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In the meanwhile, the service association and other persons made innumerable representations to the government to exercise their power under Article 320(3) (proviso) to relax the recruitment rules and to regularise their Services. The government in G.O. Ms. 122, GAD dated March 5, 1982 considered the representations and directed them to appear for special qualifying test to be conducted by the PSC in accordance with the Special Rules made applicable to the respective services. Bat on farther representations by G.O. Ms. No. 411 August 29, 1983 the government withdrew the orders that were made in G.O. Ms. No.122 dated March 5, 1982 and in G.O. Ms. No, 412 G.A.D. dated August 29, 1983. Because of dispensation of consultation with PSC, under proviso to Clause (3) of Article 320 of the Constitution, it was not necessary for the PSC to be consulted in temporary appointments made between August 10, 1979 and March 5, 1992 and such temporary appointees continued as such. In that situation, Government by G.O. Ms. No. 413 G.A.D., dated August 29, 1983 directed regularization of services of temporary appointees subject to certain conditions of which condition (iii) is relevant for the purpose of this case. It reads as under

The Tribunal in the impugned order expressed its unhappiness and was right in holding that the exercise of the power under proviso to clause (3) of Article 320 of the Constitution and relaxation of recruitment by PSC is bad and that all appointments should be made in accordance with the Special Rules conformable to the zonal regulation made by the President exercising the power under Article 371-D of the Constitution. The Tribunal also upheld the G.O. giving seniority to the PSC candidates over the temporary appointees.

It is true that in Diwaker's case and in Venkata Reddys case, this Court upheld the exercise of the power by the Government under proviso to Clause (3) Of Article 320 of the Constitution and in Venkata Reddys case held that the temporary employees are appointed in accordance with the rules. As stated earlier, those appointments came to be made during ban period and remained in service for long period. In this case, there is no ban on recruitment and the appellants were eligible to apply for and seek direct recruitment. In Paripoomam's case , another bench of three Judges, considering the similar Madras Rules, held in paragraph 14, that temporary appointments made under Rule 10(a)(i)(l) to fill in emergency vacancies were otherwise than in accordance with the Rules and the temporary service cannot be counted towards the seniority. Same is the view held by another three Judges Bench in A. P .M. Mayankutty v. Secretary, Public Service Department, [1977] 2 SCC 360. In Diwaker's case and Venkata Reddy's case, this Court approved the validity of the exercise of the power under proviso to Clause (3) of Article 320 owing to the ban on the recruitment by the government; and long lapse of time which had elapsed from the date of the initial temporary appointments till the date the decision was taken by the Government to regularise the services of such temporary appointments;

It was reiterated in K.C. Joshi's case and it is common experience that, it is a vicious circle that initially governments impose ban on recruit- ment and make massive ad hoc appointments de hors the rules giving a go-by to make recruitment in accordance with the Rules and then resort to regularisation of such appointments exercising the power under Article 320(3) proviso or Article 162 to make them the members of the service. This practice not only violates the mandates of the Articles 14 and 16 but also denies to all eligible candidates, their legitimate right to apply for and stand for selection and get selected. In State of Orissa v. S. Mahapatra, [1993] 2 SCC 486 and J & K Public Service Commission v. Dr. Narendra Mohan, [1994] 2 SCC 630, it was held that appointments made in violation of recruitment rules violates Articles 14 and 16. Therefore, as stated earner, the Administrative Tribunal has rightly expressed unhappiness on the exercise of the power by the State Government by resorting to proviso to clause (3) of Article 320 to make massive departure to make recruitment in accordance with the Rules. We agree with Shri Guru Raja Rao, the learned counsel for PSC candidates that the PSCs must be made more functional and its efficacy be streamlined appointing people of eminence, experience and competence with undoubted integrity to recruit the can-didates in accordance with rules for appointment to the post and back door entry by nepotism be put an end. Free play of exercise of the power under proviso to clause (3) of Article 320 would undermine the efficacy of constitutional institution i.e. PSCs. Be it as it may, we have to consider whether the regularisation of the service of the temporary appointees is in accordance with the special rules and the rules vis-a-vis condition (iii) of the Order under G.O. Ms, No.413, dated August 29, 1983.