Full Judgment Text
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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