Punjab-Haryana High Court
Parbhjot Bhatti And Others vs State Of Punjab And Others on 6 August, 2013
Author: S.S. Saron
Bench: S.S. Saron
CWP No.3183 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.3183 of 2011
Date of Decision: 6.8.2013
Parbhjot Bhatti and others ...Petitioners
Versus
State of Punjab and others ....Respondents
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE S.P. BANGARH
Present: Mr. Gurminder Singh, Advocate for the petitioners.
Mr. P.P.S. Thethi, Addl. AG, Punjab
for respondents No.1, 3 and 4.
Mr. Rajesh Garg and Ms. Nimrata Shergill,
Advocates for respondent No.2.
S.S. SARON, J.
The grievance of the petitioners in this petition under Articles 226/227 of the Constitution of India is that they have wrongly not been appointed to the posts of Punjab Civil Service (Judicial Branch) ('PCS (JB)' - for short) on the ground that they had less than 50 per cent marks (45 per cent in the case of candidates belonging to Scheduled Castes and Backward Classes of Punjab) in the aggregate of written examination and viva voce test. Therefore, they seek quashing of the merit list (Annexure P-5) whereby they have been excluded from consideration for appointment to the PCS (JB) and they also seek directions against the respondents to appoint them to the posts of Civil Judges (Junior Division) cum Judicial Magistrates in the State of Punjab in accordance with the Punjab Civil Services (Judicial Branch) Rules, 1951 ('1951 Rules' - for short).
Amit Kaundal2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -2-
The Punjab Public Service Commission ('Commission' - for short) (respondent No.3) in May, 2010 issued an advertisement (Annexure P-1) inviting applications from candidates for recruitment to 85 posts of PCS (JB). The examination for the said recruitment was to be conducted jointly by the Commission (respondent No.3) and the Punjab and Haryana High Court, Chandigarh ('High Court' - for short) (respondent No.2). It was inter alia mentioned that the examination shall be conducted in three stages, that is, (i) Preliminary Examination;
(ii) Main Examination and (iii) Viva Voce. In the instructions for filling up the application form (Annexure P-2), the break up of the 85 posts was given. Thereafter, a revised break up of the posts was given on 31.08.2010, which inter alia provided that there would be 34 posts for general category, 26 posts (12 backlog) for members of the scheduled castes, Punjab; 2 for members of the scheduled castes ex- servicemen/lineal descendant of ex-servicemen, Punjab; 1 for members of the scheduled castes sports persons, Punjab; 11 (backlog
5) for members of the backward classes, Punjab, 2 for members of the backward classes ex-servicemen/lineal descendants of ex-servicemen, Punjab; 5 for ex-servicemen/lineal descendants of ex-servicemen, Punjab; 2 for physically handicapped, Punjab and 1 for sports persons, Punjab. A preliminary examination was to be conducted and it was envisaged that the object of the same was to short list candidates for the main examination. There was to be no minimum pass marks in the preliminary examination. The marks obtained in the preliminary examination were not to be counted towards the final result. Candidates equal to ten times the number of vacancies advertised, selected in order of their respective merit, were to be eligible to sit in Amit Kaundalthe main written examination. For the main examination it was 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -3- provided that only candidates declared successful on the basis of preliminary examination shall be called for the main examination. It was also provided that no candidate shall be credited with any marks in any paper unless he obtains at least 33 per cent marks in it. For the viva voce test, it was inter alia provided that no candidate shall be called for the viva voce unless he obtains at least 50 per cent qualifying marks in the aggregate of all the written papers and qualifies in the language paper Punjabi (Gurmukhi Script). The candidates belonging to members of the scheduled castes of Punjab and backward classes of Punjab were to be called for the viva voce if they obtained 45 per cent qualifying marks in the aggregate of all the written papers and qualify in the language paper Punjabi (Gurmukhi Script).
In view of the requirement of securing 50 per cent qualifying marks in the aggregate of all written papers (45 per cent in the case of candidates belonging to Scheduled Castes and Backward Classes of Punjab), besides, qualify the language paper Punjabi (Gurmukhi Script),the contention of the learned counsel for the petitioners is that though there is a requirement of obtaining qualifying marks of 50 per cent or 45 per cent as the case may be in the aggregate of all written papers and qualification in the language paper of Punjabi for a candidate for being called for the viva voce, however, there is nothing stated or required that 50 per cent marks in the aggregate in case of general category candidates and 45 per cent in case of reserved category candidates is also necessary to be obtained by a candidate for being selected to the PCS (JB). Therefore, it is submitted that the sole reason and ground for the respondents to deny Amit Kaundalthe petitioners their legitimate due is illegal and arbitrary. It is 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -4- submitted that Prabhjot Singh Bhatti (petitioner No.1) and Mandeep Singh (petitioner No.2) obtained 46 per cent marks, Harjinder Singh (petitioner No.3) obtained 45.68 per cent marks and Gagandeep (petitioner No.4) obtained 45.15 per cent marks in the written examination and they having obtained more than 45 per cent qualifying marks in the written examination were called for viva voce test in which they appeared. In the merit list of successful candidates that was prepared on the aggregate of marks obtained in the written papers and viva voce 19 candidates who are members of the scheduled castes and another who is also a member of the Balmiki/ Mazhbi Sikh caste were recommended for appointment as Civil Judges (Junior Division) cum Judicial Magistrates. The petitioners who were at serial No.16, 17, 20 and 22 respectively of the merit list were not selected as they scored 33.5 per cent, 33 per cent, 32.5 per cent and 33.5 per cent marks respectively in the aggregate of written examination and viva voce, which was less than 50 per cent in the aggregate. The petitioners aggrieved against the action of the selection process of not being selected on the ground that they had less than 50 per cent marks in the aggregate of written examination and viva voce submitted a representation dated 17.01.2011 (Annexure P-6) to the official respondents to consider their names for appointment to PCS (JB) as the posts were vacant and were existing. Another representation dated 19.01.2011 (Annexure P-7) was filed by Harjinder Singh (petitioner No.3). The detailed marks cards and merit list were displayed on the website of the High Court (respondent No.2). It is stated that 10 posts of Civil Judges (Junior Division) cum Judicial Magistrates were still unfilled in the State of Punjab for Amit Kaundalmembers of the scheduled castes category including scheduled castes 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -5- other Balmikhi/Mazhabi Sikhs, ex-servicemen and sports persons. Therefore, the petitioners who are from amongst the members of the reserved categories and had qualified the written paper with more than 45 per cent qualifying marks are entitled to be appointed as Civil Judges (Junior Division) cum Judicial Magistrates as there is no requirement of obtaining 50 per cent or 45 per cent, as the case may be, minimum marks in the aggregate of written paper and viva voce test, which has wrongly been applied by the respondents.
On notice, written statement has been filed by the State of Punjab (respondent No.1). A separate written statement has been filed by the High Court (respondent No.2). In the written statement filed by the High Court (respondent No.2) it is submitted that PCS (JB) examination is governed by the 1951 Rules and a bare reading of Rule 7 (2) of the 1951 Rules discloses that no candidate shall be called for the viva voce unless he has obtained 50 per cent of the qualifying marks of the aggregate of all the written papers; provided that the candidates belonging to the scheduled castes/scheduled tribes and backward classes categories shall be called for the viva voce test if they obtain 45 per cent of the qualifying marks in the aggregate of all written papers. Rule 8 of the 1951 Rules, it is submitted, specifically mentions that the merit of the qualifying candidates shall be determined by the Commission (respondent No.3) according to the aggregate marks obtained in the written papers and viva voce. The petitioners who are from amongst the members of the reserved categories, secured qualifying 45 per cent marks in the written examination and were called for the viva voce test. They were placed in the merit list at Serial Nos.16, 17, 20 and 22 respectively and they Amit Kaundalsecured 33.5 per cent, 33 per cent, 32.5 per cent and 33.5 per cent 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -6- respectively in the aggregate of written papers and viva voce. The petitioners could not be recommended for appointment as they had not secured 45 per cent qualifying marks in the aggregate as is provided by the 1951 Rules. The writ petition, it is submitted, is not maintainable as merit-wise final result dated 23.12.2010 (Annexure P-5) had been declared by the Selection Committee after considering each candidate appearing before it. It is also submitted that from the advertisement it is clear that selection was to be made on the basis of performance of the candidates in the written examination as well as in the viva voce as specific marks had been allocated in the written examination and viva voce test. It is submitted that in case the plea of the petitioners is to be acceptable as correct, it would mean that selection is to be made on the basis of performance in written examination alone and conducting of viva voce was only an exercise in futility. The said interpretation, it is submitted, is fallacious and would result in diluting the standards of Judicial Services which would be against public interest. The issuance of the merit list is admitted. However, it is submitted that the petitioners were not successful and were, therefore, not placed in the merit list.
Mr. Gurminder Singh, Advocate learned counsel for the petitioners has contended that the requirement for consideration for selection to the posts of PCS (JB) is only that 45 per cent marks are required for being called for the interview and there is no requirement of scoring than 50 per cent or 45 per cent or more marks in the aggregate of written papers and viva voce for selection and appointment to the posts of PCS (JB) for candidates from amongst the reserved categories. According to learned counsel for the petitioners, Amit Kaundalif a candidate comes in order of merit and posts are available then the 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -7- candidate in order of his merit is liable to be appointed on the basis of the marks secured by him. It is submitted that similar practice had been followed in the previous examinations of PCS (JB). A reference has been made to the 2006 selection process in which several candidates of the general category who had got less than 50 per cent marks in the aggregate of written papers and viva voce and three of them got zero marks in the interview, were appointed to the PCS (JB) service. A judgment of this Court in the case of Deepika and another v. State of Punjab and others, CWP No.13556 of 2006 decided on 05.12.2008 has been cited wherein this Court directed the Commission (respondent No.3) to forward the names of the petitioners in the order of merit in respect of the selections made in the year 2006, even though they had obtained less than 50 per cent marks in the aggregate of written examination and viva voce test for the general category and less than 45 per cent marks in the aggregate of written examination and viva voce test for the reserved categories. Reliance has also been placed on the judgment of the Supreme Court in K. Manju Sree etc. v. State of Andhra Pradesh JT 2008 (2) SC 437, a judgment of this Court in Anshul Kakkar v. State of Punjab 1996 (4) SCT 645 and a judgment of the Letters Patent bench of this Court in Punjab and Haryana High Court v. Deepika and others L.P.A. No.911 of 2009 decided on 05.12.2008 whereby appeal against the single bench judgment in Deepika and another v. State of Punjab and others, CWP No.13556 of 2006 decided on 05.12.2008 (supra) was dismissed. Therefore, it is submitted that the matter is not res integra and is covered by the aforesaid judgments.
In response Shri Rajesh Garg and Ms. Nimrata Shergill, Amit KaundalAdvocates for the High Court (respondent No.2) have submitted that 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -8- the High Court (Respondent No.2) can lay down minimum standards for filling up the posts of PCS (JB) and in case such a decision is taken in order to maintain the standards of the service, the petitioners cannot claim appointment as a matter of right especially when no person junior to them in the order of merit has been appointed. During the course of hearing, a report dated 24.08.1998 (Annexure R-1) by a Committee of three Judges of the High Court (respondent No.2) was submitted. The said report (Annexure R-1) was approved by the Full Court on 15.10.1998. On the strength of the said report (Annexure R-1), it is submitted that the Full Court of the High Court on its administrative side had taken a conscious decision not to appoint a person getting below a particular percentage of marks for maintaining higher standards and that a candidate who scored less than 50 per cent marks in the aggregate of the written papers and viva voce may not be appointed to the PCS (JB) unless there were very compelling reasons to lower that standard. It is submitted that a candidate who qualifies the examination may have a right to get his name entered in the register maintained in accordance with the 1951 Rules but does not get a vested right to seek appointment when the High Court (respondent No.2) had taken a conscious decision to appoint candidates to the PCS (JB) who get 50 per cent or more marks of the aggregate of written examination and viva voce. Learned counsel for the respondents have placed strong reliance on the judgments of the Supreme Court in State of Haryana v. Subhash Chander Marwaha and others AIR 1973 SC 2216; Neelima Shangla v. State of Haryana and others, AIR 1987 SC 169 and judgments of this Court in Bharat Bhushan Dhaiya v. State of Haryana, CWP No.3539 of Amit Kaundal2011 decided on 16.02.2012 and Kamal Kant v. State of Haryana, 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -9- ILR (1993) (1) P&H (60) (DB) (P&H).
Mr. P.P.S. Thethi, learned Addl. AG, Punjab appearing for respondents No.1, 3 and 4 during the course of hearing has filed affidavit of Shri D.S.Bains, IAS, Principal Secretary to Government of Punjab, Department of Home Affairs and Justice in which it is stated that letter dated 08.11.1998 (Annexure R-1) relating to the decision taken that a candidate who had secured less than 50 per cent marks in the aggregate of the written examination and viva may not be appointed to the PCS (JB) unless there were very compelling reasons to lower the standard was considered and dealt with. A reply dated 01.12.1999 (Annexure R-2) was sent by the then Principal Secretary to Government of Punjab, Department of Home Affairs and Justice, Chandigarh in which a reference was made to Rule 7 (2) of the 1951 Rules and it was stated that in order to implement the decision, the said Rule would require an amendment. It is submitted that the process to amend the 1951 Rules including Rule 7 regarding fixing of minimum marks is under active consideration. The Personnel and Finance Departments had made observation in this regard which were being examined by the Home Department. So far no amendment to the 1951 Rules had been carried out and the decision is pending. It is prayed that the writ petition be dismissed.
Mr. Gurminder Singh, Advocate for the petitioners in his reply to the contentions of the learned counsel for the respondents has contended that the decision dated 24.08.1998 (Annexure R-1) of the three Judges Committee which was accepted by the Full Court on 15.10.1998 had never been invoked or implemented by the High Court (respondent No.2) in its earlier selections. In any case, it is submitted Amit Kaundalthat a Division Bench of this Court in Rajinder Pal Singh v. State of 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -10- Haryana and others 2003 (6) SLR 676 considered the effect of the said decision dated 24.08.1998 (Annexure R-1) of the three Judges Committee and held that there had been inaction on the part of the Government in not accepting the suggestion of the High Court and implementing the same as a policy. Therefore, the lack of unanimity of view it was held was the reason which tilted the law in favour of the petitioners in the said case and not lack of legislative amendments in the relevant 1951 Rules. It is submitted that there being non acceptance of the suggestions of the High Court (respondent No.2) regarding securing of 50 per cent marks in the aggregate of written papers and viva voce, the right of consideration for appointment of the petitioners to the PCS (JB) is not liable to be denied. A reference has been made to the case of Amrish Kumar Jain v. High Court of Punjab and Haryana and another, CWP No.13486 of 1999 decided on 05.12.2003 which was allowed in the same terms as Rajinder Pal Singh's case (supra); besides, reference has been made to Ashok Kumar v. State of Haryana, 1998 (1) RSJ 426 (DB) (P&H).
We have given our thoughtful considerations to the contentions of the learned counsel for the respective parties and gone through the records of the case.
From the contentions that have been raised and noticed above, it is required to be considered that if a candidate for selection and appointment to the PCS (JB) who though has qualified the written papers by obtaining 50 per cent or more marks (45 per cent or more marks in the case of members of the reserved categories) but does not get 50 per cent or 45 per cent marks, as the case may be, in the aggregate of written papers and viva voce and though being entitled to Amit Kaundalbe brought on the register maintained in accordance with the 1951 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -11- Rules would have a right of appointment. The 1951 Rules governing the selection and appointment of persons as Civil Judges (Junior Division) cum Judicial Magistrates in the PCS (JB) may be noticed. Rule 7 of the 1951 Rules after amendment by way of notification dated 04.06.1991 in Part C captioned as 'Examination of Candidates' reads as under:-
"7(1) No candidate shall be credited with any marks in any paper unless he obtains at least thirty three per cent marks in it.
(2) No candidate shall be called for the viva-voce test unless he obtains at least fifty per cent qualifying marks in the aggregate of the written papers.
Provided that the candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes categories shall be called for the viva voce test if they obtain forty five per cent qualifying marks in the aggregate of all the written papers.
(3) The minimum qualifying marks in the language paper Punjabi (Gurmukhi Script) shall be thirty three per cent. The standard of language paper will be that of Matriculation Examination of the Punjab School Education Board or its equivalent.
(4) The merit of the qualified candidates shall be determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written papers and viva voce.
Provided that in the case of two or more candidates Amit Kaundal obtaining equal marks, the candidate older in age shall be 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -12- placed higher in the order of merit"
As already noticed the contention of Shri Gurminder Singh, Advocate for the petitioners is that the said Rule no where envisages any condition or caveat for obtaining 50 per cent marks in the aggregate of written papers and viva voce for being considered for appointment. Reliance has been placed on Deepika's case (supra) and the decision of the Letters Patent Appeal against the same. In Deepika's case (supra) it may be noticed that a reference was not made to the three Judges Committee decision dated 24.08.1998 (Annexure R-1) as it had not been brought to the notice of this Court. In terms of the decision (Annexure R-1) of the three Judges Committee it had been decided that a candidate who had secured less than 50 per cent marks in the aggregate of written examination and viva voce test may not be appointed to PCS (JB) unless there were very compelling reasons to lower that standard. Reliance in Deepika's case (supra) was placed on K.Manjusree's case (supra) wherein it was held by the Supreme Court that in the absence of a statutory provision of any minimum marks required to be obtained in the viva voce, the Commission could not import the same. Besides, reliance in Deepika's case (supra) was also placed on Anshul Kakkar's case (supra) wherein this Court held that in the absence of any statutory sanction for the same, that is, of minimum marks to be obtained, the Commission did not have the jurisdiction to declare any candidate as unsuitable and its domain fell only up to the stage of determination of total merit and forwarding the same to the competent authority. In the aforesaid circumstances, the writ petition in Deepika's case (supra) was allowed and the Commission (respondent No.3) was directed to forward the Amit Kaundalnames of the petitioners in the said case in the order of merit for 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -13- selection made in the year 2006 as per the advertisement. The decision in Deepika's case (supra) was subject matter of LPA titled Punjab and Haryana High Court v. Deepika and others (supra) (LPA No.911 of 2009 decided on 15.12.2009) wherein one of the question that was considered was whether the procedure adopted by the Full Court in preparing the fresh selection list by applying the requirement of minimum marks for interview also, was legal and valid. Reliance was placed by the learned Letters Patent bench to the case of K. Manjusree v. State of Andhra Pradesh (supra) wherein it was held that extending the minimum marks prescribed for written examination, to interviews, in the selection process was impermissible. It was, however, clarified that the prescription of minimum marks for any interview was not illegal; besides, it was without doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, it was held that the Selection Committee may also prescribe the minimum marks. But if the Selection Committee wants to prescribe the minimum marks for interview, it should do so before the commencement of the selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process add an additional requirement that the candidates should also secure minimum marks in the interview. The changing of criteria after completion of the Amit Kaundalselection process was found to be illegal, when the entire selection had 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -14- proceeded on the basis that there would be no minimum marks for the interview.
In Deepika's case (supra), the admitted position was that the petitioners therein were declared unsuitable by the Commission. It was not disputed that even after adding zero marks in the viva voce they would have been declared successful for being brought on the register maintained for appointment to the PCS (JB) cadre. The applicability of the judgments in K. Manjusree's case (supra) and Anshul Kakkar's case (supra) referred to by learned Single Judge in Deepika's case (supra) was not denied by the respondent in the said case. It was noticed by the Letters Patent Bench that even the concession made with regard to the applicability of the said judgments before the learned Single Judge had not been disowned in the grounds of appeal or at the Bar. In this view of the matter, it was observed by their Lordships of the Letters Patent Bench that they were unable to understand how the appeal was maintainable on merits. Accordingly, the appeal was dismissed. No SLP is shown to have been filed against the said judgment. It may be noticed that in Deepika's case (supra) the issue that was primarily considered was whether there was any requirement for securing minimum marks in the interview. In the absence of rules or decision before the selection process had commenced, it was held that the same could not be added later.
In the present case, however, the requirement of obtaining 50 per cent in the aggregate of written papers and viva voice, the respondents have submitted and invoked the decision of the three Judges Committee dated 24.08.1998 (Annexure R-1) which has been approved by the Full Court vide its decision dated 15.10.1998 and a Amit Kaundalletter has also been forwarded for its implementation to the State 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -15- Government. The said decision (Annexure R-1) is to the effect that a candidate must secure 50 per cent marks in the aggregate of written papers and viva voce so as to be eligible for consideration for appointment to the PCS (JB). The said decision of the requirement of securing 50 per cent marks in the aggregate of written papers and viva voce so as to be eligible for consideration for appointment to the PCS (JB) has admittedly not been followed or adhered to in the 2006 selections. In the 2006 selections Yukti Goyal, Amit Kumar Arya from the General Category and Pritpal Singh from the members of the reserved category had secured less than 50 per cent marks and 45 per cent marks respectively but were appointed by the High Court on its own without any judicial intervention. Therefore, according to Mr. Gurminder Singh, Advocate learned counsel for the petitioners, the ratio of judgment in Rajinder Pal Singh's case (supra) is liable to be applied and appointments given to the peititoners.
In Rajinder Pal Singh's case (supra), the Haryana Public Service Commission advertised 23 posts of Haryana Civil Services (Judicial Branch) on 15.3.1999. Selection process was carried out and the final result was declared on 29.10.1999 after holding written tests and interviews. Twenty four candidates were appointed to the Haryana Civil Services (Judicial Branch) in May 2000, while the remaining selected candidates were not appointed for the reason that in the meanwhile the High Court had taken a decision not to appoint the candidates who had secured less than 50 per cent of aggregate marks of the written as well as viva voce. As a result of the said decision of the High Court, the petitioners therein were not issued appointment letters and they approached this Court. The High Court Amit Kaundalin its reply referred to a letter dated 20.07.2000 addressed by the 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -16- Registrar of the High Court to the Haryana Public Service Commission conveying the decision of the Chief Justice and the Judges to the effect that it had been decided that a candidate who had secured less than 50 per cent marks in the aggregate of written examination and viva voce test may not be appointed to the Haryana Civil Services (Judicial Branch) unless there were very compelling reasons to lower the standards. The challenge to the said decision of the High Court on its administrative side, it was contended, that it amounted to amendments of the relevant rules unilaterally, which was impermissible under Article 234 of the Constitution of India. Besides, the imposition of condition of obtaining 50 per cent of aggregate marks in the written and viva voce test had the effect of divesting the petitioners in the said case of their right to appointment which had accrued in their favour in terms of the rules applicable at the relevant time. It was also contended that the decision of the High Court had not been accepted by the Government and no notification in furtherance thereto was issued. Moreover, the stand of the Government and the Commission was in conflict with the stand of the High Court. In any case, it was submitted that a unilateral decision of the High Court dated 20.07.2000 could not have retrospective effect. It was also contended that the enforcement of the decision (dated 20.07.2000) had resulted in an in built discrimination between the candidates selected in the past year as well as for the current year. The decision (dated 20.07.2000) of the High Court necessarily overlooked the judgment in Ram Bhagat Singh and others v. State of Haryana and another, 1990 (2) RSJ 52 (Supreme Court) as it did not provide for relaxation in the case of members of the reserved categories for Amit Kaundalappointment to the judicial services. This violated Article 16 of the 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -17- Constitution of India. Lastly, it was contended in the form of numerical example that a candidate belonging to the reserved category would have to obtain unachievable high marks in the interview, that is, 105 out of 120 despite the fact that he had cleared the written examination with the prescribed qualifying marks of 45 per cent. The enforcement of the letter (dated 20.7.2000) of the High Court it was submitted resulted in creation of an anomalous or an impractical situation and defeated the very object of the rules in force. The State of Haryana and the Haryana Public Service Commission supported the case of the petitioner and the arguments addressed on their behalf were noticed only to further the cause of the petitioner. After consideration of the matter, this Court inter alia held that the essence of fixation of such higher standards would normally be done by prescriptions and standards made in the 1951 Rules. Higher standard could be introduced even at a subsequent stage provided the competent authority takes a conscious decision in the interest of service administration. The Government had taken a conscious decision vide its letter dated 20.06.2000 (sic.-20.07.2000) raising certain objections including that of discrimination for consideration of the High Court. However, the High Court reiterated its stand vide letter dated 15.12.2000. Selections had already been made and list was sent to the High Court even before the High Court took the decision of prescribing higher merit for appointment. The Government had issued a notification subsequently. It was held that it would have been in the interest of all concerned that such a notification which had been issued by the Government was issued much earlier and the view of the High Court enforced by amendment of the 1951 Rules. The petitioners Amit Kaundalcould not contend that they had any vested right merely because they 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -18- had cleared the written examination and viva voce test in terms of the rules in existence. It was concluded by this Court as follows:-
"Analytical examination of the provisions contained in the rules and judgments afore-cited leave no doubt in our mind that it was not mandatory for the concerned quarters to amend the rules before enforcing the clause contained in the letter of the High Court dated 05.05.2000 or 20.07.2000. It was only a parameter for the purposes of appointment of plea of higher merit. The law is consistent in this regard that higher marks than the eligibility conditions can always be introduced by the competent authority for the purposes of maintenance of higher standards in service and in furtherance to its policy decision taken in the interest of administrative excellence. We have already held that the letter of the High Court does not lack any inherent jurisdiction or competence. The infirmity has resulted from the inaction of the Government in not accepting the suggestion of the High Court and implementing the same as policy. In fact they raise specific objections to the implementation of contents of the said letter and it was too late in the day before the rules were amended by the State. The lack of unanimity of view is the reason which tilts the law in favour of the petitioners and not lack of legislative amendments in the relevant rules." (Emphasis added) Therefore, it was primarily on account of lack of unanimity of the view between the High Court, the State Government and the Amit KaundalHaryana Public Service Commission that the requirement of securing 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -19- 50 per cent marks in the aggregate of written examination and viva voce test by a candidate so as to be entitled for consideration for appointment to the Judicial Service was held had tilted the law in favour of the petitioner and not lack of legislative amendments in the relevant rules. In Rajinder Pal Singh's case (supra) one of the aspects that was considered was that the requirement for the candidates to secure 50 per cent marks in the aggregate of written test and viva voce was taken after selection process had commenced. In the present case the decision of the three Judges committee dated 24.08.1998 (Annexure R-1) and approval by the Full Court on 15.10.1998 had been taken earlier and conveyed to the State Government. However, in 2006 selection admittedly three candidates securing less than 50 per cent marks in the aggregate of written examination and viva voce test were appointed without any judicial intervention and three candidates were appointed on the basis of decision of Deepika's case (supra) even though they had secured zero marks in the interview. Nevertheless the same would not confer any right on the petitioners. In Chandigarh Administration v. Jagjit Singh AIR 1995 SC 705, it was held that generally speaking, the mere fact that the respondent authority had passed a particular order in the case of another person similarly situated can never be the ground for issuing writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. Therefore, on the ground that three candidates were appointed by the High Court without judicial intervention and three by way of writ petition in the 2006 selection process would by itself not confer any rights on the petitioners to be appointed merely because Amit Kaundalthey may be similarly placed. In Fuljit Kaur v. State of Punjab, 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -20- (2010) 11 SCC 455, it was held that equality cannot be claimed in illegality and, therefore, cannot be enforced by a citizen or Court in a negative manner. Wrong order/decision in favour of any particular party, it was held, does not entitle any other party to claim the benefits on the basis of wrong decision.
In State of Haryana v. Subhash Chander Marwaha (supra), it was held that the competitive examination is for the purpose of showing that a particular candidate is eligible for consideration. Selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that the candidate's name appears in the list does not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C of the 1951 Rules, it was held, is that if and when the State Government proposes to make appointments of Subordinate Judges it shall not make such appointments by traveling outside the list and shall make the selection for appointments strictly in order the candidates had been placed in the list published in the Government gazette. Therefore, the Government is not to depart from the rankings given in the list in order of merit although the Government is not bound to fill up all the posts advertised and an advertisement does not confer any right of appointment. The 1951 Rules, as in the present case, were considered in Subhash Chander Marwaha's case (Supra). It was contended on behalf of the candidates therein that since Rule 8 of Part Amit KaundalC of the 1951 Rules makes candidates who obtained 45 per cent or 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -21- more marks in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they could restrict the appointments to only those who had secured not less than 55 per cent. It was contended that the State Government had acted arbitrarily in fixing 55 per cent as the minimum for selection and this was contrary to above referred rule. It was held that the said argument had no force. Besides, Rule 8 of the 1951 Rules is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why R.10 (ii), Part C speaks of "selection for appointment". It was further held that even as there was no constraint on the State Government in respect of the number of appointments to be made, there was no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates, it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. This is essentially a matter of administrative policy and if the State Government thinks that in the interest of judicial competence persons securing less than 55 per cent of marks in the competitive examination should not be selected for appointment, those who get less than 55 Amit Kaundalper cent have no right to claim that the selection be made out of also 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -22- those candidates who obtained less than the minimum fixed by the State Government.
In Neelima Shangla v. State of Haryana (supra) it was observed that 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 of the names entered in that also in the same order. It is, of course, open to the Government not to fill up all the vacancies for valid a reason. It was held that the Government and the High Court, may for example, decide that though 55 per cent is the minimum qualifying mark in the interest of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks. Therefore, it may be noticed that in terms of Neelima Shangla's case (supra), the Government and the High Court can lay down minimum qualifying marks in the interest of higher standards and that they would not appoint anyone who has obtained less than certain percentage of marks. In the present case, the High Court has taken the said stand in terms of the three Judges Committee decision dated 24.08.1998 (Annexure R-1) and decided not to appoint a candidate to the PCS (JB) who has secured less than 50 per cent in the aggregate of written test and viva voce examination unless there were compelling reasons to lower that standard.
In Anshul Kakkar v. State of Punjab (supra), 12 posts of Amit KaundalSubordinate Judges (PCS Judicial Branch) were advertised in April 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -23- 1993, out of which 6 posts were for general category, 4 posts were reserved for scheduled castes category and 2 for ex-servicemen. The two petitioners in the said writ petition belonged to the general category. They possessed requisite educational qualification and were permitted to appear in the written examination and were also amongst the twenty candidates called for viva voce as they fulfilled the pre- requisite condition for being called for interview. After the interview, the Commission prepared a merit list, which was published in the Punjab Government Gazette in accordance with the 1951 Rules but while forwarding the list for publication the Commission mentioned against the names of the petitioners in the said petition as "qualified but not found suitable". The petitioners in the said petition inter alia contended that the duty of the Commission is to hold the written examination and viva voce prepare a list of qualified candidates in accordance with the marks obtained by them in order of merit, publish the same in the Punjab Government Gazette and forward the list to the Government; and it is for the Government, in turn, to forward the names in accordance with the merit list as prepared by the Commission to the High Court for entering their names in the register maintained by the latter; besides, as and when vacancies arise in the Judicial Branch of the Punjab Civil Services, the High Court is to make the selection from the Register in which the names had been entered and forward the same to the Punjab Govt. for appointment as Subordinate Judges under Article 234 of the Constitution of India. The Commission was, therefore, bound to publish the names of all qualified persons and send a list of all qualified persons to the State Government in the order of merit, and it was not open to the Amit KaundalCommission to further make selection/categorization from the qualified 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -24- persons and to say that a particular candidate is not suitable for appointment. The Commission inter alia alleged that the overall merit of the petitioners in the said case was lower than others and so their names were not recommended for appointment; besides, only 13 vacancies were available for the general category, it had recommended only 13 candidates in the general category. It was also contended that the Commission had to determine the suitability for appointment and that the petitioners therein were not found suitable. This Court considered the question whether the Commission was entitled to declare certain candidates as qualified but while doing so, dub the petitioners therein as 'not suitable' for appointment. Besides, it was also seen whether the Commission could take into consideration the number of vacancies while making its recommendations and whether the Commission was bound to send only the list of qualified candidates in the order of merit without any appendage, as had been done in the case of the petitioners therein. Further question that was considered whether the Punjab Government was bound to include and send to the High Court the names of the petitioners therein also in the select list for being entered in the Register maintained by the High Court, and whether the Government was bound to appoint the petitioners to the services as prayed for by them. Reliance was placed by this Court on Neelima Shangla's case (supra) and it was held that the duty of the Commission was confined to holding the written examination, viva voce, arranging the order of merit, according to marks, among the candidates who had qualified as a result of the written and viva voce test. Therefore, the Commission is required to publish in the gazette and to make the result available to the Amit KaundalGovernment. The Government has to thereafter send the names of the 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -25- qualified candidates to the High Court for being entered in the Register maintained by the High Court; besides, the Commission had no right to make further classification as to whether the candidate found qualified are not suitable for appointment. The Commission is also not to be concerned with the vacancies while making the recommendations. The action of the Commission stating that the petitioners therein were qualified but in dubbing them as not found suitable was held to be not warranted and against the Rules.
In Kamal Kant v. State of Haryana (supra) the petitioners therein inter alia made a prayer to forward the names of the qualified candidates for entering their names in the Register maintained by the High Court as envisaged by Rule 1 of Part D of the 1951 Rules so as to enable the High Court to fill all the existing vacancies and also the vacancies that are anticipated to arise during the period of two years from the date of publication of the result of the examination, that is, upto September 1991. The Haryana Public Service Commission intimated all the names to the State Government and the latter published the names of all the qualified candidates in the gazette but did not forward the list to the High Court for entering their names in the High Court Register to enable the High Court to forward the names of the selected candidates in the general quota and reserved categories in the order of merit to the State Government for their appointment as Subordinate Judges. Instead the State Government had in December 1989 ordered appointment of eight candidates out of the general quota and eight out of the reserved quota of three categories viz. the scheduled castes, backward classes and ex- servicemen. After the appointment orders were issued, the names of Amit Kaundalsixteen candidates were entered in the High Court register and their 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -26- posting orders were issued by the High Court. The State Government thereafter on 15.3.1990 appointed two more candidates of general category and still two more in April 1990; one each from the members of the scheduled castes and backward classes. On receipt of the intimation from the State Government, the names of these four candidates were also entered in the High Court Register and posting orders were issued by the High Court. In this manner, 20 candidates, that is, ten from general category and ten from the reserved categories were given appointments/postings. Since the vacancies notified were twenty-eight and some more vacancies had arisen and some more were anticipated within two years of the selection, the candidates who were lower in merit and expecting their appointments in case all the vacancies were to be filled in, filed writ petitions in this Court for issuing directions for complying with the 1951 Rules and for filling the vacancies on the direction of the High Court in terms of Rule 7 (1) of Part D of the 1951 Rules. The State Government in its written statement took the stand that eleven vacancies in general quota was under its consideration because out of the list of twenty-eight advertised posts, eleven posts were to be filled up from the general category candidates and a decision in this behalf was likely to be taken in the near future. It was also stated that for filling eleven vacancies, three belonging to general category and eight to reserved categories, requisition had been sent to the State Public Service Commission in January 1991. Therefore, the question of appointment of any more candidate from the merit list of the examination which was published in September 1989 did not arise. The High Court in its written statement took the stand that there was a cadre strength of 128 posts Amit Kaundalof Sub-Judges against which at the time of publication of the result 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -27- 105 officers were working. On this basis there were twenty-three vacancies. In the meantime, one officer resigned and some officers were promoted to the Posts of Additional District and Sessions Judge. In May 1990, the High Court informed the State Government that after the appointment of 19 candidates from the current merit list there were still thirteen vacancies to be filled up and four vacancies were anticipated upto September 1991. This Court in terms of law laid down by the Supreme Court in Neelima Shangla's case (supra) directed the State Government to forward the list of 42 candidates who qualified in the examination (32 general and 10 reserved) held in December 1988 forthwith and the High Court was to enter the names of such number of candidates as would be necessary in terms of Rule 8 of Part D of the 1951 Rules in the Register in order of merit. The names of the candidates of the reserved categories would also be brought on the Register in the same manner. The High Court was then to consider to fill up the remaining vacancies and would forward the names of the requisite number of candidates to the State Government for appointment as per Rule 7 (1) of Part D of the 1951 Rules as Subordinate Judges under Article 234 of the Constitution of India. It was also held that while doing so it would be open to the High Court in the interests of higher standards not to recommend the names of all the candidates who obtained 55 per cent marks and the appointment could be restricted to such number of candidates who obtained higher percentage than 55 per cent as may be decided by the High Court and agreed to by the Government.
In Bharat Bhushan Dhaiya v. State of Haryana (supra), the Haryana Public Service Commission invited applications from eligible Amit Kaundalcandidates for filling up 83 existing posts of Civil Judges (Junior 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -28- Division). There was a specific condition that the examination would be conducted in accordance with the 1951 Rules (as amended in the State of Haryana). The petitioners in the said case participated in the selection process and they ranked at serial Nos.28 onwards of the merit list of the members of the scheduled castes candidates. The names of the petitioners in the said case were not put in the Register for appointment to the Judicial Service for the reason that they had not obtained 45 per cent marks in the aggregate of written examination and viva voce. The grievance of the petitioners therein was that there was no provision contemplating requirement of securing 45 per cent marks in the aggregate of written examination and viva voce. The 1951 Rules (as applicable in the State of Haryana) contemplated securing of 45 per cent marks only in the written examination, which condition the petitioners therein had satisfied. Therefore, according to the petitioners in the said case such a condition could not be put by the Selection Committee and/or by the High Court or the State Government. The controversy in the said case, it was noticed revolved around the recommendations of the Selection committee dated 14.1.2010 consisting of three Hon'ble Judges of the High Court; Chairman of the Haryana Public Service Commission; Advocate General, Haryana; Chief Secretary Haryana and Legal Remembrances, Haryana. The said selection committee had finalised the modalities of the selection process on the said date, which were to the effect that the candidates who secured 50 per cent (45 per cent marks for members of the scheduled castes and backward classes) or more marks, would qualify for the viva voce test. It was decided that only those candidates shall be eligible for recruitment as Civil Judges Amit Kaundal(Junior Division) who secured 50 per cent (45 per cent marks for 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -29- members of scheduled castes and backward classes candidates) or more marks in the aggregate marks secured in the main examination and viva voce test. The petitioners therein contended that in the rules notified on 10.02.2010 there was no such condition of obtaining 45 per cent marks in the aggregate of the written examination and viva voce test. Therefore, the respondents were bound to offer appointments to the petitioners. It was held that the decision of the Selection Committee to fix eligibility conditions of 45 per cent in written examination and viva voce was in accordance with second proviso to Rule 11 of Part C of the 1951 Rules applicable in the said case. Thus Rule 11 of Part C of the 1951 Rules, it was held, empowers the Selection Committee to adopt the manner of selection of candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes. Therefore, the decision of the Selection Committee to take into consideration the aggregate marks in the written test and viva voce could not be said to be in violation of the 1951 Rules.
In Umesh Chander Shukla v. Union of India, (1985) 3 SCC 721, the validity of proceedings relating to the competitive examination held by the High Court of Delhi for the purpose of recruiting candidates for filling the post in the Delhi Judicial Service in the year, 1984 and of the final list of selected candidates at that examination was challenged. One of the contention that was considered was that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after viva voce test. A reference was made to Rule 17 and 18 of the Rules applicable in the said case which provided that the Selection Committee shall call for viva voce test only such candidates Amit Kaundalwho qualified the written test as provided in the Appendix and that 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -30- the Selection Committee shall prepare the list of candidates in order of merit after the viva voce test. There was no power reserved under Rule 18 of the Rules as applicable in the said case for the High Court to fix its own minimum marks in order to include candidates in the final list. In the counter affidavit that was filed, it was submitted that the Selection Committee had inherent power to select candidates who according to it were suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service. The Supreme Court on going through the Rules as applicable therein held that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself had laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial Service. The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate was to satisfy, it was held, amounted to an amendment of what was prescribed by clause (6) of the Appendix. It was held that the Selection Committee had no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. Therefore, the exclusion of the names of certain candidates, who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under Rule 18 of the Rules applicable in the said case was held to be not legal. The list that was prepared by the Selection Committee was quashed Amit Kaundaland it was directed that a fresh list shall be prepared in order of merit 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -31- on the basis of the aggregate of the marks obtained by the candidates in the written examination and in the viva voce test without taking into consideration the moderation marks added by the High Court and without reference to the decision of the Selection Committee that candidates who had obtained less than 600 marks in the aggregate should not be included in that list.
Therefore, what is to be basically seen is the relevant rules that are applicable for a particular selection process and to adhere to the same. In the present case, admittedly Rule 7 (2) of the 1951 Rules as referred to above provides the requirement of calling a candidate for viva voce test on the condition that he has obtained at least 50 per cent marks (45 per cent marks in the case of members of scheduled castes, scheduled tribes and backward classes categories) in the aggregate of written papers; besides, the minimum qualifying marks in the language paper Punjabi (Gurmukhi Script) is to be 33 per cent. The 1951 Rules that were initially framed were amended by the Punjab Civil Services (Judicial Branch) (Ist Amendment) Rules, 1989 vide notification dated 10.04.1989. Rule 8 that was substituted provided that no candidate is to be considered to have qualified in the examination unless he obtained at least 55 per cent marks in the aggregate of all the papers including viva voce test and at least 33 per cent marks in the language of Punjab (Gurmukhi script). The 1951 Rules were then amended by the Punjab Civil Services (Judicial Branch) (Ist Amendment) Rules, 1991 vide notification dated 04.06.1991 and Rules 7 and 8 were substituted in the following manner:-
"7(1) No candidate shall be credited with any Amit Kaundal marks in any paper unless he obtains at least thirty three 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -32- per cent marks in it.
(2) No candidate shall be called for the Viva-
Voce test unless he obtains at least fifty per cent qualifying marks in the aggregate of all the written papers.
Provided that the candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes categories shall be called for the Viva-Voce test if they obtain forty five per cent qualifying marks in the aggregate of all the written papers.
(3) The minimum qualifying marks in the language paper Punjabi (Gurmukhi Script) shall be thirty three per cent. The standard of language paper will be that of Matriculation Examination of the Punjab School Education Board or its equivalent.
8. The merit of the qualified candidates shall be determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written papers and Viva-Voce:
Provided that in the case of two or more candidates obtaining equal marks, the candidate older in age shall be placed higher in the order of merit."
Therefore, in terms of Rule 8 of the 1951 Rules, merit of the qualified candidates is to be determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written paper and viva voce test. In the present case, however, a three Judges Committee of the High Court on the administrative side had taken a decision dated 24.08.1998 (Annexure R-1) which was Amit Kaundalapproved by the Full Court on 15.10.1998 that a candidate who had 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -33- secured less than 50 per cent marks in the aggregate of written examination and viva voce test may not be appointed unless there were very compelling reasons to lower that standard. In Rajinder Pal Singh's case (supra), the said decision was held to be inapplicable not for lack of legislative competence but for lack of unanimity on account of which the law it was held tilted in favour of the petitioner in the said case. The infirmity it was observed had resulted from the inaction of the Government in not accepting the suggestion of the High Court and implementing the same as a policy.
Therefore, it follows that the Government and the High Court as held in Subhash Chander Marwaha's case and Neelima Shangla's case (supra) can decide that certain minimum qualifying marks in the interest of higher standards can be kept. In Rajinder Pal Singh's case (supra), the selection process had commenced with the Haryana Public Service Commission issuing an advertisement on 15.03.1999. It is thereafter that the letter dated 20.07.2000 was issued wherein it was conveyed that a candidate who had secured less than 50 per cent marks in the aggregate of the written examination and viva voce may not be appointed to Haryana Civil Services (Judicial Branch) unless there were very compelling reasons to lower that standard. Therefore, the letter prescribing 50 per cent marks in the aggregate of written examination and viva voce had been issued in Rajinder Pal Singh's case (supra) after commencement of the selection process. It was held that the condition stipulated in the High Court letter, in the facts and circumstances of the case, at best could be enforced prospectively as the process for selection for the relevant year had already concluded prior to the issuance of the said letter.
Amit KaundalThe same is not the position in the present case and the decision of 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -34- the High Court had been taken and conveyed to the State Government much earlier to the commencement of the selection process. There is no finality to the said decision by the State Government and the decision is still under consideration. In respect of the 2006 selections which were made without the intervention of the High Court were made subject to the SLP (C) No.2553 to 2563 of 2004 titled High Court of Punjab and Haryana v. Rajinder Pal Singh and connected matters. In the said SLP in Rajinder Pal Singh's case (supra), the Hon'ble Supreme Court passed the following interim order on 13.04.2006:-
"Having heard learned counsel for the parties, we feel that the question of law requires consideration. Under these circumstances, we grant leave. However, it is made clear that the decision in the appeals will have no effect on the appointments of judicial officers that have already been made pursuant to the impugned judgment of the High Court."
Therefore, from the above it follows that; (1) the State Government and the High Court in view of the law laid down in Subhash Chander Marwaha's case (supra) and Neelima Shangla's case (supra) can provide for minimum qualifying marks in the aggregate of written and viva voce test for consideration for appointment for selection as PCS (JB). Besides, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates, it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. (2) The fact Amit Kaundalthat in the earlier selections of 2006 and 2007 the rule had not been 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -35- applied or followed even though a decision had already been taken would not bar the enforcement of the same for maintaining higher standards for recruitment in the PCS (JB) unless there were very compelling reasons for lowering that standard. (3) In any case a mandamus cannot be issued because a similar situated person has been appointed in an earlier selection even though the decision of the three Judges Committee which was approved by the Full Court was in existence and yet not followed. The fact that the condition of having minimum 50 per cent marks in the aggregate of written test and viva voce in the earlier selections was not followed is inconsequential. The selection process for recruitment to PCS (JB) can provide for minimum marks to be obtained for maintaining the standards and merely because it has not been followed in an earlier selection would not operate as an estoppel against law. (4) Mere inaction not to follow the decision would not operate as an estoppel against law and as the law permits for such a course being adopted the fact that it was not taken earlier would not be a bar. (5) The selection body or the Public Service Commission is to send the list of the qualified candidates for recruitment to the PCS (JB) in order of merit and it had no jurisdiction to go into the number of vacancies that are available or determine the suitability of the candidate for appointment to the PCS (JB). (6) There has to be consultation process for consideration for appointment between the State Government, the Public Service Commission and the High Court and for reaching the decision there should be unanimity of view. However, emphasis for maintaining higher standards for recruitment to the PCS (JB) is to be kept in view and unless there are very compelling reasons for lowering that standard that the Amit Kaundalrequirement of obtaining minimum basic marks is liable to be 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -36- dispensed with.
In the present case, it may be noticed that insofar as the petitioners are concerned there has been no conscious decision before the commencement of the examination process that the candidates who secured less than 50 per cent marks (45 per cent in the case of members of the reserved categories) in the aggregate of written examination and viva voce are not to be considered for appointment. The petitioners, however, only have a right of consideration for appointment and no mandamus can be issued for appointing them to the PCS (JB). The stand taken by the High Court (respondent No.2) in its written statement is that the petitioners who are members of the reserved category and had secured less than 45 per cent qualifying marks in the aggregate provided under the 1951 Rules are not liable for consideration for appointment. The condition regarding securing of 50 per cent marks in the aggregate of written test and viva voce has been invoked during the course of hearing on the basis of the three Judges Committee decision dated 24.08.1998 (Annexure R-1) which has been approved by the Full Court on 15.10.1998. This is sufficient indication of the fact that no conscious decision was earlier taken by the High Court (respondent No.2) to exclude from the consideration process, the names of the candidates who had secured less than 50 per cent marks in the aggregate of written test and viva voce for selection to the PCS (JB). The question as to whether further relaxation for members of the reserved categories for appointment to the judicial services is to be kept in view of Ram Bhagat Singh's case (supra) need not be gone into in the present case as the petitioner herein have less than 45 per cent marks in the aggregate of written Amit Kaundalexamination and viva voce. The petitioner as already noticed are in 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -37- the merit list at serial numbers 16, 17, 20 and 22 respectively and they scored 33.5 per cent, 33 per cent, 32.5 per cent and 33.5 per cent marks respectively in the aggregate of written papers and viva voce. It may also be noticed that in Rajinder Pal's case (supra), it was held that there was no unanimity of view for prescribing minimum standards of having 50 per cent marks in the aggregate of written examination and viva voce. Although there was no lack of legislative competence. In the present case, the recruitment process had been undertaken jointly by the High Court, the Commission and the State Government. However, the decision of having 50 per cent in the aggregate of written examination and viva voce was not intimated at the commencement of the selection process. In Subhash Chander Marwaha's case (supra), the recruitment of candidates for 15 vacancies in the Haryana Civil Services (Judicial Branch) was held. List of 40 candidates who obtained 45 per cent or more marks in the examination was prepared. The State Government made seven appointments in the serial order of the merit list. The candidates who ranked 8, 9 and 13 respectively were not appointed although vacancies were available. The reason for not appointing them was that the High Court had previously intimated to the State Government that candidates getting less than 55 per cent marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining higher standards of competence in judicial service. According to the non-selected candidates since there were 15 vacancies and they had the necessary qualification for appointment, the State Government was not entitled to pick and choose only 7 candidates out of them for appointment, because to do so would be to Amit Kaundalprescribe a standard which was not contemplated by the 1951 Rules 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -38- (as applicable in the State of Haryana) but was against them. According to the State, the 1951 Rules (as applicable in the State of Haryana) did not oblige them to fill in all the vacancies and it was open to the Government to appoint the first seven candidates from the list in the interest of maintaining high-standards and there was no question of picking and choosing. The stand of the High Court was that as long there were requisite number of vacancies unfilled and qualified candidates were available, those candidates had a legal right to be selected under Rule 10 of Part C of the 1951 Rules (as applicable in the State of Haryana). According to the High Court, the State Government was not entitled to impose a new standard of 55 per cent marks for selection as that was against the Rule which provided for minimum of 45 per cent. It was held that there was no constraint on the State Government for fixing the high score or marks for the purpose of selection and in case whether appointments were made by selection from a number of eligible candidates, it is open to the Government with a view to maintain high standards of competence to fix a score which is much higher than the one required for mere eligibility. Therefore, the authorities can fix a score which is much higher than the one required for mere eligibility. The State Government though has not finally accepted the decision of the High Court of having minimum 50 per cent marks in the aggregate of written test and viva voce for appointment to the post of PCS (JB). However, unlike in Rajinder Pal's case, the decision was there that a candidate shall secure at least 50 per cent marks in the aggregate of written test and viva voce for maintaining higher standards for recruiting to PCS (JB) and that a candidate who secured less than 50 Amit Kaundalper cent marks in the aggregate of written test and viva voce is not to 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh CWP No.3183 of 2011 -39- be appointed unless there were very compelling reasons to lower that standards. Therefore, the competent authorities are liable to take a decision as to whether the candidate who had secured less than 50 per cent minimum marks and/or 45 per cent minimum marks for the members of the reserved categories for consideration for appointment to PCS (JB) is to be there or not to be there.
In the circumstances while upholding the stand of the High Court that it can keep 50 per cent minimum marks for consideration for appointment to the PCS (JB) but it is to be decided by the competent authorities of the High Court and the State Government as to whether the said condition is to be invoked as against the petitioners in respect of which there is no conscious decision and for this purpose the respondents shall carry out an exercise and consider as to whether the petitioners are liable to be appointed or not to the PCS (JB).
The writ petition is accordingly disposed of in the above terms.
(S.S. SARON) JUDGE (S.P. BANGARH) JUDGE 6.8.2013 A.Kaundal Amit Kaundal 2013.12.17 15:03 I attest to the accuracy and integrity of this document Chandigarh