( 1 ) THE petitioner was an applicant for the posts of Administrative assistants in the University of Agricultural Science, Bangalore (herein after referred to as the University ). The Selection Committee appointed by the Vice-Chancellor of the University, had placed him second in the order of merit in the list of candidates recommened by it (the Selection committee) for appointment as Administrative Assistants. The Board of regents of the University (hereinafter referred to as the Board) did not appoint him, but appointed respondents 2 and 3 for those posts. In this petition under Art. 226 of the Constitution, he has prayed for a declaration that the appointment of respondents 2 and 3 as Administrative Assistants, was illegal and invalid and for issue of a writ or an order directing the university to appoint him as Administrative Assistant with effect from 23-5-1970 on which date respondents 2 and 3 were so appointed. ( 2 ) BY its advertisement dt. 29-10-1969 (Ext. A), the University called for applications, inter alia, for two posts of Administrative Assistants. Under the Regulations framed, by the University, the qualifications for the post of Administrative Assistant, are as follows: (a) I or II Class degree in Arts. Science, Commerce or Law; (b) Experience of not less than 3 years in Government Institution, university or Business Organisation in a supervisory, executive or managerial capacity; and (c) Knowledge of Government and/or University Rules and regulations would be a preferential qualification. ( 3 ) THE Regulations permit relaxation of qualifications in the case of candidates who are otherwise well qualified for the posts. The Regulations also provide that persons whose services were transferred from the government to the University (hereinafter referred to as the Transferred officials) should be preferred provided they are deemed equal to other candidates in qualification and experience. ( 4 ) THE petitioner is a graduate having passed B. A. degree examination in second class. He is also a Law graduate. He has passed- Accounts (Higher) examination and Junior Typewriting examination. He had a total experience of 11 years' service including 4 years' experience as superintendent in the University. He was the seniormost Superintendent (General) in the services of the University. ( 5 ) THE Selection Committee called the petitioner and other applicants for interview and recommended a list of nine candidates for appointment by the Board. He had a total experience of 11 years' service including 4 years' experience as superintendent in the University. He was the seniormost Superintendent (General) in the services of the University. ( 5 ) THE Selection Committee called the petitioner and other applicants for interview and recommended a list of nine candidates for appointment by the Board. In that list the names of candidates recommended were arranged in the order of merit. As stated earlier, the petitioner was placed at serial No. 2 and respondent 2, S. R. Shivanna, and respondent 3, B. Nanjappa, were placed at serial Nos. 4 and 5, respectively in the order of merit in that list. Respondent 2 has also passed B. Com. , degree examination in second class and had over 15 years' total experience including experience of 3 years ajid 3 months as Superintendent in the University. Respondent 3 ha,s ajso passed B. A. degree examination in second class. He has also secured second class in M. A. degree in Sociology. He had 5 years totad experience including experience of 1 year and 7 months as Superintendent in the University. As. stated earlier, the Board appointed respondents 2 and 3 as Administrative Assistants and the petitioner was not so appointed. ( 6 ) NONE of the petitioner and respondents 2 and 3 was a Transferred official. All the three of them had been appointed directly by the university as Superintendents (General ). Mr. M. Rama Jois, learned Counsel for the petitioner, contended that the appointment of respondents 2 and 3 as Administrative Assistants was- (i) in contravention of the provisions ol the University of Agricultural sciences Act, 1963 (hereinafter referred to as the Act), and Statutes framed thereunder; and (ii) in violation of Arts. 14 and 16 of the Constitution. To appreciate the contention of Mr. Rama Jois, it is necessary to set out certain provisions of the Act and the Statutes of the University. Sub-sec. (6) of S. 2 of the Act defines the word 'prescribed' as prescribed by the Statutes of the University. Sec. 26 of the Act sets out the powers and duties of the Board. The relevant parts of that Section read:" 26. Sub-sec. (6) of S. 2 of the Act defines the word 'prescribed' as prescribed by the Statutes of the University. Sec. 26 of the Act sets out the powers and duties of the Board. The relevant parts of that Section read:" 26. Powers and Duties: The Board shall exercise and perform the following powers and duties, namely:- (a) * * * (c) to apppoint officers, teachers and other employees of the Univerity in the prescribed manner and to approve of appointments made by the Vice-Chancellor. The relevant part of Sec. 39 of the Act read:" 39. Statutes-Subject to the provisions of this Act the Statutes may provide for any matter and shall, in particular, provide for the following: - (a) * * * (b) the appointment and continuance in office of the members of the authorities of the University and of the officers, teachers and other employees of the University including the filling up of vacancies and all other matters relating to those authorities and officers, teachers and other employees for which it may be necessary or desirable to provide; (c) the designation, the manner of appointment, the powers and the duties of the officers of the Universitj (e) the number, qualifications, emoluments and other conditions of service of officers, teachers and other employees of the University. "in exercise of the powers conferred by sub-sec. (1) of S. 40 of the act, the Vice-Chancellor of the University made the first Statutes of the university with the approval of the Chancellor. ( 7 ) STATUTE 32 deals with service personnel. Clause (2) of that Statute provides that qualifications of service personnel in different categories shall be as determined by the Board and published as Regulations. Clause (3) of that Statute provides that the Selection Committee for the posts of service personnel shall be appointed by the Vice-Chancellor and shall be comprised of not less than 3 members, of whom 2 shall be from among the Officers of the University. Clause (4) of that Statute reads:" (4) The Selection Commitee shall review applications for the posts and consider the qualifications of all applicants including university employees who may be qualified for the post. If qualified candidates are found, the Committee shall recommend in order of merit all such candidates for appointment and/or to be placed on reserve list. Clause (4) of that Statute reads:" (4) The Selection Commitee shall review applications for the posts and consider the qualifications of all applicants including university employees who may be qualified for the post. If qualified candidates are found, the Committee shall recommend in order of merit all such candidates for appointment and/or to be placed on reserve list. The, Vice-Chancellor shall place these recommendations before the Board along with his comments, if any. " ( 8 ) ELABORATING the first contention, Mr. Rama Jois argued that under s. 26 of the Act and Statute 32 though the Board is the appointing authority for service personnel, the Selection Committee constituted under clause (3) of Statute 33, is the authority competent to make selection of candidates and to determine the order of merit of such candidates for such appointment, that therefore, the Board has to appoint persons in accordance with the selection made by the Selection Committee and in the order of merit as determined by it (the Selection Committee) and that the board had no competence to pick and choose the candidates from the list prepared by the Selection Committee and to appoint them disregarding the order of merit of candidates as determined by the Selection Committee. On the other hand, in the counter-affidavit filed on behalf of the University, it is contended that the Selection Committee can only recommend a panel of names of candidates who are found qualified for a category of posts and that the Board has competence to accept or not to accept the recommendation of the Selection Committee and to appoint any candidate whom the Board considers suitable for such posts, out of the panel prepared by the Selection Committee. ( 9 ) IN other words, according to Mr. Rama Jois, the Board can appoint only the candidates recommended by the Selection Committee, unless the board turns down the recommendation of the Selection Committee for any valid reason, whereas according to the University, the Selection Committee merely assists the Board in making appointments by making recommendations and such recommendations are not binding on the Board, nor do they fetter the power of the Board to appoint such candidates whom it considers suitable. ( 10 ) IN support of the aforesaid stand taken by the University, Mr. ( 10 ) IN support of the aforesaid stand taken by the University, Mr. P. Vishwanatha Shetty, learned Counsel for the University, strongly relied on certain observations of a Bench of this Court in K. C. Hiremath v. University of Agricultural Sciences, (1971) 2 Mys. LJ. 330. On the other hand, Mr. Rama Jois contended that those observations have no application to the present case on the ground that in that case the impugned appointments were made to teaching posts under Statute 30, while in the present case the impugned appointments were made under Statute 32. According to Mr, Rama Jois the schemes of these two Statutes are materially different. The facts of K. C. Hiremath's case (1) were these. The petitioners, k. C. Hiremath, and respondent 5 therein, J. V. Venkataram, were applicants, for the post of Associate Professor of Agricultural Economics. The selection Committee had, in its recommendation, ranked the former as no. 1 and the latter as No. 2. But the Board selected and appointed respondent 5 therein. The appointment of J. V. Venkataram was challenged in that petition. While dismissing that petition, Narayana Pai, CJ. , who spoke for the Bench, said thus at pages 334 and 335: " The best person within the meaning of the clause- (Clause (4) of Statute 15) need not necessarily be the person ranked first in the list of recommendations made by the Committee. If it were so, no further action by the Board of Regents at all would be necesary. The board is expected to apply its own mind and select a person whom it considers to be, "the best among those recommended by the Selection committee. ( 11 ) IN the, last analysis, what is of the essence of the matter is that the board while making appointments, must apply its mind to the qualifications required and the recommendations made by the Committee, including the recommendation for relaxation. As we have already pointed out, the record of the minutes of the Board of Regents contains sufficient evidence of their having applied their mind to the appointment in question including the recommendation made by the selection Committee in favour of the 5th respondent. As we have already pointed out, the record of the minutes of the Board of Regents contains sufficient evidence of their having applied their mind to the appointment in question including the recommendation made by the selection Committee in favour of the 5th respondent. " to see how far the above observations are applicable, it is necessary to compare the language of Statute 32 under which the impugned appointment was made in the present case, with that of Statute 30 which deals with the appointment of teachers in the University. As Statute 30 provides that the Selection Committee should proceed in accordance with statute 15 (2), (3) and (4), I have set out below the relevant portions of statutes 15 and 32 : statute 15" 2 (a) The Selection Committee shall review applications for the posts and consider qualifications of all applicants. . . . . . who may be qualified for the post. If a qualified candidate (s) is found, the committee shall recommend in order, of merit not more than three qualified persons. . . * * * (4) Out of the qualified persons recommended by each Selection committee the Board shall choose the best individual for appointment. "statute 32" (4) The Selection Committee shall review applications for the posts and consider the qualifications of all applicants who may be qualified for the post. If qualified candidates are found, the Committee shall recommend in order of merit all such candidates for appointment and/or to be placed on reserve list. The Vice-Chancellor shall place those recommendations before the Board along with his comments if any. " (Underlining (italics) is mine) (Underlining (italics) is mine) statute 15 provides that the Selection Committee shall recommend for each post a panel of three qualified persons in order of merit and that out of the qualified persons recommended by the Selection Committee, the Board shall choose the best person for appointment. Statute 32 provides that the Selection Committee shall recommend all qualified candidates in order of merit and that such recommendations shall be placed before the Board. While Statute 15 requires the Selection Committee to send a panel of three qualified persons (arranged in the order of merit) for each post, Statute 32 requires the Selection Committee to send a list of all qualified candidates (arranged in the order of merit ). While Statute 15 requires the Selection Committee to send a panel of three qualified persons (arranged in the order of merit) for each post, Statute 32 requires the Selection Committee to send a list of all qualified candidates (arranged in the order of merit ). Statute 15 (4) expressly states that the Board shall choose the best person out of the panel sent by the Selection Committee. But Statute 32 (4) merely states that the recommendations of the Selection Committee shall be placed before the Board, but does not expressly sta,te wha,t the Board should do after such recomendations are placed before it (the Board ). Mr. Rama Jois argued tha,t provisions in Statute 15 that the Selection committee shall send a panel of three names for every post and that the board shall choose the best person, make it clear that the Board is free to make its own selection of the candidate out of that panel and that the order of merit of candidates recommended by the Selection Committee, is no more than a mere proposal which the Board is not bound to accept. Mr. Rama Jois further argued that the scheme, of Statute 32 is entirely different, that thereunder what the Selection Committee is required to do is not preparing a panel of names but selecting all candidates whom it considers to be qualified and indicating the order of merit of such candidates and that the Board has not been given power under Statute 32 to choose or to select candidates put of the list of candidates recommended by the selection Committee. Mr. Rama Jois maintained that the above difference in the provisions of those two Statutes, should lead to the inference that under Statutes 15 and 30 the authority empowered to make the final selection of candidates for appointment, is the Board, while under Statute 32 the authority empowered to make the final selection of candidates, is the selection Committee and not the Board. It was also contended by Mr. It was also contended by Mr. Rama, Jois that if the intention of Statute 32 was to leave the final, selection of candidates in the hands of the Board as under Staute 15 and 30, there was np need for clause (4) in Statute 32 and that it would have been sufficient tp state in Statute 32, as has been done, in Statute 30, that the selection Committee shall proceed in accordance with Statute 15 (2), (3) and (4 ). ( 12 ) THE argument of Mr. Rama Jois that under Clause (e) of S. 26 of the act, the Board is empowered to appoint employees of the University, only in the manner prescribed (which means in the manner prescribed by the statutes), does not take his contention any further because it is begging the question whether the particular Statute has prescribed that the Selection committee should make the final selection or that the Board should make the final selection of candidates for appointment to posts in the University. As seen earlier, there is undoubtedly some difference in the language of Statute 15 and that of Statute 32 as to how the Selection Committee and the Board should proceed in making selection to, posts. But the question is whether such difference in language would lead to the inference suggested by Mr. Rama Jois, namely that u/statutes 15 and 30, the Board is the authority to make the final selection, whereas under Statute 32, the Selection Committee is the authority to make the final selection. If Statute 32 intended that the Selection Committee should be the authority to make the final selection of candidates and that the Bpard could appoint only persons selected by the Selection Commitete, there was no need to provide in clause (4) that the Selection Committee shall recommend all qualified candidates in the order of merit. The number of qualified candidates seeking appointment to ministerial or administrative posts in the University, will generally be more than the number of posts for which appointments are to be made. If the final selection is to be made by the Selection committee, why should it (the Selection Committee) be required to send the list of all the qualified candidates? It would have been sufficient to require the Selection Committee to send the list of candidates finally selected by it for the posts for which applications were called for. If the final selection is to be made by the Selection committee, why should it (the Selection Committee) be required to send the list of all the qualified candidates? It would have been sufficient to require the Selection Committee to send the list of candidates finally selected by it for the posts for which applications were called for. ( 13 ) THOUGH Statute 32 merely states that the recommendations shall be placed before the Board, from the very concept of recommendation and the status of the Board, it can reasonably be implied that the Board has the power to apply its own mind and to select persons whom it considers to be the best among those recommended by the Selection Committee. If Statute 32 intended that the Selection Committee should be the ultimate authority to make the selection of candidates for appointment and that the Board could appoint only persons selected by the Selection Committee, there should have been clear and unambiguous provision to that effect in that Statute (Statute, 32 ). Mr. Rama Jois urged that if Statute 32 is construed as: empowering the Board to make its own selection of candidates out of the list recommended by the Selection Committee without following the order of merit of candidates as indicated by the Selection Committee, then Statute 32 would be violative of Arts. 14 and 16 of the Constitution. Support for the above, contention was sought to be derived from the decision of the Supreme Court in State of Mysore v. S. R. Jayaram, AIR 1968 SC 346 . There the validity of sub-rue (2) of Rule 9 of the Mysore Recruitment of gazetted Probationers Rules, 1959, was challenged before the Supreme court. Those Rules make provision for direct recruitment to several cadres of the state Services on the basis of the result of a competitive examination open to all eligible candidates and the candidates are required to indicate in their applications their preference for any cadre they wish to join. The last part of sub-rule (2) of Rule 9 of those Rules had reserved to the Government the right of appointment to particular cadre any candidate whom it considered more suitable for such cadre. The last part of sub-rule (2) of Rule 9 of those Rules had reserved to the Government the right of appointment to particular cadre any candidate whom it considered more suitable for such cadre. While striking down the last part of that sub-rule, the Supreme Court observed thus at page 349:" The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9 (1) and the first part of Rule 9 (2) seek to achieve this aim. The last part of Rule 9 (2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though Rule 9 (1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to class II posts in the order of merit, Rule 9 (1) is subject to Rule 9 (2), and under the cover of Rule 9 (2) the Government can even arrogate i to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the last part of Rule 9 (2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Arts. 14 and 16 (1) of the constitution and must be struck down. " ( 14 ) I am unable to see how the above decision of the Supreme Court has any bearing on the question of validity of clause (4) of Statute 32. What that clause empowers the Board is to make the selection of persons whom it considers to be best among those recommended by the Selection Committee, after applying its (the Board's) own mind and considering the recommendation of the Selection Committee. Such power to make the seection is not an arbitrary power, but is expected t9 be exercised reasonably. If in any particular case such power is exercised by the Board arbitrarily, then the exercise of power in that particular case, will be bad and will be liable to be struck down by the Court. But Statute 32 cannot be regarded as conferring arbitrary power on the Board. Mr. If in any particular case such power is exercised by the Board arbitrarily, then the exercise of power in that particular case, will be bad and will be liable to be struck down by the Court. But Statute 32 cannot be regarded as conferring arbitrary power on the Board. Mr. Rama Jois next contended that when the petitioner was the senior-most Superintendent in the University and the Selection Committee had, after considering his qualifications, experience and performance in the interview, placed him above respondents 2 and 3 in the order of merit, the action of the Board in picking up respondents 2 and 3 for appointment ignoring the petitioner, was arbitrary, discriminatory and violative of Arts. 14 and 16 of the. Constitution. ( 15 ) IN regard to the above contention, what has been staged on behalf of the University in its objection statement, is as follows :" A panel of names which was prepared by the Selection committtee, haying been placed for consideration before the Board, the board of Regents after deliberation upon the merits and demerits of the candidates whose names were recommended for appointment by the Selection Committee, took an unanimous decision that the respondents 2 and 3 among others be appointed in the then existing vacant posts, as according to the members of the Board they were the most suitable persons for being appointed. " ( 16 ) ONCE it is held that under Statute 32 the Board has the power to make the final selection of candidates out of the candidates recommended by the selection Committee, the selection by the Board, of a candidate who was ranked lower by the Selection Committee, and not selecting a candidate who was ranked higher, cannot, per se, be regarded as arbitrary or discriminatory. . As observed by Narayana Pai, CJ. , in K. C. Hiremath's case (1), the best candidate need not necessarily be the person ranked first in the list of recommendation made by the Selection Committee. As the case of the petitioner was considered by the Board for being appointed, he cannot complain of violation of Art. 14 or 16 of the constitution merely because the Board did not select and appoint him but considered respondents 2 and 3 to be better persons. All the contentions urged by Mr. Rama, Jois fail and I dismiss this petition. All the contentions urged by Mr. Rama, Jois fail and I dismiss this petition. In the circumstances of the case there will be no order as to costs. Before concluding I wish to point out the desirability of the Board of Regents recording reasons when it does not accept the order of merit of candidates in the recommendation of the Selection Committee and appoints a candidate lower in rank in preference to a candidate higher in tank in the order of merit in such recommendation. The Sel. Committee for appointment of teacher consists of three scientists or educationists of high standing, the Dean of the University and the Director of Instruction in the college concerned. The Selection Committee for appointment of Service personnel will consist of not less than two officers of the University. When such a competent and compact body reviews the applications, considers the qualifications and experience of candidates, and has the advantage of interviewing the candidates to assess their suitability, it is needless to say that its recommendations including the order of merit of candidates, should be accepted by the Board of Regents, unless the Board has good reasons for not accepting the same. Unless the Board records its reasons in writing, it is not possible to find out whether the Board had, as a matter of fact, such good reasons for not accepting the recommendation of the Selection Committee and a candidate who was ranked higher by the Selection committee, but not selected by the Board, may, not unnaturally, feel that the Board arbitrarily picked up a candidate lower in rank in the order of merit or that extraneous considerations or mere strength of votes in the board, decided the selection. ( 17 ) IN the Bangalore University Act, 1964, clause (b) of sub-sec. (5) of s. 28 provides that when the Syndicate does not accept the recommendation of the Board of Appointment, the Syndicate shall record its reasons and submit the case to the Chancellor for the orders. It is desirable that amendments are made in the University of Agricultural sciences Act, 1963 and the Statutes on similar lines. --- *** --- .