Judgement

BACHAWAT, J. :- This appeal raises a question of the validity of the last part of Rule 9 (2) of the Mysore Recruitment of Gazetted Probationers Rules 1959 framed by the Governor of Mysore in exercise of his powers under the proviso to Article 309 of the Constitution. The Rules came into force on September 11, 1959. Rule 3 requires that for a period of five years, two-thirds of the number of vacancies as determined by the Government arising in the cadres in the State Civil Services specified in the schedule shall be filled by recruitment of candidates selected under the Rules. The schedule lists two Class I and twelve Class II cadres. The two Class I cadres are those of (1) Assistant Commissioner in the Mysore Administrative Service and (2) Assistant Controllers in the Mysore State Accounts Service. Both cadres are in the pay scale of Rs. 300-25-500-50-30-700. Rule 4 provides that the recruitments shall be made on the basis of the results of written and viva voce examinations conducted annually by the Public Service Commission. Rules 5, 6 and 7 prescribe the age limit, the academic qualifications of candidates and the minimum pass marks. Rules 8 and 9 are in these terms :

"8. List of successful candidates in the examination.-The names of candidates successful in the examination shall be published in the Mysore Gazette, by the Commission in the order of merit.

9.Appointment of Probationers. - (1) Subject to the rules regarding reservation of posts for backward classes contained in Government Orders Nos. GAD 26 ORR 59, dated the 13th May, 1959, and No. GAD 32 ORR 59, dated the 18 July 1959, and the provisions of sub-rule (2), the candidates successful in the examination whose names are published under Rule 8 shall be appointed as Probationers to Class I posts in the order of merit, and thereafter to Class II posts in the order of merit.

2. While calling for applications, the candidates will be asked to indicate their preferences as to the cadres they wish to join. The Government, however, reserves the right of appointing to any particular cadre, any candidate whom it considers to be more suitable for such cadre."

By notification dated Sept. 26, 1959 the Public Service Commission invited applications for admission to a competitive examination for the recruitment of Class l Probationers to 20 posts in the Mysore Administrative Service and 2 posts in the Mysore State Accounts Service. The number of posts were liable to alteration. 15 per cent of the posts was reserved for Scheduled Castes and 3 percent was reserved for Scheduled Tribes. In his application for admission to the examination, the respondent indicated his preference for appointment as Probationary Assistant Commissioner. He was an eligible candidate and was allowed to appear at the examination. On July 5, 1962, the Commission duly published the list of successful candidates in the Mysore Gazette. In this list the respondent ranked fourth in the order of merit. It appears that the Commission sent a separate recommendation to the Government stating that they had selected the 20 candidates ranking 1 to 3, 5 to 8, 10 to 14, 16 to 19, 21, 22, 25, and 26 for appointment as Assistant Commissioner and the seven candidates ranking 4, 9, 15, 20, 23, 24 and 27 for appointment as Assistant Controllers. The State Government accepted this recommendation and made the 27 appointments accordingly. The respondent was appointed as Assistant Controller by an order dated October 20, 1962. The respondent was not appointed as Assistant Commissioner though he had indicated his preference for that post.

2. Aggrieved by this order, the respondent filed a writ petition in the Mysore High Court asking for an order directing the State of Mysore to appoint him as Assistant Commissioner and for consequential reliefs. Before the High Court, it was common ground that of the two Class I posts, the post of Assistant Commissioner in the Mysore Administrative Service had better prospects and was more a