C. Murugan v. State of Kerala — 1981 DIGILAW 244 (KER)

JUDGMENT V. Khalid, J. 1. These three writ petitions argued at very great length involve the same questions to be decided and can be disposed of conveniently by a common judgment. Though O.P. No. 4169 of 1980 is the latest in point of time I prefer to refer to the exhibits produced in that case, most of which have been produced in the other petitions also since they have been chronologically marked in this original petition. The bone of contention in these cases is about a post designated as Assistant Director in the Bureau of Economics and Statistics, the rival claimants being persons advised by the Public Service Commission and those who expect to be promoted. This post of Assistant Director consists of two compartments, Economics and Statistics though the post is designated in the Rules governing its appointment, qualification, etc., as Assistant Director. 2. The Kerala Public Service Commission (hereinafter referred to as the Commission) called for applications as per Ext. P-1 to fill up four vacancies to the post of Assistant Director. The petitioners in O.P. No. 4169 of 1980, two in number, along with others applied to the Commission. After the necessary scrutiny and consideration in accordance with the procedure laid down the Commission prepared a rank list of candidates evidenced by Ext. P-2 which list came into force with effect from 28th March 1978. Ext. P-2 begins by saying that "the following is the list of candidates for the post of Assistant Director on Rs. 560-1100 in the Bureau of Economics and Statistics Department". This list, under the Rules, is valid for a period of two years and has, therefore, to expire on the midnight of 27th March 1980. Taking into account the Rule of communal rotation also the Commission advised serial Nos. 1, 2, 4 and 7 in that list for appointment. Since serial No. 4 did not join serial No. 5 was advised for appointment. The petitioners expected to be advised if further vacancies arose. The Special Rules governing the appointments to these posts were amended as per G.O. (P) No. 297/79/GAD., dated 18th May 1979 published in the Kerala Gazette, dated 12th June, 1979. A copy of this G.O. is produced and marked as Ext. P-3. The petitioners expected to be advised if further vacancies arose. The Special Rules governing the appointments to these posts were amended as per G.O. (P) No. 297/79/GAD., dated 18th May 1979 published in the Kerala Gazette, dated 12th June, 1979. A copy of this G.O. is produced and marked as Ext. P-3. Thereafter, the Government called for a report from the Bureau of Economics and Statistics regarding the total number of posts which arose since 3rd March 1967, the total number of posts filled up by promotion, the total number filled up by direct recruitment and the total number of posts which ought to be filled up by direct recruitment. The Administrative Officer in the Bureau of Economics and Statistics (for short the Bureau) sent to the Additional Secretary a D. O. letter Ext. P-4, dated 28th September 1979 making it clear that a total number of 16 posts had to be filled up by direct recruitment in the cadre in accordance with the recruitment rules. The Government did not fill the vacancies available from the list prepared by the Commission. As per Ext. P-5 order dated 23rd November 1979 the Government promoted a number of officers under R.31(a)(i) of the Kerala State and Subordinate Services Rules. Some of them are shown as respondents in this original petition. The petitioners waited for sometime expecting the Government to fill up the vacancies after reporting to the Commission so that they could get a berth in the department. They realised that the ranked list . Ext. P-2 was about to expire. The inaction on the part of the Government compelled them to move this court in O.P. No. 195 of 1980 for appropriate reliefs. This court decided that original petition by Ext. P-6 judgment expressing hope that the Government would do justice to the parties by reporting the vacancies to the Commission without any further loss of time. In the counter affidavit filed by the Government in that case it was stated that thirteen vacancies had to be filled up by direct recruitment. Ext. P-6 judgment was rendered on 20th March 1980 when there were only seven days more for Ext. P-2 list to lapse. The sentiments expressed by this court in Ext. In the counter affidavit filed by the Government in that case it was stated that thirteen vacancies had to be filled up by direct recruitment. Ext. P-6 judgment was rendered on 20th March 1980 when there were only seven days more for Ext. P-2 list to lapse. The sentiments expressed by this court in Ext. P-6 judgment alerted the Government and prompted them to act and a letter was addressed to the Secretary to the Commission by the concerned Secretary to the Government reporting six vacancies. Ext. P-7 is this letter dated 27th March 1980. This letter contained a specific request to the Commission to advise six candidates for appointment from the existing ranked list, the validity of which was to expire on 27th March 1980. Ext. P-7 indicated that the six vacancies about which advice was sought were those of Assistant Directors (Statistics) in the Bureau. This perhaps necessitated a clarification from the Government so far as the Commission was concerned. Therefore, on receipt of Ext. P-7 the Commission asked for a clarification as to whether advice was sought for the post of Assistant Director (Statistics) or not. The Government replied by Ext. P-8 dated 10th June 1980 requesting the Commission to advise six candidates from the existing ranked list to be appointed as Assistant Director in the Bureau without any further specification. 3. In the meantime, O.P. No. 1535 of 1980 was filed contending that there was need in the Bureau of Assistant Directors with Statistics qualification and that Ext. P-2 rank list had in fact lapsed and advice of those included in that list was contrary to law. The definite case put forward by him in that original petition is that he is a person holding Statistics qualification. According to him, the only alternative available to the Government was to notify the vacancies and to appoint him. Along with the application he moved for an interim relief. In that petition two of the petitioners in this original petition were impleaded. They filed C.M.P. No. 7884 of 1980 praying for an injunction to restrain the State Government from filling up the six vacancies reported to the Public Service Commission by making provisional promotions from feeder categories. This Court passed Ext. In that petition two of the petitioners in this original petition were impleaded. They filed C.M.P. No. 7884 of 1980 praying for an injunction to restrain the State Government from filling up the six vacancies reported to the Public Service Commission by making provisional promotions from feeder categories. This Court passed Ext. P-9 order in that civil miscellaneous petition permitting filling up the vacancies by direct recruitment from the rank list imposing a condition that such direct recruitment would be provisional and subject to the final result of O.P. No. 1535 of 1980. The Government without paying heed to Ext. P-9 passed Ext P-10, dated 30th June 1980 promoting respondents 12 and 13 provisionally as Assistant Directors. Thereafter the Commission advised the names of the petitioners for appointment as per Ext. P-11 dated 9th July 1980 and Ext. P-11 (A) of the same date. This prompted the petitioner in O.P. No. 2480 of 1980 to move this court with various reliefs. He is a Research Officer in the Bureau. The case put forward by him is that the advice made by the Commission as per Exts, P-11 and P-11(A) was from a list which had died - a natural death by efflux of time, that he has secured the prescribed qualification for the post, that he would be eligible to apply for direct recruitment if a fresh selection was made and that the appointment of the persons advised by the Commission was contrary to law. He filed C.M.P. No. 10404 of 1980 praying for a stay of all further action on the basis of the advice memo issued by the Commission. One of the respondents in that original petition moved C.M.P. No. 11054 of 1980 praying for an order of injunction to restrain the State Government from making further provisional promotions ignoring the advice given by the Commission. As per Ext. P-12 order this court disposed of both these petitions. This court vacated the interim stay initially granted giving freedom to the Government to decide how the posts should be filled up during the pendency of the original petition but with a direction that any appointment made either by direct recruitment or by promotion would be subject to the final result of that writ petition. Thereafter a few more vacancies of Assistant Director arose in the Bureau as is evident from Ext. P-13 and P-14. 4. Thereafter a few more vacancies of Assistant Director arose in the Bureau as is evident from Ext. P-13 and P-14. 4. By then a new development arose in the issuance of Ext. P-15 G.O. - G.O. (P) No. 401/80/GAD., dated 2nd September 1980 by which it was provided that direct recruitment would be resorted to only in the absence of suitable candidates for appointment for promotion. The petitioners' case is that Ext. P-15 G.O. is not retrospective in operation and that the amendment could operate only in respect of vacancies which arose subsequent to 2nd September 1980. Vacancies which arose prior to that date had to be statutorily filled up by maintaining the principle of 1:1 between promotees and direct recruits. Subsequently Ext. P-16 order was passed indicating that Public Service Commission recruits will be appointed only against future vacancies which are reasonably expected to continue so as to prevent the possibility of retention of a direct recruit in preference to a promotee. 5. The case of the 1st respondent State in all these petitions is that they acted strictly in conformity with the directions contained in the judgement of this court in O.P. No. 195 of 1980, dated 20th March 1980 (Ext. P-6). Ext. P-6, though not couched in the form of a direction, contained an expression of concern by this court at the inaction on the part of the Government by which persons having legitimate claims were being neglected. This prompted the Government to immediate action. The petitioners' learned counsel in O.P. No. 2480 of 1980 built up a forceful argument on the scanty material contained in the counter affidavit filed by the State and submitted that the counter affidavit virtually admitted all that the petitioners had averred in this petition. This is by the way. The State justified its action as indicated above resting upon the decision of this court. It was also further contended that the process of appointment originated with the notification by the commission and before the special rules Ext. P-15 came into force all that was necessary had been done and appointment of all such persons advised by the commission either to vacancies which arose before 2nd September or after 2nd September 1980 did not offend Ext. P-15. 6. The commission in its counter justified its advice. It was admitted that the list Ext. P-2 lapsed on the midnight of 27th March 1980. P-15. 6. The commission in its counter justified its advice. It was admitted that the list Ext. P-2 lapsed on the midnight of 27th March 1980. It received Ext. P-7 communication on 27th March 1980 before the list lapsed. According to its practice when a requisition came from the Government from out of the list that was about to lapse the list would be kept alive to the extent of the requisition made by the Government and that is what they did in this case. When Ext. P-7 letter came, the commission wanted a clarification which clarification they received in Ext. P-8. On being satisfied that advice could be made from the list, Exts. P-11 and P-11 (A) memoranda were issued. The commission had scrupulously adhered to its practice and had not in any manner departed from the practice and procedure which it normally followed in such cases. 7. The above narration gives concisely the conspectus of the pleadings contained in all these three petitions and to the exhibits. My difficulty in these cases has been because of the proliferation of overlapping facts and superabundance of overlapping exhibits with separate Ext. R series along with every counter affidavit. The confusion so created has to be remedied by appropriate amendment to the High Court Rules. 8. In O.P. No. 4169 of 1980 the petitioners pray to quash Ext. P-16, to declare that they are, in law, entitled to be appointed as Assistant Directors in the Bureau against the 50 per cent of the vacancies which arose prior to 2nd September 1980 and which had under the statutory rules to be filled up by direct recruitment and for other incidental reliefs. In O.P. No. 1535 of 1980 the sole petitioner prays to issue a writ of mandamus or other appropriate directions restraining the 3rd respondent, namely, the Commission, from advising candidates from Ext. P-1 ranked list for appointment as Assistant Director of the Bureau and for other incidental reliefs. In O.P. No. 2480 of 1980 the prayers are for the issuance of a writ of certiorari to quash the decision of the Government overruling recommendations of the Director of the Bureau, to quash the decision of the commission making advice from out of the ranked list which lapsed on 27th March 1980 and for other incidental reliefs. 9. In O.P. No. 2480 of 1980 the prayers are for the issuance of a writ of certiorari to quash the decision of the Government overruling recommendations of the Director of the Bureau, to quash the decision of the commission making advice from out of the ranked list which lapsed on 27th March 1980 and for other incidental reliefs. 9. The points that arise for consideration in these writ petitions are categorised as follows: (i) Ext. P-2 list dated 28th March 1978 lapsed on the midnight of 27th March 1980 and any advice by the commission of any person included in that list after the said date was invalid and inoperative, (ii) Since the notification was to vacancies for Assistant Director (Economics) and since the list Ext. P-2 contained candidates with that qualification the commission should not have advised persons from that list on Ext. P-7 requisition in connection with the six vacancies of Assistant Director (Statistics). What transpired thereafter evidenced by Ext. P-8 is actuated by legal mala fides to favour some and to prejudice the interest of others. (iii) In any case after Ext. P-15 amendment, direct recruitment can be resorted to only in the absence of candidates fit to be promoted. The attempt to fill up vacancies which arose after 2nd September 1980 by appointing persons advised from a dead list offends the special rules Ext. P-15. Though the process of recruitment started earlier than 2nd September 1980 actual appointment was being made after 2nd September 1980 which cannot be justified on account of the embargo imposed by the special rules. (iv) The Director of the Bureau is the final authority under the special rules to decide as to the category of candidates necessary in the Bureau. His definite instructions that statistics candidates were needed have been ignored by the Government which also renders the proposed direct recruitment invalid. 10. Before entering into a detailed discussion of the questions at issue in these writ petitions it would be appropriate to examine whether any short-cut is available to dispose of these petitions without detailed discussion. The facts disclosed in O.P. No. 1535 of 1980 and to a lesser extent in O.P. No. 2480 of 1980 persuade me to outline the reasons that prompt me to say that these petitions can be so disposed of. The facts disclosed in O.P. No. 1535 of 1980 and to a lesser extent in O.P. No. 2480 of 1980 persuade me to outline the reasons that prompt me to say that these petitions can be so disposed of. The facts brought out in the counter affidavit filed in O.P. No. 1535 of 1980 make unhappy reading. I cannot conceal my impression from the facts disclosed and from my limited experience, of the existence within the four walls of the Secretariat, of a few vultures, prowling upon interdepartmental communications and such other documents as are not easily accessible to ordinary officials and who by clever manoeuvres, sometimes with the assistance of obliging superiors and at other times by other means try to continue to stay in their tenanted habitate by the device of interminable temporary promotions, indefinitely keeping those, who knock at the doors of the Secretariat by way of direct recruitment, away from it. I am justified in making these observations from what I state below. O.P. No. 1535 of 1980 was filed on 5th May 1980. The process of direct recruitment started with Ext. P-1 notification dated 24th June 1977. The judgment Ext. P-6 in O.P. No. 195 of 1980 in which this court desired advice and consequent appointment of persons in the list dated 28th March 1978, was on 20th March 1980. The Government's letter Ext. P-7 requesting for advice is dated 27th March 1980. The letter by the Commission to the Government seeking clarification as to whether the letter wanted Economics hand or Statistics hand was dated 18th April 1980. The reply by the Government to this letter, Ext. P-8, is dated 10th June 1980. It is in the meantime that O.P. No. 1535 of 1980 is filed. The petitioner in O.P. No. 1535 of 1980 approached this court with the definite averment that he was a statistics hand. Ground G in his petition reads as follows: "The petitioner is a Research officer in the department under the 2nd respondent. He is fully qualified for being appointed as Assistant Director (Statistics) by any method under the Special Rules." The various dates given above have their significance. Ground G in his petition reads as follows: "The petitioner is a Research officer in the department under the 2nd respondent. He is fully qualified for being appointed as Assistant Director (Statistics) by any method under the Special Rules." The various dates given above have their significance. The averments in the O.P. 2480 of 1980 and to some extent in O.P. No. 1535 of 1980 contained Suggestions to the effect that the Director of the Bureau had at one stage informed the Government that what he wanted were not candidates having Economics qualification but Statistics qualification. Though this suggestion by the Director is referred to in profusion in various pleadings this suggestion has not been supported by any document. The object with which I am referring to this aspect is to describe the manner in which the petitioner in O.P. No. 1535 of 1980 approached this court. The counter affidavit filed by respondents 4 and 5 in this petition contain the following statements. "The petitioner is not a Statistics hand but only an Economics hand. He has not given his qualifications in the O.P. He is a M.A. in Economics having passed his postgraduate degree examination from the University Centre held in 1972 April with register No. 980. He was a classmate of Sri Jamal Mohammed for the postgraduate course in Economics along with the 4th petitioner in O.P. No. 195 of 1980. He applied for the post of Assistant Director in the selection which led to the preparation of the ranked list Ext. P-1 and did not secure a rank to be included in the ranked list." When these disturbing disclosures were made against the averments of the petitioner in O.P. No. 1535 of 1980 by Sri Warrier requesting me to reject the petitioner's prayers outright the learned counsel for the petitioner in O.P. No. 1535 of 1980 was sitting firm in his seat discretely reticent without even a nod in dissent. The petitioner in O.P. No. 1535 of 1980 obviously had been supplied with the information that the Director had stated that he wanted Statistics hands by some invisible source which perhaps induced him to present a petition with incorrect statements. That person like the petitioner in O.P. No. 1535 of 1980 who has approached a writ court with incorrect instatements is not entitled to be heard is the rule. That person like the petitioner in O.P. No. 1535 of 1980 who has approached a writ court with incorrect instatements is not entitled to be heard is the rule. His petition deserves to be unceremoniously rejected on this ground alone. His attempt is a preemptive move to somehow stifle the chances of persons included in the ranked list waiting advice to be appointed. 11. Is the case of the petitioner in O.P. No. 2480 of 1980 any the better? I must confess it is not worse for the reason that he cannot be accused of making any incorrect statement like the petitioner in O.P. No. 1535 of 1980. But what are his credentials? At the time Ext. P-1 notification was issued by the commission for recruitment to the post of Assistant Directors in the Bureau he had not the requisite qualification. That notification was on 24th June 1977 published in the gazette, dated 5th July 1977. His O.P. was filed on 13th July, 1980. In the first paragraph of his petition he states that on the date he presented the application he was fully qualified to be directly recruited to the post of Assistant Director (Economics) under the Special Rules for the Kerala Statistics and Economic Service. Therefore his case was based on the remote possibility of a special recruitment in future when he would be in a position to apply for the post. This is repeated in Para.9 of the petition also. His further case is that the list having expired on 27th March 1980, if Economics qualified Assistant Directors are required there should be fresh recruitment as per a fresh notification by the Public Service Commission in which case he could apply. Alternatively he submits that he belongs to the Latin Christian Community - a backward community and that if promotions are to be effected by a departmental promotion committee there is every likelihood of his being included in the field of choice on account of his meritorious record and high qualification and consequently a chance of being considered for promotion. If, however, appointment is to be made in pursuance of the advice memo, dated 9th July 1980 the petitioner would lose his chance of appointment to the higher post. Again, a remote possibility that is to occur in future. If, however, appointment is to be made in pursuance of the advice memo, dated 9th July 1980 the petitioner would lose his chance of appointment to the higher post. Again, a remote possibility that is to occur in future. Even at this stage, I may observe that the burden of the song of the petitioner in O.P. No. 2480 of 1980 is that the authorities are prohibited from making any appointment by direct recruitment to future vacancies after the amendment of the Special Rules on 2nd September 1980; despite this, the petitioner has put forward his fond hope of a possible direct recruitment in which he expects a berth for him. The locus jurisprudence in writ jurisdiction is gradually widening. Even so, I find that a person like the petitioner in this case cannot successfully invoke the jurisdiction of this Court to grant him relief taking into account the remote possibility of his being considered either for direct recruitment or for promotion. This petitioner had used all the weapons in his armoury to checkmate the authorities from making appointments pursuant to the advice by the Commission. To detail the various proceedings that were initiated by him in this original petition would unnecessarily make this judgment long. As per an order, dated 5th August 1980 this court had on an application by the petitioner to stay further action on the basis of an advice memo by the Commission directed that any appointment made either by direct recruitment or by promotion would be purely provisional and subject to the result of the writ petition. Subsequently this court passed an order on 10th October 1980 in C.M.P. No. 14953 of 1980 in O.P. No. 2480 of 1980. This court directed the Government to take into account the relevant provisions of Ext. P-15 (amended Special Rules) while making any provisional appointments as observed in the order dated 5th August 1980. Then followed C.M.P. Nos. 18721 of 1980 and 4840 of 1981 filed by the petitioner to take appropriate action against the 1st respondent for disobedience of this court's order, dated 10th October 1980 and also to stay the operation and implementation of another order. Then followed C.M.P. Nos. 18721 of 1980 and 4840 of 1981 filed by the petitioner to take appropriate action against the 1st respondent for disobedience of this court's order, dated 10th October 1980 and also to stay the operation and implementation of another order. The effective prayer in the application was to strike off the defences of the State and the Director of the Bureau and of the 4th respondent who was appointed as Assistant Director in the Bureau and not to hear them till they purged themselves of the violation of the above order dated 10th October 1980. Balagangadharan Nair, J. held that the Government had not violated the order of 10th October 1980 to justify the action sought by the petitioner. I have briefly referred to this matter to bring into sharp focus the ramification of the fight that is involved in this case and the extreme limit to which the said fight was attempted to be extended, all to defeat persons included in a ranked list waiting for advice and for appointment. The facts disclosed in this petition are, in my view, sufficient to decline the relief prayed for by the petitioner in exercise of the jurisdiction under Art.226 of the constitution. This is the short cut to dispose of O.P. No. 1535 of 1980 and O.P. No. 2480 of 1980 and as a consequence to allow O.P. No. 4169 of 1980. But I refrain from doing so and proceed to consider the case on merits, lest I should be exposed to an avoidable charge of having disregarded the learned and the lengthy arguments addressed at the bar, extending over five days. 12. In so doing my first task is to disabuse the impression attempted to be created against the Commission of having acted in a manner inspired by extraneous forces. For a proper consideration of this case it is necessary to keep in mind how the Commission and the Government had to swing into action with the expedition in the wake of the judgment Ext. P-6 passed by this Court in O.P. No. 195 of 1980. That was a petition filed by persons included in the ranked list for direct recruitment to the post in dispute. Bhaskaran, J., who rendered the judgment felt that a serious injustice was being perpetrated against persons who had been included in the ranked list. P-6 passed by this Court in O.P. No. 195 of 1980. That was a petition filed by persons included in the ranked list for direct recruitment to the post in dispute. Bhaskaran, J., who rendered the judgment felt that a serious injustice was being perpetrated against persons who had been included in the ranked list. The learned Judge after noting that 40 substantive vacancies had arisen in the post of Assistant Director after the introduction of the Special Rules, 20 out of which should go to the direct recruits by virtue of the ratio of 1:1 while only 7 had been given to them, cautioned the Government that those vacancies were not filled up for the simple reason that vacancy was not reported to the Commission though the list was to lapse on 27th March 1980. The learned Judge expressed his anxiety and to some extent his concern in Para.3 of the judgment thus: "It is unfortunate that it should happen in this case. It is constitutional function of the Public Service Commission to select candidates and advise the Government in regard to their appointment to Public Service. The object obviously is to ensure that the services are manned by the most competent and suitable personnel selected by an expert body. To ensure the continuity of this process the practice is to call for select list for the anticipated vacancies. It is the settled practice that vacancies are to be filled up by provisional hands, and that too for the minimum possible period, only if and when the select list published is exhausted. If filling up of vacancies without any principle whatsoever by provisional hands, ignoring the select list, is resorted to, such act would come to the verge of illegality. In this case I believe it is not too late even now for the respondents concerned to do justice to the petitioners, and by doing so to do justice to themselves, by reporting the vacancies to the Public Service Commission without any further loss of time before the select list would lapse on 27th March 1980, and in the hope that the respondents concerned would not fail to do it, I dispose of this writ petition without giving any specific direction." These observations were given due respect by the Government and the Commission as is evidenced by the subsequent steps taken by them. In this context it will be useful to dislodge an impression attempted to be created by the petitioner in O.P. No. 2480 of 1980 that at all relevant times the Government were interested in promoting the cause of the direct recruits to the detriment of those entitled to promotion. This can be falsified if one refers to the counter affidavit filed by the State in O.P. No. 195 of 1980 which is produced as Ext. P-2 in O.P. No. 1535 of 1950. The stand taken by the State in that counter affidavit was not favourable to the persons included in the list but was in a way against them. Ext. P-6 judgment was on 20th March 1980. There were hardly seven days more for the list to lapse. The Government sent Ext. P-7 letter dated 27th March 1980 through a special messenger containing a request to advise six candidates for appointment to the six vacancies of Assistant Director (Statistics) in the Bureau from the existing ranked list of candidates for the post of Assistant Director in the Bureau, the validity of which was to expire on 27th March 1980. Things cannot be made clearer. Advice was sought from the list Ext. P-2 which was to expire on 27th March 1980. The question is whether the Commission should have rejected this request outright for the reason that the list did not include candidates who could be appointed as Assistant Director (Statistics) but were of Economics. The Commission was conscious of the fact that the requisition was with specific reference to Ext. P-2 list. The Commission sought clarification whether the advice so sought was for Statistics hands or for Economics hands by a communication dated 18th April 1980. The Government sent Ext. P-8 clarification to the effect that the request related to advice of six candidates from the existing ranked list to be appointed as Assistant Director in the Bureau. These steps seemingly coming one after the other in quick succession have been subjected to serious criticism by the learned counsel for the petitioner in O.P. No. 2480 of 1980 to create an impression that the letter by the Commission dated 18th April 1980 was inspired and the reply Ext. P-8 by the Government was a clever manoeuvre to wriggle out of the situation to help persons in Ext. P-2 list to the detriment of persons who could be promoted. P-8 by the Government was a clever manoeuvre to wriggle out of the situation to help persons in Ext. P-2 list to the detriment of persons who could be promoted. I repeat what I state earlier that these vague imputations of hasty, improper conduct on the part of a high constitutional authority and the Government at the instance of a person, who has not established even a prima facie case to sustain his claims, deserve to be rejected unceremoniously. The Commission did not act immediately after Ext. P-7 communication. The Commission has its own procedure to follow when requisitions come from the Government. The Commission took its time and sought clarification only on 18th April 1980. The Government was not in a desperate hurry to reply to the clarification sought because Ext. P-8 comes only on 10th June 1980. These dates clearly show that things took their normal course. The Commission has in its counter affidavit in O.P. No. 2480 of 1980 clearly set out its case in justification of what it did. In Para.8 of the counter affidavit in O.P. No. 2480 of 1980 the Commission has said that Ext. P-7 communication was sent by a special messenger. Since the communication related to Statistics hands the Commission found it not possible to advise candidates against the vacancies in the Statistics group from a ranked list prepared for the Economics group which prompted them to send the communication dated 18th April 1980 which is marked as Ext. R-2 in this counter affidavit. After obtaining the further communication Ext. P-8 the Commission advised six candidates from Ext. P-2 list according to the existing rules of reservation and rotation since the vacancies reported were received in the office of the Commission before the expiry of the ranked list. The Commission in its counter has clearly stated that the validity of Ext. P-2 list would expire by the midnight on 27th March 1980 and that Ext. P-7 letter was received in its office during the working hours of 27th March 1980 before the ranked list was cancelled. Since the vacancies were reported before the lapse of the list the Commission could advise the required hands from the ranked list, the requisition having been received before the list ceased to be in force. P-7 letter was received in its office during the working hours of 27th March 1980 before the ranked list was cancelled. Since the vacancies were reported before the lapse of the list the Commission could advise the required hands from the ranked list, the requisition having been received before the list ceased to be in force. The Commission is also aware of the desire expressed by this court in O.P. No. 195 of 1980 of the Government requisitioning the Commission for candidates for appointment before the list expired on 27th March 1980. These statements contained in the counter affidavit filed by the Commission are entitled to due weight coming as it does from an authority that is entitled to respect at the hands of this court. It is only in extremely rare cases where glaring instances of impropriety or irregularity are satisfactorily established that this court will even consider with suspicion the conduct of the Commission. 13. That takes me to the question whether the advice on a date posterior to the lapse of Ext. P-2 list is in consonance with law. R.12 of the Kerala Public Service Commission Rules of Procedure prescribes the method of preparing the ranked list. R.13 provides for the period during which the ranked lists would be alive. I read R.13 without the two provisos which are not strictly necessary: "The ranked lists published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one "ear or till the expiry of two years whichever is earlier". It is agreed on all hands that a ranked list cannot be effective after two years. It should cease to have force on the expiry of two years unless a new list is published after the expiry of the minimum period of one year. Therefore, the list Ext. P-2 lapsed on the midnight of 27th March 1980. It is agreed on all hands that a ranked list cannot be effective after two years. It should cease to have force on the expiry of two years unless a new list is published after the expiry of the minimum period of one year. Therefore, the list Ext. P-2 lapsed on the midnight of 27th March 1980. R.14 is also relevant in this context which reads as follows: "The Commission shall advice candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable". By this rule the Commission is mandated to advice candidates for all the vacancies reported, both pending before them and reported during the subsistence of the ranked list. A faithful adherence to R.14 would, therefore, compel the Commission to act in accordance with the request made by the Government by Ext. P-7 to advise candidates to the six posts. I do not want to dilate further and enter into a further discussion about the justifiability of the Commission seeking clarification regarding the six vacancies sought. In my view, the Commission acted perfectly in conformity with the Rules, the requirements of the circumstances and interests of justice in seeking clarification as per its letter dated 18th April 1980. In this context I do not propose to consider the expression 'during which the ranked lists are kept alive' and examine whether under given circumstances for the limited purpose of a requisition of this kind the list to that extent could be kept alive even after two years. Such an examination is unnecessary in this case for the reason that the definite case of the Commission is that the list lapsed on the midnight of 27th March 1980 subject to the requisition of the six vacancies. 14. That the Commission should have allowed the entire list to lapse on 27th March 1980 and should not have advised anyone after that date, which case is forcefully presented before me by the petitioner's counsel in O.P. No. 2480 of 1980, is beset with several practical difficulties. Instead of this case, let us take a case of a list which has to expire on 10th March 1980. Instead of this case, let us take a case of a list which has to expire on 10th March 1980. A request comes from the Government on 1st March 1980 about six vacancies from the list to expire on 10th March 1980. The Members of the Commission are away on various duties. There are various other pressing work in the office of the Commission. Due to these circumstances the Commission was not in a position to attend to this requisition before the lapse of the list. Would the Commission be justified in declining to make the advice as per the requisition made ten days before the expiry of the lapse of the list or would it be acting in accordance with law in making the advice after the necessary procedural formalities are complied with a few days after the lapse of the list on a consideration of the request made? I do not think any argument is necessary to repel the contention that the Commission would not be acting in order in making the advice after the lapse of the list in a contingency like this. In this case both the Government and the Commission had the additional pressure of the weighty pronouncement of this court in Ext. P-6 judgment to advise from the list that is to expire on 27th March 1980. 15. I do not think it necessary to refer to any authority on this aspect of the case, for the position, in my view, is clear on the wording of the rule itself. In S. Jeevadas and others v. The State of Kerala and others (1978 (2) SLR 590), a Division Bench of this court had to consider a kindred case. Eradi, J., as he then was, has this to say regarding the advice and the expiry of the list. I read Para.9 at p. 596: "After having heard both sides we are clearly of the view that the Public Service Commission is perfectly right in the stand taken by it in its letters dated 30th December 1977 and 1st March 1978 that the advise lists sent by to the Chief Engineer in September and October 1974 remained valid notwithstanding the expiry of the period of validity of the ranked list on the basis of which the advice lists were prepared. Once the Public Service Commission has already advised candidates from the ranked list, the Department has only to act on the basis of such advice and it is not expected to concern itself with the question as to whether the select list from out of which the advice was tendered has subsequently become time expired. The Department having been furnished by the Public Service Commission with an advice list, appointments are to be made on the basis thereof, irrespective of whether or not the ranked list continues to be in force. How the advice list is to be prepared is a matter within the exclusive domain of the Public Service Commission, subject, of course to the liability for judicial review in case the validity of its action is challenged before a competent court". I do see the difference between the facts of this case and the facts of that case from the above passage. There, the advice was before the lapse of the list. But here the advice was after the lapse of the list. The fact that the list had lapsed was no concern of the Government as is observed in the above passage. I would extend that principle to this case also and hold that the averments contained in the counter affidavit that the list lapsed on 27th March 1980 subject to the requisition saved the subsequent advice made by the Commission. Therefore, the case put forward that the advice by the Commission was improper and was not in consonance with R.13 quoted above cannot be accepted and is rejected. I may observe that in an appropriate case this court will have to consider whether a ranked list can be kept alive even after its lapse if such a direction is made by this Court. Such a situation does not arise here. What is contained in the judgment Ext. P-6 is an additional justification for the Government and the Commission to have acted in the manner they did. 16. Allied to this question is the case put forward by the petitioner in O.P. No. 2480 of 1980 that those whose names are included in the ranked list do not get any right to be enforced either before this Court or before the Government. 16. Allied to this question is the case put forward by the petitioner in O.P. No. 2480 of 1980 that those whose names are included in the ranked list do not get any right to be enforced either before this Court or before the Government. This submission was grounded on R.3(b) of the General Rules and the following authorities: "Ratnamma v. Kerala Public Service Commission ( 1977 KLT 290 ), Kerala Public Service Commission v. Dr. Kesavankutty Nair ( 1977 KLT 818 ) State of Kerala v. Madanan (1978 KLT 85) and The State of Haryana v. Subhash Chander Marwaha and others (AIR 1973 SC 2215). The case as is presented has to be accepted. What R.3(b) says is that the inclusion of a candidate's name in any list of approved candidates for any service shall not confer on him any claim to the appointment to the service, class or category. This contention has found acceptance at the hands of the Supreme Court and this Court has followed it. I respectfully agree. But the learned counsel for the petitioner in O. P. No. 4169 of 1980 put forward a cases which in my view' needs examination. According to him, though the inclusion of a candidate's name in a list does not confer on him a claim to appointment the government will have a duty in certain cases to recognise the right of a person included in such a list and in appropriate cases the court will be justified in issuing a mandamus to the State to discharge its duty. Under the Special Rules in this case appointment to the post in question is in the ratio of 1:1 between direct recruits and promotees. In the note under the category Assistant Director in the Kerala Statistics and Economic Service Special Rules it is stated that the vacancies in the cadre of Assistant Director shall be filled alternatively by appointment/promotion and by direct recruitment commencing with appointment/promotion. In none of the cases referred above was the question of the right consequent upon the inclusion of the list considered in the context of the quota among promotees and direct recruits. When vacancies are to be filled up in a particular ratio it is a mandate to the State to act accordingly. In none of the cases referred above was the question of the right consequent upon the inclusion of the list considered in the context of the quota among promotees and direct recruits. When vacancies are to be filled up in a particular ratio it is a mandate to the State to act accordingly. When the State ignores this ratio and acts in violation thereof, the question posed is, whether a person aggrieved by such violation of the ratio and whose name is Included in a list would still be prevented from seeking a direction to the appointing authority to fill up the vacancies in the ratio prescribed. This is the new look that Sri T. R. Govinda Warrier presented to distinguish the above cases from the case on hand. He made a feeble suggestion that decisions under R.3(b) of the General Rules themselves needed reconsideration which request I am not persuaded to accept. But the case differently put forward in the form indicated above is entitled to consideration. In S. G. Jaisinghani v. Union of India and Others (1976 (1) SLR 482), the question pointedly arose. The Solicitor General on behalf of the union of India submitted that the quota rule was merely an administrative direction to determine recruitment from two different sources in the proportion stated in the rule and a breach of that quota rule was not a justiciable issue and added that there was substantial compliance with the quota rule. The Supreme Court repelled this contention and held: "We are of opinion that having fixed the quota in exercise of their power under R.4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota in any particular year at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice it will be difficult to hold that the seniority rule i.e. R.1(f)(iii) and (iv), is not unreasonable and does not offend Art.16 of the Constitution. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice it will be difficult to hold that the seniority rule i.e. R.1(f)(iii) and (iv), is not unreasonable and does not offend Art.16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1957 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24 (2) Adm. I. T/ 51 dated October 18, 1951. " Reliance on this decision is well founded in support of the contention that a departure from the quota would entitle a person aggrieved to get appropriate orders to get the grievances redressed. As observed in the portion extracted above the quota rule is interlinked with seniority. Overlooking the quota rule, therefore, not only robs the person entitled to get a berth in the service in the ratio prescribed but consequently also robs him of his seniority. The Supreme Court in declaring the law thus overruled the Full Bench decision of the Punjab High Court which had held that the quota rule announced by the Government of India was merely a policy statement which had no statutory force and departure from it did not give rise to any justiciable issue. The Supreme Court felt it necessary to emphasise strict adherence to similar rules to avoid exercise of arbitrary power and expressed itself thus in Para.13: "In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion' when conferred upon executive authorities, must be confined within clearly defined limits. In a system governed by rule of law, discretion' when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decision should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey "law of the Constitutional" - Tenth Edn., Introduction cx). "Law has reached its finest moments." stated Douglas, J. in (2) United States v. Wunderlich," when it was freed man from the unlimited discretion of some rules........... Where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Mansfield stated it in classic terms in the case of John Wilks (2) means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful. and wound up by suggesting to the Government to adopt for future the quota strictly. Receiving upon this principle I feel emboldened, despite the authorities which had considered R.3(b) of the General Rules, to hold that in appropriate cases mandamus can issue to the state when arbitrary exercise of power or discretion is attempted to overlook the quota prescribed. In this context a further distinction between the stage where a person's name is included in the list and the stage where he has been advised by the Commission has also to be noticed. Where advice had been made, this court will unhesitatingly step in to mandate the State to appoint the person included in the list who had been overlooked without adhering to the quota. In appropriate cases, the writ court will be justified in issuing an appropriate direction to the State to report the vacancies available in accordance with quota prescribed, seek the advice of the Commission and make appointments, failure to do which will be viewed by this court with disfavour and will persuade this court to go to the rescue of persons who had been overlooked. On this finding I hold that the petitioners in O. P. No. 4169 of 1980 are entitled to be appointed as Assistant Directors in the Bureau against the 50 per cent vacancies that arose prior to 2nd September 1980. 17. That takes me to the question whether the same right is available to the petitioners to be appointed to vacancies after 2nd September 1980 on account of the embargo contained in the amendment to the Special R.5 Ext. P-15. Clause relevant for this purpose reads thus: "3. In the absence of suitable candidates for appointment or promotion under items 1 and 2 above, by direct recruitment." The petitioners' learned counsel Sri Chandrasekharan in O.P. No. 2480 of 1980 made a forceful plea that no direct recruitment was possible to vacancies that arose after 2nd September 1980 and whatever steps may have been taken before 2nd September 1980 for direct recruitment, appointment being synonymous with direct recruitment, any person advised before 2nd September 1980 cannot find a berth in a vacancy that arose after 2nd September 1980. I shall consider this question with reference to the relevant provisions of the rules and authorities cited before me. The amended Special Rules prevent direct recruitment when suitable candidates are available for promotion. As I understand him, the submission made by Sri Chandrasekharan is that whatever steps may have taken place before the coming into force of the amendment Ext. P-15 appointment by special recruitment for a vacancy arising after 2nd September 1980 is barred totally. I find it difficult to agree with this submission. Direct recruitment is a process originally emanating in the ascertainment of the number of vacancies available or anticipated requesting the commission to notify the vacancies, the Commission issuing a notification pursuant thereto, application by candidates desiring to apply, the consideration of the applications, written examination if necessary, as well as interview if necessary, preparations of the ranked list, preparation of select list in accordance with the rules, a further requisition by the Government reporting vacancies, and advice culminating in appointment. Therefore, appointment to the post is the last stage in a slow gradual process. The learned Advocate General rightly contended that the submission that direct recruitment and appointment were synonymous ignored the various stages mentioned above and if accepted would result in unhappy consequences. The word 'recruitment' or 'recruited' has a connotation entirely different from the word 'appointment'. Therefore, appointment to the post is the last stage in a slow gradual process. The learned Advocate General rightly contended that the submission that direct recruitment and appointment were synonymous ignored the various stages mentioned above and if accepted would result in unhappy consequences. The word 'recruitment' or 'recruited' has a connotation entirely different from the word 'appointment'. It is not necessary to seek the assistance of a dictionary for this purpose. Recruitment signifies enlistment, acceptance, selection or approval for appointment, all stages preceding appointment. The two words cannot be said to mean the same thing. Therefore the submission made by Sri K. Chandrasekharan cannot be accepted. For this conclusion I seek support from the definition of the word 'appointed to a service' and 'recruited direct' obtaining in R.2(1) and 2(12) of the General Rules which read as follows: "2. Definitions:- In these rules unless there is anything repugnant in the subject or context (1) A person is said to be 'appointed to a service' when in accordance with these rules or in accordance with the rules applicable at the time as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof : Explanation:- The appointment of a person holding a post borne on the cadre of one service to hold additional charge of a post borne on the cadre of another service or to discharge the current duties thereof does not amount to appointment to the latter service. (12) A candidate is said to be 'recruited direct' to a service, class, category or post when, in case the appointment has to be done in consultation with the Commission, on the date of the notification by the Commission inviting applications for the recruitment, and in any other case, at the time of appointment. (12) A candidate is said to be 'recruited direct' to a service, class, category or post when, in case the appointment has to be done in consultation with the Commission, on the date of the notification by the Commission inviting applications for the recruitment, and in any other case, at the time of appointment. (i) he is not in the service of the Government of India or the Government of a State; or (ii) being in the service of the Government of India or the Government of a State, he satisfies all the qualifications (including age) and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority; or (iii) he holds a post, the conditions of service of the holder of which have been declared to be matters not suitable for regulation by rule." Under the above definitions appointment takes effect when the person appointed for the first time discharges his duty. This is in contradistinction to the concept of the word 'direct recruitment'. One is the finale of the process that starts from the other. In Gurudev Singh Gill v. The State of Punjab (1968 (2) SLR 538), a Division Bench of the High Court of Punjab and Haryana has, with respect, noted the distinction between the concept of the words 'recruitment' and 'appointment' correctly. In Para.12 the matter is discussed as follows: "............ but the two concepts of recruitment and appointment are separate and apart and the clear line of distinction between them has been made manifest by the various rules, one of which is R.9 of the Cadre Rules which provides for temporary appointment of non cadre officers to cadre posts. It is the linchpin of the respondent's case that the petitioners in the first instance were appointed under this rule which is concerned essentially with temporary and stop gap appointment." In Basant Lal Malhotra v. State of Punjab and others (AIR 1969 Punjab 178) also this view is approved. I quote para 10 which contains the relevant discussion: 'After giving my thoughtful consideration to all relevant provisions of the subject, I am led to an irresistible conclusion that the term 'recruitment' and 'appointment' are not synonymous and connote different meanings. I quote para 10 which contains the relevant discussion: 'After giving my thoughtful consideration to all relevant provisions of the subject, I am led to an irresistible conclusion that the term 'recruitment' and 'appointment' are not synonymous and connote different meanings. The term 'recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment and not actual appointment or posting in service while 'appointment' means an actual act of posting a person to a particular office. In this view of the matter, the word 'recruited' existing in R.4.2 of the Punjab Civil Services Rules, Volume II, does not mean actual appointment and the petitioner should be deemed to have been recruited on the 26th of March, 1936". In Man Mohan Kaushib and another v. State of Rajasthan and others (AIR 1971 Rajasthan 60), the above view has been approved. With respect, I hold that the view expressed above in the three judgments reflect the correct approach to be made for the words 'appointment' and 'direct recruitment'. The object of the Special Rules Is made clear by the explanatory note in Ext. P-15. I read the explanatory note to make my approach clear: "In the Special Rules for the Kerala Statistics and Economics Service, there is provision for direct recruitment to the categories of Assistant Director, Deputy Director, Joint Director and Additional Director. It is also provided therein that vacancies in the cadre of Assistant Director shall be filled up alternately by promotion and by direct recruitment commencing with promotion. After mature consideration, Government decided to amend the relevant provisions in the Special Rules so that direct recruitment to the categories of Assistant Director, Deputy Director, Joint Director and Additional Director need be resorted to only in the absence of suitable hands for promotion in the Bureau of Economics and Statistics. These amendments are intended to achieve the above object.'' What I wish to emphasise is the direction contained in the note that direct recruitment to the categories mentioned therein need be resorted to only in the absence of suitable hands. This clearly postulates the initiation of recruitment process and not the appointment culminating in the said process; in other words, if all the necessary processes had been completed the amended Special Rules do not prevent the appointment of a candidate in the select list even to a vacancy that arises after the Special Rules. 18. This clearly postulates the initiation of recruitment process and not the appointment culminating in the said process; in other words, if all the necessary processes had been completed the amended Special Rules do not prevent the appointment of a candidate in the select list even to a vacancy that arises after the Special Rules. 18. The only other question that remains to be considered is the submission made by Sri Chandrasekharan that the Government went wrong in disregarding the recommendation made by the Director of the Bureau about the need of Statistics hands. He invited my attention to the second note in column 3 under the heading Assistant Director. The note reads: "The proportion in which direct recruitment of persons with qualifications in 1 (i) or 1 (ii) above has to be made, shall be determined by the Director, Bureau of Economics and Statistics, according to requirements". The submission made is that the requirement has to be decided by the Director and none else. In this case there is sufficient material to hold that the Director had at an intermediate state informed the Government that what was needed was not economics hands but statistics hands. The Government was bound to accept this recommendation. That such a recommendation existed is evident from the communication Ext. P-7 sent by the Government seeking the advice of six statistics hands. This argument can be met in two ways, one that the Government is the appointing authority for an Assistant Director and not the Director. That being so nothing prevents the Government from ignoring the recommendation made by the Director and acting contrary to such recommendation, having regard to the exigencies of service and other circumstances. I am saying this on the assumption that the Director had at some stage when the list was about to lapse stated that what he needed was statistics hands. Sri Warrier had tried to demolish even this theory by pointing out that in the counter affidavit filed by the State in O.P. No. 195 of 1980 there was no mention of the Director having made such a recommendation. He also pointed out that between 20th March 1980 when Ext. P-6 Judgment was passed and 27th March 1980 when Ext. P-7 letter was sent, nothing has been brought out to satisfy the court that the Director had made such recommendation. These are very relevant submissions. He also pointed out that between 20th March 1980 when Ext. P-6 Judgment was passed and 27th March 1980 when Ext. P-7 letter was sent, nothing has been brought out to satisfy the court that the Director had made such recommendation. These are very relevant submissions. Sri Chandrasekharan wanted to build up an argument that in fact the Director had made such a recommendation, from the inadequacy of the materials contained in the counter affidavit filed by the State. He took me through various authorities to satisfy me that absence of a proper affidavit controverting averments of fact in the petition should persuade the court to hold that all that is contained in the petition represented the true state of affairs. In an appropriate case I would have paused to consider this submission; but in this case where the petitioner has not succeeded in sustaining his claim to be satisfactorily examined, I decline to go in detail into this aspect of the case and render this judgment prolix which is already long. Even conceding that the Director had at ., some stage made the suggestion, the Government will be, in my opinion, justified in ignoring such advice. 19. The alternative plea to dislodge this contention is, as was rightly pointed out by the learned Advocate General, that the note referred above relates to the determination of the proportion by the Director at the initial stage before the Commission is approached with a requisition to notify the vacancies. The note does not contemplate such determination by the Director at every intermediate stage. In my view, this is the more appropriate and reasonable construction that has to be put to this note. That being so, a recommendation, even if one such existed, emanating from the Director at an intermediate stage cannot be flourished against the State which is the appointing authority and that at the instance of a person without any right, to defeat the rights of persons included in an advice list by the Commission. 20. For the foregoing reasons I hold that O.P. No. 1535 of 1980 and O.P. No. 2480 of 1980 are liable to be dismissed and I do so. 20. For the foregoing reasons I hold that O.P. No. 1535 of 1980 and O.P. No. 2480 of 1980 are liable to be dismissed and I do so. The petitioners in O.P. No. 4169 of 1980 will be entitled to the following reliefs: They will be entitled to be appointed not only to vacancies that arose prior to 2nd September 1980 but even after 2nd September 1980. This is on my finding that the amendment to the Special Rules prohibits only resort to direct recruitment when hands are available for promotion. I declare that for the vacancies available before 2nd September 1980 the petitioners are entitled to be appointed as Assistant Director adhering to the ratio 1:1. I wind up this judgment with the hope that the petitioners would not be made to wait further and will be appointed forthwith. The parties are directed to bear their costs.