JUDGMENT S.C. Mathur, J. - Tardiness in holding selections and making appointments to certain posts in accordance with statutory rules making instead ad hoc appointments and thereafter regularising them by framing another set of rules has resulted in this unfortunate litigation involving young and qualified medical graduates and post graduates. Petitioners in Group-B of the petitions press that there has been enough of ad hocism and the State should now fill up the posts through Public Service Commission and those appointed on ad hoc basis and have not so far been regularised should not be regularised. Petitioners in Group-B are holding ad hoc appointments and press for regularisation of their services. Thus the two groups of petitions involve conflicting claims. The question now surviving for determination mainly is whether the U.P. Regularisation of Ad Hoc Appointment (On Posts Within The Purview of The Public Service Commission (Second Amendment) Rules, 1989 are constitutionally valid. The dispute in this petition pertains to teaching posts in Medical Colleges of the State. 2. Admittedly the posts in question fell within the purview of the State Public Service Commission, for short Commission. For several years prior to 14th May, 1979 no selection was held through the Commission and instead ad hoc appointments were made. For making these appointments advertisements were issued from the Directorate of Medical Education and Training inviting applications from persons possessing the prescribed qualifications. The candidates were selected by a Committee appointed by the State Government as it was the appointing authority of the posts in question. The selected candidates were thereafter issued appointment letters. These ad hoc appointees were liable to be replaced by candidates selected through the Commission. The selection through commission were not held for years together and ad hoc appointments continued. On 14th May, 1979 the State Government promulgated the U.P. Regularisation of Ad Hoc Appointments(On Posts Within The Purview of the Public Service Commission) Rules, 1979 framed under the proviso to Article 309 of the Constitution of India. Rule 4(1) of these rules provides for regularisation of services of ad hoc appointees who were appointed as such before 1st January, 1977 and were continuing in service on the date of the commencement of the Rules possessed the requisite qualifications for regular appointment at the time of their ad hoc appointment and had completed three years of continuous service. Rule 4(1) of these rules provides for regularisation of services of ad hoc appointees who were appointed as such before 1st January, 1977 and were continuing in service on the date of the commencement of the Rules possessed the requisite qualifications for regular appointment at the time of their ad hoc appointment and had completed three years of continuous service. The regularisation was to be made on the basis of suitability judged from previous performance reflected in their Character Roll Roll and other records. Under sub-rule (3) screening for regularisation was to be done by a Selection Committee constituted by the appointing authority but consultation with the Commission was not necessary. Rule 6 provides that appointments made under these rules shall be deemed to be under the relevant service rules. Rule 8 provides for termination of service oft hose who are not found suitable for regularisation. 3. On the same day. viz. May 14. 1979 the State Government issued notification under Article 320 (3) of the Constitution amending the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, for short 1954 Regulations. The amending notification is called "The Uttar Pradesh Public Service Commission (Limitation of Functions) (First Amendment) Regulations, 1979, for short Amending Regulations of 1979. Through paragraph 2 of the amending notification the following clause was added to Regulation 3 of the original Regulations : "(c) When the appointing authority in respect of the service or post concerned is the Government or is an authority other then the Government and the person concerned being directly appointed on ad hoc basis on or before the date notified by Government possessed requisite qualifications for regular appointment at the time of such ad hoc appointment and has completed three years continuous service on or after the said date." 1954 Regulations provide for matters on which consultation with Public Service Commission is not necessary. The consequence of addition of the aforementioned clause (C) was that consultation with the Commission became unnecessary for regularising the services of ad hoc appointees covered by Regularisation Rules of 1979. 4. The State Government made use of the regularisation Rules of 1979 and regularised the services of several ad hoc appointees. However, the process of making ad hoc appointments continued as selection through commission could not take place in respect of several posts. 4. The State Government made use of the regularisation Rules of 1979 and regularised the services of several ad hoc appointees. However, the process of making ad hoc appointments continued as selection through commission could not take place in respect of several posts. These ad hoc ,appointees also continued to work as such for more than three years without candidates selected by the Commission becoming available. In order to regularise the services of these ad hoc appointees also the cut off date 1-1-1979 mentioned in 1979 Rules was brought forward by amending the parent Rules of 1979 and services of more ad hoc appointees were regularised. The amendment was made on 22nd March 1984 when Rule 9 was added through the Uttar Pradesh Regularisation of Ad Hoc Appointments (On Posts Within The Purview of the Public Service Commission) (Amendment) Rules, 1984. Newly added Rule 9 applied the provisions of the Rules to ad hoc appointments made on or before 1st May, 1983 which were continuing as such till the date of enforcement of the amendment. 5. Even after the amendment of 1984 the process of making ad hoc appointments continued and on 26th February 1988 an advertisement issued from the Directorate of Medical Education and Training, U.P. appeared in the newspaper "Dainik Jagaran" inviting applications for certain teaching posts in the Medical Colleges of the State. Appointment to these posts was to be made on ad hoc basis. This brought Dr. Kapil Sood (W.P. No. 1659 of 1988) to this Court complaining against ad hocism which, according to him, gave the Director of Medical Education and Training free hand to practise favouritism and nepotism. He accordingly prayed for quashing item No. 23 of the advertisement which related to his Medical speciality, viz. Neurology. The petition was entertained by this Court and time-bound interim order was passed on 17th March 1989 whereby the opposite parties were restrained from announcing the result of the selection and appointing anyone in pursuance of the selection; selection itself was however not stayed. 6. Dr. Sood's petition was confined to the post of Lecturer in Neurology. It was not a general petition covering all teaching posts in various Medical Colleges of the State. Such a general petition was filed on 4th April. 1988 by U.P. Junior Doctors Action Committee and Dr. Anil Jain (W.P. No. 2288 of 1988). 6. Dr. Sood's petition was confined to the post of Lecturer in Neurology. It was not a general petition covering all teaching posts in various Medical Colleges of the State. Such a general petition was filed on 4th April. 1988 by U.P. Junior Doctors Action Committee and Dr. Anil Jain (W.P. No. 2288 of 1988). The immediate provocation for this petition was the advertisement dated 22nd February 1988 issued by the Director again inviting applications for making ad hoc appointments. In this petition, apart from praying for quashing the advertisement dated 22nd February 1988, the petitioners have sought a writ of mandamus to command the State of U.P. and the Director to fill the vacant posts of Lecturers in all the Medical Colleges of the State, by making regular appointments thereto, treating the posts on which ad hoc appointees are working as vacant. By Regular appointment the petitioner means appointment after selection through Public Service Commission. In this petition certain interim orders have been passed which bear reproduction seriatim. These interim orders are as follows :- 25-5-88 C.M.A. No. 8042 (W) of 1988 List on 9-7-88. Till then the interviews' result will not be declared and interviews will continue. (Reference to interview is the interview for ad hoc appointments.) 4-8-88 C.M.A. No. 8978 (W) of 1988 Counter-affidavit filed on behalf of the Public Service Commission indicates that they are still in doubt about the number or class of vacancies for which they have to make selections. The Government Letters dated 20-3-87, 28-3-87, 14-6-88 and 16-6-88 do indicate certain vacancies which they were required to advertise and make selection for. The learned counsel for the petitioner says that there are still many other vacancies. In order to obviate the doubts if any, we direct that the State Government shall furnish within ten days from today a complete list of the vacancies sought to be filled by recruitment through the Public Service Commission indicating interalia the class of posts in question. The Public Service Commission will thereupon advertise and make a selection complete in all respects within nine months from today and forward the same to the Government. It is expected that the State Government will thereupon take decision and issue appointment orders, if any, within one month from the date of receipt of the recommendations from the Public Service Commission. The Public Service Commission will thereupon advertise and make a selection complete in all respects within nine months from today and forward the same to the Government. It is expected that the State Government will thereupon take decision and issue appointment orders, if any, within one month from the date of receipt of the recommendations from the Public Service Commission. We further direct that the State Government may make ad hoc appointments on the basis of selections already made in pursuance of the advertisement dated 22-2- 88 contained in Annexure-2 to the writ petition, for a period of nine months from the date of issue of appointment letters. This ad hoc appointment will last for nine months as aforesaid or till the date of issue of the order of regular appointment by the State Government on the recommendations of the Public Service Commission, whichever is earlier. 26-10-88 C.M.A. No. 8042(w) of 1988 "............... We have heard counsel for the parties and are not inclined either to grant stay order in Writ No. 7706 of 1988 or to modify the one which has already been granted in Writ No. 2288 of 1988. .............. For what we have said above, we are of opinion that no case for grant of stay order has been made out either by the U.P. State or by the ad hoc appointees.........Interview has to take place for all the specialities and appointments irrespective of the vacancies being occupied by ad hoc appointees. Since regular selection will take place, no stay orders can be passed in Writ No. 7706 of 1988. So far as writ No. 2288 of 1988 is concerned, there is already a stay order granted by this Court." 3-8-1989 "...... It is a sad commentary that in spite of this Court's order dated 4-8-1988 the regular appointments have not been made. This Court had clearly stated in the said order that the appointments shall be made by the Government within a month of the recommendations received from the Public Service Commission. The apprehension on behalf of the petitioners is that : if this interim odder is extended, the State Government may make those who have been appointed on ad hoc basis "Regularised" in some form or the other. They say that such Regularisation will be at the cost of the selected candidates. This should not be permitted. The apprehension on behalf of the petitioners is that : if this interim odder is extended, the State Government may make those who have been appointed on ad hoc basis "Regularised" in some form or the other. They say that such Regularisation will be at the cost of the selected candidates. This should not be permitted. It is hereby directed that State Government may make appointments or continue with the ad hoc appointments already made on or before 3-8-1989 for another period of three months but none of the appointees who have been appointed in pursuance of this Court order and may be appointed in pursuance of this order passed today, shall by "regularised" in any manner whatsoever, until further orders in the Writ Petition. This does not stop the Government from taking immediate steps to appoint those who have been regularly selected by the Public Service Commission and thus abide by the directions contained in order dated 4-8-1988 within three months. .........." (emphasis supplied) 7. The apprehension expressed on behalf of the petitioners and noticed in the above order became true on 7th August 1989 when the State Government promulated the Uttar Pradesh Regularisation of Ad Hoc Appointment (on Posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 whereby Rule 10 was added to 1979 Regularisation Rules. By Rule 10 the cut off date for regularisation was further brought forward to 1st October 1986. Thus all those who were directly appointed on or before 1st October 1986 and were continuing in service as such, on the date of the promulgation of the amendment also became entitled to be regularised under the Rules of 1979. 8. The above amendment led to the filing of C.M.A. No. 11486(W) of 1988 in Writ Petition No. 4570 of 1989 on which the following interim order was passed on 23rd August 1989 which is incorporated in the order sheet of that case : 23-8-1989............ Meanwhile no regularisation of the ad hoc appointees in K.G. Medical College, Lucknow shall be made on the basis of notification dated 7th August, 1989 whereby Uttar Pradesh Regularisation of Ad Hoc Appointment (on posts within the purview of the Public Service Commission (Second Amendment) Rules, 1980, have been published. ..........." 9. A similar application for interim relief was made In Writ Petition No. 7706 of 1988 also C.M.A. No. 12737(W) of 1989. ..........." 9. A similar application for interim relief was made In Writ Petition No. 7706 of 1988 also C.M.A. No. 12737(W) of 1989. On this application an order was passed on 28th August, 1989, material portion of which reads as follows :- 28-8-1989"......... Till the next listing of the case the order dated 23rd August. 1989 shall remain in operation. Learned counsel for the State had prayed that the State may be allowed to take steps for regularisation but final order of regularisation may not be passed till further orders of this Court. Our order of 23rd August, 1989 has not prevented the State Government from taking intermediate steps. The State Government shall, however, not pass final orders of regularisation till the next date. The interim order dated 23rd August, 1989 shall be applicable not only to K.G. Medical College but also to other Medical Colleges in the State. On 14th Sept. 1989 when all the connected writ petitions came up for hearing the learned counsel for the State prayed for adjournment to enable him to file counter affidavit. The prayer for adjournment was accepted. Continuance of the interim order dated 28th August, 1989 was opposed on behalf of the ao hoc appointees who wanted to take advantage of the amendment made in 1989 in the Regularisation Rules of 1989. Relevant portion of the order passed on 14th Sept. 1989 reads as follows : 14-9-1989"...........Put up tomorrow. Till tomorrow the interim order shall remain operative. Sri S.C. Misra has pointed out that there are posts in respect of which recommendations had been received from the Public Service Commission and no ad hoc appointee is serving on the said posts and still the State Government is not taking decision on the recommendations of the Commission. We see no justification for this attitude. The State Government shall accordingly take decision on the recommendation of the Public Service Commission in respect of posts on which no ad hoc appointee is working. This shall be done within 2 weeks from the communication of this order.........." On 15th Sept. 1989 the case was again adjourned with the following observation regarding the interim order :- 15-9-1989 "......Till the next listing interim order dated 14th Sept. This shall be done within 2 weeks from the communication of this order.........." On 15th Sept. 1989 the case was again adjourned with the following observation regarding the interim order :- 15-9-1989 "......Till the next listing interim order dated 14th Sept. 1989 shall remain operative with the extension that the State Government shall take decision on the recommendations of the Public Service Commission in respect of those posts also on which ad hoc appointees who are not covered by 1979 Regularisation Rules are working." 10. On 25th October, 1989 the previous interim orders were continued with modification. The order incorporated on the order sheet of Writ Petition No. 7706 of 1988 reads as follows :- 25-10-1989"..........Till the next listing the interim order already operating shall remain operative with the modification that the State Government may proceed with regularisation in respect of the posts for which no candidate has been recommended by the U.P. Public Service Commission. The State Government shall however not proceed with regularisation in respect of posts for which candidates selected by the Commission have already become available. Regularisation and the matter of seniority shall be subject to further orders of the Court......." 11. From the above it will be seen that the interim order dated 4th August, 1988 was never vacated, although it was modified from time to time. By order dated 26th October, 1988 also the said order was maintained. It may be mentioned that by the time the order dated 26th October, 1988 was passed more writ petitions had been filed with applications for interim relief, including Writ Petition No. 7706 of 1988 by the same association which had filed the earlier Writ Petition No. 2288 of 1988. By order dated 26th October, 1988 not only the application for interim relief filed in Writ Petition No. 2288 of 1988 was disposed of but also the applications for interim relief filed in other petitions. The order dated 26th October, 1988 thus covers writ petitions numbered 2288, 7705. 7706 and 8505 of 1988. 12. As already mentioned the Regularisation Rules of 1979 were amended through notification dated 7th August, 1989. Thereafter application was filed on 15th Sept. 1989 by the petitioner in Writ Petition No. 7706 of 1989 for leave to amend the writ petition so as to challenge the validity of the amended Rule. 7706 and 8505 of 1988. 12. As already mentioned the Regularisation Rules of 1979 were amended through notification dated 7th August, 1989. Thereafter application was filed on 15th Sept. 1989 by the petitioner in Writ Petition No. 7706 of 1989 for leave to amend the writ petition so as to challenge the validity of the amended Rule. The application was allowed the same day and opposite parties were granted opportunity to file counter affidavit to t he amended writ petition and the petitioner was allowed opportunity to file rejoinder affidavit thereto. 13. In the individual writ petitions some supported the Regularisation Rules and some opposed them. We will deal with the individual petitions after settling the issue common to all the petitioners. The common issue is the validity of Regularisation Rules. We take up this issue first- Validity of Rule 10 of, the Regularisation Rules- The validity of Rule 10 introduced by 1989 amendment is challenged on the following grounds:- (1) The Rule is the result of the mala fides of the then Director of Medical Education and Training Dr. S.S. Misra whose son Dr. Vipin Misra was working on ad hoc basis in G.S.V. Medical College, Kanpur since 1985 and stood to gain by the impugned Rule; (2) The Rule also suffers from the vice of malice in law in as much as it seeks (i) to nullify or destroy the effect of the interim orders passed by this Court particularly the orders dated 4th August, 1988, 26th October. 1988 and 3rd August, 1989, and (ii) to by pass the State Public Service Commission which is a constitutional authority created under Article 315(1) of the Constitution; (3) The Rule is arbitrary and discriminatory and, therefore. 1988 and 3rd August, 1989, and (ii) to by pass the State Public Service Commission which is a constitutional authority created under Article 315(1) of the Constitution; (3) The Rule is arbitrary and discriminatory and, therefore. violative of Article 14 of the Constitution; (4) The Rule violates Article 320(3) of the Constitution in as much as it was made without consulting the Public Service Commission; (5) The Rule violates the provisions of the U.P. Public Service Commission (Limitation of Functions) Regularisation, 1954 framed under the proviso to Clause (3) of Article 320 of the Constitution; (6) The Rule seeks to regularise those ad hoc appointments which were invalid either from the very beginning or became invalid subsequently in view of the provisions of the aforesaid Regularisation, particularly Regularisation 5(a) and the Government Orders issued from time to time particularly the order dated 15th May 1975, Annexure 13 to Writ Petition No. 7706 of 1989 and such regularisation is not permissible in law; (7) The Rule conflicts with other Rules of the Regularisation Rules of 1979 particularly Rule 8 thereof. 14. It is also the submission of the learned counsel that Rule 10, in any case. cannot cover post for which selection has already been made by the Commission and 1979 Rules will have to be read down as containing a clause that the said Rules will not apply to posts for which selection has already been made by the Commission. In this connection, learned counsel points out that such a clause exists in the Rules relating to Regularisation of ad hoc promotions, namely, the U.P. Regularisation of ad hoc promotions (on posts within the purview of the Public Service Commission) Rules, 1988. It is asserted that some of the ad hoc appointees who ace not sought to be regularised applied for regular appointment before the Commission but were unsuccessful. It is submitted that regularisation of such unsuccessful ad hoc appointees will be entirely arbitrary. Defence 15. Sri Gopal Subramaniam supporting the validity of the Rules submits that exercise of legislative power is immune from challenge on the ground of mala fides. It is submitted that regularisation of such unsuccessful ad hoc appointees will be entirely arbitrary. Defence 15. Sri Gopal Subramaniam supporting the validity of the Rules submits that exercise of legislative power is immune from challenge on the ground of mala fides. According to him the power under the proviso to Article 309 is indeed conferred upon the executive but the character of the power is legislative and accordingly just as an Act framed by .the Legislature cannot be challenged on the ground of mala fides, a Rule framed under the proviso to Article 309 also cannot be challenges: on the ground of mala fides. Factually also, he submits, the State Government cannot be accused of mala fides as the State Government has, by amending the Rules. merely relieved from hardship those who had to take up ad hoc appointment under compelling circumstances. He points out that the ad hoc appointees were fully eligible to face selection by the Public Service Commission in the years in which they were appointed on ad hoc basis but they could not appear at selection because none was held and for this they cannot be blamed, although blame may attach to the State Government or to the Commission, individually or jointly. In the years in which they were appointed these ad hoc appointees were also in the same position in which the present petitioners find themselves. If selection through Commission had taken place in those years, in all likelihood, they would have been selected and given regular appointment. He asserts that ad hoc appointees were not appointed on the whims of any individual officer. He points out that posts were advertised and the candidates who applied in response to the advertisement were interviewed by a duly constituted selected committee and then selected. Most of the petitioners, the learned counsel argues, were not even qualified for appointment in those years. If selection had taken place in those years, the vacancies would have been filled up and would not have remained available for the present petitioners. As such, it is submitted most of the present petitioners do not suffer any prejudice on account of the ad hoc appointments being now regularised. On the contrary, according to the learned counsel, many ad hoc appointees will suffer prejudice on account of their having crossed the maximum age qualification prescribed by the Rules. As such, it is submitted most of the present petitioners do not suffer any prejudice on account of the ad hoc appointments being now regularised. On the contrary, according to the learned counsel, many ad hoc appointees will suffer prejudice on account of their having crossed the maximum age qualification prescribed by the Rules. Regarding those who were eligible to apply for the posts, it is pointed out. they had opportunity to apply when the posts were advertised. Those who, despite this opportunity, did not apply cannot make any grievance at this stage and those who applied but failed to qualify against those who were selected and did not challenge that selection on the ground of mala fides or on any other ground at that stage cannot now raise ai y grievance against regularisation if suction o' such ad hoc appointments. 16. So far as the allegation of personal mala fide is concerned, the learned counsel points out that the decision to frame or amend a Rule under the proviso to Article 309 is taken at the level of Cabinet and at that level an officer of the rank of Director cannot exercise any influence. It is also pointed out that Dr. S. S. Misra against whom allegation of personal interest has been made belonged to the Medical Department while the impugned notification was issued from the personal department; the impugned rule covers not only employees of the Medical Department but also employees of other departments. It is pointed out that none else except Medical Graduates have challenged the validity of the amended rule. 17. The learned counsel further submits that the interim orders were passed by the Court on the legal position obtaining at that time and this Court never prohibited the State Government, nor possibly could, from exercising the legislative power available to it under the proviso to Article 309. As such, it is pressed, Rule 10 cannot be said to offend the interim orders of this Court. It is contended that after the insertion of Rule 10, the interim orders of the Court passed prior thereto have become infructuous. 18. The learned counsel points out that by regularising the services of ad hoc employees who have already served the State for a certain number of years, the State Government gets the benefit of their experience and the ad hoc appointees get justice. 18. The learned counsel points out that by regularising the services of ad hoc employees who have already served the State for a certain number of years, the State Government gets the benefit of their experience and the ad hoc appointees get justice. In such circumstance, the learned counsel contends, the State Government cannot be accused of arbitrariness and the charge of violation of Article 14 is misconceived. 19. Regarding the alleged violation of Article 320(3), the learned counsel submits that the said Article is not mandatory and violation thereof does not nullify the resultant action. Similarly violation, if any, of the Regulations framed under the proviso to the said Article would also not invalidate the resultant action. 20. It is submitted that the principles of reading down is invoked to save a Rule which would otherwise be invalid. It is pressed that the Rule is valid on its own and therefore the principle of reading down cannot be applied. 21. Having pointed out concisely the points pressed by the learned counsel for the parties. We may now proceed to consider the tenability of the submissions made from either side. (1) Personal bias of malice of Dr. S.S. Misra. 22. In writ petition No. 2288 of 1988 the petitioners have impleaded Dr. S.S. Misra by name and stated in paragraph 20 that Dr. Misra's son. Dr. Vipin Misra was appointed on ad hoc basis as Lecturer in Medicine in G.S.V. Medical College in 1985. This fact has not been disputed through any counter affidavit. We may, therefore, accept the factual assertion made on behalf of the petitioners that Dr. Vipin Misra was appointed on ad hoc basis in the year 1985 and that he is the son of Dr. S. S. Misra the then Director of Medical Education and Training. Rule 10 makes eligible all those who were appointed on ad hoc basis on or before 1st October 1986. Accordingly Dr. Vipin Misra appears to be entitled to be considered for regularisation under the impugned rule. But that alone will not be sufficient to uphold the petitioners' plea of bias or mala fides. The impugned rule has been promulgated by the Government. Obviously its promulgation was considered at the level of the State Government. Dr. Misra is an officer subordinate to the State Government. Apparently he had no hand in decision making at the level of the State Government. The impugned rule has been promulgated by the Government. Obviously its promulgation was considered at the level of the State Government. Dr. Misra is an officer subordinate to the State Government. Apparently he had no hand in decision making at the level of the State Government. Before promulgation the Rule must have been cleared by the Cabinet. The writ petition does not contain any fact to show that Dr. Misra was in a position to influence the will of these members of the Cabinet or even of the Secretary to Government. Further Dr. Misra belonged to the Medical Department while the impugned notification was issued from the Karmik (Personnel) Department. Even if it is assumed that on account of his official position Dr. Misra was in a position to influence the officials of the State Government, that influence could not extend beyond his own department, viz, the Medical Department. Accordingly the allegation of personal bias made by the petitioners is vague and unsubstantiated. On the basis of the said allegation, we cannot hold that Rule 10 was promulgated on account of the interest Dr. S. S. Misra allegedly had in its promulgation. (2) Malice in law. (i) Destruction of Court's order. The interim orders passed by this Court from time to time have been reproduced hereinabove. None of the orders restrained, nor possibly could restrain, the State Government from amending 1979 Rules. They at the most restrained regularisation of ad hoc appointments. This inference inference is clear from the emphasised portion in Court's order dated 3rd August 1989 reproduced hereinabove. This interim order was operative when Rule 10 was promulgated on 7th August 1989. This order at the most restrained the State Government from passing any administrative or executive order regularising the services of ad hoc appointees. Under the regularisation rules, regulation is not automatic. Under Rule 4(l) eligible ad hoc appointee has to be "considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability." The consideration has to be made by a Selection Committee to be constituted by the appointing authority under Rule 4(3). The selection committee has to consider suitability for regular appointment on the basis of character roll and other records pertaining to the ad hoc appointees as laid down in sub-rules (4) and (5) of Rule 4. The selection committee has to consider suitability for regular appointment on the basis of character roll and other records pertaining to the ad hoc appointees as laid down in sub-rules (4) and (5) of Rule 4. Under sub-rule (6) the selection committee is required to forward to the appointing authority the list of ad hoc appointees selected for regular appointment. After receipt of this list the appointing authority is required under Rule 5 to make appointments from the list. The process of regularisation contemplated by the Rule, therefore. ends with the issue of appointment order under Rule 5. The issue of appointment order is an administrative act. It is this administrative act which could not be performed the appointing authority in view of the interim orders passed by this Court. After the interim orders of this Court, 1979 Rules were indeed amended but no appointment order was issued under the regularisation rules without the specific permission of the Court. 23. In view of the above it cannot be said that Rule 10 was promulgated in violation of interim orders passed by this Court. (ii) By-passing Public Service Commission-Factual. 24. Article 315 of the Constitution mandates establishment of a Public Service Commission for the Union and a Public Service Commission for each State. This Article has been complied with as admittedly Public Service Commission is functioning in the State of Uttar Pradesh. The Functions of the Commission and the obligations of the State Government toward it are mentioned in Article 320 of the Constitution. Clauses (1) and (2) prescribe the duty of the Commission. Under clause (1) it is the duty of the Commission to conduct examination for appointments to service, Requirements of services are known to Government. This requirement will have to be conveyed to the Commission by the Government. In other words, the duty enjoined by clause (1) will be discharged by the Commission when it receives requisition from the Government. Clause (3) prescribes the obligations of the Government. On the items specified in the sub-clauses (a) to (c), it is provided that the "Commission shall be consulted." The item specified in sub-clause (a) is "on all matters relating to methods of recruitment to civil services and for civil posts." Sub-clause (b) mentions on the principles to be followed in making appointments to civil services and posts........ On the items specified in the sub-clauses (a) to (c), it is provided that the "Commission shall be consulted." The item specified in sub-clause (a) is "on all matters relating to methods of recruitment to civil services and for civil posts." Sub-clause (b) mentions on the principles to be followed in making appointments to civil services and posts........ and on the suitability of candidates for such appointments." After prescribing the obligations of the Government, clause (3) prescribed also the corresponding duty of the Commission by providing "and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which......... the Governor of the State may refer to them." Then follows proviso which reads thus 'Provided that the......... Governor ....... may make regulations specifying the matters in which either generally, or in any particular class of case or in any .particular circumstances, it shall not be necessary for a Public Service Commission to be consulted." 25. In exercise of the power conferred under the aforesaid proviso the Governor of the State of Uttar Pradesh made "The Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, for short 1954 Regulations. There Regulations were made in supersession of the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1941, for short 1941 Regulations, which were published with notification dated 15th October 1941. Regulations 3, 4 and 5 mention the situations in which appointment to civil services and posts may be made without consultation with the Commission. Regulation 3 is relevant for our purposes. Prior to amendment by notification dated 14th May 1979, this Regulation read as follows : "3. It shall not be necessary for the Commission to be consulted on matters relating to methods of recruitment to civil services and posts, or the principles to be followed in making appointments to such services and posts. or the suitability of candidates for such appointments, in the following cases : (a) When the appointing authority in respect of the service or post concerned is an authority other than the Governor, unless in any particular case, Government have directed or may, after consultation with the Commission, direct that the service or post in question shall be within the purview of the Commission. NOTE:- The Services and posts mentioned in the-Schedule appended to the U.P. Public Service Commission (Limitation of Functions) Regulations, 1941, as in force before the date of this notification shall continue to remain under the purview of the Commission until a direction to the contrary is issued by the Government, after consultation with the Commission. (b) When the appointing authority in respect of the service or post concerned is the Governor, and the maximum pay attached to that service or post does not exceed Rs. 200 per mensem, or the Governor for any other reason directs, after consultation with the Commission, that the service or post in question shall be outside the purview of the Commission. Provided that the Governor may, in consultation with the Commission, place any particular service or post within the purview of the Commission notwithstanding the fact that the appointing authority in respect thereof is the Government and the maximum pay attached to the service or post does not exceed Rs. 200 per mensem." Admittedly maximum pay attached to the post in question exceeded Rs. 200 per mensem and Governor was the appointing authority. Accordingly in view of the provision contained in clause (b) the post fell within the purview of the Commission. On 14th May 1979, as already stated, the Regulations were amended and clause (c) was added to Clause 2. This clause reads as follows : "(c) When the appointing authority in respect of the service or post concerned is the Governor or is an authority other than the Governor and the person concerned being directly appointed on ad hoc basis on or before the date notified by Government possessed requisite qualifications for regular appointment at the time of such ad hoc appointment and has completed three years continuous service on or after the said date." The above clause takes away from the purview of the Commission appointments of the nature specified therein. It needs to be pointed out that while clauses (a) and (b) speak of service or post, clause (c) deals with the nature of appointment and covers all types of services or posts, irrespective of the fact whether the appointing authority of that service or post is Governor or someone else. It needs to be pointed out that while clauses (a) and (b) speak of service or post, clause (c) deals with the nature of appointment and covers all types of services or posts, irrespective of the fact whether the appointing authority of that service or post is Governor or someone else. The conditions for the applicability of the clause are:- (i) the appointment should have been made to the post directly: thus appointments by promotion are excluded from the purview of this clause; (ii) the appointment should have been made on ad hoc basis; (iii) the ad hoc appointment should have been made on or before the date notified by the State Government; (iv) at the time of ad hoc appointment the person concerned should have possessed the qualification prescribed for regular appointment; and (v) he should have completed three years continuous service on or after the notified date. If the above conditions are satisfied the appointing authority can proceed to convert an ad hoc appointment into regular appointment without consulting the Commission, even though under clause (a) or clause (b) the post falls within the purview of the Commission. In effect clause (c) clothed the Governor with power to frame Rules to regularise ad hoc appointments made without following the procedure prescribed by the Recruitment Rules. 26. The State Government lost no time in taking advantage of the power which became available to it and promulgated on the same date, viz., 14th May 1979 the U.P. Regularisation of Ad Hoc Appointments(On Posts within the Purview of the Public Service Commission) Rules, 1979 framed under the proviso to Article 309 of the Constitution. The Rules came into force from the date of their publication in the Gazette, viz., 14th May 1979. Rule 2 gives overriding effect to these Rules. It provides "these rules shall have effect notwithstanding anything to the contrary contained in any other rules or order." Rule 4(1) reads as follows:- "4. (1) Any person who- (i) was directly appointed on ad hoc basis before January 1. 1977 and is continuing in service, as such, on date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and (iii) has completed or, as the case may be, after he has completed three years continuous service. 1977 and is continuing in service, as such, on date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and (iii) has completed or, as the case may be, after he has completed three years continuous service. shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders." Sub-rules (3) to (6) have been discussed hereinabove. Rule 6 provides that "appointments made under these Rules shall be deemed to be under the relevant service Rules or orders, if any." In view of this deeming clause even though in making regular appointment provisions of the normal Recruitment Rules may not have been followed, the appointment will nevertheless be treated to have been made under those rules. Once this consequence follows the appointment by regularisation will not be challengeable on the ground that the procedure prescribed by the normal Recruitment Rules has not been followed. It is permissible to the legislature as also to the executive authority exercising legislative power to make such a deeming provision. This is not disputed even by the petitioners. It is perhaps for this reason that the petitioners do not level the charge of malice in law against the Regularisation Rules as originally framed. The amendment made by notification dated 22nd March 1984 whereby the cut off date was extended to 1st May 1983 is also not challenged on that ground. It is only the amendment made by notification dated 7th August 1989 which is challenged on that ground. At this stage it becomes necessary to consider the background in which the original Rules were promulgated and the background in which the present amendment has been made to find out whether there is any difference between the two grounds. Before considering this question Rules 9 and 10 introduced through amendments of 1984 and 1989 respectively may be reproduced: "9. The provisions of these Rules shall apply, mutatis mutandis. Before considering this question Rules 9 and 10 introduced through amendments of 1984 and 1989 respectively may be reproduced: "9. The provisions of these Rules shall apply, mutatis mutandis. also to any person directly appointed on ad hoc basis on or before May 1, 1983 and continuing in service as such at the date of commencement of the Uttar Pradesh Regularisation of Ad Hoc Appointments (On Posts within the Purview of the Public Service Commission) (Amendment) Rules, 1984. " "10. The provisions of these Rules shall apply, mutatis mutandis. also to any, person directly appointed on ad hoc basis on or before October 1, 1986 and continuing in service as such, on the date of commencement of the. Uttar Pradesh Regularisation of Ad Hoc Appointments (On Posts within the Purview of the Public Service Commission) (Second Amendment) Rules, 1989." 27. Now the background : If the back- ground of 1989 amendment is the same as of the original rule promulgated in the year 1979 and of the amendment made in the year 1984, it will be difficult to uphold the plea of malice in law. The background appears to be identical or at any rate akin. One of the conditions of regularisation prescribed in Rule 4(i)(iii) is that the ad hoc appointee should have worked on the post for a, minimum period of three years. Regulation 5(a) permits temporary or officiating appointment, which term includes "ad hoc appointment" also for a period of one year only. From this it would appear that the Rule-making authority considered the period of one year sufficient to hold regular selection. If regular selection is held within this period, the ad hoc appointee gets opportunity to appear thereat and qualify. If he qualifies he is absorbed and if he fails to qualify he goes out of the job to try his luck elsewhere. But when no selection is held he gets no opportunity to try his luck and per force he has to remain stuck to his ad hoc appointment. In the case on hand boys and girls qualified in medical science remained stuck to ad hoc appointments for not one year but three years. The State Government obviously considered this period as unduly long for continuing ad hocism. It, therefore, promulgated the Regularisation Rules in 1979. The qualifying period of three years is maintained in 1984 and 1989 amendments also. The State Government obviously considered this period as unduly long for continuing ad hocism. It, therefore, promulgated the Regularisation Rules in 1979. The qualifying period of three years is maintained in 1984 and 1989 amendments also. Thus the background of 1989 amendment is the same as of 1979 Rules and of 1984 amendment. If in that background 1979 Rules and 1984 amendment are valid, there is no reason to hold invalid the amendment of 1989. 28. The purpose of regularisation is to bring to an end ad hocism. This purpose is laudable and no exception can be taken to it. The material on record does not establish that the State Government deliberately avoided selection through Commission. On the contrary, it appears that the State Government sent requisitions to the Commission from time to time. The obvious purpose of sending the requisitions was to obtain candidates through the Commission. In the counter affidavit dated 28th September 1989 filed on behalf of the State in Writ Petition No. 2288 of 1988, it has been stated that requisitions were sent to the Commission for various posts in the years 1982, 1983, 1985, 1986, 1987 and 1988 but against these requisitions. except for three posts of Lecturer in the Department of Psychiatry, the first recommendation was received from the Commission by the State Government only on 10th August, 1989, after the Rules had been amended on 7-8-1989. In the years 1982, 1983, 1986, 1987 and 1988 requisitions had been sent for 15, 26, 11, 14 and 24 posts respectively. Recommendations in respect of three posts of Lecturers in Psychiatry were received by the State Government in the last week of November 1988. Recommendation received on 10th August 1989 covers only 15 posts. In paragraph 33 of the State's counter affidavit, it is stated that this recommendation was against the pending requisitions for more than 65 posts. 29. In the counter affidavit filed on behalf of the Commission in Writ Petition No. 2288 of 1988 in reply to State's aforesaid counter affidavit, reference has been made to two letters sent to the Commission by the State Government whereby the former was restrained from making selections on the basis of the previous requisitions. These letters are dated 26th December 1983 and 8th February 1984, Annexures CA-1 and CA-2 respectively. These letters are dated 26th December 1983 and 8th February 1984, Annexures CA-1 and CA-2 respectively. In the former letter it is mentioned that the State Government has decided to regularise the services of ad hoc appointees appointed up to 1st May 1983 in the same manner as was done under the 1979 Regularisation Rules and that steps were being taken to amend the Rules in consultation with the Commission. In paragraph 2 of this letter there is reference to an earlier letter sent to the Commission by the State Government on 14th December 1982 in which the Commission was informed that several writ petitions had been filed in this Court by ad hoc Lecturers appointed after 1st January 1977 claiming regularisation of their ad hoc appointments and that in those writ petitions interim orders had been passed to the effect that services of those petitioners shall not be terminated and till the disposal of the writ petitions the posts held by them shall not be filled by direct recruitment. The circumstance in which the Commission was requested to refrain from proceeding with selections in pursuance of earlier requisitions becomes apparent from a perusal of this letter. Under the Regularisation Rules of 1979 ad hoc Lecturers appointed after 1st January 1977 had no right to claim regularisation and they were exposed to the prospects of their services being terminated. They wanted protection of their services. Obviously in these writ petitions they must have claimed regularisation of their services. The Court protected them against ouster from service. This appears to have promoted the State Government to consider regularisation of services of further ad hoc appointees who had completed three years of continuous service. After this second exercise of regularisation the number of posts for which requisitions had been sent was likely to go down substantially. Accordingly the State Government considered it desirable to defer selection. It. therefore, made the request contained in letter dated 26th December 1983, Annexure CA-1 from the background in which Annexure CA-1 was written, it cannot be said that the State Government stayed action on its requisitions only to seize the opportunity of circumventing the Commission. 30. In Annexure CA-2 the request made in Annexure CA-1 has been reiterated. 31. It. therefore, made the request contained in letter dated 26th December 1983, Annexure CA-1 from the background in which Annexure CA-1 was written, it cannot be said that the State Government stayed action on its requisitions only to seize the opportunity of circumventing the Commission. 30. In Annexure CA-2 the request made in Annexure CA-1 has been reiterated. 31. We may assume in favour of the State Government that the aforesaid letters stayed selection in pursuance of the requisitions already made and the Commission was not debarred from holding selection in pursuance of the requisitions sent subsequently in the years 1985, 1986, 1987 and 1988. The inaction in making selection in pursuance of these requisitions is explained in the Commission's counter affidavit dated 2nd August 1988 filed in Writ Petition No. 2288 of 1988 in which it has been stated that some of the posts mentioned in these requisitions were mentioned in the earlier requisitions also and, therefore. there was confusion and clarification was required from the State Government which resulted in correspondence between the Commission and the State Government and the clear picture emerged only on 16th June 1988 when a clear cut reply was received from the Government. One of the items of confusion mentioned in paragraph 6 of the Commission's counter affidavit dated 28th September 1989 is the writ petition filed by ad hoc appointees appointed after 1st January 1977. It was not clear to the Commission whether the writ petitions had been decided or were pending. It is also stated on behalf of the Commission that there was delay on the part of the State Government in replying to the letters sent by the Commission. In paragraph 4 of the Com-mission's counter affidavit dated 28th October 1989 it is stated that advertisement for one post of Lecturer in Radiology (Whole Body Scanner) was issued on 3rd May 1986. There-after the counter affidavit is silent about the date on which interviews were held and the date on which the recommendation was sent to the State Government. This post is not mentioned even in paragraph 18 of the said counter affidavit wherein of sending recommendations to the State Government in respect of several posts have been disclosed. The earliest date mentioned in this paragraph is 5th August 1989 and the latest is 3rd October 1989. This post is not mentioned even in paragraph 18 of the said counter affidavit wherein of sending recommendations to the State Government in respect of several posts have been disclosed. The earliest date mentioned in this paragraph is 5th August 1989 and the latest is 3rd October 1989. If the list is exhaustive it would mean that recommendation for the post of Lecturer in Radiology which has been advertised on 3rd May 1986 had not been sent to the State Government till 3rd October 1989. This would be a case of inordinate delay. As mentioned hereinabove, according to the State Government, against the requisitions sent between 1982 and 1988 the first recommendation, except for the three posts of Lecturer in Psychiatry. was received from the Commission only on 10th August 1989, after promulgation of the amendment. 32. Our observations in the concluding portion of the preceding paragraph may not be taken as our finding that it is the Commission which is responsible for the delay in selection of candidates in accordance with the relevant recruitment rules. For the purposes of the present case it is not necessary for us to apportion blame for delay between the State Government and the Commission. We have stated facts only to show that there was no deliberate attempt on the part of the State Government to avoid selection of candidates through the Commission. On the facts apparent from Governments letter dated 26th December 1983, Annexure CA-1 and discussed hereinabove, there was ample justification for the State Government to request the Commission to refrain from proceeding with selection on the basis of requisitions sent earlier. There may also be justification for the clarification sought by the Commission. The material before us is in- sufficient to apportion blame between the State Government and the Commission. For a proper investigation of blame more facts would be required, viz., (1) the date on which the Commission received requisition from the State Government for each post, (2) the date on which each post was advertised, (3) the date on which interviews were held in respect of each post, (4) the date on which recommendations were sent to the State Government in respect of each post, (5) the burden of work on the Commission, (6) the number of working days available to the Commission, and (7) utilisation of those days. There may be delay in sending recommendations but the delay may have been caused because the Commission remained busy in selecting candidates for other departments. After all, the Commission does not deal with the Medical Department alone. It attends to the requisitions sent by various departments of the State Government. The parties have rightly not placed on record the facts enumerated herein because the fate of the present writ petitions does not depend upon the apportionment of blame between the State Government and the Commission. We may, however, note that one of the factors which contributed towards delay in regular selection was litigation also. 33. One more observation may be made in respect of delay in holding regular selection. In this matter of delay no one blames the ad hoc appointees. The blame is alleged either against the State Government or against the Commission. The amendment of the Rules neither benefits the State Government nor it causes prejudice to the Commission. It benefits only the ad hoc appointees. The ad hoc appointees are not the cause of delay in regular selection. For this reason also investigation into causes of delay is unnecessary. 34. In view of the above discussion the factual position relating to delay in holding regular selection may be summarised thus : There was indeed delay in holding regular selection for the posts in question. The delay was not caused deliberately either by the State Government or by the Commission. The litigation in this Court did cause delay in holding regular selection. The extent to which litigation in this Court caused delay is not clear. The ad hoc appointees whose services are now sought to be regularised were not instrumental in causing delay in selection of candidates by the Public Service Commission. On these facts, in our opinion, the charge of malice in law cannot be sustained against the State Government. 35. This brings us to the question of fairness of State action. 36. Regulation 5(a) of 1954 Regulations reads as under :- "5. On these facts, in our opinion, the charge of malice in law cannot be sustained against the State Government. 35. This brings us to the question of fairness of State action. 36. Regulation 5(a) of 1954 Regulations reads as under :- "5. Notwithstanding anything contained in Regulations 3 and 4, it shall not be necessary for the Commission to be consulted in the following cases, namely : (a) When a temporary or officiating appointment is to be made by direct recruitment by the Governor or an authority other than the Governor, to a permanent or temporary post which falls within the purview of the Commission, if the person to be appointed is not likely to hold the post for a period of more than one year; provided that the person thus appointed shall not hold the post in question for a total continuous period of more than one year without the Commission being consulted......" The period of one year mentioned in the above clause, we will deal with later. Here only this much may be stated that "temporary or officiating appointment" which term included "ad hoc appointment" also was permissible under 1954 Regulations. The authors of the Regulation were conscious of the fact that there may be situation when post may be vacant but candidate selected by the Commission may not be readily available. To meet such a situation the above provision has been made. The provision has been made in public interest to meet administrative exigencies. In the absence of such a provision posts would have remained vacant and public work would have suffered. Taking the case of medical men, patients and students of Medical Science would have suffered. 37. Undisputedly, for the posts in question, selections through Commission were not made for several years. The posts were there and so was work. For doing the work appointments to the posts had to be made. Thus the ad hoc appointees were appointed to serve public need and administrative exigencies. These ad hoc appointees were not chosen clandestinely. The posts were advertised. The selection was not held in any irrational or arbitrary manner. The selection was not left to be made by an individual in sole discretion. A Selection Committee was constituted which comprised academicians also. The members of the Committee were high officers of the State. including Director of Medical Education. The posts were advertised. The selection was not held in any irrational or arbitrary manner. The selection was not left to be made by an individual in sole discretion. A Selection Committee was constituted which comprised academicians also. The members of the Committee were high officers of the State. including Director of Medical Education. The composition of the Committee itself assures impartiality in the selection. Petitioners opposing regularisation say that the members of the Committee were all Government servants and. therefore, the Government was able to impose its will upon them. On this basis it is urged that selection through such Committee cannot be impartial. There is no presumption that Government servants will act dishonestly. Rather the presumption is otherwise. Accordingly when a selection is challenged on the ground of bias detailed facts will have to be given. In the present petition such facts are lacking and the petitioners want us to draw inference of impartiality from the mere fact that the Commission was not associated with selections for ad hoc appointments. The Commission indeed has a high constitutional status and the selections made by it are entitled to great respect. But that does not mean that all other Selection Boards or Committees are necessarily dishonest. Accordingly the plea that selections for ad hoc appointments were motivated cannot be accepted. The procedure adopted was fair and reasonable. 38. In the matter of regularisation also we find present the same fairness and reasonableness. Not all ad hoc appointees are sought to be regularised. The services of only those will be regularised who have rendered satisfactory service to the State. This is apparent from the procedure for regularisation laid down in sub-rules (4) and (5) of Rule 4 of the Regularisation Rules of 1979 which reads as follows : "(4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority as determined, from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered necessary to judge suitability. The list shall be placed before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered necessary to judge suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4)." Under the above clauses suitability for regularisation is judged on the basis of service record. Service record is invariably used for assessing the performance of an employee. 39. The regularisation is not left in the hands of a single individual. Under sub-rule (3) of the aforesaid Rule 4, the appointing authority is required to constitute a Selection Committee. Under sub-rule (2), the reservation prescribed for candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories is required to be observed. Under Clause (ii) of sub-rule (1) the ad hoc appointee is required to possess the qualifications prescribed for regular appointment at the time of ad hoc appointment. Thus there is no compromise with the prescribed qualifications. Those who were selected for regularisation get appointment order from the appointing authority under Rule 5. Those who fail to (qualify get termination order under Rule. 40. From what has been stated hereinabove it would be seen that the selection for regularisation. including the initial selection for ad hoc appointment, has all the trappings of a regular selection, the only difference being that the selection instead of being made by the Commission, is made by a Selection Committee appointed in accordance with Rules/ Government orders. 41. By regularising the services of an ad hoc appointee it is not only the ad hoc appointee who is benefited; the State Government is also benefited. It gets the benefit of continued service from an experienced hand. It is a condition for regularisation under Rule 4(1)( iii) that the ad hoc appointee should have : endered continuous service for at least three years. Thus the State Government gets benefit of experience of at least three years. 42. There is another way of looking at the matter. The ad hoc appointees are not to blame for the nature of appointment given to them. In the years in which they were appointed on ad hoc basis, they were fully qualified to face the Commission. They could not get the opportunity of facing the Commission as no selection was held by the Commission. The ad hoc appointees are not to blame for the nature of appointment given to them. In the years in which they were appointed on ad hoc basis, they were fully qualified to face the Commission. They could not get the opportunity of facing the Commission as no selection was held by the Commission. For this, as already stated, the blame may lie with the State Government or with the Commission but it certainly does not lie w'! h the ad hoc appointees. Regulation 5(a) reproduced hereinabove permits ad hoc appointment for only one year. In view of this provision it was reasonable to aspect that regular selection through Commission will be held within one year. There was thus the possibility of the fate of the ad hoc appointees becoming clear within one year. The clarity, in the present case, eluded them not for one year but for three continuous years. The obvious purpose of Rule 5(a) is to terminate ad hocism as early as possible. Now when ad hocism could not be terminated for three long years the State Government had two options-(l) to request the Commission to expedite the selection, and (2) to acquire power to make selection through its own agency. The Commission is a Constitutional Authority and not subordinate to the State Government. The State Government's request may have been accepted or it may not have been accepted. Therefore, the first option was of doubtful efficacy. The second option was an efficacious one and the State Government has resorted to it by adding Rule 10 to 1979 Rules. The impugned amendment, therefore, satisfies the spirit behind the Regulation 5(a). Even otherwise it is desirable that ad hocism should end as early as possible. 43. In view of the above, it is not possible to uphold the plea that Rule 10 was added to 1979 Rules with the intention of by-passing or circumventing the Commission. 44. It maybe pointed out that the Courts also lean in favour of regularisation. We may usefully quote from the judgment of their Lordship's of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, (1990) 1 SCC 361 : 1990 Lab IC 126. 44. It maybe pointed out that the Courts also lean in favour of regularisation. We may usefully quote from the judgment of their Lordship's of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, (1990) 1 SCC 361 : 1990 Lab IC 126. In paragraph 6 at page 364 (of SCC) : (at p. 128 of Lab IC) of the report, their Lordships observe "Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation ........................ Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior most workmen should be regularised with immediate effect." (Emphasis supplied) In the above case their Lordships directed regularisation of those employees who did not possess even the prescribed educational qualification. Their Lordships did this for six good reasons-(1) these employees had worked on the post for sufficiently long period, (2) during this period they had gained practical experience, (3) on the facts of the case the practical experience was a sufficient substitute for the lack of minimum educational qualification, (4) the practical experience would be of help to the employee in the discharge of the duties of his post or office, (5) the performance of the employee during the period of his ad hoc or temporary employment provides guidance to the employer in assessing his suitability for confirmed employment, and (6) the period of three years was a sufficiently long period where after an ad hoc employee could be considered for regularisation, on the touch-stone of these reasons, the impugned rule cannot be said to be invalid. It is true that their Lordships were dealing with the case of workmen governed by Labour Laws but that does not alter the legal position. On the facts of the present case the persons who will be benefited by the impugned rule are working on teaching or hospital jobs. An experienced teacher may be better than a raw hand. When a physician treats a patient or a surgeon performs an operation he puts his theoretical knowledge to practical use. He learns by trials and errors and gains expertise. This expertise puts him in a class by itself. He is distinct from a raw physician or a raw surgeon. By regularising the services of such teachers, physician and surgeon the State gets the benefit of experienced hands and through the State the benefit comes to the students of Medical Science and the patients. If Courts lean in favour of regularisation can the State Government be blamed when it frames statutory rule to regularise the services of suitable ad hoc employees who have put in a minimum of three years of continuous service? The answer will have to be in the negative. 45. In State of Maharashtra v. Jagannath Achyut Karandikar, 1989 Supp (1) SCC 393 : 1989 Lab IC 1237 : AIR 1989 SC 1133 , their Lordships found justification for relaxation in rules in order to avoid undue hardship to a class of employees. In this case under statutory rules promotion to higher post depended upon passing certain examination which was not held in certain years which resulted in delayed promotion of certain employees. If the rule of seniority was strictly enforced those who were junior in the lower cadre were becoming senior to them. Under statutory rules there was power to dispense with or relax the requirement of the operation of any rule regulating the conditions of service if it caused undue hardship in any particular case. In exercise of this power the Government relaxed the strict enforcement of the seniority rule and revised the seniority list which reflected the rankings in the lower cadre is respective of the date of promotion. This action of the Government was challenged in the Bombay High Court by those who have been promoted earlier but were down-graded in the revised list. The challenge was sustained by the Bombay High Court but it was negatived by their Lordships. This action of the Government was challenged in the Bombay High Court by those who have been promoted earlier but were down-graded in the revised list. The challenge was sustained by the Bombay High Court but it was negatived by their Lordships. Upholding the action of the Government their Lordships observed in paragraph 10 at page 398 (of SCC) : (Para 9 at p. 1137 of AIR) of the report as follows :- "......Rule 5 requires the Government to hold the examination every year. This rule is the basis of the entire scheme and the effect of other rules depends upon holding the examination. If examination is not held in any year, Rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances. The person who has not exhausted the available chances to appear in the examination cannot be denied of his seniority. It would be unjust. unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year...." (Emphasised) The above observations, especially the emphasised portion, have applications, to the facts of the present case. In the present case also if selection through Commission had been made in the years which ad hoc appointees were appointed, they had all the chance of getting regular appointment instead of ad hoc appointment. The impugned rule thus relieves the ad hoc appointees from hardship. 46. We may now consider whether the failure to hold selection through Commission has resulted in any hardship to the opponents of regularisation which they are required to be relieved against. Such opponents fall in three categories-(1) those who were not qualified for appointment to the posts in question in the years in which ad hoc appointments were made to the said posts; (2) those who were qualified in the said years but did not apply in response to the advertisement issued for ad hoc appointment; and (3) those who were qualified in the said years and applied for the posts but failed to qualify. 47. If regular selection through Commission had been held on time, the posts on which ad hoc appointees are working would have been filled up on regular basis and would not have remained vacant so as to he available to the petitioners of the first category. Thus they cannot complain of hardship. 48. 47. If regular selection through Commission had been held on time, the posts on which ad hoc appointees are working would have been filled up on regular basis and would not have remained vacant so as to he available to the petitioners of the first category. Thus they cannot complain of hardship. 48. As already noticed, the ad hoc appointments were not made in clandestine manner. Posts were advertised and the candidates who applied had to pass through a selection. Eligible persons had the opportunity to apply. Those who did not apply cannot now complain of hardship. 49. The position of those falling in the third category is worse. If they could not qualify even at the limited selection, as they have described it, they have perhaps very little chance of being selected at a wider selection. Whether they qualify at the wider selection or not is a different question but they cannot complain of hardship. 50. From the above, it is apparent that no opponent of regularisation has suffered any hardship on account of the failure of the Commission to hold selection on time. 51. Law : The supporters of the impugned rule submit that the framing of the original 1979 Rules and the Amendment of 1989 are legislative acts of the Governor and such acts are immune from the challenge of mala fides, whether of law or of fact. They have cited (1) AIR 1969 SC 118 : 1969 Lab IC 100, B.S. Vadera v. Union of India, (2) AIR 1981 SC 561 : 1981 Lab IC 104, B.S. Yadav v. State of Punjab, (3) (1985) 1 SCC 523 : 1985 Lab IC 746, K. Nagaraj v. State of Andhra Pradesh and (4) (1974) 1 All ER 609, British Railways Board v. Pickin. 52. In view of the factual finding recorded above it is not necessary to go into this legal question. However, since learned counsel for the parties have advanced arguments and this Court is not the final adjudicatory forum, we proceed to examine the validity of the submission. 53. In B. S. Vadera's case (1969 Lab IC 100) (supra) their Lordships have held that the extent to which a rule framed under the proviso to Article 309 may be challenged is indicated in Article 309 itself. 53. In B. S. Vadera's case (1969 Lab IC 100) (supra) their Lordships have held that the extent to which a rule framed under the proviso to Article 309 may be challenged is indicated in Article 309 itself. the same being violation of the provisions of the Constitution and of an act of the appropriate Legislature dealing with the subject covered by the rule. This flows from the expression "subject to the provisions of the Constitution" used in Article 309 and the expression "any rules so made shall have effect subject to the provisions of any such Act." The conclusion drawn by us flows from the observations of their Lordships contained in paragraph 24 which reads as follows : "It is also significant to note that the proviso to Article 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act.' The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be 'subject to the provisions of the Constitution', shall have effect, 'subject to the provisions of any such Act." That is, if the appropriate Legislature has passed the Act, under Article 309, the rules, framed under the proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority." 54. In B.S. Yadav's case ( AIR 1981 SC 561 : 1981 Lab IC 104) the power of the Governor under the Proviso to Article 309 to make appropriate rules was equated with his power t o promulgate ordinance under Article 213 and it was observed in paragraph 45 at page 577 (of AIR): at p. 120 of Lab 10. In B.S. Yadav's case ( AIR 1981 SC 561 : 1981 Lab IC 104) the power of the Governor under the Proviso to Article 309 to make appropriate rules was equated with his power t o promulgate ordinance under Article 213 and it was observed in paragraph 45 at page 577 (of AIR): at p. 120 of Lab 10. "The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213. he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject. In paragraph 47 it is observed - "Such rules are, of course, subject to the provisions of the Constitution and to the provisions of any Act which the appropriate legislature may, pass on the subject." 55. In K. Nagaraj (1985 Lab IC 746) (supra) it has been observed in paragraph 36 - "Besides, the Ordinance-making power being a legislative power, the argument of mala fides is misconceived. The Legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the objects and Reasons and if, none are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide." This was a case in which the Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance, 1983 was challenged on the ground of mala fides. While rejecting this challenge their Lordship's made the observations quoted hereinabove. 56. The propositions of law deducible I from the above decisions may be summarised thus exercise of legislative power by the legislature is immune from challenge based on mala fides or extraneous consideration, exercise of Ordinance-making power under Articles 123 and 213 is also legislative in character and. therefore, exercise of such power is also immune from the challenge based on mala fides and extraneous consideration; power of the Governor under the proviso to Article 309 is also legislative in character. therefore, exercise of such power is also immune from the challenge based on mala fides and extraneous consideration; power of the Governor under the proviso to Article 309 is also legislative in character. In K. Nagraj's case (supra) it has been specifically held that ordinance-making power is immune from the challenge of mala fide. The reason for recording this finding has also been given in the judgment. The reason is stated by saying - "being a legislative power". From this it would appear that the immunity arises from the nature of the power and not from "situs" of the power. Since there is no difference in the nature of power under Article 213 and under the proviso to Article 309 it will have to be held that the immunity available to the exercise of power under the former provision is available also to the exercise of power under the later provision. To make it more explicit, a rule framed under the proviso to Article 309 cannot be challenged on the ground of mala fides or extraneous consideration. It may be mentioned that in the present case the situs of power is also the same, namely the Governor. 57. The above conclusion flows also from the procedure for the exercise of power under Article 213 and the proviso to Article 309. 58. The ordinance and rule reflect policy decisions of the Government. Obviously proposals for the discussion before the council of ministers. After the proposal has been discussed and approved by the Cabinet, it goes to the Government for signature. After the Governor has signed the proposal, ordinance or the rule is published in the Gazette. When the procedure for promulgating a rule is identical to the procedure for promulgating ordinance there is no occasion for treating the former differently from the latter. 59 There is another way of looking at the matter. Under Articles 74 and 163 of the Constitution the President and the Governor respectively act on the advice of the council of ministers. Under clause (2) of the former Article and clause (3) of the latter, the advice tendered to the Governor by the council of ministers cannot be enquired into in any Court. A challenge based on mala fides may involve investigation into the advice tendered by the council of ministers to the Governor. Such investigation being impermissible, challenge based on mala fides is also impermissible. 60. A challenge based on mala fides may involve investigation into the advice tendered by the council of ministers to the Governor. Such investigation being impermissible, challenge based on mala fides is also impermissible. 60. From the decision in British Railways Board (1974 (1) All ER 609) (supra) it appears that the law in England is similar to that in India. At page 618 of the report Lord Reid reproduced with approval the following observations of Lord Campbell in Edinburgh and Dalkeith Railway Co. v. Wauchipe, (1842) 1 Bell 252:- "all that a court of justice can look to is the parliamentary roll; they see that an act has been passed by both Houses of Parliament, and that it has received the royal assent, 'and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages or its progress through both Houses of Parliament." Investigation into allegations of mala fides is investigation into "what was done previously to" the introduction of the bill in the legislature. This according to the above opinion is impermissible. Regarding his own opinion the Noble Lord states on the same page "The Function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions. Any attempt to prove that they were misled by fraud or otherwise would necessarily involve an enquiry into the manner in which they had performed their functions in dealing with the bill which became the British Railways Act, 1968. In whatever form the respondent's case is pleaded he must prove not only that the board acted fraudulently but also that their fraud caused damage to him by causing the enactment of S. 18. He could not prove that without an examination of the manner in which the officers of Parliament dealt with the matter. So the court would, or at least might, have to adjudicate on that. For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. He could not prove that without an examination of the manner in which the officers of Parliament dealt with the matter. So the court would, or at least might, have to adjudicate on that. For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled to do so by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation." In the same case Lord Morris of Borth-Y-Gest has expressed himself at page 619 thus- "In my view, it is beyond question that the substance of the plea advanced by the two paragraphs is that the court is entitled to and should disregard what Parliament has enacted in S. 18. The question of fundamental importance which arises is whether the court should entertain the proposition that an Act of Parliament can be so assailed in the courts that matters should proceed as through the Act or some part of it had never been passed. I consider that such doctrine would be dangerous and impermissible. It is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as the correct interpretation of the enactment : there must be none as to whether it should be on the statute book at all." (emphasised). Lord Wilberforce opines as follows :- "The idea, which seems to have had some currency, mainly in Scotland, that an Act of Parliament, public or private, or a provision in an Act of Parliament, could be declared invalid or ineffective in the courts on account of some irregularity in parliamentary procedure, or on the ground that Parliament in passing it was misled, or on the ground that it was obtained by deception or fraud, has been decisively repudiated by authorities of the highest standing from 1842 onwards. The remedy for a Parliamentary wrong, if one has been committed, must be sought from Parliament, and cannot be gained from the court." The Noble Lord has quoted with approval the following statement of law in Halsbury's Laws of England "If a Bill has been agreed to by both Houses of Parliament, and has received the royal assent, it cannot be impeached in the courts on the ground that its introduction or passage through Parliament, was attended by an irregularity, or even on the ground that it was procured by fraud." Other members of the Bench namely Lord Simon of Glaisdle and Lord Cross of Chelses have expressed idential view. 61. The above case arose in Great Britain which does not have a written Constitution and where Parliament is supreme. It is for this reason that it has been observed that the Courts have merely to enforce the law framed by the Parliament. We have a written Constitution and it is the Constitution which is supreme. Rights of the citizens and of various State authorities, including the Parliament, flow from the Constitution. The Constitution guarantees fundamental rights, Parliament cannot frame a law which encroaches upon these rights. The subjects upon which the Union Parliament and State Legislatures may make laws are specified in the list contained in the VII Schedule to the Constitution. If the Union Parliament frames law on a subject which falls within the exclusive legislative competence of a State Legislature, that law will be struck down by Court on the ground of being in excess of legislative competence. Similarly if a law is made by a State Legislature on a subject specified in List I that law will be invalid. Other provisions of the Constitution of mandatory nature will also have to be respected by the Parliament while framing laws. Therefore, the observations made in the above English case cannot be accepted in to They will have to be read along with the scheme of our Constitution discussed herein. 62. There is good reason for the Courts not to entertain the plea of mala fides against the exercise of legislative power. The State rests on three pillars the Legislature, the Executive, and the Judiciary. In the field of legislation, subject to constitutional provisions, the power of legislature is plenary. The official bill is introduced in the legislature by a Minister. There is good reason for the Courts not to entertain the plea of mala fides against the exercise of legislative power. The State rests on three pillars the Legislature, the Executive, and the Judiciary. In the field of legislation, subject to constitutional provisions, the power of legislature is plenary. The official bill is introduced in the legislature by a Minister. In the legislature it is discussed by the members of the House/Houses. It is then put to vote. It becomes law only after it has been approved by the requisite majority. In this scheme of things the motive of the Executive in introducing the bill becomes irrelevant. However, laudable the motive, it will not become law unless the members approve of the measure by the requisite majority. Similarly howsoever bad the motive, the measure will become law if the majority of the members, by the requisite majority, approve of the measure. Since the motive in introducing the bill plays no part in legislative enactment of the law, it is idle to challenge legislative enactment on the ground of mala fides. 63. In view of the above, we agree with the submission of the learned counsel for the supporters of regularisation that the impugned le is not challengeable on the ground of slice in law or malice in fact. 64. Before taking leave of subject, we may refer to the authorities cited on behalf of the opponents of the regularisation rules. These are (1) AIR 1972 SC 1767 : 1972 Lab IC 618, paras 23, 26, R.N. Nanjudappa v. T. Thimmaiah, (2) AIR 1978 SC 1214 : 1978 Lab IC 1093, paras 4, 5, Union of India v. H.P. Chothia, (3) (1983) 4 SC 582, paras 23. 24 : 1984 Lab IC 15, paras 22, 23, (4) B.S. Minnas v. Indian Statistical Institute, (1984) 4 SCC 545 : 1984 Lab IC 1176, paras 11, 12, 13, 15, 19, P.S. Mahal v. Union of India. (5) (1986) 1 SCC 133 , paras 114, 116. 117, 118, 120, 127, 136 : AIR 1986 SC 872 , paras 113, 115, 116. 117, 119, 126, 135, Express Newspapers Pvt. Ltd. v. Union of India, (6) (1986) 4 SCC 378 : AIR 1986 SC 2177 , para 25, Suraj Pal Sahu v. State of Maharashtra and (7) 1986 (Supp) SCC 698 : 1987 Lab IC 467, Dr. M. C. Bindal v. R.C. Singh. 117, 119, 126, 135, Express Newspapers Pvt. Ltd. v. Union of India, (6) (1986) 4 SCC 378 : AIR 1986 SC 2177 , para 25, Suraj Pal Sahu v. State of Maharashtra and (7) 1986 (Supp) SCC 698 : 1987 Lab IC 467, Dr. M. C. Bindal v. R.C. Singh. In one of these cases except two any rule framed under the proviso to Article 309 was under challenge. The two cases in of the Rule was under cahllenge are R. N. Nanjundappa and P. S. Mahal (supra). In the former case the rule was held to be violative of Articles 14 and 16 of the Constitution and not on the ground of mala fides. This case related to promotion of a junior person to a higher post without consideration of the senior persons. This promotion was sought to be regularised by framing the rule which was struck down as ultra vires of Articles 14 and 16. 65. In P. S. Mahal's case by an earlier decision their Lordships had issued a writ of mandamus commanding the Central Government to refix seniority of concerned officers on the principle indicated in the judgment. After the judgment of the Court the Central Government promulgated rule under.the proviso to Article 309 and made it operate from the date one day prior to the date on which judgment was rendered. This rule laid down principle for determining seniority which was different from the one laid down by their Lordships. This rule was promulgated with the avowed object of giving effect to the judgment of their Lordships. Their Lordships found that the rule was not in accord with their judgment. It was in this circumstance that the rule was struck down. The earlier decision of the Court ensured compliance of Articles 14 and 16 of the Constitution. The impugned rule revived the vice of violation of these Articles. It is not a case where the rule was held to be invalid on the ground of executive mala fides. 66. In view of the above none of the decisions relied upon the learned counsel challenging regularisation has any relevance to the controversy in hand. 67. Having settled the main ground of attack against the impugned rule, we may now pass on to consider the next ground of challenge. Ground 3 - Arbitrariness : Article 14. 68. 66. In view of the above none of the decisions relied upon the learned counsel challenging regularisation has any relevance to the controversy in hand. 67. Having settled the main ground of attack against the impugned rule, we may now pass on to consider the next ground of challenge. Ground 3 - Arbitrariness : Article 14. 68. The impugned rule is alleged to be arbitrary and discriminatory and, therefore, violative of Article 14 of the Constitution. The reasonableness, which is antithesis of arbitrariness, of the rule has been discussed hereinabove. Ad hoc appointees who have rendered satisfactory service for a certain number of years constitute a class by themselves and within this class the impugned rule applies uniformly. Accordingly the rule cannot be said to be violative of article 14 or 16 of the Constitution. Ground 4 - Violation of Article 320(3). 69. Reference to this Article has been made herein-above and some portions of it have been extracted earlier. For a better appreciation of the pleas raised by the learned counsel for the parties it is desirable to reproduce the entire clause (3) of Article 320, except clauses (d) and (e) which are not relevant for the purpose of this case. This clause reads as follows :- 320(3) "The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted- (a) On all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; (c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters; (d)................ (e)............... (e)............... and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Government of the State, may refer to them :- Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Government as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted." It is not disputed that the Commission was consulted at the time of the promulgation of the original regularisation rules in the year 1979 and also at the time of the amendment in the year 1984. The amendment in the year 1989 was undisputedly made without consulting the Commission. This lack of consultation is alleged to invalidate Rule 10 introduced in the year 1989. 70. Regularisation of ad hoc appointees would be covered by clauses (a) and (b) of Article 320(3) reproduced above. Therefore, in the absence of anything else the Commission was required to be consulted while promulgating Rule 10. 71. Clause (a) and (b) form part of the main proviso of Article 320. They operate subject to what is contained in the proviso. The proviso confers jurisdiction on the Governor to specify matters on which consultation with the Commission shall not be necessary. This specification he makes by framing regulations. The Governor of the State of U.P. has exercised this power and framed the U.P. Public Service Commission (Limitation of Functions) Regulations, 1954, referred to hereinabove. Regulation 3 enumerates the matters on which the Commission is not required to be consulted. Clause (c) which was added to Regulation 3 on 14-5-1979, reproduced hereinabove, covers regularisation of ad hoc appointees contemplated by Rule 10. In view of clause (c) it was not necessary to consult the Commission while promulgating Rule 10. It cannot, therefore be said that promulgation of Rule 10 with consulting the Commission violates Article 320(3). 72. Clause (c) which was added to Regulation 3 on 14-5-1979, reproduced hereinabove, covers regularisation of ad hoc appointees contemplated by Rule 10. In view of clause (c) it was not necessary to consult the Commission while promulgating Rule 10. It cannot, therefore be said that promulgation of Rule 10 with consulting the Commission violates Article 320(3). 72. Further it has been held by their Lordships of the Supreme Court that the requirements of Article 320(3) are the mandatory and, therefore, violation of these requirements does not render the resuresultant action, appointments in the present case, invalid. The authorities are - (1) AIR 1957 SC 912 : State of U.P. v. Manbodhan Lal Srivastave, (2) AIR 1970 SC 158 , Ram Gopal Chaturvedi v. State of Madhya Pradesh; (3) AIR 1984 SC 1850 : (1985) 1 SCC 122 , Jatinder Kumar v. State of Punjab and (4) (1985) 1 Serv LR 687 : 1985 Lab IC 822 (SC) G.S. Lamba v. Union of India. The main reason for holding Article 320(3) recommendatory is that there is no provision in the Constitution making it obligatory to accept the advice rendered by the Commission. 73. In view of the above, fourth ground of challenge also fails. Ground 5 - Violation of 1954 Regulations. 74. 1984 Regulations, as discussed above, have been framed in exercise of the power conferred under the proviso to Article 320(3) of the Constitution. It has been hereinabove that Article 320 (3) is not mandatory and violation there of does not give rise to actionable wrong. It follows as a natural corollary that the validity of the Rule framed under the provision to Article 309 cannot be tested on the anvil of a Regulation framed in exercise of the power conferred by a recommendatory provision, Article 320(3) in the present case. Accordingly the fifth ground of challenge also collapses. Ground 6 - Regulationisation of invalid appointments. 75. It is submitted that Regulation 5 (a) of 1954 Regulations fixes the maximum period for which an ad hoc appointment will be made and, therefore, continuance of ad hoc appointees in service beyond that period is invalid and this invalidity cannot be cured by framing a rule under the proviso to Article 309 of the Constitution. The period fixed under Regulation 5 (a) is one year. The period fixed under Regulation 5 (a) is one year. The argument bails down to this since Regulation 5 (a) fixes maximum period of ad hoc appointment, it was incumbent incumbent upon the Government to consult the Commission before continuing ad hoc appointees tin service. It has been seen hereinabove that failure to consult the Commission does not result in invalidation of the appointment. Accordingly continuance of ad hoc appointees in service beyond the period of one year fixed in Regulation 5(a) cannot be said to be invalid. 76. In support of the proposition that an invalid appointment cannot be validated, the learned counsel has cited AIR 1966 SC 602 , State of Mysore v. Padmanabhacharya. In this case certain persons who, under statutory rules, were entitled to continue in service upto the age of 58 years were retired from service on attaining the age of 55 years. Thereafter rule was framed in purported exercise of power under the proviso to Article 309 which stated "Notwithstanding anything contained in Note 4 to Article 294 of the Mysore Service Regulation (Eighth Edition), Government Servants who have been retired from service on the attainment of the age of fifty-five, during the period between 7th day of June 1957 and the 28th day of October, 1958 shall be deemed to have been validly retired from service on superannuation." Their Lordships noted that the notification was beyond the ambit of Article 309 which permitted legislation to "regulate the recruitment and conditions of persons." It was held that the notification could not be related to regulating recruitment or laying down conditions of service. It was not held in this case that an invalid act cannot be regularised by a legislative fiat. This authority has, therefore, no application to the facts of the present case. So far as the Regularisation Rules are concerned, they are relatable to the term "regulate the recruitment" in Article 309. By virtue of the Regularisation Rules, ad hoc appointees are recruited on regular basis. 77. The invalidity of ad hoc appointment is asserted with reference to certain Government Orders also which prohibit ad hoc appointments. It appears that from time to time the State Government issued instructions discouraging ad hoc appointments and requiring the concerned authorities to fill up vacancies by making recruitment in accordance with statutory rules. 77. The invalidity of ad hoc appointment is asserted with reference to certain Government Orders also which prohibit ad hoc appointments. It appears that from time to time the State Government issued instructions discouraging ad hoc appointments and requiring the concerned authorities to fill up vacancies by making recruitment in accordance with statutory rules. The Government orders are in the nature of administrative directions and they apply subject to statutory rules. Accordingly on the basis of executive instructions, Rule .10 cannot be held to be invalid. Ground 7 Conflict between Rule 10 and other Rules of Regularisation Rules of 1979. 78. Rule 10 is alleged to be violative of Rule 8 of the Regularisation Rules of 1979. Rule 8 provides as follows :- "8. Termination of Services - The services of a person, appointed on ad hoc basis who is not found suitable, or whose case is not covered by sub-rule (I) of Rule 4 of these rules, shall be terminated forthwith and, on such termination, he shall be entitled to receive one month's pay." Under the above Rules service of an and hoc appointee is required to be terminated in the following two situations :- (i) when he is not found suitable for regularisation; and (ii) when he is not eligible to be considered for regularisation under the Rules. Rule 10 does not require retention in service of any ad hoc appointee belonging to either of the two categories. Accordingly there is no conflict between Rule 6 and Rule 10. The learned counsel has not been able to show conflict between Rule 10 and any other Rule of 1979 Rules. Accordingly the seventh ground of challenge also fails. Reading down of the Regularisation Rules. 79. As already noticed, the petitioners' plea also is that if Rule 10 is not found to be invalid on any of the grounds urged by them. the Regularisation Rules may be directed to be read as containing a clause that the said rules will not apply to posts for which selection has already been made and selected candidates are available. It is asserted that some of the ad hoc appointees appeared before the Commission but failed to qualify and now these candidates are sought to be regularised. According to the opponent of Regularisation, this is a very anomalous situation and results in arbitrariness. 80. It is asserted that some of the ad hoc appointees appeared before the Commission but failed to qualify and now these candidates are sought to be regularised. According to the opponent of Regularisation, this is a very anomalous situation and results in arbitrariness. 80. Rules 4,9 and 10 do not automatically regularise ad hoc appointees who fulfil the eligibility qualifications for consideration. It cannot, therefore, be said that those who had failed before the Commission will necessarily be regularised. The question of their regularisation will be considered by a Committee. The Committee may recommend their regularisation or it may not recommend their regularisation. Therefore, there is nothing inherently wrong or bad in the rules providing for regularisation. 81. Regarding reading down, the supporters of the rule submit that the principle applies to protect a right and to protect a statutory provision which would otherwise be invalid. It is asserted that where selectees have no right and the Rule is not otherwise invalid and. therefore, the principle of reading down cannot be invoked. It is contended that by application of the reading down rule certain provisions of a statute, rule or measure may be ignored but no word can be added to the statute, rule or measure. To add words, the learned counsel submits would amount to legislation by Court which is impermissible. 82. In D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 Lab IC 1, their Lordships of the Supreme Court have observed in paragraph 60 at page 340 (of SCC) : (at p. 21 of Lab IC) as follows : "Whenever classification is held to be impermissible and the measure can be retained by removing the conditional portion of classification, by striking down words of limitation, the resultant effect may be of enlarging the class. In such a situation, the court can strike down the words of limitation in an enactment. That is what is called reading down the measure." (Emphasis supplied) From the emphasised portion in the above quotation, it would appear that reading down means striking down the unconstitutional portions in a statute. It does not mean adding words to the statute. In the case on hand if we accept the submission of the learned counsel, we would not be ignoring words already existing in the rule; we would be adding words. It does not mean adding words to the statute. In the case on hand if we accept the submission of the learned counsel, we would not be ignoring words already existing in the rule; we would be adding words. In fact, we would be adding an entire clause in the rule. This is not permissible. 83. We have held hereinabove that Rule 10 does not suffer from any constitutional invalidity. If the rule is not invalid, there is no occasion for this Court to add words or remove words therefrom. 84. The learned counsel has invited our attention to the U.P. Regularisation of Ad Hoc Promotions (On Posts within the Purview of Public Service Commission) Rules, 1988 for submitting that provision of the nature canvassed by him appears in the said Rules. These Rules deal with regularisation of ad hoc promotions. Consideration for regularisation is made under Rule 4(1) which says "shall be considered for regular appointment by promotion in permanent or temporary vacancy as may be available." The term "available vacancy' has been defined in Rule 3(2) to mean "a vacancy for which no candidate has been recommended by the Commission before the date of notification of this rule." Because of these rules, consideration for regularisation under these rules is indeed not possible in respect of vacancies for which the Commission has already held selection and recommended the candidates. We find the provision of the rules very salutary but thereby alone we cannot add to the rule which is otherwise valid. 85. In view of the above, the last submission of the learned counsel opposing regularisation also fails. State Government's failure to file counter affidavit in writ petition No. 2288 of 1988. 86. On behalf of the opponents of regularisation rules, it has been submitted that no detailed counter affidavit has been filed on behalf of the State to justify the promulgation of Rule 10. On this basis, it has been submitted that the averments made by the petitioners in opposition to the rule may be treated as uncontroverted and accepted. In support of the plea, reference has been made to the following authorities : (1) (1962) 1 SCJ 93 , Sinha Govindji v. The Deputy Chief Controller of Imports and Exports, Madras; (2) AIR 1964 SC 962 , C.S. Rowjee v. State of Andhra Pradesh; (3) AIR 1964 SC 538 , Badat and Co. In support of the plea, reference has been made to the following authorities : (1) (1962) 1 SCJ 93 , Sinha Govindji v. The Deputy Chief Controller of Imports and Exports, Madras; (2) AIR 1964 SC 962 , C.S. Rowjee v. State of Andhra Pradesh; (3) AIR 1964 SC 538 , Badat and Co. Bombay v. East India Trading Co.; (4) (1986) 1 SCC 133 : AIR 1986 SC 872 , Express Newspapers Pvt. Ltd. v. Union of India and (5) (1988) 2 Serv LR 612 (Cal) Arabinda Das v. State of West Bengal. Filing of counter affidavit is material in cases raising factual controversies. In the present case the controversy is mainly legal. Further apart from the State there are private parties also who have supported the State action and given good reasons in support of their pleas. Accordingly we cannot uphold the contention of the opponents of the regularisation rules merely on the ground that no counter affidavit has been filed on behalf of the State. Locus Standi 87. In certain petitions the locus standi of the Association of Junior Doctors to file the petition in the Court was challenged. In view of the fact that we have considered the plea of these petitioners on merit and found the same unsustainable it is not necessary to go into the question of locus standi. 88. Learned counsel for the opponents of the Regularisation Rules has cited the following authorities in support of the proposition that a statutory provision which is in conflict with the aims and objects would be ultra vires : (1) AIR 1972 SC 1767 : 1972 Lab IC 618, R.N. Nanjundappa v. T. Thimmaiah and another; (2) AIR 1974 SC 2177 , K. Ramdas Shenoy v. The Chief Officers Town Municipal Council Udipi; (3) AIR 1975 SC 984 : 1975 Lab IC 613, Dr. Amarjit Singh Ahluwalia v. State of Punjab; (4) AIR 1977 SC 1361 , State of Rajasthan v. Union of India; (5) (1983) 4 SCC 582 : 1984 Lab IC 15, B.S. Minhas v. Indian Statistical Institute; (6) (1989) 4 SCC 187 : 1990 Lab IC 324, Supreme Court Employees' Welfare Association v. Union of India; (7) AIR 1980 SC 2060 : 1989 Lab IC 2024, State of Andhra Pradesh v. Sadanandam; and (8) (1979) 2 All ER 1016 (CA), Meade v. London Borough of Haringey. In our opinion Rule 10 is not beyond the aims and objects of the Regularisation Rules 1979. Accordingly the said rule cannot be held to be ultra vires as contended by the learned counsel. Some of the authorities referred to hereinabove have already been discussed in the earlier part of the judgment. 89. In his written note of arguments, the learned counsel has referred to a number of decisions. In view of the propositions of law discussed hereinabove, which are based upon the judgments of their Lordships, it is not necessary to refer to all the decisions referred to in this court. The note will remain on the record of writ petition No. 7706 of 1988. 90. In view of the above, writ petitions in which vires of Rule 10 of 1979 Regularisation Rules has been challenged are liable to be dismissed. We may now consider the justification for petitioners of writ petitions numbered 2288 and 7706 of 1988 to approach the scope. 91. Once recruitment rules have been framed, it is the obligation of the State to fill up posts covered by the rules in accordance with the procedure prescribed therein. In the case on hand the State did not discharge this obligation and instead made ad hoc appointments which were continued for years together. Ad hoc appointments were permissible under 1954 Regulations 1954 but only for a limited period, namely one year. This period of one year was fixed in the exception that within this period candidates selected in accordance with rules would be available. Ad hoc appointment itself was made permissible because it was visualised that there may be situations when regularly selected candidates may not be available and keeping the posts vacant could have resulted in prejudice to public work. In the case on hand the limitation of one year has not been adhered to and instead ad hoc appointments have been continued for thrice. The number of years fixed by the regularisation are more. By holding the period of one year fixed by the regularisation as not mandatory we have not invalidated the continuance of ad hoc appointees beyond that period. But we do view with dismay repeated violation by the State and its authorities of the normal recruitment rules. Citizens frame their conduct after the rulers. If the rulers will fail can the citizens be far behind? But we do view with dismay repeated violation by the State and its authorities of the normal recruitment rules. Citizens frame their conduct after the rulers. If the rulers will fail can the citizens be far behind? The citizen lose faith in the honesty of the rulers, when he finds that the rulers are not following the rules framed by them. This was the position of the petitioners in these two petitions also. They felt that ad hoc appointments were being made with ulterior motive. We have not upheld the plea of ulterior motive but we mention the fact to highlight the necessity of following the normal rules in preference to relying on rule framed to meet exceptional situation. We hope that ad hocism will not continue ad infinitum and it will be possible for the State Government hereafter to make selection and appointments in accordance with the rules as and when vacancies arise. This can be achieved by starting the process of selection well in advance in respect of existing vacancies as well as in respect of anticipated or expected vacancies. 92. We have referred hereinabove to the orders of the State Government requiring the Commission not to proceed with selection for which requisitions had been sent earlier. This was done as the State Government was contemplating to amend 1979 Regularisation Rules. We fail to see justification for issue of such orders. By mere amendment the Ad hoc appointments were not to stand regularised automatically. The ad hoc appointments had to be cleared by a selection committee. The services of those who failed to qualify were required to be terminated. Such vacancies would be filled up by appointing candidates recommended by the Commission. Therefore, there was no reason to stay the selections by the Commission. 93. We have indeed rejected the reading down plea raised by the opponents of regularisation but we find justification for their demand. We have rejected the demand because it could not be considered by the Court. Such demand would, however, be considered by the State Government. It is for good reason that the U.P. Regularisation of Ad Hoc promotions (On Posts within the Purview of Public Service Commission) Rules, 1988 do not apply to posts for which candidates selected by the Commission have become available. Such a provision can be made by amending 1979 Rules appropriately. Such demand would, however, be considered by the State Government. It is for good reason that the U.P. Regularisation of Ad Hoc promotions (On Posts within the Purview of Public Service Commission) Rules, 1988 do not apply to posts for which candidates selected by the Commission have become available. Such a provision can be made by amending 1979 Rules appropriately. This will obviate further frustration in a youth who succeeds in the selection but fails to get appointment because of the posts becoming unavailable by promulgation of the regularisation rules. We need not pursue the matter further because it is beyond our jurisdiction to direct the State Government to incorporate a clause of the nature suggested by the petitioners of these two petitions. 94. Having settled the common controversies, we may now turn to individual petitions. Group B Writ Petition No. 2288 of 1988 95. This petition was filed on 4th April. 1988, before the addition of impugned Rule 10. It has not been amended. Naturally it does not contain any specific challenge against the vires of the rule. Main reliefs claimed in this petition are to command the authorities to forbear from making ad hoc appointments, and instead to make regular appointments. The basis of the claim is that ad hoc appointees have no right to continue in serviced and, therefore, the posts occupied by them deserve to he treated as vacant and these posts should be filled by making regular selection through Public Service Commission. The immediate provocation for filing this petition was the advertisement issued on 22nd February, 1988, Annexure 2 for making ad hoc appointments. The petitioners had sought stay against filling up of posts on ad hoc basis. This Court was prima facie convinced of the petitioners' case and accordingly by order dated 25th May, 1988 directed that although interview in pursuance of the advertisement may continue but result of the interview shall not be declared. Thereafter by order dated 4th August, 1988 the Court required the State Government to communicate vacancies to the Commission and required the Commission to hold selection. The Court expected that the State Government will, on receipt of recommendations from the Commission, proceed to issue appointment orders within one month from the date of receipt of the recommendation. Thereafter by order dated 4th August, 1988 the Court required the State Government to communicate vacancies to the Commission and required the Commission to hold selection. The Court expected that the State Government will, on receipt of recommendations from the Commission, proceed to issue appointment orders within one month from the date of receipt of the recommendation. The Court did not stay ad hoc appointment in pursuance of the advertisement but directed that the said appointment will be for a period of 9 months from the date of issue of appointment letters. It was also provided in the order that the period of ad hoc appointment may be curtailed on availability of candidates selected by the Commission. In view of this order those who were appointed in pursuance of the advertisement dated 22nd February, 1988 have no right to continue in service and they have to yield place to the candidates selected by the Commission. Candidates who are found fit to be the regularised under Rule 10 of 1979 Regularisation Rules are entitled to continue in service. Accordingly if any appointment has been made in pursuance of the order of this Court against a post on which an ad hoc appointee is entitled to be regularised such appointment is liable to be nullified. Any ad hoc appointee who does not fulfil the eligibility qualification prescribed in Rule 10 is not entitled to continue on the said post if regularly selected candidate has become available. Ad hoc appointee possessing the eligibility qualification but not found fit for regularisation is also not entitled to continue in service. Such posts shall be filled by the State Government by appointing candidates selected by the Commission in pursuance of this Court's interim order or otherwise. 96. Another prayer made in this petition is to quash the advertisement dated 22nd February, 1988. Under the interim order of this Court appointments in pursuance of the said advertisement were allowed for a limited period, namely, till the availability of candidates selected by the Public Service Commission. Such appointees have no right to continue in service and they shall yield place to regularly selected candidates. 97. In view of the above, this petition deserves to be allowed to the extent indicated hereinabove. The petitioners were compelled to approach this Court in view of repeated ad hoc appointments and repeated regularisation of such appointments. Their grievance was justified. Such appointees have no right to continue in service and they shall yield place to regularly selected candidates. 97. In view of the above, this petition deserves to be allowed to the extent indicated hereinabove. The petitioners were compelled to approach this Court in view of repeated ad hoc appointments and repeated regularisation of such appointments. Their grievance was justified. They have won substantially and they are entitled to costs from the State Government. 98. Two of the petitioners in this petition are petitioners in the earlier petition also. The grievance of these petitioners is identical to the grievances raised in the earlier petition. This petition was also filed before Rule 10 was introduced in 1979 Regularisation Rules but after the amendment of the rules this petition has been amended so as to challenge the validity of Rule 10. Validity of Rule 10 has already been upheld and, therefore, to that extent the petition will have to be dismissed. 99. One of the reliefs claimed in this petition is to quash all ad hoc appointments made after 1st May, 1983 and prior to 20th March 1987. We have held hereinabove that ad hoc appointments are permissible under 1954 Regulations and the said ad hoc appointments do not become invalid if they are continued for more than one year. Accordingly this relief cannot be granted to the petitioners. 100. The next relief claimed is a writ of mandamus to command the U.P. Public Service Commission to make regular selection for all vacant posts as well as for posts on which persons are working on ad hoc basis in King George Medical College. Lucknow and other State Medical Colleges. As already mentioned interim mandamus was issued to the State Government and the Public Service Commission in writ petition No. 2288 of 1988 in pursuance of which selections have been held. Accordingly this relief has become infructuous. 101. It is next prayed that a writ of mandamus be issued to command the opposite parties to farbear from regularising ad hoc appointees appointed after 1st May, 1983 on various posts in King George Medical College, Lucknow and other State Medical Colleges. Under impugned Rule 10 of 1979 Rules ad hoc appointees appointed on or before 1st October, 1986 are entitled to be considered for regularisation. Accordingly those appointed between 1st May. 1983 and 1st October, 1986 are also entitled to be considered for regularisation. Under impugned Rule 10 of 1979 Rules ad hoc appointees appointed on or before 1st October, 1986 are entitled to be considered for regularisation. Accordingly those appointed between 1st May. 1983 and 1st October, 1986 are also entitled to be considered for regularisation. This relief cannot, therefore, be granted. 102. Last material relief claimed in this case is to command the respondents to forthwith issue appointment orders to all the candidates who have been recommended by the Commission and to terminate the services of ad hoc appointees. As indicated hereinabove, the petitioners in this regard are entitled to only limited mandamus. The services of only such ad hoc appointees are liable to be terminated who either do not qualify for regularisation under Rule 10 or who are found unfit for regularisation. Against the vacancies arising from termination of services of such ad hoc appointees, candidates recommended by the Commission are entitled to be appointed. To this extent the petitioners of this petition are also entitled to relief. 103. This petition has been filed by Dr. Kapil Sood who, at the time of filing the writ petition, was pursuing his super speciality course in Neurology. By advertisement dated 22nd February 1988, referred to hereinabove, ad hoc appointment was sought to be made to the post of Lecturer in Neurology. The petitioner's plea was that requisition for the post had not been sent by the State Government to the Public Service Commission and, therefore, ad hoc appointment could not be made. The post of Lecturer in Neurology was mentioned at serial No. 23 in the advertisement, Anenxure 1. The petitioner has prayed for quashing of the said advertisement so far as it relates to Item No. 23. As already indicated, this Court through interim order directed the State Government to send requisition to the Public Service Commission and the Public Service Commission was required to make selections. If no one has qualified for regularisation on the post of Lecturer in Neurology appointment to the said post will have to be made in accordance with the recommendation, if any, made by the Commission. By interim order of this Court the State was permitted to make ad hoc appointments in pursuance of the impugned advertisement which were to last only till the availability of candidates selected by the Commission. By interim order of this Court the State was permitted to make ad hoc appointments in pursuance of the impugned advertisement which were to last only till the availability of candidates selected by the Commission. In view of this position, ad hoc appointments made in pursuance of the impugned advertisement automatically come to end as soon as regularly selected candidates become available. Candidates appointed in pursuance of the advertisement who do not qualify for regularisation, their services are indeed liable to be terminated. They were permitted to be appointed only for the specific contingency. That contingency being over, appointments made in pursuance of the said advertisements have to be nullified. To this extent, this petition also succeeds. No counter affidavit has been filed in this case on behalf of the opposite parties. 104. This petition has been filed by Dr. Sudhir Kumar who has prayed for a writ of mandamus to command the State Government to issue him order appointing him to the post of lecturer in Neuropsychiatry in King George Medical College, Lucknow. The petitioner's case is that he has been duly selected and recommended by the Public Service Commission for the post in question. In view of the findings recorded hereinabove, if no one has qualified for regularisation on this post, the petitioner is indeed entitled to be appointed, in case he has been recommended by the Public Service Commission. No counter affidavit has been filed on behalf of the opposite parties. Group A Writ Petition No. 1310 of 1988 105. This petition has been filed for Dr. Yogesh Chandra Govil. He has claimed a mandamus to restrain the opposite parties from issuing advertisement inviting applications for ad hoc appointment to the post of Lecturer in Paediatrics. His plea is that he was appointed to the post in question on ad hoc basis vide order dated 29th August, 1986 and there was no point in replacing one ad hoc appointment by another. He has claimed a mandamus to command the opposite parties to regularise his ad hoc appointment. The writ petition was filed on 23rd February, 1988, before the promulgation of Rule 10. At that time he was not entitled to claim regularisation. He has claimed a mandamus to command the opposite parties to regularise his ad hoc appointment. The writ petition was filed on 23rd February, 1988, before the promulgation of Rule 10. At that time he was not entitled to claim regularisation. During the pendency of the writ petition Rule 10 was promulgated and thereafter he amended the writ petition to claim a mandamus to command the opposite party No. 1 to forthwith regularise his service and to reckon his seniority from the date of his initial appointment, providing all consequential benefits of service. 106. In the counter affidavit filed on behalf of the State it has been admitted that the petitioner was appointed to the post in question vide order dated 29th August, 1986 in pursuance whereof he joined on 30th August. 1986. This date falls before the cut off date, October 1, 1986, fixed in Rule 10. Accordingly he is entitled to be considered for regularisation. If he has not already been regularised, he is entitled to a writ of mandamus to command the opposite parties to consider him for regularisation on the post in question. His writ petition, therefore, deserves to he allowed to the extent indicated herein. 107. However, his plea that his seniority be reckoned from the date of his initial appointment cannot be accepted in view of the rule of seniority contained in the Regularisation rules. His seniority will have to be fixed in accordance with Rule 7 of the said Rules. Under this rule seniority counts from the date of order of appointment after selection in accordance with the regularisation rules. The mandamus claimed by him to command the opposite parties to reckon his seniority with effect from his initial appointment cannot accordingly be issued. To this extent, his writ petition is liable to be dismissed. 108. In view of the above. this writ petition deserves to be allowed only partially. 109. This petition has been filed by two persons. namely, Dr. S.C. Tewari and Dr. K.P. Dayal. These petitioners have claimed regularisation of their services on the post of Lecturer in Neuropsychiatry and Community Psychiatry. Petitioner No. 1 was appointed to the post of Lecturer in Neuropsychiatry by order dated October 1, 1985 and petitioner No. 2 was appointed Lecturer in Community Psychiatry by order dated January 6. 1986. namely, Dr. S.C. Tewari and Dr. K.P. Dayal. These petitioners have claimed regularisation of their services on the post of Lecturer in Neuropsychiatry and Community Psychiatry. Petitioner No. 1 was appointed to the post of Lecturer in Neuropsychiatry by order dated October 1, 1985 and petitioner No. 2 was appointed Lecturer in Community Psychiatry by order dated January 6. 1986. They approached this Court when the Public Service Commission was going to select candidates for appointment to these posts. They had applied for the posts and they had received interview letters. They sought quashing of the interview letters and also sought a writ of mandamus to command the opposite parties to regularise them on the post on which they were working. No counter affidavit has been filed on behalf of the State or the King George's Medical College, where they were appointed Lecturers. Accordingly the dates of their appointments remain uncontroverted. These dates of appointment fall before the cut off date fixed in Rule 10. Accordingly they are entitled to be considered for regularisation under Rule 10. The writ petition was filed on 29th Sept. 1988, before the promulgation of Rule 10. At that time petitioners were not entitled to the reliefs claimed by them but they have become entitled to the reliefs during the pendency of the writ petition. 110. In view of the above, the petitioners of this petition are also entitled to relief of mandamus to consider them for regularisation. Writ Petition No. 7744 of 1988 111. This petition has been filed by two persons, namely, Dr. Ragini Singh and Dr. Madhu Srivastava. Both the petitioners were appointed Lecturers in Radiology by separate orders issued on 13th June. 1984. These appointments were made for a period of one year only. They were continued in service even after the expiry of the period of one year by virtue of order dated 23rd April 1985, Annexure 4. The petitioners have prayed that an appropriate direction or order be issued to the respondents commanding them to treat the petitioners as regular employees of the State. They have also prayed for the issuance of an appropriate order or direction to command the opposite parties to forbear from making any appointment to the posts in question in pursuance of the advertisement issued by the Public Service Commission, Annexure 2. Both these petitioners qualify for consideration for regularisation under Rule 10. They have also prayed for the issuance of an appropriate order or direction to command the opposite parties to forbear from making any appointment to the posts in question in pursuance of the advertisement issued by the Public Service Commission, Annexure 2. Both these petitioners qualify for consideration for regularisation under Rule 10. Accordingly the State Government is obliged to consider them for regularisation before proceeding to appoint any person recommended by the Public Service Commission. This petition was also filed prior to the enforcement of Rule 10. At the time of the filing of the writ petition these petitioners had no justificable claim for regularisation. There was no statutory provision under which they could be treated as regular employees. They have become entitled to relief during the pendency of the writ petition on account of amendment in rules. 112. This petition has been filed by four persons, namely, Dr. Archana Kumari, Dr. Vinod Sharma, Dr. R.K. Srivastava and Dr. Baljeet Singh one of the opposite parties in this case is Junior Doctors Action Committee. This Committee is petitioner in two petitions, viz. writ petitions numbered 2288 and 7706 of 1988. Obviously, they are claiming regularisation. These petitioners are seeking declaration to the effect that they are regular Lecturers in King George's Medical College. They approached this Court when the Public Service Commission issued advertisement inviting applications for the posts occupied by the petitioners. According to the averments made in the writ petition, the petitioners were appointed on ad hoc basis in pursuance of the selection held in the year 1984. Appointment order of one of the petitioners has been filed as Annexure 2. From this it appears that petitioner No. 1 was appointed in the year 1984. In respect of other petitioners it has been stated that they were also appointed in the same year. No counter affidavit has been filed on behalf of the State to controvert the year of appointment pleaded by the petitioners. This year calls prior to the cut off date mentioned in Rule 10. Accordingly these petitioners are entitled to be considered for regularisation before anyone recommended by the Commission is appointed. Such of the petitioners, who are found fit for regularisation will be continued on the post in question and the services of others will have to be terminated. This year calls prior to the cut off date mentioned in Rule 10. Accordingly these petitioners are entitled to be considered for regularisation before anyone recommended by the Commission is appointed. Such of the petitioners, who are found fit for regularisation will be continued on the post in question and the services of others will have to be terminated. If candidates selected by the Commission have become available they will deserve appointment to the vacant posts. The petition was filed on 24th October 1988, before the promulgation of Rule 10. At the time of filing of the writ petition the petitioners were not entitled to claim regularisation. They have become entitle thereto during the pendency of the case by virtue of amendment in the rules. 113. To the above extent, the petitioners are entitled to relief. Writ Petition No. 8148 of 1989 114. This petition has been filed by Dr. Siddharth Kumar Das. The petitioner was appointed Lecturer in Medicine in King George's Medical College on ad hoc basis by order dated 6th July 1984. He filed the instant writ petition when the Public Service Commission invited applications for making regular selection. He sought a writ of mandamus to command the Public Service Commission to forbear from selecting candidate for the post held by him. A further mandamus was claimed by him to command the State of Uttar Pradesh to considerations case for regularisation. The petition was filed on 26th September 1989, i.e., after the promulgation of Rule 10. In view of the fact that he was appointed prior to the cut off date fixed in Rule 10, he is indeed entitled to be considered for regularisation. If he found unfit for regularisation his services will have to be terminated and in the vacancy thus caused, the candidates selected by the Public Service Commission will be entitled to be appointed. He is accordingly entitled to the relief claimed by him. The date of his appointment, viz., 6th July 1984, has not been challenged on behalf of the State by filing any counter-affidavit. Writ Petition No. 8370 of 1989. 115. This petition has been filed by Dr. Varun Shanker Narain. According to him he was appointed Lecturer in Cardiology Department of King George's Medical College on ad hoc basis by notification dated 6th February 1985, Annexure-1. This date has not been disputed by the State Government by filing any counter-affidavit. Writ Petition No. 8370 of 1989. 115. This petition has been filed by Dr. Varun Shanker Narain. According to him he was appointed Lecturer in Cardiology Department of King George's Medical College on ad hoc basis by notification dated 6th February 1985, Annexure-1. This date has not been disputed by the State Government by filing any counter-affidavit. His date of appointment falls prior to the cut off date fixed in Rule 10. The petition was filed on 29th September 1989 after the promulgation of Rule 10. The petitioner is entitled to be considered for regularisation under Rule 10. This petition. therefore, deserves to be allowed. ORDER 116. We have indicated hereinabove the extent to which relief is to be granted in each petition after making this indication, we consider it unnecessary to pass separate order in each petition. We accordingly make the following general orders- (1) The validity of Rule 10 added to the U.P. Regularisation of Ad Hoc Appointment (On Posts within the purview of the Public Service Commission) Rules 1979 through notification dated 7-8-1989 is hereby-upheld; (2) Accordingly the State Government shall proceed to consider for regularisation those who fulfil the eligibility qualification prescribed in the aforesaid rules. and have not so far been regularised, and issue orders of regular appointment to those who are found fit for regularisation and simultaneously issue orders of termination of service to those who are not found fit for regularisation; (3) In the vacancies caused by termination of services of those who are not found fit for regularisation, candidates recommended by the Commission, if available, shall be issued appointment orders forthwith; (4) Ad hoc appointments may be continued or made only against such posts for which candidates selected by the Commission are not available; (5) Appointments of all those who did not deserve to be appointed in view of the findings hereinabove recorded, shall stand nullified: (6) Inter se seniority between a regularised appointee and a Commission selected appointee shall, subject to the directions hereinafter given, be determined in accordance with Rule 7 of the Regularisation Rules of 1979; (7) If any Commission selected candidate was appointed to a post under interim order of this Court without consideration of the claim for regularisation of the eligible employee and such eligible employee is regularised subsequently, such regularised employee will rank senior to the Commission recommended appointee; (8) In Writ Petition No. 2288 of 1988 the State of Uttar Pradesh shall pay Rs. 500/- as costs to t he petitioners of this petition. In the remaining petitions the parties shall bear their own costs. 117. It is true that the appointing authority is not bound to fill up the post for which Commission has recommended a candidate and it is open to such authority to keep the post vacant, still on the peculiar facts of this case, we felt it expedient to issue mandamus mentioned above in order to do complete justice between the parties. From the facts raised before us it is apparent that the posts are available and the Government intends to fill up these posts. Statutory Rules of recruitment are there. If we do not command the State to fill the posts by appointing candidates selected by the commission, after sometime the select list will lapse and the process of ad hoc appointment may again start. The continuance of ad hocism, year after year, created crises of confidence reflected in the plea of mala fides raised against the State Government. If we do not command the State to fill the posts by appointing candidates selected by the commission, after sometime the select list will lapse and the process of ad hoc appointment may again start. The continuance of ad hocism, year after year, created crises of confidence reflected in the plea of mala fides raised against the State Government. We have indeed negatived that plea but it is of utmost importance that the credibility of public institutions and services should not be eroded. That credibility has the prospect of being eroded if ad hocism is continued endlessly. We, therefore, hope that in future the State Government and the Public Service Commission will act in unision and avoid creation of situations where ad hoc appointments may become a necessity. 118. We have avoided to fix any time limit for compliance of our judgment as we do not know the exact time required by the State Government for completing formalities. Much time has already been spent in this unfortunate litigation. It is time that all concerned may know their position finally. We, therefore, desire that the State Government may act expeditiously and pass appropriate orders without loss of time. Perhaps a period of three months may be enough. We hope that the State Government will not give cause to any person to approach this Court complaining of inaction and praying for fixation of a definite period. 119. The writ petitions are disposed of accordingly. S.N. Sahay, J.:-120. 1 would like to add a few words of my own on two points which have been raised for consideration in this case. 121. The validity of the U. P. Regularisation of Ad Hoc Appointment (On Posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 (hereinafter referred to as 1989 Amendment Rules) has been challenged inter alia on the ground of mala fides or malice in law. On the other hand. it is contended that the said Rules have been made in the exercise of legislative powers under the Proviso to Article 309 of the Constitution and therefore, like an Ordinance, are not open to challenge on the ground of mala fides. 122. On the other hand. it is contended that the said Rules have been made in the exercise of legislative powers under the Proviso to Article 309 of the Constitution and therefore, like an Ordinance, are not open to challenge on the ground of mala fides. 122. Article 309 provides that subject to the provisions of the 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 Union or of any State. The proviso to Article 309 lays down 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. 123. It is settled by now that the power to make rules exercised by the Governor under the Proviso to Article 309 is legislative power. The rules have to be subject to the provisions of the Constitution and shall have effect subject to the provisions of an Act of Legislature. If the appropriate Legislature has passed an Act under Article 309, the rules framed under the proviso will have effect subject to that Act. But in the absence of any Act of the appropriate Legislature on the matter, the rules made by the Governor are to have full effect both prospectively and reprospectively (see B.S. Yadav v. State of Haryana 1980 (Supp) SCC 524 : 1981 Lab IC 104, Vadera v. Union of India, AIR 1969 SC 118 : 1969 Lab IC 100. But in the absence of any Act of the appropriate Legislature on the matter, the rules made by the Governor are to have full effect both prospectively and reprospectively (see B.S. Yadav v. State of Haryana 1980 (Supp) SCC 524 : 1981 Lab IC 104, Vadera v. Union of India, AIR 1969 SC 118 : 1969 Lab IC 100. However, it is not obligatory on the part of the appropriate Legislature to pass an Act under Article 309 (State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447 , J. Kumar v. Union of India, AIR 1982 SC 1064 : 1982 Lab IC 1586 or on the part of the Governor to make any rule under the proviso to Article 309 Ramesh v. State of Bihar, AIR 1978 SC 327 : 1978 Lab IC 173. 124. In the case of B.S. Yadav. cited above, it has been observed that there is nothing unique about the Governor's power under the proviso to Article 309 being in the nature of a legislative power. In order to illustrate this point, a reference was made to Article 213 under which the Governor has power to promulgate Ordinances. It was pointed out that the power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. In this connection, it was further observed that under Article 213, he (Governor) substitutes for the legislature, because the legislature is in recess and under proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject. 125. The fact that the power exercised under the proviso to Article 309 is legislative power, being of the same kind as the power to promulgate Ordinance under Article 213, does not imply that the power exercised under the two provisions is similar in all respects. The nature of the power is of the same kind, but the conditions for the exercise of the power are not similar and the difference arising out of the same must be appreciated. 126. The nature and scope of the power to promulgate an Ordinance was explained in R.K. Garg v. Union of India. (1981) 4 SCC 675 : AIR 1981 SC 2138 . 126. The nature and scope of the power to promulgate an Ordinance was explained in R.K. Garg v. Union of India. (1981) 4 SCC 675 : AIR 1981 SC 2138 . It is a power exercisable only when both Houses of the State Legislature is not in session and it has been conferred ex necessitate in order to enable the executive to meet an emergent situation. The law made by issuing an Ordinance is of extremely limited duration. It ceases to operate at the expiration of six weeks from the reassembly or the Legislature, or if before the expiration of this period, a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council. The Ordinance may also be withdrawn at any time by the Governor. The legislative power to promulgate an Ordinance has been conferred on the executive for a necessary purpose and it is hedged in by limitation and conditions. 127. In the case of R.K. Garg. it has been observed that the conferment of the power to promulgate an Ordinance may appear to be undemocratic. but it is not so. because the executive is clearly answerable to the Legislature. It was pointed out in the context of Article 123 which empowers the president to promulgate an Ordinance, that if the President on the aid and advice of the executive promulgated an Ordinance in misuse or abuse of this power, the Legislature cannot only pass a resolution disapproving the Ordinance, but can also pass a vote of no confidence in the executive. It is a safeguard which protects the vesting of the legislative power in the President from the charge of being an undemocratic provision. 128. None of these conditions can be found to exist in the case of a rule made in exercise of the power under the proviso to Article 309. This power may be exercised at any time and there is no restriction to the effect that the power cannot be exercised when the Legislature is in session. There is no constitutional obligation to lay the rule before the Legislature. nor the rules made under the proviso to Article 309 have a limited duration. Such rules do not automatically cease to have effect on the expiry of a specified period. There is no constitutional obligation to lay the rule before the Legislature. nor the rules made under the proviso to Article 309 have a limited duration. Such rules do not automatically cease to have effect on the expiry of a specified period. six weeks or the like, nor on the passing of a resolution by both the Houses of the Legislature disapproving the same. The rules will cease to be effective only when they are amended or repealed by the Governor by making new rules under the proviso to Article 309 or when the Legislature passes an Act for that purpose under Article 309. Thus the legislative power to make rules which has been conferred on the Governor under the proviso to Article 309 is neither to tide over an emergent situation nor there is any limit or constitutional safeguard to prevent abuse or misuse of the legislative power by the executive. 129. A rule made under the proviso to Article 309. is not an Act of Legislature. As a matter of fact. both these expressions have been used in Article 309 itself in contradistinction to each other. Article 213 contain in express provision that an Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor. Similar provision has been made in Article 123 in relation to Ordinance promulgated by the President. No such provision has been made in the proviso to Article 309. This proviso says that ..any rules so made shall have effect subject to the provisions of any such Act." and steps at that. The effect is that a rule made under the proviso to Article 309 cannot be deemed to be or equated with an Act of Legislature. All that can be said is that such a rule having been made in exercise of Legislative power is akin to legislation and would have the same effect as an Act Legislature has. But thereby it is not and does not become an Act of Legislature. That there is a clear distinction between an 'Act of 'Legislature' and a 'Legislative Act'. has been clearly brought out in Union of India v. Valluri Basavaiah Chowdhary, (1979) 3 SCC 324 : AIR 1979 SC 1415 . 130. But thereby it is not and does not become an Act of Legislature. That there is a clear distinction between an 'Act of 'Legislature' and a 'Legislative Act'. has been clearly brought out in Union of India v. Valluri Basavaiah Chowdhary, (1979) 3 SCC 324 : AIR 1979 SC 1415 . 130. There was a time with provision was made in the Constitution itself by inserting clause(4) in Article 123 and clause (3 in Article 213 by Constituting (38th Amendment) Act to provide complete immunity to an Ordinance from judicial scrutiny. An Ordinance may be promulgated when the President or the Governor, as the case may be. is satisfied that circumstances exist which render it necessary for him to take immediate action. It was provided that notwithstanding anything in the Constitution, the satisfaction of the President or Governor shall he final and conclusive and shall not be questioned in any court on any ground. This provision was omitted by the Constitution (44th Amendment) Act. Even so, their Lordships of the Supreme Court held in K. Nagraj v. State of Andhra Pradesh, (1985) 1 SCC 523 : 1985 Lab IC 746 that the power to issue an Ordinance is not an executive power but is the power of the executive to legislate. Therefore, though an Ordinance can be invalidated for contravention of the special limitations which exist upon the power of the State Legislature to pass laws, it cannot he declared invalid for the reason of non- application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind, not the act of legislature. Thus it was held that the Ordinance making power being a legislative power, the arguments of mala fides, would be misconceived. 131. This view was echoed in T. Venkata Reddy v. State of Andhra Pradesh, (1985) 3 SCC 198 : 1986 Lab IC 357. After noticing the provision that an Ordinance promulgated under Article 123 or 213 has the same force and effect as an Act of Parliament or an Act of Legislature, as the case may be, their Lordships proceeded to consider the question whether it is permissible to strike down an Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. In other words, the question is whether the validity of an Ordinance can be tested on ground similar to those on which an executive or judicial action is tested. In this connection it was observed by their Lordships that while the courts can declare a Statute unconstitutional, when it transgresses constitutional limits, they are precluded from inquiring into the properiety of the exercise of the legislative power. It was to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a Statute is beyond scrutiny of the Courts. Nor can the courts examine whether the Legislature has applied its mind to the provisions of a Statute before passing it. The properiety. expediency and necessity of a legislature act are for the determination of the legislative authority and are not for determination by Courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. Their Lordships took the view that an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents immunities and limitations under the Constitution. It cannot be treated as an executive or an administrative decision. 132. Before turning to the next point, it may not be out of place to mention that in A.K. Roy v. Union of India, (1982) 1 SCC 271 : AIR 1982 SC 710 their Lordships considered that the Constituent Assembly conferred upon the executive the power to legislate, not of course intending that the said power should be used recklessly or' by imagining a state of affairs to exist, when in fact it did not exist, nor in deed intending that it should be used mala fide in order to prevent the peoples' elected representatives from passing or rejecting a Bill after a free and open discussion which is of the essence of the democratic process. This may have been diluted to some extent by the observations in the case of Nagaraj (1985 Lab IC 746) and Venkata Reddy, (1986 Lab IC 357), cited above But in a later case, Dr. D.C. Wadhawa v. State of Bihar, (1987) 1 SCC 378 : AIR 1987 SC 579 . in which the question of repromulgation of Ordinances was considered, the immunity available to an Ordinance was further watered down. D.C. Wadhawa v. State of Bihar, (1987) 1 SCC 378 : AIR 1987 SC 579 . in which the question of repromulgation of Ordinances was considered, the immunity available to an Ordinance was further watered down. Their Lordships observed that the law making function is entrusted by the Constitution to the Legislature consisting of the representative of the people and if the executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the executive of the law making function of the Legislature. The executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in session, take over the law making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of the constitutional scheme, for then the people would be governed not by the laws made by the Legislature, as provided in the Constitution. but by laws made by the Executive. The Government cannot by-pass the legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued. Their Lordships found that it would be a colourable exercise of power on the part of the executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution. It was accordingly held that the Governor has no power to repromulgate the same Ordinance successfully without bringing it before the Legislature and he cannot assume legislative function in excess of the strictly defined limits set out in the Constitution. 133. It is too well known that provision in respect of recruitment and conditions of service and posts under the Union of the State may be made by executive order. It is also open to the executive as to the Legislature to provide for a particular person or a single case, but neither can violate constitutional limitations as those contained in Articles 14 and 16 Ramendra v. Jagdish, AIR 1984 SC 885 : 1984 Lab IC 614. Even after rules are made under Article 309. there is nothing to debar the Government to fill up gaps by administrative directions on matters in respect of which the rules are silent. State of Gujarat v. Akhilesh. Even after rules are made under Article 309. there is nothing to debar the Government to fill up gaps by administrative directions on matters in respect of which the rules are silent. State of Gujarat v. Akhilesh. AIR 1987 SC 2135 : 1987 Lab IC 1899. It has been highlighted in J. Gavali v. R.P. Mahala, (1987) 2 JT 767 : 1987 Lab IC 969, a case decided by the Supreme Court, that if a condition of service is brought into effect by an executive order, it would remain in force so long as it is not repeated either expressly or by necessary implications by another executive order or by a rule made under Article 309 or by Statute. 134. When it is proposed to make a provision with respect to recruitment of condition of service. the executive will not only have to consider the prevailing circumstances which would justify the making of that provision, but will also have to consider which of the options open to it should be exercised, whether the provision should be made by means of executive order or initiating legislation or making rule under the proviso to Article 309. There is no guide line in the Constitution for the exercise of the option one way or other. In the case of promulgation of Ordinance, there is constitutional guide line. In the first place, the Legislature should not be in session. Secondly, the existing circumstances have to be taken into account. Thirdly. it is to be seen that the circumstances are such, as render it necessary for the Governor, on the aid and advice of the Council of Ministers, to take immediate action. The Ordinance is to be promulgated when immediate action is warranted by the existing circumstances as a matter of necessity. All these factors are to be recorded. But no such thing is to be found in the case of the exercise of rule making power under the proviso to Article 309. The executive has an unrestricted option either to make a rule or issue an executive order. It is possible that in some cases, there may be no option but to make a rule; for instance, when a rule has already been made and it is desired to abrogate or replace the provision embodied in that rule. The executive has an unrestricted option either to make a rule or issue an executive order. It is possible that in some cases, there may be no option but to make a rule; for instance, when a rule has already been made and it is desired to abrogate or replace the provision embodied in that rule. But when the field is uncovered and the desired provision may be made either by issuing an executive order or by making a rule, the executive has no unbounded discretion to exercise either of the two powers at its pleasure. 135. As already indicated, the rule-making power may be exercised in respect of a particular person or a single case. The rule may be made with the intention of making it inviolable and immune from challenge on the ground of mala fides. or malice. The rule may he struck down on the ground that it is unreasonable or discriminatory and violates Article 14 or 16. The unreasonableness or discriminatory character of the rule, coupled with the attending circumstances, may suggest that the rule was made with bad motive or design. In other words the possibility cannot be ruled out that there may be cases where the rule-making power under the proviso to Article 309 is exercised with malice: and the executive may, in order to prevent exposure, decide to exercise that power. If the provision is made by means of an executive order, it would be liable to be challenged on the ground of mala fides. But if the same provision is made by the same authority, namely. the executive, by making a rule under the proviso to Article 109, it could not be challenged on the ground of mala fides because it is exercise of legislative power. The executive is made the sole repository of power not only to determine the propriety. expendiency and necessity of making the proviso to Article 309. but also the sole authority to impart immunity to its own act. 136. The difference in the contents and conditions of exercise of power in the case of promulgating an Ordinance under Article 309 has already been noticed. In the matter of rule making power under Article 309. the executive has almost no accountability. In State of Himachal Pradesh v. A. Parent of a Student of Medical College. (1985) 3 SCC 169 : AIR 1985 SC 910 . In the matter of rule making power under Article 309. the executive has almost no accountability. In State of Himachal Pradesh v. A. Parent of a Student of Medical College. (1985) 3 SCC 169 : AIR 1985 SC 910 . it has been laid down that it is extirely a matter for the executive branch of the Government to decide whether or not to introduce a particular legislation. The Court cannot assume the functions assigned to be executive or Legislative under the Constitution. It cannot even indirectly require the executive to introduce a particular legislation or the Legislature to pass it. Therefore, in the absence of any accountability, this will be clearly to subvert the democratic process, to which a reference has been made in the case of Dr. U.C. Wadhawa, cited above, though indirectly. The assumptions underlying the theory of granting immunity to an Ordinance like an Act of Legislature are not wholly applicable to the rule making under Article 309. Our attention has also not been drawn to any authority laying down that the action taken under Article 309 is wholly immune from challenge on ground of mala fides. 137. Under the circumstances, the matter which is the product of the performance of the legislative act as such under the proviso to Article 309, is to be distinguished and kept separate from the preceding executive act of taking a decision that the rule making power under the said proviso is to be exercised, in preference to any other alternative. While the provision contained in the rule made under the proviso to An. 309 like any other legislative act, may not be liable to be struck down on the ground of non-application of mind or mala fide, the executive decision which precedes the making of the rule may be challenged on the ground that it is vitiated by malice. It may be challenged that the executive was actuated by malice in deciding that the power under the proviso to Article 309 should be exercised in a particular case. This is not to say that the challenge will be easy to make. It will be open in a very limited sphere, as already visualised and the burden will be very heavy for the person challenging the executive decision to establish that it is vitiated by malice. This is not to say that the challenge will be easy to make. It will be open in a very limited sphere, as already visualised and the burden will be very heavy for the person challenging the executive decision to establish that it is vitiated by malice. The challenge may be made in those cases only in which option is open to the executive to make the desired provisions either by issuing executive order or by making rule under the proviso to Article 309. 138. In the present case, it is not possible to entertain the plea that the 1989 Rules are vitiated by malice in law. The object of the Rules is to regularise the services of those persons who have rendered satisfactory service for a long time in connection with the affairs of the State. There is nothing to show that their appointment on ad hoc basis was made with the intention of circumventing the existing rules for making regular appointments or enabling the persons appointing or appointed to make wrongful gain or derive unfair advantage. The employees of the State should be in no worse position than their counter parts in private employment and in order to draw the maximum out of them for the affairs of the State, it is desirable that they should have no anxiety about their future career and should not be permitted to work in precarious condition for unduly long time. To make provision for the regularisation of ad hoc employees who have rendered satisfactory service for a sufficiently longtime is, to implement the directive Policy contained in Article 42 of the Constitution which lays down that the State shall make provision for securing just and humane condition of work. There was no option but to make the 1989 Rules. The rules for the regularisation of ad hoc employees were made for the first time in 1979. Certain number of employees who were appointed on ad hoc basis up to a certain date were benefitted. The rules were amended in 1984 and some more employees were given the benefit of regularisation of services by extending the cut off date. The problem of ad hoc could not be solved in its entirety, and since the matter was already covered by rule made under Article 309, there was no option but to amend the original Regularisation Rules by making rule under Article 309. The problem of ad hoc could not be solved in its entirety, and since the matter was already covered by rule made under Article 309, there was no option but to amend the original Regularisation Rules by making rule under Article 309. The 1989 Rules are applicable to all the employees in general and are not directed against employees of a particular class or department. There is hardly any evidence to show that in respect of the class of employees to which the petitioners belong, 1989 Rules were made with a view to flout the orders of any court or to defeat the claim of any person selected by the Public Service Commission or to by-pass the Commission. For all these reasons, I find that the petitioners have failed to substantiate their plea that the 1989 Rules are vitiated by malice in law. 139. The second point to which I may refer relates to the effect of not consulting the U.P. Public Service Commission before issuing the 1989 Rules. The learned Chief Standing Counsel pointed out that the Commission was consulted before the issue of the rules originally in 1979 but the Commission did not agree. He further pointed out that when the rules were amended in 1984 for the first time, the Commission was consulted, but the Commission was not at all consulted before framing the 1989 Rules. Thus the matter pertaining to the effect of non- consultation L. to be decided on the basis of the admitted facts that the Commission was not at all consulted. 140. Article 320(3)(a) and (b) lays down that the Commission shall be consulted on all matters relating to methods of recruitment to civil services and civil posts and on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another, and on the suitability of candidates for such appointments, promotions or transfers. The proviso to Clause (3). however, leave it open to the Governor to make regulations specifying matters in which either generally or in any particular class of cases or in any particular circumstances, it shall not be necessary for the Public Service Commission to be consulted. 141. The proviso to Clause (3). however, leave it open to the Governor to make regulations specifying matters in which either generally or in any particular class of cases or in any particular circumstances, it shall not be necessary for the Public Service Commission to be consulted. 141. The provisions of sub-clauses(a) and (b) of Clause (3) of Article 320, suggest that in the normal course the State Government should have consulted the Public Service Commission before making the 1989 Rules. However, it appears that in exercise of the powers conferred on it by the Proviso, the Governor has made the U.P. Public Service Commission (Limitation of Functions) Regulations 1954. Regulation 3 (c) provides that when the appointing authority in respect of the service or post concerned, is the Governor or is an authority other than the Governor and the person concerned being directly appointed on ad hoc basis on or before the date notified by Government, possessed requisite qualification for regular appointment at the time of such ad hoc appointment and has completed three years' continuous service on or after the said date, it shall not be necessary for the Commission to be consulted on matters relating to methods of recruitment or.the principles to be followed in making appointments or the suitability of candidates for such appointments. In view of this provision all that remains for the State Government is to notify a date referred to in Regulation 3(c). It would have been better to consult the Commission as to the date to be notified but when the power of notifying the date has been conferred on the Governor in absolute terms with a view to limit the function of Commission, there appears to be no justification for laying down as a requirement of law that the Commission should be' consulted. After all it is for the Governor to specify the matters in which it shall not be necessary for the Commission to be consulted. In this view of the matter the contention based on Regulation 5 cannot prevail, that it is mandatory that the Commission ought to have been consulted. After all it is for the Governor to specify the matters in which it shall not be necessary for the Commission to be consulted. In this view of the matter the contention based on Regulation 5 cannot prevail, that it is mandatory that the Commission ought to have been consulted. The provisions of Regulations 3(c) and 5(a) are to be harmoniously construed and while a person appointed to a post which falls within the purview of the Commission cannot normally hold the post in question for a total continuous period of more than one year without the Commission being consulted, it will not be necessary to consult the Commission for regular appointment of a person directly appointed on ad hoc basis on or before the date notified by the Government if h e satisfies the requisite conditions. 142. This view further finds support from the consistent pronouncements of their Lordships of the Supreme Court that the provisions of Article 320(3) are directory. While it is incumbent on the State Government to consult the Commission in matters falling within its purview, the advice of the Commissions not binding on the Government and no right or privilege is conferred to the individual public servant to challenge the action of the State Government on the ground that it is vitiated by the fact that the Commission has not been consulted, (see State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 and Jatindra Kumar v. State of Punjab, AIR 1984 SC 1850 . I am, therefore, of the view that the 1989 Ruels cannot be characterised. as illegal and unconstitutional on the ground that it was issued without consulting the Public Service Commission. 143. Subject to above observations, I generally agree with the judgment prepared by my Brother Mathur, J. and the order proposed by him.