C CHANNABASAVAIH Vs. STATE OF MYSORES IN ALL PETITIONS

JUDGEMENT

(1.) THE following judgment of the court was delivered by. :

(2.) 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 are joined as respondents. The facts are as follows : By a notification dated 26/09/1959, 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 applicants including the petitioners offered themselves as candidates. On 5/09/1960, 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 happened later. The public service commission duly held the viva voce interviews and on 29/07/1961 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 7/03/1962. 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 26/11/1962 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 ninetyeight 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 eight. 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.

(3.) 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 be called and marks given to them. Otherwise they cannot be considered at all.