# C. CHANNA BASA VAIAH v. STATE OF MYSORE & OTHERS

- **Citation:** [1965] 1 S.C.R. 360
- **Court:** Supreme Court of India
- **Decided:** 1964-09-28
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, R.Aghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-channa-basa-vaiah-v-state-of-mysore-others-3321
- **Pages:** 7

## Headnote

Cons1itu1ion of India, 1950--Ariicle 16-F.qua/ily of opportunity in
matters relating to emp/oyment-Selt•ction of candidates receiving lower
mar/cs than rejected candidates-Wllrther their appoi;uments valid when
made on compromise in Court proceedings or when made on Govern ..
1nent recon11ne11dation under Mysore Public Service Commission (Fune·
tion) Rules, 1957, r. 4. /001-note to sub-r. (3).
After ho1ding 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 Governn1ent sent. for
the consideration of the
Commis~ion. 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 pO\\·er from
the foot-note to suh-r. (3) of r. 4 of the Mvsore Public Service Commission (Functions) Rules, 1957.
·
Sixteen candidates, out of those \\'ho were not selected, filed petitions in the High Court alleging violations of Arts. 14,
l~ and 16 of
Constitution.
In the course of these proceedings, a compromise was
effected and as a result of an undertaking given hy the Government
before the High Coun. the si.ieen petitioners were also appointed.
Thcrcaflcr, other candidates. who were not selected, instituted similar
proceedings in the High Coun,
hut their petitions
were
summarily
dismissed.
They, thereupon, filed the present petitions under An. 32 of
the Constitution.
Upon a direction of the Coun to the Mysore Slate
Government.
mark·lists prepared by the Public
Service
Commission
af1er
the viva
voce tests were produced and these showed rh;.it all the candidates-
°'ce;:>t two who helonged 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 or the Government and
those appointed by compromise in the High Court (excluding. three who
were not interviewed et all), received lower marks and it was admitted
that many of the petitioners, who v.•ere rejected, had
obtained higher
marks than some of the selected candidat"'.
If ELD (i) Discrimination and Unequal treatment was eslahlished in
the case of the J 6 candidates selected a~ a result of compromise before
the High C'-Ourl.
Their appointments could not be sustained since most
of these candidates had obtained fewer marks than some of the rejected
candidatei;. Three candidates had not attended the vi\•a voce test at all
and there was nothing before the High Coun for comparing the remaining thirteen candidates with those who had failed in the selection.
In such a case the coun should be slow to accept compromises unless
it was made clear that what was being done did not prejudice anybody
else. !364 E-H!.
A
B
c
D
E
F
G
II
CHANNABASAVAJAH v. STATE (Hidayatllllah /.)
361
A
,!ii) The ~o~-note to sub-r. (3) of r. 4 of the Mysore Public
Service crunct1ons) Rules, 1957, on which reliance was placed to justify
the appomtments 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 appoint-
~ents could not therefore be upheld since this amounted to discrimina·
B !Ion 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,
169-172, 178, 179, 183, 199 and 205-207 of 1963.
Petitions under Art. 32 of the Constitution of India for the
C 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. 95-111,
113 to 118, 169-172, 183 and for the intervener.
B. Parthasarathi, /. B. Dadachanji, 0. C. Mathur and Ravinder
D
Narain, for the petitioner

## Text

360
C. CHANNA BASA VAIAH
v.
STATE OF MYSORE & OTHERS
September 28, 1964
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, R.AGHUBAR DAYAL AND
J. R. MUDHOLKAR JJ.)
Cons1itu1ion of India, 1950--Ariicle 16-F.qua/ily of opportunity in
matters relating to emp/oyment-Selt•ction of candidates receiving lower
mar/cs than rejected candidates-Wllrther their appoi;uments valid when
made on compromise in Court proceedings or when made on Govern ..
1nent recon11ne11dation under Mysore Public Service Commission (Fune·
tion) Rules, 1957, r. 4. /001-note to sub-r. (3).
After ho1ding 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 Governn1ent sent. for
the consideration of the
Commis~ion. 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 pO\\·er from
the foot-note to suh-r. (3) of r. 4 of the Mvsore Public Service Commission (Functions) Rules, 1957.
·
Sixteen candidates, out of those \\'ho were not selected, filed petitions in the High Court alleging violations of Arts. 14,
l~ and 16 of
Constitution.
In the course of these proceedings, a compromise was
effected and as a result of an undertaking given hy the Government
before the High Coun. the si.ieen petitioners were also appointed.
Thcrcaflcr, other candidates. who were not selected, instituted similar
proceedings in the High Coun,
hut their petitions
were
summarily
dismissed.
They, thereupon, filed the present petitions under An. 32 of
the Constitution.
Upon a direction of the Coun to the Mysore Slate
Government.
mark·lists prepared by the Public
Service
Commission
af1er
the viva
voce tests were produced and these showed rh;.it all the candidates-
°'ce;:>t two who helonged 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 or the Government and
those appointed by compromise in the High Court (excluding. three who
were not interviewed et all), received lower marks and it was admitted
that many of the petitioners, who v.•ere rejected, had
obtained higher
marks than some of the selected candidat"'.
If ELD (i) Discrimination and Unequal treatment was eslahlished in
the case of the J 6 candidates selected a~ a result of compromise before
the High C'-Ourl.
Their appointments could not be sustained since most
of these candidates had obtained fewer marks than some of the rejected
candidatei;. Three candidates had not attended the vi\•a voce test at all
and there was nothing before the High Coun for comparing the remaining thirteen candidates with those who had failed in the selection.
In such a case the coun should be slow to accept compromises unless
it was made clear that what was being done did not prejudice anybody
else. !364 E-H!.
A
B
c
D
E
F
G
II
CHANNABASAVAJAH v. STATE (Hidayatllllah /.)
361
A
,!ii) The ~o~-note to sub-r. (3) of r. 4 of the Mysore Public
Service crunct1ons) Rules, 1957, on which reliance was placed to justify
the appomtments 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 appoint-
~ents could not therefore be upheld since this amounted to discrimina·
B !Ion 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,
169-172, 178, 179, 183, 199 and 205-207 of 1963.
Petitions under Art. 32 of the Constitution of India for the
C 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. 95-111,
113 to 118, 169-172, 183 and for the intervener.
B. Parthasarathi, /. B. Dadachanji, 0. C. Mathur and Ravinder
D
Narain, for the petitioners (in W. P. Nos. 140-142 of 1963).
E
F
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
G 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. Jn.some of the petitions .the successful candidates are
joined .as re,'lpondents. The facts .are as follows :
By a -notification dated September 26, 1959, the Mysore
· H . 'Public 'Service Commission announced 'that a competitive examination ·would be held for ilirect recruitment for Class I and Class II
posts r1ilating ·to··certain Administrative Services and numerous
·362
SUPRl!MI! COURT REPORTS
(1965] I SC.R.
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.
TI1e petitioner' characterised this
change as opposed to the Mysore Adminimativc 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 interviews 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 list of twenty-four candidates and as the
Commission approved of them they were also appointed on March
7, I 962. 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
1•oce test.
A very large number of the applicants was not called
A
B
c
D
E
for the test and the High Court of Mysore in the petition of the
F
three petitioners who had not been called for ilie 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
tim l'il'a voe.- test eighty-eight candidates and at the second test
ten candidMcs were selected, thu; making the total number ninetycight.
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 Comtitution. Their petitions were summarily dismissed by the High Court.
They. thereupon, filed the present oetitions under Art. 32 of the
Constitution and that is how these ftrty-five petitions are before us.
G
If
CHANNABASAVAIAH v. STAT!! (Hidayatullah I.)
363
A
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
B
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
C
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 :
D
49% (2); 47% (1); 45% (4); 44% (3); 43% (1); 42%
(3); 40% (l); 37% (!); 32% ((); '.H% (1); 28% (1); 23%
(2); 22% (!); (Total-22).
Among the sixteen candidates who were selected by compromise
in the High Court three had not been interviewed at all and the
E
remaining 13 had received marks ranging between 48 % and
22 % . The detailed break up is :
Not interviewed (3); 48% (!); 47% (1); 45% (2); 44%
(1);43% {1);42% (1);38% (1);37% (1);30% (1);24%
(!); 23% (!); 22% (1); (Total-16).
F
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
G
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 11Pt 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
ff 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. li1 these affidavits they also
364
SUPIUIMB COUii. T RBPOR TS
(1965] l S.C.R.
challenged the validity of the petitions.
In the other petitions
A
skeleton affidavits were tiled 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
B
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 c
us had obtained 56% marks or more. He contended that ninetyeight 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 candidates, to
whom we have referred by name earlier. stood on a different footing and Mr. Ayyangar who appeared for the petitioners did not
D
question their selection.
The dispute, therefore. centres round
twenty-four candidates selected at the suggestion of the Govern-·
ment 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
E
a compromise of this kind to be effected when it was patently
obvious that three candidates had not attended the viva voce tes! at
F
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 ltigh. as some of the rejected candidates. In such a case
the court .should be slow to accept compromises unless it is made
G
clear that what is being done does not prejudice anybody else. To
act (ltherwise opens the court itself to the charge that it did something just as '!>ad as what was complained against. In our opinion.
the appointment of these sixteen candidates cannot be accepted
and the potitionors are entitled to claim that their marks should
he compared wilh those obtained by the petitioners and the selecH
lion made Qn. merit -and merit alone. For this purpose, of course,
the three. cao4idates who were not called for the test would have to
CHANNABASAVAIAH v. STATE (Hid«>:atul/ah J.)
365
A be called and .marks given ·to them.
Otherwise they cannot be
considered at all.
With ;egard to the 24 c1,1ndidates 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 ComB mission (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 fulfil the prescribed conditions and shall advise Government about those it considers ,most suitable for appointment. The
C foot"no.te 'then ·reads :
D
N.B. NoUting contained berein :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 re.sponse 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 AttorneyE 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 excepF tion 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
G 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 candiH dates from· the scheduled castes, who have been described bv
name above, candidates who had obtained 56% and above mark.~
need not be disturbed.
We agree as to that for none of the peti-
366
SUPREME COURT REPORTS
( 1965) l S.C.R.
tioners reaches that figure.
He could not justify all the cases
A
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
B
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
C
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
D
observations we allow the petitions to the extent indicated a:iove
with one set of hearing fee.
Petitions partly allowed.
la
I