1. The petitioner is a legal practitioner at Yelbarga in Raichur district; he is also functioning as an Assistant Government Pleader, there. He is one of the candidates that had appeared for the Munsif's examination held during the months of April and May 1965. That was an examination conducted by the Mysore Public Service Commission, in accordance with the Mysore Munsifs (Recruitment) Rules, 1958 (hereinafter referred to as the rules), framed by the Governor in exercise of the powers conferred under Art. 134, and the proviso to Art. 309 of the constitution. Rule 12 of the rules requires that the names of candidates successful in the competitive examination shall be published in the Mysore Gazette by the Commission in order of merit; and it is further provided therein, that appointments shall be made of candidates in the order in which their names appear in the list. The list of candidates successful in the said examination held during the months of April and May 1965, was published in the Mysore Gazette, dated 3 June, 1965. That list shows the successful candidates in the order of merit; it is Ex. B. The name of the petitioner is at serial No. 14 in that list. While the petitioner was eagerly awaiting his appointment as a Munsif, in his turn according to the list, he was disappointed to find that he was not appointed and that, instead, persons at serial Nos. 15, 16 and 18 were appointed by the notification Ex. D, dated 14 March, 1966. They have been impleaded as respondents 2 to 4. On 30 March, 1966, the petitioner through his counsel, issued a letter to the Government calling upon the Government to appoint him above respondents 2 to 4 and inform him of the reasons why he had not been so appointed. As per Ex. E. The acknowledgment receipt, it will be seen that the said letter was received on 5 April, 1966. There was no reply to that letter. Thereafter, four more persons who were ranked as 19 to 22 in the list Ex. B, were appointed as Munsifs. They have been impleaded as respondents 5 to 8.
2. Rule 4 of the rules is as follows :
4. Disqualification for appointment. - (1) No male candidate, who has more than one wife living and no lady candidate, who has married a person already having another wife living, shall be eligible for appointment as Munsif :
Provided that Government may, if satisfied that there are special grounds for doing so, exempt any person from the operation of this sub-rule. (2) No person shall be appointed as a Munsif who, in the opinion of Government, is not suitable, having regard to his character and antecedents in all respects, for appointment to the post of Munsif.
(3) No person shall be appointed as Munsif unless he be in good mental and bodily health had free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. Before a candidate, who has passed the competitive examination, is finally selected for appointment in the service, he shall be required to pass an examination by a medical board, after paying such fees as may be specified in this behalf.'
3. The petitioner had appeared before the medical board and has been given to understand that the medical board has found him physically fit for the appointment. He has alleged in the affidavit that he had an unblemished school and college career and that he was appointed as a Government Pleader in the year 1963 and again reappointed on the year 1965 by the Government Law Secretariat. It is also alleged by him that he has been appointed as the Government nominee for the Marketing Co-operative Society at Yelbarga; that he is the secretary of the local Bar Association for the last four years and that he commands the esteem of the other members of the Bar. He alleges that the refusal of the Government to appoint him to the post of a Munsif is arbitrary and is in violation of the equality of opportunity guaranteed under Arts. 14 and 16 of the Constitution. He prays that a writ of mandamus be issued to respondent 1 (the State) directing that he be appointed as a Munsif from the date on which respondents 2 to 4 were appointed and that his seniority be fixed above respondents 2 to 8 and if necessary, to declare that sub-rule (2) of rule 4 of the rules is void.
4. In the counter-affidavit which has been filed on behalf of respondents 1, there has been no denial of the fact that the petitioner had secured the fourteenth rank in the examination, according to the list as per Ex. B; nor is there a denial of the fact that respondent 2 to 4 who have lower ranks in that list, have been appointed as Munsifs. Respondent 1 relies on sub-rule (2) of rule 4 of the rules and has stated as follows in Para. 3 of the counter-affidavit :
'After the list of successful candidates was sent to Government the Government made inquiries as to the character and antecedents in all respects of the petitioner as well as other candidates. On the reports received in regard to the petitioner about his antecedents and activities the Government were satisfied that the petitioner was an active member of the Rashtriya Swayam Sevak Sangh and was the organizer of the R.S.S.S. Unit, Yelbarga, Raichur district, in the year 1964 and a branch was opened under his leadership in the beginning of 1965 and that a close association and active participation in the activities of the R.S.S.S. whose tenets and ideology are subversive and secretive and opposed to secularism and the established partition of India as accepted under the Constitution, are not conducive for the proper discharge of the duties of the post of Munsif. Therefore, the Government was of the opinion that he was not suitable for appointment as Munsif and accordingly he was not appointed.'
5. Respondent 1 denies the allegation that the said sub-rule (2) offends Arts. 14 and 16 of the Constitution. It is pleaded that the action taken is competent under the said sub-rule and that the petition is liable to be dismissed.
6. Two main contentions have been advanced by the learned advocate for the petitioner. The first contention is that sub-rule (2) of rule 4 is violative of Arts. 16(1) and 14 of the Constitution. The second contention is that even if the first contention is not accepted and the sub-rule is held to be valid, the refusal by the Government to appoint the petitioner to the post of a Munsif is invalid as it is founded on irrelevant considerations. While addressing arguments in regard to the second contention, Sri Venkataranga Ayyangar wanted to urge that in cases like the present one, the State Government was bound to place before the Court the materials on the basis of which it had formed its view about the suitability or otherwise of the concerned candidate, for the post. But, we find it unnecessary to examine the validity of that argument, because, as pointed out by the learned Advocate-General, the State Government, has, in this particular case, actually disclosed in its counter-affidavit, the grounds on which it had formed its opinion in regard to the unsuitability of the petitioner to the post of a Munsif; therefore, there is no necessity for the Court to decide the general question raised by Sri Ayyangar. We will, therefore, confine ourselves to the above stated two contentions advanced on behalf of the petitioner.
7. The learned Advocate-General has sought to meet the above two contentions, by urging that sub-rule (2) of rule 4 does not offend either Art. 16(1) or 14 of the Constitution, and that the Government has formed its opinion about the unsuitability of the candidate after a consideration of the relevant material, referred to in the counter-affidavit.
8. So far as the first contention is concerned, we do not find any difficulty in holding that sub-rule (2) or rule 4 is not violative of Art. 16(1) or 14 of the Constitution. With reference to Art. 16(1) of the constitution, the Supreme Court has observed in General Manager, Southern Railway v. Rangachari [A.I.R. 1962 S.C. at 40-41] as follows :
'This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Article 16(1) or 16(2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity . . .'
9. (Having regard to the above statement of the law by the Supreme Court, specifically in regard to Art. 16(1) we consider it unnecessary to discuss certain decisions of the United States Supreme Court cited by the learned advocate for the petitioner, which pertained to the validity of requiring employees under the State to take the oath of loyalty.) Equality of opportunity has been afforded to the petitioner in all matters relating to appointments to the post of munsif. He has been allowed the opportunity to sit for the examination, just like any other candidate similarly qualified. Sub-rule (2) or rule 4 is applicable to the other successful candidates in the same way in which it is applicable to the petitioner. In these circumstances, there is no denial of the equality of opportunity safeguarded by Art. 16(1). The contention of Sri Venkatranga Ayyangar that this rule is violative of Art. 14 is based on the argument that this rule vests too very wide and unguided power in the Government and that the power is capable of being arbitrarily used. We are unable to agree that there is no guidance afforded by the rule itself, in the matter of the opinion to be formed by the Government. The duties of the post of a Munsif are of a judicial nature; they are too well-known to require any elaboration. It is in regard to the suitability of a candidate, to hold a post which requires the performance of such duties, that the Government has to form its opinion; and that opinion has to be formed having regard to his character and antecedents in all respects. The argument that this sub-rule vests power without affording any guidance in regard to the exercise of the power, has to be rejected. Proceeding to the next argument that too wide a power has been vested in the Government by this rule, it should be remembered that the purpose of this sub-rule is to ensure that candidates who are unsuitable to perform the duties of the post of a Munsif, are not appointed. Such a power is necessary in public interest. Even a candidate who has been successful at the examination, may yet be unsuitable to hold this post which requires the performance of judicial functions, by reason of his antecedents or defect in character. The Government on such enquiry as it may think fit, in regard to his character and antecedents may find material on the basis of which it may form its opinion in regard to his suitability or otherwise. Having regard to the variety of circumstances pertaining to his character and antecedents which may render a successful candidate unsuitable (in the opinion of the Government) for appointment to the post of a Munsif, it is necessary that wide discretion such as is given under this rule must be vested in the Government. The mere possibility of the abuse of the power given under this sub-rule, is not a sufficient ground to hold that the rule violates Art. 14 of the Constitution. The ambit of its operation has to be reasonably construed. In Collector of Customs v. Nathella Sampathu Chetti : 1983ECR2198D(SC) , it has been pointed out by the Supreme Court that the possibility of abuse of the power under the provisions contained in any statute is no ground for declaring the provisions to be unreasonable or void. The Supreme Court has stated as follows at p. 332 :
'This Court has held in numerous ruling, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void . . . The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements.'
10. We find that there is no substance in the contention that sub-rule (2) of rule 4 is violative of Arts. 16(1) and 14 of the Constitution. We hold that it is a valid provision.
11. We now come to the second contention that on the facts of this case, the refusal by the Government to appoint the petitioner to the post of a Munsif, is invalid because it is founded on irrelevant considerations. The Government does not say that its inquiries showed that there was any defect in the character or the antecedents of the petitioner, other than what has been set out in Para. 3 of the counter-affidavit. The allegations in that counter-affidavit to the effect that the petitioner was the organizer of the R.S.S.S. Unit at Yelbarga and that a branch was opened under his leadership in 1964, have been denied in the reply-affidavit filed by the petitioner. Even if this denial in the reply-affidavit is left out of consideration, what emerges from the statements in Para. 3 of the counter-affidavit is that the Government was satisfied that the petitioner was an active member of the R.S.S.S. that he was the organizer of the R.S.S.S. Unit at Yelbarga in the year 1964, that a branch was opened under his leadership in the beginning of 1965 and that he had close association and active participation in the activities of the R.S.S.S. It is further alleged in the said Para. 3 that the tenets and ideology of the R.S.S.S. are subversive and secretive and opposed to secularism and the established partition of India as accepted under the Constitution, and are not conducive for the proper discharge of the duties of the post of Munsif. It is stated that, therefore, the Governor was of the opinion that the petitioner was not suitable for appointment as Munsif.
12. When there is no defect in the character or antecedents of a candidate, his membership in an organization and his participation in the activities thereof, will be an irrelevant consideration, unless the aims, objects and activities of that organization are such as would have a bearing on the question of his suitability to the post of a Munsif. In the present case it is stated that the tenets and ideology of the R.S.S.S. are subversive and secretive and opposed to secularism and the established partition of India as accepted under the Constitution. These allegation in the counter-affidavit filed by the Government are denied in the reply-affidavit filed by the petitioner and it is stated that the R.S.S.S. is functioning as a cultural organization and that the same is not banned by the State or the Central Government, and it is further stated that the R.S.S.S. merely preaches about the character building of an individual in the context of the nation.
13. The Advocate-General on behalf of the State contended that having regard to the tenets and the ideology of the R.S.S.S. a person who has actively participated in the activities of such an organization, would not, in the opinion of the Government, be suitable to discharge the duties of the post of a Munsif. It was also stated by him that the subjective satisfaction of the Government in such a matter, was not open to interference by the Court. He invited the attention of the Court to the observation of the Supreme Court in Banarsidas v. State of Uttar Pradesh : 1SCR357 to the effect that like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government. The said observation of the Supreme Court was made in the context of the discussion about the power of the Government to lay down such pre-requisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. The said observation cannot be understood as endorsing any arbitrary action on the part of the Government, when appointment to a post is governed by specific rules. In the present case, the rules govern the appointment to the post of a Munsif and the opinion of the Government under rule 4(2) cannot be formed arbitrarily, but must be one formed on relevant considerations. Undoubtedly, the High court is not exercising any appellate jurisdiction in regard to the subjective satisfaction of the Government. All that is being done by the High Court is merely to assure itself that the subjective satisfaction is the result of relevant and reasonable, and not irrelevant and unreasonable considerations. It is not disputed before us that if the opinion of the Government is based on irrelevant considerations, then its decision not to appoint the petitioner on the ground of unsuitability, cannot be sustained.
14. In the present case, the fact that the petitioner was a member and active participant in the activities of the R.S.S.S. will be a relevant consideration only if the R.S.S.S. is an organization whose tenets, ideology and activities are such as are stated in Para. 3 of the Counter-affidavit. Otherwise, the fact of the petitioner's membership and his participation in the activities of that organization will be an irrelevant consideration for the opinion to be formed by the Government on the question of the suitability for appointment to the post. It is, in these circumstance, that we are put to the necessity of examining the material that has been placed before the Court in regard to the aims, objects and the activities of the R.S.S.S.
15. The contention on behalf of the petitioner is that the R.S.S.S. is not a political organization, but purely a cultural one. In support of this he has placed a copy of the questions and answers in the Rajya Sabha (proceedings of 27 November, 1964) in which Sri Hathi, Minister, in the Ministry of Home affairs, has stated that the R.S.S.S. is not an organization included in certain lists prepared by the Election Commissioner and also by the Speaker of the Lok Sabha showing the political parties that take part in election and which Government servants are precluded from joining. It is stated by the learned advocate for the petitioner that the ban which had been imposed on the R.S.S.S. was removed as long back as in the year 1949 and in this connexion our attention has been invited to Appendix XIV at p. 99 of the pamphlet 'justice on trial.' This appendix refers to a Government communique dated 11 July, 1949, announcing the lifting of ban. It is pointed out that from the contents of Appendix XIV, it is clear that the constitution of the R.S.S.S. subsequently framed, had been drafted after consultation with the Government of India and adopting the suggestions made by the Government. A copy of the R.S.S.S. constitution also has been produced. It is urged that there is nothing secretive in the activities of the R.S.S.S. that its aims and objects are to promote Hindu culture, that it is not political and that it does not bear any ill-will towards non-Hindu bodies. It is pointed out that in Art. 4 of its constitution, it is expressly stated that the sangh has no politics and is devoted to purely cultural work. It is further pointed out that under Art. 4(b), swayam sevaks are prohibited from joining any political party which believe in or resorts to violent and secretive methods; it is stated there that persons owing allegiance to such parties or believing in such methods shall have no place in the sangh. Our attention has been invited also to Art. 5 wherein it is expressly stated that it is the duty of every citizen to be loyal to and respect the State flag. It is contended that in view of the declared aims and objects of the sangh as found in its written constitution, there is no material to support the allegation made in the counter-affidavit to the effect that the tenets and ideology of the R.S.S.S. are subversive and secretive and opposed to secularism. In support of the argument that the sangh has no hatred towards non-Hindus and that it is not interested in politics, our attention is invited to p. 26 of the pamphlet
'sangh darshan' wherein it is stated as follows :
'Sangh is non-political. There is therefore absolutely no placed in the sangh for negative feelings such as hatred against non-Hindus. The sangh seeks self-reformation to generate strength, believing that we are ourselves responsible for our downfall.
There is also no place for political rivalry or bitterness in the sangh, because the sangh has kept itself scrupulously aloof from the day-to-day political activities. It does not believe that national oneness can be achieved through elections or political propaganda. It does not believe that legislations can infuse the spirit of patriotism, devotion, character, amity and sacrifice in the people. The sangh is therefore solely devoted to the fundamental task of reforming and reorganizing the people on a positive and permanent basis, i.e., for building real people's power, and has refused to seek political power. In fact, the sangh seeks to purify and vivify all walks of our national life, political, economic, social, cultural, religious, educational, scientific or military by instilling in our people sterling loyalty and burning love for the motherland and her heritage.'
16. Reference has also been made by the learned advocate for the petitioner to p. 40 of the some pamphlet wherein it is stated that some Chief Justices of the Supreme Court such as Sri Mehr Chand Mahajan and Sri Patanjali Sastri and eminent historians such as Dr. R. C. Majumdar and Dr. Radhakumud Mukherji and other eminent persons presided over the sangh functions or addressed swayam sevaks. It appears that even President Radhakrishnan visited the branch of the sangh and congratulated its workers when he was the Vice-Chancellor of the Hindu University in Banaras (vide p. 39 of Sangha Darshan).
17. All the above materials show that prima facie the R.S.S.S. is a non-political cultural organization without any hatred or ill-will towards non-Hindus and that many eminent and respected persons in the country have not hesitated to preside over its functions or appreciate the work of its volunteers. In a country like ours which has accepted the democratic way of life (as ensured by the Constitution), it would not be within reason to accept the proposition that mere membership of such peaceful or non-violent association and participation in activities thereof, will render a person (in whose character and antecedents there are no other defects) unsuitable to be appointed to the post of a Munsif.
18. In support of his argument that the tenets and ideology of the R.S.S.S. are subversive and opposed to secularism, the learned Advocate-General has drawn our attention to certain passages on pp. 11 and 13 of the 'Sangha Darshan.' He read the following passage under the heading 'Truth About Our Nation-hood' :
'Even a cursory perusal of our history shows that, since times immemorial, Hindus have grown up as the true children of this soil. To them it is more than a motherland, a holy land. Generation after generation, the flower of their heroic manhood have offered their life-blood in defence of her freedom. They have held aloft the banner of her sacred religion and culture. They wrote her holy books, the Ramayana and the Maha Bharata, the Gita and the Vedas. They produced great saints and rishis who set up the highest standards in each and every walk of national life. Therefore, without a shadow of doubt, Hindus are the real builders of the national life of this land, its real nationals. In a nutshell, this is Hindu nation.'
19. The second passage read over to us is on p. 13 and it reads :
'The prophecy which Doctor ji had uttered came true when the British left Bharat. Even if the British are forced to quit, for whatever reasons unless the Hindus are well-organized as a powerful nation, where is the guarantee that we shall protect our freedom That was his prophetic query. The answer to it came in the form of the creation of Pakistan. History repeated itself. Alas, the only lesson that we learn from our history is that we do not learn anything from history; big slices of our motherland, half of Punjab, half of Bengal, Sindh and the Frontier Province once again fell into enemy hands.'
20. These two passages merely mention some details of history, though their language may appear to be somewhat vehement and aggressive. None can deny that the Hindus have always regarded India as their motherland or that the Ramayana, the Maha Bharat, the Gita and the Vedas have contributed to build up the spiritual and cultural life of our country. To say that they are real builders of the national life of this land, is merely stating a certain point of view. The second passage contains references to Pakistan as an unfriendly country. This pamphlet is of the year 1964 and these passages should be appreciated in the context of the circumstances which prevailed at about that time. Certain border incidents had given rise to the view that Pakistan had hostile intentions towards India. The atmosphere was charged with a sense of danger to India. Leaders whether political or not, irrespective of their religious faiths, considered it their patriotic duty to call on the people to defend the country against the threats from Pakistan. Subsequent military events justified the call of the Indian leaders asking the people to be 'alert' and 'vigilant' about the military activities of that neighbouring country. The above passages cannot be reasonably understood as justifying the allegations made against the R.S.S.S. in the counter-affidavit of the State. The passage neither preach violence nor hatred against any section of the citizens of India. It is not even alleged that the petitioner advocated any communalism at any time or participated in any activity calculated to create hatred or bitterness amongst the sections of the public.
21. In these circumstances, we are satisfied that the mere fact that the petitioner was a member of the R.S.S.S. and participated in its activities, is a consideration which is irrelevant for the purpose of determining his suitability for appointment to the post of a Munsif. (But, we wish to make it clear that we express no opinion on the question whether on appointment to a post in connexion with the affairs of the State, the appointee cannot be validly required, either under the conditions of service or otherwise, not to associate himself with any particular association or body. Such a question does not arise in the present case and it is, therefore, unnecessary to refer to the law on that point.)
22. It is necessary to refer to two decisions which have been relied upon by the Advocate-General. One is a decision of single Judge of the Allahabad High Court in Ravindra Kumar v. State : AIR1961All361 . The other is a decision by a Bench of two Judge of the Kerala High Court in K. George v. State of Kerala [1964 - I L.L.J. 565]. Both these pertain to the competence of the Government under rules similar to the present rule 4(2) to refuse to appoint a candidate who was successful in the examination for the post of a Munsif. In both these cases, the challenge to the validity of the concerned rule was negatived while the decision of the Government was upheld. But there are certain features in the facts of these two decisions which, in our opinion, distinguish them from those of the case on hand. In the Allahabad case, the concerned successful candidate had been convicted in 1949 and sentenced to three months' imprisonment for offering satyagraha in connexion with the ban on the R.S.S.S., and again in 1953 he had been convicted and sentenced to twenty-one days' imprisonment for breach of an order directing him to leave Delhi in connexion with the satyagraha carried on for the 'Save Kashmir Movement.' These antecedents of the candidate did have a bearing on the view taken by the Court, in that case. In Para. 10 at p. 364, the learned Judge has stated as follows :
'The satyagraha agitations of 1949 and 1953 were a challenge to the lawful authority of the Government and an attempt to bring pressure to bear on the Government by resorting to coercive tactics unsanctioned by normal democratic procedure; and it may be argued with some justification that a person who is prepared to participate in activities of that kind will not have the cool detachment, freedom from bias and respect for the law that is expected of a judicial officer.'
23. In the present case, there is neither any allegation nor any material to show that the petitioner had ever indulged in any such objectionable activity as offering a challenge to the lawful authority of the Government.
24. In the Kerala case above refereed to, the successful candidate was found to be a communist. Their lordships referred to the findings of a conference of the Privy Councillors in England, to the effect that the communist faith overrides a mean's normal loyalties to his country and induces the belief that it is justifiable to hand over secret information to the Communist party or to the Communist foreign power. They further observed that if the State came to the conclusion bona fide and refuses to appoint a dedicated communist to a post in which his loyalty to the State is of paramount importance, a Court would not be justified in altering the conclusion and directing an appointment. Further, in that case, the file relating to the concerned candidate was placed before their lordships and after looking into the same, they were satisfied that the conclusion of the Government had not been based on irrelevant considerations.
25. From the materials placed before us, it cannot be said that the objection which as was available in the Kerala case, against a communist, is tenable in respect of the petitioner. It is not said that there is anything else, amounting to a defect in the character or antecedents of the petitioner.
26. From what has been stated above, it is clear that the opinion of the Government that the petitioner is unsuitable to be appointed to the post of a Munsif, has been founded on the irrelevant consideration of the petitioner having been a member of the R.S.S.S. and in his having participated in the establishment of its branch unit in his town. The opinion founded on irrelevant consideration is arbitrary and therefore unacceptable to the Court; the petitioner is not, therefore, disqualified for appointment on the ground of his unsuitability under rule 4(2) of the rules. There is nothing to stand in the way of the petitioner's right, under the rules, to be appointed in accordance with his rank in the list as per Ex. B. It is not quite clear from the averments in the petitioner's affidavit as to whether the medical board has found him physically fit for being appointed to the post.
27. In the result, we hereby direct that subject to the petitioner being found fit by the medical board, the respondent 1 State shall appoint the petitioner to the post of a Munsif, placing him above respondents 2 to 8. The petitioner shall get his cost from respondent 1. Advocate's fee Rs. 200.