# STATE OF MYSORE v. S. R. JAYARAM

- **Citation:** [1968] 1 S.C.R. 349
- **Court:** Supreme Court of India
- **Decided:** 1967-08-23
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mysore-v-s-r-jayaram-4136
- **Pages:** 6

## Headnote

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STATE OF MYSORE
v.
S. R. JAYARAM
August 23, 1967
{K. N.
WANCHOO, C.J., R. S.
BACHAWAT, V. RAMASWAMI,
G. K. MITTER AND K. S. ffEGDE, JJ.)
Civi! Service-Recruitment by
competitive examination-Indication by candi.date as to which post he prefers-Candidate entitled
to post because of his rank-State Government appointi!IQ him to
another post-State Government's power und~r r. 9(2) of the Mysore
Recruitment of Gazetted Probationers' Rules, 1959-If violative of
Art. 14 of the Constitution.
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. 9(2), 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 car.didates 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. 9(2), however, reserves to the Government the right of appointing to any particular cadre any candidate whom it considers more suitable for such cadre.
In the present case an open1 competitive examination \Vas beld
for recruitment to the posts of Assistant 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 Assistar.t Commissioner had better prospects.
The!'<!
were 20 vacancies in the posts of Assistant Commissioners. The respondent indicated his preference for the post of Assistant Commissioner. 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 apooint him as Assistant
Commission.er. The High Court held that the Government had under
the latter part of r. 9(2) 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 accordfngly.
The State appealed to this Court
Held: The latter part of r. 9(2) was violative of Arts. 14 and
16(1) of the Constitution. and therefore the State ~vernment had
no power to withhold the post of Assistant Commissioner from the
respondent who had 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-CJ
L.'S5SCI
319
350
SUPREME COURT BEl'ORTB
[1968) l S.C.11.
The Rules are silent on the question as to how the Government
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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 lie 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. 9(2) gives
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the Government ar• arbitrary power of ignoring the just claims of
successful candidates for recruitment to offices under the State, and
thus, subverts the basic objectives of ensuring equality of opportunity in the matter of employment by open competition. [352H;
353B-C; 354A-B]
GVJL APPELLATE JURISDICTION: Civil Appeal No. 283 of
1966.
Appeal by special leave from the judgment and order dated
March 13, 1963 of

## Text

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G
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STATE OF MYSORE
v.
S. R. JAYARAM
August 23, 1967
{K. N.
WANCHOO, C.J., R. S.
BACHAWAT, V. RAMASWAMI,
G. K. MITTER AND K. S. ffEGDE, JJ.)
Civi! Service-Recruitment by
competitive examination-Indication by candi.date as to which post he prefers-Candidate entitled
to post because of his rank-State Government appointi!IQ him to
another post-State Government's power und~r r. 9(2) of the Mysore
Recruitment of Gazetted Probationers' Rules, 1959-If violative of
Art. 14 of the Constitution.
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. 9(2), 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 car.didates 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. 9(2), however, reserves to the Government the right of appointing to any particular cadre any candidate whom it considers more suitable for such cadre.
In the present case an open1 competitive examination \Vas beld
for recruitment to the posts of Assistant 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 Assistar.t Commissioner had better prospects.
The!'<!
were 20 vacancies in the posts of Assistant Commissioners. The respondent indicated his preference for the post of Assistant Commissioner. 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 apooint him as Assistant
Commission.er. The High Court held that the Government had under
the latter part of r. 9(2) 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 accordfngly.
The State appealed to this Court
Held: The latter part of r. 9(2) was violative of Arts. 14 and
16(1) of the Constitution. and therefore the State ~vernment had
no power to withhold the post of Assistant Commissioner from the
respondent who had 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-CJ
L.'S5SCI
319
350
SUPREME COURT BEl'ORTB
[1968) l S.C.11.
The Rules are silent on the question as to how the Government
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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 lie 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. 9(2) gives
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the Government ar• arbitrary power of ignoring the just claims of
successful candidates for recruitment to offices under the State, and
thus, subverts the basic objectives of ensuring equality of opportunity in the matter of employment by open competition. [352H;
353B-C; 354A-B]
GVJL APPELLATE JURISDICTION: Civil 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. Sachtlrey for R. H. Dhebur, for the
appellant.
'l'he 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.
9(2) of the Mysore Recruitment of
Gazetted
Probationers'
Rules,
1959
framed
by
Governor
of Mysore in exercise of his powers under the proviso to Art. 309
of the Constitution. The Rules came into force on September 11,
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 Servioes specified in the
schedule shaJ,l be filled by recruitment of candidates selected
under the Rules. The schedule lists two Class I and twelve Class
II cadres. The two Class I cadres are those of (I) Assistant Commissioners in the Mysore Administrative Service and (2) Assistant
Controllers in the Mysore State Accounts Service. Both cadres
are in the pay scale t>f 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 examinati~ns conducted annually
by the Public Service Commission. Rules 5. 6 and 1 prescribe
the age limit. the academic aualifications of candidates and the
minimum pass marks. Rules 8 and 9 are in these terms:
"8. List of successful candidates in the examination.-
The names of candidates successful in the examination
shall be published in the Mvsore Gazette, by the Com·
mission in the order of merit.
9. Appoinffnent of Probationers.-Ol Subject lb the
rules regarding reservation of posts for backward classes
contained in Government Orders Nos. GAD 26 ORR
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llYSORE ti. JAY.AllAM (Bacliawat, J,)
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 "II 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."
351
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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
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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
Gatzette. In this list the respondent ranked fourth in the order
of merit. It appears that the Commission sent a separate recomE
mendation 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 Governinent accepted this
recommendation and made the 27 appointments
acoordingly.
The respondent was appointed as Assistant Controller by an order
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dated October 20, 1962. The respondent was not appointed as
Assistant Commissioner though be had indicated bis preference
for that post.
Aggrieved by this order, the respon<iem uted 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
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ground that the two Class f posts, the post of Assistant Commissioner in the. Mysore Administrative Service bad better prospects and was more attractive. More promotional posts including
posts in the I.A.S. 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 AssisH
tant Controller in the Mysore State Accounts Service the next promotional job was that of a Deputy Controller in the pay scale of
SUPREXB COUl\T Bll:POl\TS
[1968) 1 S.C.l\,
Rs. 600-40-1000. The High Court held that (I) under r. 9(2)
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 Art. 320(3) of the
Constitution and (4) as the Government made the selection without applying its 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 tssued
a writ of mandamus directing the .Governinent to decide to which
post or cadre the respondent should ;be appointed. From this
order, the State of Mysore appeals to this Court by speciai leave.
In this appeal, the State of Mysore challenges the· correctness
of the findings that (I) the Government did not apply its own
mind in making the selection and (2) the Public Service Commission need not be consulted a's to the suitability of the candidate
for sudh selection under Art. 320(3) of the Constitution.
The
State of Mysore naturally supports the finding that the Government had the power under r. 9(2) to select to which post or cadre
a successful candidate should be appointed. But the more fundamental question is whether that portion of r. 9(2) 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
Arts. 14 and 16 of the Constitution.
The Rules make provision for the direct recruitment to
several cadres in the State Servioes 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 Clllss II cadres, r. 9(2) 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. 9(2),
the successful candidates woulid have the preferential claim in
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the order of merit to appointment in the dadres for which they
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indicated their preferences. Thus, if there are 20 vacancies in
cadre 'A' and 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. 9(2) reserves to the Government the
right of appointing to any particular cadre any candidate whom
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it considers more suitable for such cadre. The Rules are. silent
on the question as to how the Government is to find out the
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J.IYSOru: v. IAYABAM (Ba<:hawat, J.)
suitability of a candidate for a particular cadre. A single competitive examination is held to test the suitability of candidates
for several oadres. 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 suit~ble 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 partioular cadre.
lt follows that under the latter part of r. 9(2) it is open to the
Government to say at its swel't will that a candidate is more
suitable for a particular cadre and to deprive him of his opportu•
nity 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 1 posts, the post
of Assistant Commissioner has better prospects. But for the latter
part of r. 9(2) 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 Isl, 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. 9(2) that the Government could make
this unjust discrimination.
1 ne 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, 9(1) and the first part of r. 9(2) seek to achieve this aim.
The latter part of r. 9(2) subverts and destroys the basic objectives of the preceding rules. Tt vests in the Government an arbitrary power of patronage. Though r. 9(1) requires the appointment of successful candidates to Class I posts in the order of merit
8UPRF.11F. COURT lUIPORTS
[1968) ! S.C.R.
and thereafter to Class II posts in the order \'.lf merit, r. 9(1)
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is subject to r. 9(2), and under the cover of r. 9(2) the Government can even arrogate to itself the power of assigning a Class I
post to a lt'Ss meritorious and Ii Class II post to a more merit\'.lrious
candidate. We hold that the latter part of r. 9(2) gives the Government an arbitrary power of ignoring the just claims of successful
candidates for recruitment to offices under the State. It is violative
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bf Arts. 14 and 16(1) 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 Assista'nt Commis--
sioner. As the offending part of r. 9(2) is invalid, the State Government had no power to withhbld the post from him. The High
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.Court should, therefore, have directed the Government to appoint
him to that post.
In the result, we strike down the following part of r. 9(2)
of the Mysore Recruitment bf Gazetted Probationers' Rules, 1959:
"The Government, however, reserves the right of appointing to
any particular cadre, any ca'tldidate whom it considers to be more
suitable for such cadre". The order passed by the High Court
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directing the Government to decide to which post br cadre the
respondent should be appointed under r. 9(2) 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
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dismissed with costs.
V.P.S.
Appeal dismissed.
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