RAMSAGAR ROY v. STATE OF BIHAR — 1970 DIGILAW 27 (PAT)

JUDGMENT Shri Ramsagar Roy, the sole petitioner in this writ case, has obtained a rule against the State of Bihar (respondent no. 1), Dr. Jaynarayan Misra (respondent no. 2) and the Bihar Public Service Commission (respondent no. 3) to show cause why the recommendations of respondent no. 3 and the notification dated the 19th August 19691 a copy of which is Annexure 2' to the writ application, issued by respondent no. 1 appointing respondent no. 2 to the post of Director of Agriculture, Bihar, be not called up and quashed. Cause has been shown on behalf of respondents 1 and 3 by the Government Pleader no. 1 and on behalf of respondent no. 2 by Mr. Radha Raman. Mr. Balabhadra Prasad Singh has appeared in Support of the rule. 2. The petitioner entered service under the Government of Bihar as an Agricultural Overseer on the 13th of December, 1935. On the 1st November, 1945, he was promoted to Class II service, and he got Class I post permanently on the 4th of May, 1949. Respondent no. 2, on the other hand, entered service as an Agricultural Overseer on the 13th of July, 1943. He was promoted to Class II on the 13th March, 1950 and to Class I on the 25th of April, 1952. in which class he was confirmed on the 1st of March, 1956. To this extent, the facts are not in dispute that in Class I service, the petitioner was senior to respondent no. 2. 3. It appears from the statement in the show cause petition filed by respondent no. 2 and the counter-affidavits filed on behalf of the other respondents and the annexures appended to them that some special posts were created outside the cadre and at the relevant time in or about the year 1955, these special posts were in the pay scale of Rs.800-1150. The revised scale of these posts soon became Rs. 900-1400/-. On the 13th of March, 1956, the petitioner was appointed Principal of the Ranchi Agricultural College and Regional Director of Agricultural Research Institute, Ranchi. At the time of his initial appointment, the pay scale was. Rs. 800-1150 which, subsequently, became Rs. 900-1400. From Ranchi, he was transferred as Principal of Bihar Agricultural College, Sabour, where he was confirmed in the post on the 2nd of April, 1960. He was also drawing a special pay of Rs. At the time of his initial appointment, the pay scale was. Rs. 800-1150 which, subsequently, became Rs. 900-1400. From Ranchi, he was transferred as Principal of Bihar Agricultural College, Sabour, where he was confirmed in the post on the 2nd of April, 1960. He was also drawing a special pay of Rs. 200/- in that post and had been provided with rent-tree quarters as well. The corresponding history of the appointment of respondent no. 2 during that period is like this. The special post of Director of Agricultural Education also had the initial pay scale of Rs. 800-1150 which was later revised to Rs. 900-1400. Respondent no. 2 was appointed on probation for a period of two years in the post of Director of Agricultural Education on the 1st of September, 1959. He was confirmed in that post on the 1st of September, 1961. One of the points of dispute between the petitioner and respondent no. 2 in regard to their seniority inter se in the special-post-the pay scale of which was initially Rs. 800-1150 and on revision Rs. 900.1400-is that, according to the case of the petitioner, since he had continuously officiated in such post from the 13th March, 1956, on confirmation on the 2nd April, 1960 he will get advantage of his continuous officiation and will rank senior to respondent no. 2. The case of the latter, on the other hand, is that according to the Government instructions contained in Appendix I dated the 20th April, 1949, from the Director of Agriculture, Bihar, to all officers subordinate to him, a copy whereof is Annexure 'D' to the counter-affidavit of respondent no. 2, on his confirmation to the special post aforesaid on the 1st September, 1961, the previous date, that is, the 1st September, 1959, would be the date of his substantive appointment for the purpose of determining his seniority; and, the petitioner having been appointed either in the temporary post or temporarily could not count his period of officiation prior to the 2nd April, 1960, for the purpose of determination of his seniority. It is not necessary for me to decide this dispute between them in this case, but the purpose of mentioning this dispute is as will appear from my judgment hereinafter. 4. The third stage of dispute between the petitioner and respondent no. It is not necessary for me to decide this dispute between them in this case, but the purpose of mentioning this dispute is as will appear from my judgment hereinafter. 4. The third stage of dispute between the petitioner and respondent no. 2 is that the pay scale of the special post of the Director of Agricultural Education which respondent no. 2 was holding in the scale of Rs. 900-1400 was upgraded by the State Government on and from the 12th of March, 1966, and the scale of Rs. 900-1400 was enhanced to the scale of Rs. 1200-1700. By such upgrading, according to Rule 82 of the Bihar Service Code, respondent no. 2 became entitled to the said scale of pay from the 12th of March, 1966. According to respondent no. 2, the petitioner has been temporarily appointed to such a special post as Director of Extension Services on the 10th of June, 1968, in the pay scale of Rs. 1200-1700 and, therefore, he claims that in as much as in this higher pay scale post he has been for a longer period than the petitioner, he is senior to the petitioner. The case of the petitioner, on the other hand, in this regard is that at the time the applications were invited for appointment to the post of Director of Agricultural Education, he was in a special post and was getting the same salary which was attached to the post of Director of Agricultural Education. Over and above that, the petitioner had the facility of free quarters and special pay of Rs. 200/- The mere upgrading of the pay of the post of the Director of Agricultural Education on the 12th March, 1966, would not make respondent no. 2 senior to the petitioner, rather he filed his representations before the State Government for giving him the same scale of pay, that is, Rs. 1200-1700, from the 12th March, 1966, the date from which, according to him, his junior officer, respondent no. 2, was given that pay. This is again a question which I do not think it necessary or advisable to determine in this case. 5. The real bone of contention and dispute between the petitioner and respondent no. 1200-1700, from the 12th March, 1966, the date from which, according to him, his junior officer, respondent no. 2, was given that pay. This is again a question which I do not think it necessary or advisable to determine in this case. 5. The real bone of contention and dispute between the petitioner and respondent no. 2 started when the post of Director of Agriculture in the Government of Bihar fell vacant on the superannuation of the then incumbent Shri Bhairvi Nandan Sinha, in the year 1968. Then arose the question of filling up of that post. It appears that due to one reason or the other action was not taken by the Government in accordance with the rules. Seniority of the officers to be appointed on that special or selection post of the Director of Agriculture was not determined. On the 25th of November, 1967, a letter was written by the State Government to the Bihar Public Service Commission, hereinafter called 'the Commission', a copy of which is Annexure 'A' to the counter-affidavit filed on their behalf. In this letter, it was stated on behalf of the State Government that for promoting an officer to the post of Director of Agriculture a list of the officers of the department holding posts in the scales of Rs. 1200-1700 and Rs. 900-1400 was being sent along with their qualifications and character rolls. About the seniority, it was stated in paragraph 2 of the letter that it was under consideration of the State Government and that the list of fourteen persons which was sent, was not in accordance with seniority. The Commission in their letter of the 29th April, 1968 a copy of which is Annexure 'B' to their counter-affidavit, insisted for determination of the seniority of the officers whose cases were to be considered by the Commission for recommendation for appointment to the post of Director of Agriculture. The Commission in their letter of the 29th April, 1968 a copy of which is Annexure 'B' to their counter-affidavit, insisted for determination of the seniority of the officers whose cases were to be considered by the Commission for recommendation for appointment to the post of Director of Agriculture. Finally, a letter was sent by the State Government in September, 1968 (a copy of the same letter, which is Annexure "C' to the counter-affidavit of the Commission, is dated the 23rd September, whereas the copy of that very letter, which is Annexure 6' to the writ application is dated the 25th September) stating therein that after some extension to Shri Bhairvi Nandan Sinha, a stop-gap arrangement was also made by posting Shri P.S. Kohli, LA.S., who was not a man of the Agricultural Service, to work as Director of Agriculture; but it was 'necessary to make a regular appointment of a qualified man. It is further stated in this letter that the Government would have considered filling up the post by promotion but owing to certain unresolved complications with regard to seniority of eligible officers, this was not possible. The State Government had, therefore, decided that the post of the Director should be filled up by an officer selected by the Commission from amongst those who were holding posts in the scales of Rs.900-1400 as well as Rs. 1200-1700 under the Agriculture Directorate without reference to their seniority and on the basis of their record of service. A list of officers holding such posts in those two scales definitely mentioning 'not arranged in order of seniority' was sent along with this letter. This list has not been annexed to Annexure 'C', but it stands annexed to Annexure 6'. It would be noticed that in November, 1967, when the letter was sent with the list of fourteen officers, the petitioner was drawing the pay in the scale of Rs. 900-1400 besides the special pay of Rs.200/-, but respondent no. 2 at that time was drawing the pay in the scale of Rs. 1200-1700. But, when the list was sent in September, 1968, the petitioner also was drawing the pay in the same higher scale of Rs. 1200-1700. In this the names of twelve officers were mentioned in the pay scale of Rs. 900-1400 and the names of four officers were given including that of the petitioner and respondent no. 1200-1700. But, when the list was sent in September, 1968, the petitioner also was drawing the pay in the same higher scale of Rs. 1200-1700. In this the names of twelve officers were mentioned in the pay scale of Rs. 900-1400 and the names of four officers were given including that of the petitioner and respondent no. 2 in the higher pay scale of Rs. 1200-1700. 6. It is better to state what happened thereafter in the language of the counter-affidavit filed on behalf of the Commission sworn by one of its assistants in the office. It is stated in the last sub-paragraph of paragraph 3 as follows:- "The Commission examined all the aspects with reference to the Rules embodied in notification no. 1923 D dated 9.7.1945 and in their letter no. D/Prc-1012/68(325)PSC/C dated 19.11.1968 recommended Dr. J.N. Mishra for appointment to the post of Director of Agriculture, Bihar. A copy of this letter is enclosed marked as Annexure 'D'." It is necessary to quote the language of the letter (Annexure 'D') also it reads thus :"The Commission recommend Dr. J.N. Mishra as suitable for appointment to the post of Director of Agriculture, Bihar. 2. The confidential character rolls received in this connection [as per list enclosed) are returned which may please be acknowledged." In this regard, there is nothing further in the counter-affidavit filed on behalf of the State of Bihar, respondent no.1. I think I ought to mention one fact at this very stage. In paragraphs 18 and 24 of the petition, the petitioner has claimed that he had no ad verse remark in his character roll at any time and that his record of service was unblemished. N one of the respondents has denied this assertion of the petitioner in their counter-affidavit. The State of Bihar has not said or annexed the copy of any character roll of the' petitioner to show that at any time there was any adverse remark against him. In such a situation, it was not clear to us as to on what basis the Commission recommended the name of respondent no. 2 and not that of the petitioner, specially when the seniority was Got determined by the State Government. In such a situation, it was not clear to us as to on what basis the Commission recommended the name of respondent no. 2 and not that of the petitioner, specially when the seniority was Got determined by the State Government. The statement made on behalf of the Commission either in their counter-affidavit or in their letter (Annexure 'D') was too vague and indefinite to indicate that the Commission had recommended the name of respondent no. 2 on a comparison of the respective merits of his and the petitioner. We confronted the learned Government Pleader with this aspect of the matter. Upon this, he stated before us during the course of the hearing of the writ case yesterday that he had called for the relevant file from the Commission and would place it before us to show if the nothings in the file at all would show that the recommendation of respondent no. 2 in preference to the claim of the petitioner was made on the basis of their comparative merit. The file from the Commission was placed for our perusal yesterday, which was perused by Mr. Radha Raman; learned counsel for respondent no. 2 also. I need not state in detail the facts noted in the file. But, in order to be satisfied on what basis the name of respondent no. 2 was recommended by the Commission, it is necessary to refer to some facts from the file which speak for themselves. Shri A.N. Choudhuri, who, we were informed at the Bar, is Sectional Officer in the Commission, gave his long note on the 14th of October, 1968 to the Secretary. His note makes out a case of seniority for respondent no. 2 and then points out that since the Government have not decided "the seniority of the officers whose names have been forwarded by them for appointment to the post of Director of Agriculture, it was for the Commission to decide if they would adhere to their previous decisions and ask the Government to decide the inter se seniority of the officers first and would render their advice on that basis thereafter. Attention was also drawn to the character rolls of the sixteen officers whose names had been forwarded by the State Government in September, 1968. Attention was also drawn to the character rolls of the sixteen officers whose names had been forwarded by the State Government in September, 1968. The Secretary, thereafter, addressed a note to the Chairman and Members of the Commission stating therein that in the post the post of the Director of Agriculture had always been filled up by promotion of the senior most officer eligible in the Agriculture Department. It was also stated therein that the Commission might decide how far it would be fair to select an officer to fill up the post of the Director of Agriculture ignoring the question of seniority of officers. Out of the examples given in the note of Shri A. N. Choudhuri, the Chairman had noted the case of Dr. J. S. Patel who had in the past been appointed to the post not on the basis of seniority, but he seems to have agreed in regard to the other examples of appointment to that selection post on the basis of seniority. The Chairman, thereafter, noted on the 18th October, 1968, that he wondered as to why the Government had not adopted the straightforward course of advertising the post. Opinion was sought from another Member of the Commission who opined that the course adopted by the Government was not against the rules. The matter was discussed in the meeting of the Commission on the 30th October 1968. It seems from the further note in the file addressed to the Secretary that some adverse remarks against respondent no. 2 were standing in his way. A decision, therefore, was not taken on the 30th October, 1968, and some correspondence ensued between the Commission and the Government. On the 2nd November, 1968, the State Government wrote a letter to the Secretary of Commission stating therein which letter is in the file produced by the learned Government pleader that adverse remarks against Dr. J. N. Mishra' for 1962-63 and 1963-64 bad been expunged in Government Order No. 1312 dated the 24th September, 1968, and only the following remarks stood in his confidential character roll for the above two years, and that remark is : "An average type of officer." On the basis of this letter the same remark has been quoted in the note dated on or about the 8th of November, 1968, addressed to the Secretary. Thereafter, the matter was again discussed in the meeting of the Commis5ion on the 19th November, 1969, and the order recorded on that date, signed by the Chairman and Members of the Commission, reads thus : "Dr. J. N. Mishra may be recommended for appointment as Director of Agriculture." Nowhere in the file, there is any mention of any adverse remark against the petitioner. Nowhere in the file, there is any noting of the comparative merits of the petitioner and respondent no. 2. Nowhere in the file, it is stated that on a consideration of their respective merits, apart from the question of seniority, the Commission had come to the conclusion that respondent no. 2. was definitely superior in merit to the petitioner. The vague matter, therefore, as depicted in the counter-affidavit, became clear on production of the file of the Commission, and it seems from the nothings in the file, that though the Government had not determined the seniority inter se of the officers whose names had been forwarded by them, the Commissioner, perhaps, on the footing of the notes made by Shri A. N. Choudhuri on the 14th October, 1968, thought respondent no. 2 to be senior to the petitioner, and, on that account, brushing aside the adverse remarks against him or even the remark of Ian average officer' against him recommended his name for appointment to the post of Director of Agriculture. It is regrettable that the Government abdicated its function of determining the seniority of officers before recommending the names for consideration by the Commission. The two stages of the respective contentious matter for determination of the seniority of the petitioner vis-a-vis respondent no. 2 were there as alluded by me above. But, here I would point out that in the note dated the 10th October, 1967, of the Secretary of the Agriculture Department of the Government of Bihar, a copy of which is Annexure 10' - to the affidavit-in-reply filed by the petitioner, a case had been made out by him that the petitioner was senior to respondent no. 2, and on that basis the Secretary had. recommended that the former should be given salary in the pay scale of Rs. 1200-1700 With effect from the 12th March, 1966, the date from which respondent No. 2 had been drawing salary in that scale. 2, and on that basis the Secretary had. recommended that the former should be given salary in the pay scale of Rs. 1200-1700 With effect from the 12th March, 1966, the date from which respondent No. 2 had been drawing salary in that scale. There is another note of the Secretary of the Agriculture Department of the same date, that is, 10th October, 1967, a copy of which is Annexure 15 to the writ application, showing that in his opinion Dr. J. N. Mishra could not be considered senior to Shri R.S. Roy, I fail to understand what was the difficulty in the way of the State Government in determining the seniority of the petitioner vis-a-vis respondent no. 2. It was for them to take into consideration all the relevant rules or the departmental instructions and other relevant factors for determination of the question; but they ought not to have evolved a hybrid procedure as I shall presently show which they adopted for filling up the highest departmental post in the Department of Agriculture, namely, the post of Director of Agriculture. Instead of adopting the straightforward course of determining the seniority and then forwarding the names of the officers, as remarked by the Chairman of the Commission, the note (Annexure L) by the Secretary of the Agriculture Department on the 10th September, 1968, was that there were four courses open to the Government to fill up the post : “(a) Direct recruitment by advertisement on All India basis; (b) by promotion of the senior most suitable officer holding a special or higher or super time scale post; (c) by promotion of a suitable officer from among those holding super time scale posts, but on the basis of their erstwhile inter se seniority in Bihar Agriculture Service, Class I, before they were substantively appointed to super time scale posts; and (d) Limited direct recruitment from among officers, who holding super-time scale posts, without any reference to the question of seniority and merely on the basis of merit and suitability for the post of Director of Agriculture." The suggestion (a) was ruled out on the ground that it would take a lot of time. The second suggestion (b) was also ruled out on the ground that in absence of the rules, which were under preparation, seniority could not be determined of the officers holding super time scale post and as such it was not thought legitimate to make the appointment on the basis of the seniority of the officers in Class J; and, thus eliminating suggestion (c), a hybrid and a new procedure was suggested to make the appointment terming it as 'Limited direct recruitment' ; but this was, as the note indicates, solely on the basis of merit and suitability for the post. That is to say, the suggestion was that the appointment should be made on the merit and merit alone. This note was accepted by Shri M. S. Rao on the 12th September 1968, the then Adviser to the Governor, as by that time the (sic) State was under President's rule, and he agreed that for appointment to this selection post merit and suitability should be the main criteria and not the seniority. It appears that thereafter the letter (Annexure 'c' or Annexure 6') was sent by the State Government to the Commission in September, 1968. 7. I shall now advert to the relevant rules for appointment to the services in the Agriculture Department including the post in question. In exercise of the powers conferred by the All-India Services (Transferred Departments) Replacement Rules and certain rules of the Civil Services (Classification, Control and Appeal) Rules, the Government of Bihar and Orissa made the rules on the 11th of April, 1935, to regulate the conditions of service, pay, allowances and pension of the Bihar and Orissa Agricultural Service, Class I. After stating in Part II the cadre posts which numbered ten only at that time, it was stated in Part III that the recruitments to the service (that means Class I) shall be made by the local Government either by direct recruitment or by promotion. Rule 14 of Part V-which part dealt with the question of pay-stated: "Seniority in the service shall be determined by the date of the officer's substantive appointment to the service irrespective of the pay drawn by him". Rule 14 of Part V-which part dealt with the question of pay-stated: "Seniority in the service shall be determined by the date of the officer's substantive appointment to the service irrespective of the pay drawn by him". I may make one thing clear here that this rule was made for determining the seniority of the members of the service which, according to Rule l(a), meant the Bihar and Orissa Agricultural Service, Class I. It was argued on behalf of the petitioner that this rule will be relevant for determining the seniority of the petitioner and respondent no. 2 even with respect to their appointments in the special pests; but, in my opinion, in terms, for the reasons just stated, this rule will not apply. In Part VII of the 1935 Rules, Rule 16 runs thus: "The post of the Director of Agriculture shall remain outside the cadre of the service, but subject to the provision of Rule 17 below it may be filled at the discretion of the local Government by a member of the service." I need not quote Rule 17 which merely provides that if a member of the Indian Agricultural' Service was available, he ought to be appointed to the post of the Director of Agriculture. 8. Then came the rules on the 9th July, 1945, framed by the Governor of Bihar in exercise of his powers under Clause (b) of Sub-section (1) of Section 241 of the Government of India Act, 1935. These rules were for the regulation of recruitment to the Bihar Agricultural Service Class I, the Bihar Agricultural Service Class n, the General Provincial Service and special posts outside these cadres. Rule 2 of 1945 Rules runs thus: "Appointment to the Bihar Agricultural Service (Class I), the Bihar Agricultural Service (Class II), the General Provincial Service and specialist posts outside .these cadres shall be made- (a) by direct recruitment in accordance with the rules in Part II, or (b) by promotion or transfer of officers already in the service of Government in accordance with the rules in Part III." The word 'specialist' occurring in Rule 2 in the notification dated the 9th July, 1945, in my opinion, is obviously a mistake for the word 'special'. The same phrase which occurs in the preamble of the rule was being quoted in Rule 2. The same phrase which occurs in the preamble of the rule was being quoted in Rule 2. It was not the intention of Rule 2 as was argued on behalf of respondent no. 2 that this was meant for the post of the specialist possessing some special skill or technical knowledge of agriculture. All kinds of special posts outside the cadre were meant to be covered by the rules framed in 1945. whether they were posts of specialists outside the cadre or they were the general administrative special posts. Under Rule 3, the Governor, that is, the State Government had to decide whether a particular post would be filled by direct recruitment or by promotion. After deciding this, the procedure prescribed in Part II was to be followed if it was a case of direct recruitment, or, the procedure prescribed in Part III was to be followed if the posts were decided to be fined up by promotion of officers already in Government service. In my opinion, the stand taken on behalf of the State of Bihar or respondent no. 2 that in spite of the framing of the 1945 Rules the post of the Director of Agriculture had to be filled up at the discretion of the State Government in accordance with Rule 16 of the 1935 Rules is not correct. In the first instance, it is to be pointed out that the preamble of 1935 rules would indicate that the rules were meant to regulate the conditions of service, etc. of Class I service only. In absence of the rules prescribing as to how the appointment to the post of Director of Agriculture was to be made, the State Government at that time had the discretion to fill up the post whether Rule 16 was there or not. It was not necessary to confer such a power on the State Government then by Rule 16; but by way of abundant precaution such power was conferred, specially for the purpose of making it obligatory for the State Government to appoint a member of the Indian Agricultural Service, the members of which service were available at that time. The rules made in 1945 were specially for the - purpose of regulating recruitment to the Bihar Agricultural Service, Class I or Class II and for recruitment to the General Provincial Service or special posts outside the cadre. The rules made in 1945 were specially for the - purpose of regulating recruitment to the Bihar Agricultural Service, Class I or Class II and for recruitment to the General Provincial Service or special posts outside the cadre. I have no doubt in my mind that the rules framed specially for this purpose in 1945 must by necessary implication be held to have superseded and repealed Rule 16 of the 1935 Rules. If I were to hold that the power of the State Government is so bald or unbridled as provided in Rule 16 up to the present time, I would have no difficulty in striking out such a rule as being violative of Articles 14 and 16 of the Constitution. But I am relieved of adopting that course in this case as I am definitely of the view that the rules which are in force now for recruitment to the special posts including the post of the Director of Agriculture are the rules framed in 1945 which are still in vogue unless they are superseded or revised by an Act or Rules made under Article 309 of the Constitution. 9. Rules 12, 13 and 14 occurring in Part III of 1945 Rules run as follows : "12. Whenever the Governor decides that a vacancy shall be filled by promotion or transfer of an officer already in the service of Government, a reference shall be made to the Commission to advise on such selection. The Commission shall be supplied with the records of the officer nominated for promotion by the Director of Agriculture together with the records of officers, if any, who are senior to the nominated officer. 13. When a reference is made to the Commission under Rule 12, the Commission shall advise the Governor in respect of each officer- (i) whether his qualifications are sufficient, and (ii) whether his record proves him to have the requisite character and ability for the service or post to which it is proposed to appoint him. 14. The final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by the Commission under Rule 13." 10. Rule 12 is slightly defectively worded. Reading Rules 12 and 13 together, it would, however, be clear that the scheme of Part III is that when the. 14. The final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by the Commission under Rule 13." 10. Rule 12 is slightly defectively worded. Reading Rules 12 and 13 together, it would, however, be clear that the scheme of Part III is that when the. State Government decide that a vacancy shall be filled in by promotion of an officer already in Government service, an officer or more than one shall be nominated for promotion if there are more vacancies by the State Government, and then the Director of Agriculture shall supply the Commission with the records of the officer or officers nominated for promotion together with the records of officers, if any, who are senior to the nominated officer. The Commission shall advise the State Government in respect of each officer if there are more vacancies than one and in respect of the officer if there is only one vacancy whether his qualifications are sufficient and whether he is suitable to be appointed. The nomination for promoting cannot be made by the Director of Agriculture as the language of Rule 12 indicates. If the word 'nomination' were to mean the forwarding of the names only of officers who are to be considered by the Commission under rule 13, still it is the duty of the State Government to forward such names either by nomination or in a general way as they think fit and proper. The interpretation suggested on behalf of respondent no. 2 that it is the Director of Agriculture who is to do the nomination and, therefore, the post of the Director of Agriculture is outside Rule 12 is not acceptable to me. Even assuming first part of the submission to be correct, I have no doubt in my mind that Rule 12 covers the case of appointment to the post of Director also and if the nomination for promotion to the post is being made before his retirement, it may well be that he may nominate the officers for promotion to that post, acting on behalf of the State Government and then the Commission may thereafter consider the names so forwarded by the State Government. But, out of the two interpretations, the sensible and reasonable interpretation is to say that the nomination for promotion in whatever sense it may be has to be made by the State Government, because when reference is made to the Commission under Rule 12, the Commission has to send their advice to the Governor, namely, the State Government, in respect of each officer. The final selection of the officer to be promoted, of course, lies with the Governor, after considering the recommendations made by the Commission under Rule 13. 11. Rule 12 clearly indicates that seniority is a matter to be taken into consideration when the vacancy is to be filled up by promotion, but that is not the sole criterion. The main criterion seems to be the merit, but not ignoring the seniority. If there are officers of equal merit, naturally the one who is senior is to be appointed to the post. The matter of filling up the special post (which at time in some of the nothings has been characterised as selection post), ought not to have been dealt with by the State Government in the manner they have done. They merely forwarded the names of fourteen officers without indicating their view as to who was fit to be appointed in their opinion. Ignoring even that, the failure of the State Government to determine the seniority inter se of the officers recommended by them has caused ample prejudice to the officers concerned including the petitioner. In absence of such seniority, the criterion ought to have been merit and merit alone even assuming that it was legitimate to do so; but that was also not followed by the Commission or by the State Government. As I have stated above, the name of respondent no. 2 was picked up by the Commission, as it appears, mainly on the basis of his supposed seniority to the petitioner, or if it is not so, then I am constrained to say that it was picked up arbitrarily and without any basis. The procedure of 'limited direct recruitment' followed by the State Government was not warranted by 1945 Rules, which are statutory rules. The phrase was coined by the State Government to do away with their failure to determine the seniority before forwarding the names of the officers to the Commission. The procedure of 'limited direct recruitment' followed by the State Government was not warranted by 1945 Rules, which are statutory rules. The phrase was coined by the State Government to do away with their failure to determine the seniority before forwarding the names of the officers to the Commission. Perhaps, if I would have been satisfied that the recommendation of the Commission and the appointment made by the Governor have been on the basis of the merit and merit alone thinking that decidedly respondent no. 2 was superior in merit to the petitioner, I would have thought of persuading myself not to interfere in this case for the violation of Rule 12 in that the State Government recommended the names of the officers without determining the seniority inter se. But the wind, as it appears from the facts discussed above, Stems to have blown the other way. It will bear repetition to say here that en the facts, as they stand, there was no adverse remark in the character roll of respondent no. 2. The remarks, as they were, were subsequently expunged by the State Government on the 24th of September, 1968, just near about the date when the letter (Annexure 'C') was written to the Commission and still then the remark which remained against him was to the effect that he was (an average officer'. In such a situation, it is difficult to hold in this case that the appointment of respondent no. 2 has been fair and impartial and there has been no denial of equal opportunity to the petitioner in the matter of his promotion which is undoubtedly a question in relation to his employment within the meaning of Article 16 of the Constitution. 12. As against the procedure which was adopted by the State Government for appointment to the post of Director of Agriculture neither by promotion within the meaning of Part III nor by direct recruitment within the meaning of Part II of the 1945 Roles but by a procedure of limited direct recruitment impugned notification dated the 19th August, 1969 (Annexure 12') shows that while forwarding a copy of the said notification appointing respondent no. 2 temporarily as Director of Agriculture in the scale of pay of Rs, 1850-100-2250, it was stated that "the appointment of Dr. Mishra to the post of Director of Agriculture, Bihar, has been made by direct recruitment,". 2 temporarily as Director of Agriculture in the scale of pay of Rs, 1850-100-2250, it was stated that "the appointment of Dr. Mishra to the post of Director of Agriculture, Bihar, has been made by direct recruitment,". To say the least, it is surely an untrue statement. The appointment was not made by direct recruitment by advertising the post and adopting all the procedure prescribed in Part II, In effect, really, it was not a case of direct recruitment at all. It was a case of promotion ignoring the seniority but professing to make the appointment on merit alone which professing also, on scrutiny, has been found to be in air. 13. 'In the result, the application is allowed, and the order. of the State Government contained in the Government notification dated the 19th August, 1969 (Annexure 2') appointing respondent no. 2 as Director of Agriculture, Government' of Bihar, is quashed, as being violative of Article 16 of the Constitution in so far as it relates to the case of the petitioner. Respondent no, 1 is directed to determine as soon as possible the seniority of the officers whom they think fit for being appointed to the post of Director of Agriculture make the nomination in accordance with Rule 12 occurring in Part III of 1945 Rules and then to send such name or names to the Commission for their consideration in accordance with Rule 13 and thereafter the Government should make the appointment afresh under Rule 14 occurring in Part III of 1945 Rules. It is neither necessary nor perhaps legitimate to quash the recommendation of the Bihar Public Service Commission contained in their letter (Sic) (Annexure CD'). When the appointment made by the State Government goes (Sic), in pursuance of the direction issued to them, they have to takes steps in accordance with law in the light of this judgment. There will be no order as to costs. Application allowed.