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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: S. R. JAYARAM

DATE OF JUDGMENT: 23/08/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. (CJ) RAMASWAMI, V. MITTER, G.K. HEGDE, K.S.

CITATION:  1968 AIR  346            1968 SCR  (1) 349  CITATOR INFO :  R          1981 SC1829  (116)

ACT: Civil Service--Recruitment by competitive examination--Indi- cation  by candidate as to which post he  prefers--Candidate entitled  to  post  because of  his  rank--State  Government appointing  him  to another post--State  Government’s  power under  r.  9(2)  of  the  Mysore  Recruitment  of   Gazetted Probationers’  Rules, 1959--If violative of Art. 14  of  the Constitution.

HEADNOTE: The  Mysore  Recruitment of  Gazetted  Probationers’   Rules 1959,  make  provision  for direct  recruitment  to  several cadres in the State Services- on the basis of the result  of a competitive examination.  Under the first part of r. 9(2), the   candidates   are  required  to   indicate   in   their applications their preferences for the cadres they wished to join.  After the examination, the list of successful  cardi- dates  in  order  of merit is  published.  and,  subject  to certain  reservations  for Scheduled castes and  tribes  and Backward    classes,   the   successful   candidates    have preferential  claim in the order of merit to appointment  in the  cadres for which they indicated their preference.   The latter part of r. 9(2), however, reserves to the  Government the  right of appointing to any particular cadre any  candi- date whom it considers more suitable for such cadre. In  the  present case an open  competitive  examination  was ’.held   for   recruitment  to  the  posts   of   Assist-ant Commissioners  in the Mysore Administrative Service  and  of Assistant Controllers in the Mysore State Accounts  Service. Though  both  are  Class  I cadres  the  post  of  Assistant Commissioner had better prospects.  There were 20  vacancies in  the  posts of Assistant Commissioners.   The  respondent indicated  his  preference for the post  of  Assistant  Com- missioner.   Though his rank was fourth, the Public  Service Commission  recommended  that he and some others  should  be appointed  as Assistant Controllers while those  who  ranked after  the  respondent were recommended for  appointment  as

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Assistant Commissioners.  The State Government accepted  the recommendation. The  respondent thereupon filed a writ petition in the  High Court asking for an order directing the State to appoint him as  Assistant  Commissioner.  The High Court held  that  the Government had under the latter part of r. 9(2) the power to decide  to  which  post or cadre the  respondent  should  be appointed. but that the Government should itself make up its mind  without consulting the Public Service Commission,  and directed the Government to decide accordingly. The State appealed to this Court Held:  The latter part of r. 9(2) was violative of Arts.  14 and  16(1)  of  the Constitution  and  therefore  the  State Government  had no power to withhold the post  of  Assistant Commissioner  from  the  respondent who bad a  right  to  be appointed to that post having regard to his rank in order of merit.  The High Court should, therefore, have directed  the Government to appoint the respondent to the post. [354B-C] L/S5SCI 350 The  Rules  are  silent  on  the  question  as  to  how  the Government  was to find out the suitability of  a  candidate for  a  particular cadre, nor do the Rules give  the  Public Service  Commission the power to test the suitability  of  a candidate for a particular cadre or to recommend that he  is more suitable for it.  Further, there is no provision in the Rules under which the Government can test the suitability of a   candidate  for  any  cadre  after  the  result  of   the examination is published.  Therefore, the latter part of  r. 9(2) gives the,Government an arbitrary power of ignoring the just  claims  of successful candidates, for  recruitment  to offices  under  the  State, and thus,  subvert’$  the  basic objectives of ensuring equality of opportunity in the matter of employment by open competition. [352H: 353B-C; 354A-B]

JUDGMENT: CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 283 of 1966. Appeal  by special leave from the judgment and  order  dated March 13, 1963 of the Mysore High Court in Writ Petition No. 1440 of 1962. B.   R. L. Iyengar, R. N. Sachthey for R. H. Dhebar, for the appellant. The respondent appeared in person. The Judgment of the, Court was delivered by Bachawat,  J. This appeal raises a question of the  validity of  the latter part of r. 9(2) of the Mysore Recruitment  of Gazetted  Probationers’  Rules’ 1959 framed by  Governor  of Mysore  in exercise of his powers under the proviso to  Art. 309  of  the  Constitution.  The Rules came  into  force  on September  1 1, 1959.  Rule 3 requires that for a period  of five  years.  two-thirds  of  the  number  of  vacancies  as determined  by the Government arising in the cadres  in  the State  Civil  Services specified in the  schedule  shall  be filled  by  recruitment  of candidates  selected  under  the Rules.   The schedule lists two Class I and twelve Class  11 cadres.   The two Class I cadres are those of (1)  Assistant Commissioners  in the Mysore Administrative Service and  (2) Assistant Controllers in the Mysore State Accounts  Service. Both  cadres are in the pay scale ’of Rs.  300-25-500-50-30- 700.  Rule 4 provides that the recruitments shall be made on the   basis  of  the  results  of  written  and  viva   voce examinations  conducted  annually  by  the  Public  ’Service Commission.   Rules 5. 6 and 7 prescribe the age limit,  the

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academic, qualifications of candidates and the minimum  pass marks.  Rules 8 and 9 are in these terms: .lm15 "8.   List of successful candidates in the examination  ’the names  of candidates successful in the examination shall  be published  in the Mysore Gazette. by the Commission  in  the order of merit. 9.  Appointment of Probationers.--(1) Subject to  the  rules regarding   reservation  of  posts  for   backward   classes contained in Government Orders Nos.  GAD 26 ORR 351               59,  dated the 13th May 1959, and No.  GAD  32               ORR  59,  dated the 18th July  1959,  and  the               provisions  of  sub rule (2),  the  candidates               successful in the examination whose names  are               published  under rule 8 shall be appointed  as               Probationers to Class I posts in the order  of               merit, and thereafter to Class It posts in the               order of merit.               (2)   While  calling  for  applications,   the               candidates  will  be asked to  indicate  their               preferences  as  to the cadres  they  wish  to               join.   The Government, however, reserves  the               right  of appointing to any particular  cadre,               any  candidate  whom it considers to  be  more               suitable for such cadre." By  a  notification  dated September 26,  1959,  the  Public Service  Commission invited applications for admission to  a competitive  examination  for  the recruitment  of  Class  I Probationers  to  20  posts  in  the  Mysore  Administrative Service  and 2 posts in the Mysore State  Accounts  Service. The  number of posts were liable to alteration. 15 per  cent of  the  posts was reserved for Scheduled Castes and  3  per cent was reserved for Scheduled Tribes.  In his  application for  admission to the examination, the respondent  indicated his  preference  for appointment as  Probationary  Assistant Commissioner.  He was an eligible candidate and was  allowed to  appear  at  the  examination.   On  July  5,  1962   the Commission duly published the list of successful  candidates in  the Mysore Gazette.  In this list the respondent  ranked fourth  in  the  order  of  merit.   It  appears  that   the Commission sent a separate recommendation to the  Government stating  that they had selected the 20 candidates ranking  1 to  3,  5 to 8, 10 to 14, 16 to 19, 21, 22, 25  and  26  for appointment   as  Assistant  Commissioners  and  the   seven candidates  ranking  4,  9,  15,  20,  23,  24  and  27  for appointment as Assistant Controllers.  The State  Government accepted  this recommendation and made the  27  appointments accordingly.  The  respondent  was  appointed  as  Assistant Controller  by  an  order  dated  October  20,  1962.    The respondent  was  not  appointed  as  Assistant  Commissioner though he had indicated his preference for that post. Aggrieved  by  this  order,  the  respondent  filed  a  writ petition  in  the  Mysore High Court  asking  for  an  order directing  the State of Mysore, to appoint him as  Assistant Commissioner and for consequential reliefs.  Before the High Court, it was common ground. that the two Class I posts, the post of Assistant Commissioner in the Mysore  Administrative Service had better prospects and was more attractive.   More promotional  posts including posts in the I.A.S. cadre  were open  to  Assistant Commissioners.  Their  next  promotional post was that of Deputy Commissioner in the pay scale of Rs. 900-40-1100-50-1300.   For  an Assistant Controller  in  the Mysore  State Accounts Service the next promotional job  was that of a Deputy Controller in the pay scale of

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L/S5SCI--9(a) 352 Rs. 600-40-1000.  The High, Court held,that (1)under r. 9(2) the  Government-;had, the power to decide to which  post  or cadre  a successful candidate should be appointed, (2)  for; making  the selection the Government had to apply  its  own, mind,  (3)  the Public Service Commission had no  power  to make the selection nor it need be consulted on this question under  Art.  320(3)  of the Constitution  and  (4),  as  the Government made the selection without applying,its own  mind on  the  recommendation of the Commission, the  order  dated October  20, 1962 was invalid.  Accordingly, the High  Court by its order dated March 13, 1963 issued a writ of  mandamus directing  the Government to decide to which post  or  cadre the  respondent should be appointed.  From, this order,  the State of Mysore appeals to this Court by special leave. In   this  appeal,  the  State  of  Mysore  challenges   the correctness of the findings that (1) the Government did  not apply  its  own  mind in making the selection  and  (2)  the Public  Service Commission need not be consulted as  to  the suitability  of the candidate for such selection under  Art. 320(3) ’of the Constitution.  the State of  Mysore naturally supports the finding that the Government had the power under r.  9(2)  to  select to which post  or  cadre  a  successful candidate  should  be appointed.  But the  more  fundamental question is whether that portion of r. 9(2) which vests,  in the  Government  this  power of  selection  is  valid.   The contention  of  the respondent is that this portion  of  the Rule is, violative of Arts. 14 and 16 of the Constitution. The  Rules  make  provision for the  direct  recruitment  to several  cadres in the State Services on the basis  of,  the result  of  a competitive examination.  The  examination  is held annually.  It is open to all eligible, candidates.  The result  of  the  examination is announced and  the  list  of successful  candidates in the order of merit  is  published. Subject to the reservations for Scheduled Castes,  Scheduled Tribes  and Backward Classes, the successful candidates  are entitled to be appointed as probationers to Class I posts in the- order of merit and thereafter to Class II posts in  the order  of  merit.  If there are vacancies in  a  number-  of Class  I or Class II cadres, r. 9(2) comes into  play.   The candidates  are required to indicate in  their  applications their  preferences  for the cadres they wish to  join.   Had there  been  nothing  more  in  r.  9(2),  the   ’successful candidates would have the preferential claim in the order of merit to appointment in the cadres for ’which they indicated their preferences.  Thus, if there are 20 vacancies in cadre ’A’  and 1 7 vacancies in cadre ’B’, a successful  candidate ranking  fourth  in order of merit would be appointed  as  a matter  of  course to cadre ’A’ for which he  indicated  his preference. But  the latter part of r. 9(2) reserves to  the  Government the  right  of  appointing  to  any  particular  cadre   any candidate  whom it considers more suitable for such  cadre. The  Rules  are,  silent  on the  question  as  to  how  the Government is to find out the 353 suitability  of  a . candidate for a particular  cadre.   A. single   competitive  examination  is held  to  test   the suitability  ’of candidates for. several cadres.  Those  who succeed in the examination are found. suitable. for all  the cadres and their. list in order of merit is published  under r.   8.  No  separate  examination  is  held  to  test   the suitability of the candidate for any particular cadre.   The list of successful candidates published under r. 8 does  not

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indicate  that any candidate is more suitable for cadre  ’A’ rather than for cadre ’B’.  The Rules do not give the Public Service  Commission the power to test the suitability  of  a candidate for a particular cadre or to recommend that he  is more  suitable  for it.  Nor is there any provision  in  the Rules under which the Government can test the suitability of a   candidate  for  any  cadre  after  the  result  of   the examination is published.  The result is     that        the recommendation  of  the Public Service Commission is  not  a relevant  material  nor is there any other material  on  the basis  of which the Government can find that a candidate  is more suitable for a particular cadre.  It follows that under the  latter part of r. 9(2) it is open to the Government  to say at its sweet will that a candidate is more suitable  for a particular cadre and to deprive him of his opportunity  to join the cadre for which he indicated his preference.   Take the present case.  An open competitive examination was  held for  recruitment to the posts of Assistant Commissioners  in the   Mysore   Administrative.    Service   and    Assistant Controllers  in the Mysore State Accounts  Service.   Though both  are Class I posts, the post of Assistant  Commissioner has better prospects.  But for the latter part of r. .  9(2) the successful candidates would have the preferential  claim for  appointment as probationers to, the posts of  Assistant Commissioners in order of merit and thereafter to the  posts of Assistant Controllers in the order of merit.  As a matter of  fact, there were 20 vacancies in the posts of  Assistant Commissioners.   The respondent ranked fourth in the  ’order of  merit.   He  indicated his preference for  the  post  of Assistant  Commissioner  and had a  preferential  claim  for appointment to that post.  The candidates ranking 1st,  2nd, 3rd and 5th were appointed as Assistant Commissioners.   The respondent  though  ranking  fourth in order  of  merit  was singled  out  and was debarred from the  post  of  Assistant Commissioner.   It is because of the arbitrary  power  under the  latter part of r. 9(2) that the Government  could  make this unjust discrimination. The  principle  of recruitment by open competition  aims  at ensuring equality of opportunity in the matter of employment and   obtaining  the  services  of  the   most   meritorious candidates.   Rules  1 to 8, 9(1) and the first part  of  r. 9(2)  seek to achieve this aim.  The latter part of r.  9(2) subverts and destroys the basic objectives of the  preceding rules.   It  vests in the Government an arbitrary  power  of patronage.   Though  r.  9(1) requires  the  appointment  of successful candidates to Class I posts in the order of merit 354 and  thereafter to Class 11 posts in the order of merit,  r. 9(1)  is subject to r. 9(2), and under the cover of r.  9(2) the  Government  can even arrogate to itself  the  power  of assigning  a Class I post to a less meritorious and a  Class II  post to a more meritorious candidate.  We hold that  the latter  part  of r. 9(2) gives the Government  an  arbitrary power of ignoring the. just claims of successful  candidates for  recruitment  to  offices:  under  the  State.   It   is violative of Arts. 14 and 16(1) of the Constitution and must be struck down. Having regard to his rank in order of merit, the  respondent had  the  right  to be appointed to the  post  of  Assistant Commissioner.  As the offending part of r. 9(2) is  invalid, the State Government had no power to withhold the post  from him.   The High Court should, therefore, have  directed  the Government to appoint him to that post. In the result, we strike down the following part of r.  9(2) of  the Mysore Recruitment of Gazetted Probationers’  Rules,

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1959:  "The  Government,  however,  reserves  the  right  of appointing  to any particular cadre, any candidate  whom  it considers  to be more suitable for such cadre".   The  order passed by the High Court directing the Government to  decide to  which post or cadre the respondent should  be  appointed under r. 9(2). is set aside.  We direct the State of  Mysore to   appoint  the  respondent  to  the  post  of   Assistant Commissioner in the Mysore Administrative Service.  For  the purpose  of  seniority, the respondent will  be  treated  as appointed  on October 20, 1962 according to his rank in  the order  of merit.  Subject to the directions  aforesaid,  the appeal is dismissed with costs. V.P.S.            Appeal dismissed. 355