Rajasthan High Court - Jaipur
Rekha Madnani vs High Court Of Judicature Anr on 13 May, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: ORDER :: D.B. CIVIL WRIT PETITION NO.1509/2013 Rekha Madnani Vs. High Court of Judicature for Rajasthan, Jodhpur & Anr. Date of Order : 13th May, 2013 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA Mr.Rajendra Prasad for the petitioner. Mr.A.K.Sharma, Senior Advocate assisted by Mr.V.K.Sharma for the respondent No.1. ***** BY THE COURT (PER HON'BLE THE CHIEF JUSTICE) :
A writ in the nature of mandamus and/or order has been sought for to direct the respondent No.1 herein to call the petitioner for interview in the process of recruitment to the Cadre of District Judge in the Rajasthan Judicial Service initiated vide the notification dated 19.7.2011 (Annexure- 1 of the writ petition) and to appoint her in the event of being adjudged suitable therefor. A direction to the respondent No.1 to declare the marks of the last candidate called for interview in each category, is also sought for.
We have heard Mr.Rajendra Prasad for the petitioner and Mr.A.K.Sharma, Senior Advocate assisted by Mr.V.K.Sharma for the respondent No.1.
The pleaded case of the petitioner, in short, is that she is an advocate practicing at Jaipur, and that, since February 2009 has been discharging her duties as the Deputy Government Counsel. She had earlier appeared in the written examination held for direct recruitment to the Cadre of District Judge on 30.6.2010 and being successful was called for the interview. However, the said process was cancelled as the required number of candidates in the ratio of 1:3 were not available for the interview. Subsequent thereto, by the notification dated 19.7.2011 referred to hereinabove, a fresh process was initiated for appointment by direct recruitment to 39 vacant posts in the Cadre of District Judge, out of which, horizontal reservation for women candidates was provided against 10 posts. Six posts therefrom are to be filled up by general category women candidates. She, having offered her candidature, was allowed to appear in the written examination, and her allotted roll number was 3443. The written examination was held on 5.5.2012 and 6.5.2012 and the results thereof were declared on 6.8.2012 and she was declared to have passed the examination having secured 133 marks in aggregate. The notice dated 6.8.2012 declaring the results, also contained the roll numbers of the candidates eligible for being called for the interview. The petitioner however, has not been called for the interview. According to the petitioner, in the list of the candidates construed to be eligible to be called for interview, 17 women candidates from the general category and 5 and 1 candidate(s) from the OBC and SC category (women candidates) respectively, have been called.
Referring to Rule 40 of the Rajasthan Judicial Service Rules, 2010 (for short, hereinafter referred to as 2010 Rules/Rules), the petitioner has asserted that in view of 39 vacancies advertised, 117 (39 x 3) candidates ought to have been called for the interview. To be specific, according to her, as six posts had been reserved for the women candidates of the general category, 18 such candidates ought to have been called for the interview, instead of 17, as done. She has elaborated further to aver that against 10 posts for which horizontal reservation has been accorded to the women candidates, in fact, only 23 have been called for the interview. That her application under the Right to Information Act, 2005 (for short, hereinafter referred to as Act 2005) to inspect her answer-sheet for Paper Law-II and other informations had been rejected by the State Public Information Commissioner on 27.9.2012 and 9.10.2012, and that, her appeals have also been dismissed on 6.11.2012, has been mentioned as well. Contending that in terms of Rule 40, it is mandatory to call for interview all the candidates securing minimum qualifying marks in the written examination in the ratio of 1:3, the petitioner has sought for the reliefs as referred to hereinabove.
The respondent No.1, in its reply, has asserted in particular, that though the petitioner has passed the written examination, she has failed to secure minimum qualifying marks as fixed by the Court in terms of Rule 40(2) of the 2010 Rules, to be called for the interview. While contending that a candidate securing minimum pass marks in the written examination per se does not become entitled to be called for the interview, unless he/she has also secured the qualifying marks as fixed by the Court, the answering respondent has also clarified that vis--vis her applications seeking information, she had been informed that the same can be provided only after the final results of the selection are declared. That her appeal was answered similarly, has been mentioned as well. According to the answering respondent, disclosure of marks obtained by the candidates, as sought for by the petitioner, was not permissible having regard to the confidentiality of the process. The grounds taken by the petitioner, in endorsement of the challenge, were refuted on this premise.
Mr.Prasad has discarded the plea of confidentiality as a ground to refuse the information sought for by the petitioner. Learned counsel has emphatically argued, in reiteration of the pleaded contentions of the petitioner, that not only in terms of Rule 40 of the 2010 Rules, candidates securing the minimum pass marks in the written examination on the basis of 1:3 ratio, ought to have been obligatorily called for the interview in order of merit, the fixation of qualifying marks and application thereof to shortlist the candidates who had passed the written examination without disclosing the same in the advertisement has vitiated the process for lack of transparency and fairness. According to him, had the qualifying marks, for the purpose of calling a candidate for interview, been declared in the advertisement, the candidates could have assessed their potential at the threshold to decide to participate in the process or not. In the same vein, the learned counsel has argued that disclosure of her marks as well as the qualifying marks in response to her request, was not only imperative, but also would have facilitated the assessment of her performance vis--vis the other candidates.
Mr.Prasad has insisted that fixation of the qualifying marks on the eve of the interview amounts to changing of the rules of the game after the initiation thereof and is wholly illegal, unfair and arbitrary. Following decisions of the Apex Court have been relied upon.
1. K.H.Siraj Vs. High Court Kerala & Ors., AIR 2006 SC 2339.
2. Hemani Malhotra Vs. High Court Delhi, (2008) 7 SCC 11.
3. Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors., (2011) 8 SCC 497.
4. State of Haryana Vs. Subash Chander Marwaha & Ors., (1974) 3 SCC 220 .
Mr. Sharma, learned senior counsel for the respondent No.1 per contra has maintained that the contention based on delayed fixation of qualifying marks and the non- disclosure thereof in the advertisement, not having been pleaded, the same ought to be rejected in limine. Referring to Rule 40 of the 2010 Rules, the learned senior counsel has maintained that in terms thereof, qualifying marks have been validly fixed and as the petitioner has not been able to secure the same, she has rightly not been called for the interview. According to Mr.Sharma, a candidate securing minimum pass marks in the written examination per se is not entitled to be called for interview in the face of the mandate of Rule 40(2). He has urged against the necessity of disclosure of such qualifying marks in the advertisement and has maintained that the plea of infirmity of the process on the basis thereof, is wholly misconceived. The fixation of qualifying marks as the decisive criteria to call a candidate successful in the written examination for interview being the mandate of the Rules and logically to ensure merit and excellence in the higher echelons of the Service, the petitioners challenge, in the face of her failure to secure the same, is sans any substance whatsoever, he urged. Mr.Sharma in order to endorse his arguments, placed reliance on the decision of the Apex Court in Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors., Civil Appeal No.2634 of 2013 etc. While pointing out that the representation (Annexure-5 to the writ petition) submitted by the petitioner is not one under the Act 2005, the learned senior counsel has urged that the rejection thereof by the Hon'ble Committee is even otherwise valid.
We have duly considered the rival pleadings and have analyzed the arguments advanced.
Rule 40 of the 2010 Rules, which occupies the centre stage of the debate, is extracted hereinbelow:-
40. Examination.- (1) A competitive examination for direct recruitment to the cadre of District Judge shall be held by the Court every year on or before the dates specified in the Schedule-III (@ Substituted) (2) A Candidate who obtains such qualifying marks in written examination, as may be fixed by the Court, shall be called for interview.
Note :- Number of persons called for interview shall not exceed three times the number of vacancies advertised in each category.
(3) The Committee consisting of the Chief Justice, the Administrative Judge and three other Judges nominated by the Chief Justice shall interview the candidates. (Substituted) That the process in question was initiated by the notification dated 19.7.2011 (Annexure-1 to the writ petition), is an admitted fact. As the said notification would disclose, total number of vacancies mentioned therein were 39 with the breakups thereof, amongst general and reserved categories, as recited therein. It was clearly mentioned in the said notification that the process would be administered in terms of the 2010 Rules (as amended in 2011) and the candidates were advised to read the same thoroughly prior to applying for the post.
The scheme for the competitive examination for recruitment to the District Judges' Cadre, as referred to in Rule 39, is set out in Schedule IX of the Rules. It transpires therefrom that the scheme contemplates written examination in the subjects mentioned therein and an interview to test the general knowledge of the candidate and his/her fitness for appointment to the Cadre. The maximum and minimum marks have been detailed in this schedule vide the Rajasthan Judicial Service (Amendment) Rules, 2012, as hereunder:
---------------------------------------------------------------------------------------Subject maximum marks minimum marks For SC/ST For other Candidates Candidates
----------------------------------------------------------------------------------------
1.Law Paper-I 100 40 45 Paper-II 100 40 45
2. Language which includes translation, 50 18 18 precis, essays etc. Translation may include Hindi to English and English to Hindi.
3. Interview 30 7.5 7.5 These are to be effective from 10.6.2011.
Be that as it may, in terms of Rule 40(2), a candidate would be called for the interview only if he/she obtains such qualifying marks in the written examination, as may be fixed by the Court i.e.High Court of Judicature for Rajasthan. The expression qualifying marks is evidently different from maximum marks and minimum marks, as referred to in Schedule IX, and therefore, connotes cut off level marks to be fixed by the Court, qua candidates who had secured minimum pass marks in the written examination to be called for the interview. The qualifying marks in the written examination, therefore, have to be applied on the eve of the interview and depending on the number of candidates who had passed the written examination for the purpose of shortlisting them in order of merit. The note appearing beneath Rule 40(2) to the effect that number of persons called for interview shall not exceed three times the number of vacancies advertised in each category, is not only subject to the mandate of fixation of qualifying marks in the written examination, but also merely fixes a ceiling on the number of candidates to be so called. The note can, by no means, either supersede or control the prescription of Rule 40(2) of the Rules. The concept of essentiality of fixation of qualifying marks to shortlist the candidate in order of merit for the interview is thus, ingrained in the Rules. Noticeably, the validity of the Rules has not been challenged and are thus, binding on the petitioner.
Irrefutably, the provision for fixation of qualifying marks in the written examination to shortlist the candidates for the purpose of interview has to be invoked after the written examination is conducted and the results thereof are declared. Moreover, such a stipulation is an integral part of the Rules of which every participating candidate is expected to be acquainted with, as required by the notification dated 19.7.2011. Fixation of qualifying marks in terms of Rule 40(2) thus, by no means, can be imputed to be an act resulting in altering the rules of the game after the initiation of the selection process by the notification dated 19.7.2011. To reiterate, marks to be so fixed would depend on the number of successful candidates in the examination demonstrating inter alia the quality of their performance and standard to be set for shortlisting them for the interview, bearing in mind the Cadre in which recruitment is to be made and the desired level of excellence in Service in the institutional exigencies. The marks to be so fixed indubitably, has to be above the minimum pass marks in the written examination in view of the underlying objective thereof, and thus, is directed towards identification of comparatively more meritorious candidates judged by their performance in the written examination. Such edict of the Rules cannot, in any view of the matter, be critized to be incompatible with the insistence for high quality of candidates for recruitment to the District Judge Cadre in the Higher Judicial Service of the State. The plea that the qualifying marks ought to have been fixed before conducting the written examination and declared in the notification/advertisemnt, having regard to the scheme of the Rules, is thus, wholly untenable. As contemplated, the ceiling of three times the number of vacancies, to define the zone of candidates to be called for the interview, is vividly subject to the predication of Rule 40(2) of the Rules. The petitioner's contention that having regard to the number of vacancies i.e.39, 117 candidates ought to have been called, is thus, utterly misplaced. On the same analogy that as six posts were to be filled up by women candidates of general category, 18 such candidates ought to have been called for the interview, also does not bear a moment's scrutiny. This apart, it would be patent from the representation submitted by the petitioner that she too and rightly had conceded to the subsistence of the authority of the Court to decide the cut off marks as well as the number of candidates to be called for the interview. In a way, therefore, the petitioner is estopped from contending to the contrary.
In State of Haryana Vs. Subash Chander Marwaha & Ors.(supra), the Haryana Public Service Commission had drawn up a list of 40 candidates who had secured 45% or more marks in the examination in connection with the process for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). The State Government however, made seven appointments serially in order of merit limiting to the candidates securing 55% marks. The other vacancies were left unfilled. In response to challenge to this action, their Lordships of the Hon'ble Apex Court held that mere entry of the name of a candidate in a select list does not give him/her the right to be appointed and the existence of vacancies does not give a legal right to him/her to be selected for appointment, and that it was open to the government to decide how many appointments are to be made. The impugned action was left uninterfered.
In K.H.Siraj (supra), the process involved related to the appointment to the post of Munsiff Magistrate in the Kerala Judicial Service. The relevant Rules provided for minimum marks in the written examination as well as in the oral examination and the candidates were to be appointed on the basis of the sum total of the marks in these segments. Their Lordships observed that the High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may be selected and to evolve a procedure to ensure the same. While approving the prescription of minimum pass marks in the written examination and the oral examination, it was held further that when a high powered constitutional authority is left with such power and it evolves the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same.
The decisions in Hemani Malhotra (supra) and K.Manjusree V/s State of Andhra Pradesh & anr. ((2008) 3 SCC 512) are clearly distinguishable on facts. In these reported decisions, the minimum qualifying marks in the viva-voce was, for the first time, prescribed before conducting the interview, though there was neither any provision to that effect in the relevant rules nor was there any semblance of such indication thereof earlier in the process already initiated. It was in this factual premise that the introduction of requirement of minimum marks for interview after the initiation of the selection process was disapproved.
In the face of Rule 40(2) of the Rules and the authority left with the Court to fix the qualifying marks, these decisions are of no avail to the petitioner. Aside therefrom, as would appear from Tej Prakash Pathak (supra), their Lordships of the Hon'ble Apex Court while dwelling on this issue, and more particularly, the view expressed in K.Manjusree (supra) had ordered to lay the same before a larger Bench for an authoritative pronouncement thereon.
Apart from the fact that the representation submitted by the petitioner is not, in specific terms, under the Act 2005, the relief sought for therein is also not within the purview of this enactment. The rejection of her representation at the stage where the selection process is yet to be completed thus, does not call for any interference.
On a cumulative consideration of all above, we do not find merit in the challenge.
The petition is thus rejected. The stay petition also stands rejected.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, PA