Judgment

SIKRI, J.: These appeals, by special leave, are directed against the judgment of the High Court of Mysore at Bangalore in 16 Writ Petitions filed before it, quashing the notification of the Government bearing No. P. W. 10 SAG 59, dated October 31, 1961 and the appointments made thereunder of 88 Assistant Engineers in the Public Works Department of the State Government.

2. To appreciate the arguments addressed to us on behalf of the appellants and the respondents, it is necessary to give, in chronological order, the events leading up to the filing of the above writ petitions and their significance On December 12, 1957, the Governor of Mysore made rules called the Mysore Public Service Commission (Functions) Rules, 1957. hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission. Rule 3 of these rules provides for recruitment by examination and R. 4 with which we are primarily concerned provides for recruitment by selection. Rule 4 is as follows:

"When recruitment to a service or post is to be made by selection, and consultation with the Commission is required the Commission shall-

(1) advise the Government in regard to the conditions of eligibility of candidates;

(2) after the rules to be made have been approved by Government and a requisition for recruitment is received, invite applications from intending candidates after giving due publicity to conditions of eligibility, nature of competition, number of vacancies to be filled where possible, and any other relevant material;

(3) consider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it considers most suitable for appointment:

Note.-Nothing contained herein shall preclude the Commission from considering the case of any candidate possessing the prescribed qualifications brought to its notice by Government, even if such a candidate has not applied in response to the advertisement of the Government.

(4) forward to the Appointing Authority a list consisting of such number as it may fix, of the candidates whom the commission considers most suitable for appointment in order of preference:

Provided that the Commission may invite Government to nominate an Officer to represent the Service or the Department for whom recruitment is being made, to be present at the interview referred to in Cl. (3) to assist the Commission in its work of selection."

3. We may here dispose of the point whether these rules are executive rules or statutory rules made under Art. 309 of the Constitution. The High Court held that "there can be little doubt that to the extent the Rules deal with the topic of regulating recruitment to Civil Services under the State, the source of the power could only be the proviso to Art. 309 of the Constitution." In our opinion, these rules are not rules made under Art. 309. First, the rules do not expressly say so, and secondly, the rules are dealing with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts. Under Art. 320 (3) of the Constitution, it is the duty of the Government to consult and the duty of the Public Service Commission to advise, inter alia "on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments, promotions or transfers" . Sub-rule (1) of R. 4 clearly provides the same thing as does Art. 320 (3) (b) and the other sub-rules are really administrative arrangements apparently arrived at between the Commission and the Government as to how the Government and the public Service Commission will take steps to recruit persons for the State Services or posts.

4. To resume the narrative, on February 10, 1958, the Governor of Mysore, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, made the Mysore State Civil Services (General Recruitment) Rules, 1957, hereinafter called the Gener