Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
C. CHANNABASAVAIAH
Vs.
RESPONDENT:
STATE OF MYSORE & OTHERS
DATE OF JUDGMENT:
28/09/1964
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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 :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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