28 September 1964
Supreme Court


Case number: Writ Petition (Civil) 81 of 1963






DATE OF JUDGMENT: 28/09/1964


CITATION:  1965 AIR 1293            1965 SCR  (1) 360  CITATOR INFO :  R          1988 SC 162  (17)  D          1991 SC 295  (15)

ACT:    Constitution   of  India,  1950-Article  16-Equality   of opportunity  in matters relating to employment-Selection  of candidates  receiving lower marks than rejected  candidates- Whether their appointments valid when made on compromise  in Court proceedings or when made on Government  recommendation under  Mysore  Public Service Commission  (Function)  Rules, 1957, r. 4. foot-note to sub-r. (3).

HEADNOTE:    After   holding   viva  voce   examination   for   direct recruitment  to  Class  I and Class  II  posts  relating  to certain  Administrative Services, the Mysore Public  Service Commission  published  a  list of  98  candidates  who  were selected and appointed.   Subsequent  to  this announcement,  the  State  Government sent,  for  the consideration of the Commission, a  list  of twenty-four  candidates  and as the Commission  approved  of them, they were also appointed.  In giving their concurrence the Commission purported to take power from the foot-note to sub-r.  (3) of r. 4 of the Mysore Public Service  Commission (Functions) Rules, 1957. Sixteen  candidates,  out of those who  were  not  selected, filed  petitions  in the High Court alleging  violations  of Arts. 14, 15 and 16 of Constitution.  In the course of these proceedings, a compromise was effected and as a result of an undertaking  given by the Government before the High  Court, the sixteen petitioners were also appointed. Thereafter,   other  candidates,  who  were  not   selected, instituted similar proceedings in the High Court, but  their petitions were summarily dismissed.  They, thereupon,  filed the present petitions under Art. 32 of the Constitution. Upon   a  direction  of  the  Court  to  the  Mysore   State Government,  mark-lists  prepared  by  the  Public   Service Commission after the viva voce tests were produced and these showed  that all the candidates-except two who  belonged  to



the scheduled castes in the first list of 98  candidates-had secured  marks higher than 56%.  Some of the candidates  who were  appointed on the recommendation of the Government  and those  appointed by compromise in the High Court  (excluding three who were not interviewed at all), received lower marks and  it was admitted that many of the petitioners, who  were rejected,  had  obtained  higher  marks  than  some  of  the selected candidates. HELD   (i)   Discrimination  and   unequal   treatment   was established  in the case of the 16 candidates selected as  a result   of  compromise  before  the  High   Court.    Their appointments  could  not be sustained since  most  of  these candidates  had  obtained  fewer  marks  than  some  of  the rejected candidates.  Three candidates had not attended  the viva voce test at all and there was nothing before the  High Court  for comparing the remaining thirteen candidates  with those  who had failed in the selection.  In such a case  the court  should  be slow to accept compromises unless  it  was made  clear  that  what was being  done  did  not  prejudice anybody else. 1364 E-H]. 361 (ii) The  foot-note  to  sub-r. (3) of r. 4  of  the  Mysore Public  Service (Functions) Rules, 1957, on  which  reliance was placed to justify the appointments of the 24  candidates selected  at  the  suggestion of  the  Government,  was  not intended to bypass the selection based on merit but to cover a  case  of exceptional merit.  These  candidates  had  also obtained lower marks than some rejected candidates and their appointments  could  not  therefore  be  upheld  since  this amounted to discrimination and unequal treatment. [365 D-G].

JUDGMENT:     ORIGINAL  JURISDICTION : Writ Petitions Nos. 81,  95  to 111, 113-118, 140-142, 150, 151, 153-158, 159-165, 167, 168, 1,69-172, 178, 179, 183, 199 and 205-207 of 1963. Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. Petitioner in W. P. No. 81 of 1963 in Person (not Present). R.   Gopalakrishnan, for the petitioners (in W. P. Nos. 95-1 1 1,  113 to 118, 169-172, 183 and for the intervener. B.   Parthasarathi,  J.  B.  Dadachanji, O.  C.  Mathur  and Ravinder Narain, for the petitioners (in W. P. Nos.  140-142 of 1963). Naunit  Lal, for the petitioners (in W. P. Nos. 150, 151  to 158, 167 and 168 of 1963). C.   K. Daphtary, Attorney-General, B. R. L. Iyengar and B.   R.  G. K. Achar, for respondents Nos. 1 and 2  (in  all the petitions). S.   M.  Hegde and V. D. Mahajan, for respondent No. 11  (in W.   P. Nos. 95 to 111). A.   G.  Ratnaparkhi, for respondents Nos. 38, 50,  51,  73, 84, 85, 87, 98, 126, 130, 139, 140 (in W. P. Nos. 95-111 and 113-118 of 1963). The Judgment of the Court was delivered by Hidayatullah  J. These are fifty-five writ  petitions  under Art. 32 of the Constitution invoking Articles 14, 15 and  16 of  the  Constitution against the State of  Mysore  and  the Mysore Public Service Commission in respect of  appointments made   to  certain  services  in  the  Mysore  State.    The petitioners  who were applicants for some of the posts  were unsuccessful  while others were appointed.  In some  of  the petitions   the   successful  candidates  ’ire   joined   as respondents.  The facts are as follows :



By  a  notification  dated September 26,  1959,  the  Mysore Public  Service  Commission  announced  that  a  competitive examination would be held for direct recruitment for Class I and  Class  II  posts  relating  to  certain  Administrative Services and numerous 362 applicants  including the petitioners offered themselves  as candidates.   On  September  5,  1960,  the  Public  Service Commission modified the earlier notification and instead  of holding an examination announced that the selection would be made  solely  on  the  results of a  viva  voce  test.   The petitioners  characterised  this change as  opposed  to  the Mysore  Administrative Service Recruitment Rules,  1957  but during the hearing of these petitions this ground of  attack was abandoned perhaps in view of what happened later. The Public Service Commission duly held the viva voce inter- views and on July 29, 1961 they published a list of  ninety- eight  candidates who they announced were  selected.   After the  announcement of the results the State  Government  sent for the consideration of the Commission a Est of twenty-four candidates and as the Commission approved of them they  were also   appointed  on  March  7,  1962.   In   giving   their concurrence  the Commission purported to take power  from  a foot-note added to sub-rule (3) of r. 4 of the Mysore Public Service   Commission  (Functions)  Rules,   1957.    Sixteen candidates,  who  were not selected, filed  petitions  under Articles 14, 15 and 16 of the Constitution in the High Court of Mysore.  On November 26, 1962 there was a compromise  and the  Government undertook to appoint the petitioners  before the  High  Court.  Of these thirteen had attended  the  viva voce test but three had not been called for it.  In this way there were three sets of appointments : the first of ninety- eight  candidates, the second of twenty-four candidates  and the  third of sixteen candidates.  There were in  all  1,777 applicants  who were called for the viva voce test.  A  very large  number of the applicants was not called for the  test and  the High Court of Mysore in the petition of  the  three petitioners  who had not been called for the viva voce  test directed the Commission to call them and the Commission then called  203 candidates who were in the same category as  the three petitioners in the High Court.  It may be pointed  out that at the first viva voce test eighty-eight candidates and at the second test ten candidates were selected, thus making the total number ninety eight. Encouraged by what had happened to those who had  petitioned to  the  High  Court,  the  other  candidates  who  had  not succeeded applied for writs under Articles 14, 15 and 16  of the Constitution.  Their petitions were summarily  dismissed by  the  High  Court.  They, thereupon,  filed  the  present petitions under Art. 32 of the Constitution and that is  how these fifty-five petitions are before us.                             363 At  an earlier hearing of the petitions this Court  directed the State of Mysore (represented by the Attorney-General  of India)  to  produce the mark-lists prepared  by  the  Public Service  Commission  after  the  viva  voce  tests.   Though numerous  allegations  of nepotism were made  the  arguments before  us  were  confined  to  the  consideration  of   the respective merits of the candidates selected and  unselected in the light of the mark-lists produced in this Court.  From the  mark-lists it appears that the eighty-eight  candidates who  were first selected secured marks between 56% and  87%, except 2 (No. 87 L. Sharadamma and No. 88 R. Shamanaik)  who belonged  to the scheduled castes and who had  obtained  51% and  50%  marks respectively.  The ten candidates  who  were



selected  at  the  second test had  obtained  marks  ranging between  60% and 85%.  The candidates who were appointed  on the recommendation of the Government had not done so well at the examination.  Only two had obtained 51 and 53% marks and the others marks ranging between 49% and 22%.  The  detailed results are : 49%  (2); 47% (1); 45% (4); 44% (3); 43% (1); 42%  (3);  40% (1);  37% (1); 32% (1); 31% (1); 28% (1); 23% (2); 22%  (1); (Total-22). Among the sixteen candidates who were selected by compromise in the High Court three had not been interviewed at all  and the remaining 13 had received marks ranging between 48%  and 22%.  The detailed break up is : Not interviewed (3); 48% (1); 47% (1); 45% (2); 44% (1); 43% (1):  42% (1); 38% (1); 37% (1); 30% (1); 24% (1); 23%  (1); 22% (1); (Total-16). It  was  admitted  before  us  that  many  of  the  rejected candidates  who are petitioners before us had obtained  more marks than some of the selected candidates.  In an affidavit filed  on  August  4, 1964, the  Public  Service  Commission explained  the procedure followed and also stated that 7  of the  petitioners had obtained marks below 22% and thus  were not  entitled  to succeed at all because  their  marks  were lower  than the last candidate selected and they could  have no  complaint.   This  is  true,  but  unfortunately,  their petitions  cannot  be dismissed out of  hand  because  three candidates  were  selected who had not taken the  viva  voce test and in view of this these petitioners have a grievance, however slender it may be. The  State and the Commission filed five main affidavits  in some  petitions between July 18, 1963 and October  17,  1963 dealing  with the special facts alleged by  each  petitioner and  denied  the  allegations  about  nepotism.   In   these affidavits they also 364 challenged  the  validity of the petitions.   In  the  other petitions skeleton affidavits were filed which  incorporated by  reference  these  five  main  affidavits.   It  -is  not necessary to refer to these affidavits at all because a very clear affidavit is now before this Court. The  mark-lists were made available to the  learned  counsel for the petitioners and the marks as shown in Schedules  ’A’ to  ’E’  to the last affidavit were accepted as  correct  by him.   It  was  frankly admitted by  the  learned  Attorney- General  that some of the candidates who were  not  selected had  obtained  more  marks  than  some  of  those  who  were selected.   However,  he  pointed  out  that  none  of   the candidates who had failed and who was a petitioner before us had  obtained 56% marks or more.  He contended that  ninety- eight  candidates  in the first and second  selections  were better than any of the petitioners and their selection could not  be  questioned.  The case of the  two  scheduled  caste candidate,-,,  to  whom we have referred  by  name  earlier, stood  on a different footing and Mr. Ayyangar who  appeared for  the petitioners did not question their selection.   The dispute,  therefore,  centres round  twenty-four  candidates selected  at the suggestion of the Government of Mysore  and sixteen candidates selected on a compromise before the  High Court, three of whom were not even called for the viva  voce test. Taking the case of the sixteen candidates first, it  appears to  us,  that since most of these  candidates  had  obtained fewer  marks  than  some of the rejected  candidates  it  is impossible to sustain their selection.  To begin with it was wrong  of the High Court to allow a compromise of this  kind



to  be  effected  when it was patently  obvious  that  three candidates  had not attended the viva voce test at  all  and there  was nothing before the High Court for  comparing  the remaining  thirteen candidates with those who had failed  in the selection.  There were allegations of nepotism which had not  been  abandoned  and we find now  that  most  of  these candidates  do  not  rank as high as some  of  the  rejected candidates.   In  such a case the court should  be  slow  to accept  compromises  unless it is made clear  that  what  is being  done  does  not  prejudice  anybody  else.   To   act otherwise  opens the court itself to the charge that it  did something  just as bad as what was complained  against.   In our  opinion.  the appointment of these  sixteen  candidates cannot be accepted and the petitioners are entitled to claim that  their marks should be compared with those obtained  by the  petitioners and the selection made on merit  and  merit alone.   For this purpose, of course, the  three  candidates who were not called for the test would have to                             365 be called and marks given to them.  Otherwise they cannot be considered at all. With  regard to the 24 candidates who were selected  at  the suggestion of the Government reliance is placed upon a foot- note  added  to sub-rule (3) of r. 4 of  the  Mysore  Public Service  Commission  (Functions)  Rules,  1957.   That  rule occurs  in  a  Chapter headed  "Recruitment  by  Selection". Under  sub-rule (3) it is provided that the  Public  Service Commission shall consider all applications received and when necessary   interview   such  candidates  as   fulfill   the prescribed  conditions  and shall  advise  Government  about those it considers most suitable for appointment.  The foot- note then reads :               N.B.  Nothing contained herein shall  preclude               the  Commission from considering the  case  of               any   candidate  possessing   the   prescribed               qualifications   brought  to  its  notice   by               Government,  even if such a candidate has  not               applied  in response to the  advertisement  of               the Commission." In our opinion, the foot-note is not intended to bypass  the selection based on merit.  It is intended to cover a case of exceptional  merit.   These candidates had appeared  at  the viva voce test and some of them had obtained very poor marks indeed.  The learned Attorney General attempted to show that twelve  candidates were from the backward classes  and  four from  the  scheduled castes.  That, in our judgment,  is  no justification  for  the  selection  in  the  manner  it  was actually  done.  It seems surprising that Government  should have  recommended  as  many as  twenty-four  names  and  the Commission should have approved of all those names without a single  exception  even though in its own judgment  some  of them did not rank as high as others they had rejected.  Such a  dealing  with public appointments is likely to  create  a feeling  of  distrust in the working of the  Public  Service Commission,  which is intended to be fair and impartial  and to do its work free from any influence from any quarter.  We did  not allow learned counsel for the petitioners to  bring before  us  allegations of nepotism etc.,  because,  in  our opinion, even without those allegations which it is not  the practice  of  this Court to investigate unless a  clear  and strong case is made out, the manner of the selection and the respective    ranking   of   these   candidates    justifies interference  at  the  hands of  this  Court.   The  learned Attorney-General  submitted that except for the  two  candi- dates from the scheduled castes, who have been described  by



name above, candidates who had obtained 56% and above  marks need not be disturbed.  We agree as to that for none of  the peti- 366 tioners reaches that figure.He  could not justify all  the cases     below that marking, and weagree again with him that  this is the only possible conclusion to draw from  the mark-lists placed before us. We will accordingly allow these petitions  and  quash the appointments  of  the  twenty-four candidates whose names are mentioned in Annexure ’C’ and the sixteen candidates whose names are mentioned in Annexure ’D’ to  the affidavit of the Public Service Commission filed  on August 4, 1964.  Their selection was not proper and must  be set aside. It is very unfortunate that these persons should be uprooted after  they  had been appointed but if  equality  and  equal protection before the law have any meaning and if our public institutions  are  to  inspire  that  confidence  which   is expected  of them we would be failing in our duty if we  did not,  even  at  the cost of  considerable  inconvenience  to Government  and the selected candidates do the right  thing. If  any  blame  for the inconvenience is  to  be  placed  it certainly cannot be placed upon the petitioning  candidates, the  candidates  whom this order displaces  or  this  Court. With these observations we allow the petitions to the extent indicated above with one set of hearing fee. Petitions partly allowed. 367