ANANT KUMAR POLEKAR v. STATE OF M P — 1975 DIGILAW 32 (MP)

JUDGMENT : ( 1. ) THIS is a petition under Articles 226 and 227 of the Constitution of India, praying for a writ of mandamus directing the State of Madhya Pradesh to appoint the petitioner to the post of civil Judge, Class II, in the M. P. State Judicial Service and a writ of quo warranto quashing the appointment of respondents 4 to 14 as civil Judges as also a writ of mandamus about giving the petitioner his seniority in the merit list. ( 2. ) BY a notion, dated 3-4-1970 (Petitioners Annexure A), the Public Service Commission invited applications for the posts of twenty-five civil Judges or more. In the notification it was stated that selection would be made in accordance with Madhya Pradesh State Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. Accordingly, the Public service Commission held interviews and prepared a list in order of merit (Petitioners Annexure B, dated 2-9-1971 ). It was decided by the State Government that as per the requirements specified by the High Court, seventy four appointments to the posts of civil Judges would be made. The Public Service Commission had prepared the list in order of merit. Candidates Nos. 1 to 50, who stood in the interview in order of merit were straight-way selected for appointment. The Public Service Commission had also prepared a reserved list in order of merit. The petitioners name stood at serial No. 26 in the said reserved list in order of merit. The State Government appointed candidates Nos. 1 to 17, out of the reserved list in order of merit. For the sake of convenience, we shall describe the said list as merit list and reserved list respectively. As regards the remaining 7 candidates, the State Government did not appoint them according" to the serial numbers in order of merit, but appointed respondents 4 to 10, who were members of the Schedule Castes and who in the reserved list stand at serial nos. 44 to 50. Respondent 10, Vijaysinghs name was directed to be struck out as per the order of this Court, dated 24-7-1974. Consequently, the petitioners main grievance is against the appointment of respondents 4 to 9, who stood last in the reserved list in order of merit and who inspite of that fact, were appointed civil Judges. 44 to 50. Respondent 10, Vijaysinghs name was directed to be struck out as per the order of this Court, dated 24-7-1974. Consequently, the petitioners main grievance is against the appointment of respondents 4 to 9, who stood last in the reserved list in order of merit and who inspite of that fact, were appointed civil Judges. The petitioners contention is that in the merit list 12 members of the Schedule Castes and Scheduled Tribes had already been included and, therefore, there was no reason to appoint more members from that category. As regards reservation of seats, the State Government had fixed the quota of three seats for Scheduled Castes and eight seats for Scheduled Tribes totalling II out of 25 seats. That was the original plan of the State Government. If, 74 appointments were actually made, the quota of reserved seats for Scheduled castes and Scheduled Tribes would be 9 and 24 respectively-totalling 33. Not 75, but 74 candidates were ultimately appointed and, therefore, one seat out of the reserved seat would have to be reduced, Therefore the quota for Scheduled Castes and Scheduled Tribes would be 8 and 24 or 9 and 23 respectively, totalling 32. As 12 candidates belonging to Scheduled Castes and Scheduled tribes had already come up successfully in the merit list of first 50 candidates, the State Government thought of appointing the remaining candidates from the reserved list. However, it appears that the State Government could not get any one out of the Scheduled Tribes and consequently, 7 candidates, who stood in the bottom in the reserved list, were appointed in those seats reserved for scheduled Castes and Scheduled Tribes. One of the contentions raised on behalf of the petitioner is that reserved seats for the Scheduled Caste s and Scheduled Tribes cannot be treated as inter-changeable and the most, nine candidates belonging to the Scheduled Castes should have been appointed. But eight members of the Scheduled Castes and four members of the Scheduled Tribes have been appointed out of the merit list and seven candidates belonging to the scheduled Castes have been appointed out of the reserved seat. Thus, the seats given to the members of the Scheduled Castes total 15 ; while those given to the scheduled Tribes total 4. Thus, the seats given to the members of the Scheduled Castes total 15 ; while those given to the scheduled Tribes total 4. As regards this contention is concerned, we may observe that there is nothing wrong in making reserved seats for Scheduled castes and reserved seats for Scheduled Tribes inter-changeable if the State government is unable to get candidates for any particular category. Such reserved seats can be inter-changeable and at any rate, candidates from the non-reserved seats cannot claim any of those reserved seats. Thus, it is immaterial whether out of the reserved seats, either Scheduled Castes or Scheduled Tribes got more quota than is actually reserved for them. This may happen on account of candidates not being available and it is members of the reserved seats category alone, who might be able to raise a grievance in that behalf. Such a grievance cannot be raised by a member belonging to non reserved seats. In fact the total number of reserved seats for Scheduled Castes and Scheduled Tribes would be 32; while actually 19 candidates only (15 belonging to Scheduled Castes and 4 belonging to Scheduled Tribes) were appointed by the State Government. Thus, the quota of reserved seats for Scheduled Castes and Scheduled Tribes was much below the number fixed and in no case, was it exceeded while making the appointments. We are of the opinion that the petitioner can have no grievvance in this behalf. ( 3. ) THE learned counsel for the petitioner urged that when the Public service Commission had made lists in order of merit, the State Government was bound to appoint candidates in order of merit and appointments of candidates, who stand at the bottom of the reserved list, was unconstitutional and illegal. In this connection we might observe that Article 16 (4) of the Constitution of india permits reservation of seats in favour of any backward class of citizens. Sub-clause (4) of Article 16 provides that nothing in this Article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Sub-clause (4) of Article 16 provides that nothing in this Article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Moreover, Article 335 of the Constitution provides as under: "article 335-The claims of the members of the Scheduled Castes and the Scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to the services and posts in connection with the affairs of the Union or of a State. "While reserving seats for members of Scheduled Castes and Scheduled Tribes, there would be no question of considering the maintenance of efficiency of administration so far as selection of 12 candidates out of the merit list was concerned. Those 12 candidates were selected on their own merits and not because of the fact that they happened to be members of the Scheduled Castes or Scheduled Tribes. The question would only be regarding the seven candidates, who stood at the bottom of the reserved list. We may observe that although at the bottom, they were considered suitable by the Public Service Commission as being fit for selection, it may be that they may have been at the bottom of the reserved list. Giving them preference would be perfectly permissible by virtue of Article 16 (4) of the Constitution and we do not think that Article 335 of the Constitution can be said to have been violated in case of the seven candidates, who stood at the bottom of the reserved list. Of course, if those seven candidates were not at all qualified or if they had not been included in the reserved list in order of merit, then the position might have been different and it could be urged on behalf of the petitioner that their selection was in violation of Article 335 of the Constitution of India. But that plea is not available as those geven candidates were actually selected by the Public Service Commission and were put at the bottom of the reserved list. Therefore, this attack on the appointment of respondents 4 to 9 fails. ( 4. But that plea is not available as those geven candidates were actually selected by the Public Service Commission and were put at the bottom of the reserved list. Therefore, this attack on the appointment of respondents 4 to 9 fails. ( 4. ) THE next contention raised on behalf of the petitioner was that the m. P. State Judicial Services (Classification, Recruitment and Conditions of service) Rules, 1955, do not survive after the Reorganisation of States as the state Government did not adapt them for the entire State of new Madhya Pradesh, as required by section 120 of the States Reorganisation Act, 1956. Section 120 of the States Reorganisation Act, 1956, is as under: "section 120.-Power to adapt laws.-For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of part II, the appropriate Government may, before the expiration of one year from the appointed day, by order make such adaptations and modifications of law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation-In this section, the expression "appropriate Government" means- (a) as respects any law relating to a matter enumerated in the Union List, the Central government; and (b) as respects any other law, (i) in its application to a Part A State, the State Government, and (ii) in its application to a Part C State, the Central Government. " ( 5. ) IT is true that no action was taken by the State Government as required by the said section. Consequently, so far as the Judicial Services are concerned it can at the most be urged on behalf of the respondents that the m. P. State Judicial Services (Classification, Recruitment and Conditions of service) Rules, 1955, would survive so far as the Mahakoshal Region is concerned. But even so, we find that the said rules would become unworkable and, therefore, the question arises whether by adapting such rules by an executive action, the State Government acted in contravention of any provision of the Constitution of India. The further question arises whether the State government can appoint persons to posts under its control in the absence of such rules. The further question arises whether the State government can appoint persons to posts under its control in the absence of such rules. Article 309 of the Constitution of India, provides as under: "article 309.-Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the governor -. . . . . of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act. " ( 6. ) THE power of framing such rules regarding recruitment and conditions of service vests in the Pailiament regarding services in the Central Government and the State Legislature regarding services under the State. Until the Parliament or the State Legislature by legislation provide for such rules, the President, in the case of Union of India, and the Governor, in the case of a State, are empowered to frame such service rules. Such rules, if framed, would have a constitutional basis. But, can it be said that if such rules have not been framed, the executive authorities would be incompetent to make any appointments whatsoever. ( 7. Such rules, if framed, would have a constitutional basis. But, can it be said that if such rules have not been framed, the executive authorities would be incompetent to make any appointments whatsoever. ( 7. ) IN this connection we might advert to Article 162, of the Constitution of India, which is as follows : "article 162.-Subject to the provisions of this Constitution, the executive power of a state shall extend to the matters with respect to which the Legislature of the State has power to make laws: provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. " The executive power of the State extends to all such matters in respect of which the Legislature has the power to enact legislation. Therefore, the executive authority would be competent to frame rules or instructions for guidance in respect of service conditions in case the Parliament or the State Legislature has not made any provision in this behalf. It is open to the State Government in the present case to adapt such defunct rules in a modified form, even though no action under section 120 of the States Reorganisation Act, 1956, might have been taken by applying those rules to the other regions of the new State. Therefore, if the Public Service Commission in its advertisement (petitioners Annexure A) in pursuance of the decision of the State Government to adapt the m. P. State Judicial Services (Classification, Recruitment and Conditions of service) Rules, 1955, in a modified form mentioned in the said rules, we do not find anything wrong in that behalf. It is true that Article 234 of the Constitution provides for recruitment of members of the subordinate Judicial Services other than District Judges in accordance with rules made by the Governor in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. It is true that Article 234 of the Constitution provides for recruitment of members of the subordinate Judicial Services other than District Judges in accordance with rules made by the Governor in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. The said Article is as follows: "article 234.-Appointments of persons other than District Judges to the Judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. " Therefore, if such rules have been made either by the Legislature or by the governor, the appointments to subordinate Judicial services can be made in accordance with the rules only. If, however, there be no rules, the executive can exercise that power by adapting instructions for guidance in exercise of its executive power conferred by Article 162 of the Constitution, which would be co-eval with the legislative power of the Parliament or the State Legislature. Therefore, we do not find anything wrong if in the absence of such rules, the state Government adapted the M. P. State Judicial Services (Classification, recruitment and Conditions of Service) Rules, 1955, in a modified form and made appointments to subordinate Judicial service in accordance with such rules adapted in a modified form. We do not see any contravention of Article 234 of the Constitution of India. The only question will be whether the State Government consulted the High Court and Public Service Commission in the matter of adaption of the said rules in a modified form. ( 8. ) THE learned counsel for the petitioner invited attention to the observations of a Division Bench of the Rajasthan High Court in Rajvi Amarsingh v. State of Rajasthan, AIR 1956 Raj. 104. wherein it was laid down that appointments of District judges, Senior Civil and Additional Sessions Judges and Civil Judges and munsiffs, notified by Notification, dated 23-4-1951, being contrary to the provisions of Article 234 and Article 233 read with Article 236 of the Constitution of India, were unconstitutional. They were, however, deemed to be ad hoc appointments until machinery was created by the Government for recruitment and appointments according to the provisions of the Constitution. They were, however, deemed to be ad hoc appointments until machinery was created by the Government for recruitment and appointments according to the provisions of the Constitution. It was further held that Article 309 of the Constitution of India would be subject to the provisions of Articles 233 and 234 of the Constitution and that recruitment would be made in accordance with the rules referred to in Article 234 of the constitution. ( 9. ) IN N. Kevasahavam v. State of Madras AIR 1958 Mad. 53 . , a single Bench of the Madras high Court held that the appointments made without consulting the Public service Commission as required by Article 234 of the Constitution could not be upheld but the defect could be cured by interview and selection by the Public service Commission. The learned Judge of the Madras High Court was of the opinion that consultation is to be done with reference to the appointment and not with reference, to the rules to be framed under Article 234 of the Constitution. In this connection we might observe that what is necessary is consultation with the High Court and the Public Service Commission in the matter of framing rules for recruitment and not that each appointment should be the subject-matter of consultation with the High Court and the Public Service Commission. We are unable to accept that interpretation of the learned Judge of the Madras high Court. However, the learned Judge also held that substantial compliance with the requirements of Article 234 of the Constitution would be sufficient. We would agree with that part of the view expressed by the learned Judge. ( 10. ) FOR the view that we adapt, we find support from the view of the division Bench of the Mysore High Court in K. N. Chandrasekhara v. State of mysore AIR 1963 Mys. 292. , wherein, although the question was not directly involved, but the tenor of judgment indicates that what is necessary is consultation with the Public service Commission and the High Court and the matter of framing rules as required by Article 234 of the Constitution of India. It was further held that article 309 of the Constitution would be subject to the provisions of Article 234 of the Constitution. It was further held that article 309 of the Constitution would be subject to the provisions of Article 234 of the Constitution. Further support is to be found from the fact that there is a long standing practice obtaining in this High Court, right from the old days, whereunder the High Court has never tendered any advice in the matter of appointment of subordinate Judges after selection by the Public Service Commission. What the High Court has been doing is that it gives advice regarding rules of recruitment framed by the Governor, as required by Article 234 of the constitution and as empowered by the proviso to Article 309 of the Constitution. Such rules cannot be finalised without consulting the Public Service Commission and the High Court. However, in the present case there are no rules, which have survived the Recognisation of States. What the Government did was to adapt the Madhya Pradesh Judicial Services Rules, 1955, and that was done in consultation with the High Court and the Public Service Commission. Consequently, we do not find any flaw in the matter of adaption of those rules in exercise of executive powers as conferred by Article 162 of the Constitution and appointments could be made by the Governor through the medium of the public Service Commission as the said action of the Governor had approval of the High Court and the Public Service Commission. ( 11. ) THE learned counsel for the petitioner invited attention to the pronouncement of their Lordships of the Supreme Court in C. Channabavavaith v. State of Mysore and others AIR 1965 SC 1293 . In that case some candidates who had obtained less number of marks and some of whom had not appeared for the viva voce test at all were selected in preference to others, who stood higher in order of merit. Their Lordships of the Supreme Court laid down that such selection could not be sustained. In our opinion, that is not the situation obtaining in the present case. No candidate, who does not stand in the merit list was selected for appointment. The only appointments, which are challenged were those of seven members of the Scheduled Castes, who stood at the bottom of the reserved list. In our opinion, that is not the situation obtaining in the present case. No candidate, who does not stand in the merit list was selected for appointment. The only appointments, which are challenged were those of seven members of the Scheduled Castes, who stood at the bottom of the reserved list. We may observe that it was not that they were not in the selection list at all, but they were at the bottom of the reserved list. It was open to the government to reserve seats for members of backward classes and consequently we do not think that the selection of those seven candidates belonging to Scheduled Castes can be challenged on the ground of discrimination under Articles 14, 15 or 16 of the Constitution. Such a reservation was perfectly constitutional as being within the ambit of Article 16 (4) of the Constitution of India. ( 12. ) WE may further advert to the pronouncement of their Lordships of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh AIR 1966 SC 1987 , wherein their lordships, with reference to Article 233 of the Constitution, held that consultation with the High Court was essential for appointment of District Judges and as the U. P. Higher Judicial Service Rules for recruitment of District Judges contravened Article 233 of the Constitution, the appointments were illegal. Applying the same analogy, consulation as per Article 234 of the Constitution would be mandatory, but only so far as framing of rules of recruitment are concerned and not that every appointment should have the concurrence of the High court and the Public Service Commission. Similar was the case in Prem Nath v. State of Rajasthan AIR 1967 SC 1599 . , wherein it was found that the Rajasthan Higher Judicial service Rules, 1955, were in contravention of Article 233 of the Constitution. For that reason it was laid down by their Lordships of the Supreme Court that appointments were invalid. However, the Parliament passed an Act amending the Constitution, where by Article 233-A was introduced, which validated such appointments. Therefore, it was only on the basis of Article 233-A of the constitution that the illegal appointments were deemed to have been validated by an amendment of the Constitution. ( 13. However, the Parliament passed an Act amending the Constitution, where by Article 233-A was introduced, which validated such appointments. Therefore, it was only on the basis of Article 233-A of the constitution that the illegal appointments were deemed to have been validated by an amendment of the Constitution. ( 13. ) WE may further advert to the pronouncement of their Lordships of the Supreme Court in R. N. Nagarajan v. State of Mysore AIR 1966 SC 1942 . , wherein their Lordships found that the Mysore Public Service Commission (Functions) Rules, 1957, were not statutory rules, but they had the status of administrative rules. Therefore, their Lordships were required to consider the question whether the appointments made under such executive rules were legal or otherwise. In the said case their Lordships observed as follows:- "it would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words shall be as set forth in the rules of recruitment of such service specially made in that behalf clearly show that till the rules are made in this behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Article 309 to make rules of recruitment, etc. before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41; State public Service. It was settled by this Court in Ram Jauaya Kapur v. State of Punjab AIR 1955 SC 549 = (1955) 2 SCR 755. , that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the powers of the executive to act under Article 162 of the Constitution without a law. We see nothing in the terms of Article 309 of the Constitution which abridges the powers of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or act". ( 14. ) THUS, there can be no doubt that even in the absence of statutory rules regarding recruitment, appointments can be made on the basis of rules or instructions, which have an executive status and this can be done by virtue of the powers conferred by Article 162 of the Constitution of India. ( 15. ) WE may further advert to the pronouncement of their Lordships of the Supreme Court in Ram Shartna v. State of Rajasthan AIR 1967 SC 1910 . , wherein their Lordships observed as follows: "we proceed to consider the next contention of Mr. N. C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. " In B. N. Nagrajan v. State of Mysore, it was pointed out by this Court that it is not obligatory under the proviso to Article 309 of the Constitution to make rules of recruitment, etc. " In B. N. Nagrajan v. State of Mysore, it was pointed out by this Court that it is not obligatory under the proviso to Article 309 of the Constitution to make rules of recruitment, etc. , before a service can be constituted or a post created or filled, and secondly, the State Government has executive power in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of Schedule 7, List II, Entry 41. State Public Service, and there is nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. A similar view was taken by this Court in T. Cajee v. U. Jormonik siem, AIR 1961 SC 276 = (1961) 1 SCR 750 . , where Wanchoo, J. (as he then was), who delivered judgment on behalf of the majority, observed as follows at page 281 of A I R. "the High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and a removal of a Siem was concerned. In this connection the High Court relied on para. 3 (1) (g) of the Schedule, which lays down that the District Council shall here the power to make laws with respect to the appointment and succession of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into para 3 (1) (g), than is justified by its language. Paragraph 3 (1) is in fact something like a legislative list and enumerates the subjects on which the District council is competent to make laws. With respect, it seems to us that the High Court has read far more into para 3 (1) (g), than is justified by its language. Paragraph 3 (1) is in fact something like a legislative list and enumerates the subjects on which the District council is competent to make laws. Under para 3 (1) (g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this fact that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. . . . . . . Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollory. The Constitution could not have intended that all administration in the autonomous district should come to a stop till the Governor made regulations under para 19 (1) (b) or till the District Council passed laws under para 3 (1) (g ). The Governor in the first instance and the District councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para 19 (1) (b) or laws are passed under para 3 (1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment, or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3 (!) (g) cannot be sustained. " ( 16. The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3 (!) (g) cannot be sustained. " ( 16. ) THEREFORE, there can be no doubt that appointments of Civil Judges by adoption of the M. P. Judicial Services (Classification, Recruitment and conditions of Service) Rules, 1955, in a modified form in exercise of executive power after due consultation with the High Court and the Public Service Commission, cannot be said to be illegal or unconstitutional and as per the authoritative pronouncement of their Lordships of the Supreme Court in the two cases mentioned above, namely, B. n. Nagarajan v. Stale of Mysore, Sant Ram Sharma v. State of Rajasthan and others, those appointments cannot be held to be invalid. In fact the petitioner has no case whatsoever. He stood at serial no. 26 in the reserved list. Therefore, even if it were to be assumed that in place of the members of the Scheduled Castes, who stand at the bottom of the reserved list, other candidates had to be selected, the number would come to 24 only and the petitioners number being at 26, he would have no chance of selection at all As already pointed out earlier by us, the selection of seven members of the Scheduled Castes, who stand at the bottom of the reserved list, cannot at all be challenged on any ground whatsoever. ( 17. ) CONSEQUENTLY, this petition is without merit and accordingly it is dismissed with costs. Counsels fee in this Court shall be Rs. 100. The outstanding amount of the security deposit after deduction of costs shall be refunded to the petitioner. Petition dismissed.