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 92 of the Mysore Recruitment of Gazetted Probationers  Rules  1959 framed by Governor of Mysore in exercise of his powers under the proviso to article 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 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
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 IAS 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 LS5SCI 9a 352 Rs 600 40 1000
The High Court heldthat 1under r 92 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 article 3203 of the Constitution and 4 as the Government made the selection without applyingits 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 article 3203 of the Constitution
the State of Mysore naturally supports the finding that the Government had the power under r 92 to select to which post or cadre a successful candidate should be appointed
But the more fundamental question is whether that portion of r 92 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 articles 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 92 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 92 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 92 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 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 92 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
92 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 92 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 91 and the first part of r 92 seek to achieve this aim
The latter part of r 92 subverts and destroys the basic objectives of the preceding rules
It vests in the Government an arbitrary power of patronage
Though r 91 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 91 is subject to r 92 and under the cover of r 92 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 92 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 articles 14 and 161 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 92 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 92 of the Mysore Recruitment of Gazetted Probationers  Rules 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 92
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
VPS Appeal dismissed


Summary:
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 92 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 92 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 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 92 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 92 was violative of articles 14 and 161 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 LS5SCI 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 92 gives theGovernment 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