Allahabad High Court
Mahesh Kumar Singh And Another vs State Of U P And 4 Others on 29 August, 2022
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- WRIT - A No. - 7994 of 2022 Petitioner :- Mahesh Kumar Singh And Another Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Alok Kumar Yadav,Jigyasa Singh Counsel for Respondent :- C.S.C.,Ashish Mishra Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Alok Kumar Yadav learned counsel for the petitioners and Sri Ashish Mishra learned counsel for the respondent-High Court.
2. The present writ petition has been filed seeking declaration of Note (ii) Paper No. 6 (Interview) to Appendix-G framed under Rule 18 of the U.P. Higher Judicial Service Rules, 1975 (In short as "the U.P.H.J.S. Rules, 1975) as ultra vires to Articles 14 and 16 of the Constitution of India, in view of the decision of the Apex Court in the cases of All India Judges' Association and others vs. Union of India and others1 and Ramesh Kumar vs. High Court of Delhi and another2.
3. The petitioners herein being practicing Advocates at the District Judgeship at Meerut and Delhi had participated for appointment in the Higher Judicial Services of the State of U.P. in the Direct Recruitment Examination-2018 (Part-III), against the advertisement dated 9.8.2019.
4. It is stated that the petitioners being eligible for appointment to the Higher Judicial Services, had qualified the preliminary as well as main written examinations held on 15th September, 2019 and 18th-20th October, 2019; respectively. They were called for the interview held on 14.12.2019. The final result of the selection was declared on 20.12.2019.
5. The brief facts of the case as stated in the writ petition are that both the petitioners herein belonging to Scheduled Caste category remained unsuccessful in the final result. Being aggrieved by their non-selection in U.P. Higher Judicial Services Recruitment-2018 (Part-III), they filed a Writ-A No. 12441 of 2020 (Kameshwar Pratap Singh and another vs. Hon'ble High Court of Judicature of Allahabad and another) which was dismissed vide judgment and order dated 15.12.2020. Aggrieved by the said decision, the petitioners herein filed the Special Leave to Appeal (C) No. 2836 of 2021 (Kameshwar Pratap Singh and another vs. Hon'ble High Court of Judicature at Allahabad and another) which was dismissed as withdrawn by the judgment and order dated 5.4.2021.
It may be noted that the said decision has not been brought on record of the present writ petition.
It is further stated in the writ petition that when the aforesaid writ petition was filed by the petitioners herein, their marks were not disclosed and they were praying persistently for release of their marks. Final marks, which included marks of the main examination and interview were ultimately declared/released at the official website of the High Court on 15.12.2020. The petitioners again filed a Writ-A No. 11763 of 2021 which was disposed of vide judgment and order dated 9.9.2021.
This is the third round of litigation by the petitioners herein after having remained unsuccessful in the Recruitment Examination-2018 (Part-III) held in the year 2019, final result of which was declared on 20.12.2019.
6. Before proceeding to deal with the submission of the learned counsel for the petitioners, on the merits of the prayer made herein, we may record that the first Writ Petition No. 12441 of 2020 was filed by the petitioners after declaration of the final result on the plea that the petitioners did well in the interview but due to requirement of minimum passing marks in the interview, their names did not figure in the select list. It was noted by this Court while dismissing the writ petition vide judgment and order dated 15.12.2020 that minimum qualifying marks in the interview have been prescribed for selection in U.P.H.J.S. Rules, 1975 and the petitioners having failed to obtain minimum passing marks, their names did not appear in the select list. The challenge to the selection cannot be sustained based on the assumption of the petitioners therein about their performance as it was judged by the interview Board and no allegations of malafide against the interview Board had been made. It was further noted that the petitioners cannot be granted relief only because they belonged to Scheduled Caste as the rule does not permit lower marks for any particular caste to qualify the interview. It was lastly noted that in absence of challenge to the U.P.H.J.S. Rules, 1975, the prayer made in the writ petition cannot be granted.
7. In the second round of litigation, it was noted by this Court that the writ petition was highly belated but on the prayer made by the learned counsel for the petitioners that the petitioners made a representation before the State Government, which is the Selection and Appointing Authority and the High Court which is the recommending Authority, the writ petition was disposed of with the direction to the petitioners to file a copy of the writ petition as representation before the Authority concerned who shall consider and decide the same. The petitioners then submitted a representation dated 17.2.2022 before the High Court, which was rejected in the meeting of the Selection and Appointment Committee of the High Court dated 22.2.2022 on the ground that the petitioners have failed to secure 40% qualifying marks in the interview of the direct recruitment of the U.P.H.J.S.-2018 (Part-III).
Though it is stated in the present writ petition that at the time of filing of the first writ petition, the petitioners were not aware of their marks of the main examination and the interview but it has not been explained as to why the petitioners did not challenge the validity of the rules, as prayed in the present writ petition when the main ground of challenge therein was to the requirement of minimum passing marks in the interview under the U.P.H.J.S. Rules, 1975 for a candidate to qualify for selection.
8. In our considered opinion, the present writ petition is the third writ petition virtually for the same relief and as such cannot be entertained. We may further note that the reliefs sought in the Second Writ-A No. 11763 of 2021 filed by the petitioners herein have not been disclosed in the present petition.
9. Be that as it may, the petitioners being practicing Advocates should desist from filing repeated writ petitions for the same cause of action thereby wasting precious judicial time of this Court as the Court was required to deliberate on the same issue again and again from different angles. In our considered opinion, the present writ petition is liable to be dismissed for this reason alone.
10. However, in order to put the controversy to its logical end, the prayer made in the writ petition about the validity of the Rule 18 Appendix-G as contained in U.P.H.J.S. Rules, 1975 prescribing for minimum qualifying marks in the interview is being considered by us in light of the arguments made by the learned counsel for the petitioners.
11. We may first note the language of Appendix-G framed under Rule 18 of the U.P.H.J.S. Rules, 1975 which prescribes the syllabus for the recruitment of the officers in U.P. Higher Judicial Service. The examination for U.P. Higher Judicial Services as per Appendix-G includes six papers. Paper no. 6-Interview is relevant for our purpose and is noted as under:-
"The interview will be of 200 marks - The suitability of the candidate for employment in the U.P. Higher Judicial Service will be tested with reference to his merit giving due regard to his ability, character, personality, and physique.
Notes -
(i) The candidates securing minimum aggregate 45% marks in the written examination shall be called to appear in the interview subject to maximum thrice the number of vacancies category-wise.
The interview shall be in a thorough and scientific manner and shall take any thing between 25 and 30 minutes for each candidates.
(ii) The candidate securing minimum 40% marks in the interview shall only be eligible to be included in the select list. The marks obtained in the interview will be added to the marks obtained in the written papers and the candidate's place in the select list will depend on the aggregate of both."
A perusal thereof indicates that the candidates securing minimum aggregate 45% marks in the written examination are called in the interview subject to maximum thrice the number of vacancies category-wise. The time period of interview has been prescribed as 25 to 30 minutes for each candidate to be taken in a thorough and scientific manner. The candidate securing minimum 40% marks in the interview are eligible to be included in the select list which is to be prepared by adding the marks obtained in the written papers and the interview. The candidate's place in the select list depends upon the aggregate of both.
12. It is argued by the learned counsel for the petitioners that in view of the above provision, the preparation of the final result was actually not based on the cumulative award of marks to the petitioners herein in the written examination as well as interview, rather the petitioners were excluded from the select list because of the fact that they could not obtain minimum 40% marks in the interview. The exclusion of meritorious candidates like the petitioners by prescribing minimum qualifying marks in the interview is in teeth of the decision of the Apex Court in All India Judges' Association (supra) and Ramesh Kumar (supra). The resolution of the Selection and Appointment Committee dated 22.2.2022 rejecting the representation of the petitioners dated 17.2.2022 based on the aforesaid rule is, thus, liable to be set aside.
It is argued that the Shetty Commission's Report was accepted by the Apex Court in All India Judges' Association (supra) and it was categorically noted in Ramesh Kumar (supra) that the Shetty Commission did not prescribe for having minimum marks for interview. It was further noted therein that in Hemani Malhotra vs. High Court of Delhi3, it was held by the Apex Court that it was not permissible for the High Court to prescribe the requirement of securing minimum marks in the interview as against the recommendation of the Shetty Commission.
The extract of the Shetty Commission's report, Appendix-1 titled as "Model Rules for Recruitment to District Court Service", appended as Annexure '21' to the writ petition, has been placed before us to argue that Rules 10 and 11 of the Model Rules prescribing for eligibility for candidates for the interview and the criteria of interview; respectively, do not prescribe minimum marks for interview. It was pointed out that Rule 12 of the Model Rules prescribing procedure to prepare the list of selected candidates, i.e. final select list provides that the select list shall be drawn on the basis of the aggregate of the percentage of the total marks secured in the qualifying examination as determined under Rule 10 and of the marks secured at the interview under Rule 11. The Rules framed by the High Court prescribing minimum qualifying marks of 40% for the interview for inclusion of a candidate in the final select list prepared on the aggregate of marks obtained in the written examination and the interview is, thus, contrary to the recommendations of the Shetty Commission accepted by the Apex Court in All India Judges' Association's case (supra).
The contention, thus, is that the Note (ii) to Paper No. 6 of Appendix-G framed under Rule 18 of the U.P.H.J.S. Rules, 1975 is liable to be declared ultra vires and the rejection of the candidature of the petitioners pursuant to the said rule is to be held illegal.
13. Apart from the above, no other contention has been made by the learned counsel for the petitioners to challenge the vires of the aforesaid rule. No argument has been made as to how the said rule can be said to be ultra vires to Articles 14 and 16 of the Constitution of India, being antithesis to the doctrine of equality.
14. We may record that the contentions made by the learned counsel for the petitioners can be met with the aid of the observations of the Apex Court in Salam Samarjeet Singh vs. High Court of Manipur at Imphal and another4 wherein the candidates who remained unsuccessful in the viva-voce conducted by the High Court of Manipur for appointment to the post of District Judge (entry level) in Manipur Judicial Service Grade-I, had challenged the Schedule-B of Manipur Judicial Services Rules which stipulated minimum qualifying marks, both for the written examination and viva-voce. It may be noted that in the said case Schedule-B of Manipur Judicial Services Rules stipulated minimum qualifying marks cumulatively for both written examination and viva-voce. The Full Court later passed a resolution fixing cut-off marks-minimum 40% marks in the interview which was challenged as being erroneous interpretation of "evaluation of performance" given in Schedule-B of the said Rules. Amongst various arguments to challenge the correctness of the decision of the Full Court prescribing minimum qualifying marks for viva-voce, one of the challenge was that the decision of the High Court to prescribe minimum qualifying marks was against the recommendation of the Shetty Commission and was violative of the judgment of the Apex Court in All India Judges' Association (supra). While dealing with the said argument, it was observed by the Apex Court in paragraphs '26', '27' and '28' as under:-
"26. The petitioner contends that the decision of the High Court to prescribe minimum qualification marks is against the recommendations of the Shetty Commission and is violative of the judgment of this Court in All India Judges' Association and Ors. v. Union of India and Ors. (2002) 4 SCC 247. It is further argued that in the said case, the Court accepted Shetty Commission's Report which has recommended not having cut-off marks in interview for the recruitment of the judicial officers.
27. No doubt, Shetty Commission has recommended in its Report that there should be no cut-off marks in the viva-voce test. Relevant recommendation of Shetty Commission reads as under:-
"The viva-voce test should be in a thorough and scientific manner and it should take anything between 25 to 30 minutes for each candidate. What is recommended by the Commission is that the viva-voce test shall carry 50 marks and there shall be no cut-off marks in viva-voce test."
28. Admittedly, the Shetty Commission has recommended that the viva-voce test shall carry fifty marks and there shall be no cut-off marks in the viva-voce test. In All India Judges' Association case para (37), this Court subject to various modifications in the judgment, accepted all other recommendations of the Shetty Commission. While there was a detailed discussion on the perks, mode of recruitment to the Higher Judicial Service and the proportionate percentage for promotion as District Judges for judicial officers, limited competitive examination for Civil Judges (Junior Division) and percentage of direct recruitment, there was no detailed discussion regarding the other recommendations of Shetty Commission. As rightly contended by the learned Senior Counsel for the respondent, All India Judges' Association case is sub silentio on the recommendation of Shetty Commission as to "no cut-off marks for the viva-voce". Contention of the petitioner that fixing cut-off marks for the viva-voce is in violation of the decision of this Court is not tenable."
It may further be noted that the decision of the Apex Court in Hemani Malhotra (supra) and Ramesh Kumar (supra) as relied by the learned counsel for the petitioners have been considered by the Apex court therein and it was noted that the said decisions proceeded on the issue that prescription of minimum marks in the interview was not permissible after the written test was held.
Further on the view taken by the Hon'ble Justice R. Banumathi, (as she then was) about correctness of the decision of the Full Court in prescribing minimum qualifying marks for the viva-voce, a contrary opinion was noted by the Hon'ble Mr. Justice Shiva Kirti Singh, (as he then was) and the matter was referred for final adjudication before the appropriate Bench in view of difference of opinion. The dissenting view of the Hon'ble Mr. Justice Shiva Kirti Singh, however, was on the ground that change in the selection procedure by providing minimum marks for interview or viva-voce test in the midst of the selection process which has already been initiated amounted to changing the Rules of the game and hence impermissible. It is noted in the dissenting judgment that the rules and the instructions clearly demonstrate that there was no cut-off mark or pass mark for the viva-voce examination in the past and the Full Court by resolution provided for minimum 40% marks in the interview after the advertisement notification was issued and written examinations were held but before holding the interview. It was, thus, observed that the minimum marks for interview was introduced in the midst of the selection process.
In another decision in Taniya Malik vs. Registrar General of the High Court of Delhi5, the petitioners therein who remained unsuccessful in the Delhi Judicial Service recruitment examination 2015 had challenged the prescription of minimum pass marks in the viva-voce examination under the recruitment rules and sought for a direction to relax the marks for interview for the Scheduled Caste category candidates for selection. The petitioner therein had been declared failed in the viva-voce examination (interview) and urged that fixation of minimum passing marks of 45% in viva-voce examination (interview) was unreasonable. It was observed by the Apex Court relying upon its earlier judgment in K.H. Siraj vs. High Court of Kerala and others6 that the interview is the best mode to assess the suitability of a candidate and to judge the capacity of the candidate to perform well in the service, minimum marks is necessary to prescribe. It was observed that the interview is the best method of judging the performance, overall personality, the actual working knowledge and capacity to perform. It is desirable to have the interview and it is necessary to prescribe minimum passing marks for the same when the appointment in the higher judiciary to the post of District Judge (entry level) is involved. It was observed that a written examination only tests academic knowledge, which is sometimes, gained without possessing overall qualities, practical experience of practice and law. The observations in Taniya Malik (supra) in paragraphs '18' and '19' are relevant to be extracted hereunder:-
"18. Coming to the question of prescribing the minimum pass marks in the viva voce examination, in our opinion it is rightly observed by this Court in K.H. Siraj v. High Court of Kerala & rs. (2006) 6 SCC 395, that interview is the best method to assess the ability of the candidate and to judge the capacity and minimum marks can also be prescribed. In case a candidate fails in an interview it cannot be said that he is suitable for the job of a Munsif Magistrate. This Court observed:
"54. 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.
55. We may usefully refer to a decision of this Court in Lila Dhar v. State of Rajasthan (1981) 4 SCC 159 in which this Court observed as under:
4. 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.' ***
5...."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...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.
9. ... "15. 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. (SCC p.166, para 9)"
56. In Mohan Kumar Singhania and Ors. v. Union of India and Ors. : AIR 1992 SC 1, S. Ratnavel Pandian, J. speaking for the Bench, observed as under: (SCC p.608, paras 18-21) '18. Hermar 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.'
19. 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 - 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.'
20. 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:
"...the 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."
21. This Court in Lila Dhar v. State of Rajasthan (1981) 4 SCC 159 while expressing the view about the importance and significance of the two tests, namely, the written and interview has observed thus: (SCC p.164, para 6) '...the written examination assess the man's intellect and the interview test the man himself and 'the twain shall meet' for a proper selection.' "
57. The qualities which a Judicial Officer would possess are delineated by this Court in Delhi Bar Association v. Union of India (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 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 benchmark for the oral interview, a benchmark 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."
19. In our considered opinion, it is desirable to have the interview and it is necessary to prescribe minimum passing marks for the same when the appointment in the higher judiciary to the post of District Judge is involved. The interview is the best method of judging the performance, overall personality and the actual working knowledge and capacity to perform otherwise the standard of judiciary is likely to be compromised. A written examination only tests academic knowledge, which is some time, gained without possessing overall qualities, practical experience of practice and law. In written exam, even the person with no caliber who takes decision by cramming may obtain better marks. When the Judges of the High Court too are appointed by adjudging the performance and intellect, an interview would be indispensable for judicial post. As ultimately, they also come to adorn the chair of a Judge and Judges of subordinate and higher judiciary to deliver justice to masses, the criteria of experience of practice for direct recruitment of 7 years whether actually gained can be adjudged only by interview, communicating skills and by elucidation of certain aspects which would not be possible by written exam alone. In Siraj (supra), it was emphasized that interview is the main fulcrum for judging the suitability of the candidate for appointment as District Judge in the higher judiciary. In our opinion that is absolutely necessary. When we consider past practice earlier when the written examination was not prescribed, the High Court used to select the candidates for higher judiciary only by the method of interview. Now additional safeguards of written examination have been added. The importance of interview for the post of the higher judiciary has increased than ever before it is absolutely necessary to weed out unworthy elements/crammers and in our considered opinion it is not only appropriate but also absolutely necessary to prescribe the minimum pass marks soas to weed out unworthy element so as to segregate grain from the chaff. There is a vast difference between having the experience that is required for a Judge that cannot solely be adjudged on the basis of written performance, and for which overall personality, intelligence test is absolutely necessary. Without that it would not be appropriate to make appointments in judiciary. Thus in our opinion the prescription of minimum 45% marks for reserved category candidates could not be said to be uncalled for. Merely by the fact that some more posts were advertised and they are lying vacant, it could not have been a ground to relax the minimum marks for interview after the interview has already been held. It would not have been appropriate to do so and the High Court has objected to relaxation of minimum passing marks in viva voce examination in its reply and as the power to relax is to be exercised by the High Court and since it has opposed such a prayer on reasonable ground and the institutional objective behind such prescription, we are not inclined to direct the High Court to relax the minimum marks."
In a catena of decisions, the Courts have laid much emphasis on the interview/viva-voce. In the recruitment for higher judicial services, the importance of interview/viva-voce cannot be underestimated. Viva-voce is the best mode of assessing the suitability of a candidate as it brings out the overall intellectual qualities of the candidates. [Reference Salam Samarjeet Singh (supra)]
15. As noted in Ramesh Kumar (supra), the decision relied upon by the learned counsel for the petitioners itself, the selecting body has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained (sufficient marks in viva-voce) which would show his suitability for service. Such a course is permissible for adjudging the qualities/capacities of the candidates. It was observed by the Apex Court that it may be necessary in view of the fact that it is imperative that only persons with the prescribed minimum of said qualities/capacities should be selected as otherwise the standard of judiciary would get diluted and substandard stuff may get selected. Interview may also be the best mode of assessing the suitability of a candidate for a particular position as it brings out the overall intellectual qualities of the candidates. While the written test will testify the candidate's academic knowledge, the oral test can bring out or disclose 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, [(Reference Para ''11'). The decisions in State of U.P. vs. Rafiquddin and others7; Dr. Krushna Chandra Sahu and others vs. State of Orissa and others8; Manjeet Singh, UDC and others vs. Employees State Insurance Corporation and another9 and K.H. Siraj (supra) were relied therein].
16. The decisions of the Apex Court in Lila Dhar vs. State of Rajasthan and others10 and Ashok Kumar Yadav and others vs. State of Haryana and others11 were also considered by the Apex Court in Ramesh Kumar (supra), Salam Samarjeet Singh (supra) and Taniya Malik (supra) to notice that the interview 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 with some degree of error.
In Taniya Malik (supra), however, prescription of minimum marks for interview in the Delhi Judicial Services Rules-2015 has been upheld with the observation that interview is the main fulcrum for judging the suitability of the candidates for appointment as District Judge (entry level) in the Higher Judiciary.
In Ramesh Kumar (supra), it was noted that the selection rules namely the Delhi High Court Judicial Services Rules, 1970 (as it then was) did not provide for minimum marks for interview. The Shetty Commission's report and the decision of the Apex Court in All India Judges' Association (supra) was then noted and it was observed that where statutory rules do not deal with the particular subject/issue, so far as appointment of the Judicial Officers is concerned, directions issued by the Apex Court would have binding effect.
17. From the above discussion, it can be discerned that the Courts have upheld the prescription of minimum passing marks in the interview/viva-voce examination in the recruitment for judicial services prescribed in the Recruitment Rules framed by the different High Courts. Much emphasis has been given to the interview as the best method of judging the overall personality, actual working knowledge, intelligence, communicating skills etc., which are essential for a Judicial Officer.
As regards the observations in Ramesh Kumar (supra) that the Shetty Commission's report had not prescribed for not having minimum marks for interview, the same was made in the facts of that case as the statutory rules namely Delhi Higher Judicial Services Rules, 1970 (as it then was) did not provide for the requirement of securing minimum marks in interview.
18. Coming to the Shetty Commission's report, the Model Rules framed therein were a recommendation for framing appropriate rules by the High Court for recruitment to the District Court Service. The recommendation of the Shetty Commission as accepted by the Apex Court in All India Judges' Association (supra), no where prohibits the High Court from the prescribing minimum qualifying marks by framing its own statutory rules to prescribe the recruitment criteria for the higher judicial services, nor the said recommendation in any way makes the recruitment rules violative of Articles 14 and 16 of the Constitution of India.
As noted by Hon'ble R. Banumathi, J. in Salam Samarjeet Singh (supra), All India Judges' Association (supra) is ''sub silentio' on the recommendation of Shetty Commission as to "no cut-off marks for the viva voce".
19. The contention of the learned counsel for the petitioners that fixing cut-off marks for the interview in the rules is in violation of the decision of the Apex Court in All India Judges' Association (supra) and Ramesh Kumar (supra) or against the Shetty Commission recommendation is not tenable.
20. For the above discussion, the challenge to the vires of Note (ii) to Paper No. 6 (Interview) of Appendix-G framed under Rule 18 of the U.P.H.J.S. Rules, 1975, being in teeth of the decisions of the Apex Court in All India Judges' Association (supra) and Ramesh Kumar (supra) is hereby turned down.
21. Yet another aspect of the matter is that the petitioners herein participated in the interview with the knowledge that for the selection, they have to clear the criteria of prescribed minimum pass marks. On being unsuccessful in the interview, they cannot turn around and contend that the criteria for selection, i.e. the prescription of minimum marks for interview was improper. They are estopped to contend it as observed in K.H. Siraj (supra) as under:-
"72. 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. .........xxxxxxx......."
In Madan Lal vs. State of Jammu & Kashmir12, the Apex Court has observed that:-
"9. ... 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........
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful."
22. Before parting with this judgment, as we have found that this is the third round of litigation at the instance of the petitioners challenging the rejection of their candidature in the Higher Judicial Services Examination-2018 (III) held in the year 2019, we deem it fit and proper to impose cost upon the petitioners, who being Advocates are supposed to be well versed in law that in a challenge before the Court of law, all points/grounds of challenge have to be raised in the first attempt itself. Repeated attempts raising different grounds of challenge at different points of time by the petitioners are nothing but sheer abuse of the process of the Court more so when they are officers of the Court being practicing Advocates.
We quantify the cost to Rs. 20,000/- for each of the petitioners herein, which shall be deposited by them in the Registry of the High Court within a period of one month from today.
The cost so deposited by the petitioners shall be transmitted in the accounts of the High Court Legal Services Committee.
With the above directions, the writ petition is dismissed being devoid of merits.
(Jyotsna Sharma,J.) (Sunita Agarwal,J.) Order Date :- 29.8.2022 Brijesh