STATE OF MYSORE v. S. R. JAYARAM

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. the candidates are required to Under the first part of r. 9(2), indicate in their applications their preferences for the cadres they wished to join. After the examination, the list of successful car.di dates in order of merit is published. and, subject to certain reser vations 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 pre ference. The latter part of r. 9(2), however, reserves to the Gov ernment the right of appointing to any particular cadre any candi date whom it considers more suitable for such cadre. In the present case an open1 competitive examination \Vas beld for recruitment to the posts of Assistant 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 Assistar.t Commissioner had better prospects. The!'<! were 20 vacancies in the posts of Assistant Commissioners. The res pondent indicated his preference for the post of Assistant Com missioner. Though his rank was fourth, the Public Service Com mission recommended that he and some others should be appointed as Assistant Controllers while those who ranked after the res pondent were recommended for appointment as Assistant Commis sioners. 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 apooint him as Assistant Commission.er. 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 Com mission, and directed the Government to decide accordfngly. 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 ~vernment had no power to withhold the post of Assistant Commissioner from the respondent who had a right to be appointed to that post haVing' regard to his rank in order of merit. The High Court should, there fore, have directed the Government to appoint the respondent to the Post. .[354B-CJ L.'S5SCI 319 350 SUPREME COURT BEl'ORTB [1968) l S.C.11. The Rules are silent on the question as to how the Government A 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 lie 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 B the Government ar• arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State, and thus, subverts the basic objectives of ensuring equality of opportu- nity in the matter of employment by open competition. [352H; 353B-C; 354A-B] GVJL 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. Sachtlrey for R. H. Dhebur, for the appellant. 'l'he respondent appeared in person. r. 9(2) of The Judgment of the Court was delivered by Bachawat, J. This appeal raises a question of the validity of the latter part of the Mysore Recruitment of framed by Governor Gazetted Probationers' Rules, 1959 of Mysore in exercise of his powers under the proviso to Art. 309 of the Constitution. The Rules came into force on September 11, 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 Servioes specified in the schedule shaJ,l be filled by recruitment of candidates selected under the Rules. The schedule lists two Class I and twelve Class II cadres. The two Class I cadres are those of (I) Assistant Com missioners in the Mysore Administrative Service and (2) Assistant Controllers in the Mysore State Accounts Service. Both cadres are in the pay scale t>f 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 examinati~ns conducted annually by the Public Service Commission. Rules 5. 6 and 1 prescribe the age limit. the academic aualifications of candidates and the minimum pass marks. Rules 8 and 9 are in these terms: "8. List of successful candidates in the examination. The names of candidates successful in the examination shall be published in the Mvsore Gazette, by the Com· mission in the order of merit. 9. Appoinffnent of Probationers.-Ol Subject rules regarding reservation of posts for backward classes contained in Government Orders Nos. GAD 26 ORR c D E F G H llYSORE ti. JAY.AllAM (Bacliawat, J,) 351 A B 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 appoint ed as Probationers to Class I posts in the order of merit, and thereafter to Class "II 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." D C 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 Assis tant 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 Gatzette. In this list the respondent ranked fourth in the order of merit. It appears that the Commission sent a separate recom- E mendation 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 Governinent accepted this recommendation and made the 27 appointments acoordingly. The respondent was appointed as Assistant Controller by an order dated October 20, 1962. The respondent was not appointed as Assistant Commissioner though be had indicated bis preference for that post. F Aggrieved by this order, the respon<iem uted 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 f posts, the post of Assistant Com missioner in the. Mysore Administrative Service bad better pros pects 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 Assis- tant Controller in the Mysore State Accounts Service the next pro motional job was that of a Deputy Controller in the pay scale of G H I ~ f SUPREXB COUl\T Bll:POl\TS [1968) 1 S.C.l\, Rs. 600-40-1000. The High Court held that (I) 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 with out applying its own mind on the recommendation of the Com mission. the order dated October 20, 1962 was invalid. Accord ingly, the High Court by its order dated March 13, 1963 tssued a writ of mandamus directing the .Governinent to decide to which post or cadre the respondent should ;be appointed. From this order, the State of Mysore appeals to this Court by speciai leave. In this appeal, the State of Mysore challenges the· correctness of the findings that (I) the Government did not apply its own mind in making the selection and (2) the Public Service Commis sion need not be consulted a's to the suitability of the candidate for sudh selection under Art. 320(3) of the Constitution. The State of Mysore naturally supports the finding that the Govern ment had the power under r. 9(2) to select to which post or cadre a successful candidate should be appointed. But the more funda mental 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. B 0 D B The Rules make provision for the direct recruitment to several cadres in the State Servioes 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 Clllss 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 woulid have the preferential claim in the order of merit to appointment in the dadres for which they G indicated their preferences. Thus, if there are 20 vacancies in cadre 'A' and 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. F But the latter part of r. 9(2) reserves to the Government the right of appointing to any particular cadre any candidate whom B it considers more suitable for such cadre. The Rules are. silent on the question as to how the Government is to find out the ·- J.IYSOru: v. IAYABAM (Ba<:hawat, J.) the suitability of a candidate recommendation of relevant material nor the basis of which suitability of a candidate for a particular cadre. A single com petitive examination is held to test the suitability of candidates for several oadres. 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 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 suit~ble for it. Nor is there any provision in the Rules under which the Government any cadre after the result of the examination is published. The result the Public Service Com mission . is there any a other material on the Government can find that a candidate is more suitable for a partioular cadre. lt follows that under the latter part of r. 9(2) it is open to the Government to say at its swel't will that a candidate is more suitable for a particular cadre and to deprive him of his opportu• nity 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 1 posts, the post of Assistant Commissioner has better prospects. But for the latter part of r. 9(2) the successful candidates would have the pre ferential 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 Commis sioners. 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 Isl, 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. A B c D E p G 1 ne 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 objec tives of the preceding rules. Tt vests in the Government an arbi trary power of patronage. Though r. 9(1) requires the appoint ment of successful candidates to Class I posts in the order of merit H 8UPRF.11F. COURT lUIPORTS [1968) ! S.C.R. and thereafter to Class II posts in the order \'.lf merit, r. 9(1) A is subject to r. 9(2), and under the cover of r. 9(2) the Govern ment can even arrogate to itself the power of assigning a Class I post to a lt'Ss meritorious and Ii Class II post to a more merit\'.lrious candidate. We hold that the latter part of r. 9(2) gives the Govern ment an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative B bf 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 Assista'nt Commis- sioner. As the offending part of r. 9(2) is invalid, the State Gov ernment had no power to withhbld the post from him. The High .Court should, therefore, have directed the Government to appoint him to that post. 0 In the result, we strike down the following part of r. 9(2) of the Mysore Recruitment bf Gazetted Probationers' Rules, 1959: "The Government, however, reserves the right of appointing to any particular cadre, any ca'tldidate whom it considers to be more suitable for such cadre". The order passed by the High Court D directing the Government to decide to which post br 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 Ser- vice. 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 E dismissed with costs. V.P.S. Appeal dismissed. j I