sub-rule (3) thereof provides that selection for promotion or
      appointment, as the case may be, to the post of Director, Higher Educa-
      tion, shall be based on merit and suitability with due regard to seniority.

 G           The non obstante clause in the said sub-rule (2), 'notwithstanding
      anything contained in sub-rule (1)' shows the overriding effect of sub-rule
      (2) on sub-rule (1). Sub-rule (2), thereof, when states that where a suitable
      candidate with the experience provided in sub-rule (1) is not available to
      fill up the post of Director, Higher Education and the Government is of
.H    the opinion that the relaxation of such requirement under the proviso to
             STATE v. FAKIRUDDIN (VENKATACHALA, J.)                       279

the said sub-rule will not be in public interest, it is difficult to think that   A
the cases of each of the Principals (Grade-I) have to be considered for
relaxation even though they did not possess the minimum experience of
three years as Principals (Grade-), as a condition precedent for filling-up
the post of the Director, Higher Education, by transfer of an Officer who
had held the post of Director in the Education Department, as is held by          B
the Tribunal. In fact, the plain language employed in the sub-rule makes it
incumbent on the State Government to take a decision on the question
whether it would be in the public interest to relax the minimum require-
ment of experience of three years as Principals (Grade-I) for considering
their cases for appointment as Director, Higher Education, before taking          C
up the question of appointment of others by transfer. Therefore, the
question of considering the cases of Principals (Grade-I) for appointment,
as to their suitability for appointment as Director, Higher Education
cannot arise. This would be the correct interpretation to be placed on
sub-rules of Rule 9, becomes evident from the scheme of the provisions
which entrusts the consideration of selection by promotion from Principals        D
(Grade-I) to the post of Director, Higher Education to the Departmental
Promotion Board constituted under Rule 10 of the Rules, which alone is
empowered to consider the cases of all eligible officers coming within the
zone of consideration and prepare a select list of such officers as are found
by them to be suitable for appointment as Director, Higher Education and          E
not the State Government as is assumed by the Tribunal. Further more,
Rule 11 of the Rules, excepted by us already, required the 'Select List'
prepared by the Board under Rule 10 to be forwarded to the State Public
Service Commission, which alone is empowered under sub-rule (2) thereof
to consider the 'Select List' prepared by the Board along with the docu-
ments received from the Government and convey its recommendation to
                                                                                  F
the Government with the reasons, if it were to alter the 'Select List'
prepared by the Board. While, Rule 12, already excerpted by us, provides
for approval of the Government of the recommendation made by the
Commission and the 'Select List' being kept in force for a period of one
year or till the next select list is prepared, whichever is later, Rule 13        G
~eclares that the appointment to the post of Director, Higher Education,
or any other post included in that category of the service, shall be made in
the same order in which the names appear in the 'Select List' and the inter
se seniority of the officers so appointed to such rank shall be in that order.
This shows that ranking so given, has to be followed by the Gover~ent in          H
    280                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   making the appointments to the post of Director, Higher Education or any
    other post in the category of service without deviating from the ranking
    indicated in that 'Select List'. It also shows that the Government has no
    power to meddle with the list so finally prepared by the Board and
    approved by the State Public Service Commission. Thus, the scheme of the
    provisions under the Education Service Rules, 1990 clearly exclude the
B
    possibility of the Government examining the cases of Principals (Grade-I)
    for appointment as Director, Higher Education by promotion, without
    reference. to the Board and the State Public Service Commission. If that
    be so, we have to hold, as argued by the learned Additional Solicitor
    General, that the scheme of the provision of the Act do not provide for
c   appointment of Direct~r, Higher Education being made from the Prin-
    cipals (Grade-I), who are not possessing the required minimum experienee
    by relaxing the required minimum experience, by the State Government
    itself as is directed by the Judgment under appeal and hold so.

           Hence the Judgment of the Tribunal under appeal warrants inter-
D ference and is liable to be set aside.
          In the result we allow these appeals, set aside the Judgment of the
    Tribunal under appeal and dismiss applications, O.A. Nos. 1088 and 1587
    of 1992 made before the Tribunal by respondent-1and2. However, in the
    facts and circumstances of the case, we make no order as to costs.
E
    R.P.                                                    Appeals allowed.




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