Somnath Iyer, J.
1. This is the second occasion on which the announcement of the names of successful candidates by the Mysore Public Service Commission under the provisions of the Mysore Munsiffs (Recruitment) Rules, 1958 which will be referred to as the Rules is under impeachment before this Court. Those Rules were made by the Governor in the exercise of the power conferred on him by Article 234 of the Constitution. The conduct of a comprivate examination for the selection of the most suitable persons for appointment as Munsiffs was the main purpose of these Rules.
2. Rule 6 directed the Mysore Public Service Commission which will be referred to as the Commission to conduct for that purpose a comprivate examination consisting of a written examination and a viva voce examination. The written examination was held on two days in 1960 and the viva voce examination commenced on March 1, 1961 and continued until March 10, 1961. On May 22, 1961 the Commission published a list of those candidates who, according to its determination, had been successful in the examination and therefore entitled to be appointed as Munsiffs. But the validity of that list was challenged in Writ Petition No. 848 of 1961 and other companion matters, and, this Court by the order which it made on September 4, 1961 quashed that list, firstly on the ground that the Commission had without competence prescribed the qualifying marks and secondly for the reason that the viva voce examination did not conform to the Rules.
3. On April 16, 1962 the Governor who alone, according to this Court, had the competence to prescribe the minimum qualifying marks, amended Rule 6 by adding a proviso to it according to which 55% of the aggregate marks had to be secured by a candidate to succeed in the examination. That amendment was followed up by a fresh viva voce examination conducted by the Commission on June 20, 1962, and, the names of successful candidates were thereafter announced by the Commission on July 6, 1962. The petitioner who is an unsuccessful candidate challenges this announcement.
4. That Rule 5 which enumerates the conditions of eligibility for the post of a Munsiff transgresses the provisions of Article 16 of the Constitution and therefore vitiated the comprivate examination was the first submission made before us. It was said that since the qualifications prescribed by that rule were relaxed in some measure in the case of persons belonging to the Scheduled Castes and Scheduled Tribes, there was a deprivation in the case of others of the equality of opportunity guaranteed by Article 16 of the Constitution in the matter of appointments to civil posts under the State.
5. Now the relevant portion of Rule 5 on which this argument rests reads:
5. 'Conditions of Eligibility -- No person shall be eligible for appointment as Munsiff by the methods specified in column (1) of the following Table unless he possesses the qualifications specified in the corresponding entry of column (2) of the said Table : TABLE_______________________________________________________________________Method ofappointment. Qualifications.(1) (2)_______________________________________________________________________(1) Must be a citizen of India.By com- a(2) Must have attained the age of 33 years,private and not have attained, in the case ofexamine a candidate who possesses the qualifica-nation, tions specified in sub-item (ii) of item(4), the age of 40 years; in the case of acandidate who possesses the qualificationspecified in sub-item (i) of item (4), theage of 37 years if he belongs to theScheduled Castes or the ScheduledTribes,35 years if he does not belong to theScheduled Castes or the ScheduledTribes.On the last date fixed for submissionof applications)(3) .... ....b(4) (i) Must be practising in Courts of Civil and Criminal jurisdiction in India four for immediately a period of not less than years before the last date fixed forthe submission of the application bythe candidate; or(ii) must be a stationary Sub-Magistrate,or Magistrate of the First Class, or apolice prosecutor or Assistant PublicProsecutor in any of the CriminalCourts in the State, or a ministerialemployee of the High Court or anyCourt subordinate to the High Court orin the Law Department of the MysoreGovernment Secretariat, the total periodof service and the period of practice,if any, together, being not less thanfour years immediately before the lastdate fixed for submission of the application by the candidate:Provided that in the case of a candidatebelonging to a Scheduled Caste or aScheduled Tribe, the period for purposesof sub-items (i) and (ii) must not beless than three years.. . . .' _______________________________________________________________________
6. It was pointed out that whereas a person who does not belong to the Scheduled Castes or the Scheduled Tribes and who has attained the age of 35 years is ineligible to be appointed a Munsiff, one who belongs to the Scheduled Castes or the Scheduled Tribes is entitled under Rule 5 to be so appointed so long as he has not attained the age of 37 years. Then again, it was pointed out that whereas a person belonging to the Scheduled Castes or the Scheduled Tribes, and who has practised as a Lawyer for at least three years is qualified to be so appointed, the requirement of the rule is that one who is not a member of the Scheduled Castes or the Scheduled Tribes should have so practised for a longer period of four years. That persons who are not members of the Scheduled Castes or the Scheduled Tribes were thus subjected to unequal treatment is the complaint.
7. The applicant before us on whose behalf this argument is advanced is a candidate who does not belong to the Scheduled Castes or the Scheduled Tribes. Among those successful candidates whose names were announced by the Commission, there is none belonging to the Scheduled Tribes and only one person belonging to a Scheduled Caste by the name of Aryamitra. It is undisputed that on the last day fixed for submission of applications which is the relevant date, he was not a person with a standing of at least four years in the legal profession and would not therefore have been allowed to take the examination had he not been a member of a Scheduled Caste. The question is whether the petitioner can ask us to annul the announcement made by the Commission on the ground that Rule 5 did not prescribe a uniform pattern of qualifications for all the candidates aspiring to be employed as Munsiffs, but prescribed fop persons of the Scheduled Castes and the Scheduled Tribes qualifications inferior to those prescribed for others.
8. Sustenance for the argument that lower and inferior standards are not permitted by the Constitution even for those who belong to the backward classes of citizens referred to in Article 16(4) was sought to be drawn from the provisions of Article 335 of the Constitution, the emphasis of which, it was pointed out, was on the maintenance of efficient administration in the making of appointments to services and posts in connection with the affairs op the Union or of a State, even in the consideration of the claims of the members of the Scheduled Castes and the Scheduled Tribes.
9. That Article reads:
335. 'The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.'
10. That Article 16(4) did not authorise the complete effacement of the fundamental right created by Clause (i) or the total disregard of the prohibition against discrimination forbidden by Clause (2) of Article 16 even when the State makes a reservation for the backward classes of citizens under Clause (4) is, according to the petitioner, what the Supreme Court said in General Manager, Southern Rly. v. Rangachari : (1970)IILLJ289SC . That prescription of qualifications is one of those matters in regard to which even Clause (4) of Article 16 does not authorise any discrimination in transgression of Clauses (1) and (3) of Article 16 was the argument advanced before us, and the following observations at page 42 of the report were referred to us in support of that submission:
'On one point in relation to the construction of Article 16(4) the parties are in agreement. It is common ground that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Articles 16(1) and (2) do not fall within the mischief of non-obstinate clause in Article 16(4) for instance, it is not denied by the appellants that the conditions of service relating to employment such as salary, increment, gratuity, pension and the age of superannuation there can ,be no exception even in regard to the backward classes of citizens. In other words, these matters relating to employment are absolutely protected by the doctrine of equality of opportunity and they do not form the subject-matter of Article 16(4). That is why we have just observed that part of the ground covered by Article 16(1) and (2) is admittedly outside the scope of Article 16(4)...............'
11. In defence of the prescription of lower qualifications for persons of the Scheduled Castes and the Scheduled Tribes, Mr. Advocate General depended upon Article 16(4) of the Constitution which confers power on the State to make suitable reservation for the amelioration of persons belonging to the backward classes. The power claimed under that constitutional provision was the power not only to earmark a certain proportion of civil posts in the State for persons considered by the State to be backward, but also the power to relax in cases in which the appointments to those civil posts had to be made through a comprivate examination, the conditions of eligibility. The postulate was that in the power to make the reservation authorised by Article 16(4) was implicit the power to make such relaxation without which, it was submitted, that the implementation of the reservation was impracticable.
But in support of the argument that Article 16(4) did not bestow power to prescribe different qualifications for different sets of persons for appointments to civil posts when those appointments have to be made by a comprivate examination, and that that is how that constitutional provision has been understood by this Court. Our attention was drawn to the following observations in Chandrasekhar v. State of Mysore, 40 Mys LJ 87: (AIR 1963 Mys 292) at p. 103 of the report (Mys LJ) : (at pp. 299-300 of AIR) while discussing the old proviso to Rule 12:
'This Proviso does no more than to state that when making the appointment the reservation made by the State under Article 16(4) of the Constitution shall be implemented. The proviso in terms, refers to general or special rules made by Government, and those rules can be no other than those made by the State Government for the reservation of appointments and posts under Article 16(4). It does not authorise any discrimination like the one made by the Commission between two classes of candidates in the matter of fixation of qualifying marks. Moreover, the reservation to be made under Article 16(4) is what may be made by the State and not by the Governor enacting rules either under the proviso to Article 309 or under Article 234, and the fixation of a smaller percentage of marks for success in a comprivate examination, being no' reservation in any sense of the term under Article 16(4), is not one which even the State can make. It is, however, unnecessary to pursue this discussion or to express any definite opinion on this question since the fixation of qualifying marks by the Commission was itself, in my opinion, not within its competence.'
These observations were made in that case in the Context of the argument advanced that the prescription of a lower qualifying minimum for candidates belonging to the Scheduled Castes and the Scheduled Tribes by the Commission in that case was not within the competence of the Governor, and therefore much less within the competence of the Commission, and not even possible for the State when it exercises power under Article 16(4) of the Constitution.
The argument constructed on the basis of what was said in that case is that it was not even possible for the State exercising power under Article 16(4) of the Constitution to prescribe different standards for different classes of persons aspiring for appointments to be made through a comprivate examination, and that a Governor making rules under Article 234 of the Constitution who has not even the power to make a reservation such as what could be made by the State under Article 16(4), could not therefore claim a power which was not even bestowed on the State.
12. If this criticism of Rule 5 is sound and if there was no other answer to it, the annulment of the impugned announcement of successful candidates by the Commission would be inevitable.
13. In my opinion, it is not necessary for us in this case to state anything beyond what was said in Chandrasekhar's case, 40 Mys LJ 87 : (AIR 1963 Mys 292) on the question whether in the area of the power created by Article 16(4) of the Constitution is included the power to prescribe for persons belonging to those backward classes referred to therein, standards lower than those prescribed for others in the matter of appointments to public offices in the State since this part of the challenge made to the impugned announcement of the Commission can be disposed of on other grounds.
14. Now the petitioner before us who asks us to take the view that Rule 5 infringes Article 16 of the Constitution was also one of those persons who challenged the list previously published by the Commission on May 22, 1961 which was condemned by this Court as one not properly made under the Rules. In that batch of writ petitions in which this Court made that pronouncement, many criticisms were made of the comprivate examination conducted by the Commission. But the only criticisms which commended themselves to this Court were some of those which were directed against the viva voce examination and the prescription by the Commission of the minimum qualifying marks.
This Court thought that the written examination and what had been done by the Commission in the scheme of the examination until it conducted the viva voce examination were above reproach. The viva voce examination was, however, condemned as one which was radically at variance with that prescribed by the rules, besides having been conducted in some instances by an inadequate complement of the body of examiners appointed for that purpose by the rules.
There was, however, a discussion by this Court of the validity of the proviso to Rule 12 and I have already extracted what this Court said about it in the context of Article 16(4) of the Constitution. But this Court made it however plain that the written examination conducted by the Commission was beyond criticism and that the stage from which the imperfectly conducted comprivate examination could be continued was that at which the viva voce examination commenced. Not even the omission by the Governor to specify the qualifying marks in the Rules made by hint under Article 234 was in the opinion of this Court a factor which demanded another written examination since it was thought permissible for the Governor to make a rule for that purpose even after the announcement made by the Commission was quashed to enable the Commission to conduct another viva voce examination and to make a proper announcement of the really successful candidates under the Rules.
The argument that the prescription of qualifying marks by the Governor by a new rule made for that purpose would necessitate the conduct of another written examination and that the Governor had no power to make such rule after one part of the comprivate examination had been completed, was repelled and this is what was said about it at page 110 of the report (Mys LJ): (at p. 303 of AIR):
'It is unfortunate that the list prepared by the Commission, over which so much of public time and money have been expended, should be struck down, but the greater danger is the harm generated by appointments to public offices in plain transgression of the Constitution. It should, however, be open to the Governor to now make a rule determining the qualifying marks and to the Commission to conduct another viva voce examination in accordance with the Rules. If those things are done, the aggregate of the marks secured by a candidate in the written examination already conducted, and in the viva voce examination to be conducted hereafter, can form the basis for the determination of his success with reference to the qualifying marks specified in the Rule. Although it was strenuously argued that the enactment of a new rule specifying the qualifying marks would render necessary the conduct of another written examination so that both the candidate and the examiner might respectively make the preparation and the correction, with the awareness of the qualifying marks, it seems to me that argument is insubstantial. A candidate appearing for a comprivate examination, having as his target only the qualifying marks can scarcely hope to achieve any measurable degree of success and the duty of the examiner is only to award marks commensurate with the candidate's performance, the qualifying marks being no concern of his.' It was in accordance with this course of action suggested that a proviso was added by the Governor to Rule 5 specifying the minimum qualifying marks to be secured by a candidate for success in the comprivate examination. Those qualifying marks were prescribed for all the candidates including those belonging to the Scheduled Castes and the Scheduled Tribes. The Commission claims to have conducted in its turn another viva voce examination by eliminating from it the objectionable features which had marred the oral examination previously conducted by it.
15. Now, can the petitioner who was one of the applicants before us in that batch of writ petitions in which that part of the comprivate examination which had been conducted until the stage at which the viva voce examination was commenced was stated to be not open to any criticism, and who did not then before this Court urge any objection to Rule 5 which prescribed the conditions of eligibility such as the one now urged before us, advance before us a contention which if accepted would lead to the nullification of the entire examination including the notification by which the Commission invited applications. In my opinion, it is both good sense and good law that an objection which was available to the petitioner when he came to this Court on an earlier occasion and which was not urged by him cannot he permitted when he presents a subsequent application to make that contention the foundation of an argument which if accepted might result in the annihilation of even that part, of the comprivate examination conducted by the Commission the validity of. which was recognised on the earlier occasion. It is too well established that as in the case of all litigants a litigant who presents a writ petition must disclose the entire field of his challenge to what he complains against. If he is permitted to bottle up some part of his case so that he may again rest another writ petition on that part of the case at a subsequent stage, litigation would become interminable.
16. I am therefore disposed to take the view that the petitioner who did not in his earlier writ petition challenge the notification published under Rule 5 or the constitutionality of that rule is clearly precluded from making that challenge on this occasion.
17. It is possible, in my opinion, for us to reach by another route the conclusion that the criticism made of Rule 5 can really be of no assistance to the petitioner in this case. Although the submission made before us was that there was as infraction of Clauses (1) and (2) of Article 16 of the Constitution, it had to be admitted that one of the two parts of the rule had really no materiality in this case. The relaxation of the age limit in the case of members belonging to the Scheduled Castes and the Scheduled Tribes, which, according to the petitioner, was not permissible, it was admitted, had really no impact on the impugned announcement made by the Commission since no person belonging to the Scheduled Castes or the Scheduled Tribes who had attained the age of 35 years at the relevant time had been declared successful. The only person belonging to a Scheduled Caste is a certain Aryamitra and he was 34 years of age at the relevant time. It is thus plain that no person belonging to the Scheduled Castes or the Scheduled Tribes who could not have taken the examination if he had not belonged to that group, has been declared by the Commission to have been successful in the examination.
But it was urged that even this solitary person belonging to a Scheduled Caste had not practised as a lawyer during the minimum period ot four years prescribed for persons not belonging to the Scheduled Castes or Scheduled Tribes, and was nevertheless permitted to take the examination since a minimum of three years had been prescribed by Rule 5 for persons belonging to the Scheduled Castes and the Scheduled Tribes. If it had been necessary to examine the question whether such relaxation was not permissible, the question would have arisen whether we should quash that part of the list of successful candidates which contains the name of Aryamitra. But it is dear that is not what we can do in this case even if it had been possible for us to think that the prescription of a shorter standing at the bar for the Scheduled Castes and the Scheduled Tribes was what the Governor could not have done. When this application was presented before us all that had been done was that the Commission had announced the names of successful candidates tinder Rule 12. By that announcement made by the Commission those persons who were announced to be the successful candidates did not become Munsiffs since their appointments as Munsiffs still remained to be made under Rule 12. This application presented by the petitioner is not an application for quo-warrantor nor has Aryamitra been made a respondent to this application, and the stand taken for the petitioner was that it was not necessary for (he petitioner to make any of the 52 persons whose names are enumerated in the list published by the Commission parties to this application. It is therefore plain that we should not be justified in directing the deletion of the name of Aryamitra from the Commission's list even if it had been possible for us to think that such deletion is justified by the insufficiency of his standing in the bar.
18. There is one other way of looking at this question. Aryarnitra has secured more than the minimum qualifying marks in the examination and the petitioner has not. Aryamitra's inclusion in the Commisson's list is not challenged by any one who belongs to the forward classes and who had not practised in the bar for four years and was therefore not eligible to take the examination. As between the petitioner and Aryarnitra, the petitioner cannot complain that the petitioner has been subjected to any discriminatory treatment, since just as Aryarnitra was permitted 'to take the examination, the petitioner was also allowed to take it. The only complaint which the petitioner can make, if the argument advanced on his behalf is sound, is that some one who could riot have taken the examination if the qualifications prescribed for the petitioner had also been made applicable to that person had found it possible to take the examination, but, that, it is clear did not make it more difficult for the petitioner to succeed in the examination than if Aryarnitra had been excluded from it. Even if Aryarnitra had been excluded from the examination, the petitioner who had not secured the minimum qualifying marks would still have been eliminated by the Commission from the list of successful candidates. The position, therefore, is that Rule 5 which enabled Aryarnitra to compete along with the petitioner for the post of a Munsiff, to no extent diminished the chances or prospects of the petitioner succeeding in the examination, and that being so, from the point of view of the petitioner the fact that Aryamitra was also one of the candidates does not provide him with any assistance for the argument that the petitioner was subjected to any discrimination or unequal treatment.
19. Now what the petitioner asks us to do in this application is to quash the list prepared by the Commission. The argument founded on Article 16(4) of the Constitution does not, it is clear, assist the achievement of that purpose. In the circumstances of this case the only use to which the petitioner can employ that argument would be to secure the removal of Aryamitra's name from the list. But since even if that is done, the petitioner who did not secure in the examination the minimum qualifying marks still remains outside the list, he is not a person at whose instance we can issue a direction which can be of no use to him.
20. There being thus more than one reason why we should think that Clauses (1) and (2) of Article 16 cannot assist the petitioner, we must repel the argument, constructed on their foundation.
21. That there was no consultation with the High Court before Rule 6 was amended by the Governor was the next argument advanced. If it is possible to think that that consultation was not made, it would of course follow that since that amendment by the Governor has no efficacy the list prepared by the Commission would similarly have no utility. From the correspondence between the Government and this Court which has been made available to us by Mr. Advocate General, it is established that on December 30, 1961 the views of the High Court were invited about certain amendments proposed to be made by the Governor to Rules 6 and 12. The amendments that the Governor proposed to make to those rules were described as hereunder:
1. 'To Sub-rule (3) of Rule 6, the following proviso shall be added, namely:
'Provided that no candidate who obtains less than fifty five per cent of such aggregate marks shall be declared to be eligible for appointment as a Munsiff.'
2. For the Proviso to Rule 12, the following proviso shall be substituted and shall be deemed always to have been substituted namely:
'Provided that the selection of candidates for appointment shall be made in accordance with the provisions for the time being in force regulating reservation of appointments or posts in favour of Scheduled Castes, Scheduled Tribes and When backward classes of citizens.' On January 23, 1962 the Government was informed by this Court that this Court had no comments to offer about the amendments which the Governor proposed to make. It is stated in the counter affidavit of the Home Secretary and also of the Chairman of the Commission, that the Commission was also similarly consulted about those amendments. The papers which were made available to us by Mr. Advocate General reveal that the Commission was of the view that the maintenance of standards of efficiency in the judicial department demanded a higher qualifying minimum and 55% was accordingly suggested and this suggestion of the Commission that 55% should be the qualifying marks was accepted by the Governor. The Commission agreed to the amendment of Rule 12 and suggested a further amendment to Rule 6 prescribing a quorum for the meetings of the commission for the conduct of the viva voce examination. In accordance with the views expressed by the Commission Rule 6 was modified by the Governor by adding proviso to Sub-rule (3) of that rule prescribing 55% of the aggregate as qualifying marks. Sub-rule (5) was added (sic) prescribing a quorum for the meetings of the Commission for the conduct of the viva voce examination. Rule 12 was amended as originally proposed. These amendments were all made on April 18, 1962.
22. The complaint made before us is that the two amendments made to Rule 6 are not amendments made after consultation with the High Court. It is first urged that the only consultation which was made with the High Court with reference to the amendment proposed to Sub-rule (3) of Rule 6 was on the question whether the qualifying marks should be 45%. That after the High Court stated that it has no views to offer, the Governor should have communicated to the Commission the fact that the High Court had no comment to make on that proposal and that after the Commission Suggested 55% as the qualifying marks, the Governor should have again consulted the High Court about the suitability of those qualifying marks before the Governor accepted the suggestion, was the argument advanced.
In support of the assertion that the Governor was under a duty to communicate the views of the High Court to the Commission and again the views of the Commission to the High Court, we were referred to the following passage in Chandra-sekhar's case, 40 Mys L.J 87 at p. 98 : (AIR 1963 Mys 292 at p. 297) :
'If the consultation required by Article 234 must as it should in my opinion, extend to every one of the matters on which Article 320(3) enjoins consultation, it follows that the qualifying marks to be secured in a comprivate examination prescribed by rules made under Article 234 should also form the subject-matter of consultation by the Governor with the High Court and the Public Service Commission. Can it be said that a matter on which the mandate of the Constitution is that a rule shall be made only after the collective deliberation of the three authorities specified in it, is not a matter of importance but only a subsidiary detail? '
23. The expression 'collective deliberation' employed by me in that passage of the judgment which I prepared in that case, according to Mr. Datar, made it clear that the consultation enjoined by Article 234 is one which requires the communication by the Governor of the views of the High Court to the Commission and of the Commission to the High Court, which he complains, was not done in this case. Mr. Datar had to admit that 'collective deliberation' referred to by me was not a deliberation between the Governor, the High Court and the Commission at a meeting in which the Governor, the judges of the High Court and the Members of the Commission should all be present. But he asked us to hold that the collective deliberation which was stated to be necessary should include the communication of the view of each of the three functionaries to the other two without which the collective deliberation is not complete,
23A. From the counter affidavit of which the deponent is the Chairman of the Commission, it is clear that the Commission was not informed by the Governor that there was a consultation between him and this Court. In paragraph 9 of that counter affidavit this is what the Chairman says :
'I am not aware whether the Hon'ble High Court of Mysore was consulted in fixing the minimum qualifying marks. I am aware that the Public Service Commission was consulted in this behalf..'
24. The question is whether the rule made by the Governor without disclosing to the Commission that the High Court was consulted and without disclosing to the High Court that the Commission was consulted, can be said to be one properly made under Article 234 of the Constitution. That Article reads:
Article 234. 'Appointments of persons other than district Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.'
25. It is clear that the intendment of this article is that before the Governor makes a rule for the purpose of making appointments to the posts referred to in that article, he should obtain guidance from the High Court from which the most useful advice is obtainable and from the Commission which is charged with the duty of conducting examinations for appointments to the services of the State, suggestions which can materially assist the enactment of the rules which Article 234 directs the Governor to make. How and by what method or process that advice may be obtained by the Governor from those two sources is not a matter on which any inflexible or rigid rule is possible since the Constitution itself does not prescribe the procedure to be adopted by the Governor for that purpose. It would be for the Governor to employ the most useful and satisfactory method for eliciting the views of those two bodies.
What is however essential is that both the High Court and the Commission should be informed by the Governor that he proposes to make rules and these rules which he proposes to make should be made available to them so that after a study and scrutiny of those rules, the High Court and the Commission might be in a position to offer advice. If therefore the Governor has taken these steps by placing before the High Court and the Commission the rules which he proposes to make and seeks the advice of both those bodies on the suitability of those rules and the opportunity to tender that advice has been so afforded, can it be said that the consultation enjoined by Article 234 is not complete if the advice tendered by the High Court is not disclosed to the Commission and that tendered by the Commission is not revealed to the High Court? Although this case is one in which the High Court itself did not tender any advice and stated that it had no views to offer on the amendments proposed by the Governor, the question would still arise whether even if the High Court had tendered its own advice as to the suitability or unsuitability of the amendments proposed by the Governor and its views had not been disclosed to the Commission, the consultation directed by Article 234 became defective.
26. In my opinion, Mr. Datar is quite right in admitting that for the consultation required to be made under Article 234 it is not necessary for the Governor, the Judges of the High Court and the Members of the Commission to meet face to face and hold a joint deliberation. He is, in my opinion, right in telling us that that is not how the expression 'collective deliberation' employed in the judgment in the previous case has to be understood. I must also say that when I used that expression in the judgment in Chandrasekhara's case, 40 Mys LJ 87 : (AIR 1963 Mys 292) nothing was farther in my mind than a joint deliberation of that pattern. It is clear from the context in which that expression occurs in that judgment that the emphasis was on the importance of the consultation and not on the process by which it had to be made.
27. What the consultation should be and how it should be made are questions the answer to which should depend upon the language of Article 234 which directs the Governor to make his rules 'after consultation with the State Public Service Commission and with the High Court exercising 'jurisdiction in relation to such State.' There is more than one provision in the Constitution which directs that what may be done under its provisions shall be made only after consultation with the functionaries specified therein.
Article 124(2) directs a consultation by the President with such of the Judges of the Supreme Court and the High Courts in the States as he may deem necessary before he appoints a Judge of the Supreme Court.
Article 127 authorises the Chief Justice of India to appoint ad hoc Judges to the Supreme Court with the consent of the President and after consultation with the Chief Justice of the High Court concerned.
Article 217 empowers the President to appoint a Judge for a High Court after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. Article 233 provides for appointments, postings and promotions of District Judges 'in consultation' with the High Court.
Article 320(3) enjoins consultation with the Union Public Service Commission and the State Public Service Commissions on methods of recruitment to civil services and civil posts.
What is however clear from Article 127 is the distinction recognised by the Constitution between 'consent' and 'consultation'. Whereas under that article no ad hoc Judge may be appointed by the Chief Justice of India without the previous consent of the President, such appointment should only fee preceded by the consultation with the Chief Justice of the concerned High Court.
Article 128 similarly insists upon the previous consent of the President to the appointment by the Chief Justice of India, of an erstwhile Judge of the Supreme Court or of the Federal Court as an ad hoc Judge of the Supreme Court. It would therefore be reasonable to think that except in the case of appointments to be made under Article 233 which can be made only 'in consultation' with the High Court, the consultation prescribed by the Constitution in regard to other matters in which such consultation is directed cannot be equip rated with consent or concurrence of the authority with whom consultation is made imperative, and that being so, the word 'consultation'' occurring in those constitutional provisions should be given that meaning which best fits into the context in which it occurs although it may fall short of consent or concurrence.
The word 'consult' according to its Dictionary meaning means 'to ask advice of; to decide or act in favour of; to look up to for information or advice; to discuss; to consider; to take measures for the advantage of any one' (see Chambers Twentieth Century Dictionary). That the word 'consultation' used in Article 127 is contra-distinctive of the word 'consent' which also occurs in Article 127 makes it clear that the two acts have distinct qualities not common to both. And if we must as we should give the expression 'consultation' occurring in Article 234 its ordinary meaning, all that the Governor has to do under the provisions of that Article is either to ask the advice of the High Court and the Commission or to look up to them for information or advice or to discuss with them what he proposes to do or to consider along with them the rules which he proposes to make.
The word 'consultation' occurring in the Constitution cannot always be understood as a joint deliberation the insistence on which may make the Constitution unworkable. If the consultation enjoined by Article 217 between the President, the Governor of the State, the Chief Justice of India and the Chief Justice of the concerned State for the appointment of a Judge of a High Court is to be understood as a joint deliberation between those four authorities, one may easily imagine the cumbersome procedure which it would involve. It would be equally unreasonable to suggest that the Governor should meet all the Judges of the High Court and all the Members of the Commission and have a personal discussion about the rules which he proposes to make under Article 234.
28. If therefore a joint deliberation in the presence of all those functionaries with whom consultation is insisted upon is eliminated as not being one of the requirements of the relevant constitutional provision, what remains to be considered is whether such consultation includes in all cases the transmission by the authority who is required to make the consultation to every one of the authorities with whom such consultation is prescribed, of the views elicited from the other. The acceptance of that argument would lead to the odd result that the President when he appoints a High Court Judge would be required to transmit to the Governor the views of the Chief Justice of India and the Chief Justice of the State, and the views of the Governor to the Chief Justice of India and the Chief Justice of the State, and the views of the Chief Justice of India to the Governor and the Chief Justice of State. If it can be held that that is the requirement of Article 217, it would be easy to conclude that the requirement of Article 234 is similar and that the Governor must transmit the views of the High Court to the Commission and of the Commission to the High Court before he makes his rule under that Article.
There appear to be, in my opinion, many difficulties in understanding the consultation enjoined either by Article 217 or Article 234 as including in addition to seeking advice, the transmission of the advice tendered by each of the authorities consulted to the other. It is obvious that if the transmission of the respective view is recognised as part of the consultation, such transmission by itself would become purposeless unless there is the recognition of the right of the functionary to whom such transmission is made, to tender further advice. And if that advice tendered by him has again to be transmitted to the other consultant and he again has the right to tender fresh or further advice which is again to be transmitted to the co-consultant, what the President or the Governor would have to do respectively under Article 217 and Article 234 would be to engage themselves in a process of consultation which might never attain the stage of completion. An interpretation which, if accepted, might in conceivable cases far from promoting the purpose of the Constitution only result in interminable dilatoriness, should not, in my opinion, commend itself to us.
29. In the view that I take it would be enough for the Governor when he makes a consultation under Article 234 to seek the advice of the High Court and the Commission about the rules he proposes to make. If he seeks that advice and thereby makes it possible for the High Court and the Commission to tender it, the consultation required of him becomes complete. It is of course obvious that if either the High Court or the Commission tells the Governor that it has no advice to tender, there is no power in the Governor to compel the expression of such opinion. I think it is equally clear that the advice tendered by the High Court and the Commission is what the Governor is bound to take into consideration before he makes his rules although it cannot be said that the advice tendered by any one of them is what he is bound to accept. What form the consultation should take being therefore a matter entirely within the wisdom and discretion of the Governor, the Governor should adopt that process by which the most satisfactory consultation can be achieved. While it would be entirely for the Governor to decide whether the advice tendered to him either by the High Court or the Commission should be transmitted to the other for fresh guidance, it is not, I think, right to understand Article 234 as enjoining such transmission in all cases, although it is of course obvious that in some cases such as in a case where the Commission tenders advice the acceptance of which would transform the proposed rule beyond recognition, there would be a clear duty to disclose that view of the Commission to the High Court, and in a case in which there is an omission to do so, whether such omission would amount to an infraction of Article 234 would be a question which would naturally arise.
30. Now this case is one which, in my opinion, does not fall within any such exceptional category. While the Governor proposed 45 %, as the qualifying marks, the Commission suggested 55%. If the High Court was also of the view that 45% should be the qualifying marks and the Commission had suggested its enhancement to 55%, it might have been possible to think that that was a case in which it was necessary for the Governor to transmit the view of the Commission to the High Court so that to might express its own views on that suggestion by the Commission. But in a case like this in which the High Court had no view to express, and stated that it would say nothing about it, it would be going altogether too far to say that the advice given by the Commission that 55% should be the qualifying marks should have been again transmitted to the High Court which made it very clear that it would make no comment on the question as to what should be the qualifying marks. The transmission of the views of the Commission to the High Court even after the High Court said so, would have been an unmeaning and empty formality.
31. The argument that the Commission was not informed that the High Court had no views to offer about the qualifying marks is more vulnerable than the complaint that the Commission's advice was not disclosed to the High Court. It is not easy to understand how the consultation with the Commission would have proved more fruitful if the Commission had known that the High Court had no advice to offer.
32. It is, I think, clear that how the Governor should make his consultation under Article 234 and by what procedure that consultation has to be made are questions which cannot be answered by any formula of universal or general application. So, whether consultation has been adequate or incomplete or whether it is real or a mere pretence or whether there has been so much of departure from the requirement of Article 234 that the consultation can be regarded as no consultation in the eye of the Constitution, are all questions which have to be decided in each case on its own circumstances and facts.
33. In Fletcher v. Minister of Town and Country Planning, 1947-2 All ER 496 the question was whether the Minister of Town and Country planning who designated an area of land as the site of a proposed new town had transgressed the provisions of Section 1(1) of the New Towns Act, 1946 under which his order had to be preceded by a consultation with the local authorities. There were two conferences between the Minister and local authorities one in July 1946 and the other in November. At the first conference the Minister made a statement explaining the whole project and invited comments and questions from the local authorities. After having done that, he published a draft order which complied with the relevant statutory provisions of the Act. After objections were preferred to the order, there was the November meeting at which the Minister made no speech but merely invited questions. The criticism made on behalf of the local authorities was that there was no consultation between, the Minister and the local authorities in any real and true sense since what the Minister did at the November meeting was merely to put questions without making his own speech. , The New Towns Act, 1946 under which consultation was necessary came into force between the July meeting and the November meeting, and it was therefore urged that whatever consultation had been made at the July meeting was no consultation for the purposes of the Act which was not then in force. Morris, J. repelling those arguments thought that there was no substance in that criticism and was of the view that the two meetings were closely related and together constituted the required consultation.
At page 500 of the Report, this is what he said:
'The word 'consultation' is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one. In deciding whether consultation has taken place, regard must, in my judgment, be paid to the substance of the events and it cannot be conclusive either way according to whether parties said in terms that a consultation under Section 1 of the Act was taking place, or to take place, or was intended, or whether nothing relative to this was said at all.'
In Rollo v. Minister of Town and Country Planning, 1948-1 All ER 13 the question again was whether the consultation enjoined by Section 1(1) of the Act had been made. On July 10, 1946 a few weeks before the Act received the royal assent, there was a meeting between the Minister and the local authorities at which there was a discussion on the question whether a particular area of land was suitable for the site of the new town. The local authorities were informed at that meeting of the general nature of the proposal, the area, the size of the proposed town, and what the Minister wished and intended to bring about. Discussion was invited and a number of questions were put by the representatives of the authorities and answered by the Minister. In October there was a second meeting, at the request of the local authorities for a further elucidation of the matter.
Objections were then raised to the proposed order and in November 1946 a public enquiry was held. The complaint of the local authorities that the consultation required by the Act was not made was dismissed by the Court of Appeal, and while doing so Bicknell L.J. said this at page 17 of the Report:
'A certain amount has been said as to what consultation means. In my view, as junior counsel for the Minister said, it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice.'
The Lord Chief Justice was of the view that Morris, J. was right in thinking that what was required of the Minister was to seek and welcome aid and advice of the local representatives with a deceptive mind.
34. In In Re Union of The Benefices of Whippingham, Etc., 1954-2 All ER 22, the Privy Council had to decide whether there was the required consultation between the pastoral committee and the parochial Church under the Pastoral Reorganisation Measure, 1949. Their Lordships refused to accept the argument that, in order to constitute a consultation, the members must know that they were consulted and even if their failure to recognise what was taking place was entirely due to their own mistake, no consultation could be held to have taken place unless they understood that their views were required and that the obtaining of the views of individual members of the council was not sufficient compliance with the enactment.
Repelling this argument Lord Porter said this, at page 25:
'Their Lordships cannot accept this argument. In case, however, a parochial church council should not fully appreciate that the views of its members were required, they think it would, as a rule, be desirable that whoever represents the pastoral committee in consulting the council should state in terms that he has been requested to see and consult the council, to ascertain their views, and to report them to the committee. In their Lordships' opinion, however, although advisable, so elaborate and meticulous a proceeding is not essential. A full and sufficient opportunity must be given to the members of the council to ask questions and to submit their opinions in any reasonable way, but that is all that is required. .........
They do not find themselves able to lay down the rule that some exact wording should be used or specific statements made. It is enough, as they think, that the substance of the requirement should be complied with.'
35. These being the principles by the application of which the adequacy or otherwise of the consultation made in each case should be determined, it cannot be said that the Governor who in this case did seek the required guidance and counsel from the High Court and the Commission but obtained it only from one of those sources did not make the prescribed consultation. I am therefore prepared to say and I do say that whatever the consultation enjoined by Article 234 may be, that consultation has been made in this case in so far as it relates to the proviso added to Rule 6(3) of the Rules.
36. There is no complaint that there was no consultation in respect of the new proviso added to Rule 12, and there is therefore nothing to be said about it.
37. Although that argument was not advanced before us by any one, I must say that in regard to Sub-rule (5) which was added to Rule 6 by the Governor there was no consultation whatsoever with the High Court. That sub-rule which prescribed a quorum for the meeting of the Commission when it had to meet for conducting the viva Voce examination, was added to Rule 6 as Sub-rule (5) for the following reasons: One of the infirmities in the first viva voce examination conducted by the Commission pointed out by this Court was that when, some of the candidates were subjected to the viva voce examination, the full complement of the Commission was not present. This Court thought that under Rule 6 as it was, the viva voce examination had to be conducted by all the members of the Commission in association with the Law Secretary. But when the Governor wished to amend the rules to enable the Commission to conduct a fresh viva voce examination he did not consider it necessary to authorise only a few members of the Commission to conduct the viva voca and did not therefore propose to make any such amendment to Rule 6.
But when the amendments which were in fact proposed by him were communicated to the Commission for the expression of its views, the Commission appears to have suggested that in addition to the amendment proposed by the Governor one more amendment should be made to Rule 6 so as to empower only a few members of the Commission to participate in it. The suggestion evoked the approval of the Governor with the result that a suitable provision in that regard was incorporated in Rule 6 in the form of Sub-rule (5). This sub-rule which was introduced into Rule 6 without its inclusion having been preceded by consultation with the High Court was at one stage defended under the mistaken supposition that the consultation with the High Court by the Governor about some rule was all that was necessary for the purpose of making a rule which had no relevance to the rule about which the High Court was consulted. It is obvious that that attempt made to sustain an otherwise indefensible rule rested on an imperfect understanding of the true meaning of the provisions of Article 234.
It is plain that no rule under that article can be made by the Governor unless there was a consultation by him about that very rule both with the High Court and the Commission. If the Governor consults the High Court about a certain rule which he proposes to make and the High Court either states its views about it or does not, what is incontrovertible is that the consultation made about that rule does not dispense with the consultation which the Governor must needs make with the High Court before he makes another rule, the scope and purpose of which is not the same as the scope and purpose of the rule about which he made the consultation. Mr. Advocate General had to admit that the purpose of Sub-rule (5) newly added to Rule 6 was not the same as the purpose of the proviso to Sub-rule (3) or the proviso to Rule 12, and, that Sub-rule (5) could not have been therefore added to Rule 6 without its inclusion being preceded by consultation with the High Court, even if in the course of the consultation with the Commission the Commission expressed its view that a sub-rule to that effect was desirable and should therefore be included.
38. In my opinion Sub-rule (5) which was included by the Governor in Rule 6 without the consultation with the High Court enjoined by Article 234, must, therefore, be struck down as invalid and inefficacious.
39. But the fact that we can come to that conclusion does not mean that the petitioner can get any assistance from it for his case. Fortunately for the successful candidates whose names have been published by the Commission, when every one of the candidates appeared for the viva voce examination, all the three Members of the Commission and a certain Mr. Sanjeevalu who was an Officer in the Law Department of the Government Were present to conduct the examination. The resuit, therefore, was that the invalid fifth sub-rule was never invoked or employed for any purpose and that the viva voce examination was conducted by the full complement of the Members of the Commission and the Officer of the Law Department nominated by Government for that purpose under Sub-rule (4) of Rule 6.
40. At one stage it was suggested that Mr. Sanjeevalu was not a Secretary to the Government in its Law Department, since he was only performing the duties of that Secretary. But the answer to this criticism, as rightly pointed out by Mr. Advocate General, is that Mr. Sanjeevalu was associated with the Commission when it conducted the viva voce examination not because he was supposed to be a Secretary to Government in its Law Department but because he was an Officer nominated for that purpose. Now under Rule 6(4), the person to be associated with the Commission during the conduct of the viva voce examination may either be the Secretary to Government in its Law Department, or any other Officer nominated by Government for that purpose. That Sub-rule (5) of Rule 6 Was unconstitutionally added to Rule 6 can therefore have no materiality.
41. It was next said that the newly added provisos to Rule 6(3) and Rule 12 were not within the competence of rule making power of the Governor, since those parts of those two rules had been given retroactive operation, although the Governor was incompetent to make any retroactive or retrospective rule under Article 234. The question whether a retrospective or retroactive rule is within the competence of the Governor does not really arise in this case, and is therefore, one on which I abstain from expressing any opinion in this case. It would be sufficient to point out that neither the proviso to Rule 6(5) nor the proviso to Rule 12 can be said to be a retrospective or retroactive proviso. Indeed in Chandrasekhar's case 40 Mys LJ 87 : (AIR 1963 Mys 292) what was clearly decided was that a rule similar to what has now taken the form of a proviso to Rule 6(3) would be fully within the rule making authority of the Governor. In fact it was this Court which suggested a suitable amendment of the rules incorporating in them a specification of the qualifying marks, and, that, exactly was what the Governor did when he added to Rule 6 the proviso appearing under Sub-rule (3).
42. That the proviso to Rule 12 is a retrospective or retroactive proviso is an equally groundless submission. That rule as it stands amended reads:
12. 'List of candidates successful in comprivate examination :.
X X X X
'Provided that the selection of candidates for appointment shall be made in accordance with the provisions for the time being in force regulating reservation of appointments or posts in favour of Scheduled Castes, Scheduled Tribes and other backward classes of citizens.'
Before it was amended, Rule 12 had a proviso some parts of which were pointed out by this Court in Chandrasekhara's case, 40 Mys LJ 87 : (AIR 1963 Mys 292) to be defective, and, that is presumably the reason why the proviso now appearing under Rule 12 was substituted for the old proviso. I fail to understand how it could be contended that there is anything in this new proviso which has any retrospective or retroactive operation. The appointments to be made under it are appointments which had still to be made and what the new proviso authorises is an act which had still to be done when it was substituted.
Far from the proviso having any retrospective or retroactive operation, what it authorize is only a prospective act which is therefore impervious to the criticism that its enactment is in excess of the authority conferred by Article 234. It is admitted that the reservation the implementation of which is directed by the new proviso had been made under Article 16(4) before 30-8-1960 on which date the Commission invited applications from the intending candidates. If it is thus clear that the appointments authorised by the proviso are those to be made in implementation of the reservation which had been accomplished before the Commission invited applications, the complaint that a retrospective and retroactive rule was made has to be dismissed.
43. The further criticism made was that the provisions of Rule 6(4) which directs the association of an Officer of the Government with the viva voce examination to be conducted by the Commission offended against Article 320 of the Constitution which, according to the argument, constituted the Commission as the exclusive examining authority in respect of all examinations to be conducted for appointments to the services of the State. Although this was the argument advanced, at one stage Mr. Datar had to admit that as pointed out at page 108 of the report in Chandrasekhara's case 40 Mys LI 87 : (AIR 1963 Mys 292 at p. 302) all that Article 320 provides is that it shall be the duty of the Commission to conduct the examinations referred to in it only if it is required to do so. It as, however, clear that the Governor's power to make his own rule for the conduct of an examination if he prescribes one, for making appointments to the posts referred to in that Article 234, is uncontrolled by anything contained in Article 320 and that the Governor has the power under Article 234 to make a rule authorising the conduct of an examination by a body other than the Commission if he so desires.
Mr. Datar, however, asked our attention to Sub-rule (1) of Rule 6 which, according to him, appoints the Commission as the body to conduct the entire comprivate examination including the viva voce examination, thus making it impossible for any other person to be associated with the Commission when it conducts that part of the examination. That sub-rule reads:
6. 'Examinations -- (1) The comprivate examination shall be conducted by the commission and shall consist of:
(a) Written examination to test the candidates' knowledge of law and languages; and,
(b) a viva voce examination.' * * * *
But that sub-rule should be read along with Sub-rule (4) which reads:
6. (4) 'For purposes of conduct of the viva Voce examination and determination of persons eligible to be appointed as Munsiffs, the Secretary to Government, Law Department, or any other officer nominated by Government shall be associated with the Commission '
Sub-rule (1), it is clear, must be read along with Sub-rule (4) for the identification of the authority which has been appointed to conduct the comprivate examination, and there is nothing in Sub-rule (4) which is inconsistent with Sub-rule (1) since what that sub-rule really directs is that when the Commission conducts the viva voce examination as directed by Sub-rule (1) it shall do so in association with the officer specified in Sub-rule (4).
44. That there was some flaw in Sub-rule (4) which directed the association of that officer with the determination of persons eligible to be appointed as Munsiffs was the next submission which 1 do not consider to be substantial. The argument assailing the association of Mr. Sanjeevalu, a Law Officer of the Government, with the viva voce examination was constructed on a curious statement made by the Chairman of the Commission in paragraph 5 of his counter affidavit which reads:
'Under the proviso to Rule 4 of the Mysore Public Service Commission (Functions) Rules, the Commission may invite Government to nominate an Officer to represent the services of the department for which recruitment is being made, to be present at the interview of candidates to assist the Commission in its work of selection. The Government nominated Sri R. Sanjeevalu, In-charge Secretary of the Law Department, for that purpose. It is submitted there is no violation of Article 320 of the Constitution.'
If, as stated by the Chairman, Mr. Sanjeevalu had been invited under the rule referred to in this part of this affidavit, the criticism that it was quite illegitimate for the Commission to employ the provisions of that rule in respect of an examination in respect of which Rule 6 of the Mysore Munsiffs (Recruitment) Rules was a complete and exhaustive provision, might have been unanswerable. But it is clear that the statement of the Chairman on which the petitioner depends is attributable to a dear misconception. It has been explained to us by Mr. Advocate General that when the Chairman's counter affidavit was settled by him, that inaccurate statement in paragraph 5 crept into the affidavit by an inadvertent mistake. We should accept this explanation which is fully supported by the minutes of the Law Minister and the Home Minister which were produced by Mr. Advocate-General before us which fully establish the submission made by Mr. Advocate General that Mr. Sanjeevalu was associated with the Commission in the conduct of the viva voce examination not under the Mysore Public Service Commission (Functions Rules, 1957 but under Rule 6 of the Mysore Munsiffs (Recruitment) Rules, 1958.
(45) The complaint which was repelled in Chandrasekhara's case, 40 Mys LJ 87 : (AIR 1963 Mys 292) that too many marks were allotted for the viva voce examination was again advanced before us. The answer to that argument is what is contained in page 108 of the report (Mys LJ): (at p. 302 of AIR) in that case which reads:
'Only a few more matters remain to be considered. The first of them is a complaint that too many marks were set apart for the viva voce examination. It was pointed out that although at one stage, the Rules made under Article 234 set apart as many as 850 marks for the written examination and only 200 marks for the viva voce examination, those Rules were amended reducing the maximum marks for the written examination to 300, without making any corresponding reduction in the maximum for the viva voce examination. It was urged that the possibility of manipulation with little likelihood of detection being greater in the case of a viva voce examination, the setting apart of a large number of marks for such examination should be discountenanced. But, that is a matter about which we can do nothing. The determination of the marks to be allotted for each part of the comprivate examination is a matter for the Governor, enacting Rules under Article 234, and there can be no judicial review of the wisdom or mere unreasonableness of such determination. It would be enough to say that the eminence of an authority like the Public Service Commission affords more than anything else the greatest guarantee that whatever may be the maximum marks set apart for the viva voce examination, those who appear before it will receive fair and even-handed treatment.'
46. It was then said that the viva voce examination held for the second time suffered in one respect from the same infirmity from which it suffered on the first occasion. It was urged that the Commission did not conform to the provisions of Rule 6 which states that the purpose of the viva voce examination was to test the candidates' general knowledge and grasp of principles of law. That even in the second viva voce examination, the Commission did not confine its investigation to the candidate's general knowledge and grasp of principles of law but allowed itself to be influenced by extraneous considerations such as his personality and suitability was the argument advanced in support of which what was depended upon was that the statement contained in the notification of August 30, 1960 by which the Commission invited applications, that the viva voce examination would be conducted not only to assess the candidates' general knowledge and grasp of the principles of law but also to make a scrutiny of the personality and suitability of the candidates, was not recanted or withdrawn when the candidates were invited to appear before the Commission for the second time for the viva voce examination.
The notice issued on June 5, 1962 to the candidates by the Commission requiring them to appear before it for the second viva voce examination reads :
MYSORE PUBLIC SERVICE COMMISSION
Office of the
Mysore Public Service Commission
Bangalore, dated 5th June 1962.
No. E. 610/62-63 PSC.
73. Sri Kulkarni Vasant Krishna,
(V. K. Kulkarni)
Additional Munsiff, Hospet, Bellary District.
With reference to his application for recruitment to the Cadre of Munsiffs in the Mysore Judicial Service, Shri Kulkarni Vasant Krishna is hereby informed that the viva voce examination already held by the Commission in this connection in the month of March 1961 has been cancelled and that a fresh viva voce examination will therefore be held from the 18th June 1962. He is, therefore, hereby required to appear before the Commission for the said examination at 13-00 Noon on the 20th June 1962 at the office of the Mysore Public Service Commission, Bangalore, with all certificates, testimonials, marks cards etc. in original.
Sd/- A. S. Balasubramanion,
Mysore Public Service Commission.'
This notice makes it plain that the argument advanced before us is really without substance. What the Commission very clearly said in that notice is that a fresh viva voce examination would be conducted since the one which had been previously held had turned out to be purposeless. It is manifest that when the Commission proposed to hold a viva voce examination as stated in that notice what it intended to do was to hold the viva voce examination in conformity with the rules which means that its intention was to test in the examination the candidate's general knowledge and grasp of the principles of law. In paragraph 5 of his counter affidavit the Chairman of the Commission has explained that that was all that was done at the viva voce examination and that factors such as personality and suitability did not enter into the determination of the marks allotted at that examination. We see no reason to distrust that statement made by him.
47. A very ephemeral argument was advanced that no syllabus had been prescribed for the viva voce examination as it had been done in the case of the written examination. It was urged that it was not enough to state in the schedule to the Rules that the viva voce examination aimed at the assessment of the candidates' general knowledge and grasp of the principles of law and that it was the duty of the Governor to specify in that schedule the syllabus for general knowledge.
48. I must state that I found great difficulty in understanding this argument. General knowledge as every one knows means knowledge generally of men and things. If a syllabus is prescribed for general knowledge, the extent of the knowledge of the candidates which is sought to be tested would cease to be general knowledge but would be knowledge confined only to those matters mentioned in the syllabus.
49. Some part of the argument was expended over Rule 6 by which the Commission was designated as the authority to conduct the examination, and particularly of that part of that rule by which the Commission was directed to conduct the viva voce examination functioning as the body of examiners. It was said that Article 320 of the Constitution exhaustively enumerates the functions and duties of the Commission and that what it directs the Commission to do is merely to perform only those supervisory acts which are necessary for the conduct of an examination instead of the members of the Commission arrogating to themselves the role of examiners. It was submitted that since the dictionary meaning of the word 'conduct' appearing in Article 320 is 'to guide; to direct; to manage', what the Commission can do is only to appoint examiners and to perform all other acts of management and supervision without converting itself into a body of examiners. Rule 6 which directed the Members of the Commission to function as examiners was assailed as being repugnant to the provisions of Article 320 and therefore invalid.
50. There are two answers to this argument. The first is that when the Members of the Commission function as examiners under Rule 6, as pointed out in Chandrasekhara's case, 40 Mys LJ 87: (AIR 1963 Mys 292) they do not perform a constitutional function but a function assigned to them under a rule made under Article 234 in addition to the duties imposed by Article 320. The second is that even otherwise it would not be right to place on the word 'conduct' appearing in Article 320 the unduly narrow interpretation suggested. It would not, in my opinion, be reasonable to think that if a teacher is directed to conduct a class or a lawyer is engaged to conduct a suit or a Judge is entrusted with the conduct of a trial, what is permissible for them to do is merely to supervise the acts to be performed by someone else in the class room or the Court hall as the case may be.
51. What should next be considered is the charge that the examination conducted by the Commission is vitiated by mala fides. It was explained to us that it was not the case of the petitioner--and that was also the submission made in the companion matter Writ Petition No. 943 of 1962, that the Members of the Commission were actuated by any improper or collateral considerations in the exercise of their functions under the rules. The main stress of the argument was that the Commission had prepared the list with a 'closed mind' without making any serious endeavour to assess the real worth of the candidates and the submissions made in support of this branch of the argument are these :
(1) That the second list of successful candidates is no more than a mere replica of the first list which had been quashed;
(2) That it was a strange phenomenon that a Scheduled Caste candidate who was successful when 45% was the qualifying minimum for him was again able to succeed in the examination when it was increased to 55%;
(3) That the very impugned list in which the caste or community of the successful candidate is indicated itself demonstrates that the selection of successful candidates was made on communal considerations and considerations other than merit;
(4) That the names in the list are those arbitrarily selected by the Commission and that in any event such arbitrariness in selection was made possible by the imperfections in the Rules as demonstrated by the violent disparity in the assignment of the rank to the same candidate between the first list and the second;
(5) That it was odd that persons who secured extremely low marks in the written examination became tremendous successes in the viva voce examination;
(6) That on account of the omission to fix minimum qualifying marks for success in the written examination and by reason of the long interval of more than three months on the first occasion and more than eighteen months on the second, between the written examination and the viva voce examination, the operation of an unconscious bias in the minds of the Members of the Commission in favour of those candidates who had not given a good account of themselves in the written examination became possible;
(7) That it was unreasonable to allocate as many as 200 marks for a viva voce examination in which the candidate would not be interrogated for more than a few minutes and only 300 marks for the written examination extending over three hours;
(8) That it was a curious feature of the viva voce examination that the candidates' equipment of the general principles of law was again assessed at the viva voce examination although the written examination more than comprehensively had covered that field;
(9) That the unavailability of any record of the interrogation of the candidates and the refusal by the Commission to supply to the unsuccessful candidates information about the marks secured by the other candidates generates a suspicion that the viva voce examination was not quite above reproach; and
(10) That one of the three Members of the Commission who himself had no equipment in any branch of law professed to be able to assess the candidates' grasp of legal principles.
52. It was pressed on us that even if it was possible to say that none of these circumstances on which the petitioner depended does not by itself establish any mala fides on the part of the Commission, those circumstances and facts when considered and examined cumulatively cannot but lead to the inference that the viva voce examination was not a fair or honest examination in which each one of the candidates had an equal opportunity to establish his own worth or merit.
53. It may be that the comprivate examination in this case did not attain that degree of perfection which it could have claimed if the Rules had required the candidate to secure minimum qualifying marks in each branch of the examination including the written examination without making it sufficient for him to obtain that minimum in the aggregate and if the Commission had maintained as it might have easily done a record of the interrogation made during the oral examination, and if the Rules had not authorised the Commission which in conceivable cases may be composed as it was in this case, of persons some of whom could not claim to have even as good knowledge of the principles of law as the candidate himself, to assess the candidate's equipment in that subject. That a candidate's knowledge of law which had been more accurately assessed in the written examination should have in that way been again subjected to what cannot but be an elusive appraisement during an oral examination might be open to the same reproach as the allocation of a disproportionately large number of marks for an extremely brief oral examination. But these imperfections in the Rules which may, judged by impeccable standards, make the examination uncommendable, cannot by themselves assist its condemnation unless there is proof of their exploitation for the achievement of illegitimate or improper ends. That, of that, there was no direct proof had to be admitted, and the question is whether there is circumstantial evidence of the deflection of the scheme of the examination for the attainment of results other than those which a bona fide and proper use of the Rules would have yielded.
54. It seems to me that neither the fact that in the new list published by the Commission are to be found the names of many of those whose names are found in its earlier list which was quashed, nor the fact that a candidate belonging to a Scheduled Caste was able to succeed in the examination even after the qualifying minimum was increased, can support the charge that some manipulation was made in the case of an undeserving candidate during the viva voce examination. It cannot be suggested that those persons who were declared on the first occasion to have succeeded in the examination were necessarily those who did not deserve to succeed, and that is not what, in my opinion, any one can say in spite of the many features which were pointed out in Chandrasekhara's case, 40 Mys L.J 87 : (AIR 1963 Mys 292) which exposed the viva voce examination to the charge that it did not conform to the Rules. The same thing, in my opinion, is what we should say about the positions of some of the successful candidates in the second list as contrasted with those which they had secured in the first, which may be attributable to many reasons other than that some one was interested in disturbing their ranks. For the purpose of satisfying ourselves whether there was any substance in the submission that candidates whose performance was miserable in the written examination had turned out to be prodigies in the viva voce examination, we made a scrutiny of the marks list and what we discovered was that the lowest number of marks secured by a successful candidate in the written examination was 122 out of a maximum of 300. Although it may perplex one that this person who did not secure even 41% in the written examination was awarded more than 76 1/2% in the viva voce examination, particularly when the candidate's knowledge of law was not only the subject matter of the oral examination but also the written examination, it should be remembered that the possibility of the candidate having improved his knowledge of law by assiduity and effort during the long period of 18 months which he had at his disposal between the date of the written examination and the second viva voce examination, cannot altogether be eliminated from consideration. That is also what, in my opinion, we should think about every other candidate whose performance at the second viva voce examination purports to be far superior to that at the written examination.
55. The denunciation of the list as one prepared on communal and regional considerations which has no other basis than that that list specifies against each of the successful candidates his caste or community which is capable of the explanation that the Commission gave that information for the implementation of the reservation of appointments referred to in the new proviso to Rule 12, rests, in my opinion, on extremely slippery foundation. The Chairman of the Commission in his affidavit has denied that communal or other collateral considerations influenced to any extent anything done in the conduct of the examination. He has disclaimed that any marks were allotted to any candidate at the viva voce examination for any thing other than general knowledge and grasp of the principles of law. The Chairman has also repudiated the, truth of the charge that the members of the Commission were determined on the elimination of the petitioner from the list of successful candidates on account of his having been one of the persons responsible for the nullification of the first list. There is, in my opinion, no reason why we should say that the Chairman has not spoken the truth. We should, in my opinion, say that it is not established that the impugned announcement of the Commission is vitiated by any species of mala fides.
56. Before concluding, I should advert to the complaint that one of the members of the Commission who participated as an examiner during the viva voce examination did not fit into the scheme of the examination one of whose purposes was the ascertainment of the extent of the candidates' knowledge of law. That member of the Commission was a certain Mr. Marudevo Gowda who before he was appointed as a member of the Commission was holding the post of the Registrar of Cooperative Societies in Mysore. What was said against his competence to function as an examiner was that since he was neither a lawyer nor judicial officer at any time in his life and could not therefore have acquired any equipment in any branch of the law, it was impossible for him to make an assessment of the candidates' knowledge of law when he himself possessed none. Besides pointing out that this member of the Commission was a law graduate, which, he must have become more than a quarter of a century ago, nothing was said during the argument about his proficiency in the field of law such as would enable him to judge the extent of the candidates' knowledge in that subject. From marks list which was made available to us, it is seen that each of the three members of the Commission and Mr. Sanjeevalu, the nominee of the Government, awarded marks to the candidates at the viva voce examination. Mr. Sanjeevalu has all along been a judicial officer of the State besides having been a District Judge before he became a Law Officer of the Government. Among the three members of the Commission, the Chairman was a Judge of this Court, Mr. Pampanna Gowda, the first member of the Commission as he is called, was a member of the legal profession for a sufficiently long time before he became a member of the Commission. Against these three persons functioning as examiners at the viva voce examination, the petitioner has no complaint to make. What is questioned is the competence of Mr. Marudevegowda to fill the role of an examiner. It seems to me that there can be no answer to the argument that among the examiners who are directed to judge the candidates' knowledge of the principles of law, there cannot be one who having no proficiency himself in that sphere could not claim the capacity to judge the proficiency of another. It was suggested to us that it was not necessary for every member of the Commission to be a specialist in law before the members of the Commission can function as examiners even if the purpose of the examination was the ascertainment of the extent ,of the candidates' knowledge in the field of law. This argument stands displaced by its own unreasonableness. Although the Governor by rules made by him under Article 234 can select his own examiners if he decides to hold an examination for recruitment to the posts specified in that article, it is clear that his selection should have a rational relationship to the process of the exercise of his power. If the Governor prescribes an examination in law for the purpose of such recruitment, no one can claim for him the power to make a rule authorising the conduct of that examination by an engineer or a doctor who knows nothing about law. That rule would be as unreasonable as a rule made by him under the proviso to Article 309 of the Constitution authorising the conduct of an examination in an engineering subject by a lawyer or a doctor who knows nothing about engineering for recruitment to a post in the public works department. That rule made by the Governor in either case is open to the condemnation that it is one which has no relevance to the purpose for which it may be made and being therefore one not authorised by the Constitution, is beyond the Governor's competence and unconstitutional and therefore invalid.
57. It has been pointed out to us that in the viva Voce examination held in this case Mr. Marudevegowda also professed to be able to award marks to the candidates commensurate with their knowledge of the principles of law. If it is true that he had no proficiency in that subject, it is clear it was not possible for him to do so. It is, I think, irrefutable that when a Governor makes a rule under Article 234 of the Constitution and prescribes an examination by that rule for recruitment, that examination should be directed to be conducted only by persons who are themseleves proficient in the subject in which the candidate is to be examined. Any other kind of examination being clearly one which a Governor has no power to prescribe under Article 234, what arises for determination is whether the viva voce examination in this case stood vitiated by reason of one of the members of the Commission not possessing the competence to function as an examiner in respect of one of the matters which formed the subject-matter of the examination. It is of course clear that we should not assent to the argument that so long as some of the examiners did have that competence, it did not matter if some others did not have it. If the scheme of the examination as revealed by the Rules is that a candidate should be examined by a body consisting of more than one examiner, it is clear that every member of that body should have sufficient knowledge of the subject in which the candidate has to be examined. The acceptance of the argument to the contrary would make the inclusion of those who do not have such knowledge as purposeless and unmeaning as the rule which prescribes the examination.
58. What has happened in this case is the best illustration of the incongruous situation which may toe presented by a rule made under Article 234 authorising the Public Service Commission whose composition may change from time to time to conduct an examination in the subject of law about which some of the persons who are for the time being members of the Commission may have little or no knowledge or equipment. It is, I think important to remember that recruitment to a post in the judicial service of the State is a very special kind of recruitment which involves a proper and correct estimate of the aspirant's knowledge in the Various branches of law which he has to administer when he becomes a judicial officer. While it cannot be gainsaid that there can be no better method of recruitment than a comprivate examination, what is equally important is that that comprivate examination should be conducted by persons who are specialists in law and procedure. The entrustment of the conduct of such examination to persons who are not such specialists, is, it is manifest, not what promotes the purpose of Article 234 of the Constitution and may be productive of enormous public mischief.
59. I therefore have little hesitation in saying that Mr. Marudevegowda if he had no proficiency in law could not properly have functioned as an examiner at the viva voce examination. But so long as he was a member of the Commission when the examination was conducted and in the absence of a rule properly made under Article 234 of the Constitution, if such rule is possible, authorizing the conduct of the examination by only some of the members of the Commission, Mr. Marudevegowda's participation in the examination was inevitable and imperative. What we should consider, to be the consequence of Mr. Marudevegowda's participation in the examination in that way in the role of an examiner is a matter which is to my mind a question of great difficulty. If it was possible to think that Mr. Marudevegowda could not have properly functioned as an examiner, I might have persuaded myself to take the view that the defect in the viva voce examination is so fundamental and basic as to altogether vitiate it. But it seems to me that I should not do so in this case. I have examined the marks list containing the marks awarded, at the viva voce examination to one of the candidates and that close scrutiny of the list which I made reveals that the marks awarded by Mr. Marudevegowda in almost every case were not very different from those awarded by the other examiners. There are also no sufficient materials before us from which we can deduce the existence or otherwise of the competence of Mr. Marudevegowda to function as an examiner. It is also not unlikely that although the examiners awarded separate sets of marks to each candidate, there was some kind of consultation between them before the marks were so awarded. After giving my most anxious thought to this matter, which, I must confess is certainly not free from difficulty, I have reached the conclusion that it is not possible to think that any candidate was awarded by Mr. Marudevegowda marks which were not commensurate with his performance at the examination. It is that conviction in my mind which is induced by what is discernible in the marks list which inclines me to the view that we should not disturb the announcement made by the Commission.
60. There being thus no ground on which we can annul the impugned announcement of the commission, this writ petition has to be and is dismissed. No costs.
61. I agree.