Orissa High Court
Sri Sanjay Ku. Choudhury And Ors. vs State Of Orissa And Ors. on 3 November, 2004
Equivalent citations: 98(2004)CLT745
Author: J.P. Mishra
Bench: P.K. Mohanty, J.P. Mishra
JUDGMENT J.P. Mishra, J.
1. The entire process for appointment of Special Judicial Magistrate under Appointment of Special Judicial Magistrate (Orissa) Rules, 2000 is under challenge by the petitioners in all the above Writ Applications. Since similar questions have been raised in all the applications, this common order shall govern all the four Writ Applications.
2. Pursuant to the Notification of Appointment of Special Judicial Magistrate (Orissa) Rules, 2000 in the Orissa Gazette, on 7.9.2000 framed by Orissa High Court under Section 13, Cr. P.C. (under Annexure-1) (henceforth called as Rule), the Registrar (Administration), Orissa High Court, requested the Registrar (Judicial) under Annexure-2 inviting willingness of the candidates for filling up 18 posts of Special Judicial Magistrates in the scale of pay of Rs. 6500.10,500/- in different parts of Orissa who are having requisite qualification under Rule 4(b). All the petitioner applied for post and appeared in the examination. The petitioner in Writ Application No. 581 of 2002 namely, Ramesh Chandra Mishra working in Orissa Administrative Tribunal also applied through proper channel, but he was not allowed to appear in the written examination. On the strength of the order of this Court he also appeared in the examination, but, his result is yet to be published. The examination was held on 10.2.2002 and only 21 candidates were called for viva voce test which was scheduled to be held on 10.5.2003. As the petitioners were not called to appear in viva voce examination, they approached the extraordinary jurisdiction of this Court challenging the Rule to be ultravires on various grounds.
3. In Writ Application No. 581 of 2002 the petitioner Ramesh Chandra Mishra's plea is that at present i.e., on the date of his application he was/is working as a Senior Assistant in Orissa State Administrative Tribunal. He joined as Junior Assistant in the High Court of Orissa and joined the post on 1.3.1982. Thereafter he also worked in different posts in Civil Courts, Puri till 1.10.1986. Thereafter, he rendered service as a Senior Assistant in Administrative Tribunal, Orissa and is working in the same post till today. So on the date of notification by Registrar (Administration), Orissa High Court on 24.5.2001 inviting willingness Ramesh Chandra Mishra was working as a Senior Assistant in the Orissa Administrative Tribunal. It is already stated above that his application was not forwarded, but subsequently he has been allowed to appear in the written examination on the strength of the order of this Court, but no leave was granted to publish his result (Misc. case No. 564 of 2002). In the counter affidavit on behalf of the Registrar (Administration) it is stated that Mr. Mishra is not at all eligible to appear in the aforesaid examination as he is not coming within the purview of eligibility enumerated in Rule 4(b). In the counter affidavit it has also been mentioned that Mr. Mishra has been allowed to appear in the written examination held on 10.2.2002.
4. Mr. J. K. Rath, appearing for the petitioner Ramesh Chandra Mishra has contended that the petitioner is eligible for the post and having sufficient experience for his past engagement in the Orissa High Court as well as in different posts in the judgeship of Puri, he should be allowed to appear and his result may be published. He also contended that Rule 4(b) to be ultra vires because of non-incorporation of Senior Ministerial Officers of Administrative Tribunals. The Addl. Government Advocate has vehemently objected to the contention of counsel Mr. Rath contending that only the persons working at present are within the fold of Rule 4(b) and, therefore, a person working in the past is not within the purview. We may reproduce the eligibility of Clause 4(a) and (b) which reads as follows :
"Eligibility: A person shall not be qualified for appointment as a Special Judicial Magistrate unless he:
(a) has been serving as Judicial Officer, or is a retired Judicial Officer/or
(b) is a Senior Ministerial Officer of the High Court or District Court who is experienced and is conversant with Rules and Procedures of Law and holds a Bachelor's Degree in Law."
5. The purpose behind the framing of Rule is to reduce the pendency of petty cases. Rule (b) provides that a Senior Ministerial Officer of the High Court or District Court who is experienced and conversant with Procedural Law with a Bachelor Degree in law can apply. The framers of Rule has specifically used the word 'is' which means the Ministerial Officers must be working in High Court or any District Court at present i.e., on the date of notification. Mr. Ramesh Chandra Mishra no doubt was working as Junior Assistant in judiciary for some years from 1.3.1982 till 1.10.1986 i.e., only for a period of four years. So he left the touch of the process of Criminal Procedural Law from 1986. The establishment where he is working at present is Orissa State Administrative Tribunal where only service matters are dealt with. It goes without saying that Orissa State Administrative Tribunal can never be equated with any High Court. The Rule framers have intended and taken care of the speedy disposal of petty cases which may impede the case of appointment of officers who are not in continuous touch of the Procedural Law. Therefore, he cannot be considered to be eligible for the post of Special Judicial Magistrate.
6. The other petitioners have sought for a direction for appearing in the viva voce test and to consider their case for appointment. Their main plea is that the opposite parties [Registrar (Administration) and State of Orissa] have evolved self content procedure to call for the viva voce test to the candidates only who have secured 30% or more marks in each of the subjects in absence of any prescribed Rule. They further contend that the High Court has no jurisdiction to frame the Rules without authority under Article 309 of the Constitution. It is further mentioned in their application that the examinations were given a surprise of written examination without prior notice. According to their application 21 candidates called for viva voce test is quite improportionate to the ratio 1:3 out of the total 106 candidates appearing in the written examination. In the counter affidavit it is stated that as per the provision of the Rule, a Committee was constituted for selection of candidates. According to the Committee's modality it was decided to call only those candidates for viva voce who secured 30% or more marks in each of the subjects for viva voce test and sufficiently ahead the candidates were apprised regarding the written examination by letter dated 24.5.2001 (Annexure-2). According to the counter affidavit, the High Court of Orissa has got all powers to frame Rule under Section 13 Criminal Procedure Code, OJS Rule, 1994 cannot be equated with the present Rule in question as contended by the petitioners in their Writ Applications. Learned Counsel for the petitioners has challenged the process of recruitment on the following grounds:
"(a) A High Court has got no jurisdiction to frame such a Rule for appointing Special Judicial Magistrate in absence of the authorization made under Article 309 of the Constitution of India read with Article 234.
(b) The candidates should not have been taken to surprise without any prescribed syllabus for written examination and the cut off marks of 30% fixed by the Committee is quite arbitrary. The marks obtained in written examination should have been added with viva Voce examination for final selection.
(c) 21 candidates out of 106 appeared called for viva voce test to fill up 18 posts is quite disproportionate."
Opposite Party Nos. 2 to 13 in Writ Application No. 4758 of 2003 are the Interveners, who are candidates called for the interview, have appeared through Senior Counsel Mr. J. Patnaik. They have supported the selection process with all force. Learned Senior Counsel Mr. J. Patnaik and Learned Addl. Government Advocate both contended that it is the High Court and High Court alone can frame Rule under Section 13, Cr. P.C. as well as Section 18, Cr. P.C. According to the Learned Counsel the Committee can very well evolve a process of selection though not specifically specified in the Rule itself, they contended that OJC Rule, 1994 cannot be equated with the present rule. According to them since other candidates could not secure 30% in each subject, they have not been rightly called for viva voce and, therefore, question of applying proportion by calling the candidates who have not secured the marks does not arise.
7. Before delving into the contention, we reproduce the provision of Section 13, Cr. P.C. which runs as follows :
"13. Special Judicial Magistrates: (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area:
Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed "for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.
(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction."
The intention behind the above provision of Cr. P.C. is for the reduction of petty cases in order to facilitate trial of other cases to progress. We must keep in mind also that a Rule is generally to sustain and not to nullify unless mala fide is alleged or shown. No doubt the authority is needed under Article 309 of the Constitution for framing of Rules, but in view of the Section 13, Cr. P.C. the High Court can certainly frame rule on the strength of Section 13(1), Cr. P.C. and the High Court can certainly recommend appointment of Special Judicial Magistrate to achieve the purpose of reduction of pendency. The Learned Counsel Mr. J. Pattnaik has rightly relied on the decision of Apex Court in Kadra Pahadiya and Ors. v. State of Bihar, AIR 1997 SC 3757 wherein their Lordships have held hereunder:
"20. We find it difficult to uphold this approach of the High Court because it is based on a narrow reading of the said two. Sub-sections. In the first place, it may be noticed that both the Sub-sections confer power on the High Court to make the appointments and confer such of the powers as it deems proper from the whole bundle of powers conferrable by or under the Code on a Judicial Magistrate of the first or second class or conferrable on a Metropolitan Magistrate as the case may be. The choice of power to be conferred on the appointees under these two provisions is left to the sole discretion of the High Court. The proviso to each Sub-section makes it clear that the appointee must possess such qualification and experience in relation to legal affairs as the High Court may by rules specify. Thirdly, the words "who holds or has held any post under the Government" do not necessarily exclude judicial officers belonging to the subordinate judiciary of a State/Union Territory. The Sub-sections merely enable the High Court to appoint persons, other than judicial officers, who hold or have held any post under the Government and who possess the qualification and experience in relation to legal affairs as may be specified by the High Court. Parliament has taken care to leave the question of specifying the requirements for appointment to the High Court. There is, therefore, no warrant for placing a narrow construction on the words who holds or has held any post under the Government to confine them to appointments of Government servants, present or past only, and to exclude members belonging to the sub-ordinate Judicial Services. Special provision in the nature of an enabling provision had to be made because without such a provision, appointment of Government servants, past or present, could not have been possible. Care has also been taken to ensure that the appointments are made of persons who have the necessary qualification and experience in relation to legal affairs, which the High Court considers necessary for the exercise of power that may be conferred on the appointee. Furthermore, the duration of appointment has been restricted to one year at a time which would give the High Court an opportunity to observe the work of the appointee to enable it to decide whether or not to extend the appointment for a further period, if the work-load justifies such continuance...."
So, our view finds support from the above judicial pronouncements of the Apex Court that the High Court can frame rules under Section 13(1), Cr. P.C.
8. As there is no prescription of any syllabus in the rule framed by the High Court, Learned Counsel Mr. Mishra has submitted that the candidates were taken at surprise when they were asked to appear in written examination vide Annexure-3. We may say that this is not an examination conducted by University or School. This is an examination for recruitment from experienced ministerial staff of different Courts conversant with the procedural law. The candidates appearing for the examination are always in practice of the Criminal Procedural Law while working in the different Courts and also G.R. and CO. It is quite natural on the part of the appointing authority to test the English knowledge of the examinees who would be functioning as Magistrate for disposal of petty offences. Therefore, the candidates appearing for the examination must keep themselves ready who are supposed to know their duties. Moreover, principle of natural justice for examination to appoint particular person does not apply at all. In this regard, the Addl. Government Advocate has rightly relied on the decision reported in State of U.P. v. Rafiquddin and Ors., AIR 1988 SC 162 the relevant Paragraph 12 is quoted below :
"12. The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is a basic difference between an examination held by a College or University or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination."
Further, the contention of Mr. Mishra equating OJS Rules 1994 with the Rule in question cannot be accepted as the present posts are quite temporary in nature only with a view to reduce the pendency as envisaged in Rule 7(1) prescribing the term of office of Special Judicial Magistrate i.e., for one year which may be renewed up to 4 years from time to time or till the age of 62 years whichever is earlier.
9. A committee was constituted by the Chief Justice consisting of a sitting Judge and two Registrars of the High Court as per Rule 5(1). Accordingly, the committee was constituted who are all law knowing persons and can be termed as experts. It is the committee who framed the modalities to call the candidates for viva voce examination who secured 30 percent or more in each of the three subjects. In the present case, the following schedule of marks was framed vide Annexure-3.
1st Sitting Subject 100 Marks
10.00 A.M.to Translation (English to Oriya) 25
11.00 A.M. Translation (Oriya to English) 25
Essay in English 50
2nd Sitting 100 Marks
11.30 A.M. to G.R. & CO. (Civil) 50
12.30 P.M. G.R. & CO. (Criminal) 50
3rd Sitting Procedural Law 200 Marks
2.00 P.M. to Code of Criminal Procedure 50
4.00 P.M. Indian Penal Code 50
Evidence Act 50
Orissa Forest Act 25
Orissa & Bihar Excise Act 25
So, 21 candidates could secure 30 percent or more marks in all the three subjects were called for interview and the persons who qualified in the viva voce test their results are yet to be published. So, a committee constituting of experts formulating modalities cannot be called in question even in absence of prescription in the rule itself. In this regard, we may refer to the decision of the Apex Court reported in Secretary (Health) Department of Health and F. W. and Anr. v. Dr. Anita Puri and Ors., 1996 (5) SLR 299. The relevant paragraph is quoted below :
"9. The question for consideration is whether such Sub-division of marks by the Commission on different facets and awarding only 2-1/2 marks for higher qualification can be said to be arbitrary? Admittedly, there is no statutory rule or any guideline issued by the Government for the Commission for the purpose of evaluation of merit of the respective candidates when the Public Service Commission is required to select some candidates out of number of applicants for certain posts, the sole authority and discretion is vested with the Commission. The Commission is required to evolve the relative fitness and merit of the candidate and then select candidates in accordance with such evaluation. If, for that purpose the Commission prescribes marks for different facets and then evaluates the merit. The process of evaluation cannot be considered to be arbitrary unless marks allotted for a particular facet is on the face of it excessive. Weight age to be given to different facets of a candidate as well as to the viva voce test vary from service to service depending upon the requirement of the service itself. In course of the arguments before us the Learned Counsel for the Respondent No. 1 had submitted that the awarding of 20 marks for viva voce and 20 marks for General Knowledge out of 100 marks must be held to be on the face of it arbitrary giving a handle to the Public Service Commission to manipulate the selection and, therefore, the High Court had rightly come to the conclusion that it was arbitrary. We are unable to accept this contention. This Court in the case of Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors. etc., (1981) 1 SCC 722 : 1980 (3) SLR 467 (SC), while considering the case of selection, wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any constitutional infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the applicants and the same necessarily has to be made only by allotting marks on different facets and then awarding marks in respect of each facet of a candidate and finally evaluating his merit. It is too well settled that when a selection is made by an expert body like Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the Courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established. It would be prudent and safe for the Courts to leave the decision on such matters to the experts who are more familiar with the problems they face than the Courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the Court should not ordinarily interfere with such selection and evaluation. Thus, considered we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was in any way vitiated."
10. In toto, 106 candidates appeared and only 21 could secure 30 percent and more who were called to attend the interview for filling up 18 posts. Once the modality is fixed to call the candidates securing 30 percent or more in each of the three subjects, then the question of applying ratio of 1:3 does not arise by calling the persons who have not secured the required marks of 30 percent or more. Therefore, in our view, all the Writ Applications are devoid of merits and are hereby dismissed. The interim orders passed in Misc. Cases Nos. 4450 and 4545 of 2003 are hereby vacated. The result of Ramesh Chandra Mishra-petitioner in Writ Application No. 581 of 2002 (Misc. case No. 564/2002) need not be published at all as he is ineligible for the post.
P.K. Mohanty, J.
11. I agree.