Judgment SATYESHWAR ROY, J. In these two writ applications as the same questions are involved they have been heard together and are being disposed of by this Judgment. 2. In CWJC No. 1288 of 1931 (R) prayer has been made for quashing Annexure 3' dated 31-7-1981 by which the respondent Nos. 4 and 5, C. Prakash and P.N. Mehta were appointed as officiating Deputy Director General of Mines Safety (the D.D.G.M.S). In C.W.J.C. No. 1637 of 1981 (R) prayer has been made for quashing that order which is Annexure 2' to this writ application and the resolution of respondent No.3, which contains the minutes of its meeting held on 18-3-1980 which is Annexure 8' P.N. Mehta is respondent No. 4 in the first case and respondent No. 5 in the second case and C. Prakash is respondent No. 5 in the first case and respondent No.4 in the second case. For the sake of convenience, I will refer those two respondents by their sur names namely Prakash and Mehta. The petitioners Prakash and Mehta were at the relevant time Directors of Mines Safety. The next higher post is D.D.G.M.S. Two vacancies of D.D.G.M.S. occured and they were required to be filled up on the recommendation of the Departmental Promotion Committee (the D.P.C.) as laid down in Annexure 8' office memorandum dated 30-12-1976. The President framed rules under Article 309 of the Constitution of India which was notified on 20-2-1980 for regulating the method of recruitment to group A and B posts under the Director General Mines Safety (The D.G.M.S.). These rules are known as Directorate General of Mines Safety (Group A and B posts). Recruitment Rules 1980 which is Annexure 3' to CWJC No. 1637 of 1981 (R). Schedule to the rules prescribed educational and other qualifications required for recruitment to the posts of D.D.G.M.S. One of the grievances of both the petitioners, interalia, is that Prakash had not the requisite qualification for appointment to the post of D.D.G.M.S. It may be mentioned that the petitioner in CWJC No. 1637 of 1981 (R) (Sinha for brevity) is senior to the petitioner (Mokhopadhyay for brevity) in other case Mukhopadhya is junior to Sinha and Prakash but senior to Mehta. 3. Counter affidavit has been filed on behalf of respondent Nos. 3. Counter affidavit has been filed on behalf of respondent Nos. 1 to 3 in which it has been contended that the appointments of Prakash and Mehta were valid in law, as Prakash had the requisite qualifications for such appointment. It was also asserted that the D.P.C. followed the procedure. It was further asserted that as the petitioners faced the D.P.C. but failed to qualify they cannot be allowed to challange the appointments. Objections were also taken regarding the maintainability of the writ applications. No appearance has been made on behalf of Prakash and Mehta. 4. Preliminary objections were raised on behalf of respondent Nos. 1 to 3 regarding the maintainability of the applications. It was contended that on the basis of the resolution of the Board which is Annexure 8' in Sinha's case a number of persons other than Prakash have been granted exchange certificate under Metalliferous Mines Regulations 1961 (1961 Regulations). It was urged that if it is held that the resolution was ultravires of the Board, the exchange certificates granted to all such persons shall also become bad in law. Since those persons are not before the Court, no order can be passed declaring the resolution ultravires. In my opinion, this contention has no merit, for giving a declaration whether an appropriate action of a statutory authority is ultravires the powers vested in its persons who may be adversely affected by such declaration cannot be said to be necessary parties. 5. The qualifications required for recruitment to the post of D.D.G.M.S. either by direct recruitment or by promotion is as follows:- "7. Educational and other qualifications required for direct recruitment- Essential (i) Degree in Mining Engineering of recognised university or equivalent (ii) First class Mines Manager's Certificate granted under Coal Mines Regulations, 1957 and under the Metalliferous Mines Regulations, 1961 (unrestricted (iii) 12 years' experience in Mining of which at least 5 years should be in a managerial post in the management of important mines or in work connected with the implementation of Mines Act." There is no dispute that Sinha, Mukhopadhyaya and Mehta had on the relevant date all the requisite qualifications laid down in clause 7 as quoted above. According to the petitioners Prakash had the requisite qualifications as laid down in clause 7 (i) (iii) and had also first class Mines Manager Certificate granted under the Coal Mines Regulation, 1957 as laid down in the first part of clause 7 (ii). But he did not possess first class Mines Manager certificate granted under 1961 Regulation (unrestricted). The dispute, therefore is whether Prakash had the requisite certificate under 1961 Regulation On the relevant date. 6. Section 57 of the Mines Act, 1952 empowers the Central Government to make Regulations. In terms of the same the Central Government framed 1961 Regulations and the same was notified on 18.10.1960. Only Regulation 22 was referred by the parties, the relevant portion of which is as follows:- "22. Exchange certificates-(1) The Board may grant to any person holding a Manager's Surveyors Or Overman’s or Foreman's, Sirdar's or Mate's or Engine driver's Or Short firer's or Blaster's Certificate granted under any Act for the regulation of mines for the time being in force in any other country a certificate of similar class under these regulations if he (possesses such practical experience and) passes such examination as the Board may stipulate; Provided that a candidate for the grant of a Manager's Exchange Certificate shall also satisfy the Board that he has undergone, for a period of not less than six months, a course of practical training in India in the manner and in the mines approved by the Chief Inspector for the purpose. Before the commencement of his practical training in India as aforesaid, every such candidate shall submit to the Chief Inspector an application in a form supplied for the purposes. (2) The Board may grant to any person holding the certificate referred to in sub-regulation (1) granted under the Coal Mines Regulations made under the Act a similar certificate under these regulations if he possesses such practical experience and passes such examination as the Board may stipulate: Provided that no person who had obtained not less than three years practical experience in metalliferous mines in India of a type approved by the Board shall be required to pass such examination. (2-A) An Exchange Certificate other than a winding Engine - Drivers or Blaster's Certificate granted under Sub-regulation (1) Or (2) may be restricted to mines having opencast workings only, and in such a case, the certificate shall contain an endorsement to that effect. (2-A) An Exchange Certificate other than a winding Engine - Drivers or Blaster's Certificate granted under Sub-regulation (1) Or (2) may be restricted to mines having opencast workings only, and in such a case, the certificate shall contain an endorsement to that effect. (3) Every application for the grant of an Exchange certificate under the regulation shall be accompanied by......" 7. Regulation 22 empowers the Board to grant an exchange certificate under 1961 Regulation to a person if he holds a certificate under the Coal Mines Regulation, 1957, possesses such practical experience and passes such examination as the Board may stipulate. It further provides that a person who had obtained not less than three years practical experience in Metalliferous Mines in India of a type approved by the Board shall not be required to pass any examination as stipulated in Regulation 22 (2). It is the admitted case of the parties that exchange certificate under 1961 Regulation was given to Prakash by the Board in terms of its resolution which is Annexure 8' of C.W.J.C. No. 1637 of 1981 (1) and Annexure-10 of C.W.J.C. No. 1288 of 1981 (R). It may be mentioned that the Board referred to in this case is Board of Mines Examination constituted under regulation 11 of 1961 Regulations. On 18.3.1980 the Board discussed the question of granting the exchange certificate to the officers of Directorate General of Mines Safety. It also discussed the note put up by the Secretary to the Board. The Board resolved:- "That for the purpose of provision of Regulation 22(2) of the M.M.R. 1961, the experience gained by D.G.M.S. officers in the course of their posting at places and for the periods specified in the table given by the Secretary, B.M.E. in his note at Annexure-V, shall be considered to be equivalent to 3 years' practical experience in Metalliferous Mines in India." This resolution was passed by the Board in purported exercise of the powers vested in it under the provision to Regulation 22(2) of 1961 Regulations, quoted above. 8. On the basis of these facts the point formulated by the petitioners is that whether the resolution is ultravires the powers of the Board. 8. On the basis of these facts the point formulated by the petitioners is that whether the resolution is ultravires the powers of the Board. In elaborating this point it was submitted that the proviso empowers the Board to exempt a person from passing such examination who had obtained not less than three years practical experience in metalliferous mines in India of a type approved by the Board. The Board, therefore, is required in each case before granting an exchange certificate to decide whether a person had obtained such practical experience and if the Board finds as fact that a person had obtained that practical experience the Board may exempt a person from passing that examination and grant exchange certificate. It was contended on behalf of the respondents that from the Secretary of the Board's note it will appear that it was found that officers of the D.G.M.S. are required to make inspection of both under ground and open cast mines. Even region having exclusively open cast metalliferous mines the officers of the D.G.M.S. are required to make inspection of underground coal mines. Similarly in the case of regions having predominently coal mines the officers or the D.G.M.S. are required to make inspection of metalliferous mines situate in the area. Such officers posted in head-quarters and the zonal areas are also required to make inspection of both the coal mines and metalliferous mines and to deal with cases pertaining to grant or permissions. On the basis of these facts the Secretary suggested that if an officer is found to have spent a particular number of years in regions, head quarters and zonal offices, such officers should be given unrestricted exchange certificate under 1961 Regulation. This was accepted by the Board. The learned counsel for the respondents submitted that thus the Board had taken into consideration the number of years spent by Prakash either in regions or in the head quarters and zonal officers of the D.G.M.S. and thereafter decided to grant the unrestricted exchange certificate. 9. The resolution of the Board has been quoted above. From this resolution it will appear that the Board has by creating a fiction said that posting of officers of the D.G.M.S. at the places and for the period specified in the Secretary's note shall automatically be considered to be equivalent to three years practical experience in metalliferous mines. 9. The resolution of the Board has been quoted above. From this resolution it will appear that the Board has by creating a fiction said that posting of officers of the D.G.M.S. at the places and for the period specified in the Secretary's note shall automatically be considered to be equivalent to three years practical experience in metalliferous mines. Lord Asquith in East End Dwelling Co. Ltd. Vs. Finsbury Borough Council lays down the legal effect of the legal fiction in these words: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanies it.................. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the invitable Corollaries of that state of affairs. This has been quoted with approval by the Supreme Court in a number of cases. 10. Metalliferous mine has been defined in 1961 Regulation to include every mines other than coal or an oil mine. The resolution does not say that inspection of metalliferous mines only will be taken into consideration, again it does not say how many number of inspection in the minimum of metalliferous mines shall be required. The words "of a type approved by the Board" as appear in the proviso to Regulation 22(2) refer to metalliferous mines. The proviso does not empower the Board to grant unrestricted exchange certificate to a person who had not obtained less than three years practical experience in a type of metalliferous mines approved by the Board. Learned counsel for the respondents submitted that the words "of a type approved by the Board" refer to "three years practical experience". This cannot be accepted as grammatically correct. Moreover, if that was the intention then the words "of a type approved by the Board" should have appeared after the words "three years practical experience". Not less than three years practical experience in a type of metalliferous mines approved by the Board is, therefore, must and the Board, a delegate, cannot make an exception of the same. Moreover, if that was the intention then the words "of a type approved by the Board" should have appeared after the words "three years practical experience". Not less than three years practical experience in a type of metalliferous mines approved by the Board is, therefore, must and the Board, a delegate, cannot make an exception of the same. In each case, therefore, the Board must decide whether a person had obtained not less than three years practical experience in a type of metalliferous mines approved by it. In other words, the Board had jurisdiction to specify the particular type of metalliferous mines where a person could obtain the requisite years of practical experience. It must be made clear that we are concerned with the method by which such experience can be obtained. In each case therefore, the Board shall have to decide whether a person had obtained requisite years of practical experience in that type of metalliferous mines. In my opinion, the Board had acted beyond its power in granting unrestricted exchange certificate under 1961 Regulation to Prakash without deciding as fact whether he had obtained the requisite years of practical experience in the approved type of metalliferous mines. 11. It was next contended on behalf of the petitioners that the D.P.C. did not follow Annexure-'8' (in Mukhopadhya's case), office memorandum dated 30.12.1976 where under the procedures for making promotions and functioning of the D.P.C. were laid down. The Recruitment Rules of 1980 noticed above, do not lay down the procedure for making promotion and function of D.P.C. It was, therefore, an executive instruction. Since this executive instruction was issued to make provision which are not available in the Rules, the D.P.C was bound to follow this. According to Annexure 8' the D. P. C. was required to classify the candidates found fit as 'out standing' 'very good' and 'good' on the basis of their merits after examination of their respective records of service. It was, further enjoined that it was entirely left to the D.P.C. to make its own classification of officers being considered by them for promotion to selection posts irrespective of the grading that may have been shown in the C. Rs. It was contended that only the C. Rs. were considered for making assessment although in terms of Annexure-'8' the D.P.C. was bound to examine the respective records of service of each candidate. It was contended that only the C. Rs. were considered for making assessment although in terms of Annexure-'8' the D.P.C. was bound to examine the respective records of service of each candidate. It was submitted on behalf of the respondents that the C. Rs. contain the whole service record of an employee. No C.R. was produced before us to show that the C. R. includes the service records of an employee. From Annexure-'8' it appears that records of service and C. Rs. have been used in contradiction. C. Rs. therefore, do not include the records of service. Since there has been violation of Annexure-'8' the recommendation of D.P.C., which has been accepted by respondent No.1, must be held to be bad 12. The petitioners have also challenged the validity of the order of appointments of Prakash and Mehta on the ground that Clause-13 of the schedule to the recruitment Rules 1980 provided that selection of each candidate shall be made in consultation with the Union Public Service Commission (the UP.S.C.). The case of the petitioners is that after the recommendation of the D.P.C. Prakash and Mehta were appointed, as D.D.G.M.S. by order dated 31.7.1981. Mukhopadhya filed the writ application on 10.8.1981. The case of Prakash and Mehta were sent to the U.P.S C. on 4.11.1981 and the U.P.S.C. approved by letter dated 16.11.1981. On these facts it was submitted on behalf of the petitioners that not only there was no consultation before the appointment of Prakash and Mehta, but the consultation with the U.P.S.C, was made long after Mukhopadhya filed the writ application. According to the petitioners the consultation was mandatory and that having not been done the appointments of Prakash and Mehta were bad. 13. It was contended on behalf of the respondent Nos. 1 to 3 that a member of the U.P.S.C. was the member of the D.P.C. and, therefore there has been compliance with the provisions of the Recruitment Rules 1980. Further it was submitted that the consultation before the appointments was not mandatory but merely directory. In my opinion the contention raised on behalf of the petitioner have no merit. It is true that the presence of a member of the U.P.S C. as a member of D.P.C. cannot be said to be the compliance of the Recruitment Rules, 1980. But the U.P.S.C. was consulted and it had approved the appointments. In my opinion the contention raised on behalf of the petitioner have no merit. It is true that the presence of a member of the U.P.S C. as a member of D.P.C. cannot be said to be the compliance of the Recruitment Rules, 1980. But the U.P.S.C. was consulted and it had approved the appointments. In my opinion, for the reasons: for which the Supreme Court has held that the consultation with the U.P.S C. as provided in Article 320 of the Constitution of India is directory, the consultation under Recruitment Rules, 1980 must be held to be directory. 14. In the result, both the applications are allowed. Annexure-'3' In Mukhopadhya's case which is Annexure-'2' in Sinha's case and Annexure 8 of Sinha’s case are quashed, The respondents 1 to 3 may take steps for filling up the posts according to law. Applications allowed.