Full Judgment Text
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CASE NO.:
Appeal (civil) 2539-2540 of 2005
PETITIONER:
K.H. Siraj
RESPONDENT:
High Court of Kerala & Ors.
DATE OF JUDGMENT: 23/05/2006
BENCH:
Dr. AR. Lakshmanan & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NOS. 3377-3378 OF 2005
&
SPECIAL LEAVE PETITION (C) NOS. 14140-14141 OF 2005
Dr. AR. Lakshmanan, J.
Mr. K.H. Siraj is the appellant in Civil appeal Nos. 2539-
2540 of 2005. Aggrieved against the judgment and final order
dated 1.3.2005 passed by the High Court of Kerala in Writ
Appeal Nos. 1496 & 1584 of 2004 whereby the Division Bench
by its judgment and order allowed the appeals filed by the
respondent-High Court of Kerala, set aside the judgment of the
learned single Judge and held that the selections and
appointments made were regular in all respects.
Mr. C.T. Sivanandan and Mr. Shahjahan M. are the
appellants in Civil appeal Nos. 3377-3378 of 2005. Aggrieved
against the judgment dated 1.3.2005 in Writ appeal No. 1584 of
2004 and O.P. No. 6784 of 2002 of the High Court of Keraka,
they filed the above appeals by which the Division Bench set
aside the judgment of the learned single Judge.
Special Leave Petition(c) Nos. 14140-14141 of 2005 were
filed by Mr. V.R. Manu Manaswini against the common
impugned judgment dated 1.3.2005 passed in W.A.No.1497 of
2004 and W.A.No.1719 of 2004 whereby the Division Bench by
its final order allowed Writ Appeal No. 1497 of 2004 filed by the
High Court of Keralal and dismissed Writ Appeal No. 1719 of
2004 filed by the appellant herein \026 Mr. V.R. Manu Manaswini.
The short facts are as follows:
The High Court of Kerala by its Notification dated
26.3.2001 invited applications for the appointment to the post
of Munsiff-Magistrate in the Kerala Judicial Services in the pay
scale of Rs.2500-4000. The relevant part of the Notification
reads as under:
THE HIGH COURT OF KERALA
No. B4-14037/2001 Kochi 682 031
Dated:26.3.2001
NOTIFICATION
Applications are invited in the prescribed form from
qualified candidates for appointment to the post of Munsif-
Magistrate in the Kerala Judicial Service.
1. Scale of pay of the post \026 Rs.2500-4000 (under
revision)
2. Probable number of vacancies \026 70
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(53 candidates to be selected by direct recruitment
from the Bar and 17 by recruited by transfer)
3. Methods of recruitment:
(i) Direct recruitment from the Bar
(ii) Recruitment by transfer.
Selection shall be after holding examinations, written and
oral. The written examination shall be held on 11th and
12th August, 2001.
4. Qualifications:
(i) Direct recruitment\005\005\005\005\005\005\005\005\005\005\005\005.
(ii) Recruitment by transfer\005\005\005\005\005\005\005\005\005.
Note:-\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005..
Feeder categories of offers for recruitment by
transfer:
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005..
(i)\005\005\005\005\005
(ii)\005\005\005\005..
(iii)\005\005\005\005..
(iv)\005\005\005\005..
(v)\005\005\005\005\005
(vi)\005\005\005\005..
(vii)\005\005\005\005..
(viii)\005\005\005\005.
5. Age limit \026 (i) Direct recruitment -
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
Note.
(1)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005
(2)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005.
(ii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005
\005
6. Reservation of appointment \026 The Rules relating to
reservation of appointment for Backward Classes,
Scheduled Castes and Scheduled Tribes contained in
Part II of the Kerala State and Subordinate Services
Rules, 1958 (Rules 14 to 17) shall apply to
appointment by direct recruitment.
7. Training\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005..
8. Probation\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005..
9. Tests\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005.
10. Scheme of written and oral examinations \026
(1) Written examination \026 The written
examination shall consist of the following
four papers carrying a maximum of 100
marks each. The time for each paper shall
be two and a half hours.
Paper I - \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
Paper II -
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
Paper III\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005..
Paper IV\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
(2) Oral Examination : - There shall be an oral
examination carrying a maximum of 50
marks for deciding the candidate’s general
knowledge, grasp of general principles of
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law, analytical ability and suitability for
appointment as Munsif-Magistrate.
(3) Only candidates who secure not less than
35 per cent marks in each of the papers of
the written examination with an overall
minimum of 45 per cent of the total marks
of written examination and 30 per cent of
the marks for the oral examination shall
be eligible for appointment provided that
the minimum marks required for pass in
each paper of the written examination
shall be 30 per cent with an overall
minimum of 35 per cent of the total marks
for candidates belonging to Scheduled
Castes/Scheduled Tribes. Fraction of half
or more than half shall be regarded as full
mark and less than half shall be ignored.
(4) No candidate who has not secured the
minimum marks prescribed above in the
written examination shall be called for oral
examination.
(5) The marks secured by the candidates at
the oral examination shall be added to the
total marks secured by them at the written
examination and the names of all those
candidates shall be arranged in the
respective lists on the basis of the total
marks secured by them.
11. Application form and application fee -
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005
.
12. Certificates/Documents -
\005\005\005\005\005\005\005\005\005\005\005\005\005\005..
(i)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005..
(ii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005.
"Certified that Shri/Smt. \005\005\005\005\005\005\005\005\005\005\005..has been
actually practising an an \005\005Court since and that his/her
character and conduct are/were
Station: Signature,Name & Designation
Date: of the presiding Officer"
Pursuant to the above Notification, the
appellants/petitioners herein submitted their applications.
Written test was held in the month of August, 2001. Thereafter
they were called for an interview to appear before the Board
consisting of five Hon’ble Judges including Hon’ble the Chief
Justice on 17.12.2001. The select list was issued by the High
Court on 7.2.2002. The appellants filed writ petition praying
for quashing the select list insofar as it is contrary to the
principles and Rules relating to reservations. They also moved
an application for stay to stay the training and appointment of
candidates from the select list till the disposal of the writ
petition. The learned single Judge passed an order on
16.1.2004 in I.A.No. 425 of 2004 to the effect that the
appointments, if any, will be subject to the result of the original
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petition. On 23.2.2004, the High Court commences the
training of the last 20 candidates in the select list. The learned
single Judge, by his order dated 6.8.2004, disposed of the
original petition declaring that the decision to fill up the
candidates appearing in S.Nos. 60,62,64,66,68 and 70 in the
select list from open merit candidates as illegal and
consequently restrained respondent Nos. 1 & 2 (High Court of
Kerala and State of Kerala) from filling up the above posts from
the select list.
The High Court preferred the appeal being W.A.No.1496 of
2004 on 9.8.2004 against the judgment of the learned single
Judge. The Division Bench by its interim order dated
12.8.2004 admitted the appeal and stayed the order of the
learned single Judge. The appellant preferred Special Leave
Petition(c) No.17535 of 2004 before this Court against the
interim order dated 12.8.2004. This Court on 25.8.2004 issued
notice and stayed the operation of the impugned order. This
Court disposed of the above special leave petition on 1.11.2004
after recording the statement of the counsel for the
respondents. The order reads thus:
"Delay condoned.
The petitioner herein has agreed that by the refusal to
grant interim order by the appellate Bench of the Kerala
High Court, he has filed this SLP after issuance of notice.
Respondents are represented herein. We find that the
learned counsel appearing for the contesting respondents
Mr. C.S. Vaidyanathan, learned senior counsel and Mr.
Krishnana Venugopal, learned counsel have stated before
this Court that in the event of writ appeal being allowed,
their appointment being quashed and they will not claim
equity on the ground that they have jointed the service
earlier.
Recording the above statement, we think
it is not necessary to entertain this petition
hence this special leave petition is disposed of.
Sd/- Sd/-
(Ganga Thakur) (Prem Prakash)
PS to Registrar Court Master
The Division Bench of the High Court by its final
judgment dated 1.3.2005 allowed the appeal filed by the High
court, set aside the judgment of the learned single Judge and
held that the selections and appointments made were regular in
all respects.
We heard Mr. L. Nageswara Rao, learned senior counsel
ably assisted by Mr. Haris Beeran, Mr. Radha Shyam Jena, Mr.
E.M.S. Anam and Mr. C.K. Sasi, learned counsel appearing for
the appellants. We also heard Mr. T.L.V. Iyer, learned senior
counsel ably assisted by Mr. Vipin Nair, Mr. P.B. Sursh, Mr.
V.K. Biju, learned counsel and Mr. K.R. Sasiprabhu, learned
counsel, Mr. P.V. Dinesh, learned counsel and Mr. U.U. Lalit,
learned senior counsel ably assisted by Mr. Roy Abraham for
the respondents.
The arguments of Mr. L.N. Rao, learned senior counsel,
was adopted by counsel appearing for the other appellants and
the arguments of Mr. T.L.V. Iyer, learned senior counsel, was
adopted by the other counsel appearing for the respondents.
Mr. Siraj, appellant in C.A.Nos. 2539-2540 of 2005
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belongs to Muslim Community (OBC), the first appellant in
C.A.Nos. 3377-3378 of 2005 is Scheduled Caste candidate
and the second appellant belongs to Muslim
Community(OBC) and the third appellant belongs to Hindu
Nadar Community (OBC). The petitioner in S.L.P.)Nos.
14140-14141 of 2005 is a Scheduled Caste candidate.
Kerala Judicial Service Rules, 1991 (hereinafter referred
to as "the Rules") were made in exercise of the powers
conferred by Articles 234 and 235 of the Constitution of India
and sub-section(1) of Section 2 of the Kerala Public Services
Act, 1968 (19 of 1968). Rule 7 of the Rules reads thus:
"7. Preparation of lists of approved candidates
and reservation of appointments \026
(1) The High Court of Kerala shall, from
time to time, hold examinations, written
and oral, after notifying the probable
number of vacancies likely to be filled up
and prepare a list of candidates
considered suitable for appointment to
category 2. The list shall be prepared
after following such procedure as the High
Court deems fit and by following the rules
relating to reservation of appointments
contained in rules 14 to 17 of Part II of the
Kerala State and Subordinate Services
Rules, 1958."
(2) The list consisting of not more than
double the number of probable
vacancies notified shall be forwarded
for the approval of the Governor. The
list approved by the Governor shall
come into force from the date of the
approval and shall remain in force for a
period of two years or until a fresh
approved list is prepared, whichever is
earlier."
Sub-clause (1) of Rule 10 of the Rules reads as
under:
Qualifications \026
(1) No Advocate shall be eligible for
appointment to category 2 unless he is
having practice at the Bar for a period
of not less than five years and has not
completed 35 years of age on the first
day of January of the year in which
applications for appointment are
invited.
Rules 14 to 17 of the Kerala State and
Subordinate Services Rules, 1958 read as
under:
"(14) Scheduled Castes and Scheduled Tribes
mean the Castes and Tribes declared as such
by the President of India under Article 341(1)
and 342(1) of the Constitution of India and
other Backward Classes mean the classes
declared as such by the State Government
under Article 16(4) of the Constitution of India.
Lists of such castes, tribes and classes, so
declared are included as Lists I, II and III
respectively in the Schedule to this part.
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(15) "Service" means a group of persons
classified by the State Government as a
State or a Subordinate service as the
case may be.
Note : Where the context so requires, ’service’
means the period during which a person holds
a post or a lien on a post or is member of a
service as above defined.
(16) "Special Rules" shall mean the rules in
Part III applicable to each service or
class of service.
(17) The Kerala Civil Services (Classification,
Control and Appeal) Rules, the rules
regulating the pay of the services issued
from time to time, the Government
servants’ Conduct Rules, the
Travancore Service Regulations, the
Cochin Service Regulations, the
Fundamental Rules, the Madras leave
Rules, 1933, Kerala Service Rules and
the pension rules for the time being in
force shall, in so far as they may be
applicable and except to the extent
expressly provided in those rules govern
members of every service in the matter
of their pay, allowances, leave, leave
salary, pension and other conditions of
service:
Provided that the said rules and
regulations shall in their applications to
the members of the Secretariat Staff of
the Governor be construed as if the
functions of the State Government under
those rules and regulations were the
functions of the Governor."
INTERPRETATION OF THE RULES
According to Mr. L.N. Rao, Rule 7 of the Rules have
to be interpreted in the following manner:
High Court of Kerala shall hold examination written
and oral and prepare a list of suitable candidates for
appointment to category 2. The wording written and oral
means the suitability of a candidate eligible for
appointment has to be considered by the aggregate marks
of written examination and oral examination. The
legislative intention is to take the aggregate marks of both
written examination and oral examination to decide the
suitability of the candidate. List has to be prepared after
following such a procedure as the High Court deems fit.
Procedure means the manner of doing things and not
substantive. Fixing a separate minimum cut off marks is
not procedural which is an additional eligibility for the
post which is contrary to rule 7. Rule 7 is silent as to the
fixation of cut off marks which is for relaxation from time
to time for the purpose of reservation. The wording
procedure deems fit does not confer any power on the
selection Authority so as to take away a right provided
elsewhere, reported in Raja Ram Mahadev Parjapee’s
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case, 1962 Supp (1)SCR 739 at 749 followed in Babau
Nagar & Ors. Vs. Sree Synthetic reported in 1984 Supp
SCC 128. The selection authority cannot follow any
procedure not in violations of the Rule of reservation.
Clause 10 of the Notification deals with the Scheme
of written and oral examination. The marks prescribed
for written examination is 400 and 50 for oral
examination. The written examination consists of four
papers of 100 marks each. For each paper two and a half
hours duration was prescribed.
As per clause 10(3) of the Notification, the
candidates who secure not less than 35% marks of each
of the papers of the written examination with an overall
minimum of 45% of the written examination and 30% of
the marks for the oral examination shall be eligible for
appointment provided that the minimum marks required
for pass in each paper of the written examination shall be
35% with an overall minimum of 35% of the total marks
for candidates belonging to SCs/STs. Fraction of half or
more than half shall be regarded as full marks and less
than half shall be ignored.
Clause 10(4) of the Notification stipulates that no
candidate who has not secured the minimum marks
prescribed above in the written examination shall be
called for oral examination. Clause 10(5) of the
Notification states that the marks secured by the
candidates at the oral examination shall be added to the
total marks secured by them at the written examination
and the names of all those candidates shall be arranged
in the respective lists on the basis of the total marks
secured by them.
The appellant in C.A.Nos. 2539-2540 of 2005 had
obtained a total of 213 marks out of which 200 marks in
written examination and 13 marks in oral examination.
The first appellant in C.A.Nos. 3377-3378 of 2005 who
had secured a total of 162 marks out of which 150 marks
in written examination and 12 marks in oral examination.
The second appellant who had secured a total of 208
marks out of which 195 marks in written examination
and 13 marks in oral examination. The third appellant
who had secured a total of 259 marks out of which 245
marks in written examination and 14 marks in oral
examination.
The petitioner in S.L.P.) Nos. 14140-14141 of 2005
had obtained a total of 321.5 marks out of which 217.5
marks in written examination and 14 marks in oral
examination.
Besides the fact that the appellants are reserved
category candidates they were thrown out from the zone
of consideration on the ground that they had not secured
30% marks in interview. The respondents and other
candidates who had been selected only because they had
got 30% marks in interview irrespective of the facts that
the total marks of those candidates are less than the
marks obtained by the appellants.
The preparation of the Select List was challenged on
the ground that Rules 14 to 17 of KSSSR Part II had not
been complied since the selection was against the Rules of
reservation and on the ground of illegal prescription of cut
off marks in oral examination made by the first
respondent, the selection agency without statutory
sanction.
More than 1800 candidates have applied of which
1292 applicants were found valid. 118 candidates have
passed in written examination of which 88 were passed in
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the interview and select list was prepared among these 88
candidates.
No supplementary list was prepared by the first
respondent with respect to the reserved category
candidates. The reserved category candidates who scored
sufficient marks to be considered in the merit list were
placed in the reserved quota. They have to be placed in
the merit list. The reserved vacancies are filled up from
the open merit candidates.
According to Mr. L.N. Rao, the following questions
which are posed for the consideration of this Court in
these appeals/petitions are as under:
1. In the absence of specific legislative
mandate under rule 7(i) of the Kerala
Judicial Service Rules, 1991 prescribing
cut off marks in oral examination whether
the fixing of separate minimum cut off
marks in the interview of further
elimination of candidates after a
comprehensive written test touching the
required subjects in detail in violating of
the statute.
2. Whether the select list (Annexure P-2) is
prepared in violation of the principles of
reservation as provided under Rules 14 to
17 of the Kerala State Subordinate Service
Rules, 1958?
3. Whether the first respondent-High Court
has the power to decide the reserved post
are to be de-reserved to carry forwarded in
the absence of a decision taken by the
government in this regard?
4. Whether Annexure P-2 List is liable to be
strike off at its entirely?
Adverting to the first question, Mr. Rao submitted as
follows:
1. Annexure P-1 is the Notification dated 26.3.2001
in which Rule 10(3) provides that only candidates
who secure not less than 35% marks in each of
the papers of the written examination with an
overall minimum of 45 % of the total marks of
written examination and 30% of the marks for
the oral examination shall be eligible for
appointment provided that the minimum marks
required for pass in each paper of the written
examination shall be 30% with an overall
minimum of 35% of the total marks for
candidates belonging to scheduled
castes/scheduled tribes. Fraction of half or more
than half shall be regarded as full mark and less
than half shall be ignored.
2. Method of conducting written test is a well
known method for screening the candidates for
the purpose of interview. Interview was
conducted for 118 candidates who had passed in
the written examination out of which 9 Muslim
candidates and 4 SC/ST candidates and one
Nadar Community candidate participated.
For the above proposition, learned senior counsel placed
reliance on the following judgments of this Court:
1. P.K. Ramachandra Iyer & Ors. Vs. Union of India &
Ors., (1984) 2 SCC 141
2. Umesh Chandra Shukla vs. Union of India, (1985) 3
SCC 72
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3. Durga Charan Misra vs. State of Orissa, (1987) 4 SCC
469.
4. Dr. Krishna Chandra Sahu & Ors. vs. State of Orissa &
Ors. , (1995) 6 SCC 1
5. Praveen Singh vs. State of Punjab, (2000) 8 SCC 633
6. State of Punjab vs. Manjith Singh, (2003) 2 SCC 559
7. Inder Prakash Gupta vs. State of J & K & Ors., (2004)
6 SCC 786
In P.K. Ramachandra Iyer & Ors. Vs. Union of India &
Ors. (supra), this Court held as under:
"Once an additional qualification of obtaining
minimum marks at the viva voce test is
adhered to, a candidate who may figure high
up in the merit list was likely to be rejected on
the ground that he has not obtained minimum
qualifying marks at the viva voce test\005..This
was impermissible and contrary to the Rules
and the merit list prepared in contravention of
the Rules cannot be sustained."
In Umesh Chanda Shukla vs. Union of India (supra), it has
been held that the Selection Committee had 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. In the instant case,
the Rule is silent as to the fixation of cut off marks in oral
examination. Prescription of cut off marks in oral examination
for the purpose of elimination following a comprehensive
written examination is bad so far it adversely affects
meritorious candidates irrespective of the fact of reservation.
Durga Charan Misra vs. State of Orissa (supra) was a
case relating to the selection and appointment of Munsiffs in
the State of Orissa, where this Court held that prescribing of
minimum marks for viva voce test could not be justified as the
Rules do not prescribe minimum marks for viva voce test. It
was also observed by this Court in paragraph 12 of the said
judgment that,
"in the light of these discussions, the
conclusion is inevitable that the commission in the
instant case also has no power to prescribe the
minimum standard at viva voce test for
determining the suitability of candidate."
In Dr. Krishna Chandra Sahu & Ors. Vs. State of Orissa
& Ors., (supra), this Court observed as under:
"The members of the Selection Board or for that
matter any other Selection Committee, do not have
the jurisdiction to lay down the criteria for selection
unless they are authorised specifically in that
regard by the rules made under Art. 309. It is
basically the function of the rule making authority
to provide for the basis for selection."
So in the instant case, Rule 7 of the Kerala Judicial
Service Rules did not provide selection criteria for elimination
of the candidate by oral examination after a comprehensive
written examination. The first respondent has no inherent
power to prescribe such a criteria for selection since the same
is arbitrary and illegal.
In this context, the decision of this Court in Praveen
Singh vs. State of Punjab, (supra) is very relevant. In that
case, the Public Service Commission invited applications for
appointment to the post of Block Development Officer and
Panchayat Officer. The Public Service Commission conducted
a qualifying written examination for 400 marks of 4 papers
and thereafter the persons who qualified in the written test
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was called for an interview of 50 marks and the merit list was
prepared on account of the viva voce test only. The qualifying
test becomes meaningless and the propriety of selection only
on the basis of the interview was challenged. This Court held
that viva voce test as sole basis for selection is not proper. In
the instant case, only 118 candidates were got qualified out of
1292 candidates appeared in the written examination. The
written examination consists of 24 legal subjects divided into
four papers of 100 marks each. For each paper, two and a
half hours examination was conducted. A comprehensive
written examination touching the required subjects in detail
which assess the candidate’s general knowledge, intellectual
capacity, legal learning and legal grasping. Thereafter
conducted an oral examination fixing cut off marks for further
elimination of the candidates including backward classes,
scheduled castes and scheduled tribes. So the mode of
selection procedure is unfair and illegal so far it considers the
interview which figure up 11.1% of the total marks is the sole
decisive factor. Such consideration makes the written test
meaningless.
Mr. L.N. Rao illustrated the gravity of the situation as
follows:
A candidate who secures 350 marks in the written
examination and obtains 14 marks in the oral examination
taken out from the zone of the consideration where as the
candidate secures 180 marks in the written examination and
15 marks in the oral examination find a place in the merit list.
In the present system, the latter having 43% of marks will
outweigh the former having 65% of marks on account of the
illegal fixation of separate minimum cut off marks in the oral
examination. So, the arbitrary approach of the first
respondent prescribed additional qualification with regard to
the scheme of selection made the written test meaningless and
thereby vitiated the whole process unfair and illegal.
In Praveen Singh vs. State of Punjab & Ors., (supra),
this Court held that for appointments viva voce test as sole
basis not proper. In paragraph 9, this Court observed that the
"interview should not" be the only method of assessment of the
merits of candidates. The vice of manipulation cannot be
rules out in viva voce test. Though interview undoubtedly is a
significant factor in the matter of appointments. It plays a
strategic role but it also allows creeping in of a lacuna
rendering the appointments illegitimate. Obviously, it is an
important factor but ought not to be the sole guiding factor
since reliance thereon only may lead to a "sabotage of the
purity of the proceedings".
It was also observed that the freedom for appointing
authorities to adopt any procedure for selection cannot be at
the cost of fair play, god conscience and equity.
In the case of State of Punjab vs. Manjith Singh
(supra), Public Service Commission’s power to shortlist
candidates for appointment has been considered. It has been
decided that commission can shortlist candidates. But not by
fixing minimum qualifying marks. Commission cannot impose
any extra qualification/standard for maintaining efficient in
services.
In Indre Prakash Gupta vs. State of J & K & Ors.
(supra), this Court while dealing with the J & K Public Service
Commission (Conduct of Business and Procedure) Rules, 1980
vis-‘-vis J & K Medical Education (Gazetted) Services
Recruitment Rules, 1979 held as follows:
"The Public Service Commission is a body
created under the Constitution. Each State
constitutes its own Public Commission to meet the
constitutional requirement for the purpose of
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discharging its duties under the Constitution.
Appointment to service in a State must be in
consonance with the constitutional provisions and
in conformity with the autonomy and freedom of
executive action. Section 133 of the Constitution
imposes duty upon the State to conduct
examination for appointment to the services of the
State. The Public Service Commission is also
required to be consulted on the matters enumerated
under Section 133. While going through the
selection process the Commission, however, must
scrupulously follow the statutory Rules operating in
the field. It may be that for certain purposes, for
example, for the purpose of shortlisting; it can lay
down its own procedure. The Commission,
however, must lay down the procedure strictly in
consonance with the statutory Rules. It cannot take
any action which per se would be violative of the
statutory Rules or makes the same inoperative for
all intent and purport. Even for the purpose of
shortlisting, the Commission cannot fix any kind of
cut off marks."
whether the fixing of separate minimum cut off marks in
the interview of further elimination of candidates after a
comprehensive written test touching the required subjects
in detail is violating of the statute.
Mr. L.N. Rao submitted that in the present case, apart
from the candidates belonging to backward classes, SC/ST
candidates are also disqualified for selection by fixing 30%
minimum cut off marks for the oral examination which is
arbitrary because unequal are treated alike. Clause 10(3) of
the Notification did not contemplate 30% cut off marks in
interview for SC/ST candidates. Moreover, the selection
agency has no inherent power to prescribe selection criteria.
The first respondent has no authority to override the legislative
intention. The Legislature did not provide criteria for selection
by exclusion of candidates by oral examination. Rule 7 of the
Kerala Judicial Service Rules did not provide a selection
criteria based on the exclusion of candidates on account of not
securing a separate minimum cut off marks in the oral
examination. Hence, the system followed by the High Court is
in clear violation of the Rules and the principles laid down by
this Court in catena of decisions and also against the norms
suggested by Shetty Commission with regard to the Judicial
Service appointments.
Whether there is violation of Rules of reservation as
contemplated under Rules 14 to 17 of the KSSSR 1958
For this proposition, the following aspects are to be
considered:
1. Clause 6 of the Notification clearly states that
"the Rules relating to reservation for
appointment for backward classes, scheduled
castes and scheduled tribes contained in Part II
of the KSSSR, 1958 (Rules 14-17) shall apply to
appointment by direct recruitment." It is in
clear terms the first respondent admitted that
the Rules of reservation shall be followed.
Thereby the first respondent is estopped from
denying the fact that the Rules of reservation is
not necessarily be followed in the event of
sufficient number of reservation, candidates
were got qualified in the selection process.
Where a statute requires a particular formality
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to be complied with there is no estoppel where
such statutory requirement is violated. In the
present system, there is every chance of illegal
elimination. In order to give effect to the Rules
or reservation, there should be some relaxation
in selection criteria. This aspect has been
accepted by this Court in a number of decisions.
2. The SC/ST community is entitled to 10%
reservation and Muslim community is entitled to
12% reservation under the provisions of KSSSR
and Rules 14 to 17 of the same are applicable in
the instant case. According to the Select List
(Annexure P-2), only five Muslim candidates and
1 SC/ST candidate were appointed. The
remaining candidates in the list can be
appointed in merit or reservation if followed the
Rules in strict sense. The reservation roster
provided in KSSSR for Muslim candidates are
6,16,26,30,46,56,66,76,80,86 and 96.
3. "Backward classes a rational classification
recognized by our Constitution, therefore,
differential treatment in standards of selection
are within the concept of equality." (Para 44 in
State of Kerala vs. N.M. Thomas, AIR 1976 SC
490). The reservation rosters are to be filled up
from the reservation candidates alone, that is
reserved for their community (R.K.Sabharwal
vs. State of Punjab & Ors., (1995) 2 SCC 745).
The reservation rosters are to be strictly followed
as per the Rules. No deviation is permissible
(Union of India vs. Virpal Singh, AIR 1996 SC
448). This Court held that candidates of
reserved category selected on their own merit are
not to be counted as reserved category
candidates. A reserved candidate comes in the
merit list is to be considered in merit rather than
reservation.
4. 82nd Constitution Amendment (2000) provides
that nothing in Article 335 shall prevent the
State from making any provision in favour of the
members of the Scheduled Castes and
Scheduled Tribes for relaxation in qualifying
marks with respect to
examination/job/promotion. So there should be
relaxation in selection criteria with respect to
reserved candidates. The non-creamy layer
section of the Muslim community is socially and
educationally most backward. They cannot be
equated with a high pedestal than the scheduled
castes and scheduled tribes. Backward class is
a caste within the ambit of Article 15(4) and
Article 16(4). So, the non-creamy layer section
of the Muslim community is allotted 12%
reservation by the State of Kerala.
5. In order to fill up reserved quota, the inter se
merit of the reserved candidates has to be taken
into account. In State of Andhra Pradesh vs.
Vijaya Kumar, AIR 1995 SC 1648, this Court
held that the reservation is permissible under
the Constitution and that cannot be whittled
down in any manner. So, the reservation is the
policy of the State and for which Rules 14-17 of
KSSSR are provided for protecting the
constitutional mandate under Art.15.
6. What is meant by reservation and the effect of
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reservation is much discussed in Ajith Singh &
Ors. Vs. State of Punjab & Ors., AIR 1999 SC
2471. In paragraph 38, this Court held as
under:
"It must be noted that whenever a
reserved candidate goes for selection at
the initial level (say level 1) he is not going
through the normal process but gets
appointment to a post reserved for his
group. That is what is meant by
reservation." That is the effect of
reservation."
So, the reservation is a legally
accepted aspect. Therefore, in the case of
reservation of candidates, there should be
relaxation in the selection procedure. In the
present case, the first respondent did not prepare
a supplementary list consisting the names of the
candidates in reservation quota. For the
compliance of Rules 14 to 17 of KSSSR, there
should be a supplementary list as per Kerala
Public Service Commission Rules of Procedure
Rules 4(iv) and 12. So supplementary list of
candidates coming under the reserved categories
has to be prepared and the same is to be
considered as part of the rank list for the purpose
of filling up of reserved candidates. Articles 15(4)
and 16(4) mandate maximum possible reservation
shall be given to socially educationally backward
classes including Scheduled castes and scheduled
tribes in order to bring them in the main stream.
(7) The Division Bench without any factual
foundation relied on the decision of this Court in
State of Bihar vs. Bal Mukund Shah, (2004) 4
SCC 640. In that case, this Court discussed the
legislative competence of the State Government
under Art.309. It was held that legislation for
reservation in Judicial appointments can only be
made after consultation with the High Court. In
that case, Bihar Government made a legislation
prescribing 50% posts of District Judges under
reservation quota without consulting the High
Court. In the instant case, the High Court has no
case that the reservation is not applicable.
Judicial Service Rules of 1991 is made in
consultation with the High Court under Art. 234 of
the Constitution of India.
(8) The learned single Judge is of the view that the
Select List (Ann. P-2) can be interfered with only to
the extent that the decision to fill up S.Nos. 60,62,
64, 66, 70 which are reserved posts from the open
merit candidates. The learned single Judge has
observed in paragraph 10 of his judgment that ,
"But under the pretext of shortlisting many
qualified candidates were irregularly and illegally
taken out from the zone of consideration for the
reason that they had not obtained qualifying
marks in the total examination. Annexure P-2
(Select List) published by the High Court is in clear
violation of the provisions of the Rules. So, it is
very clear that the procedure adopted by the first
respondent \026 High Court made the written test
meaningless. It can be seen that the Annexure P-2
list is prepared not as per the merit and rules of
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reservation since the open merit candidates are
arranged in the reservation quota. The reservation
candidates who come out in merit also placed in
the reserved quota instead of placing them in the
merit list. That is against the dictum laid down in
R.K. Sabharwal’s case(supra). The illegality
strikes at the root of appointment cannot be
validated. So, it is for the interest of justice, equity
and good conscience the entire list is to be
quashed and the same is to be re-arranged in the
order of merit considering the aggregate marks
secured by the candidate in the written as well as
oral examination strictly following Rules 14 to 17
of the KSSSR to secure reservation under Art.
15(4) of the Constitution of India. The procedure
adopted by the first respondent is not legally valid
since statutory requirements have been violated.
ESTOPPEL
It is submitted by Mr. L.N. Rao that estoppel is not
available to the respondents inasmuch as the Division
Bench itself while allowing the appeal of the respondent,
specially rejecting the contentions of plea of estoppel in
paras 47 and 48 of the impugned judgment. According to
Mr. Rao, none of the respondents before this Court has
neither challenged the said findings nor filed any cros-
appeal in this regard. He would, therefore, submit that it
is impermissible to the respondent to take the plea of
estoppel where they themselves have waived of their right
to file cross appeal challenging the said findings in para
48 of the impugned judgment. He would further submit
that there is no plea of estoppel against the violation of
statutory rules. Similarly there cannot be any plea of
estoppel against the Constitution. It is submitted that the
appellants/petitioners have approached this Court
against the violation of their fundamental right also being
unequal or treated alike by fixing equal cut off marks for
all candidates thereby violating Arts. 14 & 16 of the
Constitution of India. For this proposition, Mr. Rao relied
on a Constitution Bench decision of this Court in Olga
Tellis & Ors. Vs. Bombay Municipal Corporation, AIR
1986 SC 180 in which this Court held that there can be
no estoppel against Constitution and that the
Constitution is not only the paramount law of the land
but it is the source and sustenance of all laws. In this
regard, he invited our attention to paragraphs 28 and 29
of the above decision.
Concluding his elaborate submissions, Mr. Rao
submitted that the prayer of the appellants/petitioners is
not to quash the select list published by the High Court in
its entirety and that the select list may be redone on the
basis of the aggregate marks obtained by the candidates
in the written and oral examination as envisaged in Rule
7(i). It is submitted that by doing this only 5 or 6
candidates will be affected.
Elaborating, Mr. Rao submitted that if this Court is
not inclined to redo the list as aforesaid, the case of the
appellants/petitioners before this Court be considered on
individual basis. The appellants/petitioners are age
barred and will not be able to attempt another
examination. It is stated that there are 50 vacancies
existing and so the interest of the appellants/petitioners
can be protected if this Court issues a direction to
accommodate the 5 appellants/petitioners before this
Court which will not cause any prejudice to any of the
respondents.
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Per contra, Mr. T.L.Vishwanatha Iyer, learned senior
counsel, appearing for the respondents made elaborate
submissions by way of reply to the arguments advanced
by Mr. Rao. In regard to his main submissions made on
behalf of the appellants in challenge of the decision of the
Division Bench accepting the High Court’s appeal and
reversing the judgment of the learned single Judge, Mr.
T.L.Vishwanatha Iyer submitted that the selection in
question was pursuant to the Notification issued by the
High Court of Kerala on 26.3.2001 notifying 70 vacancies
of Munsif Magistrates to be filled up. We have already
reproduced the Notification in paragraphs supra. He
invited our attention to clause 10 of the Notification which
prescribed a scheme of written and oral examination to be
taken by the candidate. The written examination was to
consist of four papers carrying 100 marks each, the
subjects for which the examinations were to be held being
specified in the Notification. There was also to be an oral
examination carrying 50 marks for deciding the
candidate’s general knowledge, grasp of general principles
of law, analytical ability and suitability for appointment as
Munsif Magistrate. Sub-clause 3 provides that only
candidates securing not less than 35% marks in each of
the four papers of the written examination with an overall
minimum of 45% of the total marks of the written
examination and 30% of the marks for the oral
examination shall be eligible for appointment. There was
a relaxation of the marks in the written examination in
favour of candidates belonging to Scheduled castes and
Scheduled Tribes. The rank list is to be prepared of the
eligible candidates, i.e. those who secure the minimum in
the written and oral examinations, as stated above,
adding together the marks of the written and oral
examinations. The Notification itself stated that the
candidates belonging to the Scheduled Castes and
Scheduled Tribes will be given a pre-examination training.
This was done with a view to equip them for the
examination.
It is pertinent to notice that Rules of 1991 were
formulated after the integration of the Civil and Criminal
wings of the Judiciary and formation of the cadre of
Munsif Magistrate at the entry point. Two earlier
selections had been made in 1991 and 1998 in
accordance with the same procedure as laid down in the
Notification dated 26.3.2001 by prescribing the securing
of minimum marks in the written and oral examinations
as a condition of eligibility. The same procedure was
followed in the impugned selection also.
It is also pertinent to notice that the prescription of a
minimum mark for the oral examination as a condition of
eligibility for appointment was questioned in the High
Court by an aspirant by name Remani, by filing a writ
petition. That writ petition was dismissed by a learned
single Judge in 1996(2) KLT 439, wherein the learned
single Judge upheld the prescription of a minimum mark
for the oral examination as valid and in accordance with
Rule 7 of the Rules. This decision made on the judicial
side was binding on the administrative side of the High
Court and was followed in the subsequent selection in
1998 and in the impugned selection.
The oral examination in this case was conducted by
the Chief Justice and four seniormost Judges, to whom
the marks in the written test were not available at the
time of the interview. The Judges had to assess the
suitability of the candidates for selection as Munsif
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Magistrate, keeping in mind various factors. The Judges
have awarded marks and found that the appellants have
not been able to secure even 30% marks which has been
prescribed as the minimum for eligibility.
Mr. T.L.V. Iyer also pointed out that over 1200
candidates had taken the written examination and out of
them, a total of 118 secured the minimum marks
prescribed for the written examination. These 118 were
interviewed by the five Judges including the Chief Justice.
Of these, 88 secured over 30% marks of the 50 marks
prescribed for the oral examination. 88 candidates who
were thus successful and eligible to be considered were
arranged in the order of merit following the rules of
reservation prescribed in Rules 14 to 17 of the KSSSR.
The list so prepared was forwarded to the Government for
appointment to 70 vacancies notified.
It was also stated that 88 eligible candidates as
aforesaid contained 37 persons belonging to reserved
categories like other backward classes, Scheduled
Castes/Scheduled Tribes. Of these, 8 persons got
appointed in the open merit quota and the rest 29 got
appointed in the reservation quota. 70 persons
recommended to be appointed contained all these 37
candidates including 29 who got selected and ranked in
the reservation quota. It may be mentioned that none of
the eligible candidates belonging to the reserved
categories failed to secure appointment and all of them
found a place in the list of 70 persons selected for the
appointment.
The select list so prepared in accordance with the
reservation Rules was forwarded to the Government for
approval under Rule 7(2) of the Rules. Government
approved the same, after due scrutiny of all aspects and
all the 70 persons have been appointed as Munsif
Magistrates after undergoing the statutory training and
are now functioning as Munsif Magistrates.
In this background, two questions raise by Mr. L.N.
Rao have to be considered.
1. The prescription of minimum mark for the
oral examination as a condition of eligibility
for selection as Munsif Magistrate is not
authorized by Rule 7 of the Kerala Judicial
Service Rules, 1991;
2. The select list has not been prepared in
accordance with Rules 14 to 17 of KSSR
1958.
So far as the first submission is concerned, we have
already extracted Rule 7 in paragraph supra. Rule 7 has
to be read in this background and High Court’s power
conferred under Rule 7 has to be adjudged in this basis.
The said Rule requires the High Court firstly to hold
examinations written and oral. Secondly the mandate is
to prepare a select list of candidates suitable for
appointment as Munsif Magistrates. The very use of the
word ’suitable’ gives the nature and extent of the power
conferred upon the High Court and the duty that it has to
perform in the matter of selection of candidates. The High
Court alone knows what are the requirements of the
subordinate judiciary, what qualities the Judicial Officer
should possess both on the judicial side and on the
administrative side since the performance of duties as a
Munsif or in the higher categories of subordinate Judge.
Chief Judicial Magistrate or District Judge to which the
candidates may get promoted require administrative
abilities as well. Since the High Court is the best Judge of
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what should be the proper mode of selection, Rule 7 has
left it to the High Court to follow such procedure as it
deems fit. The High Court has to exercise its powers in
the light of the constitutional scheme so that the best
available talent, suitable for manning the judiciary may
get selected.
What the High Court has done by the Notification
dated 26.3.2001 is to evolve a procedure to choose the
best available talent. It cannot for a moment be stated
that prescription of minimum pass marks for the written
examination or for the oral examination is in any manner
irrelevant or not having any nexus to the object sought to
be achieved. The merit of a candidate and his suitability
are always assessed with reference to his performance at
the examination and it is a well accepted norm to
adjudge the merit and suitability of any candidate for any
service, whether it be the Public Service Commission
(I.A.S., I.A.F. etc.) or any other. Therefore, the powers
conferred by Rule 7 fully justified the prescription of the
minimum eligibility condition in Rule 10 of the
Notification dated 26.3.2001. The very concept of
examination envisaged by Rule 7 is a concept justifying
prescription of a minimum as bench mark for passing the
same. In addition, further requirements are necessary for
assessment of suitability of the candidate and that is why
power is vested in a high powered body like High Court to
evolve its own procedure as it is the best Judge in the
matter. It will not be proper in any other authority to
confine the High Court within any limits and it is,
therefore, that the evolution of the procedure has been left
to the High Court itself. When a high powered
constitutional authority is left with such power and it has
evolved the procedure which is germane and best suited
to achieve the object, it is not proper to scuttle the same
as beyond its powers. Reference in this connection may
be made to the decision of this Court in 2006(1) SCC 779
wherein an action of the Chief Justice of India was sought
to be questioned before the High Court and it was held to
be improper.
The very scheme and amplitude of Rule 7 under
which the selection is made is sufficient answer to the
contention of the appellants. Under the scheme of the
Indian Constitution, the High Court is vested with the
entire administration of the subordinate judiciary under
Arts. 233, 234 and 235 of the Constitution of India. The
High Court is vested with the power to see that the high
traditions and standards of the judiciary are maintained
by the selection of proper persons to man the subordinate
judiciary.
The place of the High Court in the matter of
administration of justice was very elaborately and
poignantly delineated by S.B.Majmudar,J., speaking for
the Constitution Bench in (2000) 4 SCC 640, said that
the very responsible and onerous duty is cast on the High
Court under the Constitutional scheme and it has been
given a prime and paramount position in this mater, with
the necessity of choosing the best available talent for
manning the subordinate judiciary. The repercussions of
wrongful choice is also pointed out in the said judgment.
It is significant to note that the
appellants/petitioners themselves have not challenged the
prescription of minimum cut off marks for the written
examination though if their contention is to be accepted,
the prescription of such minimum cut off will also be
equally invalid. Their contention, in our view, is without
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any substance and merit.
In our opinion, the interview is the best mode of
assessing the suitability of a candidate for a particular
position. While the written examination will testify the
candidates’ academic knowledge, the oral test alone can
bring out or disclose his overall intellectual and personal
qualities like alertness, resourcefulness, dependability,
capacity for discussion, ability to take decisions, qualities
of leadership etc. which are also essential for a judicial
officer.
We may usefully refer to a decision of this Court in
Sahkari Ganna Vikas Samiti Ltd. Vs. Mahabir Sugar
Mills (P) Ltd., (1981) 4 SCC 149 in which this Court
observed as under:
"The object of any process of selection for
entry into a public service is to secure the best
and the most suitable person for the job,
avoiding patronage and favouritism. Selection
based on merit, tested impartially and
objectively, is the essential foundation of any
useful and efficient public service. So, open
competitive examination has come to be
accepted almost universally as the gateway to
public services.
The ideal in recruitment is to do away
with unfairness."
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.
A system of recruitment almost totally
dependent on assessment of a person’s
academic knowledge and skills, as distinct
from ability to deal with pressing problems of
economic and social development, with people,
and with novel situations cannot serve the
needs of today, much less of tomorrow\005\005.We
venture to suggest that out recruitment
procedures should be such that we can select
candidates who cannot only assimilate
knowledge and sift material to understand the
ramifications of a situation or a problem but
have the potential to develop an original or
innovative approach to the solution of
problems.
It is now well recognised that while a
written examination assesses a candidate’s
knowledge and intellectual ability, an interview
test is valuable to assess a candidate’s overall
intellectual and personal qualities. While a
written examination has certain distinct
advantage over the interview-test there are yet
no written tests which can evaluate a
candidate’s initiative, alertness,
resourcefulness, dependableness,
cooperativeness, capacity for clear and logical
presentation, effectiveness in discussion,
effectiveness in meeting and dealing with
others, adaptability, judgment, ability to make
decision, ability to lead, intellectual and moral
integrity\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005\005\005\005\005\005\005\005\005\005.\005\005\005.. "
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"While we do feel that the marks allotted
for interview are on the high side and it may be
appropriate for the Government to re-examine
the question, we are unable to uphold the
contention that it was not within the power of
the Government to provide such high marks
for interview or that there was any arbitrary
exercise of power."
In Mohan Kumar Singhania & Ors. Vs. Union of
India & Ors., (1992) suppl. 1 SCC 594 , S.Ratnavel
Pandian, J. speaking for the Bench, observed as under:
"Hermer Finer in his textbook under the
caption The Theory and Practice of Modern
government states:
"The problem of selection for character is
still the pons asinorum of recruitment to the
public services everywhere. The British Civil
Service experiments with the interview."
The purpose of viva voce test for the ICS
Examination in 1935 could be best understood
from the following extract of the Civil Service
Commission’s pamphlet:
"Viva Voce \026 the examination will be in
matters of general interest : it is intended to
test the candidate’s alertness, intelligence and
intellectual outlook. The candidate will be
accorded an opportunity of furnishing the
record of his life and education."
"It is apposite, in this connection, to have
reference to an excerpt from the United Nations
Handbook on Civil Service Laws and Practice,
which reads thus:
"\005\005the written papers permit an
assessment of culture and intellectual
competence. This interview permits an
assessment of qualities of character which
written papers ignore; it attempts to assess the
man himself and not his intellectual abilities."
"This Court in Lila Dhar vs. State of
Rajasthan, (1984) 2 SCC 159 while
expressing the view about the importance and
significance of the two tests, namely, the
written and interview has observed thus:
"\005\005\005the written examination assess
the man’s intellect and the interview test the
man himself and the ’the twain shall meet’ for
a proper selection."
The qualities which a Judicial Officer would
possess are delineated by this Court in Delhi Bar
Association vs. Union of India & Ors., (2002) 10 SCC
159. A Judicial Officer must, apart from academic
knowledge, have the capacity to communicate his
thoughts, he must be tactful, he must be diplomatic, he
must have a sense of humour, he must have the ability to
defuse situations, to control the examination of witnesses
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and also lengthy irrelevant arguments and the like.
Existence of such capacities can be brought out only in
an oral interview. It is imperative that only persons with
a minimum of such capacities should be selected for the
judiciary as otherwise the standards would get diluted
and substandard stuff may be getting into the judiciary.
Acceptance of the contention of the appellants/petitioners
can even lead to a postulate that a candidate who scores
high in the written examination but is totally inadequate
for the job as evident from the oral interview and gets 0
marks may still find it a place in the judiciary. It will spell
disaster to the standards to be maintained by the
subordinate judiciary. It is, therefore, the High Court has
set a bench mark for the oral interview, a bench mark
which is actually low as it requires 30% for a pass. The
total marks for the interview are only 50 out of a total of
450. The prescription is, therefore, kept to the bare
minimum and if a candidate fails to secure even this bare
minimum, it cannot be postulated that he is suitable for
the job of Munsif Magistrate, as assessed by five
experienced Judges of the High Court.
In this connection, reference may be made to the
decision in Manjeet Singh, UDC & Ors. Vs. Employees
State Insurance Corporation & Anr., (1990) 2 SCC 367
at 371 wherein the Rules did not prescribe any minimum
marks for the interview. The advertisement for the job set
a minimum of 40% to the written test and without a
minimum for the interview. However, candidates with
less than 40% at the interview were not selected. The
selection was upheld by this Court relying on a judgment
of Punchhi,J in Rajesh Sood vs. Director-General,
Employees State Insurance Corporation, 1985 (2)
Service Law 699. In Union of India & Anr. Vs. Amrik
Singh & Ors., (1994) 1 SCC 269, though there was no
specification in the statutory Rules regarding the
minimum length of service for promotion, such
prescription was laid by administrative instructions. In
para 7, this Court said that the instructions so issued
were not inconsistent with the Rules. Reference may also
be made to a decision of this Court in Jasbir Singh &
Ors. Vs. State of Punjab & Anr., (2002) 1 SCC 124, in
which the relevant Rules did not specify as to the relevant
date for considering the age qualification. The
advertisement, however, fixed a cut off date, which was
contended to be illegal. This Court held that the said
prescription was for the purpose of implementation of the
Rules regarding age.
We may now refer to few decisions cited by Mr.
T.L.V. Iyer, learned senior counsel appearing for the
respondents, in support of his contentions.
In State of Haryana vs. Subash Chander Marwaha
& Ors. , 1974 (3) SCC 220, the Rules specified that a
candidate obtaining 45% marks was eligible for
appointment. However, the Government restricted the
appointments to candidates getting over 55%. Candidates
who had obtained less than 55% but over 45% challenged
the non-appointment despite existence of vacancies, on
the ground that all those got over 45% should have been
appointed. This was not accepted by this Court.
It has been held by this Court in Madhya Pradesh
Public Service Commission vs. Navnit Kumar Potdar &
Anr., 1994 (6) SCC 293 that in a selection based
interview, it was open to the Selecting Board to insist on a
higher qualification than that prescribed by the Rules. In
that case, five years’ experience was the prescribed
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qualification. But this Court held that there was nothing
wrong in confining the selection to candidates with
experience of 7 = years.
Thus it is seen that apart from the amplitude of the
power under Rule 7 it is clearly open for the High Court to
prescribe bench marks for the written test and oral test in
order to achieve the purpose of getting the best available
talent. There is nothing in the Rules barring such a
procedure from being adopted. It may also be mentioned
that executive instructions can always supplement the
Rules which may not deal with every aspect of a matter.
Even assuming that Rule 7 did not prescribe any
particular minimum, it was open to the High Court to
supplement the Rule with a view to implement them by
prescribing relevant standards in the advertisement for
selection. Reference may be made to the decision of this
Court in State of Gujarat vs. Akhilesh C. Bhargav &
Ors. , (1987) 4 SCC 482.
We shall now advert to the decisions relied on by Mr.
L.N. Rao :
1. P.K. Ramachandra Iyer & Ors. Vs. Union of
India & Ors., (supra)
2. Umesh Chandra Shukla vs. Union of India,
(supra)
3. Durga Charan Misra vs. State of Orissa,(supra)
These decisions do not deal with a situation like
Rule 7. Even otherwise, these decisions are totally
distinguishable as was virtually conceded by the
appellants/petitioners’ learned counsel as recorded by the
High Court in paragraph 27 of the judgment which reads
as under:
"Before we examine the rest of the issues,
this could be a resting point, so as to take
notice of the reply made. It has to be observed
that these points highlighted practically go
unanswered. Of course, valiant effort had
been mad by Mr. Sudhkara Prasad, learned
counsel appearing for the respondent, to
salvage the situation. He had to agree that the
decisions relied on by the learned Judge,
referred to earlier, may not apply on all fours.
But the submission is that substantial rights
cannot at all be circumscribed by a
prescription for adopting a procedure. When
the Rule does not give power to the authority
to prescribe minimum cut off marks, the
discretion has to be understood as
circumscribed\005\005\005\005\005"
This apart, those cases deal with particular
situations based on interpretation of the Rules concerned
in those cases. In Ramachandra Iyer’s case(supra), Rule
14 (paragraph 43 of the judgment) mandated that the
marks at the written test and the oral examination have
to be aggregated and the merit list prepared on the basis
of such aggregation of marks. Therefore, the marks
obtained at the written test and the oral test were both
relevant whatever be the percentage, in the preparation of
the merit list. Nevertheless, the examining Board
prescribed minimum for viva voce test and eliminated
those who failed to get the minimum. Resultantly,
candidates who would have found a place in the rank list
based on the aggregate of the marks for the two tests
stood eliminated because they did not get the minimum in
the viva voce test. This was contrary to Rule 14 and that
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was the reason why the prescription of minimum marks
for viva voce test was held invalid in Ramachandra Iyer’s
case(supra). That this is the reason evident from a
reading of paragraph 44 of the judgment where, inter alia,
this Court observed as under:
"Neither Rule 13 nor Rule 14 nor any
other Rule enables the ASRB to prescribe
minimum qualifying marks to be obtained by
the candidates at the viva voce test. On the
contrary, the language of rule 14 clearly
negatives any such power in the ASRB when it
provides that after the written test if the
candidate has obtained the minimum marks,
he is eligible for being called for viva voce test
and final merit list would be drawn up
according to the aggregation of marks obtained
by the candidates in the written test plus viva
voce examination."
"\005\005This prescription of impermissible
additional qualification has a direct impact on
the merit list because the merit list has to be
prepared according to the aggregate marks
obtained by the candidates at the written test
plus viva voce test. Once an additional
qualification of obtaining minimum marks at
the viva voce test is adhered to, a candidate
who may figure high in the merit list was likely
to be rejected on the ground that he has not
obtained qualifying marks at the viva voce
test."
The decision is, therefore, based on Rule 14 and the
necessity to aggregate the marks at the written test and
the oral test.
Similar is the question in Durga Charan Misra vs.
State of Orissa,(supra) where the decision turned on
Rule 18 of the Orissa Judicial Service Rules. The said
Rule is quoted in para 6 of that judgment and it requires
the marks obtained at the viva voce test to be added to
the marks obtained in the written examination and merit
list to be prepared in accordance with the aggregate of
these two marks. It was, therefore, held that the
prescription of a minimum of 30% at the viva voce test
and elimination of candidates accordingly a counter to
this express provision in Rule 18. This case is analogous
to the decision in P.K. Ramachandra Iyer’s case (supra)
and what is stated earlier as the distinguishing feature of
P.K.Ramachandra Iyer’s case applies equally to this
decision as well.
The third case is Umesh Chandra Shukla vs.
Union of India, (supra). In that case, the Delhi High
Court had made a list of 27 candidates after eliminating
those who had not obtained the requisite minimum at the
test conducted for the purpose. However, the High Court
modified the select list prepared in accordance with the
Rules by awarding moderation marks to those who did
not obtain the prescribed minimum marks at the written
test and the viva voce. This was held to be bad because
awarding marks by moderation amounted to amendment
of the Rules which could not be done by the High Court or
the Selection Committee. This decision, therefore, turned
on the interpretation of the Rules involved in that case
and violation thereof by the High Court by adding
moderation marks is contrary to the Rules. This case is
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also, therefore, distinguishable and has no application to
the case on hand. The learned single Judge relied on
these three decisions to decide against the High Court.
Apart from the fact that these decisions are
distinguishable and pertain to the Rules involved in those
cases, the learned Judge did not correctly appreciate the
amplitude of Rule 7 and the wide powers conferred on the
High Court to evolve its own procedure under the said
Rule.
Rule of Reservation
Contention No. 2 relates to correctness of the
application of the Rule of reservation. This point, in our
opinion, will arise for consideration only if the first
contention of the appellants/petitioners is accepted. If
that contention is rejected, the question of considering
this point will not arise. In fact, in that event, the
appellants/petitioners are not even entitled to question
the correctness of the list, as laid down by this Court in
Dr. Umakant Saran vs. State of Bihar & Ors., (1973) 1
SCC 485 and only those who are eligible or in the zone of
consideration can question the legality or otherwise of a
select list. It is the submission of Mr. T.L.V. Iyer that the
Select List has been prepared fully in accordance with
Rules 14-17 of the Rules. The appellants/petitioners’
challenge is the filling up of slot Nos. 60, 62, 64, 66, 68
and 70 which come within the reservation slots by
candidates in the merit list. This is misconceived and
incorrect. Rule 15(a) & (b) of KSSSR specially mandates
that if candidate belonging to a particular community \026
OBC, SC/ST is not available to fill up any particular slot,
then it should be passed over and filled up by a candidate
available from the next reserved community and so on. If
no member of a reserved community is ultimately
available for filling up that slot, that slot should be filled
up by an open merit candidate. That is the position here.
There were no eligible reserved candidates available for
filling up the aforesaid slots 60 etc. As mentioned earlier,
from all the reserved candidates, 37 of them available
among the 88 eligible candidates had already been given
place above Slot No. 60 and there was not a single
reserved candidate available to fill up slots 60 etc.
Therefore, under Rule 15, the aforesaid slots had
mandatorily to be filled up by open merit candidates. It is
not possible for the Government to keep those vacancies
unfilled particularly, when there was a total of 70
vacancies to be filled up and open merit candidates were
also available. Non-filling up of those vacancies by open
merit candidates would have resulted in violation of Rule
15. In fact, the Division Bench had gone into this aspect
and examined this matter with reference to Rules and
found that there was no departure from Rules 14 to 17 in
the preparation of the list.
The list so prepared in accordance with the
reservation Rules was forwarded to the Government and
the Government, in its turn, examined the matter again in
all its aspects and approved the same.
Mr. L.N. Rao cited the decision in the case of
Rajasthan Public Service Commission & Anr. Vs.
Harish Kumar Purohit & Ors., (2003) 5 SCC 480. He
raised the contention that the so called de-reservation
had to be done only by the Government and not by the
Selecting authority viz. the High Court. This question is
not relevant in this context. There is no question of de-
reservation so far as the case on hand is concerned for
the reason that it was an application of Rule 15 and the
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filling up of the posts by open merit candidates as
required therein. There is no de-reservation involved at
all. The High Court has only followed the mandate of
Rule15.
Mr. L.N. Rao made a further contention based on the
above decision that the de-reservation of any post has to
be done by the Government. This contention, in our view,
has also no force. Assuming that this is a case of de-
reservation, the High Court only forwarded the list to the
Government and it is the Government who approved the
same. De-reservation, if any, of the posts was, therefore,
done only by the Government and not by the High Court.
But as stated earlier, the question of de-reservation does
not arise, as this is a case of application of the mandate of
Rule 15. In the circumstances, the second contentions
raised by Mr. L.N. Rao is also incorrect and untenable,
apart from the fact that the appellants/petitioners who
are not eligible candidates are not entitled to contest the
validity of the select list on this ground. Since they are
ineligible for appointment, no relief, in any case, be
afforded to them in any event.
The appellants/petitioners, in any event, are not
entitled to any relief under Art. 226 of the Constitution of
India for more reasons than one. They had participated
in the written test and in the oral test without raising any
objection. They knew well from the High Court’s
Notification that a minimum marks had to be secured
both at the written test and in the oral test. They were
also aware of the High Court decision on the judicial side
reported in Remany vs. High Court of Kerala, 1996 (2)
KLT 439. This case deals with prescription of minimum
qualifying marks of 30% for viva voce test. C.S. Rajan, J.,
in the above judgment, observed as under:
"\005\005..On the basis of the aggregate
marks in both the tests, the selection has to be
made. In I.C.A.R’s case, AIR 1984 SC 541 also
the relevant rules did not enable the selection
Board to prescribe minimum qualifying marks
to be obtained by the candidate at the viva
voce test. In the Delhi Judicial Service’s case
also (AIR 1985 SC 1351, the rules did not
empower the committee to exclude candidates
securing less than 600 marks in the aggregate.
Therefore, in all these cases, the Supreme
Court came to the conclusion that prescription
of separate minimum marks for viva voce test
is bad in law because under the rules, no
minimum qualifying marks were prescribed."
The High Court also relied on P.K. Ramachandra
Iyer’s case (supra) and Umesh Chandra’s case (Supra).
The appellants/petitioners having participated in the
interview in this background, it is not open to the
appellants/petitioners to turn round thereafter when they
failed at the interview and contend that the provision of a
minimum mark for the interview was not proper. It was so
held by this Court in paragraph 9 of Madan Lal & Ors.
Vs. State of J & K & Ors. , (1995) 3 SCC 486 as under:
"Before dealing with this contention, we
must keep in view the salient fact that the
petitioners as well as the contesting
successful candidates being respondents
concerned herein, were all found eligible in
the light of marks obtained in the written test,
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to be eligible to be called for oral interview.
Up to this stage there is no dispute between
the parties. The Petitioners also appeared at
the oral interview conducted by the Members
concerned of the Commission who interviewed
the petitions as well as the contesting
respondents concerned. 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, 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 the
Selection Committee was not properly
constituted. In the case of Om Prakash
Shukla vs. Akhilesh Kumar Shukla, 1986
suppl SCC 283, 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 protect 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."
Therefore, the writ petition filed by the
appellants/petitioners should be dismissed on the ground
of estoppel is correct in view of the above ruling of this
Court. The decision of the High Court holding to the
contrary is in per curiam without reference to the
aforesaid decisions.
The writ petitions have also to fall on the ground of
absence of necessary parties in the party array. Though
the appellants/petitioners contend that they are only
challenging the list to a limited extent, acceptance of their
contention will result in a total re-arrangement of the
select list. The candidates will be displaced from their
present ranks, besides some of them may also be out of
the select list of 70. It was, therefore, imperative that all
the candidates in the select list should have been
impleaded as parties to the writ petitions as otherwise
they will be affected without being heard. Publication in
the newspaper does not cure this defect. There are only a
specified definite number of candidates who had to be
impleaded namely, 70. It is not as if there are a large
unspecified number of people to be affected. In such
cases, resort cannot be made to Rule 148 of the Kerala
High Court Rules. That Rule can be applied only when
very large number of candidates are involved and it may
be not able to pin point those candidates with details. In
our view, the writ petitions have to fail for non-joinder of
necessary parties also.
One more factor has also to be noticed in regard to
the civil appeals filed by Mr. K.H. Siraj which, in our
opinion, is also hit by res judicata. His writ petition in the
High Court was O.P. No. 5219 of 2002. That was partly
allowed without giving him any relief for a direction for
appointment. On the other hand, the High Court set
aside the selection of candidates occupying Rank Nos. 60,
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62, 64, 66, 68, and 70. The High Court filed Writ Appeal
No. 1496 of 2004 before the Division Bench. Mr. K.H.
Siraj himself filed W.A. No.1584 of 2004 against that part
of the impugned judgment which was against him.
Candidates occupying Rank Nos. 60 etc. who are affected
by the judgment had themselves filed W.A.Nos. 1498,
1510, 1526, 1527, 1541, 1588 and 1574 of 2004. All
these appeals filed by the High Court and by these parties
were allowed setting aside the judgment of the learned
single Judge. Mr. K.H. Siraj’s appeal (W.A. 1584/2004)
was dismissed. However, Mr. Siraj has chosen to file
appeals only against the decision in W.A.No. 1496/2004
filed by the High Court and W.A. No. 1584 of 2004 filed
by himself and has not chosen to file any appeal against
the decision in the other appeals, W.A.No. 1498 of 2004
etc. filed by the affected parties. The decision therein has
become final and, therefore, operates as res judicata and
Mr. K.H. Siraj’s appeal is to be dismissed as such.
Mr. L.N. Rao, concluding his arguments, sought to
the argument of sympathy. The flimsy plea was made by
him in this regard. We are unable to countenance the
plea of sympathy. The appellants/petitioners could not
secure even the minimum of 30% marks prescribed by the
High Court. The five learned Judges including the Chief
Justice who had interviewed the candidates in an
objective way, have found these appellants/petitioners as
not suitable for the job and, therefore, not awarded them
even the minimum marks required in the oral test. As
pointed out earlier, there is no mala fide or bias attributed
to the selection committee. It is irrelevant to say that they
failed to make only one or two marks when it is evident
that they were not able to score even the very low
minimum of 30% marks prescribed for the oral test.
Likewise, the request of Mr. L.N. Rao for relaxation
of the age qualification in future selection in so far as the
appellants/petitioners are concerned is again not a valid
request. This is a case where the High Court has gone
strictly by the Rules and found the appellants/petitioners
as unsuitable. When the Constitutional mandate is that
the High Court should perform its duty in having the best
available talent chosen for the subordinate judiciary, it is
not possible to dilute the standards by any process. It is
only this mala fide of the Constitution, that the select
committee in this case has performed and found the
appellants/petitioners unsuitable. There is no case for
any relaxation of age in future recruitment to be given so
far as the appellants/petitioners are concerned.
Mr. Uday U. Lalit, learned senior counsel appearing
for respondent Nos. 6, 7, 8 & 9 in C.A. Nos. 2539-2540 of
2005. He also advanced the similar arguments as that of
Mr. T.L.V. Iyer. He also submitted that since mala fides is
not alleged, the selection made by five Hon’ble Judges of
the High Court should not be interfered with. He also
advanced the argument on Rule 7. On the question of
equality, Mr. Uday U. Lalit submitted that the list was
published in the year 2002 and that is more than four
years after and that the respondents were selected and
once they selected, they seized to be advocates and that
since then they are working and, therefore, to put the
clock back completely at this distance of time is not
proper. Mr Lalit also placed reliance on the decision of
this Court in Manjeet Singh, UDC & Ors. Vs. Employees
State Insurance Corporation & Anr.,(supra) which in
turn refers to the views expressed by Punchhi,J (as he
then was) in decision Rajesh Sood vs. Director-General,
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Employees State Insurance Corporation (supra).
The Division Bench summoned the original files and
verified as to whether proper procedure has been followed
in the pattern of awarding of marks and prepared of the
lists. The learned Judges in paragraph 50 of their
judgment observed as under:
"\005.The compilation of records are
immediately done, and at every stage, the
senior Judges including the Chief Justice, who
were in office, had been closely monitoring the
selection process. The details of marks
awarded in the written and oral examinations
were available, as arising from the selection
process. Details of candidates with
permissible amount of secrecy and the marks
respectively secured by them were available,
under the signature of the Chief Justice and
his companion Judges. The records reveal
that principles of rotation have been borne in
mind."
For the foregoing reasons, we are of the opinion that
the appellants in the civil appeals and petitioners in the
special leave petitions are not entitled to any of the reliefs
prayed for as they have not made out any valid or
sustainable ground. We, therefore, set aside the
judgment passed by the learned single Judge and affirm
the judgment passed by the Division Bench which, in our
opinion, does not warrant interference.
Accordingly, the civil appeals and the special leave
petitions are dismissed. There shall be no order as to
costs.