B.S. Kesava Iyengar vs State Mysore and Others

Radmanabhiah, J.—This is an application filed by the Petitioner under Article 226 of the Constitution praying for the issue of a writ of mandamus, certiorari and quo warranto or any other appropriate writ or order or ''direction against the Respondents.

This petition is directed against twelve Respondents, Respondent 1 being the State of Mysore rut as settled by their Chief is Secretary, Respondent 2 being the Commission'' who were responsible to held the examination under the "Mysore Munsiffs (Recruitment and Promotions) Rules, 1954", and the other Respondents being those that have been appointed as Munsiffs by the State Government.

The grievance of the Petitioner is that, according to the rile. framed for the said examination, ten candidates had to be appointed as Munsiffs, that the examination was a competitive one, that he was successful in the examination held securing the 3rd rank and was, therefore, entitled to be included in the approved list of candidates sent by the {second Respondent to the first, for being forwarded to the Rajpramukh, that Respondent 2 omitted to include his name, that thereon he (Petitioner) filed ''Writ Petu. No. 80 of 1953 (Mys.) (A)'' praying for the issue of an appropriate writ, that the said application was dismissed as premature and that he has filed this application in view of the fact that the appointments have now been made.

It is further alleged in the petition that the examination being competitive, the first ten candidates should have been appointed as Munsiffs diat it has not been so done, that appointments have been made on the basis of communities, that some of those who have not come within the first ten have been appointed, that this offends the provisions of the Constitution, that many of the rules framed by the Rajpramukh for the holding of the examination are contrary to the spirit of tile constitutional provisions, that there has been a delegation of the power vested in the State in favour of the Commission" and that the appointments made on communal basis in the absence of provision for reservation as contemplated under Article 16(4) must be held invalid.

The Respondents oppose the application. They contend in their counter-affidavit that the Petitioner has secured the seventh rank and not. the third rank as alleged in the petition, in the examination held, that the provisions in the rules of appointment of persons belonging to backward classes is valid and not ultra vires of the Constriction that there has been no delegation of power on the part of the State in. favour of the "Commission", that the examination held was only selective and not competitive, that there is no substance in any of the contentions raised on the side of the Petitioner and that the application should be dismissed.

The main point that arises for consider as to how far the various contentions urged by the Petitioner are tenable. So far as his contention that the examination is competitive and not selective is concerned, the same has to be repelled. The rules framed in this behalf are quite clear and there is nothing in the said rules to show or indicate that the examination was intended to be competitive.

Rule 4 provides that appointments to be filled [up by direct recruitment snail be by a selection examination conducted by the Commission in accordance with tire rules: Again the words "selection examination" are repeated in Rule 6, which provides that u ''selection examination for direct recruitment to the cadre of Munsiffs shall be held at such place or places'' etc. Considering the status of the parties before us, it appears to be unnecessary to point out tile difference between the words ''competitive'' and ''selective''.

It was also, snot contended, and could not be contended, that'' the'' two words are synonymous. The employment of the term "selection examination" is very indicative and excludes the idea of a competitive examination. The learned Counsel for the Petitioner relied on Rule 17 (1) (b) and argued that the words "having regard to the representation of backward classes and the ranks of candidates as a result of the selection examination'' would go to indicate that the examination was intended) to be competitive. But the words relied on do not, in my opinion, lend any support to the contention urged for die Petitioner.

Even in that rule, the words "selection examination" have been used. Further, the term "ranks of candidates as a result of the selection examination" does not - indicate that the examination was intended to be competitive. Therefore, 1 am of opinion that Rule 17 (1) (b) does not support the contention of the learned Counsel for the Petitioner.

Article 320 (1) of the Constitution provides that

It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and -the services of the State respectively.

It does not .stipulate whether the examinations should be competitive or selective. If it was the intention of the Constitution-makers that the examination to be held for appointments to the service should be competitive, they would'' have so stated in die Article itself. The object of holding an examination as embodied in the above Article is evidently for testing the capacity of the pupils and just to have an idea whether a particular candidate is fit for die proposed appointment or not.

In a similar Writ Petition filed in this Court where these very rules wore impugned, viz. Writ Petn. No. 24 ait 1955 (Mys.) (B), it has been held that the examination contemplated under the rules was not competitive but selective and was not meant to determine the candidates to whom the appointments are to be given in order of merit but was intended mainly to find out who were all eligible to be appointed.

Again in Writ Petn. No. 80 of 1955 (Mys,) (A), to which the present Petitioner was a party, the Name view has been taken i. e. that the examination under the rules is selective and that it was not possible for the Court to issue a direction that an examination which under the rule was selective should be tinned into a competitive one. It is further observed in that case that the rules as they stood did not; entitle a candidate to be included in the list on die basis of the, results in the examination even though he might be the very first in the order of merit.

In the light of these findings in the two cases quoted above, I fail to see any substance in the contention of the Petitioner that he and others who are similarly situated believed that the examination was. competitive, I very much doubt whether a person who has secured the highest marks in a written examination could claim to be included in the list of candidates who are eligible for appointment merely on that ground. Marks obtained in a particular examination cannot be the sole criterion in judging a candidate''s ability for appointment.

There are very many other considerations that favor be taken into account by those responsible for making the appointments, such as physical fitness, personality, family history, character, amputee for the particular work and like factors. Instances ore not wanting where persons appointed merely OD the basis of marks obtained in an examination have proved to be misfits, while persons of average intelligence and common sense have been highly successful and reached heights of fame.

Therefore securing of high marks in the examination may not he a sufficient criterion in making the appointments. Hence I do not concede the contention of the Petitioner that the ten appointments should go to the first ten according to merit. Under these circumstances, I am of opinion that the examination held under the rules was a "selection examination" and not a "competitive one" as contended on the side of the Petitioner.

The second ground urged on the side of the Petitioner is that the appointments1 have been made according to femininities for the reason that the said communities come under the heading ''backward classes of citizens'', that there is no provision for classification as to who are backward. clashes of citizens that no reservation as contemplate under Article 16 (4) of the Constitution has been made by the State, and that in the absence of such reservation the appointments of the; various candidates other than Respondents 3, 4 and 5 must be declared invalid.

Even in this contention, I do not see sufficient force. No doubt, it is hue diat seven out of ten .appointments have gone to the candidates belonging to die backward classes of citizens, but I am not prepared to accept the contention that these sppuntmenls are invalid as offending the provisions of Article 16(4) of the Constitution. Article 16(4) provides as follows:

Nothing in this article shall prevent: die Stat from tracing any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Rule 2(5) defines what Is meant by ''backward class''. According to that rule, ''backward classes'' mean the communities that are treated as much from time to time in accordance with the orders in force. It is not correct to say that the tats have not classified as to who are ''backward classes of citizens''. The learned Advocate-General appearing for the Respondents drew our attention to the order of, Government bearing No. 1827-80/E.A.G. 308, dated 16-5-1921.

Therein it is stated that the term ''backward ''communities'' should be understood as'' including (all communities other than Brahmins who are not adequately represented in service. According to this, all communities other than Brahmins are classed as ''backward communities''. Thus it is .seen that what are backward classes of citizens have been declared by an order of Government cited above or. the recommendation of a Committee known as ''Millers Committee''.

It was contended on the side of the Petitioner that this order of Government has become obsolete by lapse of time, that many changes have occurred In the representation of communities in service ever since then, that the order cannot have any fore(c) and that no value can be'' attached to it. I do not see any force or substance In tills contention. This order of Government admittedly stands unrevised. No fresh order in its peace has been passed by Government.

So long as the order of 1921 stands undisturbed and so long as there is no constitutional provision made as to what are backward classes of citizens, the order of Government of 1921 defining them should stand, The very fact that the Government have not thought it fit to revise that order goes to show that the purpose with which that order was passed is not yet realised.

Therefore, In view of the principle underlying Article 16(4) of the Constitution, it cannot be said diet tire order of Government classifying certain communities as backward classes of citizens 13 repugnant to the provisions of the Constitution nor can it be said to be unjust or arbitrary.

It was next contended that no provision for reservation of appointments for backward classes of citizens has been made as contemplated under Article 16 (4) and that therefore the appointment of these candidates as belonging to backward classes of citizens is invalid. What the learned Counsel for the Petitioner contended was that the word ''Provision'' appearing in Article 16 (4) means a ''legislative provision'' and not a provision made by the Executive Government and that, in the absence of such a provision, the rules relating to this must be held unconstitutional.

The learned Counsel for the Petitioner was not able to point out any provision or case law It support of this argument. In this connection, D would like to refer to a case reported in - B. Venkataramana Vs. The State of Madras and Another, . In that case, appointments were made according to communities on the strength of what were known as Communal Government Orders issued by the State of Madras. There serration therein was not made by any legislative provision. In spite of it, their Lordship have held in that case that so far as the appointments made in accordance with the reservation by the State with respect to the members of backward classes were concerned, the same were valid.

If there was any substance in the contention of the learned Counsel for the Petitioner that the provision in Article 16(4) was meant to be a legislative provision, I am sure that their Lordships of the Supreme Court would not have upheld the appointment made by the state of Madras on the bastes of the communal Government Orders Further, it appears to me that Article 16 (4) is an enabling provision and that it is not obligatory on the part of the State to make provision fort reservation.

What that clause says is that ''Nothing in this Article shall prevent the State from making any provision'' etc. Anyway, under the rules, no percentage of appointments has been fixed to the various communities coining under the definition of ''backward classes of citizens''. But from the actual appointments made, no discrimination has been shown to any single community mud the seven appointments have been allotted to seven different communities all coming under the heading ''backward classes of citizens''. Therefore it cannot be said that the State has been arbitrary in making appointments according to the communities coming under the ''backward classes of citizens''.

It was further contended on the side of the Petitioner that the major portion of the appointments i.e., 7 out of 10, has gone be the backward classes of citizens, that the meaning of the word ''reservation'' appearing in Article 36 (4) indicates that the reservation must be a fraction of the main and that 7 out of 10 appointments cannot be allotted to backward classes of cite. mew. This argument was based on the provision of Article 16 (1) and (2), am the contention unzip by the learned Counsel for the Petitioner viz. that Article16 (4) is in the nature of a proviso or in Exception to what is stated in Article 16(1) and (2) and that the reservation contemplated in Article 16 (4) cannot be In excess of a small port in of the main.

In other words, the argument advanced was the out of 10 appointments, one or two should have: goon to the backward clasps of citizens and the rest to others. The contention that Clause (4) of Article 16 is in the nature of a proviso or exception to the main Article 16 (1) and (2) appear to be well-founded. I am not prepared to ''Countenance the argument of the learned Advocate General that Article 10 (4) is an independent provision by itself and that it should be road indopeuduitly of Clause (I) and (2) of Article 10. Article 16 (1) provides that ''There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Thus it is sera that Clause (4) of Article 19 (quoted supra) is subsidiary to the main Article and that it carves out a class or category to which the main Article 16(1) does not apply. Likewise Clause (3) and (5) of Article 16 appear to be to lions to what is contained in Article 16 (2). Thus, there can be no doubt that Article 16 (4) is in the nature of an exception to what Is stated in I Article 16 (1) of the Constitution. No doubt, the wood "reservation" aiguilles that it can be a ''sun) portion of the main.

But this does not mean that the appointments made pare irregular or invalid. In this case, as stated already, seven out of ten appointment.''; have gone to communities on consideration of their coming under the heading ''backward classes of citizens''. As observed earlier, these appointments have not gone to any particular community; but, on the other hand, each of these appointments has gone to each of certain communities of backward classes of citizens. Evidently what the Petitioner wants is to club together all these various backward classes of citizens into one as against those not belonging to that category which, in my opinion, is against all principles of natural Justice and the principle underlying Article 16 (4) of the Constitution.

Each backward class of citizens is an independent class whose claim for appointment can be sustained under Article 16 (4) of the Constitution, In such a case, the reservation for each backward class of citizens must be considered as one out of ten which is a small fraction of the total appointments. For ten appointments to be filled up, If there are candidates belonging to ten backward classes of citizens who, in the opinion of the State are inadequately represented in the service, it will not be wrong for the State to allot all the appointments to the ten communities coming under the heading ''backward classes of citizens''. A member belonging to a class which is well-represented in a particular service cannot have, and should not have, any grievance has against such appointments.

Communities which are well represented in. service should not expect a place for themselves! la each selection of appointments when there are backward classes of citizens which are not at all represented or which are inadequately represented in services, and when the appointments to be made tire limited. With good grace they, must make room for their less fortunate brethren. By saying this, I do not mean that efficiency should be ignored. Efficiency in all grades 08 (service Is of importance and It should weigh la making appointments and due consideration should be given to that aspect in making appointments as pointed out by this Court in ''Writ) Petn. No. 24 of 1955 (Mys) (B).

Our attention was drawn to the case reported in B. Venkataramana Vs. The State of Madras and Another, , and it was contended that the decision in that case supports the case for the Petitioner. No doubt, it is true that the Petitioner therein succeeded in getting an appointment which was originally refused to him by the State of Madras. But the facts in that case can easily be distinguished from the facts of the present case.

Their Lordships in that ease have upheld the allotment of seats on the basis of communities coming under the heading ''backward classes of citizens'' and they said that reservation of posts for other communities not falling under the category of Harridans and backward class Hindus was repugnant to the provisions of Article 16 and therefore void and illegal and that the Petitioner''s application for appointment was directed to be considered in filling up the other vacancies ''that were still available for being filled up without reference to communal Government Order.

Another contention on which much stress was laid down by the learned Counsel for the Petitioner was that the power to make provision for reservation vests in the Slate., that the State alone con exercise that power, that under the rules die said power has been delegated to the Commission and that therefore the appointments made by the Commission must be declared invalid. Even in this contention, I do not see any truth or substance.

The proposition that subsidiary or delegated legislation has become inevitable and necessary owing to the increased pressure on legislation and the complexity of the subject-matter of the present day legislation is well-recognized. Due to the complexity of the modern, social and economical conditions, the Legislature has been compelled to entrust the Department responsible for administering the law with power of deciding administrative or quasi-judicial issues.

The usual test for finding out whether a de~ legation of power is permissible or not is to see if the delegation amounts to an abdication of legislative powers. For the present purpose, it may not be necessary for me to go deeply into this subject. It is not correct to say that the: State have delegated their power in favour of the Commission. This leads us incidentally to the powers and durations of the Public Service Commission.

The functions of the Public Service Commission have been enumerated in Article 320 of the Constitution. According to that Article, (as quoted earlier), it shall be the duty of the Public Service Commission to conduct examinations for appointments to the services. Thus it is seen that the Commission has got a right to be consulted on all matters relating to the method of recruitment to civil services and civil posts and also on the principles to be followed in making the appointments, promotions and transfers and other matters mentioned therein.

In this case, the State has not requested the Public Service Commission to allot a particular percentage of appointments to any single community. Rule 7(2) provides that backward classes of citizens who are not adequately represented in the Judicial Service ''shall be given due representation from among the qualified candidates. This direction in the Rules to the Commission does not amount to a delegation of power for reservation of scats to any particular community and is in accordance with the principle underlying Article 16(4) of the Constitution In this connection, it has also to be remembered that the word of the Commission is not final in such matters; under the Constitution, the status of tile Public Service Commission is only advisory and consultative. Mandatory powers have not been conferred on the Commission, and the Constitution goes to the extent ''of saying that it is not obligatory on the President, Governor or Rajpramukh of a State to accept the recommendation of the Commission.

The final word rests with the State and therefore the direction in the Rules to the Public Service Commission as provided in Rule 7(2) docs not/ amount to a delegation of power in its true sense.

It was contended by the learned Advocate-General that even the Public Service Commission can make provision for reservation under Article 16(4) of the Constitution irrespective of the State Government or the Rajpramukh inasmuch as the State, as defined under Ant. 12 of the Constitution includes ''Public Service Commission''. I am of opinion that there is no force in this contention. Article 12 of the Constitution runs as under:

In this Part, unless the context otherwise requires, ''the State'', includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

The contention of the learned Advocate-General was that the Public Service Commission conies within the category of ''other authorities appearing in Article 12, with which contention I am unable to agree. ''Authority'' means ''power to make laws- orders, regulations and bye Jaws'' etc., and also the power to enforce laws.

The word ''authority'' literally means ''a body exercising power''. Under the Constitution, the Public Service Commission has no such authority and it has not got even the power 4o implement its own decisions without reference to the State Government. Article 320(4) provides:

Nothing in Clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in Clause (4) of Article if may be made or as respects the manner in which effect may be given to die provisions of Article 333.

In other words, what that clause says is that the Public Service Commission need not be consulted with respect to the manner in which the provision neared to in of (4) of Article 16 may be made or with respect to the manner in which effect may be given to the provisions of Article 335.

When the Article says that the State Government need not even consult the Public Service Com mission with respect to the matter covered nude Article 16(4) i.e., with respect to the making of provisions for reservation of appointments in favour of backward classes of citizens, there is no substance in the contention that the Public Service Commission is an authority within the meaning of flint word in Article 12 and that it can make provision ovation of appointments without reference to the State Government.

Article 320(4) would have had no place in the Constitution if the Public Service Commission was intended to be an authority within the meaning of that word appearing in Article 12 of the Constitution and if it was intended to possess the power to make provision for reservation. At any rate, it cannot be disputed in view of the above provisions that the Public Service Commission is not an authority within the meaning of Article 12 of the Constitution at least for purposes of Article 16(4) thereof. This stand was taken by the present Petitioner in his previous ''Writ Petn. No. 80 of 1955, (Mys) (A) It has been found therein that such a contention could not be put forth by him as he with full knowledge of the rules and their implications voluntarily subjected himself to the operation of the rules for making. selection. I do not know how the Petitioner could be heard to say again that there has been a delegation of power and hat the relevant rule in this behalf is void.

Rule 7(3) provides that in the event of the requisite number of qualified candidates belonging to scheduled castes and tribes not becoming available as a result of the examination, it shall be open to the Rajpramukh to fill up the consequent vacancies by appointment of qualified candidates out of those belonging to backward classes. It was contended on the side of the Petitioner that his mile makes discrimination in favour of backward classes, redo not think that on that score I can say that the rule is invalid or that it should be scrapped out.

There is nothing wrong in allotting the posts reserved for scheduled castes and tribes to other backward classes of citizens when there are no qualified candidates belonging to the former cater gory or in preferring a candidate belonging to a more backward class to another candidate of the backward class which has got better representation in services. This does not offend the provisions of Article 16(4). On the other hand, this rule is in consonance with those provisions.

It was argued that Rule 16, so far as it relates to appointment by promotion, is void and that it offends Article 284 of the Constitution. I am not inclined to uphold this argument. Article 234 deals with recruitment of persons other than District Judges to the judicial service. The word ''appointment:'' does not necessarily mean fresh appointments directly from the Bar. ''Appointments referred to in Article 234 must be intended to include ''appointments by direct recruitment and also appointments by promotion''.

Rule 17(4) provides that the Rajpramukh may relax all or any of these rules in regard candidates belonging to backward communities or scheduled castes or scheduled t rib is subject to their possessing the qualification prescribed in Rules 10 and 11. It was contended that the other communities have been discriminated against, with which contention we do not concur. Rules 10 and 11 stipulate the requisite qualifications sad conditions before an appointment could be made.

The essential requisites to entitle a candidate for" an appointment are laid down under Rules 10 and 11. The relaxation mentioned in Rule 17(4) races, to refer to very minor and negligible matters and the Rule cannot be taken to be a discrimination against communities other than those mentioned therein. Rule 19(2) provides that the Rajpramukh may discharge any officer if, in his opinion, the work of the officer on probation is unsatisfactory or inefficient.

The contention urged was that an arbitrary power has been conferred on the Rajpramukh and if he so chooses, lie can discharge an officer without reference to the High Court under whose authority and supervision n judicial officer works. It was further pointed out that the rule restricting the power of the Rajpramukh and requiring bin* to appoint only such of the candidates whose names appeared in the list submitted by the Public Service Commission vested in the Commission a power the contemplated under Article the Constitution pond that this offended the provisions of the .said Arsenide.

It was again contended that the rule giving discretion to the Commission to fix the number of marks a candidate should get in the two law papers him to be called for viva voce will lead to unitary exercise of that power on the part of the Commission and that the rule is therefore bad.

It was next contended that the rule fixing 125 for voce out of 375 in an examination annual to select Judicial officers, mid the rule directing ''he adding up of the marks obtained in viva voce to the marks obtained in the written papers in Spring the place of a candidate gave arbitrary how to the Public Service Commission in selection of candidates and that in said rules are in-vivid.

I do not propose to say that the Rules framed perfect nor are they claimed to be such. As a matter of fact, the learned Advocate General urinated that there are certain flaws in the bull''s now framed and that the State would revise hem in view of the observations made by this Genu i- in the previous Writ Petitions viz. Writ Petn. No. 24 of 1955 (Mys) (B) and Writ Petn. No. 80 of 10"i5 (My;) (A). I can do nothing better than reproduce what is stated in the said cases. In XV. P. No. 24 of 1955 (Mys) (B), it is observed as observed:

The proceeding hid down for both those and conditions to be satisfied constitute an innovation in many respects the glaring effect of which is that the High Court;, which so far used to make the selection of all persons to be appointed with the concurrence of Government has, by virtue of these, no hand at all in regard to recruitment and has only a secondary and subordinate part in the choice of persons for promotion, the proportion of which vis-a-vis recruitment w fixed as one to sir.

In W. P. No. 80 of 1955 (Mys) (A) the following observation is made:

This proceeding has served to bring to light several important factors which need careful attention ca the part of the authority responsible for framing rates.

The bona fides of the Commission has been questioned by the Petitioner in this petition. What he contends is that candidates who had not bottomed the required number of mark.1'' in the ''view'' law papers have been awarded higher narks in the ''viva voce'' examination, that their...lair''s were thus made up to 40 per cent, of the was limit Respondents. 9 and 11 who were not called of interview at the first instance have been called for interview on the second occasion and that the appointment of Respondents 9 and 11 is road.

The undisputed attitude of the Commission in refusing to furnish separately the number of marks obtained by candidates in each subject and in the declining to disclose even to the Slate Government die number of marks secured by each candidate in each of the law papers and viva voce examination separately and in their insisting on fur-joshing and in actually furnishing only the total marks obtained by each candidate has given sufficient room for the Petitioner to attack the bona jades of the Commission.

So far as the refusal with respect to the request of the State Government is concerned, I am of .opinion that the attitude of the Commission was unjustified. Being an advisory or a consultative body to the State Government and in view of the fact that under Article 323 of the Constitution the Rajpra-mukh shall have to explain to tale Legislature the reasons why in particular cases the advice of the Commission could not be accepted, it is not open to the Public, Service Commission to withhold any information wanted by Government.

It is not correct to contend that Respondents'' 9 and 11 were first refused an interview. The explanation given by Respondent 2 is that the first batch was called for viva voce examination and that in view of Rule 5, which provided that candidates who obtained not less than 40 per cent, of the total number of marks in the aggregate were eligible for selection, the second billed was called, I think this explanation is satisfactory and merely because Respondents 9 and 11 were called for the viva voce examination on the second occasion, it does not necessarily mean that the Commission had no right to exercise that discretion and that they had already spent it out. In my opinion, the defects in the rules pointed out are not an grave or serious as to warrant tile cancellation of the appointments made or to render the procedure adopted void ''ab initio''. I think that for . these several reasons, the Petitioner cannot succeed.

In the result, this Writ Petition fails and the same stands dismissed but without costs.

Hombe Gowda, J.

I have had the advantage of perusing the order prepared by my learned brother Sri K.N. Padmanabhiah J. and agree with his decision that this petition should be dismissed. I wish to add a word or two in support of the conclusions arrived at by my learned brother on some of the contentions raised by the Petitioner.

The claim of the Petitioner for inclusion in the list of candidates prepared and converted by Respondent 2 to Respondent 1 for being submitted to the Rajpramukh for approval and for being appointed as Munsiffs in preference to some of the candidates that were selected and appointed as Munsiffs is based on the ground that the examination conducted by the ''Commission" was a competitive one.

It was asserted by the Petitioner that he had secured the third rank in the examination and as such had a right to be included in the list. Respondents 1 and 2 nave admitted in their counter-affidavits that the Petitioner had secured the seventh rank in the examination. The in question, therefore, for consideration is whether the examination conducted by the "Commission" was a competitive one or a selective one.

The examination for selection of candidates to be included in the list of candidates eligible for being appointed as Munsiffs is, it is not disputed, held under the rules called "Mysore Munsiffs (Recruitment and Promotion) Rules, 1954". It is not disputed that these miles are framed under Articles 234 and 309 of the Constitution of India. A cursory perusal of the several provisions of these rules will make it abundantly clear that the examination conducted by the "Commission" under the rules is not: competitive but selective.

The examination, as could be gathered from the rules is one; meant to find out the competency of candidates for being appointed as Munsiff''s. The Petitioner, who is a practicing Advocate of this Court, should be presumed to have read the rules and taken the examination with full knowledge of all the rules and their implications and he cannot, therefore, in my opinion, now be heard to contend that he had any misconception about the nature or the scope of the examination that was being conducted by the "Commission".

It was held by this Court in W. P. No. SO of served by compelling Respondent 2 to submit ''.he ''1955 (Mys) (A), filed by this very Petitioner that it is not possible for this Court to issue a direction that an examination which under the rules is selective'' should be turned into being a competitive one. There is, therefore, no substance in the contention of the Petitioner that he understood the examination to be a competitive one and as such he has a right to be included in the list of eligible candidates in preference to Respondents 3 to 12.

It is not disputed that Respondents 3 to 12 are among the list of candidates published in the Mysore Gazette dated 30-12-1954 as successful in if he examination So long as the selection of the candidates for inclusion in the eligibility list is made from the list of candidates that have passed in the examination conducted by the "Commission", the Petitioner, in my opinion cannot have any valid grievance against the list.

It was contended by the Petitioner that the Commission" had called for viva voce examination some of the candidates who had failed to .secure the minimum number of marks in the two law papers in the written examination and that it was done so to show favoritism or to enable some of their favorite candidates to become eligible for selection on the strength of the marks awarded to them in the viva voce examination.

In the counter-affidavit filed by the Secretary of the Public Service Commission, on behalf of Respondent 2, the Secretary while admitting that agorae of the candidates who were not summoned for oral examination at first were subsequently summoned has explained the reasons for such a course is follows:

It is true that at one Stage the Commission called for viva voce examination only some of the candidates. Later, however, the Commission felt that in the light of Rule 5 of the Regulations for the conduct of examinations it was desirable that all the candidates should be called for viva voce examination. The said rule wads as follows: ''Candidates who obtain not less than 40 per cent. of the total number of marks in the aggregate will be eligible for selection.

As the marks obtained in viva voce forms of the toll number of marks in the aggregate, j I: WJ"! thought that it would be unfair to the candidly to shorn from Lao viva and the Commission therefore called the remaining candidates in another batch. It is not correct to state or to biggest that only Respondents 9 and 11 had not been called for viva voce in the first instance.

The first batch that was called for viva voce was 52 in number. The second batch that was called for viva voce is 2!) in number . THE decision of the Commission lo call for all the candidates was not exercised arbitrarily and was well within its power. Allegations of mala fide are baseless and denied. I refute the suggestion that Respondents f) and II. (along with other candidates) were lilac marks in the interview otherwise than in any objective manner.

I do not see any valid reasons to doubt the bona fides of the statements made on behalf of the Commission" particularly when the action of the "Commission" was con sistent with the Rules.

It was urged by Sri S.K. Venkata Ranga Iyengar, the learned Counsel for the Petitioner that the attitude adopted by Respondent 2 in refusing to send the details of the marks obtained by the several candidates in the written and oral examinations separately clearly indicated want of bona fides, on the part of the "Commission".

The learned Advocate-General on the other hand contended that no useful purpose would be details of the marks obtained by the several con dilates, inasmuch as, this Court is not competent to sit in judgment and to assess the correctness of the valuation of the papers and the marks given to each candidate either of the written or of the viva voce examination. I do not think it is necessary to examine the arguments bearing on this, question.

This Court, in my opinion, cannot take undo itself the function of the "Commission" or of the examiners .ejected by the "Commission" and value the papers or scrutinise the marks given by the "Commission" to the several candidates in tie viva voce examination and modify the results. Doubtless it is the "Commission" constituted under the Rules that had the authority to conduct the viva voce examination and to assess the relative merits of the several candidates. There is thus no substance in this contention of the Petitioner also.

The other objection raised by Sri S.K. Venkata Ranga Iyengar, the learned Counsel for the Petitioner is to the representation of castes or .communities being a consideration for the selection of the candidate. It was urged that the selection'' of Respondents 4 to 12 as candidates belonging to the backward classes without making necessary provision for reservation in their favour under Article 16(4) of the Constitution of India and without determining as to what classes or communities of the State arc backward and are inadequately represented in the public services so as to entitle them to claim that concession is ultra vires the Constitution. Article 16 of the Constitution reads thus:

(1) There shall be equality of opportunity for all citizens in matters relating lo employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3)Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in Sch. 1 or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment.

(4) Nothing in (his Article shall prevent the State from making any provision for the reservation of appointments or posts in favour on any back ward class of citizens which in the opinion of the State is not adequately represented in the services under the State.

(5) Nothing in this article shall affect the operation of any law which provides that the Incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shut! be a person professing a particular religion or Erotizing to a particular denomination.

It is clear from the above that Clause (4) is an exception to the general provisions of the main article.

This contuse, empowers the State, to make ouch provision as it rimy deem necessary for the purpose of securing adequate representation to the backward classes of the State. Two conditions are necessary for the application of this clause: (1) The Community or class for which the State makes provision is backward in the opinion of the State. (2) That community or class in the opinion of the State is not adequately represented in the services under the State.

The term "Backward class" has not been defined anywhere in the Constitution of India, of my opinion it is wide enough to include all kinds ,of backwardness, social, educational, economical or any other kind, Doubtless the State is the sole to classily the communities as "backward ". It was submitted tout in the rules admixed to the "Mysore Munsiff''s (Recruitment and Promotion) Rules, 1954" it has been stated that backward classes for the purposes of the rules are those that are treated as such by the orders issued by the Government from time to time.

The learned Advocate-General submitted that the odor of the Government of Mysore determining the backward communities was passed in the year 19.''-" 1 and was based on the Miller Committee Report and the same is still in force, lie submit-too further that the State Government have been adulating the orcas of the Central Government on the report of die Backward Class Commission (appointed by the President of India under Article 340 of he Constitution of India) to have a sound and in sow; the basis to reclassify the backward classes never Article 10(4) of the Constitution of India.

The need to determine the communities that are backward and are inadequately represented in the yew ices of the State to avoid unnecessary bickering and to avoid the possibility of the present uncertain provision being used "by any particular authority to the advantage of a particular immunity and to the detriment of tire less fortunate (.(immunity, has been pointed out by this Court previously in the course of the orders passed in the other two Writ Petitions filed challenging the validity of the Mysore Munsiff''s (Recruitment and Promotion) Rules, 1954.

It is necessary that specific provision is made for reservation of appointments for backward classes to be in conformity with the provisions of the Constitution of India and to avoid unnecessary confusion. There is no substance in the content tm of the learned Advocate for the Petitioner that in the absence of specific provision for reservation made under Article16(4), Constitution of India in, favour of backward and inadequately represented classes no reservation can be made in favour of any of the backward classes.

The learned Counsel for the Petitioner tried to support his contention by referring to the decision of the Supreme Court in B. Venkataramana Vs. The State of Madras and Another, . This decision, in my opinion, does not support the contention of the Petitioner. All that this decision laid down was that provision for reservation of posts in the Communal G.O. for communities other I-Tarijansi and Backward Hindus was void and Luella.

As a matter of fact reservation of posts for Latvians and backward Hindus in the Communal G.O. of Madras was held to be valid. Therefore, there is no substance in this contention of the Petitioner.

The several other contentions raised by the Petitioner''s counsel are dealt with at length by my learned brother in the course of his order. I have nothing more which I can usefully add. I therefore agree with my learned brother that this petition should be dismissed.