Somnath Iyer, J.:— On October 19, 1963 the Public Service Commission issued a notification proposing to select 4 persons for the post of the Superintendent of Fisheries. By that notification which was published in the Gazette on November 7, 1963 applications were invited, and it was announced that 2 posts out of the 4 were reserved for backward classes, 1 for persons belonging to the scheduled castes and the other for schedued tribes.

The petitioner applied for the post in response to that notification, and he presented himself before the Public Service Commission which conducted an interview for making a selection on February 20, 1964. Respondents 3 to 6 were selected by the Commission, and were appointed by Government on April 21, 1964. Respondents 3, 4 and 5 belong to the backward classes and respondent 6 to the scheduled castes. Respondent 5, according to Mr. Special Government Pleader, though belonging to the backward classes, was selected on the basis of merit. This was done by the Public Service Commission in implementation of its announcement in its notification that if persons belonging to backward classes or the scheduled castes or tribes were found unsuitable for appointment, the appointments would become available to the others also.

The petitioner challenges the selection made by the Public Service Commission, and many submissions were made to us on his behalf in the context of that challenge.

One of those submissions was that the reservation of all the 4 posts for persons belonging to the backward classes or the scheduled castes or tribes was unconstitutional and the appeal in support of this postulate was to Article 16(4) of the Constitution, and to the pronouncements of the Supreme Court in Balaji v. State of Mysore(1) and Devadasan v. The Union of India(2) in which, it was urged, that the Supreme Court made the enunciation that reservation exceeding 50 per cent was unconstitutional.

But we accede to the argument advanced by Mr. Venkataramiah for Government that this submission is not available to the petitioner. The reservation far from producing any prejudice to him, placed him in a far better position than that he would have been in had the ambit of the reservation been smaller. The petitioner himself was a person belonging to the backward classes and so the opportunity for employment became bigger in consequence of others who did not belong to the backward classes having been completely excluded. So it became easier for him to secure the higher post in consequence of such exclusion. The petitioner did not therefore sustain any injury, nor was he subject to any prejudice which could produce a grievance which could form the foundation of the complaint made in this writ petition.

That was the view which we took in Writ Petition No. 732 of 1964 in the context of the challenge which was made to the identical reservation by an other, and so we negatived the challenge made to the reservation.

The next and the more serious submission was that the petitioner who was a person with a higher qualification should not have been excluded by the Public Service Commission. Our attention was asked to the Mysore General Services (Fisheries Branch) Recruitment Rules, 1960 made by the Government on June 20, 1960 which regulated recruitment among other matters, to the post of a Superintendent of Fisheries. The relevant part of the rule which prescribes qualifications as it stands amended on October 25, 1962 is:

“Category of posts—

Superintendents of Fisheries including the posts of Superintendent of Fisheries (Technology), Malpe, Assistant Director of Fisheries, Research Officer, Bangalore, and Superintendents (Marketing) Training and (Information and Utilisation).

Method of recruitment—

66 ⅔ per cent by direct recruitment; and (ii) 33 ⅓ per cent by promotion from the cadre of Assistant Superintendents of Fisheries.

Minimum qualifications and period of probation—

For Direct Recruitment: (i) Age—(a) for persons not already in service, must not be above 37 years in the case of candidates belonging to Scheduled Castes and Scheduled Tribes; and 35 years in the case of others. (b) For persons serving in the Fisheries Department: Must not be above 47 years in the case of candidates belonging to Scheduled Castes and Scheduled Tribes and 42 years in the case of others.

(2) Qualifications: A degree, in Science of a recognised University with Zoology as one of the subjects offered, or an equivalent qualification, preference being given to persons possessing higher qualifications.

(3) Training: The selected candidate should undergo training at the cost of the Government at the Central Institute of Fisheries, Bombay for a period two years and should pass the test held at the Institute at the end of the course, should he fail in the test, he is liable to refund to Government the entire amount spent on him for the training. He should also give the necessary undertaking binding himself to serve the department for a period of not less than five years.

During the period of training, the candidate will be paid Rs. 225 P.M and on successful completion of training he will be started on Rs. 275 in the grade of Rs. 275-20-375-25-600.

(4) Probation: Three years. For Promotion: Must have passed the prescribed departmental tests and must have put in a service of five years. In case suitable candidates with five years service are not available, suitable candidate with three years service may be selected.

It was urged that the petitioner passed the B.Sc examination in Zoology in the Second Class and the M.Sc in that subject in the Second Class, and so had qualifications higher than those possessed by respondents 3, 4 and 5. It was said that respondent 3 had only a B.Sc degree; that respondent 4 was a Third Class B.Sc (Hons.), and that he passed the M.Sc examination in the Second class in the second attempt, and, that respondent 5 was a Third Class B.Sc (Hons.) and that respondent 6 was a Third Class B.Sc But in the counter affidavit produced on behalf of the Public Service Commission, of which the deponent is its Secretary, it is stated that respondent 4 had higher qualifications having secured 286 marks out of 500 in the M.Sc degree examination, whereas the petitioner secured only 251 marks out of 500 marks. It is also urged that respondent 5 had better experience since he had a longer period of service to the credit, having joined the department as a Research Assistant in the year 1959 before the petitioner entered service. In another part of that affidavit, the Secretary states that at the interview conducted by the Public Service Commission the merits of the candidates were assessed in respect of general knowledge, aptitude and technical capacity for the post, and that on that basis marks were awarded by the Public Service Commission.

Mr. Special Government Pleader has made available to us the marks list prepared and that list shows that respondents 3, 4 and 5 respectively secured the first, second and third places. Respondent 3 secured 56.75 marks, respondent 4, 55.50 marks and respondent 5, 55.00 marks. Respondent 6 who belongs to the scheduled castes secured the highest place among the members of the scheduled castes securing 46.25 marks. It is plain that the maximum number of marks was 100. The marks list also discloses that the petitioner secured the eighteenth place having secured only 45 marks. What is clear from the marks list is that if the marks secured at the interview could guide the selection, respondents 3, 4, 5 and 6 were rightly selected to the exclusion of the petitioner.

But we were asked to say that the Public Service Commission had no power to conduct an interview and that once the Governor made a rule directing preference of the person possessing the highest qualifications, an interview such as the one conducted by the Commission stood be excluded.

This argument was constructed on the concluding part of the relevant rule prescribing qualifications which reads:

“Preference being given to persons possessing higher qualifications.”

It is now undisputed that we should read the Mysore General Service (Fisheries Branch) Recruitment Rules, 1960 with the Rules known as the Mysore State Civil Services (General Recruitment) Rules, 1957 made by the Governor on February 10, 1958, for understanding the procedure for an appointment by selection. The first set of Rules will be referred to by us as Special Rules and the second, as the General Rules. Rules 3 and 4 of the General Rules prescribed generally for the method of recruitment and the procedure for an appointment. Rule 3 reads:

“Method of Recruitment.—Recruitment to the State Civil Services shall be made by competitive examination, or by selection, or by promotion. The method of recruitment and qualifications for each State Civil Service shall be as set forth in the rules of recruitment of such service specially made in that behalf.”

This rule discloses that there are three methods prescribed for recruitment. One of them is the conduct of a competitive examination, the other is selection, and the third is promotion. The Public Service Commission made the impugned selections by direct recruitment, and according to the relevant provisions in the special Rules, 66 ⅔ per cent of the posts of Superintendents of Fisheries shall be filled by direct recruitment. It is clear that when an appointment is made by direct recruitment, the appointment is by selection within the meaning of rule 3 of the general Rules, although rule 3 does not speak of an appointment by direct recruitment as such. Since there are only 3 methods by which an appointment could be made and no appointment by direct recruitment was made in the case before us through a competitive examination or promotion, what should follow is that the appointments were made through the process of selection.

Rule 4 of the General Rules is:

“Procedure of appointment.—

Subject to the provisions of these rules, appointments to the State Civil Services shall be made—

(1) in the case of recruitment by competitive examination, in the order of merit, from the list of candidates prepared by the Commission or other examining authority;

(2) in the case of recruitment by selection, after giving such adequate publicity to the recruitment as the appointing authority may determine, in the order of merit of candidates as determined by the Commission, the Advisory or Selection Committee, or the appointing authority, as the case may be; and

(3) in the case of recruitment by promotion,—

(a) if it is to a selection post or to a post to be filed by promotion by selection—

by selection of a person, on the basis of merit and suitability in all respects to discharge the duties of the post with due regard to seniority from among persons eligible for promotion;

(b) to a post other than that referred to in sub-clause (a), by selection of a person on the basis of seniority cum merit, that is seniority subject to the fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion.”

Sub-rule (2) of this rule is what is opposite to the matter before us since it regulates recruitment by selection. So, under that sub-rule, adequate publicity to the recruitment such as is determined by the appointing authority is necessary, and what is of greater importance is that the Public Service Commission is invested with the power to make a selection in the order of the merit of the candidates.

The question is how that merit has to be assessed, and Mr. Special Government pleader asks attention to rule 4 of the Mysore Public Service Commission (Functions) Rules, 1957 made by the Governor on December 12, 1957 which reads:

“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 Commission.

(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 the order of preference;

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

The interview in the case before us was, according to Mr. Special Government Pleader, conducted in the exercise of the power created by sub-rule (3), and it was urged that respondents 3 to 6 were considered by the Commission, after an assessment of the relative merit of the candidates, as persons most suitable for appointment.

We should mention here that in the supplementary affidavit produced on behalf of the petitioner on August 11, 1966, 2 years and 5 months after the writ petition was presented, there is an allegation that the Director of Fisheries was invited by the Commission to be present at the interview to assist it, and, that he evinced undue interest in the selection of respondent 3 who came from the Bombay-Karnatak area and in whom the previous Director of Fisheries was interested. On the basis of this allegation, it was suggested to us that the selection of respondent 3 did not really rest upon his merit, but, was actuated by collateral considerations. We think that the imputation is groundless. The selection was made by the Public Service Commission none of whom, had any special interest in respondent 3. It is not right to think that the members of the Commission could have been influenced by the Director of Fisheries or that the Director of Fisheries who was present at the interview would have any reason to sponsor a candidate in whom his predecessor was interested.

Now sub-rule (3) of rule 4 of the Mysore Public Service Commission (Functions) Rules, 1957 which we shall call the Functions Rules, empowers the Commission to interview the candidates for selecting the most suitable candidates when an appointment has to be made by selection, as it was made in the case before us. The provision in the Special Rules that a candidate with a higher qualification shall be preferred, does not, therefore exclude an interview which is expressly authorised by Rule 4 of the Functions Rules. If the appointment is to be made by selection, the selection should be made by a designated instrumentality, and the prescription of a qualification by the Governor would not dispense with the creation of that instrumentality. Some one had to make that selection, and so the Governor who designated the Commission as the selecting authority, made suitability the true criterion. The complementary direction in the Special Rules for a preference for a higher qualification, does not therefore exclude a really suitable person with a lower qualification. A higher academic qualification is generally a dependable index of superior merit, which endows in its turn suitability in many spheres. But, the postulate that it is necessarily so, is an excessive assertion which cannot claim the virtue of infallibility. A higher qualification which is a good and trustworthy source of superior suitability does not eliminate other equally efficacious attainments which can bestow that attribute. So, academic distinction is not always, an accurate measure of suitability for employment although generally speaking it may be a safe guide for its estimate.

The Special Rules do not inject into a higher Qualification the vitality claimed for it. It has no higher potency than the ability to produce a preferential claim, where suitability is equal. The mandate of Rule 4(3) of the Functions Rules is a quest for the most suitable, and, it is plain that one who is superior to others with equivalent qualifications, and, is more suitable than those who have higher qualifications, is, the most suitable. The superior qualification which could turn the scale only if suitability be in an equal measure, would then have no utility.

Our view receives support from the decision of this Court in S.A Partha v. State of Mysore wherein this Court observed:

“In dealing with these arguments, the first and primary factor to be borne in mind is that when the number of seats available is much smaller than the number of applicants, selection becomes inevitable. The argument that the marks obtained by the several candidates at the qualifying examinations should alone be the guiding factor does not exclude the idea of selection. Hence, it follows that the mere passing of a qualifying examination by securing the minimum number of marks required for a pass does not by itself entitle a particular person to secure admission. A further test for selection should, therefore, be applied.”

The observations of the Supreme Court in Chitralekha v. State of Mysore are, in our opinion, to the same effect.

So, it becomes plain that the determining criterion is not the higher qualification as contended, but suitability in the opinion of the Public Service Commission, which, cannot of court disregard the higher qualification, if the candidate is otherwise suitable. But the fualification by itself will not earn a selection unless it stands reinforced and supplemented by suitability in other material respects.

In his affidavit, the Commission's Secretary states that the interview conducted by the Commission related to general knowledge, aptitude and technical capacity, and it is plain that those matters were not irrelevant to the assessment of suitability Rule 4 of the Functions Rules empowers an interview for assessing suitability, and it is for the members of the Commission to decide upon the most satisfactory process for such assessment, and, it is not for us to say that the method selected by them so long as it is not irrelevant, was not as good as some other method. In The University of Mysore v. Govinda Rao the Supreme Court made the enunciation that the recommendation made by the Board of Appointment nominated by a University for the appointment of a person adjudged by it to be most suitable, is normally not suceptible, to challenge before a Court which should be slow to interfere with the opinion of an expert body like the Board of Appointment. We think that is also what we should say about the opinion of a similar expert body like the Public Service Commission which has so much of experience and wisdom in the selection of persons for appointment to the civil services of the State. We take the view that a qualification which may form the basis for preference if other things are equal, does not exclude investigation into suitability which is the really relevant credential. Sub-rule (3) of Rule 4 of the Functions Rules, is what invests the Commission with the power to conduct an interview for its assessment.

In regard to some of the matters for which there is provision in the Functions Rules, there was a legislation by the State Legislature called the Mysore Public Service Commission (Conduct of Business and Additional Functions) Act, 1959 (Mysore Act 20 of 1959) which came into force on the 31st day of December 1959. But, that Act did not repeal Rule 4 of the Functions Rules and it was not contended that it did. Since that legislation contains no provisions regulating matters which stand regulated by rule 4, there was no argument that rule 4 did not operate at the relevant point of time.

But Mr. Iyengar urged that the interview by the Commission, even if it was within the competence of the Commission, was defective. This contention was raised for the first time in the supplementary affidavit produced in August 1966, 2 years and 5 months after the presentation of the writ Petition. The stress of the argument was that whereas the Public Service Commission was composed of five members including the Chairman, the interview was conducted by only four and that one was absent. So it was said that interview was not the interview authorised by Rule 4 of the Functions Rules, and so could not properly form the basis of selection.

Mr. Special Government Pleader opposed our according permission to the petitioner to raise the new ground, and, contended that even otherwise, since, Section 9 of the Mysore Public Service Commission (Conduct of Business and Additional Functions) Act, 1959 which will be referred to as the Act, and which came into force on the 31st day of December 1959 provided that the quorum for a meeting of the Commission shall be two, the interview was unassailable since four members of the Commission including the Chairman participated in it. That Section reads:

“Quorum.—The quorum for a meeting of the commission shall be two but the Presiding Officer may adjourn any business at a meeting if he is of opinion that it cannot conveniently be transacted owing to the non-attendance of any Member.”

It was however urged for the petitioner that the quorum prescribed by Section 9 has no relevance to an interview such as the one prescribed by Rule 4 of the Functions Rules, and, that quorum has reference only to the meetings of the Commission convened for the transaction of its day-to-day administrative functions and business.

It seems to us that we should in the context of the question which we are now considering, advert to Section 13 of the Act which reads:

“Interviews.—When candidates for appointments have to be interviewed by the Commission, the interview may be conducted by two or more Members authorised by the Commission, and the results of such interview shall be placed before the Commission for decision.”

This Section appears to be more opposite although no argument was constructed before us for the petitioner on its provisions. The clear meaning of this Section is that when an interview has to be conducted by the Commissioner, that interview may be conducted by two or more members provided they are authorised by the Commission to do so and provided also the result of the interview is placed before the Commission for its decision.

Now in the case before us four members of the Commission conducted the interview although the Commission consisted of five persons. There is no allegation even in the supplementary affidavit produced by the petitioner so late as on August 11, 1966, that those four members were not authorised by the Commission to conduct the interview or that the result of the interview so conducted by them was not placed before the Commission for its decision. All that was stated in para 3 of that affidavit was that one of the members of the Public Service Commission was absent and that the others who were present, gave their own marks to the candidates and that an average was struck by the members of the Commission who conducted the interview. The relevant allegation reads:

“On the last date of hearing the record kept regarding the marks that had been given was produced by the learned Government Pleader. It is seen from that record that one of the members of the Public Service Commission was absent and that the rest of the members who were present had given differing marks at the interview; that an average was struck by totalling the marks and dividing it by the number of the members of the Commission who were present, and had given marks.”

In para 4 and 5 of the affidavit, the petitioner proceeded to State that all the members of the Commission had to be present at the interview in order that the interview may be efficacious.

But we think that there is one good reason why the absence of one of the members becomes irrelevant. The marks list prepared by the Commission contains a recital that the first member of the Commission as he was called, was absent, since, he was on “earned leave”. It is true that in the absence of any other provision, power entrusted to a statutory or constitutional body consisting of more than one individual must be exercised by all the persons composing that body in the exercise of their collective wisdom. That being so, had not a quorum been prescribed by Section 9 of the Act and had not the interview been regulated by Section 13, participation by all the members of the Commission either for the transaction of its business or for an interview as the case may be, would have been compulsory. But we think that if that body is a constitutional body like the Public Service Commission the members of which are entitled to earned leave, and, one of the members is absent from duty and so he is under no obligation to perform it when he has been properly granted earned leave, that constitutional body is what is composed of the other members of that body who are still under an obligation to perform the prescribed functions and duties. The public Service Commission being one such constitutional body, any act which could be performed by it at any relevant point of time could be performed by those members of the Commission of which the Commission at that point of time is composed excluding from it the member of the Commission who is not in a position to perform that duty by reason of his having been properly granted earned leave. During the period he is on such earned leave, it is no longer possible for him to function as a member of the Commission, and so the Commission in law is properly composed of the remaining members. Those members then constitute the Commission, and an act performed by them is an act performed by the Commission itself. In that view of the matter, the interview conducted by four members of the Commission including the Chairman was in reality and in law, an interview conducted by the Commission, and so is above the reproach that any one who was part of the Commission was not present at the interview.

Mr. Venkataramiah, the Special Government Pleader, asked attention to Section 8 of the Act which reads:—

“Vacancy, etc., not to invalidate proceedings.—The proceedings of the Commission shall not be in-validate by any vacancy or by the absence of a Member.”

We think that he is right in appealing to this Section in support of his submission that the absence of the first member of the Commission did not vitiate the interview. We are of the opinion that even if there be any defect in the interview in consequence of the absence of one of the members of the Commission, that defect is remedied by Section 8.

An argument was maintained that the selection made by the Commission resulted in a deprivation of the benefit of the reservation for backward classes, and, that the selection was “a fraud on power” as it was called. We were asked to say that the interview was not an objective interview and was a mere make believe preceded by an earlier private choice by the members of the Public Service Commission, of persons, in whom they were specially interested.

We dismiss this unfounded and misconceived imputation against the Commission. We see no truth in it. Although there is an allegation in para 18 of the affidavit produced on August 11, 1966 that the selection was “a fraud on power”, there is no allegation in any one of the affidavits produced by the petitioner that the selection by the Commission was actuated by any collateral considerations such as those to which we have referred. Further no materials are placed before us from which we can deduce that the selection was made in that way.

The selection was guided, as we can see, by the assessment of the merits of the candidates on the basis of marks awarded to them by the Commission. That assessment, in our opinion, was properly made, and, we see no reason to think that it was not fair or reasonable. The petitioner who secured the eighteenth place in that list was for below the three candidates who belonged to the backward classes like himself, and who obtained the first three places. He was also very distant from the scheduled castes candidate who secured the thirteenth place.

It is therefore not possible for him to challenge his exclusion or the selection of the others.

So, we dismiss this writ petition. But we make no direction in regard to costs.