Full Judgment Text
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CASE NO.:
Writ Petition (civil) 490 of 2007
PETITIONER:
Hemani Malhotra
RESPONDENT:
High Court of Delhi
DATE OF JUDGMENT: 03/04/2008
BENCH:
CJI K.G. BALAKRISHNAN & J.M. PANCHAL
JUDGMENT:
J U D G M E N T
WITH
WRIT PETITION (CIVIL) NO.491 OF 2007
Vineeta Goyal \005\005 Petitioner
Versus
High Court of Delhi \005\005 Respondent
J.M. PANCHAL, J.
1. These petitions are filed under Article 32 of the
Constitution wherein the common prayer made, is to issue a
writ of mandamus or any other appropriate writ or order to
direct the respondent i.e. the High Court of Delhi at New Delhi
to amend notice dated April 10, 2007 issued by Registrar
(Vig.), High Court of Delhi to the effect that the petitioner of
each petition, is also declared as selected for being
recommended for appointment to the vacant post in Delhi
Higher Judicial Service and prepare a combined merit list on
the basis of total marks obtained in written examination as
well as proportionate marks of the interview, as if, the vive-
voce test was of 75 marks instead of 750 marks or by adding
marks obtained in written examination and the marks given to
the petitioner in the interview out of 750 marks without cut
off.
2. In order to resolve the controversy raised by the
petitioners in the petitions it would be advantageous to refer to
certain basic facts.
3. The respondent i.e. the High Court of Delhi at New
Delhi through Registrar General issued an advertisement
inviting applications from eligible candidates for 16 vacant
posts to be filled up by direct recruitment to Delhi Higher
Judicial Service. Detailed information was given in the
instructions annexed with the Application Form. The relevant
particulars stated in the advertisement were as under:-
\023Delhi Higher Judicial Service Examination shall be a
two stage selection process comprising the following:
(a) There shall be a written examination comprising
of one paper only of 250 marks. It shall have two parts.
Part I shall be objective and Part II shall be descriptive.
Syllabus for written examination shall comprise General
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Knowledge, Current Affairs, English Language and
topics on Constitution of India, Evidence Act, Limitation
Act, Code of Civil Procedure, Criminal Procedure Code,
Indian Penal Code, Contract Act, Partnership Act,
Principles governing Arbitration Law, Specific Relief Act,
Hindu Marriage Act, Hindu Succession Act, Transfer or
Property Act and Negotiable Instrument Act.
(b) Interview/Viva-Voce.
Minimum qualifying marks in the written
examination shall be 55% for General Candidates and
50% for Scheduled Castes and Scheduled Tribes
candidates. \022\022
4. The petitioner of each petition submitted application
in the prescribed form. They were allotted relevant Roll Nos.
A written examination was conducted on March 12, 2006
wherein the petitioners appeared. The written examination
was of three hours\022 duration and comprised both multiple
questions as well as questions with descriptive answers. The
respondent High Court did not declare the result of the written
examination at all. However, the petitioners received letter
dated June 14, 2006 from the respondent asking them to
appear for interview on July 12, 2006. Since the result of the
written examination conducted by the respondent was not
declared, no merit list of the successful candidates who passed
the written test was displayed and therefore it is the case of
the petitioners that they were not in a position to find out
details about the number of candidates who were declared
successful in the written examination or for that matter, the
number of candidates who had qualified for viva- voce test.
According to the petitioners, the Registrar General of Delhi
High Court verified testimonials and other documents
submitted by them and informed them that the interview had
been deferred and that the next date would be intimated in
due course. What is averred by the petitioners is that the
respondent issued letter dated September 4, 2006 directing
the petitioners to appear for interview on September 20, 2006
at 2.30 P.M., but on September 19, 2006 another letter was
issued intimating the petitioners that the interview fixed on
September 20, 2006 was deferred. It may be mentioned that
no next date of interview was intimated to the petitioners. The
respondent High Court issued letter dated November 9, 2006
intimating the petitioners that the interview was fixed on
November 29, 2006, but again on November 28, 2006, another
letter was issued intimating the petitioners that the interview
fixed November 29, 2006 was deferred. This last letter of
November 28, 2006 specified that the interviews were to take
place on December 7, 2006. According to the petitioners on
December 7, 2006 five candidates who had cleared written test
gathered in the Office of Registrar General of Delhi High Court
for appearing at viva- voce test and all the five candidates
were collectively called in a Chamber by the Selection
Committee comprising five Hon\022ble Judges of Delhi High Court
to be informed that the interview had been postponed.
Meanwhile, the Selection Commettee met and resolved that as
it was desirable to prescribe minimum marks for the viva-voce
the matter be placed before the Full Court. Accordingly, the
matter was placed before the Full Court for considering the
question whether minimum marks should be prescribed for
vive-voce test. The Full Court, in its meeting held on
December 13, 2006, resolved as under:-
\023Considered. It was resolved that for recruitment to
Delhi Higher Judicial Service from Bar, the minimum
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qualifying marks in viva-voce will be 55% for General
candidates and 50% for Scheduled Castes and
Scheduled Tribes Candidates\024.
The respondent High Court thereafter issued letter dated
January 17, 2007 intimating the petitioners that the vive-voce
was fixed on January 23, 2007, but on January 22, 2007
another letter was issued intimating that the interview fixed on
January 23, 2007 was postponed. Again by letter dated
February 2, 2007 the petitioners were intimated that they were
required to appear for interview on February 5, 2007, but
even on that day also, no interview could be held.
5. The respondent High Court issued letter dated
February 23, 2007 fixing the oral interview on February 27,
2007 and on that day viva- voce test was finally conducted by
the Selection Committee. Thereafter, the Registrar (Vig.)
issued a notice dated April 10, 2007 mentioning that only
three candidates were selected and the petitioners had not
been selected. This notice was posted on the web-site of Delhi
High Court. What is claimed by the petitioners is that the
Selection Committee had not drawn final merit list on the
basis of combined result of written examination and interview
because if the merit list had been drawn on this basis, the
petitioners would have obtained fourth or fifth position in the
final merit list as only five candidates had qualified for the
viva- voce test, and no cut-off marks were prescribed for viva-
voce test. The petitioners claim that they filed an application
under Right to Information Act before the Public Information
Officer of High Court of Delhi on April 28, 2007 seeking
information about the result etc. of Delhi Higher Judicial
Service Examination 2006. According to the petitioners the
Public Information Officer of the High Court did not supply
most of the information demanded by them on the pretext of
confidentiality, but in reply dated June 20, 2007 only a part of
the information was given to the petitioner in Writ Petition No.
490 if 2007 that out of 250 marks for which written test was
conducted, she had secured 141 marks and 363 marks out of
750 marks for which viva- voce test, was conducted. The
petitioner in Writ Petition Civil No. 491 of 2007 was informed
by intimation dated June 20, 2007 that she had obtained
153.50 marks out of 250 marks for which written test was
conducted and 316 marks out of 750 marks for which viva-
voce test was conducted. What is maintained by the
petitioners is that the petitioners have been excluded from
being considered for appointment to the post of Higher
Judicial Services exclusively on the basis of cut off marks
prescribed at the stage of viva- voce test, which is illegal and
contrary to the principle laid down by the Supreme Court in
Lila Dhar vs. State of Rajasthan AIR 1981 SC 1777.
According to the petitioners what weightage should be
attached to written test and interview depends upon the
requirement of service for which selection is being made, but
minimum cut off marks could not have been prescribed for
viva- voce test, after process for selection had commenced. It
is stressed that the oral interview was the only criteria adopted
by the respondent for selection to the posts in question which
is illegal and therefore the notice dated April 10, 2007 issued
by the Registrar (Vig.), High Court of Delhi should be directed
to be amended to include names of the petitioners also as
selected candidates for appointment to the posts in question.
Under the circumstances the petitioners have invoked extra
ordinary jurisdiction of this Court under Article 32 of the
Constitution and claimed the reliefs to which reference is
made earlier.
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6. On service of notice, Mr. Ramesh Chand, Deputy
Registrar, Delhi High Court has filed reply affidavit
controverting the averments made in the petition. In the reply
it is stated that the writ petitions filed against prescription of
minimum percentage of marks for qualifying at the viva- voce
test, is not maintainable and therefore should be dismissed. It
is mentioned in the reply that as far as selection made in the
year 2000 was concerned, a candidate was required to get
minimum of 55% marks if he belonged to the General Category
and 50% marks if he belonged to the Scheduled Castes and
Scheduled Tribes category for passing the vive-voce test and as
the petitioners who belong to the General Category did not
secure the minimum marks stipulated for the vive-voce, but
failed, their names were not recommended for appointment. It
is mentioned in the reply that another advertisement dated
May 19, 2007 was issued for recruitment to the vacant posts
in the Delhi Higher Judicial Service wherein the petitioners
had appeared but failed and therefore also they are not
entitled to the reliefs claimed in the petitions. What is pointed
out in the reply is that a candidate is required to secure the
stipulated minimum marks in the written examination in
order to qualify for the next stage i.e. vive-voce test and
therefore the respondent was justified in prescribing cut off
marks at the vive-voce test. By filing the reply the respondent
has demanded dismissal of the petitions.
7. This Court has heard the learned Counsel for the
parties at length and in great detail. This Court has also
considered the documents forming part of the petitions.
8. From the record of the case it is evident that the
public advertisement was issued by the respondent for direct
recruitment to Delhi Higher Judicial Services. As per the said
advertisement written examination was to be held on March
12, 2006. The selection process was of two stages: stage one
was written examination comprising one paper only of 250
marks, whereas stage two included interview/vive-voce. As
per the advertisement minimum qualifying marks in the
written examination were specified to be 55% for General
candidates and 50% for Scheduled Castes and Scheduled
Tribes candidates but no cut off marks were prescribed for
vive-voce test at all. The averments made in the petitions
which are not effectively controverted by the respondent would
indicate that oral interview was postponed by the respondent
on six occasions and was finally conducted by the Selection
Committee only on February 27, 2007. However, before that
date criteria of cut off marks for vive-voce test was introduced
by the respondent. It is an admitted position that at the
beginning of the selection process, no minimum cut off marks
for vive-voce were prescribed for Delhi Higher Judicial Service
Examination, 2006. The question, therefore, which arises for
consideration of the Court is whether introduction of the
requirement of minimum marks for interview, after the entire
selection process was completed would amount to changing
the rules of the game after the game was played. This Court
notices that in Civil Appeal No. 1313 of 2008 filed by
K.Manjusree against the State of A.P. & Anr. decided on
February 15, 2008, the question posed for consideration of
this Court in the instant petitions was considered and
answered in the following terms:-
\023The resolution dated 30.11.2004 merely adopted the
procedure prescribed earlier. The previous procedure
was not to have any minimum marks for interview.
Therefore, extending the minimum marks prescribed for
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written examination, to interviews, in the selection
process is impermissible. We may clarify that
prescription of minimum marks for any interview is not
illegal. We have no doubt that the authority making
rules regulating the selection, can prescribe by rules,
the minimum marks both for written examination and
interviews, or prescribe minimum marks for written
examination but not for interview, or may not prescribe
any minimum marks for either written examination or
interview. Where the rules do not prescribe any
procedure, the Selection Committee may also prescribe
the minimum marks, as stated above. But if the
Selection Committee want to prescribe minimum marks
for interview, it should do so before the commencement
of selection process. If the selection committee
prescribed minimum marks only for the written
examination, before the commencement of selection
process, it cannot either during the selection process or
after the selection process, add an additional
requirement that the candidates should also secure
minimum marks in the interview. What we have found
to be illegal, is changing the criteria after completion of
the selection process, when the entire selection
proceeded on the basis that there will be no minimum
marks for the interview.\022\022
9. From the proposition of law laid down by this Court
in the above mentioned case it is evident that previous
procedure was not to have any minimum marks for vive-voce.
Therefore, prescribing minimum marks for vive-voce was not
permissible at all after written test was conducted. There is no
manner of doubt that the authority making rules regulating
the selection can prescribe by rules the minimum marks both
for written examination and vive-voce, but if minimum marks
are not prescribed for vive-voce before the commencement of
selection process, the authority concerned, cannot either
during the selection process or after the selection process add
an additional requirement/qualification that the candidate
should also secure minimum marks in the interview.
Therefore, this Court is of the opinion that prescription of
minimum marks by the respondent at vive-voce, test was
illegal.
10. The contention raised by the learned Counsel for
the respondent that the decision rendered in K.Manjusree
(Supra) did not notice the decisions in Ashok Kumar Yadav v.
State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v.
High Court of Kerala and Others (2006) 6 SCC 395 and
therefore should be regarded either as decision per incuriam or
should be referred to Larger Bench for reconsideration, cannot
be accepted. What is laid down in the decisions relied upon by
the learned Counsel for the respondent is that it is always
open to the authority making the rules regulating the selection
to prescribe the minimum marks both for written examination
and interview. The question whether introduction of the
requirement of minimum marks for interview after the entire
selection process was completed was valid or nor, never fell for
consideration of this Court in the decisions referred to by the
learned Counsel for the respondent. While deciding the case
of K.Manjusree (Supra) the Court noticed the decisions in (1)
P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141;
(2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC
721; and (3) Durgacharan Misra v. State of Orissa (1987) 4
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SCC 646, and has thereafter laid down the proposition of law
which is quoted above. On the facts and in the circumstances
of the case this Court is of the opinion that the decision
rendered by this Court in K.Manjusree (Supra) can neither be
regarded as Judgment per incuriam nor good case is made out
by the respondent for referring the matter to the Larger Bench
for reconsidering the said decision.
11. At this stage this Court notices that as per the
information supplied by the respondent to the petitioners
under the provisions of Right to Information Act, the petitioner
in Writ Petition Civil No. 490/2007 had secured 142 marks
out of 250 prescribed for the written test and 363 marks out of
750 marks in vive-voce test, whereas the petitioner in Writ
Petition No. 491/2007 had secured 153.50 marks out of 250
marks in the written test and 316 marks out of 750 marks in
vive-voce test. There is no manner of doubt that the
prescription of 750 marks for vive-voce test is on higher side.
This Court further notices that Hon\022ble Justice Shetty
Commission has recommended in its Report that \023The vive-
voce test should be in a thorough and scientific manner and it
should be taken anything between 25 to 30 minutes for each
candidate. What is recommended by the Commission is that
the vive-voce test shall carry 50 marks and there shall be no
cut off marks in vive-voce test.\024 This Court notices that in All-
India Judges Association and ors. V. Union of India and
Ors. (2002) 4 SCC 247, subject to the various modifications
indicated in the said decision, the other recommendations of
the Shetty Commission (supra) were accepted by this Court.
It means that prescription of cut off marks at vive-voce test by
the respondent was not in accordance with the decision of this
Court. It is an admitted position that both the petitioners had
cleared written examination and therefore after adding marks
obtained by them in the written examination to the marks
obtained in the vive-voce test, the result of the petitioners
should have been declared. As noticed earlier 16 vacant posts
were notified to be filled up and only five candidates had
cleared the written test. Therefore, if the marks obtained by
the petitioners at vive-voce test had been added to the marks
obtained by them in the written test then the names of the
petitioners would have found place in the merit list prepared
by the respondent. Under the circumstances, this Court is of
the opinion that the petitions filed by the petitioners will have
to be accepted in part.
12. For the foregoing reasons both the petitions
succeed. The respondent is directed to add the marks
obtained by the petitioners in the written examination to the
marks obtained by them in the vive-voce test and prepare a
combined merit list along with the other selected candidates.
The respondent is directed to amend the notice dated April 10,
2007 issued by the Registrar (Vig.), High Court of Delhi, New
Delhi and declare the petitioners as selected for being
recommended for appointment to the post in Delhi Higher
Judicial Service. It is clarified that the petitioners would
neither be entitled to, seniority or salary with retrospective
effect. Their seniority shall be reckoned from the date of their
appointment and salary as allowable be paid from that date
only. Rule is made absolute accordingly in each petition.
There shall be no order as to cost.