1. A Selection Grade Professor in the Department of Collegiate Education of this State, being aggrieved by his supersession, for appointment to the post of the Director of Collegiate Education, and the appointment of his junior to that post, has presented this writ petition.
2. The case of the petitioner is as follows : He had put in a service of 13 years as Professor and 14 years as Reader and had also worked as Principal for 9 years before June, 1977 when the post of the Director in the Collegiate Education Department became vacant. According to the Karnataka Education Department Services (Collegiate Education Department) (Recruitment) Rules, 1964 hereinafter referred to as 'the Rules', the post is required to be filled up either by promotion, by selection from among Professors (Selection Grade) or by the appointment of an I.A.S. Officer. On the basis of service record and merit he was entitled to be promoted being the seniormost Professor (Selection Grade). He was superseded on extraneous considerations and his junior the 2nd respondent was appointed by order dated 30th June, 1977. He states that he has been subjected to unjust discrimination in violation of the fundamental rights guaranteed under Arts. 14 and 16(1) of the Constitution.
3. The 2nd respondent has filed the statement of objections. She has asserted that the post of Director being a selection post, selection and appointment has been made in accordance with the Rules and there is no violation of the Recruitment Rules or of any constitutional provisions. It was submitted on behalf of the State Government that the petitioner cannot complain of the infringement of any of his legal or constitutional rights because before making the impugned appointment the case of the petitioner was considered along with that of the 2nd respondent, and the Government selected the 2nd respondent. In support of the case of the 1st respondent, the original records relating to the consideration of the cases of the petitioner and the 2nd respondent were produced.
4. A perusal of the records on which reliance was placed to show that the case of the petitioner was duly considered, discloses that a few weeks before 12-6-1977, on which date the previous Director was due to retire, the question of filling up the vacancy was engaging the attention to the State Government. There was a suggestion to appoint an officer belonging to the Indian Administrative Service. After considering the above suggestion, the Chief Secretary opined that, the post of the Director being a non-cadre post, it is not possible to spare the services of an I.A.S. cadre officer, as there was severe shortage of officers belonging to that category even to fill up cadre posts. Thereafter he gave his opinion on 26-5-1977 as follows :
'* * * * *(11) The post of Director of Collegiate Education should, in normal circumstances, be filled up by promotion by selection from among the Professors (Selection Grade) so that the limited promotional opportunities of the Professors are safeguarded. Since eligible persons from among the cadre of Professors (Selection Grade) are available, the post of Director of Collegiate Education should be filled up by promotion of a Professor (Selection Grade) with requisite merit.
(12) Sri B. Virupakshappa is the senior most person among the Professors (Selection Grade) eligible for promotion.
'He has a fairly good record of service, both as a Teacher and as a Principal. Sri B. Virupakshappa may be promoted and appointed as Director of Collegiate Education vice Sri S. M. A. Hameed who will retire from service on 30-6-1977 (A.N.)'
Below the said note the Minister for University Education wrote as follows on 28-6-1977 :
'This office requires a person who will have a long tenure. Virupakshappa has a good record, but he will retire within two years. Mrs. Salve Das has a long term and equally good record. She is also senior. She may kindly be appointed as the Director of Collegiate Education.'
The Chief Minister agreed with the Minister. Accordingly the order of appointment dated 30-6-1977 was issued.
5. After the above disclosure, Sri K. Channabasappa, learned counsel for the petitioner, submitted that the records clearly prove that the petitioner was unjustly superseded on an irrelevant consideration, namely, that he had only two years service, i.e., he is due to retire on 30-6-1979. He submitted that there is no rule framed under Art. 309 of the Constitution or any order issued in exercise of the executive power which lays down that persons with any prescribed minimum balance of service alone are eligible to be appointed as Heads of Department and in the absence of any such rule, supersession of the petitioner on the ground that he had only two years of service, is contrary to Recruitment Rules and he has been subjected to unjust discrimination in violation of Arts. 14 and 16(1) of the Constitution.
6. The learned Advocate General argued that all that the petitioner was entitled to was to have his case considered along with that of the 2nd respondent, and as it is clearly established from the records that the case of the petitioner was considered, he could not complain of any discrimination. He further submitted, the consideration that the petitioner had only two years of service, on the basis of which he was not selected is a relevant consideration. Sri V. A. Mohan Rangam, learned counsel for respondent 2 also made this submission on the above lines.
7. With this background I shall now proceed to consider the rival contentions. The method of recruitment to the Director of Collegiate Education is regulated by the Rules framed by the Governor under proviso to Art. 309 of the Constitution. The relevant portion of the Rules reads as follows :
MinimumCategory Method of qualificationsof posts. Recruitment. and period ofprobation.(1) (2) (3)1 Director of By promotion byCollegiate selection fromEducation among Professors.(Selection Grade)or by appointmentof an IAS Officer.
As can be seen from the above provision, it was open for the Government to appoint an I.A.S. Officer; if not, the post is required to be filled up by promotion by selection from among Professors (Selection Grade). Rules do not prescribe that Professors having any prescribed minimum balance of tenure of service are only eligible for selection and appointment. It is also not disputed on behalf of respondents 1 and 2, that there are no orders issued by the State Government prescribing any such condition of eligibility. Therefore, the petitioner was fully eligible for appointment and this is also not controverted by the respondents.
8-9. The procedure required to be adopted in making appointments by promotion is prescribed under Rule 4 of the Karnataka State Civil Services (General Recruitment) Rules, 1957. The said Rule reads as follows :
'4. Procedure of Appointment : Subject to the provisions of these rules, appointments to the State Civil Services shall be made -
(1) & (2) * * * (3) in the case of recruitment by promotion, -
(a) if it is to a selection post or to a post to be filled by promotion by selection -
by selection of a person, on the basis of merit and suitability in all respects to discharge the duties of the post with due regard to seniority from among persons eligible for promotion; (b) to a post other than that referred to in sub-clause (a), by selection of a person on the basis of seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion'.
The above Rule prescribes the procedure for the two well-known methods known in the service parlance, viz, (i) promotion by selection and (ii) promotion by seniority cum-merit. It is also well-settled that fundamental right of equality in matters relating to employment guaranteed to every citizen under clause (1) Art. 16 of the Constitution extends to the consideration of the cases of civil servants for promotion in respect of both the methods. See General Manager, S. Rly. v. V. Rangachari, : (1970)IILLJ289SC and State of Mysore v. Syed Mahmood, : (1970)ILLJ370SC . The scope and extent of the rights of civil servants which flow from the provisions of Arts. 14 and 16(1) of the Constitution read with Rule 4 of the General Recruitment Rules may be summarised as follows :
(i) Seniority-cum-merit method Rule 4(3)(b) of the Rules :
In the seniority-cum-merit method every civil servant is entitled to have his case considered for promotion in the order of his seniority when the posts in the next higher cadre are required to be filled up by promotion. In this method, seniority takes the first place. There is no question of comparing the merit and suitability of a senior official with those of his juniors. If the seniormost civil servant has acquired the qualification or eligibility, if any, prescribed for promotion, if having regard to the service record including confidential reports he is found fit for promotion, he has a right to be promoted. If, however, on such consideration, the senior civil servant is found not fit for promotion, then the authority proceed to consider the case of his junior. This process has to be continued till existing promotional vacancies are filled up as also as and when the vacancies arise. A senior civil servant, whose case is rejected after proper consideration, cannot complain of any discrimination. If the case of senior civil servant is not considered for promotion or promotion is denied to a senior civil servant on any irrelevant considerations he can complain of the violation of Rule 4 and also of Arts. 14 and 16(1) of the Constitution. (ii) Promotion by selection Rule 4(3)(a) of the Rules : In the selection method prescribed under Rule 4(3)(a) of the General Recruitment Rules, merit and suitability takes the first place and seniority takes the secondary place and becomes relevant only when two or more persons are adjudged equivalent after assessing their merit and suitability. The procedure required to be followed is that the service records and confidential reports of all the officers eligible for promotion by selection, or if the number of eligible officers compared to the number of posts required to be filled up is unduly great then such number of officers in the prescribed proportions, to the number of vacancies required to be filled up should be considered. There should be a comparative evaluation of the merit and suitability of all the officers, eligible for consideration and the names should be arranged in the order of merit and appointments should be made in the same order. Both having regard to the wording in Rule 4, according to which the selection of a person for promotion should be made on the basis of merit and suitability in all respects to discharge the duties of the post with due regard to seniority from among persons eligible for promotion, as also the right for equality enshrined in Arts. 14 and 16(1) of the Constitution a senior person has to be preferred when the merit of two or more officers is considered equal. If the merit is unequal and a junior officer is considered more meritorious than the senior, then seniority becomes irrelevant. The selection, however, should be made on proper basis. If selections are made arbitrarily or on irrelevant basis then also aggrieved persons can complain of violation of Arts. 14 and 16(1) of the Constitution.
10. Coming to this case, the records disclose that the cases of the petitioner and the 2nd respondent were considered. Their qualification and service records were put up. While the Chief Secretary recommended the selection and appointment of the petitioner, the Minister of University Education considered the record of both the petitioner and the 2nd respondent. He opined that the petitioner has a good record and the 2nd respondent has equally good record. But he rejected the case of the petitioner for appointment only on the ground that he will retire within two years and favoured the appointment of the 2nd respondent on the ground that she has longer service.
11. The learned counsel for the petitioner contended that having regard to Rule 4(3)(a) of the General Recruitment Rules which provides for having due regard to seniority from among persons eligible for promotion also clause (1) of Art. 16 of the Constitution which confers fundamental right of equality of opportunity in matters relating to employment under the State, which include promotion to a selection post, and equality before law guaranteed under Art. 14 of the Constitution, as on consideration of the cases of the petitioner and the 2nd respondent, the Government was of the opinion that they were of equal merit, the petitioner being the senior to the 2nd respondent, he should have been appointed, but he was denied on the basis of an irrelevant criterion, which was applied just to deny the legitimate claim of the petitioner and to favour the 2nd respondent.
12. In reply to the argument advanced on behalf of the petitioner that the petitioner has been denied of his fundamental right under Arts. 14 and 16(1) of the Constitution, the learned Advocate General submitted that there was no such violation. Elaborating his contention he submitted that the right of a civil servant in respect of promotion to a selection post consists only in having his case considered. Once it is established that the case of the petitioner had been considered there is no further right which the petitioner can seek in enforcement of the right of equal opportunity in matters relating to employment under the State. In support of this submission he relied on the decision of the Supreme Court in Sant Ram v. State of Rajasthan, : (1968)IILLJ830SC . The relevant portion on which he relied reads as follows :
'We pass on to consider the next contention of Mr. N. C. Chatterjee that if the executive Government is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Art. 309, there will be a violation of Arts. 14 and 16 because the appointment would be arbitrary and capricious. In our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner along with the other eligible candidates before appointments to the selection posts there would be no breach of the provision of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotions to those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record-sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered along with respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1965 or to the rank of Inspector General of Police or Additional Inspector of Police in 1966. There was, however, a vague suggestion made by the petitioner in para 68 of his rejoinder petition dated July 17, 1967 that 'the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit.' Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paras 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 and 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are, therefore, of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 and 4 to the selection posts. We must, therefore, proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 and 4 to the selection grade posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution in the present case.'
On the basis of the above authority he submitted that as the case of the petitioner has been considered, the petition is liable to be rejected.
13. The argument of the learned Advocate General means that in view of the decision in Santaram's case so long the case of a civil servant concerned cannot complain of discrimination. Acceptance of the argument of the learned Advocate General would lead to startling results. To illustrate, if the cases of two civil servants, viz., A and B are considered for promotion by selection to a higher post by the Government and the records disclose that A was selected but B was placed lower in merit or found not suitable, but B was appointed arbitrarily without any reason or by assigning an irrelevant reason. A cannot complain of discrimination as his case has been considered. I am unable to agree. That is not how the above judgment of the Supreme Court should be understood or interpreted. The law laid down by the Supreme Court in the above decision, is, that in the case of promotion by selection, if the cases of all eligible candidates had been considered, a civil servant whose case was considered fairly and rejected on merits cannot complain of violation of Arts. 14 and 16(1) of the Constitution, and a decision so taken on merits is not justiciable, because it is not open for the Court to reassess the comparative merits of the civil servants and to come to a different conclusion, and not that even in a case, where the consideration itself is vitiated by arbitrariness or by the taking into account of irrelevant consideration there can be no complaint of discrimination. In this behalf it is necessary to point out that the Supreme Court has set aside the selections and directed reconsideration of selection in cases where the procedure in making selection for promotions was found not fair being opposed to natural justice or where the consideration was found to be arbitrary. Reference in this behalf may be made to the following decisions : A. K. Kraipak v. Union of India, : 1SCR457 ; Janaki Prasad v. State of J. and K., : 3SCR236 ; Union of India v. M. L. Capoor, : (1973)IILLJ504SC .
Similarly when promotions were denied by the State Government on the ground of not passing departmental examination, which was not prescribed for promotion, this Court held that promotions cannot be denied on such irrelevant considerations and the said judgment was confirmed by the Supreme Court in Chief Secretary v. On In Chandriah, (1967) S.L.R. 155 (S.C.) Similarly when a junior was preferred for promotion on the ground that he was a good sportsman, it was held by a Division Bench of this Court that promotion could not be denied to a senior on such irrelevant considerations in Ramdas v. State of Mysore, (1965) Mys. L.J. (S.N.) 48 : (W.P. No. 1275 of 1962, D/- 25-11-1964). The Supreme Court in one of its decisions has also held that if even after a direction to consider the case of a civil servant is issued to the appointing authority the promotion is arbitrarily denied, the Court can issue a writ of mandamus to the authority to promote the civil servant, if the facts of the case justify. The said decision is State of Mysore v. Syed Mahmood, : (1970)ILLJ370SC . The relevant portion of the judgment which is reported in : (1970)ILLJ370SC reads as follows :
'We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuse to promote them, different considerations would arise. The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959.'
Following the said decision, a Division Bench of this Court in the case of K. Krishna Shastry v. State of Mysore, Writ Petition No. 1824 of 1968, D/- 31-7-1972 (Kant) issued a writ of mandamus to promote the petitioner therein who was an officer of the Horticulture Department as his case for promotion was denied arbitrarily after an earlier direction to consider his case for promotion. Therefore, I do not see any force in the contention urged by the learned Advocate-General on behalf of the 1st respondent.
14. The next submission of the learned Advocate-General was that the criteria applied in rejecting the case of the petitioner and selecting the 2nd respondent, viz., that the petitioner had only two years of service of reach the age of superannuation and the 2nd respondent had longer service, was a relevant criteria. He argued that as the post was that of a Head of Department, in the interest of stability of administration, a person with longer tenure was preferred. He conceded that no such principle or criteria for making appointment to the posts of Heads of Department, had ever been laid down in any general rules, in the recruitment rules of the Collegiate Education Department, or even by any executive order. In the absence of any such rule or criterion laid down earlier, it is not possible to accept the contention that the criteria applied against the petitioner was a relevant criterion. The rejection of the case of the petitioner solely on the ground that he had only two years' service smacks of arbitrariness and discrimination and violates the equality before law and equal opportunity in matters relating to employment under the State enshrined in Arts. 14 and 16(1) of the Constitution. In order to ensure that any rule or criteria, in the matter of eligibility for appointment to higher posts under the State, is not arbitrary or discriminatory against one individual or meant to favour another, must be general in its application to all similar cases and must be made public and known to all the concerned civil servants. In this case, as stated earlier, the criterion was evolved at the last moment. It does not find a place in the note prepared by the Chief Secretary. He did not consider that the petitioner was not suitable for appointment on the ground that he had only two years' service. The evolving of and the application of the aforesaid criteria is not justified by furnishing reason in the form of statement of objections. It is not explained how a period of two years can be considered as such short period, rendering a departmental officer otherwise suitable for appointment as the Head of the Department as ineligible in the face of Rule 15(1)(b)(i) and (4) of the Karnataka State Civil Services (General Recruitment) Rules, 1977, promulgated by the Governor under proviso to Art. 309 of the Constitution, on 25th June, 1977 itself, in which it is provided that in the absence of a suitable departmental officer for promotion to the post of Head of the Department, a person, who is not in the service of the Government, can be appointed as Head of the Department on contract basis for a period of not exceeding one year at a time. No materials is placed to show, whether at any time earlier such a criterion was applied in any case or that no person with a balance of two years of service or less was ever appointed as the Head of the Department. The petitioner was not made known about the criteria. It came to light only when the records were produced before this Court. If an outsider can be appointed to the post of Head of the Department for one year, there is absolutely no reason as to why a departmental officer cannot be appointed when he has two years of service. A rule or criterion cannot be evolved secretly and just at the moment which favours one individual and discriminates against another. This is of utmost importance to ensure equality before law which is the essence of Rule of law. Explaining that the essence of our constitutional system is the Rule of law, the Supreme Court in Jaisinghani v. Union of India, : 65ITR34(SC) , in which case quota rule was being changed and disobeyed from time to time by the Central Government, observed as follows :
'In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey - 'Law of the Constitution' - Tenth Edn., Introduction ex). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlich,  343 U.S. 98, 'when it has freed man from the unlimited discretion of some rules. Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes,  4 Burr 2528 at p. 2539 'means sound discretion guided by law. It must be governed by rule not by humour : it must not be arbitrary, vague and fanciful'.
15. In the light of the above discussion and the principles laid down by the Supreme Court, I hold that the rejection of the case of the petitioner for appointment to the post of Director of Collegiate Education on the ground that he had only two years of service, a criterion not fixed in any rule or order, was arbitrary and discriminatory, consequently violative of Arts. 14 and 16(1) of the Constitution.
16. Sri Mohan Rangam, learned counsel for the 2nd respondent, faintly urged that the 2nd respondent was senior to the petitioner. He submitted that the petitioner was deemed to have been promoted as Professor with effect from 21-3-1964 whereas the 2nd respondent was working as Professor from 4-7-1966. However, he did not dispute that in the gradation list prepared after review of promotion on the basis of the final inter-State seniority list published in accordance with the decision of the Government of India under S. 115(5) of the States Reorganisation Act read with the provisions of Karnataka State Civil Services (Regulation of Promotion. Pay and Pension) Ordinance, 1973 the petitioner is senior to the 2nd respondent. In fact, it is not the case of the 1st respondent that the petitioner was junior to the 2nd respondent. As pointed out earlier records also disclose that the petitioner is senior to the 2nd respondent. Therefore, there is no substance in the contention of the learned counsel for the 2nd respondent that she was senior to the petitioner.
17. Before concluding, it is necessary to take note of another submission made by the learned Advocate-General. He submitted that, as out of the two years of service which the petitioner had, one year is already over during the pendency of the writ petition and further as the 2nd respondent is already working and her displacement causes inconvenience and hardship to her there is no sufficient justification for interfering with the appointment of the 2nd respondent. I do not see now these considerations can weigh with the High Court which is entrusted with the power and duty to protect the fundamental rights of citizens, when encroachment of rights by the State is established. The petitioner cannot be blamed for the delay of one year in the disposal of this writ petition. He has approached the Court within a fortnight after the impugned order was made. Acceptance of any such arguments would only mean that as justice has been delayed by one year, let it be denied for ever. Any refusal by this Court to give relief on such grounds would amount to denial of relief on the basis of as extraneous a ground on which the petitioner was denied promotion by the Government. I appreciate the hardship and inconvenience that is likely to be caused to the 2nd respondent if her appointment is upset, but at the same time I cannot ignore the disappointment and frustration that will be caused to the petitioner if relief is denied on such grounds. Moreover, any such refusal is sure to undermine the faith of the citizens in the fundamental rights enshrined in the Constitution and the judiciary entrusted with the power and duty for their enforcement. In this behalf I can do no better than to quote the observations made by the Supreme Court while upsetting certain appointments made by this State in violation of Art. 16(1) of the Constitution in the case of Channabasavaiah v. State of Mysore, : 1SCR360 . The relevant portion reads as follows :
'It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and selected candidates do the right thing. If any blame for the inconvenience is so be placed it certainly cannot be placed upon the petitioning candidates, the candidates whom this order displaces or this Court.'
Therefore, I cannot accede to the submission of the learned Advocate-General not to grant the relief on the grounds mentioned earlier. If the Government wanted to avoid any such situation, as the petitioner was found fit for appointment except on the ground of the balance of his tenure of office, it was open for the Government to do justice to the petitioner during the pendency of this petition by appointing him also by creating an additional post in the same cadre, so as to mitigate the hardship to the petitioner and the 2nd respondent, as sometimes done by the Government. They have not done so far. Even now, after the issue of the writ in this case, the 1st respondent is at liberty to create an equivalent post to do justice to the petitioner and avoid hardship to the 2nd respondent.
18. Now coming to the nature of relief that should be granted to the petitioner, the petitioner has prayed for quashing the appointment of the 2nd respondent and for a direction to the 1st respondent to consider his case for appointment according to law. I consider that full relief can be granted to the petitioner without quashing the appointment of the 2nd respondent which would create immediate difficulties in the administration of the Collegiate Education Department, but by directing displacement of the 2nd respondent after decision is taken in pursuance to the writ issued in this case.
19. For the reasons aforesaid, I make the following order :
(i) Rule is made absolute.
(ii) A writ in the nature of mandamus shall issue to the 1st respondent directing them to review the selection and appointment made to the post of Director of Collegiate Education, on the basis of the circumstances and facts as they stood at the time when the 2nd respondent was selected and appointed without reference to the balance of tenure of service of the petitioner, and if on such reconsideration, decision is taken by the Government to appoint the petitioner, he shall be appointed as Director of Collegiate Education, displacing the 2nd respondent from that post, and the petitioner shall be given all consequential benefits permissible under the law.
(iii) As the petitioner is due to retire by the end of June, 1979, I further direct that the above direction shall be complied within one month from today.
(iv) The petitioner shall be entitled to the costs of this writ petition. Advocate's fee quantified at Rs. 250.