Full Judgment Text
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PETITIONER:
MADAN LAL & ORS.
Vs.
RESPONDENT:
THE STATE OF JAMMU & KASHMIR AND ORS.
DATE OF JUDGMENT06/02/1995
BENCH:
MAJMUDAR S.B. (J)
BENCH:
MAJMUDAR S.B. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1995 AIR 1088 1995 SCC (3) 486
JT 1995 (2) 291 1995 SCALE (1)494
ACT:
HEADNOTE:
JUDGMENT:
1. This petition by to petitioners has brought in
challenge the process of selection of Munsiffs in the State
of Jammu and Kashmir undertaken by Jammu and Kashmir Public
Service Commission (hereinafter referred to as Commission),
pursuant to an advertisement notice, inviting applications
in the months of July and August, 1993. The said selection
of the concerned successful respondents has been challenged
on diverse grounds to which we will make a reference a
little later.
2. Now a glance at a few introductory facts. An
advertisement notice issued by 1993, invited applications
from eligible candidates for filling up posts of Munsiffs in
the State of Jammu and Kashmir. The petitioners being
eligible for competing for the said advertised posts
submitted their applications to the Secretary of the Com-
mission. Similarly, the concerned respondents who are
selected for the said posts also submitted their
applications. The Commission conducted the written exami-
nation in July and August, 1993 and thereafter vide
notification dated 27th April, 1994 candidates mentioned in
the notification were declared to have qualified for viva
voce test. In all 79 candidates were found qualified for
the viva voce test. ’Mat included the petitioners and the
contesting respondents. Under the Jammu and Kashmir Civil
Service (Judicial) Recruitment Rules of 1967 (hereinafter
referred to as rules’) examination for selection of Munsiffs
consists of written examination and viva voce test. The
Commission, respondent no. 2 accordingly conducted the said
viva voce test under rule 10 of the aforesaid rules. On the
request of the Commission the Chief Justice of the High
Court is to nominate a Judge to act as an expert on the
Commission for the purpose of conducting the viva voce test.
In pursuance of this rule a viva voce test was conducted by
four Members of the Commission and an expert (sitting Judge
of the High Court) Mr. Justice B.A. Khan. The Chairman of
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the Commission respondent no. 3 and one member, namely,
respondent no. 4 did not participate in the viva voce test
on the ground that one of the candidates selected as per the
result of written test, namely, respondent no. 13 - Zaneb
Shams is a daughter of respondent no. 3 and daughter-in-law
of respondent no. 4.
3. According to the petitioners in the they were called
for oral interview. According to them they also fared well
in the viva voce test but they were kept guessing as to the
result of this test. They came to know that concerned
respondent nos. 618 and some others who had appeared at the
test were given confidential information to appear before
Medical Board for medical test while no such intimation was
sent to the petitioners. ’Mat gave them a cause for
apprehension that they may have been illegally left out of
selection for the said posts and that is why the present
petition is filed. The main prayers in the petition read as
under:-
a) Call for the records of the examination
conducted by Respondent No.2 for scrutiny by
this Hon’ble Court;
b) Issue an appropriate writ order or
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direction in the nature of certiorari quashing
the viva voce test of the said examination as
being invalid, arbitrary and against the
principles of natural justice and quashing the
candidature of the respondents IO & 13.
c) Issue an appropriate writ order or
direction in the nature of Mandamus commanding
the Respondent No. 2 to declare the result of
the written test of the candidates and may
give selections on the basis of the written
test alone and in the alternative to conduct
fresh viva voce test after removing defects in
it and for assessing the merits of the
candidates objectively.
d) To issue an appropriate Writ Order or
direction in the nature of prohibition
restraining the Respondents No, 1 & 2 and 5
from issuing the appointment letters to the
Selected Candidates whose list has not been
published as yet till the filing of this Writ
Petition, but are required to undergo medical
test vide Annexure-
4. A mere look at the prayers makes it clear that the
attack of the petitioner on the manner and method of
conducting’ viva voce test and result thereof So far as the
result of written test is concerned not only the petitioners
have no grievance the same but they rely on the same. Their
main contention is that viva voce test was so manipulated
that only preferred candidates, by inflating their marks in
the viva voce test, were permitted to get in the select
list. It may be mentioned at this stage as revealed from
the record of this case, that the second respondent prepared
a select list of twenty successful candidates in the order
of merit on the basis of the aggregate of marks obtained by
them in written as well as viva voce test. The said merit
list of candidates recommended by respondent no. 2 for
appointment as Munsiffs consists of two parts. The first
part at annexure-C collectively deals with the general
category candidates. Sixteen such candidates have been
included in the general category merit list while there is
also a waiting list of five such candidates. At annexure-C
collectively is also found merit list of Scheduled Castes
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and Scheduled Tribes candidates who have been recommended
for appointment as Munsiffs pursuant to aforesaid selection.
Two candidates belonging to Scheduled Caste and two
candidates belonging to Scheduled Tribe are found to have
been listed in reserved category as seen from the said
annexure. It thus becomes clear that sixteen candidates
from general category and two candidates each from reserved
categories of Scheduled Caste and Scheduled Tribe, in all
twenty candidates are so recommended.
5. After petitioners moved this petition, it was admitted
to final hearing and the stay of the appointments of
concerned selected candidates was also granted.
6. At the final hearing of this petition the learned senior
counsel for the petitioners raised the following contentions
in support of the petition.
1) The impugned viva voce test conducted by the
respondent no. 2, Commission is patently illegal as there is
nothing to show that the Members who conducted the test had
assigned separate marks faculty-wise for assessing the
performance of the concerned candidates as per rule 10 of
the rules.
2) The expert, namely, the sitting
297
Judge of the High Court was entitled to award only 60 marks
for viva voce test while the remaining 80 marks were per-
mitted to be given by other members of the Commission and
that affected the overall assessment of the candidates in
the viva voce test which as a whole comprised of 140 marks.
3) There is nothing to show that any tape-recording was
done regarding the questions put to candidates and the
answers given by them at the viva voce test and that has
vitiated the said test.
4) The petitioners fared very well in the written test as
compared to the selected candidates, respondents herein and
still at the viva voce test they were pushed down by
assigning very low marks as compared to contesting
respondents and thus they were treated unfairly at the said
viva voce test.
5) The viva voce test was conducted in an unfair manner
only with a view to select candidates belonging to a
particular community as the list of candidates recommended
shows. Therefore, the entire test is vitiated being totally
arbitrary and lopsided.
6) Respondent No. IO and respondent no. 13 whose names
were included in the impugned list of recommended candidates
were not eligible to be appointed as Munsiffs as they failed
to satisfy the eligibility requirement of rule 9 of the
rules in as much as they had not put in 2 years of actual
practice at the bar by the date on Which he or she submitted
his or her application for such recruitment and hence their
names should be eliminated from the merit list of open
category candidates.
7) In any case respondent no. 13 being daughter of the
Chairman of the Commission and daughter-in-law of another
Member thereof was given a special favourable treatment by
unduly inflating her marks in the viva voce test so that any
how she would get selected for the advertised post and hence
her selection is bad in law.
8) That preparation of the merit list of 16 candidates
from general category and 4 candidates from reserved
category, in all 20 is in any case bad and violative of rule
41 of the rules as the vacancies for which the advertisement
was issued by the Commission were only 11 and requisition
was sent by the Govt. for selection of suitable candidates
through the Commission for those vacancies.
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7. The learned counsel for the contesting respondents
comprising of selected candidates as well as the State of
Jammu & Kashmir and the Commission have resisted these
contentions and have submitted that there was nothing wrong
with the selection process so far as viva voce test was
concerned and that the petition is devoid of merits and is
required to be dismissed.
8. It is now time for us to deal with the contentions
canvassed by the learned senior counsel in support of the
petition. We shall deal with these contentions seriatim.
Contention No. 1
9. Before dealing with this contention, we must keep in
view the salient fact that the petitioners as well as the
contesting successful candidates being concerned
298
respondents herein, were all found eligible in the light of
marks obtained in the written test, to be eligible to be
called for oral interview. Upto this stage there is no dis-
pute between the parties. The petitioners also appeared at
the oral interview conducted by the concerned Members of the
Commission who interviewed the petitioners as well as the
concerned contesting respondents. Thus the petitioners took
a chance to get themselves selected at the said oral
interview. Only because they did not find themselves to
have emerged successful as a result of their combined
performance both at written test and oral interview, that
they have filed this petition. It is now well settled that
if a candidate takes a calculated chance and appears at the
interview then, only because the result of the interview is
not palatable to him he cannot turn round and subsequently
contend that the process of interview was unfair or
Selection Committee was not properly constituted. In the
case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors.,
(AIR 1986 SC 1043), it has been clearly laid down by a Bench
of three learned Judges of this Court that when the
petitioner appeared at the examination without protest and
when he found that he would not succeed in examination he
filed a petition challenging the said examination, the High
Court should not have granted any relief to such a
petitioner.
10. Therefore, ’the result of the interview test on merits
cannot be successfully challenged by a candidate who takes a
chance to get selected at the said interview and who
ultimately finds himself to be unsuccessful. It is also to
be kept in view that in this petition we cannot sit as a
Court of appeal and try to reassess the relevant merits of
the concerned candidates who had been assessed at the oral
interview nor can the petitioners successfully urge before
us that they were given less marks though their performance
was better. It is for the Interview Committee which amongst
others consisted of a sitting High Court Judge to judge the
relative merits of the candidates who were orally
interviewed in the light of the guidelines laid down by the
relevant rules governing such interviews. Therefore, the
assessment on merits as made by such an expert committee
cannot be brought in challenge only on the ground that the
assessment was not proper or justified as that would be the
function of an appellate body and we are certainly not
acting as a court of appeal over the assessment made by such
an expert committee.
11.In the light of the aforesaid settled legal. position let
us see whether there is any substance in the contentions
canvassed before us by the learned senior counsel for
unsuccessful candidates at the oral interview.
12.So far as the first contention is concerned learned
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senior counsel for petitioners submitted that rule 10 of the
rules lays down that the examination for selection of
candidates shall consist of written examination as well as
viva voce test. So far as written examination is concerned
it is not challenged before us as noted earlier. So far as
viva voce test is concerned rule 10(1)(b) lays down as
under:-
"’The object of viva-voce examination is to
assess the candidates’ intelligence, general
knowledge, personality, aptitude and
suitability."
The learned senior counsel for petitioners submitted that
when a candidates is orally
299
interviewed, the members of the committee should assign
separate marks for the different faculties of the concerned
candidate namely, intelligence, general knowledge, etc, as
laid down in the rule and that does not appear to have been
done by the interviewing committee and hence the entire viva
voce test is vitiated. In this connection, reliance was
placed on the decision of this Court in Minor A.
Peeriakaruppan & Sobha Joseph v. State of Tamil Nadu and
Ors. (1971 (1) SCC 38).
13.It is not possible to agree with this contention. So far
as rule 10(1)(b) is concerned it does not provide for any
separate assessment of marks for candidates at viva voce
examination faculty-wise, that is on intelligence, general
knowledge, etc. listed in the said rule. On the contrary,
it appears that as per the said rule, while conducting viva
voce examination the Committee has to keep in view the main
object of assessing such candidates in the light of the
guidelines given therein. In other words, the interviewing
committee has to keep in view the overall performance of the
candidates at the oral inter-view and while doing so their
intelligence, general knowledge, personality, aptitude and
suitability have to be kept in the centre. The rule merely
lays down the object of assessing such candidates in the
viva voce examination. It is a general guideline given to
the interviewing committee members. Therefore,.it is not
possible to agree with the submission of the senior counsel
for petitioners that the members of the interview committee
must separately assess and give marks on different listed
topics faculty-wise as per the said rule. So far as the
decision of this Court in Minor A. Peeriakaruppan v. State
of Tamil Nadu and Ors. is concerned it has to be kept in
view that this Court was dealing with admissions to M.B.B.S.
course in the State of Tamil Nadu. The selection committee
was constituted for assessing the merits of the concerned
applicants for such admissions at oral interview after
written test. 75 marks were assigned for oral interview.
The selection committee was. asked to award these marks on
the basis of following five tests
1. Sports of National Cadet Corps ac-
tivities;
2. Extra curricular special services;
3. General physical condition and
endurance;
4. General ability; and
5. Aptitude.
14.Now it becomes at once clear that when 75 marks were to
be assigned to a candidate called for oral interview on the
basis of the aforesaid five types of performances by the
candidate, the assessment on first three tests would depend
upon documentary evidence regarding his career record which
the candidates can furnish to the interview committee while
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the last two tests will depend upon his performance at the
interview. In view of this hybrid type of tests for which
assessment was to be made at the oral intervire, 75 marks
assigned for all these five tests necessarily had to be
split up and from the carrier record of the candidate,
separate marks had to be assigned for first three tests and
that necessarily required separate assessment of marks on
the remaining two heads of tests. It is in the light of
this requirement of peculiar type of marking at the oral
inter-
300
view that it has been observed in para 16 & 17 of the report
that it was clearly illegal to give marks in a lumpsum and
that the committee had not divided the marks under various
heads nor on the basis of item-wise. It is also to be kept
in view that while selecting a student for admission in
M.B.B.S. course, what is more important is his performance
in the written test and even at the oral interview his past
record of performance has its own weight. A student while
undertaking study is not required to perform any duty of a
public office. But in the case of recruitment to the posts
of Munsiffs he is required to work at the grass-root level
of State Judiciary. For candidates aspiring to be appointed
in such a judicial office, apart from the written test, his
overall performance at oral interview is more important and
consequently split up of the marks on various sub-heads at
oral interview of such a candidate may not be strictly
necessary unless the concerned rule regulating such a viva
voce test expressly provides to that effect. As we have,
seen earlier rule 10(1)(b) does not so prescribe and hence
it was open to the members of the committee to make an
overall assessment of the interviewed candidates keeping in
view the various factors for such assessment as laid down by
the said rule. ’Mat is precisely what has been done in the
present case as stated by Dr. Girija Dhar a member of the
interview committee in para 3 of her affidavit in reply. It
is stated by her that the only considerations which the
Members of the Interview Board had during the viva voce test
were to judge the candidates on the basis of their
intelligence, general knowledge, personality, aptitude and
suitability as required by rule 10(1)(b) of the recruitment
rules, that all the question directed at the viva voce test
to the candidates were with this object in view and the
assessment had been made of the candidates at the viva voce
test accordingly. As a matter of fact, the particulars
furnished by the candidates in their applications in
pursuance of the advertisement only had been placed before
the Members of the Interview Board. The results of the
candidates at the written examination were not placed before
the Members of the Interview Board. Nothing has been
pointed out by the learned counsel for petitioners to
disbelieve this version. No bias is also alleged against
her or any other member who made the selection. It cannot
therefore be said that rule 10(1)(b) was violated by the
interview committee while conducting viva voce test. It may
also be mentioned at this stage that decision of this Court
in Minor A. Peeriakaruppan v. State of Tamil Nadu and Ors.
(supra) (1971 (1) SCC 38) was later considered by this Court
in the case of Lila Dhar v. State of Rajasthan (1981 (4) SCC
159). in Lila Dhar’s case this Court distinguishing the
ratio in Peeriakaruppan’s case (supra) observed as under:-
"It is true that in Peeriakanippan case (AIR
1971 SC 2303) the Court held that the non-
allocation of marks under various heads in the
interview test was illegal but that was
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because the instructions to the Selection
Committee provided that marks were to be
awarded at the interview on the basis of five
distinct tests. It was thought that the
failure to allocate marks under each head or
distinct test was an illegality. But in the
case before us, the rule merely and generally
indicates the criteria to be considered in the
interview test without dividing the interview
test into distinct, if we may so call them,
sub-tests........
The aforesaid decision in Lila Dhar’s case
301
was approved by a Constitution Bench of this Court speaking
through Bhagwati, J. as he then was in Ashok Kumar Yadav v.
State of Haryana (1985 (4) SCC 417). This aspect was also
considered later by a Division Bench of this Court speaking
through Chinnappa Reddy, J. in Dr. Keshav Ram Pal v. UP.
Higher Education Services Commission, Allahabad & Ors. (AIR
1986 SC 597). An identical contention concerning viva voce
test conducted by the interview board which had not sub-
divided the total marks into sub-heads was rejected in that
case. Chinnappa Reddy, J. speaking for the Division Bench
observed that interview board was not under any obligation
to sub-divide the marks under various heads. The Court
noted that the basis of selection in that case was to assess
the candidates academic attainments, technical experience,
administrative experience and suitability for the -post of
Principal. In the light of that-rule it was held by this
Court in the aforesaid decision that the interview board was
not under any obligation to sub-divide the marks under vari-
ous heads. Almost an identical position obtains in the
present case. Consequently, it must be held that there was
no obligation for the members of the Commission to give
separate marks under various heads faculty-wise as mentioned
in rule 10(1)(b). The first contention therefore fails and
is rejected.
Contention No. 2
15. So far as contention no. 2 is concerned it is difficult
to appreciate how it can be urged that expert was allotted
only 60 marks for assessment while the remaining assessment
was done by the other members. There is no factual basis on
the record of this case for supporting this contention. On
the other hand, the averments made by Dr. Girija Dhar in the
reply affidavit clearly shows that all the members of the
interview committee participated in the process of selection
of candidates at the oral interview keeping in view the re-
quirement of rule 10(1)(b). The second contention therefore
also, being devoid of any factual basis, stands rejected.
Contention No. 3
16.It is difficult to appreciate this contention. Rule
10(1)(b) to which we made reference earlier nowhere provides
that tape-recording should be kept of questions put by the
members of the committee and the answers given by the
concerned candidates at the oral interview and that in the
absence of such tape-recording the interview process would
fail. The learned senior counsel for the petitioners in
this connection invited. our attention to a Constitution
Bench decision of this Court in the case of Ajay Hasia &
Ors. v. Khalid Mujib Sehravardi & Ors. (1981 (1) SCC 722).
That was a case in which the Constitution Bench dealt with
the claim of petitioners for admission in B.E. course. The
candidates had appeared in written test and then they were
called for oral interview. Rejecting the contention of the
petitioner that the oral test was defective, it was observed
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that oral interview is undoubtedly not a very satisfactory
test for assessing and evaluating the capacity and caliber
of candidates, but in the absence of any better test for
measuring personal characteristics and traits, the oral
interview test must, at the present stage, be regarded as
not irrational or irrelevant though it is subjective and
based on first impression, its result is influenced by many
uncertain factors and it is capable of abuse. However, in
the
302
matter of admission to college or even in the matter-of
public employment, the oral interview test as presently held
should not be relied upon as an exclusive test, but it may
be resorted to only as an additional or supplementary test
and, moreover, great care must be taken to see that persons
who are appointed to conduct the oral interview test are men
of high integrity, calibre and qualification. It is to be
kept in view that Bhagwati, J. as he then was, speaking for
the Court in that case ultimately dismissed the petitions
subject to certain general observations and directions. So
far as tape-recording is concerned, as one of the
contentions of the petitioners was that the oral interview
was held in an arbitrary and slip sort manner, an
observation was made in para 20 of the report to the effect
that it would also be desirable if the interview of the
candidates is tape-recorded, for in that event there will be
contemporaneous evidence to show what were the questions
asked to the candidates by the interviewing committee and
what were the answers given and that will eliminate a lot of
unnecessary controversy besides acting as a check on the
possible arbitrariness of the interviewing committee. These
observations cannot be read to mean that in the absence of
tape-recording of questions and answers the interview
process would fail or the result of the interview would get
vitiated. In the very writ petitions decided by the
Constitution Bench, even though were was no tape-recording
of questions and answers, interview test was upheld. It
appears that the aforesaid observation only suggests a
better method for insulating oral interviews against
possible future attacks of arbitrariness and nothing more.
Consequently, it cannot be said that merely because there is
nothing on the record to show that any tape-recording of
questions and answers at the interview was done, the viva
voce test should on that score fail. Therefore, this
contention also stands rejected.
Contention No. 4
17.In the light of what is stated above, while dealing with
contention no. 1, this contention also must fail. The
petitioners subjectively feel that as they had fared better
in the written test and had got more marks-therein as
compared to concerned selected respondents, they should have
been given more marks also at the oral interview. But that
is in the realm of assessment of relative merits of
concerned candidates by the expert committee before whom
these candidates appeared for the viva voce test. Merely on
the basis of petitioners apprehension or suspicion that they
were deliberately given less marks at the oral interview as
compared to the rival candidates, it cannot be said that the
process of assessment was vitiated. This contention is in
the realm of mere suspicion having no factual basis. It has
to be kept in view that there is not even a whisper in the
petition about any personal bias of the members of the
interview committee against the petitioner. They have also
not alleged any mala fides on the part of the interview
committee in this connection. Consequently, the attack on
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assessment of the merits of the petitioners cannot be
countenanced. It remains in the exclusive domain of the
expert committee to decide whether more marks should be
assigned to the petitioners or to the concerned respondents.
It cannot be the subject matter of an attack before us as we
are not sitting as a court of appeal over the assessment
made by the committee so far as the candidates interviewed
by them are concerned.
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In the light of the affidavit in reply filed by Dr. Girija
Dhar to which we have made reference earlier, it cannot be
said that the expert committee had given a deliberate
unfavorable treatment to the petitioners. Consequently,
this contention also is found to be devoid of any merit and
is rejected.
Contention No. 5
18.This contention is equally devoid of any merit. The
submission of the learned senior counsel for the petitioners
is that a mere look at annexure-C will show that the merit
list of open category candidates recommended for appointment
comprises of majority of candidates belonging to one
community only and therefore the committee has shown special
liking for such candidates who are preferred by inflating
their marks in the oral interview. To say the least, it is
a mere conjecture on the part of the petitioners. The very
first candidate in the order of merits is roll no. 100 who
does not belong to the other community. He is one Sh.
Vinod Chatterji. Similarly, there are also other candidates
in the said merit list of 16 candidates who do not belong to
the other community’ Once the interview process is found to
be proper and justified and not being vitiated by any mala
fides, the result of the viva voce test may project a
picture in which more candidates from one community may get
selected on merits but that is neither here nor there. The
validity of viva voce test cannot be judged simply on the
basis of the result thereof unless there is anything to show
that the entire selection process was vitiated on account of
mala fides or bias or that the interview committee, members
had acted with an ulterior motive from the very beginning
and the whole selection process was a camouflage. No such
allegations have been made by the petitioners against the
selectors who sat in the interview committee. Consequently
even this contention is found to be devoid of any factual
basis and stands rejected.
Contention No. 6
19. So far as this contention is concerned the submission
of learned senior counsel for the petitioners is that as
per rule 9 of the rules a candidate for recruitment to the
service must have put in at least two years actual practice
at the bar by the date on which he submits his application
for such recruitment and must produce a certificate to this
effect from the District Judge within the local limits of
whose jurisdiction he has practiced at the Bar. It is
submitted that neither respondent no. IO nor respondent no.
13 had Out in two years of actual practice at the bar. This
contention is sought to be repelled by the respondents.
They submitted that the District Judge of Jammu has issued
requisite certificates to both these candidates showing that
they had put in at least 2 years of actual practice at the
bar. It may be noted that learned counsel for the peti-
tioners submitted that so far as the certificate issued by
District Judge to respondent no. 10 is concerned he had
nothing more to say but according to him, there is nothing
on record to show that such a certificate was available to
respondent no. 13. During the course of arguments learned
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counsel for respondents showed to us a certificate issued to
respondent no. 13 by the District Judge, Jammu. That was
shown to the learned counsel for the petitioners who
thereafter did not pursue this objection further. However,
he submitted that according to him this certificate may not
be correct as atleast respondent no. 13
304
was stationed in Leh where her husband was a police officer.
This contention is controverted by the respondents. Even
apart from that the rule requires production of certificate
by District Judge within whose local limits of jurisdiction
the concerned advocate should have practiced at the bar.
The Commission would be justified in not going behind the
certificate issued by the concerned District Judge and in
not holding any further enquiry into the extent of actual
practice put in by such candidate at the bar for being
permitted to appear at the written and viva voce test. As
both these candidates are armed with certificates which
clearly indicated that before 28th December ’92, being the
last date for submitting applications by concerned
candidates for such recruitment, these candidates had
completed atleast 2 years of actual practice at the bar as
certified by their District Judge, it cannot be urged with
any emphasis that still they are not eligible to compete for
the said posts.
20.It was next vehemently contended by the petitioners that
actual practice would mean that the concerned candidates
should have appeared before courts and conducted cases
during these two years. It is difficult to accept this
contention. A member of the bar can be said to be in actual
practice for 2 years and more if he is enrolled as an
Advocate by the concerned Bar Council since 2 years and more
and has attended law courts during that period. Once the
Presiding Officer of the District Court has given him such a
certificate, it cannot be said that only because as an ad-
vocate he has put in less number of appearances in courts
and has kept himself busy while attending the courts
regularly by being in the law library or in the bar room, he
is not a member of the profession or is not in actual
practice for that period. The words ’actual practice’ as
employed in rule 9 indicate that the concerned advocate must
be whole time available as a professional attached to the
concerned court and must not be pursuing any other full time
avocation. To insist that the terms ’actual practice’
should mean continuous appearances in the court would amount
to rewriting the rule when such is not the requirement of
the rule. There is no substance even in this additional
aspect of the matter canvassed by the learned senior counsel
for the petitioners. It must therefore be held that
respondent no. 10 & 13 were eligible for competing for the
said posts of Munsiffs.
21.It is difficult to appreciate how only because respondent
no. 13 was the daughter of the Chairman and daughter-in-law
of another Member of the Commission, both of whom
disassociated themselves from the selection process as she
was competing, can be said to be disqualified from being
considered for selection only on the ground of her
relationship with the concerned Members of the Commission.
The learned senior counsel for the petitioners fairly
submitted that relatives of Members simpliciter are not
disqualified but his contention was that other Members of
the Commission are also bureaucrats and would be having
liking and soft comer for each other. They may therefore
try to push up the relative- of the Chairman by inflating
her marks at the oral test. Such a contention, to say the
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least, is totally outside the scope of the present
proceedings. As we have noted earlier, it is not alleged by
the petitioners that the Members of the Interview Committee
were biased either against the petitioners or in favour of
any given candidate. In the absence of such
305
pleading of bias and mala fides such a hypothetical
contention, only based on the result of the oral interview
cannot be sustained. It is also to be kept in view that
there is one salient feature of the case which contra-
indicates this contention. As noted earlier there were 11
vacancies of Munsiffs for which the selection process was
started by the Commission as recommended by the State of
Jammu and Kashmir. So far as respondent No. 13 is concerned
her rank on merits of open category candidates is at sl. no.
14, in the light of the marks obtained by her. There are 13
candidates above her who have got more marks. Therefore, if
11 vacancies were to be filled in, respondent no.13 would be
left out. If what the petitioners contended was true and if
the Members of the Commission were interested in seeing that
anyhow she walks in an for that purpose they were to inflate
her marks, they would have resorted to inflating her marks
to such an extent that she would clearly walk in the list of
first 11 selected candidates. Consequently there is no
substance in this contention of learned counsel for the
petitioners. In this connection, we may also profitably
recapitulate what is stated in para 2 of the affidavit in
reply of Dr. Girija Dhar. She has clearly stated that as a
matter of fact the particulars furnished by the candidates
in their applications in pursuance of the advertisement only
had been placed before the Members of the Interview Board.
The results of the candidates at the written examination
were not placed before the Members of the Interview Board.
These averments could not be successfully challenged by the
learned counsel for the petitioners. Consequently, it must
be held that the Members of the Interview Committee were not
knowing as to what marks were obtained by the candidates at
the written test. Therefore, there would be no occasion for
them to manipulate the marks of any candidate at the oral
interview so as to bring them in the light of the marks
obtained by him in the written test to a total which would
make him eligible to be included in the select list of first
II candidates as there were only 11 clear vacancies.
Consequently, there is no substance even in this grievance
of the petitioners.
Contention No.8
22.This takes us to the last contention. The learned
counsel for the petitioners submitted that as per the
requisition forward by the State of Jammu and Kashmir
through the Secretary to the Law Department, the second
respondent was required to hold the selection process for
recruiting candidates from open market for filling up 11
vacancies. The said letter of the Secretary to the
Government, Law Department is at annexure-A to the petition.
It reads as under: -
GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECTT
:LAW DEPARTMENT
TO
The Secretary,
J & K State Public Service
Commission, Srinagar
No. LD(A)92/78
Dated: 22.7.1992
Subject: Selection of Candidates for ap-
pointment as Munsiffs in the Judicial
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Department.
Sir,.
I am directed to say that the Public Service
Commission may kindly start a process in
accordance with the Jammu
306
and Kashmir Civil Service (Judicial) Re-
cruitment Rules, 1967 for selection of can-
didates for appointment as Munsiffs in the
K.C.S. (Judicial) Service. However,
considering the fact that only 11 vacancies
are presently available, only a select list of
twenty candidates inclusive of Scheduled
Castes/Scheduled Tribes candidates as per
their reservation quota may kindly be prepared
and furnished to the Government. No waiting
list of candidates is ’required.
Yours faithfully,
Sd/-
G.A Lone,
Secretary to Government Laws
Department"
A mere look at the letter shows that the Government
requested the Commission to hold selection for filling up II
clear vacancies only. The letter nowhere showed that more
vacancies were likely to arise in future and selection may
be held also for such anticipated vacancies. It is true
that the letter mentioned that a select list of 20
candidates may be prepared and furnished to the Government
but these 9 additional candidates would serve as waiting
list candidates from which eligible candidates can be drawn
in order or merits if any of the first 11 candidates
selected did not join or for any reason could not join.
’Mat is the precise reason why no separate list of waiting
list candidates was directed to be prepared. Learned senior
counsel for the petitioners was right when he submitted that
the recruitment process in the present case was only for
filling up II existing clear vacancies of Munsiffs. It is
not possible to agree with the respondents that this req-
uisition also took note of anticipated vacancies during the
course of one year and therefore it can be said to be a
requisition for recruiting 20 candidates on clear and
anticipated vacancies. If that was so, the contents of the
letter would have been different. We agree with the learned
counsel for the respondents that while sending the
requisition for recruitment to posts the Government can keep
in view not only actual vacancies then existing but also an-
ticipated vacancies during one more year or for a given
period of time and in that case the requisition would cover
actual vacancies and anticipated ones. But one the clear
wordings of the aforesaid letter, it is not possible to
agree with this submission. It must be held that the
requisition in the present case by the Government was for
holding selection tests by the Commission for fillings up
11 clear vacancies and nothing more. No anticipated
vacancies were contemplated to be filled in. The process of
recruitment was got initiated by the State through the
Commission, for only eleven clear vacancies.
23. It is no doubt true that even if requisition is made by
the Government for II Dosts the public Service Commission
may ’send merit list of suitable candidates which may exceed
11. That by itself may not be bad but at the time of giving
actual appointments the merit list has to be so operated
that only 11 vacancies are filled up, because the
requisition being for 11 vacancies, the consequent
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advertisement and recruitment could also be for 11 vacancies
and no more. It easy to visualise that if requisition is
for 11 vacancies and that results in the initiation of
recruitment process by way of advertisement, whether the
advertisement mentions filling up of 11 vacancies or not,
the prospective candidates can easily find out from the
Office of the Commission that the requisition for the
proposed recruitment is for filling up 11 vacancies. In
such a case a given can-
307
didate may not like to compete for diverse reasons but if
requisition is for larger number of vacancies for which
recruitment is initiated he may like to compete. Conse-
quently the actual appointments to the posts have to be
confined to the posts for recruitment to which requisition
is sent by the Government. In such an eventuality,
candidates in excess of 11 who are lower in the merit list
of candidates can only be treated as wait listed candidates
in order of merit to fill only the eleven vacancies for
which recruitment has been made, in the event of any higher
candidate not being available to fill the 11 vacancies, for
any reason. Once 11 Vacancies are filled by candidates
taken in order of merit from the select list that list will
get exhausted, having served its purpose.
24.It is now time to refer to rule 41 as pointed out by the
learned counsel for the petitioners. The said rule reads as
under:-
"Security of the list. The list and the
waiting list of the selected candidates shall
remain in operation for a period of one year
from the date of its publication in the
Government Gazette or till it is exhausted by
appointment of the candidates whichever is
earlier, provided that nothing in this rule
shall apply to the list and the waiting list
prepared as a result of the examination held
in 1981 which will remain in operation till
the list or the waiting fist is exhausted.
A mere look at the rule shows that Pursuant to the
requisition to be forwarded by Government to the Commission
for initiating the recruitment process, if the Commission
has prepared merit list and waiting list of selected
candidates such list will have a life of one year from the
date of publication in Government Gazette or till it is
exhausted by the appointment of candidates, whichever is
earlier. This means that if requisition is for filling up
of II vacancies and it does not include any anticipated
vacancies, the recruitment to be initiated by the Commission
could be for selecting 11 suitable candidates. ’The Com-
mission may by abundant caution prepare a merit list of 20
or even 30 candidates as per their inter se ranking on
merits. But such a merit list will have a maximum life of
one year from the date of publication or till all the
required appointments are made whichever even happened
earlier. It means that if requisition for recruitment is
for 11 vacancies and the merit list prepared is for 20
candidates, the moment 11 vacancies are filled in from the
merit list the gets exhausted, or if during the span of one
year from the date of obligation of such list all the 11
vacancies are not filled in, the moment the year is over the
list gets exhausted. In either event, thereafter, if
further vacancies are to be filled in or remaining vacancies
are to be filled in, after one year, a fresh opportunity to
all the open market candidates to compete. This is the
thrust of rule 41. It is in consonance with the settled
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legal position as we will presently see. We cannot agree
with the learned counsel for respondents that during the
period of one year even if all the 11 vacancies are filled
in for which requisition is initiated by the State in the
present case and if some more vacancies arise during the one
year, the present list can still be operated upon because
the Commission has sent the list of 20 selected candidates.
As discussed above, the candidates standing at serial nos.
12 to 20 in the list can be considered only in case within
one year of its publication, all the 11 vacancies do not
get filled up for any reason. In such a case only this
additional list of
308
selected candidates would serve as a reservoir from which
meritorious suitable candidates can be drawn in order of
merit to fill up the remaining requisitioned and advertised
vacancies, out of the total 11 vacancies. If that cannot be
done for any reason within one year of the publication of
the list, even this reservoir will dry up and the entire
list will get exhausted. We asked learned counsel for
respondents State to point out whether after the letter at
page 87, there was any further communication by the State to
the Commission to initiate process for recruitment to
additional anticipated vacancies. He -fairly stated that no
further request was sent. That letter at page 87 is the
only material for this purpose since that is the basis for
the recruitment made by the Commission in the present case.
In this connection, we may usefully refer to a decision of
this Court in the Case of State of Bihar v. Madan Mohan
Singh & Ors. (AIR 1994 SC 765). In that case appointments
to the posts of Additional District and Sessions Judges were
being questioned. The question was whether appointments
could be made to more than 32 posts when the selection pro-
cess was initiated for filling up 32 vacancies and whether
the merit list of larger number of candidates would remain
in Operation after 32 vacancies were filled in. Negativing
the contention the such merit list for larger number of
candidates could remain in operation after 32 advertised va-
cancies were filled in, K. Jayachandra Reddy, J. made the
following pertinent observations:-
"Where the particular advertisement and the
consequent selection process were meant only
to fill up 32 vacancies and not to fill up the
other vacancies, the merit list of 129
candidates prepared in the ratio of 1:4 on the
basis of the written test as well as viva voce
will hold good only ’for the purpose of
filling up those 32 vacancies and no further
because said process of selection for those 32
vacancies got exhausted and came to an end.
If the same list has to be kept subsisting for
the purpose of filling up other vacancies also
that would naturally amount to deprivation of
rights of other candidates who would have
become eligible subsequent to the said
advertisement and selection process.
Reliance placed by the learned counsel for respondents in
the case of Asha Kaul (Mrs) and Anr. Vs. State of Jammu
and Kashmir and Ors. (1993 (2) SCC 573), is of no avail. In
that case the very same Jammu and Kashmir Government had
sent a requisition to the Public Service Commission to
select 20 candidates for the posts of Munsiffs in accordance
with the High Court requirement. Therefore, the Commission
advertised for recruitment to the said posts and held
written test and oral interview. The Commission having
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selected 20 candidates in the order of merits and also
having prepared a waiting list of candidates, the State of
Jammu and Kashmir did not appoint even selected 20
candidates on these advertised posts. The High Court
rejected the writ petition praying for a suitable writ of
mandamus to the State to fill up the remaining vacancies out
of 20 for which recruitment was made. The petitioners
approached this court in appeal by way of special leave.
This court speaking through Jeevan Reddy, J took the view
that though inclusion in the select list does not confer any
indefeasible right to appointment, there was an obligation
for the Government to fill up all the posts for which
requisition and advertisement were given. However on the
peculiar facts of the case, the court did not think it fit
to interfere. This court in para 10 of the
309
report clearly observed that by merely approving the list of
20 there was no obligation on the Government to appoint them
forthwith. The appointment depends upon the availability of
the vacancies. The list remains valid for one year from the
date of its approval and date of publication and if within
such one year any of the candidates therein is not
appointed, the list lapses and a fresh list has to be
prepared. Though a number of complaints had been received
by the Government about the selection process, if the
Government wanted to disapprove or reject the list, it ought
to have done so within a reasonable time of the receipt of
the select list and for reasons to be recorded. Not having
done that and having approved the list partly (13 out of 20
names), they cannot put forward any ground for not approving
the remaining list. It is difficult to appreciate how this
judgment can be of any avail to the respondents. In the
case aforesaid before this court there was a clear
requisition and recruitment for 20 posts. The State had
however chosen to appoint only 13 out of 20. The list had a
life of one year till all the 20 posts were fill up. This
was in consonance with rule 41. In the present case the
facts are different. The requisition is not for 20
vacancies as in Asha Kaul’s case but for 11 posts. There is
no requisition to fill up any anticipated more vacancies.
Once the list is approved eventhough it may contain names of
20 candidates, the list in the present case will get
exhausted once 11 vacancies for which advertisement had been
issued and recruitment is made are filled up.
25.At this stage we may profitably refer to one more
decision of this court in Hoshiar Singh Vs. State of
Haryana and Ors. (1993 supp (4) SCC 377). In that case of
requisition for recruitment as sent by the Director General
of Police to the Haryana Subordinate Services Selection
Board was for appointment of 8 posts of Inspector of Police.
The Board however sent the list of 19 selected candidates,
out of them 18 persons were given appointments. The
appointments on posts beyond the 8 posts for which
requisition was made by the Director General of Police were
brought in challenge before the High Court. The High Court
accepted the challenge and held that appointments beyond 8
posts were illegal. This Court while upholding the decision
of High Court speaking through Agrawal, J. observed in para
10 of the report as under:-
"The learned counsel for these appellants have
not been able to show that after the revised
requisition dated January 24, 1991 whereby the
Board was requested to send its recommendation
for 8 posts, any further requisition was sent
by the Director General of Police for a larger
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number of posts. Since the requisition was
for eight posts of Inspector of Police, the
’Board was required to sent its
recommendations for eight posts only. The
Board, on its own, could not recommend names
of 19 persons for appointment even though the
requisition was for eight posts only because
the selection and recommendation of larger
number of persons than the posts for which
requisition is sent. The appointment on the
additional posts on the basis of such
selection and recommendation would deprive
candidates who were not eligible for
appointment to the posts on the last date for
submission of applications mentioned in the
advertise and who became eligible for
appointment thereafter, of the opportunity of
being considered for appointment on the
additional posts because if the said
additional posts are advertised subsequently
those who become eligible for appointment
would be
310
entitled to apply for the same. The High
Court was, therefore, right in holding that
the selection of 19 persons by the Board even
though the requisition was for 8 posts only,
was not legally sustainable. "
In the present case as the requisition is for 11 posts and
even though the Commission might have sent list of 20
selected candidates, appointments to be effected out of the
said list would be on 11 posts and not beyond 11 posts, as
discussed by us earlier. This contention will stand
accepted to the extent indicated hereinabove.
26. As per annexure-C so far as open category candidates
are concerned, they are shown in the order of merits upto
sl. no. 16. There arc also 2 Scheduled Castes and 2
Scheduled Tribes candidates in all making 20. The extend of
selected Scheduled Caste and Scheduled Tribe candidates on
reservation quota works out to be 1/5 of the total 20
selected candidates. If this list has to operate, as we
have held, only till vacancies are filled up, then on the
ratio of 115 of the total vacancies to be filled up, the
posts to be reserved for Scheduled Castes and Scheduled
Tribes out of total 1 1 posts could be one each for
Scheduled Caste and Scheduled Tribe candidates, as 1/5 of 11
would be 2.5 which would yield either 2 reserved candidates
or maximum 3 candidates but as maximum 3 candidates may tilt
the inter se balance between the Scheduled Castes and
Scheduled Tribes, if either of these two categories is given
2 posts out of 3, interest of justice would be served if we
direct the respondents to reserve 2 posts in all out of II
for being filled up by 1 Scheduled Caste and Scheduled Tribe
candidate each, in the order of inter se merits of Scheduled
Caste and Scheduled Tribe selected candidates as mentioned
in the list at annexure-C. The remaining 9 posts will be
available to general category candidates as listed in order
of merits in the list at annexure-C. The moment these 11
posts are filled up within 1 year of the publication of list
at annexureC this list will get exhausted or if for any
reason these II vacancies could not be filled up by the time
one year from the date of publication of the list is over,
even then the list would get exhausted and fresh recruitment
will have to be made in the light of fresh requisition from
the State. For computing one year’s currency of impugned
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select list as per rule 41, the period during which
appointments were stayed during pendency of these proceed-
ings would naturally got excluded. The contention no.8
therefore will stand accepted to the aforesaid extent. In
the result this writ petition fails subject only to the
directions issued by us to the State Government while
accepting contention no. 8 aforesaid. In the facts and
circumstances of the case, there will be no order as to
costs.
312