Full Judgment Text
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PETITIONER:
NEELIMA SHANGLA Ph.D. CANDIDATE
Vs.
RESPONDENT:
STATE OF HARYANA & ORS.
DATE OF JUDGMENT17/09/1986
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
DUTT, M.M. (J)
CITATION:
1987 AIR 169 1986 SCR (3) 785
1986 SCC (4) 268 JT 1986 445
1986 SCALE (2)435
CITATOR INFO :
APL 1989 SC1637 (11)
D 1991 SC1612 (1,7,8)
ACT:
Haryana Civil Services (Judicial Branch) - Subordinate
Judges-Appointment to-Parts & D/Rules 7 & 8 - Public Service
Commission-Whether it can withhold the name of some of the
qualified candidates-Duty of the Commission to make
available to government complete list of qualified
candidates.
HEADNOTE:
Out of 390 candidates who appeared at the test held in
1983-84 for selection to the Haryana Civil Service (Judicial
Branch), 54 candidates belonging to the general category,
four candidates belonging to the backward classes, four
candidates belonging to scheduled castes and two candidates
belonging to the category of ex-servicemen, qualified for
appointment by securing the prescribed minimum of 55 per
cent. The petitioner was ranked No. 24. There were 54
vacancies altogether but the Public Service Commission
recommended 26 candidates only and they included 17 from the
general category.
In a writ petition under Art. 32 of the Constitution,
the petitioner contended (i) that if the rules relating to
the appointment of Subordinate Judges in Haryana had been
adhered to, she would have been selected for appointment;
and (ii) that 32 candidates in order of merit from the
general category should have been selected for appointment
and that the Service Commission illegally withheld the names
of all the successful candidates from the Government and the
High Court.
Allowing the writ petition,
^
HELD: 1.1 The scheme of the rules relating to the
appointment of Subordinate Judges in Haryana appears to be
that the Public Service Commission should hold first a
written test in subjects chosen by the High Court and next a
Viva-voce test. The result of the examination is required to
be published in the Haryana Gazette and the selection for
appointment is to be made strictly in the order in which the
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candidates
786
have been placed by the Service Commission in the list of
candidates qualified under rule 8 of Part-C. [790 B-D]
1.2 Under the "Rules relating to the appointment of
Subordinate Judges in Haryana", the Public Service
Commission is not concerned with the number of vacancies at
all. Nor is it expected to withhold the full list of
successful candidates on the ground that only a limited
number of vacancies are available. The duty of the Public
Service Commission is confined to holding the written
examination, holding the Viva-voce test and arranging the
order of merit according to marks among that candidates who
have qualified as a result of the written and the Viva-voce
tests. Thereafter the Public Service Commission is required
to publish the result in the Gazette and, apparently to make
the result available to the Government. The Public Service
Commission is not required to make any further selection
from the qualified candidates and is, therefore, not
expected to withhold the names of any qualified candidates.
The duty of the Public Service Commission is to make
available to the Government a complete list of qualified
candidates arranged in order of merit. Thereafter the
Government is to make the selection strictly in the order in
which they have been placed by the Commission as a result of
the examination. The names of the selected candidates are
then to be entered in the Register maintained by the High
Court strictly in that order and appointments made from the
names entered in that Register also strictly in the same
order. It is, of course, open to the Government not to fill
up all the vacancies for a valid reason. [790 E-H; 791 A]
2. The selection cannot arbitrarily be restricted to a
few candidates, notwithstanding the number of vacancies and
the availability of qualified candidates. There must be a
conscious application of the mind of the Government and the
High Court before the number of persons selected for
appointment is restricted. Any other interpretation would
make rule 8 of Part of the Rules relating to the appointment
of Subordinate Judges in Haryana meaningless. [791 D-E]
In the instant case, the reason given by the Public
Service Commission for not communicating the entire list of
qualified candidates to the Government is that they were
originally informed that there were only 28 vacancies. That
is not a sound reason at all. The net result is that
qualified candidates, though available, were not selected
and were not appointed. The petitioner is one of them.
Therefore, she is entitled to be selected for appointment as
Subordinate Judge in the Haryana Civil Service (Judicial
Branch). [791 F; 792 B-C]
787
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 292 of
1986.
Under Article 32 of the Constitution of India.
Petitioner-in-person.
C.M. Nayar, C.V. Subba Rao, Pankaj Kalra, Ms. Abha
Jain, A.K. Goel, T.V.S.N. Chari and S.M. Ashri for the
Respondents
The Judgment of the Court was delivered by
O. CHINNAPPA REDDY, J. Miss Neelima Shangla desires to
be . appointed to the Haryana Civil Service (Judicial)
Branch. She has a brilliant academic record. The
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certificates produced by her show that from Matriculation to
LL.B. she has passed every one of her examinations m the
first division. She was ranked No. 2 in the LL.B. examina-
tion of the Punjab University. She was awarded the national
merit scholarship and the UGC’s scholarship. She was also
awarded the medal for the best all round student of the Law
Department in the year 1980-81. Her extra-curricular
activities also appear to be of a very high order. She was
President of the College Young Speakers’ Club, Vice-
President of the College Students’ Council, the best camper
and debater and represented the Punjab University in the
All-India Rock Climbing and Mountaineering Camp. She was the
student Editor of the College Magazine, the Law Review and
the Punjab University Magazine. She has also some published
works to her credit. She appeared at the competitive test
held in 1983-84 for selection to the Haryana Civil Service
(Judicial) Branch. She secured 60.8 per cent marks in the
written test and 50.5 per cent marks in the viva voce test.
She was ranked No. 24. It may be mentioned here that there
were altogether 774 applicants, while 390 only appeared at
the test. Out of the candidates who appeared at the test, 54
candidates belonging to the general category, four
candidates belonging to backward classes, four candidates
belonging to scheduled castes and two candidates belonging
to the category of ex-servicemen, qualified for appointment
by securing the prescribed minimum of 55 per cent. According
to the petitioner, though there were 54 vacancies
altogether, the Public Service Commission purported to
recommend 26 candidates only and they included 17 from the
general category. The petitioner claims that 32 candidates
in order of merit from the general category should have been
selected for appointment and that the Service. Commission
788
illegally withheld the names of all the successful
candidates from the Government and the High Court. She
contents that if the rules had been adhered to, she would
have been selected for appointment. To appreciate her
submission, it is necessary to refer to the relevant rules.
The rules relating to the appointment of Subordinate Judges
in Haryana are in six parts-A, B, C, D, & F. Part A deals
with qualifications. Part deals with submission of rolls.
Part deals with examination of candidates. Rule 1 of Part
provides that an examination will be held at a place to be
determined by the Haryana Public Service Commission. Rule S
provides that the Judges of the High Court may, from time to
time, declare the subjects in which the examination will be
held. Rule 7 prescribes that no candidate shall be called
for the viva-voce test unless he obtains at least 45 per
cent marks in the aggregate in all the written papers and 33
per cent marks in the language paper, Hindi (in Devanagri
script). Rule 8 is important and it is as follows.
"No candidate shall be considered to have
qualified in the examination unless he obtains at
least 55 per cent in the aggregate of all papers
including Viva-Voce test.
The merit of the qualified candidates shall
be determined strictly according to the marks
obtained by them.
Provided that in case two or more candidates
obtain equal marks, their merit shall be
determined according to the marks secured by them
in the Viva-Voce and if the marks in the Viva-Voce
of the candidates are also equal, the older in age
shall be placed higher in order of merit,"
Rule 10 is also important and it is as follows:
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"(i) The result of the examination will Haryana
Government Gazette.
(ii) Candidates will be selected for appointment
strictly in the order in which they have been
placed by the Haryana Public Service Commission in
the list of those who have qualified under rule 8:
Provided that in the case of candidates
belonging to
789
the Scheduled Castes/Tribes and other Backward
Classes, Government will have a right to select in
order of merit a candidate who has merely
qualified under rule 8, irrespective of the
position obtained by him in the examination:
Provided further that the selection of
candidates belonging to the Scheduled Castes/
Tribes and other Backward Classes in the order of
merit inter se shall be made against the vacancies
reserved for them and in the manner prescribed by
Government from time to time."
Part of the rules deals with "Appointment". Rule 1 of Part
is as follows:
"The names of candidates, selected by Government
for appointment as Subordinate Judges under rules
10 and 11 of Part C, shall be entered on the High
Court Register in the order of their selection."
Rule 7(1) may also be extracted and it is as follows:
"Whenever it shall appear to the Judges that a
vacancy or vacancies in the cadre of the Judicial
Branch of the Haryana Civil Service, whether
permanent, temporary or officiating, should be
filled, they will make a selection from the High
Court Register in the order in which the names
have been entered in the register under rule 1 of
this Part. The name or names of the selected
candidate or candidates will be forwarded to
Government for appointment as Subordinate Judges
under Article 234 of the Constitution of India.
Every Subordinate Judge shall, in the first
instance, be appointed on probation for two years
but this period may be extended from time to time
expressly or impliedly so that the total period of
probation including extension, if any, does not
exceed three years.
Explanation-The period of probation shall be
deemed to have been extended impliedly if a
Subordinate Judge is not confirmed on the expiry
of his period of probation. ’
Rule 8 is again important and it is as follows:
790
"There is no limit to the number of names borne on
the High Court Register but ordinarily no more
names will be included than are estimated to be
sufficient for the filling of vacancies which are
anticipated to be likely to occur within two years
from the date of selection of candidates as a
result of an examination."
The scheme of the rules appears to be that the Public
Service Commission should hold first a written test in
subjects chosen by the High Court and next a Viva-Voce test.
Unless a candidate secures 45 per cent of the marks in the
written papers and 33 per cent in the language paper, he
will not be called for the Viva-Voce test. All candidates
securing 55 per cent of the marks in the aggregate in the
written and Viva-Voce tests are considered as qualified for
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appointment, their merit being determined strictly in
accordance with the marks obtained by them. The result of
the examination is required to be published in the Haryana
Gazette and the selection for appointment is to be made
strictly in the order in which they have been placed by the
Service Commission in the list of candidates qualified under
rule 8 of Part-C. The names of the selected candidates are
to be entered in a Register maintained by the High Court in
the order of their selection and appointments are to be made
from the names entered in the Register in that order. The
number of names to be entered in the Register maintained by
the High Court may be sufficient to fill vacancies
anticipated to occur within two years from the date of
selection of candidates as a result of the examination.
Therefore, it appears that the duty of the Public Service
Commission is confined to holding the written examination,
holding the Viva-Voce test and arranging the order of merit
according to marks among the candidates who have qualified
as a result of the written and the Viva-Voce tests.
Thereafter the Public Service Commission is required to
publish the result in the Gazette and, apparently to make
the result available to the Government. The Public Service
Commission is not required to make any further selection
from the qualified candidates and is, therefore, not
expected to withheld the names of any qualified candidates.
The duty of the Public Service Commission is to make
available to the Government a complete list of qualified
candidates arranged in order of merit. Thereafter the
Government is to make the selection strictly in the order in
which they have been placed by the Commission as a result of
the examination. The names of the selected candidates are
then to be entered in the Register maintained by the High
Court strictly in that order and appointments made from the
names
791
entered in that Register also strictly in the same order. It
is, of course, open to the Government not to fill up all the
vacancies for a valid reason. The Government and the High
Court may, for example, decide that, though 55 per cent is
the minimum qualifying mark, in the interests of higher
standards, they would not appoint anyone who has obtained
less than 60 per cent of the marks. Something of that nature
happened in State of Haryana v. Subash Chander Marwah & Ors.
In that case, though the rules prescribed a minimum 45 per
cent of the aggregate marks to be qualified for appointment
as a Subordinate Judge, the High Court and the Government
decided not to appoint candidates who had secured less than
55 per cent marks. The result was that although there were a
large number of vacancies, only a few candidates were
selected for appointment. The selection was challenged on
the ground that it could not be so restricted when qualified
candidates were available. This court rejected the
submission and upheld the selection. However, as we said,
the selection cannot arbitrarily be restricted to a few
candidates, notwithstanding the number of vacancies and the
availability of qualified candidates. There must be a
conscious application of the mind of the Government and the
High Court before the number of persons selected for
appointment is restricted. Any other interpretation would
make rule 8 of Part meaningless. In the present case, though
the rules required the Public Service Commission to publish
the result of the examination and, apparently, also to
communicate the result to the Government, the Public Service
Commission did not publish the result in the first instance
and sent only the names of 17 candidates belonging to
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general category to the Government, though many more had
qualified. That was wrong. The names of all the qualified
candidates had to be sent to the Government. The reason
given by the Public Service Commission for not communicating
the entire list of qualified candidates to Government is
that they were originally informed that there were only 28
vacancies. That is not a sound reason at all. Under the
"Rules relating to the appointment of Subordinate Judges in
Haryana", the Public Service Commission is not concerned
with the number of vacancies at all. Nor is it expected to
withhold the full list of successful candidates on the
ground that only a limited number of vacancies are
available. The Government of Haryana has taken the stand
that they were unable to select and appoint more candidates
as the names of only a few candidates were sent to them by
the Public Service Commission. It now transpires that even
before the Public Service Commission sent its truncated list
to the Government, the High Court had already informed the
Government that there were more vacancies
792
which required to be filled. The Government not knowing that
the names of several candidates who were qualified had been
withheld from the Government by the Service Commission,
wrote to the Service Commission to held a fresh competitive
examination. If the Government had been aware that there
were qualified candidates available, they would have surely
applied rule 8 of Part and made the necessary selection to
be communicated to the High Court. The net result is that
qualified candidates, though available, were not selected
and were not appointed. Miss Neelima Shangla is one of them.
In the view that we have taken of the rules, Miss Neelima
Shangla is entitled to be selected for appointment as
Subordinate Judge in the Haryana Civil Service (Judicial)
Branch. By an interim order of this Court, one post of
Subordinate Judge has been kept vacant for her.
We direct the first respondent (Government of Haryana)
to include the name of the petitioner (Miss Neelima Shangla)
in the 1984 List of candidates selected for appointment as
subordinate judges in the Haryana Judicial Service (Judicial
Branch) and forward the same to the High Court of Punjab and
Haryana for inclusion in the High Court Register maintained
under Rule 1 of Part of the Rules. She will be entitled to
her due place in the Seniority List of the 1984 batch. The
petitioner will be entitled to her costs which we quantify
at Rs. 5000.
As a result of our finding a few more candidates would
also be entitled to be included in the Select List and
ordinarily we would have directed their inclusion in the
list. But having regard to the fact that most of the others
have not chosen to question the selection and the
circumstance that two years have elapsed we do not propose
to make any such general order as that would completely
upset the subsequent selection and create confusion and
multiplicity of problems. The cases of any other candidate
who may have already filed a writ petition; this Court or
the High Court will be disposed of in the light of the,
judgment. These who have not so far chosen to question the
selection will not be allowed to do so in the future because
of their laches.
M.L.A. Petition allowed
793