Case: B. N. Nagarajan And Ors Vs. State Of Mysore And Ors

2. To appreciate the arguments addressed to us on behalf of the appellants and the respondents, it is necessary to give, in chronological order, the events leading up to the filing of the above writ petitions and their significance On December 12, 1957, the Governor of Mysore made rules called the Mysore Public Service Commission (Functions) Rules, 1957. hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission. Rule 3 of these rules provides for recruitment by examination and R. 4 with which we are primarily concerned provides for recruitment by selection. Rule 4 is as follows:"When recruitment to a service or post is to be made by selection, and consultation with the Commission is required the Commission shall-(1) advise the Government in regard to the conditions of eligibility of candidates;(2) after the rules to be made have been approved by Government and a requisition for recruitment is received, invite applications from intending candidates after giving due publicity to conditions of eligibility, nature of competition, number of vacancies to be filled where possible, and any other relevant material;(3) consider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it considers most suitable for appointment:Note.-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 Government(4) forward to the Appointing Authority a list consisting of such number as it may fix, of the candidates whom the commission considers most suitable for appointment in order of preference:Provided that the Commission may invite Government to nominate an Officer to represent the Service or the Department for whom recruitment is being made, to be present at the interview referred to in Cl. (3) to assist the Commission in its work of selection."

Reasoning:
In our opinion, these rules are not rules made under Art. 309. First, the rules do not expressly say so, and secondly, the rules are dealing with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts. Under Art. 320 (3) of the Constitution, it is the duty of the Government to consult and the duty of the Public Service Commission to advise, inter alia "on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments, promotions or transfers". Sub-rule (1) of R. 4 clearly provides the same thing as does Art. 320 (3) (b) and the other sub-rules are really administrative arrangements apparently arrived at between the Commission and the Government as to how the Government and the public Service Commission will take steps to recruit persons for the State Services or posts6. In the background of this position we are unable to interpret R. 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf. Rules usually take a long time to make; various authorities have to be consulted and it could not have been the intention of R. 3 of the General Recruitment Rules, 1957, to halt the working of the public departments till rules were framed. This Court considered a similar point in T. Cajee v. U. Jormonik Siem. 1961-1SCR 750 at pp. 762-764: (AIR 1961 SC 276   at p. 281), and arrived at a similar conclusion8. In conclusion we hold that R. 3 of the Central Recruitment Rules, 1957, did not prevent the State from exercising its executive power of appointing Assistant Engineers and determining their conditions of service by executive orderIn our opinion, it is not necessary to decide this point in these cases because we are of the view that the appeal can be disposed of on another ground. Assuming for the sake of argument that Mr. Nambiar is right that the Mysore State Government could not make rules retrospectively and that the rules are thus void, so far as they operate retrospectively, we must ignore these rules and seewhether the appointments made on October 31, 1961, can be. We have come to the conclusion that these appointments can be considered to have been validly made in exercise of the executive power of the State under Articles 162 of the Constitution. The three notifications issued by the Public Service Commission on October 1, 1958, May 4, 1959 and April 1, 1960, must be treated to have been issued with the consent of the State Government. These notifications are not rules made under Article 309 of the Constitution, as contended by Mr. Nambiar; they are mere executive notifications issued by the Public Service Commission at least with the implied consent of the State Government.The passage reproduced above from the letter of the Government dated March 4, 1959, clearly shows that the Government was well aware of what the Public Service Commission was doing. It was aware of the action being taken by the Public Service Commission, and indeed, it can safely be assumed that the Government was aware of each step being taken by the Public Service Commission including the publication of there notifications. The position is that if we accept Mr. Nambiars arguments that these rules purported to be made by the Mysore State Government had no retrospective validity, there were no statutory rules to govern the appointment of the 88 persons as Assistant Engineers. We have already held that the Mysore State Civil Service (General Recruitment) Rules, 1957, did not debar the Government from making appointments without making statutory rules. Therefore, we hold that these appointments were validly madeWe are unable to sustain this contention because it took about two years for the Public Service Commission to publish notifications interview candidates and recommend names for appointment. The whole procedure having been followed, it could not have been the intention of the Government while framing the rules to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing candidates in October 1960In our view the respondents are not entitled to make a grievance of this difference because there is nothing on the record to show that the ages of those appointed were against the rules of March 4, 1959. The learned counsel has not been able to satisfy us that they have suffered in any manner because of this difference in ageThere remains one question and that is the question of mala fides which was alleged in the petition. There were 16 petitions but we will take the allegations from the first petition. Paras 16 and 17 in Writ Petition No. 1248 of 1961, before the High Court, in which the allegations of mala fides have been made read as under:"Further selection made by the Public Service Commission is arbitrary and made out of collateral considerations. Amongst the selected candidates, the following viz., (1) Shri D. C. Channe Gowda, who is the son-in-law of the 2nd member of the Public Service Commission, an ordinary B. E. Graduate with only 49 per cent of marks; (2) Shri Kencharase Gowda who is the sisters son-in-law, an ordinary B. E. have been selected to the exclusion of myself and several others, who had superior qualifications, both academically and by virtue of seniority in service17. Similarly, relations of prominent members of the local Legislature and of Parliament, relations of high placed officials including a Minister and an Ex-Minister have been selected"The Chairman of the Mysore Public Service Commission filed a counter-affidavit and replied to the above paras 16 and 17 as follows:"3. Paragraph 16 of the Petitioners affidavit:- The statement that the selection made was arbitrary and made out of collateral considerations is incorrect. It is true that Shri D. C. Channe Godwa was among the candidates selected. The then Second Member of the Public Service Commission abstained from participating in the interview of that candidate. I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission. The then Second Member of Public Service Commission, Shri M. K. Appajappa is since dead. The dominant factor in making the selection was the performance of the candidate at the interview and the marks secured by the candidate in the Degree Examination was only one of the factors that was taken into consideration4. Paragraph 17 of the Petitioners Affidavit:- I was not aware of the relationship, if any, of the candidates to prominent members of the local Legislature and of Parliament or of high placed officials including a Minister and an ex-Minister I submit that it is also incorrect to suggest that the selections were influenced by any such relationship."The High Court found it unnecessary to investigate this matter because it felt that the selections impugned were invalid on other grounds, but it observed as follows:"There is no denying the fact that the facts stated in the pleadings, especially in the light of the manner in which they are traversed in the counter affidavit of the Chairman of the Public Service Commission, do raise a strong suspicion."The High Court might well have abstained from expressing its strong suspicion if it was not going to give its final views of the question of mala fides. We are unable to appreciate that the manner in which the counter-affidavit of the Chairman of the Public Service Commission is expressed calls for any comment. In Para 15 of the affidavit in support of Writ Petition No. 1269 of 1961 more details are given of the selected candidates and the counter-affidavit filed by the Chairman of the Public Service Commission is common to all the petitions. But even so, the details mentioned did not call for any detailed reply. For example, it was alleged in para 15 that on Shri D.C. Channe Gowda who is the son-in-law of the Second Member of the Public Service Commission, Shri Appajappa, was an ordinary B. E. Graduate with only 49.8 per cent of marks. But even if he had only 49.8 per cent of the marks, this is not conclusive to show that he should not have been selected because the whole object of interviewing candidates is to judge their eligibility or suitability apart from the standard displayed by them in the written examination. We are unable to hold that on these facts any mala fides or collateral object has been proved.