C. Channabasavaiah Vs. State of Mysore
& Ors  INSC 204 (28 September 1964)
28/09/1964 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1965 AIR 1293 1965 SCR (1) 360
R 1988 SC 162 (17) D 1991 SC 295 (15)
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).
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 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].
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
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
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
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 :
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
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
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 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);
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
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 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
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 candidates from the
scheduled castes, who have been described by name above, candidates who had
obtained 56% and above marks need not be disturbed. We agree as to that for
none of the petitioners reaches that figure. He could not justify all the cases
below that marking, and we agree 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
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.