Shri Harnam Singh and Another vs State of Himachal Pradesh etc.

D.B. Lal, J.—In this petition filed under Article 226 of the Constitution, Harnam Singh and Swaran Dass, Clerks in the R & I Branch of the Himachal Pradesh Secretariat, have called in question the order dated 24th December, 1970 issued by the office of the Excise and Taxation Commissioner, Himachal Pradesh selecting for appointment Respondents 7 to 70 to the posts of Excise and Taxation Inspectors. It is contended by the Petitioners, that on 23rd December, 1969 by Annexure PA the Excise and Taxation Department sought for applications from eligible candidates for selection and appointment to temporary posts of Excise and Taxation Inspectors which had fallen vacant in the department. The candidates serving in the Government departments of Himachal Pradesh and also from open market were eligible. Accordingly the circular letter Annexure PA was issued to Secretaries, Heads of Departments and Deputy Commissioners in Himachal Pradesh and also to all Employment Exchanges to forward the names of eligible candidates. The qualification liad down in the circular was that the candidates must be graduate of a recognised university or must have passed and equivalent examination. They were required to undertake a written test consisting of two papers, namely (1) general knowledge, and (2) essays and precis writing. It was specifically laid down in the circular that the candidates who would qualify in the written test would only be called for interview in the office of the Excise and Taxation Commissioner for the final selection. In pursuance to this circular, the two Petitioners who were serving in a department of the Government, applied for the post. Their applications were accepted and they were called to sit in the qualifying written test which took place on February 8, 1970 at Simla. Similarly other eligible candidates also took up that test at Simla and also at other stations. The Petitioners subsequently learnt informally, that the qualifying marks for interview were fixed by the department at 33% in written papers. According to Petitioners, 43 candidates got the qualifying marks out of the total of 710 who had taken up the written test. The Petitioners further contend that their respective positions in the order of merit were 5th and 22nd respectively, while Respondents 7 to 70 did not qualify at all in the written test. Subsequently in order to defeat the claim of eligible candidates, the qualification by written test was ignored and all the candidates who had applied were called for interview although all of them had not qualified in the written test. This was done at the instance of Pt. Sukh Ram, Excise and Taxation Minister (Respondent No. 4) who belonged to Mandi district of Himachal Pradesh and wanted to oblige candidates of his own area in order to win the general election which was about to be held. In this manner, merit was given a go-bye and favouritism was introduced. A Departmental Promotion Committee ultimately sat for interview and selected 64 candidates who were the Respondents 7 to 70 of whom 30, according to Petitioners, belonged to Mandi district. These candidates either belonged to the constituency of the Minister, or were in one way or the other connected with him. The Petitioners, although they were 5th and 22nd in the merit list according to written test were ignored. They were not selected by the Departmental Promotion Committee. Soon thereafter the impugned list Annexure PB was issued selecting candidates for appointment.

According to Petitioners, Mani Ram Verma (Respondent No. 68) was not a regular employee of any department of the Government. His name was required to be sponsored by an employment exchange, which was not done. He was recommended by the Excise and Taxation Office of Mandi and was selected in the interview, but he was 33 years old and hence overage for the appointment under the rules Annexure PO. He had not qualified in the written test. According to Petitioners, he is very near to the Minister and as such he was selected.

The Petitioners further contend that the Minister was so much particular that he immediately thereafter on December 29, 1970 got issued the impugned list Annexure ''B'' under the signatures of the Deputy Excise and Taxation Commissioner. This was done because the Excise and Taxation Commissioner was out of station and could not append his signatures. It is stated that Shri B.C. Negi, I.A.S. Excise and Taxation Commissioner (Respondent No. 5) did not agree with the decision of the Minister. Upon that he was immediately transferred from the department and some adverse entry was made by the Minister which was communicated to him. In this manner, according to Petitioners, the entire selection and appointment was malafide and is also illegal and unconstitutional. There has been a violation of Articles 14 and 16 of the Constitution. The Departmental Promotion Committee could not even call for interviews as it was not a body recognised under the rules. The selection was made in an arbitrary manner and candidates of little merit were selected while the Petitioners were discriminated because they had qualified in the written test. They were denied equal opportunity before law and their service prospects were prejudiced.

On these averments the Petitioners have sought for the quashing of Annexure PB the list selecting Respondents 7 to 70 for appointment as Excise and Taxation Inspectors. It is further prayed that the Petitioners be considered for appointment on merit and be actually appointed to these posts.

The Respondents 1 to 6 have filed their return. It is averred on their behalf that there is no infringement of any fundamental right and Articles 14 and 16 are not attracted. The writ petition raises disputed questions of fact and hence must be dismissed. It is, however, admitted that 719 candidates had taken the "prescribed test" as detailed in Annexure P.A. It is, denied that Petitioners 1 and 2 had secured 5th and 22nd position in the written test. The Petitioner No. 1, no doubt secured 7th position in the written test. The Petitioner No. 2 secured only 52 marks out of 200 marks and he did not qualify the test. It was again admitted that 43 candidates obtained more than 33% marks in each paper and could be considered to be qualified. The Respondents aver that certain representations were received by the Minister (Respondent No. 4) that the papers for the examination were unduly stiff and therefore the Minister decided on 4th August, 1970 that all the Applicants be called for interview "and the result of the written test should be ignored." Accordingly a selection committee was constituted consisting of the Secretary (Excise), Excise and Taxation Commissioner, and Deputy Excise and Taxation Commissioner. The two Petitioners were also interviewed along with others and were found not suitable for selection. The mere fact that the Petitioners were not selected does not give them any right to invoke the jurisdiction of this Court.

About Mani Ram Verma (Respondent No. 68), it was stated that he was a Government servant working as Mali-cum-Chowkidar-cum-Fan puller in the office of the Excise and Taxation Officer, Mandi. As such he was a departmental candidate and was allowed to take the "prescribed test". He was no doubt over age but "action is being taken by the department for getting relaxation about his age from the Government". If he is not approved and his age is not relaxed, he will be relieved from service. It is, however, denied that he is in any manner connected with the Minister. Shri B.C. Negi, I.A.S., was no doubt transferred from the department but it was done in due course of administrative business. No adverse entry was communicated to Shri Negi on this account. The departmental promotion committee and the selection committee is one and the same body. It is stated that the Petitioners cannot take exception to its constitution. The averments of malafide were traversed by the Respondents. Pt. Sukh Ram (Respondent No. 4) filed a separate affidavit and denied that any of the candidates were connected with him or that he was interested in their appointments. According to him, only 20 candidates out of 64 belonged - to Mandi district. In fact, 141 candidates of Mandi district were called for interview and out of them only 20 were selected. He has also averred that it was he who took the decision, that all the 719 candidates should be called for interview and that the result of written test should be ignored. This he had done because the examination papers were not only stiff but there was also a complaint that in Simla centre there was leakage in papers and the same were divulged to the candidates.

Shri B.C. Negi, I.A.S. formerly Excise and Taxation Commissioner, filed a separate return. He mentioned in his affidavit that he handed over the charge of his office on 16th May, 1971 and further alleged that the decision to call for interview all the candidates who appeared in the written test was taken and the merit list was prepared, much after he handed over the charge of his office. There seems to be some confusion in this averment. If the date of his handing over charge is May 16, 1971, the decision as well as the preparation of merit list, very much took place during his continuance as Excise and Taxation Commissioner. Shri Negi has verified his affidavit upon personal knowledge and so the date cannot be stated to be incorrect. At the same time Shri Negi may be stated to have averred that he had nothing to do with the decision of the calling of all the candidates for interview or of the preparation of the merit list which were presumably done at the instance of the Minister. Shri Negi further stated in his affidavit that some adverse remarks were communicated to him by the Lt. Governor, but these remarks had no relevancy to this case. No adverse remarks to his knowledge were incorporated in his confidential report by the Minister. The Respondents, therefore, submit that no relief can be granted to the Petitioners.

Certain facts appearing in the petition are beyond controversy. The circular Annexure PA was admittedly issued by the Excise and Taxation Commissioner to all Secretaries, Heads of Departments and Deputy Commissioners. The Respondents have admitted that 719 candidates appeared in the written test. It is even tacitly admitted that 43 out of them had qualified having attained 33% or more marks. In the rejoinder-affidavit of Shri Prabhakar Kamath, I.A.S. Excise and Taxation Commissioner the averments made are:

It is, however, a fact that only 43 candidates obtained more than 33% marks in each paper. But it is denied that 33% marks were decided to be qualifying marks for the written test before issuance of Annexure PA or at any time later.

But, later on the averment is:

Out of the Respondents 7 to 70, 7 candidates had qualified in the written test also in both the papers.

When a written test was prescribed and only those who qualified the written test were to be called for interview, it is but natural to believe that some qualifying marks must have been settled from beforehand. The averments made above do indicate that 33% were the qualifying marks and 7 candidates from the Respondents qualified the written test. It is then admitted that Petitioner No. 1 was 7th in order of merit having qualified the written test. It is further beyond controversy that Pt. Sukh Ram (Minister) himself decided to call for interview every candidate who, had applied for the ''test. It was further decided by him that no regard would be had of the marks received in the written test. It is again admitted on behalf of the Respondents that Mani Ram (Respondent No. 68) was overage and some steps were to be taken for relaxation of his age. The return indicates that as a result to such steps, if his, age would not be exempted he might foe relieved from the post offered to him. It is abundantly clear that the altered decision taken by the Minister was not communicated to the Petitioners or other candidates. The Petitioners appeared for interview all the same, realizing that they would have qualified the written test and hence were to compete with such candidates only who had similarly qualified the; test. The return of Shri B.C. Negi, I.A.S. does indicate that he was transferred from the post of Excise and Taxation Commissioner. According to Respondents, this transfer was made for administrative reasons. Some adverse remarks were no doubt conveyed to Shri Negi but according to him these remarks had nothing to do with the case of these appointments. As I have indicated above, the date when Shri Negi relinquished his office, if correctly stated in his affidavit indicates, that he was very much., in the picture when the decision was altered by the Minister after the list was prepared on merit with reference to the marks obtained in the written test. However, if this date is incorrect Shri Negi may be stating correctly that he was transferred from the office in May, 1970 and it is only in the month of December, 1970 that the merit list was prepared and the appointments were made. The constituents of the departmental promotion committee are admitted by the Respondents. Their case is that the departmental promotion committee was none else but the selection committee contemplated under the circular Annexure PA. The averment of the Petitioners that the selection list Annexure PB was issued under the signatures of the Deputy Excise and Taxation Commissioner is also admitted. It is stated that the Excise and Taxation Commissioner was out of station and there was urgency in regard to posting and so the Deputy Excise and Taxation Commissioner signed that letter.

It would appear convenient at this stage to quote the circular Annexure PA as that was the foundation of the cause of action set up by the Petitioners:

Immediate.

No. 2-41/69-E&TII GOVERNMENT OF HIMACHAL PRADESH EXCISE AND TAXATION DEPARTMENT

From

Shri B.C. Negi, I.A.S., Excise and Taxation Commissioner, Himachal Pradesh, Simla-2.

To

All Secretaries and Heads of Departments in H.P.

All the Deputy Commissioners in H.P. Dated Simla-2, the 23rd December, 1969

Subject.--Recruitment of Excise and Taxation Inspectors under the Excise and Taxation Department, H.P.

Sir,

I have the honour to state that some temporary posts of Excise and Taxation Inspectors in the scale of Rs. 150-10-200/10-300 under this Department are to be filled early. You are, therefore, requested that applications of employees of your Department/Office desirous of serving under this Department as Inspector(s) may please be forwarded to this office for consideration not later than the 25th January, 1970 after which no application will be entertained.

A candidate must be a graduate of a recognised University or has passed any equivalent examination.

The written test consisting of two papers (a) General Knowledge (b) Essay and Precis writing each of 1 1/2 hours duration of the candidates whose particulars are received by the due date will be held at the following centres on the 8th February, 1970:

Place of Examination Place of the Office to which Centres condidates belong

Deputy Commis- Simla/Mahasu and Kinnaur sioner''s Office, districts. Simla-1. 2. Deputy Commis Sirmur district. sioner''s Office, Sirmur district, Nahan. 3. Deputy Commis- Bilaspur district, sioner''s Office, Place of Examination Place of Office to which Centres candidates belong Bilaspur district., Bilaspur, H.P. 4. Deputy Commis- Mandi/Kulu and Lahaul sioner''s Office, Spiti districts. Mandi district, Mandi. 5. Deputy Commis- Kangra district, sioner''s Office, Kangra district, Dharamsala. 6. Deputy Commis- Chamba district. sioner''s Office. Chamba district, Chamba.

The Applicants may be directed to report exactly at 10 A.M. for written test at the aforesaid centres at their own expenses. They may be directed to bring along with them a card-board, pen, ink and two attested specimen of their signatures by an officer of their departments. The interview of the candidates who qualify the written test will be held in the office of the undersigned, the date of which will be intimated to the candidates concerned, later on, which they will also have to attend at their own expense.

The applications previously forwarded if any will not be entertained.

Yours faithfully, Sd/- (B.C. NEGI), E.T.C.,H.P.

Three things directly emerge from this circular: (1) that a written test was to be held, (2) that only those who qualified in the written test were required to appear for interview which was to be held in the office of the Excise and Taxation Commissioner, and (3) that no relaxation was contemplated of any of the two qualifications. There is every reason to believe that at the time the circular was issued, some decision must have been taken fixing up qualifying marks for the written test. The averments made in the return point out that these qualifying marks were 33% or more in the two papers.

The rules pertaining to the Himachal Pradesh Excise and Taxation Department (Inspectorate Staff-Class III) Service are at Annexure P.C. These rules were promulgated in 1963 and relevant extracts from rules 5 and 7 are noticed below:

(1) A candidate for appointment to any post in the service must be:

....

(3) Must not be less than 18 years and not more than 25 years of age on the date of his appointment:

Provided that the minimum and the maximum age limits as prescribed may be relaxed in pursuance of the instructions laid down in Government of India, Ministry of Home Affairs, Office Memorandum No. 4/7/56-RPS, dated the 30th November, 1956....

Posts in the service shall be filled either by promotion or by direct appointment in the following manner:

(i) Excise/Taxation Sub-Inspectors.

....

(ii) Excise/Taxation Inspectors. By selection on merit-cum-seniority through the departmental promotion committee out of Excise/ Taxation Sub-Inspectors who have normally rendered 5 years service as Excise/Taxation Sub-Inspectors (officiating or confirmed):

Provided that 23% and 5% of the vacancies shall be filled up from the candidates belonging to Scheduled Castes and Scheduled Tribes respectively subject to the minimum qualification being fulfilled by them.

The plea in bold relief, set out by the two Petitioners is of the violation of Articles 14 and 16 of the Constitution. The point which falls for determination is, as to whether Annexure PA is a statutory rule or only an executive instruction. In this connection, reference need be made to the proviso to Article 309. On 23rd December, 1969 when the circular Annexure PA was issued, Himachal Pradesh was a Union Territory. It was administered by the President under Article 239. As such, within the aforesaid proviso, the President or such person as he may direct, in the case of services and posts in connection with the affairs of the Union (which were no doubt the affairs of a Union Territory), could make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf was made by or under an Act of the appropriate legislature. Therefore, the circular Annexure PA was a provision made by the President or by such person as he may direct in that regard, for recruitment to the service of Excise and Taxation Inspector the Union Territory of Himachal Pradesh. This the President did in exercise of this executive power {with reference to-Central Services including the services of the Union Territory, sit would logically follow that the circular was a law as defined in Article 13 and could not be altered so as to infringe. Articles 14 and 16. In B.N. Nagarajan and Others Vs. State of Mysore and Others, their Lordships of the Supreme Court considered rules of recruitment of various services under the Mysore ''State. According to them, it is not obligatory under proviso to Article 309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled. The State Government in ''that/cape had executive power, in relation to al matters with respect to which the legislature of the State had power to make laws. It follows from this that the State Government will have executive power in respect of Schedule 7, List II, Entry 41, State Public Service. There is nothing in the terms of Article 309 of the Constitution which abridges the powers of the executive to act under Article 162 of the Constitution without a law. These observations paripassu apply to Central Services. Therefore, a law or rule was not required to be made and the executive order laying down conditions for recruitment would have served the purpose. Annexure PA would, therefore, be a law and as such binding upon the Government in the circumstances of this case.

It is manifest from the rules of service Annexure PC that its Rule 8 did not apply to the present situation. The post of Excise and Taxation Inspector was required to be filled up by promotion under Rule 7 (supra) and there could be no direct appointment to that post. Circular Annexure PA could not thus derive sanction under the service rules Annexure PC.

It is abundantly clear that even an administrative order confers rights and cannot be done away with in an un-authorized manner. If authority is sought for this, reference can be made to Union of India v. K.P. Joseph and Ors. 1973 (1) S.L.R. 910. The Supreme Court held that administrative orders do confer rights and impose duties. It is because an administrative order can abridge or take away rights, that courts have imported the principle of natural justice in the consequence that follows the execution of such order. To say that an administrative order can never confer any right would be too wide a proposition. In The Union of India and Ors. v. Anglo Afghan Agencies etc. AIR 1968 SC 718 a case relating to import and export licence where certain representations were made to the Petitioners, it was held that although the order was executive in character the court had the power to compel its performance as the obligation was imposed upon the Government which must honour the promise relied upon by the citizen who had acted to his detriment. In the instant case, the Petitioners may not be stated, or at any rate they have not taken up a definite plea in that regard, to have suffered any evil consequence for having accepted the conditions laid down in the circular. They did appear in the interview test, but failed to achieve the success. In what manner they have prejudiced their cause for future employment, is neither asserted nor made known otherwise to the Court. At the same time the ratio of the authority is no doubt to be followed. The administrative order was as much required to be honoured by the Government. If there was an infringement of that order resulting in violation of a fundamental right, interference would certainly be invited under the provisions of the Constitution.

The learned Counsel for the Respondents contended with considerable force, that the Government was at liberty to alter or cancel the administrative order, as there was no estoppel to prohibit the Government from doing so. The proposition is so widely stated that it cannot be controverted in its general aspect. Surely in matters of service, Government is at liberty to frame its own rules. If recruitment is commenced governed by a set of rules, the proceeding can be altered subsequently by setting up different rules. For this, however, the condition is, that the alteration or cancellation of rules should be made under some authority of law so that it becomes binding upon the persons affected. In this connection, the learned Advocate-General relied upon three cases which need be noticed at this stage. In Ramanatha Pillai v. State of Kerala 1971 S.L.R. 32 which is a Division Bench case of Kerala High Court, the learned Judges applied Article 310 and held that the principle of estoppel is not applicable in matters of employment under the Union or States. In that case the contract of service was made for 5 years but the service was terminated before the expiry of the contract. The Petitioners pleaded estoppel but the Court disallowed that plea. In C. Sankaranarayanan, etc., etc. Vs. The State of Kerala, their Lordships were considering Article 309 with reference to the power of Government to make rules under that Article. It was held that the power of the Government was not fettered by agreement or contract as the principle of estoppel was not applicable. The case related to the age of retirement which was reduced from 58 to 55 owing to the provisions in rules 5 and 6 of the Kerala Service Rules. Finally, in Vishwanath Verma v. State of Madhya Pradesh and Ors. 1973 (1) S.L.R. 1053, a division Bench of Madhya Pradesh High Court held that Government can frame or alter rules according to exigency of situation. Alteration in rules is not justiciable until the provisions of the Constitution or of statutory enactments are violated. As such nobody can quarrel with this proposition that the Government of Himachal Pradesh was at liberty to make alteration in the circular Annexure PA but, in the instant case, the alteration was made in a manner so as to attract Articles 14 and 16 and it would further be noted that the alteration was not even made by a proper authority. As such these authorities would be of no avail to the Respondents.

I can then advert at once, to the alteration made in the circular and would refer to the decision made by Pt. Sukh Ram (Minister) to summon each and every candidate for an interview without regard to the marks obtained in the written test. The return of the Respondents 1 to 6 indicates that according to the minister the papers were stiff and so each and every candidate was called for interview. This would hardly be a reason germane to the question involved. If the papers were stiff nonetheless, a comparative study could be made on merit with reference to marks received by each candidate. Where was the necessity to have ignored the result of the written test and to have equated qualified and unqualified candidates for interview? Pt. Sukh Ram, however, added one more reason by saying that the papers had leaked out at Simla. According to him, some representations were received. But one does not know if these were oral or written. If the representations were written, the same could be filed along with the return. If these were oral, the names of persons making representations could be specified. The Petitioners have urged that it was all a faked plea set up by the Minister to serve his own needs. At any rate, the plea set up by him is not supported by any evidence worth the name. He has not even provided the details so that any reliance could be placed upon such a plea. If there was any complaint regarding the written test, a re-examination could take place. This was not done and the allegation is that favouritism was sought to be achieved by making eligible such candidates who were disqualified in the test.

In Bachhittar Singh Vs. The State of Punjab, it is held that before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 of the Constitution and then it has to be communicated to the person affected. Constitutionally speaking, the Minister is no more than an adviser to the Head of the State and the Governor is to act with his aid and advice. Therefore, until such advice is accepted by the Governor, whatever the Minister may say in regard to a particular matter does not become the action of the State. Indeed, it is possible that after expressing one opinion about a particular matter a Miniter may express quite a different opinion at a subsequent stage. Therefore to make the opinion amount to a decision of the Government it must be communicated to the person concerned. It is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Minister or Council of Ministers to consider the matter over and over again and, therefore till its communication the order cannot be regarded as anything more than provisional in character. From this it is easy to infer that until and unless the alteration made by the Minister was communicated to the persons affected, it did not become the decision of the Government. Besides that, the decision of Pt. Sukh Ram (Minister) was not the decision of the Administrator of the Union Territory. The order was not expressly made in the name of the Administrator. There is not even a contention, much less proof, that the order of Pt. Sukh Ram was at any time accepted by the Administrator and was issued in the name of the Administrator so as to constitute a decision of the Union Territory of Himachal Pradesh. It would, therefore, follow inevitably that the circular Annexure PA was never altered or modified in a manner required by law. When there was no alteration in the eye of law, the circular being an executive order issued under Article 309 was required to be followed in letter and spirit. If it was applied in a manner so as to violate Articles 14 and 16, the action must be struck down as ultra vires.

As to the effect of non-communication of the order made by the Minister to the Petitioners, there is a formidable array of authorities, to sustain the plea of the Petitioners. I have already referred to Bachhittar Singh v. State of Punjab and Anr. (supra) which is an authority of the Supreme Court. There is another decision of the Supreme Court of which the report is State of Punjab Vs. Amar Singh Harika, It was observed that the mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. It would be of no consequence that the present order was of a change made in the recruitment rule and was not an order of dismissal of the Petitioners. In both the contingencies the consequence would be prejudicial, when the recruitment rule was altered, the Petitioners are prejudiced because their qualifying marks were not considered. The scope of their competition was widened with more chances of rejection. No value was attached to their qualifying marks. One of the Petitioners was even 7th in order of merit according to the written test. That qualification was ignored. The Minister decided rather expressly that no regard would be had to the marks obtained in the written test. Such an alteration of the recruitment rule was thus required to be communicated to the Petitioners. They could have issued an appropriate order of the Government and could have very well published it in the Official Gazette. That would have been sufficient compliance under law. The Petitioners were not even aware that the main requirement of the circular was altered in a manner prejudicial to their interest. Had they known that interview test was the only criterion, perhaps they would have paid more attention to studies ameliorative to interview test. On the other hand, they devoted attention to the specific papers set down for the competition, and any knowledge acquired for interview test was given a secondary consideration. That was the prejudice caused to them. Besides that, the scope of selection definitely became large inasmuch as all the candidates were called for interview. That was again prejudicial to the interest of the Petitioners.

Two more cases need be noticed regarding communication which should have been made to the Petitioners. In State of Haryana v. Dev Dutt Gupta and Ors. 1970 Section 1 Rule 776, the Petitioners were reverted by an order passed by the State Government of Punjab. The order was not communicated no sooner it was passed, and it was held that the order remained ineffective and inoperative on merely this ground that it was not communicated to them before a definite date. In Dr. Narain Singh, District Family Planning Officer Bhatinda v. The State of Punjab 1973 (1) S.L.R 569, a learned Judge of Punjab and Haryana High Court held that an administrative or executive order takes effect only from the date it is communicated to the person concerned or is otherwise published in an appropriate manner. Till the order is communicated, it cannot be regarded as anything more than provisional in character and it is then and then alone that the executive order becomes an order of the State. The court is, therefore, impelled to hold that the alteration made by the Minister in the circular Annexure PA having not been communicated to the Petitioners would remain ineffective it was also an alteration without an order of the Government and the decision of the Minister was his personal one which could be altered at any stage until it was communicated to the Petitioners. The decision was also not binding as it was not an order of the Government.

All this would lead to an enquiry as to whether Articles 14 and 16 were violated. It is contended by the learned Counsel for the Respondents that the circular Annexure PA only conferred upon the Petitioners a right of interview which they ultimately got. In fact, the Petitioners could be rejected at any time after interview, as eligibility for interview could not afford eligibility for appointment. According to the learned Counsel, the circular Annexure PA never laid down that those who qualified in the written test were entitled to the appointment for the post. The Petitioners nonetheless appeared in the interview and so did all others who had qualified the test. As such, according to the learned Counsel, there was no discrimination and the Petitioners should have no grievance. To me, it appears that the argument of the learned Counsel is not sustainable under law. It has been held as far back as in Krishan Chander Nayar v. The Chairman, Central Tractor Organisation and Ors. AIR 1962 Supreme Court 602, that the fundamental right guaranteed by the Constitution was not only to make an application for the post under the Government, but the further right to be considered on merit for the post for which an application had been made. Thus the Petitioners had a fundamental right of consideration on merit in respect of the post of Excise and Taxation Inspector. There is a string of authorities which point out the circumstances under which Article 16(1) is attracted, when alterations in recruitment rules are made which deny equality before the law or equal protection of the laws, so that equality of opportunity for all citizens in matters relating to employment is not achieved. In Maharashtra State Electricity Board, Engineers'' Association, Nagpur, through its Chairman v. Maharashtra State Electricity Board through Secretary 1968 S.L.R. 273 a Division Bench of Bombay High Court held in a case, where the advertised qualifications for a post were subsequently relaxed in favour of the Respondents, although no provision of relaxation was there in the advertisement, that the order of appointment was violative of Article 16(1). Opportunity of competing was thus denied to candidates who did not consider themselves fit for appointment in view of the advertised qualifications and whose cases for relaxation could be considered by a Selection Committee. Once regulations were made for regulating recruitment to service, both the Board (in that case) and the candidates were bound by regulations. In Atam Parkash Mohan v. Kurukshetra University, Kurukshetra 1970 S.L.R. 16 a learned Judge of Punjab and Haryana High Court held, in a case where the advertisement mentioned the minimum qualifications for recruitment to the post of Senior Clerk and no mention was made for relaxation of these qualifications but subsequently the qualification was relaxed which was not properly done, that Article 16 was attracted and the appointment, was struck down. In Shri Kuldip Chand v. The Union of India and Ors. 1970 S.L.R. 406 a Full Bench of Delhi High Court set aside the appointments of Subordinate Judges as Article 16(1) was violated because the advertised qualification was subsequently relaxed and certain candidates could not apply who would have been eligible according to the relaxed qualifications. In Kuldip Singh Gill v. State of Punjab and Ors. 1972 S.L.R. 706 the qualifications mentioned in the advertisement were subsequently relaxed. The Petitioners were not informed of this relaxation. Persons possessing the advertised qualifications were available and submitted their applications. They were not considered for appointment as compared to those who did not possess these qualifications and were selected. It was held that no relaxation could be granted when an advertisement had been issued inviting applications and persons possessing the qualifications advertised were available and submitted their applications. If a relaxation had to be allowed, the advertisement should have been issued again so that all eligible persons knew of the relaxation to be allowed and would have been able to apply for the job. Once the qualifications have appeared in the advertisement inviting applications, these qualifications cannot be changed and the selection has to be made out of the candidates possessing these qualifications. This case and the other one relied upon by the Petitioners of which the report is Uttam and Ors. v. Municipal Council, Darwha and Ors. 1973 (2) S.L.R. 286, which I shall presently notice, are on all fours applicable to the Petitioners. In Uttam and Ors. v. Municipal Council, Darwha and Ors. (supra) the Petitioners were called for interview by the Municipal Council but an arbitrary ban was imposed against their employment on the sole ground that they were trained teachers and their names were excluded from considerations. The Petitioners were better qualified than the Respondents. This imposition of an arbitrary ban on the employment of Petitioners as teachers amounted to denial of rights of equal opportunity of employment guaranteed under Article 16(1) and hence the order was struck down. In that case, the argument was advanced that no doubt the Petitioners had filed their applications and therefore, it could not be said that having regard to the facts and circumstances of that case, any prejudice was caused to them because of the non-publication of the advertisement containing new qualifications, but it was held that the Municipal Council was expected to follow the mandate of Article 16 before making any appointment to the office. Similarly in the present case, this argument cannot be pressed into service, that the Petitioners did apply for the post and appeared for the interview along with others similarly placed and have now come to court only after they have been rejected. The circular gave them a guarantee that their case would be considered on merit with reference to their qualifying marks. This guarantee was frustrated by a change made in the circular which was never communicated to them and which was not even effected in accordance with law. The mandate of Article 16 was attracted and the order of appointment has to be struck down. It is evident that the Petitioners were equated with unqualified candidates and as such equal protection of the law was not granted to them. Similarly equality of opportunity for employment was also denied. There was no provision in the circular for relaxation of qualification. In fact, no relaxation was done in the eye of law. Whatever relaxation order was made was not communicated to the Petitioners. It remained a secret decision of the Government. In my opinion, the Petitioners get an indefeasible right of consideration of their case on merit. Not only the Petitioners were affected but even others who could have otherwise applied for appointment were affected, had they known that no written test would be held and only interview would be the criterion for appointment. Thus equal opportunity of employment was denied to others. The Petitioners no doubt had applied, but the criterion was changed without a proper decision and their case was discriminated, inasmuch as, they were clubbed with unqualified candidates and the result of written test was totally ignored for no valid reason. For these reasons it is not difficult to hold that the selection and appointment of the Respondents 7 to 70 are to be quashed.

The Petitioners have also alleged malafide but the averments are traversed both by the Excise and Taxation Commissioner, although haltingly, and by Pt. Sukh Ram the Minister of the Department. It has been contended by the Minister that only 20 out of 64 candidates were selected from the District of Mandi, while in the total of 543 there were 141 candidates from that District. In this manner, the percentage was not so high for inferring want of bonafide or fair play, on the part of the Minister. Shri Negi has, of course, denied that he was even holding the post of Excise and Taxation Commissioner at the relevant period of time. About Mani Ram (Respondent No. 68), the case of the department is that he is no doubt overage but efforts would be made to get a relaxation. At any rate such efforts are not being made at present. Be it as it may, it is not necessary to give any categorical finding as to whether the Commissioner or the Minister were in any manner personally involved. The fact of the matter is, that the condition of recruitment was subsequently changed to the detriment of the Petitioners and in the circumstances, attracting Articles 14 and 16. It is sufficient to set aside the appointments. Persons holding public offices are not only required to do justice but also to perform their duties in a manner giving the appearance that justice has been done. It is the first prerequisite of a public office, that confidence is reposed and arbitrary action is avoided, as the object of our Constitution with which we are all governed is nothing but to impart justice and fair play in all phases of life. Their Lordships of the Supreme Court have very succinctly laid down the principles to be followed in this regard, while referring to discretionary orders passed by the Government officers. Reference need be made to S.G. Jaisinghani Vs. Union of India (UOI) and Others, Their Lordships of the Supreme Court while referring to Dicey--"Law of the Constitution"--10th Edn., observed:--

The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

The least I can do is to import this dicta in the present case.

It is feebly contended on behalf of the Petitioners that: the departmental promotion committee was wrongly constituted. This cannot be so, because the said committee could as well be, a selection board contemplated under Annexure PA--the rules Annexure PC were no doubt not applicable to the selection.

In this view of the matter, the selection of Respondents 7 to 70 cannot be sustained and must be set aside. The Petitioners would have a right to be considered on merit either on the basis of the circular Annexure PA or on the basis of some other recruitment rules which the State Government may think fit to introduce in place of the circular Annexure PA.

The petition is allowed and the selection and appointment of Respondents 7 to 70 as contained in Annexure PB are quashed. The Respondents 1 to 6 are directed to consider the case of the Petitioners for appointment on merit either with reference to Annexure PA or with reference to any other recruitment rules which they may choose to make, in accordance with law, in place of, or in modification of, Annexure PA.

The Petitioners shall also get costs from the Respondents 1 to 6 Counsel fee to be assessed at Rs. 200/-.