- (1.) This appeal raises a question of the validity of the last part of Rule 9 (2) of the Mysore Recruitment of Gazetted Probationers' Rules 1959 framed by the Governor of Mysore in exercise of his powers under the proviso to Article 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 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 II cadres. The two Class I cadres are those of (1) Assistant Commissioner 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 : "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. 9.Appointment of Probationers. - (1) Subject to the rules regarding reservation of posts for backward classes contained in Government Orders Nos. GAD 26 ORR 59, dated the 13th May, 1959, and No. GAD 32 ORR 59, dated the 18 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." By notification dated Sept. 26, 1959 the Public Service Commission invited applications for admission to a competitive examination for the recruitment of Class l 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 percent 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 Commissioner 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.
(2.) 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 of 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 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 Assistant Controller in the Mysore State Accounts Service the next promotional job was that of a Deputy Controller in the pay scale of Rs. 600-40-1000. The High Court held that (1) 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 Article 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 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.
(3.) 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 320 (3) of the Constitution. The State of Mysore naturally supports the finding that the Government had the power under Rule 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 Rule 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 Articles 14 and 16 of the Constitution.;