Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
UMESH CHANDRA SHUKLA ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT02/08/1985
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
MISRA, R.B. (J)
CITATION:
1985 AIR 1351 1985 SCR Supl. (2) 367
1985 SCC (3) 721 1985 SCALE (2)103
CITATOR INFO :
R 1987 SC2267 (11)
R 1988 SC 162 (17)
ACT:
Constitution of India 1950, Article 234 & Delhi
Judicial Service Rules, Rules 16, 17 and 18
Subordinate Judges - Recruitment of - Service Rules
providing for written examination and viva-voca test and
prescribing minimum marks for qualifying - High Court by
Full Court decision adding two marks to marks obtained in
each written paper of Candidate by way of moderation -
Selection Committee fixing minimum of 60% marks in aggregate
after viva voce test - Full Court and Selection Committee
decisions - Whether valid and proper.
HEADNOTE:
Recruitment to the Delhi Judicial Services was governed
by the Delhi Judicial Service Rules 1970. Rule 13 thereof
provided that after the initial recruitment, recruitments
shall be made on the basis of a competitive examination to
be held by the High Court. Rule 14 prescribed the minimum
qualification for a candidate to be eligible to appear at
the competitive examination viz. (a) citizen of India, (b) a
person practising as an advocate or qualified to be admitted
as an advocate; and (c) not more than 32 years of age. Rule
15 provided that the syllabus for the examination and the
fee payable shall be as detailed in the Appendix to the
Rules. The examination was to consist of five written papers
and a viva voce test. Clause (b) of the Appendix dealt with
viva voce, and provided that: "Only such candidates will be
called for viva voce who have obtained 50% in each written
paper and 60% in the aggregate except in the case of
candidates belonging to the Scheduled Castes/Tribes in whose
case the qualifying marks will be 40% in each written paper
and 50% in the aggregate’. The marks obtained in the viva
voce was to be added to the marks obtained in the written
papers and the candidates, rank depended on the aggregate of
both. Rule 16 provided that after the written test the High
Court was to arrange the names of candidates in order of
merit and the names to be sent to the Selection Committee.
Rules 17 and 18 provided that the Selection Committee shall
call for the viva voce test only such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
368
candidates who qualified in the written test, and after the
viva voce test the Selection Committee was to prepare a list
of candidates in order of merit and to forward the same to
the Administrator.
The Registrar of the Delhi High Court through a
notification called for application from eligible persons
for filing the posts in the Delhi Judicial Service. A large
number of candidates who were eligible applied in response
thereto. The examination in the written papers were held and
after the answer books were valued, the names of 27
candidates who were eligible for the viva voce test under
the Rules were published on the Notice Board. Theses
candidates were admitted to the viva voce test by the
Selection Committee. Before the final list of the candidates
was published by the Selection Committee as required by Rule
18, the petitioners in the Writ Petition came to know that
the names of certain candidates whose names had not been
included in the above list of 27 qualified candidates were
included in the final list by the Selection Committee and
that the names of certain candidates who had been
interviewed by the Selection Committee had been omitted from
the said final list.
The petitioners in that writ petition question the
validity of the procedure adopted by the High Court and the
Selection Committee in the preparation of the final list of
successful candidates and contended that it was not open to
the High Court to include in the list prepared under Rule 16
names of the candidates who had not secured the minimum
marks prescribed for eligibility to appear in the viva voce
test and that it was not open to the Selection Committee or
the High Court to omit the names of certain candidates who
had appeared at the viva voce test from the final list.
The writ petitions were contested and opposed by the
High Court, by contending that the petitioners had no right
to maintain the writ petitions and that the High Court had
treated all candidates equally. It was further contended
that the results of the written examination were placed
before the Full court for approval, and that the Full Court
approved the initial list of 27 candidates who qualified at
the written test. However, as a few candidates who had
secured very high marks were kept out of the zone of
consideration for final selection by reason of having
secured one or two marks below the aggregate marks
prescribed, moderation of two marks in each paper to every
candidate was done, and on the basis of this moderation and
as a result of
369
revaluation of one answer book of one candidate, a second
list was prepared showing the names of 8 candidates who also
qualified for the viva voce test.
On the question: (1) whether the High Court had the
power to add two marks to the marks obtaining in each paper
by way of moderation, and (2) whether the High Court had
power to eliminate the names of the candidates who have
secured less than the 60% marks in the aggregate after the
viva voce test.
Allowing the writ petitions,
^
HELD: 1.(a) The list prepared by the High Court after
adding the moderation marks is liable to be struck down.
[382 D]
(b) Rule 16 of the Rules merely laid down that after
the written examination the High Court shall arrange the
names in order of merit of candidates who had obtained the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
qualifying marks and these names shall be sent to the
Selection Committee. The High Court had therefore no power
to include the names of candidates who had not initially
secured the minimum qualifying marks in the written papers
by resorting to the devise of moderation, particularly when
there was no complaint either about the question papers or
about the mode of valuation. Exercise of such power of
moderation is likely to create a feeling of distrust in the
process of public appointments which is intended to be fair
and impartial. It may also result in the violation of the
principle of equality and may lead to arbitrariness. [382 B-
C]
(c) The mandatory character of clause (6) in the
Appendix to the Rules provides that only such candidates
will be called for viva voce who have obtained 50% marks in
the written paper and 60% in the aggregate except in the
case of candidates belonging to the Scheduled Castes/Tribes
in whose case the qualifying marks will be 40% in each
written paper and 50% in the aggregate. Addition of any was
by way of moderation to the marks obtained in any written
paper or to the aggregate of the marks, in order to make a
candidate eligible to appear in the viva voce test would
indirectly amount to an amendment of clause (6) of the
Appendix. [381 B-C]
2.(a) There is no power reserved under Rule 18 of the
Rules for the High Court to fix its own minimum marks in
order to include candidates in the final list. [382 G]
370
(b) No fresh disqualification or bar may be created by
the High Court or the Selection Committee merely on the
basis of the marks obtained at the examination, because
clause (6) of the Appendix itself has laid down the minimum
marks which a candidate should obtain in the written papers
or in the aggregate in order to qualify himself to become
member of the Judicial Service. The prescription of the
minimum of 600 marks in the aggregate by the Selection
Committee as an additional requirement which the candidate
has to satisfy amounts to an amendment of what is prescribed
by clause (6) of the Appendix. [383 B-C]
In the instant case, the decision that a candidate
should have secured minimum of 600 marks in order to be
included in the final select list is not even taken by the
High Court but by the Selection Committee. [383 D]
(c) The exclusion of the names of certain candidates
who have not secured 600 marks in the aggregate from the
list prepared under Rules 18 of the Rules is not legal. The
list is quashed and it is directed that a fresh list shall
be prepared in order of merit on the basis of the aggregate
of the marks obtained by the candidates at the written
examination and at the viva voce test without taking into
consideration the moderation marks added by the High Court,
and without reference to the decision of the Selection
Committee that candidates who had obtained less than 600
marks in the aggregate should not be included in that list.
The appointing authority is directed to treat the final list
so preared as the list forwarded to it under Rule 18 of the
Rules. [382 F-383B]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition Nos. 3805 and 3850
of 1985 etc.
Y.S. Chitale, P.P. Rao, M.K. Ramamurthi, R.K. Garg,
F.S. Nariman, K. Parasaran, Attorney General, S.M. Ashri,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
Petitioner-in-person, Rakesh K. Khanna, Jaspal Singh, S.K.
Verma, Miss Asha Rani Jain, P.H. Parekh, S.K. Verma, C.M.
Nayar, K. Swamy, S.S. Khanduja, Yashpal Dhingra, Miss Rani
Jethmalani, A.K. Ganguli, M.A. Krishnamoorthy, R.N. Poddar,
S.K. Bisaria, Jank Raj Joshi, Kailash Vasdev, Mrs. Vinod
Arya, K. Swami, V.K. Maheshwari, U.R. Lalit and Mrs. Indira
Sawhney for the appearing parties.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. In these petitions filed under
Article 32 of the Constitution the petitioners have
challenged the validity of the proceedings relating to the
competitive examination held
371
by the High Court of Delhi for the purpose of recruiting
candidates for filling the posts in the Delhi Judicial
Service in the year 1984 and of the final list of selected
candidates at that examination. The petitioner in Transfer
Case No. 61 of 1985, which was also heard along with the
above petitions, had filed earlier a writ petition under
Article 226 of the Constitution before the High Court of
Delhi for the very same relief. That writ petition was
withdrawn by an order made under Article 139A of the
Constitution for being disposed of along with the writ
petitions filed in this court.
The petitioners in the above petitions were applicants
for the posts of Subordinate Judges in the Delhi Judicial
Service. Recruitment to the Delhi Judicial Service is
governed by the Delhi Judicial Service Rules, 1970
(hereinafter referred to as ’the Rules’) made by the Lt.
Governor of Delhi in exercise of the powers conferred by the
proviso to Article 309 of the Constitution read with Article
234 of the Constitution, in consultation with the High Court
of Delhi. The initial recruitment to the Delhi Judicial
Service was made in accordance with Part III of the Rules.
’Initial recruitment’ means the first recruitment and
appointment made to the Delhi Judicial Service after the
commencement of the Rules. Any recruitment to the Delhi
Judicial Service after the initial recruitment is required
to be made in accordance with the rules contained in Part IV
of the Rules. We are concerned in these cases mainly with
Rules 13 to 18 of the Rules and the Appendix attached
thereto. Rule 13 of the Rules provides that recruitment
after the initial recruitment, shall be made on the basis of
a competitive examination to be held by the High Court at
such intervals as the Administrator may in consultation with
the High Court determine. The Administrator is not other
than the Lt. Governor of Delhi. The dates on which and the
place at which the examination is to be held are required to
be fixed by the Administrator. Rule 14 prescribes the
minimum qualifications for a candidate which he should
satisfy in order to be eligible to appear at the competitive
examination. A candidate is eligible to appear at the
examination if he is (a) a citizen of India; (b) a person
practising as an advocate in India or a person qualified to
be admitted as an advocate under the Advocates Act, 1961;
and (c) not more than 32 years of age on the Ist day of
January following the date of commencement of the
examination. Rule 15 of the Rules provides that the syllabus
for the examination and the fees payable shall be as
detailed in the Appendix attached to the Rules. The
examination includes the following subjects and each subject
carries the number of marks shown against it:
372
(1) Essay and General Knowledge 150
(2) Language 100
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
(3) Law Paper (I) and Civil Law 200
(4) Law Paper (II) Civil Law 200
(5) Paper(III) Criminal Law 200
(6) Viva Voce 150
The first five papers are called written papers. In
clauses (1) to (5) of the Appendix the topics or subjects of
each of the above written papers are set-out. Clause (6) of
the Appendix which deals with Viva Vore reads as under:-
"(6) Viva Voce:- Only such candidates will be
called for Viva Voce who have obtained 50% in each
written paper and 60 per cent in the aggregate
except in the case of candidates belonging to the
Scheduled Castes/Tribes, in whose case the
qualifying marks will be 40% in each written paper
and 50% in the aggregate."
The marks obtained in the Viva Voce have to be added to
the marks obtained in the written papers and the candidate’s
rank depends on the aggregate of both. Rule 16 of the Rules
provides that after the written test, the High Court shall
arrange the names of the candidates in order of merit and
these names shall be sent to the Selection Committee. The
constitution of the Selection Committee is described by rule
5 of the Rules. It provides that for purposes of recruitment
to the Delhi Judicial Service there shall be a Selection
Committee consisting of the following:-
"(1) Chief Justice or a Judge of the High Court
deputed by him.
(2) Two Judges of the High Court nominated by the Chief
Justice.
(3) Chief Secretary, Delhi Administration, Delhi.
(4) A Secretary of the Delhi Administration nominated
by the Administrator."
The Registrar of the High Court is the ex officio
Secretary to the Committee. The Selection Committee is
required to call for Viva Voce test only such candidates who
have qualified at the
373
written test as provided in the Appendix. The duties and
functions of the Selection Committee are set out in rules 17
and 18 of the Rules. They read:
"17. The Selection Committee shall call for viva
voce test only such candidates, who have qualified
at the written test as provided in the appendix.
18. The Selection Committee shall prepare a list
of candidates in order of merit. Such list will be
forwarded to the Administrator for filling the
vacancies then existing or any vacancy that may
occur within a period of one year of the
preparation of the list."
The foregoing is in brief the summary of the rules
governing the recruitment of persons to the Delhi Judicial
Service after the initial recruitment. On July 5, 1984 a
notification was published in the local newspapers by the
Registrar of Delhi High Court calling for applications from
eligible persons for filling the posts in the Delhi Judicial
Service. A large number of candidates who were eligible
under the Rules applied in response to the said
notification. The examination in the written papers, i.e.,
Essay and General Knowledge, Language, Law Paper (I) and
Civil Law, Law Paper (II) Civil Law and Paper (III) Criminal
law was held in October, 1984. After the answer books at the
written examination were valued, the names of 27 candidates,
who were eligible for the viva voce test under the Rules,
i.e., the candidates who had obtained not less than 50 per
cent marks in each written paper and not less than 60 per
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
cent in the aggregate amongst candidates not belonging to
the Scheduled Castes/Tribes and the candidates belonging to
Scheduled Castes/Tribes who had obtained not less than 40
per cent marks in each written paper and not less than 50%
in the aggregate, were published on the Notice Board of the
Delhi High Court in the early part of January, 1985. The
names of the said candidates were arranged in accordance
with their Roll Numbers and not in the order of merit. The
following is the list of 27 candidates:-
Sl. Roll Name
No. No.
--- --- -----
1. 20 Sh. Naresh Kumar Kaushik
2. 30 Miss Sangita Dhingra
3. 35 Sh. Pradeep Chaddha
4. 36 Sh. Narender Kumar
374
5. 57 Miss Ravinder Kaur
6. 58 Sh. Kunda Singh Mohi
7. 61 Sh. Padam Kant Saxena
8. 103 Sh. Teeka Ram
9. 112 Miss Anu Prem Shanker Kapoor
10. 170 Sh. Vinod Kumar Maheshwari
11. 180 Sh. Brijesh Sethi
12. 220 Miss Asha Menon
13. 258 Sh. Rakesh Garg
14. 287 Sh. A.K. Chaturvedi
15. 311 Sh. Sukhdev Singh
16. 342 Sh. Sudip Ahluwalia
17. 404 Sh. Pawan Kumar
18. 416 Sh. Dimpy Kumar Malhotra
19. 442 Sh. R. Kiran Nath
20. 526 Sh. Dilbagh Singh Punia
21. 715 Sh. Satish Kumar Minocha
22. 962 Sh. Jaipal Singh Malik
23. 996 Sh. Suraj Bhan
24. 1081 Sh. Narindar Pal Kaushik
25. 1510 Miss Rekha Rani
26. 1566 Sh. Kamlesh Kumar
27. 1883 Sh. Kamlesh Chander Agarwal
These candidates were admitted to the Viva Voce test by the
Selection Committee. Before the final list of candidates was
published by the Selection Committee, as required by rule 18
of the Rules, the petitioners came to know that names of
certain candidates who names had not been included in the
above list of 27 qualified candidates had been included in
the final list by the Selection Committee and that the names
of certain candidates who had been interviewed by the
Selection Committee had been omitted from the said final
list. Immediately thereafter the petitioners filed those
petitions questioning the validity of the procedure adopted
by the High Court and the Selection Committee in the
preparation of the final list of successful candidates. It
is not necessary to refer to all the allegations made in the
petitions for the purpose of deciding these cases. We
propose to deal with only two contentions raised by the
petitioners, namely:-
(1) Whether it was open to the High Court to
include in the list prepared under rule 16 of the
Rules names of the candidates who had not secured
the minimum marks prescribed in the Appendix of
the Rules for being eligible to appear at the Viva
Voce test; and
375
(2) Whether it was open to the Selection Committee
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
or the High Court to omit the names of certain
candidates who had appeared at the Viva Voce
examination from the final list.
In order to appreciate the above contentions, it is
necessary to set out what the Deputy Registrar of the High
Court of Delhi has stated in his counter-affidavit filed on
behalf of the High court in answer to the allegations made
by the petitioners. In the counter-affidavit dated 12.4.1985
filed in Writ Petition No. 3805 of 1985, the Deputy
Registrar has stated as under:-
II (a) ..........................................
(b) The petitioner in any event has no right to
maintain the present petition.
I state that on the basis of the written
competitive examination held in October, 1984 for
recruitment to the Delhi Judicial Service, the
High Court of Delhi had prepared a list of 27
candidates who qualified at the written test.
Subsequently, by reason of a Full Court decision
of the High Court, the marks obtained by the
candidates at the written test were moderated by
granting two marks to each of the candidates in
each paper for the reasons detailed herein below.
On the basis of this moderation and as a result of
re-valuation of papers of one candidate (details
of which are given below) a second list was
prepared showing the names of 8 candidates who
also qualified for the Viva Voce
test...........................
(c) High Court has treated each candidate equally.
I state that as a general practice, after the
written examinations are held for recruitment to
the Delhi Judicial Service, the results of the
same are placed before the Full Court for their
Lordships approval. The results of the written
examination held in 1984 for recruitment to the
Delhi Judicial Service were also placed before the
Full Court. The Full Court approved the initial
list of 27 candidates who qualified at the said
written test. However, the Hon’ble
376
Judges of the High Court having appreciated that a
few candidates who had otherwise scored very high
marks would have to be kept out of the zone of
consideration for final selection by reason of
their having secured one or two marks below the
aggregate or the qualifying marks prescribed for
the particular paper, decided that "moderation of
two marks in each paper to every candidate of the
1984, Delhi Judicial Service be done". Moderation
has been done on several occasions in the past
also. Accordingly, a second list was also prepared
by the High Court and was put on the notice board
for information of all the candidates. The said
two lists of candidates who qualified at the
written test, both before and after the
moderation/revaluation, are annexed hereto and
marked as ’annexure ’B’ and ’C’, respectively. A
list of the candidates who had otherwise scored
good marks in individual papers but could not
secure 60% in the aggregate is annexed hereto and
marked as Annexure ’D’. There was yet another
candidate, namely, Shri Raj Kamal Gaur who had
scored very good marks in all the law papers viz.
in Criminal Law 178 out of 200; in Civil Law (I)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
144 out of 200 , in Civil Law (II) 133 out of 200
and in language 50 out of 100 but secured 73 marks
out of 150 in the Essay and General Knowledge
paper and thus disqualified himself for lack of
only 2 marks in the Essay and General Knowledge
paper. This case was also taken into consideration
by the Full Court for deciding to grant two
additional marks to each candidate in each
subject. This candidate if had only secured 75%
marks out of 150 in Essay and General Knowledge
paper would have obtained No.2 position in the
merit list even without the addition of two marks
in other papers which were subsequently awarded to
him as well as to others by reasons of the Full
Court decision. Shri Raj Kumar Gaur is an advocate
practising at Bhiwani (Haryana) and the other
candidates mentioned in annexure ’D’ above are
neither related nor in any way connected with the
staff of the High Court or the Judges of the High
Court."
In the counter-affidavit filed in Writ Petition No.
4363 of 1985 in paragraph 7 the Deputy Registrar stated:-
"In reply to para 7 of the writ petition it is
admitted to be correct that it is provided in Rule
18
377
that the Selection Committee shall prepare a list
of candidates in order of merit, and that such
list may be forwarded to the Administrator for
filing the vacancies then existing or any vacancy
that may occur within a period of one year of the
preparation of the list. It is submitted that if
this rule is interpreted to mean that the
Selection Committee shall even if it considers in
the Viva voce test - a candidate to be not
suitable for appointment to the Delhi Judicial
Service then too it shall recommend his name for
appointment to the Service it will render the
purpose of viva voce test to be farce and mere
empty formality. In the viva voce test the
Selection Committee has to judge the suitability
of the candidates for appointment to the Service
from various aspects. The process of selection of
suitable candidates to any responsible post
involves by itself a minimum standard to be
crossed by candidates and that has to be
subjectively determined by the Selection Committee
itself. This requirement is all the more important
in recruitment to subordinate judiciary. It is
submitted that in the present case the Selection
Committee has considered only those general
candidates, who have secured 600 or more marks in
aggregate, and only the first two Scheduled Castes
candidates to be suitable for appointment to the
Delhi Judicial Service. The Selection Committee in
its recommendations dated 1.2.1985 observed that
it selects and recommends for appointment only 21
candidates to the service. A copy of the complete
list together with a copy of the order passed by
Selection Committee in this behalf is enclosed for
perusal and marked as Annexure E-1."
The final select list prepared by the Selection
Committee is annexed to the counter-affidavit filed in Writ
Petition 4365 of 1985. It contains the following names which
are arranged in the order of merit:-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
Sl. Name
No.
--- ----
1. Miss Sangita Dhingra
2. Sh. Dimpy Kumar Malhotra
3. Ms. Anu Prem Shanker
4. Smt. R. Kiran Nath
378
5. Ms. Ravinder Kaur
6. Sh. Kamlesh Chandra Agarwal
7. Sh. Rajan Sharma
8. Sh. Satish Km. Manocha
9. Sh. Narender Paul Kaushik
10. Sh. Raj Kamal Gaur
11. Ms. Asha Menon
12. Sh. Pawan Kumar
13. Sh. Pradeep Chaddah
14. Sh. Narender Kumar
15. Sh. Naresh Kumar Kaushik
16. Sh. Padam Kant Saxena
17. Sh. Brijesh Sethi
18. Miss Rekha Rani
19. Miss Punam Jai
20. Sh. A.K. Chaturvedi
21. Sh. Sudip Ahluwalia
22. Sh. Dilbag Singh
23. Sh. Kamlesh Kumar
24. Sh. V.K. Maheshwari
25. Sh. Rakesh Garg
26. Sh. J.S. Malik
27. Sh. Raj Kumar Jain
28. Sh. Suman Kr. Khanna
29. Sh. Rajinder Kumar Grover
30. Sh. Vijay Kumar
Scheduled Caste Candidates:-
1. Sh. Sukhdev Singh
2. Sh. Teeka Ram
3. Sh. Kunda Singh Mohi
4. Sh. Gian Chand
5. Sh. Suraj Bhan"
It is seen from the extract of the counter-affidavit
filed in Writ Petition No. 3805 of 1985 that the results at
the written examination were placed before the Full Court
Meeting of the Delhi High Court for its approval on January
25, 1985. The true copy of the minutes of the Full Court
Meeting held on January 25, 1985 is produced before us. It
reads:
"Agenda Minutes
To consider the The Full Court considered the ques-
question whether tion and decided as follows:-
379
High Court has (i) Re-checking is always possible.
the power to re-
check and revalue (ii) If there is to be revaluation,
the answer book of it must be by the same
an examinee of the examiner
Delhi Judicial (iii) Revaluation may be ordered by
service. the Hon’ble the Chief Justice
where he thinks it is a
deserving case for sufficient
reasons.
(iv) Moderation of 2 marks in each
paper to every candidate of
the 1984 Delhi Judicial
Service Examination be done."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
It is seen from the above minutes that the subject for
consideration at the meeting was whether the "High Court has
the power to recheck and revalue the answer book of an
examinee of the Delhi Judicial Service." It may be stated
here that one of the candidates had submitted a petition to
the High Court requesting it to get some of his answer books
revalued before the above Full Court Meeting was held.
Resolutions (i) to (iii) passed at the Full Court Meeting
relate to the said petition for revaluation. We are not
concerned in these cases with the question whether the High
Court has the power to get the answer books revalued since
the case of the candidate who had prayed for revaluation of
his answer books has already been disposed of by a separate
order on July 26, 1985 made in Writ Petition No. 3805 of
1985 by which he was permitted to withdraw from the contest.
We are concerned, therefore, only with Resolution No. (iv)
passed at the Full Court Meeting deciding to add two marks
to the marks obtained by a candidate in each paper. On this
question the Deputy Registrar has stated in the course of
his counter affidavit thus:-
The Full Court approved the initial list of 27
candidates who qualified at the said written test.
However, the Hon’ble Judges of the High Court
having appreciated that a few candidates who had
otherwise scored very high marks would have to be
kept out of the zone of consideration for final
selection by reason of their having secured one or
two marks below the aggregate or the qualifying
marks prescribed for the particular paper, decided
that moderation of two
380
marks in each paper to every candidate of the 1984
Delhi Judicial Service be done. Moderation has
been done on several occasions in the past also."
The question for consideration is whether the High
Court in the circumstances of this case had the power to add
two marks to the marks obtained in each paper by way of
moderation. It is no doubt, true that the High Court is
entrusted with the duty of conducting the competitive
examination under rule 13 of the Rules. It is argued on
behalf of the High Court that the power to conduct an
examination includes the power to add marks either by way of
moderation or by way of grace marks if it feels that it is
necessary to do so, and reliance is placed by the High Court
on its own past practice, and the practice prevailing in a
number of universities in India, where marks are awarded
either as moderation marks or as grace marks. It is true
that in some educational institutions marks are awarded by
way of moderation at an examination if the examining body
finds any defect in the examination conducted by it such as
inclusion of questions in the question papers which are
outside the syllabus, extremely stiff valuation of the
answer books by an examiner or any other reason relevant to
the question papers or the valuation of the answer books.
The reason given by the High Court for adding the moderation
marks has nothing to do either with the question papers or
with the mode of valuation. The High Court approved the list
of 27 candidates who had secured the required qualifying
marks which would enable them to appeared at the viva voce
test as prescribed in the Appendix. Thereafter the High
Court resolved to add two marks to be marks obtained in each
paper by way of moderation on the ground that a few
candidates who had otherwise secured very high marks may
have to be kept out of the zone of consideration for final
selection by reason of their having secured one or two marks
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
below the aggregate or the qualifying marks prescribed in
the particular paper. The resolution does not show the names
of the particular candidates considered at the meeting in
whose case such a concession had to be shown. The affidavit
filed on behalf of the High Court, of course, refers to
certain hard cases which persuaded the High Court to add
additional marks by way of moderation. The question for
decision is whether such a resolution can be passed by the
High Court which is entrusted with the duty of conducting
the examination. The High Court had not found any defect in
the question papers or any irregularities in the valuation
of the answer books. It may be that some candidates had
obtained high marks in some papers and by reason of their
not obtaining the required marks in the other papers or 60%
and above
381
in the aggregate they may not have become qualified for the
viva voce test. In our opinion this alone would not be
sufficient to add any marks by way of moderation. It is
relevant to note the mandatory character of clause (6) in
the Appendix to the Rules which says only such candidates
will be called for viva voce who have obtained 50% marks in
each written paper and 60% in the aggregate except in the
case of candidates belonging to the Scheduled Castes/Tribes
in whose case the qualifying marks will be 40% in each
written paper and 50% in the aggregate. Addition of any
marks by way of moderation to the marks obtained in any
written paper or to the aggregate of the marks in order to
make a candidate eligible to appear in the viva voce test
would indirectly amount to an amendment of clause (6) of the
Appendix. Such amendment to the Rules can be made under
Article 234 only by the Lt. Governor (Administrator) after
consulting the High Court in that regard. In the instant
case by resolving to add two marks to the marks obtained in
each answer book by a candidate has virtually amended the
Rules by substituting 48% in the place of 50% which is
required to be secured in each written paper and 58% in the
place of 60% which is required to be secured in the
aggregate in the case of candidates not belonging to
Scheduled Caste/Tribes and 38% in the place of 40% in each
written paper and 48% in the place of 50% in the aggregate
in the case of candidate belonging to Scheduled
Castes/Tribes. The adverse effect of the moderation on the
candidates who had secured the required qualifying marks at
the examination in question is quite obvious, since four
candidates whose names were not in the list of 27 candidates
published on the first occasion have been included in the
first list of candidates chosen for appointment from out of
the final list of successful candidates in preference to
some of the candidates who had obtained the qualifying marks
in the written papers and they would have been appointed as
Sub-Judges but for the interim order made by this Court.
These four candidates were able to get in to the list of
persons to be appointed as Sub-Judges because of the high
marks they were able to secure at the viva voce test for
which they were not eligible but for the moderation marks.
The area of competition which the 27 candidates who had been
declared as candidates eligible to appear at the viva voce
examination before such moderation had to face became
enlarged as they had to complete also against those who had
not been so qualified according to the Rules. The candidates
who appear at the examination under the Delhi Judicial
Service Rules acquire a right immediately after their names
are included in the list prepared under rule 16 of the Rules
which limits the scope of competition and that right cannot
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
be defeated by
382
enlarging the said list by inclusion of certain other
candidates who were otherwise ineligible, by adding extra
marks by way of moderation. In a competitive examination of
this nature the aggregate of the marks obtained in the
written papers and at the viva voce test should be the basis
for selection. On reading rule 16 of the Rules which merely
lays down that after the written test the High Court shall
arrange the names in order of merit and these names shall be
sent to the Selection Committee, we are of the view that the
High Court has no power to include the names of candidates
who had not initially secured the minimum qualifying marks
by resorting to the devise of moderation, particularly when
there was no complaint either about the question papers or
about the mode of valuation. Exercise of such power of
moderation is likely to create a feeling of distrust in the
process of selection to public appointments which is
intended to be fair and impartial. It may also result in the
violation of the principle of equality and may lead to
arbitrariness. The cases pointed out by the High Court are
no doubt hard cases, but hard cases cannot be allowed to
make bad law. In the circumstances, we lean in favour of a
strict construction of the Rules and hold that the High
Court had no such power under the Rules. We are of the
opinion that the list prepared by the High Court after
adding the moderation marks is liable to be struck down. The
first contention urged on behalf of the petitioner has,
therefore, to be upheld. We, however, make it clear that the
error committed by the High Court in this case following its
past practice is a bona fide one and is not prompted by any
sinister consideration.
With regard to the second contention, namely, that the
High Court had no power to eliminate the names of candidates
who had secured less than 600 marks in the aggregate after
the viva voce test, reference has to be made to Rules 17 and
18 of the Rules which provide that the Selection Committee
shall call for viva voce test only such candidates who are
qualified at the written test as provided in the Appendix
and that the Selection Committee shall prepare the list of
candidates in order of merit after the viva voce test. There
is no power reserved under rule 18 of the Rules for the High
Court to fix its own minimum marks in order to include
candidates in the final list. It is stated in paragraph 7 of
the counter-affidavit filed in Writ Petition No. 4363 of
1985 that the Selection Committee has inherent power to
select candidates who according to it are suitable for
appointment by prescribing the minimum marks which a
candidate should obtain in the aggregate in order to get
into the Delhi Judicial Service.
383
It is not necessary to consider in this case whether any
other reason such as character, antecedents, physical
fitness which may disqualify a candidate from being
appointed to the Delhi Judicial Service may be taken into
consideration by the Selection Committee while preparing the
final list. But on going through the Rules, we are of the
view that no fresh disqualification or bar may be created by
the High Court or the Selection Committee merely on the
basis of the marks obtained at the examination because
clause (6) of the Appendix itself has laid down the minimum
marks which a candidate should obtain in the written papers
or in the aggregate in order to qualify himself to become a
member of the Judicial Service. The prescription of the
minimum of 600 marks in the aggregate by the Selection
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
Committee as an additional requirement which the candidate
has to satisfy amounts to an amendment of what is prescribed
by clause (6) of the Appendix. The question whether a
candidate included in the final list prepared and forwarded
by the Selection Committee may be appointed or not is a
matter to be considered by the appointing authority. In the
instant case the decision that a candidate should have
secured a minimum of 600 marks in the aggregate in order to
be included in the final select list is not even taken by
the High Court but by the Selection Committee. Moreover
recruitment of persons other than District Judges to the
Judicial Service is required to be made under Article 234 of
the Constitution in accordance with the Rules made by the
Governor as provided therein, in consultation with the High
Court. Article 235 which vests in the High Court the control
over the District Courts and Courts subordinate thereto,
cannot include the power of making rules with regard to
recruitment of person other than District Judges to the
judicial service as it has been expressly dealt with in
Article 234 of the Constitution. We are of the view that the
Selection Committee has no power to prescribe the minimum
marks which a candidate should obtain in the aggregate
different from the minimum already prescribed by the Rules
in its Appendix. We are, therefore, of the view that the
exclusion of the names of certain candidates, who had not
secured 600 marks in the aggregate including marks obtained
at the viva voce test from the list prepared under rule 18
of the Rules is not legal. We, therefore, quash the list
prepared by the Selection Committee and direct that a fresh
list shall be prepared in order of merit on the basis of the
aggregate of the marks obtained by the candidates at the
written examination and at the viva voce test without taking
into consideration the moderation marks added by the High
Court and without reference to the decision of the Selection
Committee that candidates who had obtained less than 600
marks in
384
the aggregate should not be included in that list. It
follows that the said list should contain only the names of
the 27 candidates who had secured the minimum marks
prescribed by the Appendix to the Rules for appearing at the
viva voce test. The appointing authorities directed to treat
the final list so prepared as the list forwarded to it under
rule 18 of the Rules. On the basis of the said list
appointments will now have to be made in accordance with law
and relevant Government orders providing for reservation of
posts to candidates belonging to Scheduled Castes/ Scheduled
Tribes and other backward classes. If in accordance with the
interim order made by this Court any candidate has been
appointed as a member of the Delhi Judicial Service his
continuance in the service or his seniority shall be
governed by the list to be prepared in accordance with the
directions issued above. These petitions are accordingly
allowed. There shall be no order as to costs.
N.V.K. Petitions allowed.
385