Abhyankar, J.
(1) By this petition under Article 226 and 227 of the Constitution the petitioners pray that the order dated 11th May S. S. Ghisad, as an Executive Engineer, he quashed and that the second respondent be restrained from acting as Executive Engineer of the first respondent. Petitioner No. 1 is an association of Engineers employed by the first respond i.e., the Maharashtra State Electricity Board. The second and the third petitioners are employees of the Maharashtra State Electricity Board and also members of the Association. The first respondent, the Maharashtra State Electricity Board, is a statutory corporation constituted under the Electricity Supply Act, 1948 (Central Act No. 54 of 19480. The first respondent issued an advertisement in news papers, inviting applications for the post of Executive Engineers (E. & M) in the Board Annexure A to the petition is a copy of this advertisement. The advertisement was in respect of several posts to be filled including that of Executive Engineers (E & M). Applications were to be made on or before 10th December 1965. In the advertisement calling applications for the post of Executive Engineers the qualifications and the requirements of experience as well as conditions of age-limit have been given. For the post of Executive Engineer (E. & M) the following conditions and requirements of the candidates were advertised:-
Sl Name of the Qualification Experience AgeNo post pay scale limit1 Executive Degree in Experience in Electrical 40Engineer (E & M ) Electrical or Engineering for 7 years out yearsRs. 500-50- Mechanical of which 3 years should800-EB-50- Engineering of have been in a position of1100. an Indian or responsibility connectedForeign with:-University or its equivalent. i Design erection andmaintenance of transmissionand distribution systems.or ii Design, construction and/or operation and maintenanceof Hydro Thermal Station.Or iii Commercial Activities likeload survey tariff calculations,Power sales and development etc'
(2) Petitioner No. 2 Shri R. Circumstances Gupta has been serving with the respondent No. 1 Board since about 7 years as a Deputy Executive Engineer, Testing Division. Petitioner No. 3 Shri S. P. Shinde, who is a graduate in Engineering (Electrical) from Usnmania University, was appointed as a Junior Engineer with the Board in 1961 and has since been promoted and was serving as an Assistant Engineer when the advertisement was issued. Petitioner No. 2 Shri R. Circumstances Gupta had made an application for being considered for the post of Executive Engineer advertised by the Board ; apparently, he sent his application through his superior officers as he was already serving in the department with respondent No. 1 Board. Petitioner No. 2 was not called for interview, nor was any intimation given to him about his application. The third petitioner shri Shinde did not apply at all, but according to Shri Shinde he did not make any application for the post as he had only 5 years experience to his credit, Whereas the minimum period of experience as per advertisement was not less than 7 years. He has also alleged that in view of the specific regulations by which the recruitment is governed he did not consider himself eligible to make the application because of the condition of minimum experience.
(3) It appears that the second respondent Shri Ghisad received an appointment order some time in May 1966, appointing him as an of two years. The actual order issued under the signature of the Secretary of the Board is Annexure C to the petition. Now, the grievance of the petitioners is that the second respond has been appointed to one of the posts of Executive Engineers in pursuance of the advertisement calling applications issued by the first respondent Board, in violation of the terms and conditions of the appointment as advertised, and that petitioners 2 and 3 and other members of the petitioner No. 1 Association, who were otherwise eligible for being considered for appointment if the condition of minimum experience of 7 years was to be relaxed have been in any case denied a fair, equal and reasonable opportunity of competing for these public posts. In other words, the fundamental right of petitioners 2 and 3 and other members of the Association were eligible otherwise has been infringed by the manner in which the respondent No. 1 Board had appointed the second respondent in this case.
(4) Separate returns have been filed on behalf of respondent No. 1 and respondent No.2 Respondent No. 1 resists the petition on several grounds. According to it , the petition under Article 227 is not tenable because the order of appointment is not a judicial or quasi-judicial order. But this objection is no longer tenable as the petition is also under Article 226 of the Constitution. The first respondent also disputes the right of the first petitioner which is an Association, to file petition as it is not a juristic person. As regards the grievance of the second petitioner the case of the first respondent is that there was no bar to either of the petitioner 2 and 3 making an application. According to the regulations for filling of posts framed by the Board, out of 4 posts, 3 posts are reserved for departmental candidates and though the fourth vacancy is to be filled by direct recruitment in the case of a post of Executive Engineer the departmental candidates are also eligible to make application for the fourth post. But in case of departmental candidates their applications are to be forwarded by their superiors because the Board could not otherwise have any data or record in respect of these candidates, and it is for the superior officers f the departmental candidates to speak about the calibre, work, initiative etc., of the departmental candidates while forwarding their applications. The applications of the departmental candidates could be forwarded for being considered for appointment to higher posts if the superior officer found that they are suitable and deserving. Even if the departmental candidates did not have the requisite experience or qualification for the posts, there deserving departmental candidates who had a chance or whose applications could be considered by the Selection Committee have not been shut out from consideration by the Selection Committee. Their specific case is that the application of petitioner No. 2 was forwarded by the superior officer but without any recommendation, and so the appointing authority did not think him suitable. As regards the third petitioner , the case of the Board is that he was not prevented from making an application as he was aware of the regulations and the recruitment rules. In fact respondent No. 1 has stated that there was no specific bar either in the regulations or was in the rules for candidates who had less experience to apply for the posts. As petitioner No. 3 did not apply at all, he could have no grievance and petition at his instance is therefore not tenable. As regards the actual selection of the second respondent and the appointment made by the Board it is alleged that he was very superior candidate having had a brilliant career and having secured First Division at all examinations and having secured 73 per cent marks in the B.E (Hons) Electrical Engineering Examinations in the First Class. So far as experience of the second respondent was concerned, he was promoted in the organization in which he was employed with in a short period of service of three years and the charge he held in the company of repute wa taken into consideration by the Selection Committee. O far as the satisfaction of the condition regarding experience is concerned the Selection Committee had a right to select a candidate on relaxing the condition required by defendant No. 1 Board and having exercised their discretion in recommence, there was not infringement of any regulation or right as claimed by any of the petitioners.
(5) The second respondent has characterised the petitioner as mala fide. According to him, all the petitioners knew the regulations by which the recruitment is governed, and in particular Regulation 21 under which the Selection Committee has been empowered t relax the condition in suitable case. As petitioners 2 and 3 are governed by these regulations, they cannot make a complaint when the appointment is made in pursuance of the powers given to the various authorities by the regulations for recruitment, in order to help the Board. In the alternative, respondent No. 2 has urged that there is not question of discrimination or denial of equal opportunity to petitioners 2 and 2 or any other member of petitioner No.1 Association, inasmuch as under the recruitment rules there are two well-defined categories from which candidates are selected. Candidates like the petitioner 2 and 3 who are already in the employment of the Board, form a distinct and separate class from other candidates who are not employees of the Board and who are not governed by the regulations of the Board. It is urged that the very fact that the petitioner 2 and 3 are employees of the Board form a different class shows that in the matter of filling of posts even by direct recruitment they cannot make any grievance against the Selection Committed in the matter of exercise of their right of relaxing the condition or any qualification in the case of any outside candidate. So far as departmental candidates are concerned, their applications are required to be routed, through superior officers and provision has been made by instructions for departmental officers to make recommendations in respect of deserving departmental candidates to condone or relax conditions in the matter of qualifications or experience. Thus, the power of relaxation having been vested in the Selection Committee in the regulation itself by which the recruitment is governed, the petitioners could make no grievance if this power is utilized in a proper case like that of the second respondent. Petitioners 2 and 3 and respondent No. 2 are not of the same class as they come from two separate and distinct categories of candidates and therefore, there is no denial of equality of opportunity in filling this post inter between departmental candidates. There can be no complaint of discrimination. It is further urged that the petitioner cannot claim any fundamental right when respondent No. 1 recruits its employees and Article 16 will be applicable only to those cases where the recruitment is at the instance of 'State' as defined in Article 12 of the Constitution. According to the respondents, the Maharashtra State Electricity Board, though a statutory authority, does not come within the definition of 'State' under Article 12 of the Constitution and no question of infringement of fundamental right therefore arises.
(6) It is first necessary to consider which the Maharashtra State Electricity Board, which is a statutory corporation, would answer the definition of the word 'State' defined in Article 12 of the Constitution, for interpretation of Part III of the Constitution. Article 12 says:
'In this part, unless the context otherwise requires. 'the state' includes the Government and Parliament of India and the Government and Legislature of each of the States and all the local and other authorities within the territory of India or under the control of the Government of India.'
According to the petitioners, the first respondent is 'other authority' within the territory of India and therefore fully answers the description of 'State' within the meaning of Article 12 of the Constitution. To examine this contention it will be useful to see how the Board is constituted and what are its powers, under the statute under which it takes its birth. Under section 5 of Electricity Supply Act, 1948 the State Government is under a duty bound to constitute by notification in the official Gazette to consists not less than three and not more than seven members. After providing for the term of office and conditions for appointment of members, the State Government is empowered to suspend from office or remove from office any ,member of the Board for specified respondents. The Board under section 12 shall be a body corporate, having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and can sue and be sued in its name. Chapter IV deals with powers and duties of the State Electricity Board and among its other duties section 18 makes it a specific duty of the Board, with the general duty of promoting the coordinated development of electricity within the State in the most efficient and economical manner. In order to perform this duty, some specific powers are vested in the Board. For example under section 36 the Board may at any time declare to a licensee owning a generating station within an area for which a scheme is in force that the station shall be permanently closed down. Again under section 37 the power of compulsory purchase by the Board of main transmission lines belonging to the licensee under stated conditions has been invested with the Board. Again under section 41 where the Board considers it necessary to use for any of its purposes any transmission lines or main transmission lines of a licenses, the Board has been given the power to use such lines t the extent to which the capacity thereof is surplus to the requirements of the licensee. Under generating station pursuant to the declaration under section 36 the Board may authorise any of its officers to enter upon the premises ;of such station and shut down the station or the plant or works. Section 60 is indicative of the nature of the functions and responsibilities undertaken by the Board under that section in respect or debts and obligations incurred, of all in tracts entered into and all matters and things engaged to be done by, with ;or for the State Government for any of the purpose of the Act before the first constitution of the Board shall be deemed to have been done, entered into or engaged to be done by with or for the Board, and all suits or other legal proceedings instituted by or against the State Government may be continued or instituted by or against the Board. In other words, so far as the function of production, supply and distribution of electrical energy is concerned, when ever that was done by the Government a statement in the prescribed form of the estimated capital and revenue receipts and expenditure for the ensuing year. On receipt of this the State Legislature; the statement in the State Legislature. Thus, the control of the representatives of the people in the form of criticism and suggestions as to them manner in which the Board functions is ensured by this provision. The borrowing power of the Board is being made subject to the previous sanction of the State Government and the State Government is empowered to guarantee the loans that may be raised by the Board. The distribution of the Revenues of the Board are also controlled by the statute according to the provisions of section 67 and the accounts and audit of the Board are to be carried out in the manner prescribed by the State Government in consultation with the Controller and Auditor General of India. Under section 74 any officer of the Board has the power of entry for the purpose of lawfully using any transmission lines or main transmission lines. The Board is required to be guided in discharge of its functions by such directions on questions of policy being given to it by the State Government. The regulations made by the Board under clauses (a) and (b) of section 79 are subject to previous approval of the State Government ,. The members of the Board and servants are constituted public servants under section 81 and a statutory protection is given to the acts of such servants of the Board done in good faith and they are immune from suit, prosecution or legal proceedings. Detailed provisions have been made in the Sixth Schedule of the Act regarding the financial position and the management of the Board's finances. It is thus clear that the statutory authority created under the Electricity Supply Act, namely the Board, has been invested with certain public functions and has to discharge them as public authority in the matters connected with the generation and supply of electricity. Certain powers of remission of delay are also invested with the Board in discharge of its functions.
(7) According to the respondents, however, the Electricity Supply Board constituted under the Electricity Supply Act is not covered by the definition of 'State' under Article 12 of the Constitution because it does not discharge any of its sovereign functions. The test that the respondents would apply in order that an authority may be considered as 'State' within the meaning of Article 12 is whether it discharges any of the sovereign function of the State. The respondents have invited our attention to the following decisions in support of their contention: Krishan Gopal v. Punjab University , University of Madras v. Shanthabai, : AIR1954Mad67 , Surendra Kumar, v. Central Board of Secondary Education, Ajmer, AIR 1957 Raj 206, Ena Ghosh v. State of West Bengal, : (1963)ILLJ138Cal and Devadas v. Karnatak Engineering College, AIR 1964 Mys 6. In this connection reference was also invited tp the observations on page 326 of Maxwell's Interpretation of Statues. 11th edition, and of Cries' at page 178. In our opinion the contentions raised on behalf of the respondents are not well founded. In the Punjab case, the question was whether the Punjab University constituted under the Universities Act, was a 'State' within the meaning of Article 12 of the Constitution. The Division Bench apparently followed the reasoning in the Madras case in : AIR1954Mad67 and also a decision of the Calcutta High Court in AIR 1962 al 420. Apparently the Division Bench accepted the observation of Narayana Pai J. in AIR 1964 Mys 6, to the effect that the term 'State' was an abstract political conception and it could act only through the agencies or instrumentalities through which it exerted its political power on those whom it governed or ruled. There the question was under Article 14 of the Constitution and therefore it was further observed that Article 14 necessarily sought to control State action or the action of the State through its agencies or instrumentalities. Now the Madras decision purports to interpret the connotation of the word 'State' in Article 12 by reference to certain decisions of the American Supreme Court . Making a pointed reference to these decisions in America, regarding universities the Division Bench observed as follows:
'The question has also been considered in America with special reverence to Universities. Where the University is maintained by the State any regulation or law made by the University which is repugnant to the 14th Amendment has been held to be unconstitutional and appropriate writs have been issued ....... But where the University is not one maintained by the State, their regulations, are not open to attack under the 14th Amendment because such a University cannot be considered to be a 'State'.
Then in paragraph 7 the Division Bench observed as follows:-
'It will be abundantly clear from the provisions enacted in part 3 that the Indian Constitutions has also recognised the distinction between 'State maintained institutions and State aided institutions. Thus, while Article 28(1) enacts that no religious instruction shall be provided in any educational institution wholly maintained out of State funds Article 28(3) provides that religious instruction might be given in educational institutions recognised by the State or receiving aid out of State funds, but that no person should be compelled to take part in such instructions. Article 29(2) also recognises that educational institutions might be either State-maintained or State-aided. Adopting therefore the principles laid down in the American authorities, it must be held that educational institutions will be within the purview of Article 15(1) only if they are State-maintained and not otherwise and that the regulations of the University of Madras, which is State-aided and not State-maintained are not within the prohibition enacted in Article 15(1)'.
(8) Now, whatever be the relevancy of the State-maintained as opposed to State-aided educational institutions in considering whether universities or educational institutions erected as a result of statutory provisions are immune from the requirements of Article 14 of the Constitution, we fail to see how that consideration is relevant in the present context. We may also, mention that Shri Basu, the learned commentator on the Constitution of India has observed at page 141, Volume 1, of 5th edition of his treatise, that the distinction made in the specific provisions of Articles 28 and 29 cannot be imported to interpret the general provisions of Articles 12 and 15(1). According to the learned author, the test for the application of Article 12 is whether the authority has the power to make 'laws' as defined in Article 13 or the power to administer such laws. It is further observed that where a body exercises power conferred by a statute, it is obvious that it is exercising governmental power in its ordinary sense; there is the authority of the State behind its acts (assuming that the acts are held intravires). Then the learned author refers to the Board of Trustees constituted by a statute in the United States, being taken as agents of the State. The learned author has also referred to later decisions of the American Supreme Court later in Lucy v. Adams (1955) 350 US 1 & Florida v. Board of Control (1955) 350 US 413 where the American Supreme Court has held that the 14th Amendment is applicable to aided Universities if they are vested with statutory powers.
(9) We would prefer to take the view that where a statute authorises a person or a body corporate to exercise a statutory power to issued orders and to exercise at least some of the governmental functions such as eminent domain or a right of entry or to make rules which are required to be obeyed, such an authority is the other authority within the meaning of Art. 13 of the Constitution and must be held to answer the description of the word 'State' within the meaning of that Article. The Rajasthan High Court in dealing with a similar question in the matter of Rajasthan State Electricity Board has taken the view that the Rajasthan Board was the 'other authority' and therefore the State within the meaning of Article 12 of the Constitution. See Mohan Lal v. State, . Similar statutory authorities have been held to be 'other authorities' with in the meaning of Article 12 such as Cochin Devaswom Board in Bramadathan Nambooripad v. Cochin Devaswom Board AIR 1956 Tra-Co 19, and port Trust Board constituted under the Madras Port Trust Act in Sarangapani v. Port Trust of indicate the principle to be applied in such cases. Their Lordships of the Supreme Court have also indicated in a recent case the test that may be applied in determining whether an authority would be 'other authority' within the meaning of Article 12 of the Constitution.
(10) In K.S. Ramamurthy v. Chief Court missioner, Pondicherry, : [1964]1SCR656 . Their lordships observed as follows in paragraph 11:-
'Article 12 gives an inclusive definition of the words the state and with in these words of that article are included (i) the Government and Parliament of India, (ii) the Government and the Legislature of each of the States, and (iii) all local or other authorities. These are the only authorities which are included in the words 'the State' in Article 12 for the purpose of Part III. Then follow the words which quality the words 'all local or other authorities'. These Local or other authorities which are includes with in the words 'the State' of Article 12 are of two kinds, namely, (I) those under the control of the Government of India. There are this two qualifying clauses to 'all local or other authorities'. These clauses are, (i) within the territory of India and (ii) under the control of the Government of India. It would in our opinion be grammatically wrong to read the words 'under the control of the Government of India' as qualifying the word 'territory'. From the scheme of Article 12 it is clear that three classes of authorities are meant to be included in the words 'the State' there and the third class is of two kinds and the qualifying words which follow 'all local or other authorities' define the two types of such local or other authorities as already indicated above. Further all local or other authorities within the territory of India included all authorities within the territory of India whether under the control of the Government of India or the Governments of various States 'and even autonomous authorities which may not be under the control of the Government at all'.
The portion underlined (here in '') above would suggest that their Lordships had under consideration autonomous authorities which can be created under statutes of the State or Central Legislature. If that be the correct interpretation of Art. 12, it must follow that the category of authorities under the 'other authorities' would include all those authorities which are created under the statute or in general for the discharge of public functions are amenable to the control of the State and whose acts are capable of scrutiny by public authority like executive government or the Legislature of the State and which have been invested with the power of eminent domain viz., right of entry or enforcing shutting out of transmission lines or taking over transmission plant in the instant case. We are therefor satisfied that the first respondent is 'State' within the meaning of Article 12 of the Constitution and is bound by the provisions of parliament the Constitution and its actions can be subject to judicial review if challenged as violate of any fundamental rights guaranteed by the Constitution.
(11) The next and most important question canvassed before us was whether in making appointment of the second respondent the Board has really denied a fair and equal opportunity to the second and third petitioners or other members of petitioner No. 1 Association, in being considered for appointment as an Executive Engineer.
(12) In this connection we must first dispose of the contention of the second respondent that no question of equality of opportunity arises so far as petitioners 2 and 3 or other departmental candidates are concerned, for they form a class b themselves. If this contention of the second respondent were to be accepted, then there would be no grievance, it is urged as the two types of candidates are governed by different condition. That there can be a valid classification in making recruitment to public office from different channels need not be a matter of serious debate. But the question is whether in the particular case the regulations for recruitment to service made by the first respondent No. 2 urges that there is no similarity of Circumstances between the petitioners 2 and 3 on the one hand the second respondent on the other. In order to understand the implication of this contention it is necessary to examine in some details the regulations made by the Board to govern the recruitment of its employees. Section 15 of the Electricity Supply Act empowers the Board to appoint a Secretary and such other officers and servants as may be required to enable the Board to carry out functions under the Act, and the appointment of the Secretary shall be subject to the approval of the State Government. Under Section 79 Clauses (c) and (k) , the Board is empowered to make regulations not inconsistent with the Act and the rules made thereunder, to provide for-
'(c) the duties of officers and servants of the Board and their salaries allowances and other condition of service.
(k) any other matter arising out of the Board's functions under the Act for which it is necessary or expedient to make regulations.' Now , regulations have been made by the Board and they have been annexed by the first respondent dispossession its return. The regulations are called the Maharashtra State Electricity Board Classification and Recruitment Regulations 1961 and the Regulations come into force from 1st October 1961. But the Regulations themselves provide under Section 1(iii) that if any of these Regulations come into conflict with the provisions of law for the time being in force the latter shall be deemed to be operative. Under Regulation j5, all appointments to posts in the service of the Board shall normally be made in accordance with the provisions if the Regulations, but appointments may be made either by promotion of persons holding lower posts in the respective carder or by direct recruitment as the case may be in the manner specified in Schedule A. Then there is a note added to this regulation 5, which is as follows:-
'Note. Nothing in this Regulation shall be deemed to restrict the authority of the Board to adopt other methods or standards of recruitment in such cases as it considers necessary'. Now, Schedule A referred to in Regulation 5 divides posts in the service of the Board into different categories such as technical posts of Engineer, E and M, is at serial No. 5 among the technical posts. Its pay-scale is Rs 500-50-800-EB-50-1100. The category is Executive Engineer E and M , the qualifications are Degree in Electrical or Mechanical or its equivalent, and the experience required is experience in Electrical Engineering for 7 years out of which 3 years should have been in a position of responsibility connected with (i) design, erection and maintenance of transmission and distribution systems or (ii) design, construction and /or operation and maintenance of hydro or thermal stations, or (iii) commercial activities like load survey, plaintiff calculations power sales and development etc. Then in column 8 it is provided.
'By departmental promotion any by direct recruitment subject to ;the condition that every fourth vacancy shall be filled by direct recruitment'.
(13) Regulation 6 provides the age limits, the lower age limit being 20 years and the upper age limit 40 years for pay group No. I, in which the posts of Executive Engineer is included. Regulation 8 is an important regulation and is as follows:-
'Subject to such modifications as the Board may decide, the minimum qualification and/or experience required for the various categories of posts shall be as shown in Schedule A'.
Under Article 9 it is provided that where no special qualifications in respect of education are prescribed. It is left to the discretion of the Selection committee concerned to select such persons as appear to it to be suitable for the duties that are assigned to the posts or that the candidates if appointed are required to perform. Regulations 12 requires that the posts intended to be filled by direct recruitment shall be advertised and filled according to the prescribed procedure. Regulation 19 which is relevant in the context of powers claimed for Selection Committee, is as follows:-
'All appointments or promotions to posts in the respective Pay Groups shall be made by the competent appointing authorities concerned on the recommendations of the competent Selection Committees concerned subject to such conditions as may be laid down by the Board .
Provided that in the case of vacancies of purely temporary nature and of leave vacancies where no person recommended by the Selection Committee concerned for inclusion in the waiting list is available the competent appointing authority may at its discretion appoint suitable persons for a period not exceeding six months, subject to the conditions -
(i) that no candidate who has completed a total service of 6 months shall be re-appointed or continued unless he is selected by the competent Selection Committee,
(ii) that the services of such a person appointed on purely temporary basis are discontinued no sooner a selected candidate is available.
Provided further that in the case of an immediate necessity when no person from the waiting list is available, a purely temporary appointment may be made by the competent Appointing Authority pending selections by the appropriate Selection Committee.
Under Regulation 20 the Board is empowered for the purpose of the regulations to constitute from time to time different Selection Committees to select and recommend candidates for appointments to posts in respective pay groups under the Board . Then follows Regulation 21 which is the sheet anchor of the defence of the respondent and it is as follows:-
'The Selection Committee ,may, besides selecting and recommending candidates, also recommend in deserving cases grant of higher starting pay condonation of physical defect and /or relaxation of age limit and educational or other qualifications.
Regulations 23 is important inasmuch as it provides that when the posts required to be filled by direct recruitment are advertised departmental candidates may apply for the same, provided they possess the prescribed qualifications and experience. We may now notice one more regulation, No. 36, under which when a posts is being filled by departmental promotion, the competent authority may relax the academic qualifications if the departmental candidate to be appointed is otherwise suitable and qualified by reason of adequate experience and/or by having passed the prescribed departmental examination.
(14) According to the second respondent , candidate who are not employees of the Board when a posts is to be filled by direct recruitment, form a class or category entirely different and distinct from departmental candidates who are enabled to compete when the post is to be filled by direct recruitment. According to the second respondent, regulation 23 which throws open an opportunity to the departmental candidates when the posts are required to be filled by direct recruitment or advertised, itself post-qualification and experience. The departmental instructions issued in this connection, of which a copy has been filed also require such an application to be routed and forwarded through the immediate superiors of the candidates concerned, and that superior officer has to make an-endorsement while forwarding the whether the departmental candidate satisfied the requirements and qualifications for the posts. We have found it difficult to accept this contention urged on behalf of the second respondent . In this connection it is also urged that the departmental candidates like the petitioner 2 and 3, who must be fully aware of the regulations governing the recruitment services under the Board cannot make any grievance if their applications are not considered by the Selection Committee, because it is one of the conditions of their employment that when the question of considering their applications for posts to be filled by direct recruitment or as advertised arises, the regulations dispossession not permit the departmental candidates to be considered eligible if the departmental candidate does not possess the prescribed qualifications and experience. In other words such a construction would be tantamount to saying that Regulations 21 does not apply when the candidates to be considered by the Selection Committee is departmental candidate but only applies, when the candidate is a non-departmental candidate. When the post is to be filled by direct recruitment. We are unable to appreciate the justification for such a construction of Regulations 21 and 23. The return submitted on behalf of the Board itself is also destructive of such an argument. In Paragraph 3 of the return respondent No. 1 has stated as follows:-
'It is submitted that the petitioner No. 2 was recently promoted to a post next below the post advertised from a lower post and the petitioner No.3 himself did not apply in spite of the fact that the rule s and the official circular No. Extt / III/Misc/6506, dated 18-4-1962, did not prohibit him from applying for the post even though he did not have the qualification and the experience prescribed by the rules and mentioned in the advertisement.'.
If that is the interpretation of the employer himself, i, e., respondent No. 1, then it is difficult to uphold the contention of the second respondent that even though candidates may come from two different channels, i. e., departmental candidates and non-departmental candidate when the post is advertised it is to be filled by direct recruitment. It must therefore be held that the second respondent cannot avoid the application of Article 16 of the Constitution, infraction of which is complained by the petitioners on the ground that the petitioners form a separate class different and distinct from candidate like the second respondent in the matter of appointment by direct recruitment and advertisement. Our attention was invited after the arguments were over, to a short Notes, printed at Note No. 399 in the Supreme Court Notes, at pp. 390 and 391 in the issue of 15th November 1966 Volume VIII No. 19. The very brief description in the Note is not of much assistance. Merely because the recruitment to a certain post is from different sources, Article 16(1) would not be violated by reason of the ratio to be filled by each source not being equal. That is not the question before us. The question before us is whether for the same post candidate from different categories are eligible for competition and whether they can be treated differently in the matter of qualifications and experience by the relaxation of requirements advertised for the posts.
(15) Thus, the only crucial point that remains to be considered is whether in making selections of the second respondent and accepting that recommendation, the appointing authority was justified in appointing the second respondent even though he failed to satisfy one of the conditions for appointment as per advertisement inviting applications. Reliance is heavily placed in this connection on Regulation 21 of the Recruitment Regulations which we have extracted above. If Regulation 21 can be considered as repository of an overriding power in the Selection Committee to recommend any deserving cases for condonation relaxation of the condition of age limit or educational or other qualifications then ilt is urged that the Selection Committee having exercised this power which the regulations vested in it , not grievance could be made for having exercised this power. The first question therefore is whether there is such a power in the Selection Committee.
(16) According to the learned counsel for the petitioners Regulation 8 invests the power of modification of the minimum qualifications or experience required for the various categories of posts only in the Board and not in the Selection Committee. The qualification and the period of experience in respect of each post as given in Schedule A of the regulation are described the 'minimum' qualifications. It is meaningless to suggest that this minimum can be further reduced or qualified by some authority other than the Board . What Regulation 8 does is to invest the Board which is the supreme authority in the matter of employment, with a power to make a modification in the minimum qualification in the matter of education or age or experience. But we fail ti see how such a power can be claimed for the Selection Committee as a matter of course. We must notice one more argument which, in our opinion, has some substance, urged on behalf of the petitioners. Regulations 8 seems to make a distinction between the requirements, such as 'qualifications' and 'experience'. The argument is that under Regulation 21 the power of relaxation or condensation that is claimed for the Selection Committee is only in the matter of qualifications but not of experience. Now, Schedule A to these regulations prescribes qualifications for several posts in Column 5 and the nature and period of experience in Column 6 for different posts. If it were intended that the Selection Committee should have power to relax or condone the requirements with regard to experience as prescribed in Column 6 in respect of several posts in the Schedule, the regulation ought to have so stated explicitly. As the power claimed by the Selection is entirely discretionary it is to be strictly constructed, and in the absence of any reference to experience as one of the consideration regarding which the Selection Committee may condone or relax the requirements of the regulations, it is urged that the Selection Committee has not power to condone the deficiency of a candidate even if other wise suitable in the matter of minimum experience prescribed by the regulations. It appears the regulation considered the qualification of experience as of considerable importance. Under Regulation 36 with reference to the post to be filled by departmental promotion, the competent authority has been empowered to relax academic qualifications if the departmental candidate is otherwise suitable and qualified by reason of adequate experience and has passed the prescribed departmental examination. Even in the case of departmental promotion it is pointed out that the competent authority has not been given the power to condone or relax the requirement of minimum experience required for the post. Thus, emphasis being satisfied by all candidates it is not permissible, Committee, even assuming that Regulations 21 is applicable, to relax the requirement of minimum experience in the case of any candidate for the post which is to be filled by direct recruitment.
(17) But we are not satisfied that Regulations 21 can be called in aid by the Selection Committee once the Board issues an advertisement prescribing the educational qualification and the experience required of a candidate for a particular post, which Regulations 8 itself prescribes as a minimum condition for candidature. It is argued that an employer should have an inherent right in case of an exceptionally suitable candidate to relax some of the conditions which ordinarily govern recruitment for the post. That there may be a need for such a power in the employer may not be disputed, but when the recruitment is governed by statutory regulations , the regulations themselves must make prior provision for such contingencies. If under Regulations 8 minimum qualifications and period of experience are fixed in the matter of recruitment to any of the posts given in the Schedule we fail to see how the Selection Committee in purported exercise of its power under Regulations 21 can ignore the requirement of minimum qualification or experience as given in Schedule A. Once regulations are made for regulating the recruitment to the services, both the Board and the candidate are bound by the regulations . We are therefore unable to accept the suggestion that Regulation 21 is in the nature of residuary power in the Selection Committee to relax or condone educational qualification or , as claimed, the condition regarding minimum of experience required for the post in the case of a deserving candidate. Regulation 8 being worded as it is the only authority to effect modification in the minimum qualifications prescribed for the post would be the Board itself. The Board , therefore, could in a given case call for applications stating that ordinarily the qualifications should be those as are mentioned in Schedule A but clearly indicating in the advertisement itself that the Board reserves itself the power in suitable cases on recommendation of the Selection Committee to relax or condone the conditions regarding qualifications or experience in exceptional cases. If it is given out in the advertisement itself that there is no rigidity in the matter of educational qualification or experience required of a candidate for a particular post, opportunity is thrown open to everyone who considers himself fit and qualified for the post to compete with confidence that his deficiency in a particular qualification or in the matter of experience may be considered and more than mitigated by superiority of his claim in other respects. But so long as the advertisement does not give any such indication that the Board itself would relax the condition of minimum qualification or experience, there is no opportunity for those who may not have minimum qualification or experience to compete at all. When such is the case, it is not permissible for the appointing authority to condone or relax any of the conditions to the detriment of equal opportunity being made available to other candidate whose cases for similar condonation or relaxation could not be considered by the Selection Committee for want of proper advertising.
(18) Equality of opportunity will be determined for the purpose of Article 16 of the Constitution by the representation made in the advertisement calling for applications for filling up a post. The advertisement at annexure A, calling application nowhere suggest that the educational qualifications mentioned in Column 3 , or the period of experience mentioned in Column 4, for the post of Executive Engineer (E and M) was liable to relaxation or condonation in deserving cases. In the absence of such a representation, if a candidate like petitioner No.3 considered himself ineligible, the fault cannot be laid at the door of such candidate.
(19) We are not impressed by the statement made on behalf of the first respondent in paragraph 3 of its return that like petitioner 2 and 3 were not debarred from applying for the post even though they did not have qualifications and experience prescribed by the rules. How, at what stage and by what means persons like petitioner 2 and 3 were likely to come to know that the rigidity of minimum qualification or experience is likely to be condoned or relaxed by the Selection Committee is shrouded in mystery. The procedure prescribed does not give any opportunity to such persons to have any knowledge of the possibility of relaxation or condonation of minimum requirements.
(20) As we have already held Regulations 8 and Regulations 21 cannot be simultaneously operated unless the Board which is the only authority entitled to modify the minimum requirements regarding qualifications and experience, consciously exercises its power under Regulations 8 and proclaims in the advertisement calling applications for a particular post that the minimum requirements are liable to be relaxed or condoned in suitable cases. What Regulations 21 does is to create an enabling recommendation, but the recommendation is required to be accepted by the Board , the appointing authority. If was not explained during the course of lengthy arguments at what stage and in what manner the Board would be in a position to exercise its power of relaxation or condonation in respect of a particular candidate or candidates the minimum requirements of qualifications and experience and how the decision of the Board to exercise this power of modifying the requirements was to be made known to the candidates. In out opinion the power of the b under Regulations 8 has to be exercised before the advertisement is issued. If the Board considers that it is advisable to relax the rigidity of minimum requirements regarding qualification and experience in respect of a particular post, that decision cannot to taken subsequently to the prejudice of the rights of candidate who are shied away or kept from making even an application when the advertisement speaks of minimum requirements from a candidate for a particular post.
(21) We are also unable to appreciate that validity of the contention of the first respondent that the regulations permit the interdiction of any other authority such as the superior of a departmental candidate to withhold an application or to make any endorsement regarding the mental qualification or the experience of the departmental candidate which is prejudicial. The return seems to suggest that in the case of petitioner No. 2 his application was for warded without any endorsement on the ground that petitioner No. 2 did not have the requisite qualification and period of experience. This procedure, for which no statutory power is shown creates an unnecessary handicap for the departmental candidate when applying for posts to be filled by direct recruitment by advertisement. As far as we can see, in view of the clear provisions of Regulations 23, when posts are required to be filled by advertisement, departmental candidates may apply. But provisions in that regulations that such candidates may apply provided they possess the prescribed qualification and experience clearly shows that in the case of departmental candidate nobody would be able to apply if the candidate did not possess the prescribed qualification and experience. In view of the statement of the first respondent, the departmental candidates and the direct candidates are on a par. We fail to see how a direct (departmental) candidate having less than minimum experience as advertised could at all be considered for the post for which minimum qualification were advertised. Regulations 23 itself postulates that when posts are advertised prescribing minimum qualifications, departmental candidates cannot apply if they do not possess the prescribed qualifications and experience. But the advertisement does not say that the qualification and experience as advertised are ;not rigid and are liable to relaxation and condonation, or that ordinarily the prescribed qualifications and experience were expected but not necessarily insisted. Such an advertisement effectively prevents departmental candidates from making even an application at all. It is in this sense that equality of opportunity in this case in competing for the post to be filled by direct recruitment. If the advertisement were to show that there is no rigidity regarding minimum qualifications and experience and that in suitable cases they are liable to be relaxed or condoned the petitioners would have no legitimate grievance. That not having been done, it must be held that the petitioners have been denied fair opportunity of competing for the post to be filled by direct recruitment by advertisement. Thus the right of petitioners 2 and 3 under Article 16(1) has been infringed and the action of the first respondent in making appointment of second respondent to a public office in violation of this right is required to be struck down.
(22) It is regrettable that highly qualified candidate like the second respondent suffers on account of this order, but the public authorities who have a constitutional obligation to discharge in exercise of their functions cannot act to the detriment of constitutional right of other citizens. We therefore feel that the first respondent will take adequate steps, with out loss of time to re-advertise the post in the light of the observations made above and will be in a position to employ the most deserving candidate.
(23) The petition is allowed, but in the circumstances there will be no order as to costs.
(23) Petition allowed.