PARVEZ QADIR versus UNION OF INDIA & ORS.

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PARVEZ QADIR v. UNION OF INDIA & ORS. OctDber 16, 1974

[P.JA:i.~'I·D :t.\'1 R!!O:>'(, P.N. BIIAOWATI AN'O P. K. G03WAMI, JJ.} All rnJia s~nlc!1 .4ct, 1951-rniian PortJI Service (Cadre) Ruru 1966--Tndian 1'w'••th•r ultra •lrlr-'::on/iitntial 3m 1 Sv,ict (R 1~uit-n!nl) R·~ltr roll!-1965-RWhtthtr ·~It could 4(1>-Conru/t~tlon be coriJidued for adjudglwith U.P.S.C. f1$ 1[uiia~U][i][ty ][of ][a ca'liid:Jtt for hl][ghu ][poJt- Rwler ][and ][Ttl/Illations lnttrchangtabic ]worth.

By in::orp,ratiog s. Z.A in th' A\1 India. S:rvicC~ A~. 1961 the Iaiia~ Forc' t Service was constituted as an All lndta S!rvtce. Th' G:>vernm ~ot of Iod~a m1do the Indian Fore~t Service (Cadre) Rules, 1966 and th' Indtan F.orc>t S:rvtco (f!.e• cruitment) Rules, 1966. By Rule 3 ot th' Cadre Rules the Ind1an Forest S!mco was constituted for each State and was referred to as tho State cadre. After. th' comme~ment of the Recruitment Rules the Central Government was e:~jotnei IIDder Rule 4{1) of tho Recruitment Rules to re:ruit to th' service any p!rson fr?rn among1t the members of State Forest S:cv.ice adjudged suitable In ac~ordan.:e wllb auch reaulatlons as the Central Government m1y m:11te in coo1ultntion with. tho State GovctDment and the Union Public Service Commission. The Indian Forest Service (F'~Aation or Cadre Strensth) Regulatiotn, 1966 came into Co reo with. effect from Octobec I, 1966 and the Indian Por4't Service {Initial Recruitm~o t) R~sula.­tions, 1966 came Into ron:o on July I, 1966. ReJul.tuon 4 or tho Initial R~r~ it· ment Regulations deals with conditions or elisibiluy for ro;rultm3nt to tho scrvtc& while resilhtion S deals with preplration or li:>U of •uit.ablo om:eu. In accordance with ttnr~ rul!\ ani re1~htb~• th~ initial ClDitituti:ln or l b: s~rvico nd recruit. ment thereto was made in July 1967 but this w.u im"D::diately ch~Jie:tg~. la A. X. Kralpak & Ort. ttt. v. Union of India Qlld Ors. this Court muck dowa ttlo ooti• ficatioo and the selo=;tions mlde w:re set asid~

In p:titioa \IDdcr artidc 32 or th' Co:ntitutio:~ th3 p:titiO:I!C QU3lUO:I:i tht delesatioo under rule 4(1) 10 m1lcc rellJlatio:H which th: A:t iJ o :>t auth')r\s3 • He contended (I) th!lt the initial ro:ruitm~t must b3 ml:ic only Cram :~m>:t&1t those memben who ue in State Fortlt Service on th' d.1tc wh:u the aclectioa w;u ~~etually mado and Dot on tho ~to or initial colUtltution of the cadre; (2) tb.tt ev"o if tho ael~>;tiooa were to be mldo from emoo~ tho p:noos who w:ro m:m!>:rs of tho State Por~ Service as on tb' d>;te of tho initial re;:ruitnpnt caaiU;ntM roUs or those peroons which have to be conSidered sboul:1 b' tho so wtlich hm vo bo.u wrlttea up to the time_wben selection.• were 1.'1 ra:t m1~; (3) thl t th' adjudsm:lllt or suitability oo the b~• o! conOdentt&l entms and o~bec rccoci is ~trbitracy and coasequeotly re&Uiatioa S """ invalid.

01 b:!nlJ of th: State It w11 C):lte:t:l~ th'lt th3 rulo1 alii re1u1at1oo.s ahniJ bt red at integrated rules reilr.iio& re:ruitmP: uli~r s. 3 0 ~ till A. :t.

Dilmlilioa the petition.

HeLD:. There iJ no juuiR~uo11 lor the ap;>ll::...tlo:t ot artlclc1 1-4 aa;l 16 or tb: C>:asWUIWQ to tho f•~t.s aoi cit.;.~:aua~:3J or tlllt CliO. (4 n BJ

(4 n BJ

. (l) Th: ~1teotiun u~~·nb:• &'I! m lit b, r:)l;to1. R 11lo 4(1) of th' Re· c:r~ttro:1t ll•!ks Cl11~t b, red w •. tln:lt talo 3(1) blt m l <t bl r~d tOJ>th!r anl tilt J>:>U311 w':u W;t6. ell"tblo to r=:r~l~ ,,, w:ro t!tll' " 'I) 0'1 tin Lte o r tt'll C)'lltl· IU\10''1 or II'.', tcrvt:.. Wlr6r n>:u'>>rl o! ell) S:ue P..t~Olt Suvi; ) lllJ w'n c:n f->r•nl-1 to thHnl.unl or ell&•b:loty lot O'Ji r:ph!in 4. R·ll' ~ ( Z) or til) Rl::llitrn::tt Rulo~ !urtb:t ml1: It cldlr IIlli art or t'u r J; · ait<nl11 u'll ,.. u ':l-ral, (I) sub1,~ u :lt tCJrllllllunt t., tlu Ssrvl~ h&1 t'> !>~b" d,rrs:n: rn•t'nl w'\1·'1 wu p -~ 1 -cib;.i u~J.>r cJ•·ne. (~), (u) ani {b) of th\t &;,!,~ale. (HJ D·I!J • · •UIL.>l . Ttu,renn o, J.lu hi,.t WI'/ O ltfl..tr~tt :>'>ll' S:N1;• I, .H~S n t~&t wu tl'B'l b';&'Jlt &l u11': tin ralt ~~~ f..t: 3(4) th> ot Ia II\) I tiii R':r.a c>ll 11. it-

ment Rules recruitment was to be made at tho Initial coMtitution of the service. Under r~ulation 6 of the initial recruitment Regulations the appointments have to be made in the State cadres and sinoo the strength or tho cadre in each State was only fixed by the Fixation of cadre Strength Regulation~ which came into force· with effect from October 1, 1966, the initial constitution of the Indian Forest Service was as from October 1, 1966. In other words the persons who were to be appointed under regulations 6 of the Initial Recruitment Regulations were from those officers of the State Forest Service who, on the date of the cOnstitution ot tho Service namely, October 1, 1966 were eligible for being selected. [442·C·D]

If instead of considering·the Persons eligible as on tho date of the constitution of the Service on October 1.1966, Persons who on the date of their selection wer• in the State Forest Service alone have to be considered, then, there may be many people who, though not in ~ervice on the date of the constitution of service, will become eligible for being considered •. The object of the initial recruitment to the Indian Forest Service from amongst those persons in se:vico who on tho date of the conwtution of the service were members of the State Forest Service was to give advantage of higher sevice to the members of the State Forest Service not only in respect of status but in respect of pay, pension, retirement, age and other servict benefits which were not available to those under the conditions of service appli· table to the State Forest Service. (442 G·H; 443.B]

It could not be the purpose of the rules and regulationt that initial recruitment not having taken place till after Kraipak's cast was decided any subsequent recruit-ment to the service under sub-rule (2) of rule 4 could not take place. [443 F]

(2) There could be no justification to holJ that suitability of person has to be adjudged by reference to the confidentials writtcon up after the initial constitution of the Service on October 1. 1966. If persons who we1'C to be considertd for initial recruitment were those who belonged to the service on the date or initial recruit-ment then the confidentials to be considered were onlY those pertaining to period of prior to that date, U this were not so there would be discriminati.on because while the suitability of those in service on the date of initial recruitment had to be considered as on the date of the actual selection, the suitability of those who were . dead or retired could not be considered by reference to the con6dentials of tbt lator . period, [444 D; B·CJ

Th~ selection of persons to be appointed to the service as on the date of the initial constitution of the Service would be from amongst those who were then members of the State Forest Service notwithstanding tho fact that due to litiaation that selection was long delayed. [ 444 H) ·

. . (3)" The adjudg:n:nt of suit'\bility of offi::ers for selection had to be made according to some norms. In order to achieve this end various methods can be adopted. It is not for thb Court to lay down which of the m'tbods had to be adopttd for adjudging suitability as long as th' normt ·which h1d been adopted were correlated and relevant to the adjudgment of suitability of th' offi~rs to bs .recruited to the Service. Past p~ormaoce of an offi::er beina one of the criteria for making selection the only way to adjudge their ~uitability wls by Pmnal of coni· dcntial records. [445 D; F; 446ATOften enough, the entries in confidential re;:jrds are th:m~elv~~ an in,ignia of · the capacity and capability oft he maker as supJrior o:Ji:er a> w~\1 a, c:>mn:ntary on the quality of the officer against whom that c'>nfidrotial remark is being made. Jt is not correct to say that the method of selectio:l based on p1~t p~rrormaoce as disclosed by the. confidential re;;;ords was not the pro;>:r m'tho:l Cor adjudgins suit-ability of the officer concerned. [ 446 D; E]

R.L. Butailv. Union of India & Drs. [1911] 2S.C.R. SS, referred to.

The criteria laid down in the rules and regulations on the question of suitability provide sufficient indication as to the norms applicable for adjudgina suitability, namely, the past performance of the officer as could be aleaned from the confidential aDd other records if they exist in respect of that officer. [4n DJ

St!PltEMI! caiJRr ·REPORTS

'rhough the regulations may not be called rule~ and they are purported. to ~ made unaet rule 4(1) of the Recruitment Rules, in effect they were made under tho power· conferred by s. 3 of the Act which uses the words 'regulations' and 'rules' as interehartgeable words. "Rules" have been defined in s. 3(51) of the General Clauses Act to include 're$ulations'. Both the rules and regulations were made by the same authority namely, the Central Government. They have also been placed before the Parliapient under sub-section (2) of s. 3 of the Act thus fulfilling the condi· tions for the enforcement prescribed therein. [441 E-F] .

The State of Uttar Pradesh-and Ors. v. Babu Ram Upadhya, [19611 2 S.C. R. 679 and Kai[1]ash Nath and Anr. v. State of U, P., A. I. R. 1957 S. C. 190 referred to.

No question of delegation in rule 4 arises nor can the regulation be said to have been made in erces~ of the powers conferred by s. 3 of the Act. The provision for consultation with the Public Service Q>mtnission contained in rule 4(1) of the Recruitment Rules is not beyond the power of the rule making authority in as much as that provision complies with the constitutional requirement for consultation with the Public Service Commission. [441 & G)

Arguments for the Petitioner :

The adjudgment of suitability made solely on tho basis of confidential reports in the circumstances of this case had failed.to afford equality of opportunity. The sole basis of adjudging suitability had been the confidential reports which had not been communicated to the officers concerned at the appropriate time as contempla-ted by the rules and, therefore, were irregular. defective and failed to afford opportu-nity to improve. The confidential reports are mere expressions and do not telate to particular incidents but ad judgment of suitability based on mere expressions could not be said to be the objective material. The rules did not lay down any criteria for adjudging the suitability. proper selection. presupposes that the criteria of selection were known before hand and were unifonn. The absence of any such' criteria renders rule 4 and regulation S arbitrary and violative of article 14 of the Constitution. Rules refer to the date of the constitution of service, namely, 1st July, 1966 for limited purpose. The purpose of the rule cannot be extended. If the recruitment to the service must be clearly on the basi~ of adjudging of the . suitability for appointment as on the date of selection, then the qualifications and disqualifications must be as on that date. Whenever the selections were held, · there was no reason to exclude the period between lst July, 1966 and the date of actual selection for considering the merit of the candidate.

Arguments for the Respondent :

lhe expression 'rule' includes 'regulation' made under an Act by virtue of s. 3(51) of the General Oauses Act Rules and regulations from one set of integra-ted rules re~arding recruitment under s. 3 of the Act. There was no que.~tion of delegation in rule 4. Unda regulation 4 the eligibility is "as on the date of the constilution of the service." Under rule 4(1) of the Recruitment Rules the recruitment at the initial cc•nstitution had to be made as soon as possible after lst July, 1966 when the recruitment regulations came into force. Appointments to State cadres had to be made with effect frOm 1st October, 1966 when tbe fixation of cadre strensth regulations were made. The adjudgment of suitability on the basis of service record is not only perfectly good test for the adjudameflt of suitability for appointments in service but is perfectly good test for adjud~nt of suitability of State officers for recruitment to Indian Forest Service at its tnitial constitution. For initial recuitment of the Indian Forest Service from among State Forest Servi~ Ofticers who have put in number of years of service in the State Forest Service to make them eligible for recruitment at the initial constitution of the Indian Forest Service under regulation 4, service recot<L~ <>f these officers regarding the work: which they have already done throughout t~ vears would be the only correct method of test for adjudging the suitability for recruitment to the Indian Forest Service at its initial constitution. Past performance is an established procedure for recruit-mes:~t. Under regulation 4 the initial recruitment is to be made from the oftioers or tho exiStina State Forest Service. Even if there was DO guide-line n:prdina IUitability laid dOWD iA ~on it foUows that the suitability Olf officers would

have to be adjudged by tbelt past performance which could be found only from their aen'icc record. Regulation S(2)(a) and (b) clearly indicate that the service record5 would form tho basis of suitability of the existing oftl:er5 of the State Forest Scrvico for rea:Wtmeat to Indian Fore5t Service at iLS initial constitution. Tbe procedure adopted by the Special Selection Board Wlder regulation S was to select ofllcus on merit only as reflected in tho overall assessment of the service records or tbo Stato Forest Officers. · ORIGINAL JURISD:CTION : Writ Petition No. 629 of 1970.

Petition Under Article 32 of the Constitution of India.

B. R. L. Iyanger and R. L. Kohli for tho petitioner.

Niren De, Attorney General of India, G. L: Sanglai and R. N. Sachthey, fo·r respondent No. 1

Niren De. Attontty General of India, R. N. Sachtl1ey and Sumitta Chukravartj, for respoDd~nt No. 2.

E.C. Aggc.rwa!a and AvinasiJ Kl.rk!lanis, for respondent No. 19 Tara Chand Sharma and Uma Datta for the Intervener.

The Judgment of the Court was delivered by

JAGANMOBAN Rsoov. J.-This petition is tho second round in the challenge of the initial recruitment to tho Indian Forest Service from amongst tho gazetted officers of the Forest Service of each State. By section 2 ot the All India Services Act LXI of 1961-hereinafter called 'tho Act'; tho Indian Administrative Service and the Indian Police Service, which were constituted before the Act, were recognised. as All-India Ser~ces. Sut>sequently by the All India Services (Amend-E ment) Act, 1963, enacted, on September. 6, 1963, section 2-A was a<1ded providing for constitution of three other All India Services of which the Indian Forest Service was one. Section 3 of the Act dealt with the resulation of recruitment aud condition& of service. It pro-vicfed:

"(l) The Central Government may, after consultation with tho. Governments of the States concerned including the State of Jammu and Kashmir, mako rules for tho regulation of recruitment, and the conditions cf service of person& appointed, to an All-India Servico.

(2) All rules made under. this section shall be laid for not less than fourteen days before Parliament as soon as possible after they arc made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on motion made during the session in which they arc '0 laid."

Section 4 of the Act dealt with continuance of existing rules which prior to the Act were applicable to an All-India Sctvice and those rulea ~o i1oemo4 to bo rules made under the Act.

In ordor to constitute and bring into being tho All-India Forest Service the ~tral Government issued notification dated Jul}' 1. 13-l.SS Sup Cl/15

[1975] 2 s.c.J..

SUPRl!MI! COURT REPORTS

966 [under section 2-A ][of ][the ][Aet ][and ][i!f!mcdiately ][th~roafter ][in ][IIller-]~so of tho powors conferred by sulr~ectiOn· (1) of l.l:.tt1on 3 of tho Act m.do oortain Rules, namely the I~?Jhan ~dest ~iVl~ <;d~c) IRnd~s, 1966-heroinaftor referred to as t li'(l ~ C$ · 1an p rest s~rvico (Recruitment) Rules, 196Q,-,-heremaftor. referred to ~ .. fhc Re~uitmont Rul.:s". By rule 3 of the Cadre- Rul,es the Indian Forest Service Cadre was constituted for each State or group of States and the cadro so coD$titutcd was to b~ referred as "State Cadre". or as tho case may "Joint Cadre". Tho strength and composition or'oach of tho cadro; wa$ dealt with by rule 4 of tbe 'Cadre Rules under whic'l the $trongth and composition of each of the cadres constituted under rule 3 was to be determined by regulations made ~y the Central Government in consultation with the State Government tn that behalf. Sub-rule (2) of rule 4 of the Cadre Rules furth~ provided that ~ Central Government shall at. the interval of every three years, re. examine the strength and 'composition of each such cadre in con-aultation with the State Government concerned and may make such alterations tl'erein as it deems fit. There are also two provisos to the nlc by and under which the Central Ggvornment had the power to altor the strength and composition of any cadre at any other time and similarly the State Governmcsnt was .also .e.mpo.wered to ajd for &. period not exceed ina one year, and with the approval of the Central Government for a. further period not exceeding Jwo years, to State or Joint Cadro OllC or more posts carrying duties or responsibilities of like nature to cadre posts. Rule S provided for the allocation or members. to various cadres by the Central Government in consulta· tion with the State Go,-ernment concerned. It also empowered ~ Central Government, with the concurrence of the State Government concerned, to transfer cadre offioor from one cadre to another cadre. In exercise of the powers conferred by sulrrule (1) of rule 4 . of the . Cadre Rules, the Central ·Government, in · consultation With the State Government, framed the Indian Forest Service (FrxntJOn o~ ~re Strength) Regulations, 1966, fudng the strettgth and compost lion of the cadres of the Indian Forest Service in each or tht Slates. as specified in the Schedule annexed thereto, with effect from October I, 1966. It also made in exercise of the powers conferred by sub-rulo {1) or rule 4 of the Recruitment ~~· .after ~ultati?n .with the State Governments and t..., .Uruon ~btic Service Commission, the Indian For:est Service (htltial RccrUJtment) Regulations 1966 which came into force with ~t from Jwy 1. 1966. ' • may bo mentioned thnt under sulrrulc {l) of rule 4 of the Recruit· .,.. Rule~ tho Central Gove-rnment was enjoined,. as aoon as may bo after the tommeoccmont of the Rules to m:ruit to the Service any !:'.;bf;ri~~~t tho ~embers of tJle Stato .Forest Service adjudged innrt may mabTon~ .Wl.tjl. ~nch rejllllationa- as the Contra) Go~rn· Commi!~ioo Jro!IC:,~uJtatt~ln with the Sta~e .Governsncot• and tJ:te ~ (!. . , at ·no member holdtog J>Oil rcrcned to 111 · t lo(J· [1]· • [04 ]d~U,Ue. ~) Qf nUc. 2 -a.nd so recrvited $hall at tho ~f) efT~ \:le aJlo~~ tO aqy . .S~~tO C~te otllet than. the on tttrttory. Sub-rule (2) of rulo 4

of the Recruitment Rules deals with the subsequent recruitment and prescribes the 9i~erent methods of recruitment under clause (a), (aa) ;~nd ~b) of the said sub-rule. We are not concernc;.d with sub-rule (2) or w1th other sub-rules. of rule 4 and consequently these may be ignored. Rule. 5 of the Recru1tme~t Rules deals with disqualifications for appom~ment, such as for mstance-(J) person who is not citizen of In~Ja or ~oes not · b~Iong to such categories of persons as may, from time to time, be not1fied in that behalf by the Central Government; (~).a perso~ wh.o has more t~an o~e wife living or who having spouse llvmg marnes m any case m which such marriage is void by reason of it~ taking place during the life-time of such spouse; (3) or marned. wo~~n; (4) or wo.man who is married to any person who has Wife !JVJng,-were cons1dercd to be not eligible for appointment to the service, subject however to the power of the Central Government to cxemp! t~em from the operation of either sub-rule (2) or sub-rule (4) when 1t 1s sat1sfied that there are special grounds for doing so.

Under regulation 2 of the Indian Forest Service (lniti~l Recruitment) Regulations, I 966-hereinafter called "the Initial Recrui~ment Regu~a­tions'', the Central Government was empowered to constitute~ ~pec1al Selection Board consisting of the Chairman of the Commisston o.r his nominee, certain officers of the State specified in sub-clauses (1) to (iv) of clause (a), for selection to the State Cadres, and cert~1n officers mentioned in sub-clauses (i) to (iv) of clause (b) r~r selecti~ll to the Cadre of Union Territories. Regulation 4 of the lmtJal Re7ruit· ment Regulations deals with conditions of eligibility, r~gulatJOn.th5 the preparation of list of suitable officers and regulatiOn 6 WJ. appointment to the Service. These Regulations are given below:-E

"4. Conditions of eligibility.-(!) Eve.rY ~fficer of •he S~at~ Forest Service who on the date of constJtUtJOn of the Service.-'

(a) is holding cadre post substantively or holds lien on such post, or

(b) (i) holds substantively past in the State Forest Service,

(ii) who has ~completed not less tl~a~ eight years of continuous service (whether offic1at1ng or substan-tive) in that Service,-and

(iii) who has completed not l~ss. than thr~e ~ears con-tinuous service in an officiating capacitY 1n ~ cadre post or in any other post declared equ1valent thereto by the State Government ~o~cerned, sh.all be eligible for selection to the Serv1ce m the semor scale.

(2) Every officer of the State Forest Service . who has completed four years of continuous. ~ervice on th~ date of constitution of the Service shall be eligible for selectiOn to the Service in the junior scale.

Explanation :-In computing the period of continuo.us

service for the purpose of sub-regulation (l)(b) or sub-regulation

(2), there shall be included any period during which an oftic:er has undertak:en:-

(a) training in diploma course in the Forest Rece&n:h Institute and Colleges, Debra Dun; or ·

(b) such other training as may be approwd by the Central Government in consultation with tho Commission in any other institution.

5. Preparation of list of suitable officera:-

(1) The Board shall prepare in the order of preference, list of such officers of State Forest Service who satisfY the con· ditions specified in regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the Service.

(2) The list prepared in accordance with sub-regulation (1) shall then be referred to the Commission for advice, by the Central Government along with:-

(a) the records of aU officers of State Forest Service included in the list;

(b) the records of aU other eligible officers of the State Forest Service who arc not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-inclusion in the list; aod

(c) the observations, ifany, of the Ministry of Home Affairs on the recommendations of the Board.

(3) On receipt of the list, along with the other documents received from the Central Government, the Commission shall forward its recommendations to that Government.

6. Appointment to the Service:-The Officers recommended by the Commission under sub-regulation (3) of regulationS shall be appointed to the Service by the Central Government, subject to availability of vacancies, in the State Cadre ~oncerned."

From perusal of sub-rule ~1) of rule 4 of the Recruitment Rules it is obvious that the Indian Forest Service bad to be constituted as soon as may be after 1uly 1, 1966, which was the date of commencement of the Rules, and that the persons to be recruited to the Service were to be from amongst the members of t~e State Forests Service wbo on the date of constitution of the Service were adjudged to be suitable for apJX>intment. Though the Recruitment Rules were notified on September 1, 1966, they were deemed to have come into force with effect from July l, 1966, and the Fixation of Cadre Strength Regula. tiona though made on December 27, 1966 were deomCd to have come into effoct from October 1, 1966. Selections were, therefore, made in accordance with rule 4 of the Recruitment Rules read with regulations 3, 4, S, & 6 of the Initial Recruitment Replations, 1966, for the number ofposta fixed under the Fixation ofc.dre Strength R.cautatioDs for . eldl of tho Statq.

In accordance with the aforesaid rules and regulations the initial constitution of the Service and recruitment thereto was made by notification of the Government of India, Ministry of' Home Aft'airs, dated July 29,1967. This was immediately challenged by one Kraipalc and others who were from the cadres of Divisional Forest Officers and Assistant Conservators of Forests of Jammu and of Kashmir, Arts. 14 on and the ground ',16 of that the the Constitution, selections notified and on were the violative further ground that the selections in question were vitiated as being opposed to the principles of natural justice. They also challenged the vires of section 3 of the All-India Services Act, rule 4 of the Recruitment Rules framed under that Act and regulation 5 of the Initial Recruit-ment Regulations framed under rule 4(1) of the Recruitment Rules. This Court in A. K. Kraipak & Others etc. v. Unionoflndiaand others(l) struck down that notification on the ground that the principles of natural justice were not complied with in that one of the aspirants for recruitment to the Service, namely, Naqishbund, the Acting Chief Conservator of Forests, was also member of the Selection Board. Though he (Naqishbund) did not sit in the Selection Board at the time his name was considered, he participated in the deliberations when the names of his rivals were considered. It was also admitted that he had participated in the Board's deliberations while preparing the Jist of selected candidates in order of preference. This Jist together, with the ,records were forwarded to the Ministry of Home Affairs, which in turn forwarded them with its observations to the Union Public Service Commission as required by the regulations. In. these circumstances all the selections were set aside and not merely the selection of the three Conservators of Forest who were excluded. It was contended in that case that section 3 of the Act, rule 4 of the Recruitment Rules and regulation 5 of the Initial Recruitment Regulations are void as those provisions conferred un-guided, uncontrolled and uncanalised power on the concerned dele· gates. In so far as the vires of section 3 of the Act was concerned, it was contended that the question was no longer res integr" in view of the decision in D. S. Gc.rewal v. Tlrt State of Punjab & .dnl'.(l) This Court, however, thought it unnecessary to go into the question a~ it was striking down the notification for violating principles of natural juc;tioe. As result of this decision regulation 3(l)(a)~iv) was amended on September 6, 1969 in respect of the composition of the Selection Board~ and by another notification of the· same date after sub-rule (3}, sub-rule (3A) was added to ruh.: 4 of the Recruitment Rules. Sub-rule (3A) reads as follows :

"(3Al Notwithstanding anything contained in sub·rule (2) when the appointment of any person to the Service in pursuance of the recruitment under sub-rule (1) is declared invalid by any judgment or order of any Court, the Central Government ma}' make fresh recruitment under that sub-rule to fill up such·appoint. ment and may give· effect to the appointment so filled up from the same date on which the appointment whkh is declared invalid as aforesaia h!ls been given effect to." ·

(1) [1970}1 S.C.R. 457.

(2) [1959] Supp. (1) S.C.R. 792.

Though in this petition the vires of the provisions which were challenged in Kraipak'j c:m(l) have been challenged agam the learned Advocate for the petitio~er did not contest the vires of s. 3 of the Act. ~e. how~ver, questto~ed the delegation in rule 4(1) to make regulattons whtch the Act dtd not authorise. That apart the selection and tb~ notification . appointi~g the gazetted officers of Jammu and Kashmtr Forest Servtce to Indtan Forest Service has been challenged on the following grounds~

(1) The rules of recruitment do not lay down any criteria for adjudging -:uitability which has been made !<Olely on the basis of the confidential reports and as such has failed to afford equality of opportun!t). Even apart from this objection it is. contended that the confidenttal reports were irregular and defecttve, and as they were not communtcated to the concerned persons till August 1967, faile~ to afford the .opportunity which was intend~d to be give~\ by the ctrculars, which tS, that the officers whose 'blemiShes' were potnted out should have an opportunity to impro\e. In any .case, the con· fidential reports are based on impressions, and suitabilit) based on such impressions cannnot be said to be an objective material.

(?.) The opportunity afforded on August 10, 1967 for making representations aga.tnst adverse entries gave room for favouritism, as some. adverse entries of persons who were to be selected were expun$ed. The selections were, therefore, not fair, impattial and objocttve.

(3) J:iropor selection pre-supposes that the criteria of selection are knowtl before hand and are uniform. but when these aro not known nor made evident the selection is bound to be arbitrary.

(4' Tho averment that adjudging suitability was on the basis of the record on or before the date of the constitution of the Service, i.e. on or before Jul} l, 1966, cannot be pressed . into service inasmuch aa the date for the constitution ·of the Service, namely, Jul!· 1, 1966, waa only chosen for the limited purpose of determining inter st seniority of the selected officers and their relative position in the Indian Forest Service. The recruitment to the Service must, therefore, clearly be on the basis of adjudging the suitabilit} for appointment as on the date of the selection. The qualifications and disqualifications must be as on that date, such as for instance the disqualifications under rule 5. What bas to bo considered for selection is that the offieer concerned is available as on the date when he or she is selected. It was not the intention of the rules and regulations that merely because some Forest Officers were alive or in service on the date of the first oonstitution of the Service the) should be selected on date when such persons are not in senice or not even alive or have lost their citizenship or have disqualified themselves by marFying several wives etc.

The !earned Attorney General on the other hand submits that the first selection to the Indian Forest Service amongst the gaLetted officers of the State Forest Service must be in accordance with the rules and regulations made under section 3 of the Act and the~ have been (I) (1970] 1 S.C.R. 457. •

compl~ed with in making the impusned recruitment. Under the Recruitment Rules and the Initial Recruitment Regulations the Central Government has to recruit to the Indian Forest Service, as soon a& may be after the conunencement of the Rules, namel} Jul} 1, 1966, fr~m amon~st the members of. the State Forest Service persons adJud¥ed ~u1table .. The procedure for making the aforesaid recruit-ment .1s hud down m the aforesaid rules and regulations. The Board constituted under regulation 3 has to prepare list in order of preference from am?~gst the n:tem~rs of the Stat~ Forest Service who satisfy the cond1hons specified tn regulations 4 and who are adjudged by the Board to be suitable for appointment to the posts in the senior and junio~ scales of the Service. After thi~ list is prepared and sent to the Umon Public Service Commission along with the observations of the M.inistr} of Home Affairs, the Central Government, subject ~o the availabilit} of vacancies in tht: State cadres a~ provided 1n the Cadre Rules, is empowered to make appointments to the Indian Forest Service . .•

· fhe constitution of the Selection Board, as we have seen already, is provided under regulation 3 of the Initial Recruitment Regutatio·D& and the conditions of eligibilit) for appointment to the Service are provided in regulation 4. The Attorney General submits that the rules and regulations ·should be read as integrated rules regardina recruitment unaer section 3 of the Act. .

It is true that though ·the regulations may not be cPlled ·rules and they are purported to be made under rule 4(1) of the Recruitmenli Rules. in effect the) are made under the power conferred b} section 3 of the· Act which uses the words "regulations" and "rules" as inter-changeable words. The marginal note to section 3 of the Act itSelf &a}s ·"Regulation of recruitment and . conditions ·of $etvice" but in the bod) of the Act what the Central Go\ernment is empowerM is to make rules for the regulation. of recruitment. 'As matter of fact "rules" have been defined in section 3(51) oftheGeneral Clauses- Act to include •'regulations". Both the rules and regulations were ma · by the same authority, namt-ly, the Centi:al Government, they have also been placed before the Parliament under sub-section {2} of section· 3 of the Act thus fulfilling the conditiors for the enforcement pres-cribed therein. See The State of Uttar Pradesh and Others v . .Babu Ram Upadhy4.(1) and Kuilash Nath and another. v. State of U.P.(2)

The provision for consultation with the Public Service Commission contained in rule 4(1) of the Recruitment Rules is, in our view, not beyond the power of the rule-making authority inasmuch as tha~ provision complies with the constitutional requirement for consulta-tion with the Public Service Commission: [See clauses (2), (3)(a) and (3)(b) of Art. 320 ·of the Constitution of India.] An} provision m&de which conforms with the constitutional requirements is, therefore, not ultra vires; In these circumstances, there is validity in the s\l'b-mission of the learned Attorney General that no question of arty delegation in rule 4 arises nor can the regulation be said to have·been made in .e~ss of O( the powers conferred by section 3 of the Act ..

(1) (1961) 2 S.C.R. 679.

(2) A.J.R .. (19~7) S.C. 790

perusal of the Act and the Rules will show that the oonstitution of the Indian Forest Service according to the Cadre Rules has to be made for each State or group of States and the s.trength of such cadre. bas to be determined by regulations me4e by · th~ . Central Government Mter consultation with the respecth·e State Governments. The Indian Forest Service has been constituted by J;l'oti.fication under section 2-A of the Acf with effect from Oqtober 1, 1966;. ~hough as we have· bad occasion to point out the Recruitment Rules,· the Initial Recruitment Regulations aqd the Cadre Rules· wer.e enforced as from July 1, .1966. This is because the Fixation of Cadre Stren~tb Regu-lations came into force with effect from Octo·ber '1; 1966. 1be reason why October 1, 1966, is taken as the date for the i~itial coD!:ti-tution of the Indian Forest Service is that because under rule 3(a) of the Recruitment Rules, recruitmt>nt was to be made at 'the initiai constitution of the Service. Under regulation 6 of the Initial Recruit-ment Regulations the appointments have to be made in the State Cadre and since the strength of the Cadre in ench State was only fixed by the Fixation of Cadre Strength Regulations, which came into force with effect from October 1. 1966, the initial constitution of the Indian Forest Service was as from October 1. 1966. In other words. the persons who are to be appointed under regulation 6· of the Initial Recruitment Regulations are .from those officers of the State Forest Service who on the date of the constitution of the Service. namely, October 1, 1966, are eligible for being selected. person eligible to be appointed to the senior scare of Service from amongst the members of the State Forest Service must be (a) one who is holding cadre post substantively or holds lien on &uch post, or (b) (i) who holds substantively post in the State Forest Service, (ii) who has completed not less than eight years con,tinuous service.(whether officiating or substantive) in that Service, and (iii) w~o has completed · not less than three years continuous service in an officiating capacity in cadre post or in any other post declared equivalent thereto by the State Government concerned. Clause (2) of regulation 4 deals with the eligibility for selection to the Service· in the jwiior scale.

Jf the contention of the petitioner that the confidential .reports . and other 'records penai.ning to the officers eligible for selection for initial recruitment have to be considered as on the date of act1lal selection. or that persons who are in service only on that date have to be considered for selection, were right then the rules and regulations become meaningless. On the petitioner's contention ·instead of con· •iderina the persons eligible as on the date of the constitution of the Service on Qctober 1, 1966, in respect of when the initial rtcnlitment baa to bo made, persons who on the date of their selection were in the State Forest Service alone have to be consiC1ered. If this method is followed, then there may he many people ·who though not in service on the da~ of the constitution of the Service will become eligible ror , ·: being considered. · These may bo ' persons who are subsequently .' ·appointed, but if according to the cadre strength which is to be fixed every three years under the Cadre Rules and Cadre Strength FixatiOl. Regulations, .the recruitment will be made not in respect of the cadr.,. strength fixed as on the date of the constitution of the . .. Service tl\r

in respect of the cadre strength fixed at the time when due to unfore-seen ~ircumstances (such as injunctions and court proceedings etc.) selecttons take place several years later. The object of tb~ initial ~ecruitment. to the Indian Forest Service from amongst those persom m the ServJce who on the date of the constitution of the Service are members of the State. Forest Service is to give advantage of higher servic~ to the members of the State Forest Service of each State not only in respect of status, but in respect of pay, pension, retirement age, death-cum-retirement benefit and other service benefits which are ·not available to them under the conditions of service applicable to ~he State Forest Service. It this were not so, then an unsuccess-ful aspirant can bold up selection by ventilating his grie-vances in Court and obtaining stay of the implementation of selections made· and thereby deprive others for no fault of theirs, if those benefits which they could have otherwise obtaii'ed. lf person who is eligible for selection is dead or retire, his widow in the former case, and in the latter case the retired person who would have be'en .entitled tq those benefits, would be deprived of those benefits. The Interpretation which the petitioner invites us to place on the scheme of the rules and regulations constituting the Service and the recruitments to be made thereto will cause not only injustice and hard-ship, but wiJJ have the effect of making the whole purpose of initial recruitment otiose. In our view, rule 4(t) of the Recruitment Rules can not be read without rule 3(1) but must be read together and the persons who are eligible for recruitment are those who, on the date of the constitution of the Service, are members of the State Forest Service and who conform to the conditions of eligibility set out in regulation 4. Sub-rule (2) of rule 4 of the Recruitment Rules further makes it clear that after the recruitment under sub-rule (1), subsequent recruitment to the Service, has to follow different method which is prescribed in clauses (a), (aa) & (b) of that sub-rule. If the interpretation urged by the petitioner's learned Advocate is to be accepted, then the initial recruitment not having taken place till after the Kraipak's case(l) was decided any subsequent recruitment to the Service under sub-rule (2) of rule 4 cannot take place. Such cannot, in our view, be. the purpose of the rules and regulations, nor was it so intended. After Kraipak' s case( I) in order to meet any possible contention as that urged by the ]earned Advocate for the petitioner, the Central Govern-ment appears to have, by way of abundant caution, added sub-rule .(3A} to rule 4, the effect of which was to empower it to make fresh recruitment under that sub-rule notwithstanding anything con-tained in sub-rule (2) to fill up such appointments which may have been declared invalid by any judgment or by any Court and to give effect to the appointments so filled up from the same date on which the appointments which were declared invalid as aforesaid had been given effect to. That the Central Government had power to make such rule under s. 3 of the Act has not been challenged and is, in our opinion undoubted. In any view of the matter, the contention that the initial recruitment must be made only from amo·ngst those members who are in State Forest Service on the date when the !election is actuatly made and not on the date of the initial constitution, is ~tenable and must be rejected. tl) (1970) 1 S.C.R. 457.It was noxt contended that even if the selections are to be made from: amongst the persons who are members of the State Forest Service as on the date of the initial recruitment, the confidentials of those persons which have to be considered for adjudging their suitability for appointment should be those which have been written upto the time when the selections were in fact made. This argument, in our view, bas no substance, because moment's reflection would show that if persons who are to be considered for initial recruitment are those who belonged to the Service on the date of the initial recruitment, then the confidentials to be considered are only those pertaining· to period prior to that date. If this were not so, and the contention of the petitioner is accepted, then there would be discrimination because while the suitability of those in service on the date of the initial recruitment bas to be considered as on the date of the actual selection, the suitability of those who are dead or retired cannot be considered by reference to the confidentials of later period, for the obvious reason that there can be no such record written up after the person has retired or is dead. We can find no justification for accept-ing the contention of the learned Advo.cate for the petitioner that suitability of person has to be adjudged by reference to tho contidentials written up even after the initial constitution of the Service on October 1, 1966.

It may be observed that the first selection by the Special Selection Board was made between October 1966 and May 1967 throughout India and by several notifications the appointments to the initial constitution of the Indian Forest Service were made with effect from '- October 1, 1966. In respect of Jammu and Kashmir also the Central Government by notification dated July 29, 1967 made appointments on the initial constitution oftbe Indian Forest Service on October 1, 1966. In respect of these appointments, service records considered by the Selection Board were upto 1966 for recruitment at the initial constitution of the Service. It appears that the first Selection Board for Jammu ud Kashmir officers had before it adverse reports which were not communicated to the concerned officers and consequently the Central Government directed the State Governments throughout the whole of India to communicate such adverse entries to the officers concerned. The Special Selection Board thereafter reconsideted the cases of those officers whose adverse reports bad ·not been made available to the·m giving them an opportunity to make representations against those adverse reports, and included some of them in the list ..

As we have stated already, in Kraipak's case(l) this Court had struck down the· appointments to the Indian Forest Service, after which the selections had to be made afresh by another Selection Board which did not suffer from the e.arlier defect. In our· view, therefore, the selection of persons to be appointed to the Service as on the date of · the initial constitution of the Service would be from amongst those who were then members of the State Forest Service notwithstanding the fact that due to litigation that selection was long delayed. We have also se~n that sub-rule (3A) of rule 4 of t}le Recruitment Rules was added and consequently if the new selections have to be made from out of the persons who are members of the State Forest Service on (1) [1970] 1 S.C.R. 451.

October 1, 1966 any disciplinary proceedings or adverse confidential remarks in respect of the years subsequent to that date cannot be taken into account, in adjudging their suitability for the initial recruitment to the S~rvice but could be taken into account in case they were appointed to the Service, for initiating c.isciplinr.ry action under the AU-India Disciplinary Rules applicable to that Service. If any disci-plinary proceedings were initiated after October I, 1966 in respect of years subsequent to that date under the State Disciplinary Rules, they could not be considered by the Special Selection Board for ap-· pointment of State Officer to the Indian Forest Service at its initial constitution with effect from October 1, !966. We do not, therefore, think that there is any merit in the cc ntenticn thr.t tl!c consideration of the Service record of the officers upto 1966 only is . violative of Art. 14 of the Constitution. Any other ccurse, as we have pointed out, would lead to discrimination. unfairness and injustice. ·

Lastly it is contended that the adjudgmcnt of suitability on the basis of the confidential entries and other records is arbitrary. and consequently regulation 5 is invalid. It may be necessary to point out that the initial recruitment to the Indian Forest Service was to be made from amongst the gazetted officers belonging to the State Forest Service of each State, the number of such selections being not in excess of the number of posts available in the cadre for each· State. It is true that the adjudgment of suitability of such officers eligible for selection has to be made according to some norms. .rn order to achieve this end. various methods can be adopted. There can be method of selection by competitive examination, another by examination-cum-viva-voce, yet third by viva-voce alone, or the fourth by the examination of official record or with viva-voce and' · the fifth by purely on the scrutiny of the official record. It is not for this Court to lay down which of the methods has to be adopted for adjudging suitability as long as the notms which have. been adopted are co-related and relevant to the ad judgment of the suitability of the officers to be recruited to the Indian Forest Service. It cannot be said that some other method should have been adopted and the method adopted by the rules or regulations for selection is improper. The method of selection by competitive examination in so far as the initial recruitment is concerned has not been adopted, because by contrast sub-rule (2) of rule 4, as can be noticed, has adopted this method only ·for tha subsequent recruitment to the Service after the i!l,itial recruit-ment as provided in sub-rule (1) o( rule 4 has been made. For the initial recruitment the eligibility of person to be considered for appointment to the Service has already been laid down in regulation 4 of the Initial Recruitment Regulations and those officers of thl· State Forest Service who satisfy the conditions of eligibility can be considered for appointment to the Indian Forest Service and the authorities which have to adjudge them suitable are the Special Selection Board and the Union Public Service Commission. It is the duty of the Special Selection Board to prepare list from amongst ~be $tate Forest Officers and such list can only be prepared in order of senio-rity if the respective records of each of such officers is considered and the comparati~e merit assessed. The past performance of an officer

being one of the criteria for making selection, the only way to adjudge their suitability is by perusal of confidential records. It is true that confidential records do not sometimes give true picture due to the vagaries of the recording officer. The human faUibility and want of objectivity in the superior officer are factors which cannot be eliminated altogether. For that matter one can ask wh9t method ~s perfect. For this reason, certain safeguards have been provided 10 order to make them as objective as possible. If there is an adve~ entry against any officer that officer is given an opportunity to explain. After the explanation is given, the superior officer as well as the Gover-nment ultimately decide whether that remark by therecording officer was justified or not, and if it is not justified the Government can always order its deletion. Sometimes vagary may enter into the service confidentials, and it cannot be postulated that all superior offi-cers who have been empowered to finalise such entries wjlJ suffer from any of those traits because the actions of the officer concerned may not have any immediate impact upon him and consequently his sense of objectivity will not be dimmed or strained. In our view, often enough, the eo tries in confidential records are themselves an insignia of the capac-ity and capability of the maker as superior officer as well as comme-ntary on the quality of the officer against whom that confidential Temark is being noted. But those who are charged with the duty to oversee that these entries ani fair, just and objective quite often do intervene and ractify any entry on representation being made against it at the pro~ time. In these circumstances, we do not think that the method of selection based on past performance as disclosed by tile confidential records is not the proper method for adjudging suita-bility of the officer concerned. See in this connection the decision of this Court in R.L. Butail Y. Union of India & Or3.(l) where the r~ ·concerning confidentials were considerc;d,

It is also contended that regulation 5 of the Initial Recruilmcnt ReguJations·regarding adjudging of the suitability is not valid. The ·word 'suitability' itself is correlated with the object of recruitment, namely, that person has to be considered suitable for appointment to superior service which itself furnishes the norm that he is con-sidered suitable having regard to his service in the State Forest Service. This in turn refers only to the past records of the service in the State as an officer of the State Forest Service. The Special Selection Board under regulation S(2)(a) has to adjudge the suitability of an officer from his service records which form the basis of the preparation of the list and the list so prepared aner consideration of the records would reflect the overall assessment of the officers of the State Forest Serviee.

The learned Attorney General has referred us to the decision of this Cowt in S. P. Jinadathappa v. R. P. Sharma and Others.('Z) At pp. 26-27 of that decision the question whether the words "suitable tenant'' were vague in the context in which they were used. was cOnsidered. Jt was there held that though the expression "suitable" was not defined,

(1) [1971}2 S.C.R. SS,

(2) [1962) 2 S.C.R. 22.

il does not require definition, because any man of experience would know who· is suitable tenant. This decision has ·been accordingly left to the ·Rent Controller. On the other hand, the decision referred to ·by the petitioner's learned Advocate in Harakchand R~tanchand : JJenthia and Ors.. etc.v. Union of IndlaandOrs.(l)has no ,application, in that the expression "suitability of the applicant" for the grarit .of licence does ,not provide any objective standard or. norm: . Each . case has to be viewed in the context in which the words ~'suitability" or "suitable" is used,- the object of the enactnien! and 'he purpose sought to be achieved. · In any case the adjudging ·or suitability as has been suggested by ·the method of viva-voce, as held by this Court in Janki Prasad Parimoo & Ors etc. etc. v. State of Jammu· & Kashmil' & Ors.(l) is unsatisfactory. · The criteria laid down in the rules and· regulations on this aspect do, in our view, provide sutfjcient' indication as to the norms applicable for adjudging suitability, namely, the past performance of the officer as can be gleaned from his cqntidential and other records if they e~ist in respect of that officer. ·

In so far as the comparative merits of the officers adjudged ·suitable are concerned, as we have said earlier, ·this Court wm·not_'discharge the functions .vested fn the Special Selection Board or in the Union, Public Service Commission by going into the question whether in fact the person ~elected is not suitable. or person not select~~ -is suitable-for the pos~ in the Indian Fo(est Service. Our attention has been 'drawn to several adverse remarks given to the petition~r regarding which, It is s~id, th~ petitioner could not make any representation. It is submitted that:as·these remarks were completely subjectiv~. and since they ·have been taken into consider.ation the · petitio.ner has been adversely affected.· These remarks pertain to the pre--1966 ·conduct ~ · · of persons who.~ba.ve been selected. In this conl).ection our. attention was drawnto.the observations of the State Forest Service Co'mm.issiotl · m:~.de in 'its.report in respect of certain persons in' the ·State Forest ·' _'Servllowev.er, ice who ~cithi~ghave · been to·showselected . ~hat to the Indian Forest these re~arks were Service mad.~· after . .'·There gjvii1g: is, due notic!' to the persons concerned·.· At any rate, 'th.ey :we.re nof iti existen.ce at t~e time when the confidential reports ·""'ere .written and if the confi~ential reports for 1966 do not reflect aqy adverse rtmarks,_ . as consequence of any enquiry regarding the· pre-1966 conduct, it. cannot be ·. said . that the authorities · empo~ered . to. · ·adjudge suitability .as on October 1, 1966 had acted illegally or unjustly. It has been stated, and ·we have no reason to doubt it, that whether there were such enquiries the selection was made provisionally subject to the result of.that enquiry. There is also, in our view, justification for

(2) [19731 3 S.C.R. 236. ·.

{I) [1970] S.C.R. 479, 501.

the su~mission that giving few instances here and there of .adverse remarks does not give a. complete picture of the entire service record of the officer concerned. There has been no allegation of mala-fide against the Selection Board or the Union Publi~ Service Commission nor have we before us, as they had before them, cOm-plete record of all the officers to make comparative assessment of the worth of the officers of the State Forest Service, nor is it our function ·to do so. We can find no justification· for the application of Arts. 14 & 16 to the facts and circumstances of this case. In the circum-stances we do not think that any of the remarks alleged in the affidavit ·of the petitioner can be said to affect the selections made.

In the view we have taken, this petition has no merits and is .accordingly dismissed, but in the circumstances, without costs.

Petition dis~d.