SHINGHAL, J. - (1.) AS the learned counsel for the petitioners have not pressed some of the facts or grounds on which petitioners K. K. Bhatia and S. C. Sachdev have filed these writ petitions under article 226 of the Constitution, it will be suffi-cient to refer to those facts and grounds which have figured in the controversy before me.
(2.) THE petitioners were appointed as Assistant Engineers under a Survey and Investigation Scheme of the Rajasthan Ground Water Board, by an order of the State Government dated January 16, 1967. THE appointments were ad hoc and temporary and the petitioners took over as Assistant Engineers on March 13, 1967, THE Rajasthan Public Service Commission, respondent No. 1, hereinafter referred to as "the Commission", issued advertisement No. 6/70-71 dated June 12,1970 inviting applications for 16 posts of Assistant Engineers in the Rajasthan Ground water Board in accordance with the Rajasthan Ground Water Board Service Rules, 1969, hereinafter referred to as "the Rules". THE petitioners applied for those posts and appeared for interview before the Commission. THEy were however not selected and intimation Ex. 1 dated February 26, 1971 was sent to them to this effect by the Secretariat of the Commission. THE Commission selected respondents Nos. 3 to 19 for appointment as Assistant Engineers. THE petitioners have challenged those selections and their own rejection by the Commission, inter alia, on the grounds that (i) all the members of the Commission did not participate at the interviews which were held for selecting the candidates, (ii) "even the experts assisting the Commission were different on these different dates." and (iii. the re-commendation of members of the Commission who interviewed the candidates was not circulated to the other members of the Commission before forwarding it to the State Govern-ment.THE petitioners have prayed, inter alia, for a direction to the State government not to give effect to the recommendation of the Commission and not to appoint respondents Nos. 3 to 19 as Assistant Engineers. The Commission and the State of Rajasthan have traversed the claim of the petitioners altogether. The remaining respondents have not filed any reply. I am in agreement with the learned counsel for the parties that no useful purpose will be served by mentioning the replies of the two contesting respondents as the points of controversy can easily be decided on the basis of the admitted facts. Before examining those points it may be stated, however, that the Commission and the State of Rajasthan have not disputed or controverted the fact that the Chairman and Mr. R. D. Mathur, a member of the Commission, interviewed all the candidates and that the other members did not interview any candidate So also, Mr. Daphtary has frankly admitted that the result of the interviews which were held by the Chairman and one member of the Commission was not placed before the other members of the Commission and that they did not see that result or the list which was forwarded to the State Government by the Secretariat of the Commission. It has been argued by Mr. Joshi, learned counsel for the petitioners, that in accordance with the definition contained in rule 2(c) of the Rules, "Commission" means the Rajasthan Public Service Commission, and that a cross-reference to regulation 3 of the Rajasthan Public Service Commission (Conditions of service) Regulations, 1951, shows that the Commission consists of "the Chairman and such number of members not less than two and not exceeding four as the Government may appoint. The learned counsel has therefore argued that as only the Chairman and R.D. Mathur interviewed the candidates, and not the entire Commission,the interviews were held in contravention of the provision of R.19 of the rules and A. 320 of the constitution which,according to the learned counsel, required the Commission to function as a body and not in compartments. The learned counsel has, in this connection, made a reference to the proviso to regulation 3 of the aforesaid Regulations to support his argument. He has argued further that in the absence of any statutory rule authorising the Chairman and one member of the Commission to carry on the interviews envisaged by rule 19. it was not permissible for them to do so, and that the failure to associate the remaining members vitiated the interviews and invalidated the Commission's recommendation. The learned counsel has made a reference to Anandilal Verma vs. State of Rajasthan (1) to support the argument that, as in the case of State of Rajasthan(l) to support the argument the provision in Art- 236 of the Constitution in regard to the control of the High Court over district courts and courts subordinate thereto, 'Commission" means the full Commission. Mr. Daphtary, learned counsel for the Commission and the State of Rajas-than, has argued on the other hand that it was permissible for the Chairman and one member of the Commission to interview the candidates. He has pointed out that according to article 320 of the Constitution it is the duty of the Commission, inter alia, to conduct examinations for appointments to the services of the State as required by clause(l), and to be consulted on the matters stated in clause (3). He has therefore argued that as in this case the Commission was required by rule 19 of the Rules to discharge the function of conducting a viva voce examination by interviewing the candidates, it was permissible for it to formulate its own procedure for that purpose, and that no objection could be taken as long as the Commission dealt with the matter without bias, gave every candidate a fair opportunity, and arrived at its decision with a sense of responsibility. The learned counsel has placed reliance on Board of Eduction vs. Rice(2) and Local Government Board vs. Arlige(3), for the purpose of supporting his argument. It has been contended by Mr. Daphtary that the argument based on the requirement of clause(3) of article 320 of the Constitution, which provides for consultation with the Commission, is quite misconceived and that the petitioners cannot advance their case by placing reliance on the decision in Anandilal Verma vs. State of Rajasthan(1) or any other case in which the provisions article 235 of the Constitution have been considered. A reference to article 320 of the Constitution shows that this argument of Mr. Daphtary is quite Correct. That article specifies two important functions of a State Public Service Commission as follows - (2) to conduct examinations for appointments to the services of the State, and (2) to be consulted on the matters specified in clause (3). Each of these is a distinct function, so that the provision of clause (3) of article 320 making it obligatory that the Commission shall be consulted on the matters enumerated in it cannot be wrested for interpreting clause (1) thereof. It follows therefore that in discharging its duty of conducting an examination for the selection of candidates for appointment as Assistant Engineers in his Rajasthan Ground water Board Service, the Commission was required to discharge a duty which was quite different from what it was required to do while answering a reference on consultation under clause (3). It appears to me therefore that it was permissible for the Commission to discharge the duty of conducting the examination by entrusting it to one or more of its members and that it was not necessary for it to act in a body. In fact my attention has not been invited to any general or special requirement of any law under which it could be said that it was necessary for the entire Commission to constitute itself into a board of examiners for the purpose of selecting for appointment to a service of which the rules made a provision that the candidates shall appear before the Commission for interview. It follows therefore that it was permissible for the Commission to nominate the examiners from amongst themselves, and to conduct the examination in that manner. In such a case it would be futile to con-tend that the examination would be illegal merely because all the members of the Commission did not choose to examine the candidates. It would not therefore matter if the test of examining the candidates was assigned to one or more members of the Commission, and the examination would not be illegal if the other members were not directly associated with it. A reference to rules 16 to 19 of the Rules shows that they really pertain to the duty of the Commissioner to conduct an examination for selection of candidates for appointment to the Rajasthan Ground water service within the meaning of clause (1) of article 320 of the Constitution. Rule 16 provides for the inviting of applications by the Commission for selecting candidates to fill the vacant posts, rule 17 deals with the form to be approved by the Commission for those applications, R. 18 requires the payment of the fee fixed for the examination and R. 19 deals with the scrutiny of the applications so that as many candidates as may seem desirable to the Commission may appear for interview. The scheme and the purpose of these rules therefore is to provide for the conduct of a viva voce examination by the Commission. There is however no provision, either in Art. 320 of the Constitution or R. 19 of the Rules, requiring that the examination must be conducted by all the members of the Commission sitting together at the inter view. It has therefore been left to the Commission to decide whether all its members would examine the candidates sitting together or whether that responsibility would be discharged by some of the members nominated by it for the purpose. Mr Daphtary has placed before me and the learned counsel for the petitioners a decision of all the members of the Commission dated Janua?y 15, 1967 that the interviews of the candidates for appointment as Assistant Engineers in the Rajasthan Ground Water Board Service shall be held by the Chairman of the Commission and its member Mr. B. D. Mathur. The interviews were held accordingly from February 1, 1971 onwards under that sanction of the Board, and the conduct of the viva voce examination by the Chairman and Mr. B.D. Mathur appears to me to be quite unexceptionable. I have examined the proviso to regulation 3 of the Rajasthan Public Service Commission (Conditions of Service) Regulations, 1951, on which reliance has been placed by Mr. Joshi, but it does not seem to have any bearing on the point in controversy because it merely provides that the Commission shall not be precluded from functioning as such merely because of a temporary vacancy in the office of the Chairman or a member. In this view of the matter, the decision in Anandilal Verma's case (1) is not relevant, and I have no hesitation in deciding the first point of controversy against the petitioners.
(3.) IT has next been argued by Mr. Joshi that the interviews which were held by the Chairman and one member of the Commission were vitiated because they associated certain experts with them, and went on changing these experts from time to time. This argument is however not tenable for two reasons. Firstly, the petitioners have not taken the plea that it was not permissible for the Chairman and the member to secure the presence of the experts at the time of the interviews, so that the Commission had no opportunity of explaining the facts and circumstances under which it was considered necessary to secure the presence of the experts and, secondly, it has not been contended or established that the experts sat as examiners along with the Chairman and the member and had the authority of selecting and rejecting candidates. The interviews were held for the purpose of examining candidates for recruitment to a technical service, and there is nothing unusual or wrong if some experts were required to be present for the purpose of advising the Chairman and the member whether a candidate gave correct answers to the questions which were put to him, for it may well be that a candidate may give a somewhat technical answer to an otherwise simple question So long as the result of the examination rested with the Chairman and the member of the Commission, the mere presence of different experts on different dates would not matter for the simple reason that they were not the examiners. This leaves for consideration the third argument of Mr. Joshi that a serious illegality was committed inasmuch as, contrary to the provision of rule 20 of the Rules, the entire Commission did not prepare the list of the candidates who were considered suitable for appointment as Assistant Engineers and did not forward that list to the Government. The learned counsel has supported his argument by reference to the decisions in Chandra Mohan vs. State of Uttar Pradesh and others (4), Prem Nath and others vs. State of Rajasthan and others (5), A. K. Kraipak and others vs. Union of India and others (6), and Chandra-mouleshwar Prasad vs. The Patna High Court and others (7). He has also pointed out that it was not in dispute in Devajit Chaliha vs. Narendra Nath Baruah(8) that the nomination of the selected candidate was made by the Commission so that decision can be of no avail to the petitioners. It may be stated that this ground for challenging the validity of the list containing the names of the suitable candidates was taken by the petitioners by an amendment to which Mr. Diphtary had no objection. In fact, as has been stated, he frankly admitted that the result of the interviews held by the Chairman and one member of the Commission was not placed before the other members of the Commission and they did not see that result or that list before it was forwarded to the Government. Mr. Dephtary has however argued that as it was permissible for the Chairman and one member of the Commission to interview the candidates in their capacity as examiners, it was inevitable that they should have prepared a list of the suitable! candidates and arranged their names in order of merit. On these premises Mr. Daphtary has argued that it was merely a ministerial act for the Secretariat of the Commission to forward the list to the Government so that there was substantial compliance with the provisions of rule 20. I have already made a reference to the provisions of rules 16 to 19 of the Rules, and they leave me in no doubt that while they provide the procedure for direct recruitment to the Rajasthan Ground Water Board Service up to the stage of requiring the candidates to appear for interview. R. 20 deals with a different stage and a different matter altogether, namely, the formulation and transmission of the recommendation of the Commission. It cannot be doubted that this is a very important matter, and its importance will emerge more clearly with reference to a service or post to which recruitment is made on the basis of a viva voce examination for which the Commission does not appoint any of its members but entrusts the examination to outsiders In such a case, those examiners will no doubt interview the candidates and prepare the mark- sheet or list as a result of the examination, but that sheet or list will not automatically become the recommendation of the Commission The reason is that the marks sheet or list records the result of the examination conducted by the examiners and no more. It does not therefore automatically turn itself into the recommendation of the Commission even though the examination was held in pursuance of the over all duty of the Commission to conduct the examination under its direction and control. To assume the character of the recommendation of the Commission, it is necessary that the Commission should consider the marks sheet or list prepared by the examiners, and give it its sanction or approval. This view finds support from the provision of R. 20 of the Rules that the list should contain the names of only those candidates whom the Commission consider suitable for appointment to the "posts concerned", so that it is clearly necessary for the Commission to examine and prune the list by deleting the surplus names. Then the proviso to R. 20 provides that the Commission may keep the names of other suitable candidates on a reserve list to the extent of 50 per cent of the advertised vacancies, and to recommend them on a further requisition from the Government. The responsibility which has thus been placed on the Commission by rule 20 of the Rules is important and is distinct from the holding of the examination. It does not require much argument to say that what holds good in the case of an examination by outsiders, will hold good in a case in which the examination is entrusted by the Commission to some of its members. ;