Madras High Court
M. Palanisamy vs The Tamil Nadu Public Service ... on 14 November, 1997
Equivalent citations: (1998)1MLJ385
Author: Shivaraj Patil
Bench: Shivaraj Patil
JUDGMENT Shivaraj Patil, J.
1. Heard the learned Counsel for the parties.
2. This is yet another writ petition relatiag to selection to the post of Civil Judge (Junior Division)/Judicial Magistrate, First Class, in which the petitioner has sought for a writ of certiorarified mandamus to call for the records of the first respondent in respect of the supplemental Notification issued in Memorandum No. 10163/APDCJ. B/96 dated 24.4.1997, and quash paragraph No. 8 of the Notification so far it relates to fixing of the ratio of 1:3 for viva voce examination, and consequently direct the respondent to publish the results of the written examination and call for viva voce examination in the ratio of 1:6 as laid down in the Tamil Nadu State Judicial Service Rules, 1995.
2. The petitioner states that he enrolled himself as an Advocate in the year 1985 and since then he has been practising at Melur in the Courts of District Munsif as well as Judicial Magistrate; the first respondent invited applications from eligible candidates; earlier the interview cards were issued to candidates based on the marks obtained by them in the B.L. degree, calling them for viva voce examination; but in view of the Writ Petition Nos. 2447, 2467 of 1997 etc. filed in this Court, and orders passed in those writ petitions, written examinations were to be held. Accordingly written examinations were held. But the petitioner did not receive any call letter to appear for viva voce test.
3. The petitioner seriously challenges the fixing of the ratio as 1:3 to call the caadidates for viva voce test, on the ground that the rules do not provide for fixing up the ratio of 1:3; on the other hand the ratio fixed in the rules is 1:6 where selection was to be made without written examination; and that the same criteria could be adopted; had it been followed by the first respondent, the petitioner had chance to get call letter for viva voce test. Under the circumstances the writ petition is filed.
4. Respondent has filed counter affidavit resisting the writ petition, giving the details of the notifications issued, number of vacancies, reservations in respect of various categories, number of candidates appearing for the written examinations and passing in the written examination, number of candidates called for interview, and the basis for fixing the ratio of 1:3 in calling candidates for viva voce test.
5. We do not think it necessary to narrate all the details given in the counter affidavit as the question that arises for cousidelation in the light of the contentions raised in the writ petition, and the submissions made by the learned Counsel for the petitioner is limited to one aspect, viz., whether the action of the respondent in calling the candidates for viva voce test fixing the ratio 1:3 can be sustained. However it is agpropriate to extract paragraphs 11, 12 aod 16 of the counter affidavit, which read:
11. I submit that he belongs to B. C, community. In the case of B.C. males, only the candidates who had secured 217 and above marks in the aggregate and the minimum qualifying marks in each of the subjects were called for the oral test at the ratio of 1:3 (i.e.) the number of candidates called for the interview was three times the number of vacancies to be filled in each group based on the marks obtained in the written examination. Since, the petitioner had not secured the minimum qualifying marks of 35 prescribed for the MBD/DC and B. Cs., in translation and Law-III the petitioner was not called for the oral test.
12. The averments mentioned in paras. 4 to 8 of the affidavit are not correct. I submit that the petitioner whose Register Number was 392273 had appeared for the written examination for the recruitment of Civil Judge, and secured marks as follows:
1. Translation - 19
2. Law-I - 40
3. Law-II - 51
4. Law-III - 15 ____ Total - 125 ____
16. I submit that the procedure of selection he has announced in the notification as follows as per Government instruction issued in letter dated 27.3.1997:
'Procedure of selection:- The selection will be made on the results' of written examination and viva voce examination i,e., the selection will be made on the basis of the total marks obtained by the candidates at the written examination and viva voce examination, taken together subject to the rule of reservation of appointments. The appearance in all papers at the written and at the viva voce examination is compulsory. The written examination will precede the viva voce examination. The number of candidates to be admitted to the viva voce examination shall be exactly three times (i.e., 1:3) against each reservation group based on the marks obtained at the written examination. ' In fixing the ratio for admission to the oral test based on the written examination, the Commission has followed the existing system as per the guidelines issued in G.O. Ms. No. 603 Personnel and Administrative Reforms (Per. S) dated 12.6.1985 as amended in Government Letter No. 58716/Per. M/90-6 dated 6.5.1991. There is no discrimination in the observance of the above said ratio in conducting the oral test. Therefore, there is no arbitrariness in the ratio fixed by the Commission at 1:3 and it does not suffer from colourable exercise of powers.
6. The learned Counsel for the petitioner strongly contended that the fixing of the ratio 1:3 in calling the candidates for viva voce examination by the Tamil Nadu Public Service Commission was wholly illegal and arbitrary. In support of this submission the learned Counsel stated that Rule 5(4) of Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 1995 (for short, 'the rules'), dealing with the method of appointment, qualification, and age, did not authorise first respondent to fix the ratio as 1:3 to call for candidates for viva voce examination; on the other hand in the second proviso, ratio is fixed as 1:6 when the recruitment is to be made on the basis of viva voce test either the State Government or the first respondent have no power to issue administrative instructions or orders so as to contradict the rules framed. The learned Counsel also drew our attention to Article 234, and proviso to Article 309 of the Constitution of India, and also cited few decisions in support of this submission.
7. On the other hand the learned Additional Government Pleader, in the first place, submitted that the petitioner has failed in two papers i.e., Translation, and Law-III, in that he has secured only 19 and 15 marks respectively as against the minimum marks prescribed for passing being 35 marks in each paper; this being the position, it may not be necessary for this Court to consider the various other contentions raised by the petitioner on their merits including whether the respondent is right and justified in calling the candidates for viva voce examination fixing the ratio 1:3.
8. The learned Additional Government Pleader also submitted that the petitioner, pursuant to the Notifications issued by the first respondent offered himself as a candidate, appeared in the written examination and failed; and thereafter he is making a complaint that he is not called for the viva voce test; and as such the relief cannot be granted to the petitioner.
9. We have considered the submissions made by the learned Counsel for the parties.
10. In order to appreciate the contentions of the parties, we deem it appropriate to extract the relevant rule and also portions in the Notifications issued by respondent No. 1. Rule 5(4) to the extent it is relevant reads:
By direct recruitment on the basis of written examination/and viva voce examination conducted by the Tamil Nadu Public Service Commission in accordance with the rules specified in the annexure to these rules.
Provided that the Government may, in times of exigencies permit the Tamil Nadu Public Service Commission to resort to direct recruitment solely on the basis of viva voce examination dispensing with written examination.
Provided further that when recruitment is made on the basis of viva voce examination only, the candidates shall be admitted to the said examination for each open competition vacancy, as well as for each reservation group vacancy, in the ratio of 1:6, namely, six candidates for one vacancy on the basis of the overall percentage of the total marks obtained in the law subject including practical in the B.L. Degree Examination (I, II and III year in the case of 3 year B.L. Degree course and 111, IV and V year in the case of 5 year B.L. Degree course):
Provided also that the maximum marks for viva voce examination and the minimum marks for selection shall be as follows:
Max. Marks. 10 Marks Min. Marks for selection 30 Marks for Scheduled Castes and Scheduled Tribes 32 Marks for Most Backward Class and Denotified Community, 35 Marks for Backward Class, 40 Marks for Open Competition.
11. Paragraph 8 of the supplemental Notification issued by the first respondent, found at page 1 of the typed set filed along with the counter affidavit, reads:
8. Procedure of selection: The selection will be made on the result of written examination and viva voce examination i.e., the selection will be made on the basis of the total marks obtained by the candidates at the written examination and viva voce examination taken together subject to the rule of reservation of appointments. The appearance in all papers at the written examination and at a viva voce examination is compulsory. The scheme of examination is given in the Annexure-1.
The written examination will precede the viva voce examination. The number of candidates to be admitted to the viva voce examination shall be exactly three times (i.e. 1:3), the number of vacancies agaiast each reservation group based on the marks obtained at the written examination.
12. Rule 5(4) which is extracted above shows that direct recruitment to the post of Civil Judge (Junior Division)/JudiciaL Magistrate, First Class can be done on the basis of written examination and viva voce examination conducted by the first respondent in accordance with the rules prescribed in the annexure to the said Rules. It also provides that the Government may, in times of exigencies, permit the Tamil Nadu Public Service Commission to resort to direct recruitment solely on the basis of viva voce examination dispensing with the written examination. In the proviso, it is epecifically stated that in case recruitment is made "on the basis of viva voce examination only" canaidates shall be called for interview in the ratio of 1:6 on the basis of the over-all percentage of the total marks obtained in the Law Subjects mentioned therein.
13. The rule is silent as to, in what ratio candidates shall be called for viva voce examination in case selection is to be made on the basis of written examination and viva voce examination, although the same rule expressly provided the ratio as 1:6 whenever direct recruitment is resorted to only on the basis of viva voce examination. From this, two things follow, viz., (i) the Rule making authority was conscious of fixing the ratio, and still advisedly no specific ratio was fixed in respect of direct recruitment where it was to be made on the basis of written examination as well as viva voce examination; and (ii) if the Rules are silent or in other words the field is not occupied, it is open to the competent authorities to issue executive instructions or orders so as to provide the ratio in which the candidates are to be called for viva voce examination.
14. Since the petitioner did not qualify himself to be called for viva voce examination as he failed in two subjects as stated above, it would not matter in his case whether the ratio was fixed at 1:3 or 1:6. On this short point the writ petition can be dismissed. But we are taking pains to deal with it in detail as the learned Counsel appearing for the petitioner took pains to argue it at length and submitted that we may state the position of law, and therefore we are considering the submissions in detail.
15. The argument of the learned Counsel is for the petitioner is that the action of respondent is illegal and arbitrary in fixing the ratio as 1:3 to call for the candidates for viva voce examination on the ground that it is contrary to the Rules, and that such Government Orders or instructions could not be sustained; at any rate, respondent was not competent to fix the ratio as 1:3. We do not find that the action of the respondent in calling the candidates for viva voce examination in the ratio of 1:3 is contrary to the rules, inasmuch as Rule 5(4) extracted above has not prescribed any ratio when the recruitment is to be made on the basis of written test and viva voce examination. On the other hand the said rule is silent on that aspect. Hence it was open to the authorities to follow some rational basis to short list the candidates.
16. Short-listing of candidates, in the absence of any rules to the contrary, is held to be not arbitrary. A Division Bench of this Court, to which one of us (Shivaraj Patil, J.) was a member, had an occasion to deal with this very question precisely, in W.P. No. 13529 of 1997. In the Order dated 3.9.1997, made in the said writ petition, in paragraphs 2 and 3, it is stated thus:
2. The learned Counsel for the petitioner contended that although the petitioner has passed the written test conducted so as to qualify to appear for viva voce examination for the appointment to the post of Civil Judge (Junior Division)/Judicial Magistrate I Class, he was not called for interview by the 1st respondent. In the notification issued calling for the applications or in the Rules, no provision is made to send interview cards only in the ratio of 1:3; in the absence of such Rule or provision made, all those candidates including the petitioner, who had passed the written test, ought to have been called for interview; failure to do so has seriously prejudiced the case of the petitioner. Under the circumatances, the learned Counsel prays that the writ petition be admitted for consideration.
3. The learned Additional Governmeat Pleader, who is present in Court, took notice for respondents 1 and 2 and he submitted that short listing of the candidates called for the interview is permissible. He relied on the decisions of the Supreme Court in the case of Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and in the case of Union of India v. T. Sundararaman (1997) 5 J.T. 48. He added that nearly 2774 candidates appeared for the written examination; out of them 1956 candidates passed, and the Public Service Commission, in order to short list and to select the best of the candidates, issued interview cards in the ratio of 1:3, i.e., totally to 296 candidates. The short listing by the respondent No. 1 cannot be said to be either arbitrary orl unreasonable as it has been done on the basis of the marks secured in the written examination. He further submitted that in the light of the decisions of the Supreme Court aforementioned, the petitioner cannot make any grievance.
Accepting the submission of the learned Additional Government Pleader in that case, the Division Bench dismissed the writ petition aforementioned.
17. The petitioner having applied in response to the Notifications issued by the first respondent, appeared for the written examination, and failed. In paragraph 8 of the Supplemental Notification No. 10163/APDCJ. B/96 dated 24.4.1997 issued by the first respondent, which we have extracted above, it is clearly stated that selection will be made on the basis of the result of the written examination and viva voce examination; the selection will be mede on the basis of the total marks obtained by the candidates at the written examination and viva voce examination taken together subject to the rule of reservation. It is further stated that the written examination will precede viva voce examination, and that number of candidates to be admitted to the viva voce examination shall be exactly three times i.e., 1:3.
18. The petitioner knowing fully well the procedure of selection, appeared for the written examination and he was aware that the candidates will be called for viva voce examination in the ratio of 1:3. If the petitioner was really serious about it i.e. the procedure according to him was illegal or contrary to the rules, he could have challenged the procedure contained in paragraph B of the memorandum above stated, and could have urged all the contentions that are sought to be urged in this writ petition.
19. There are two impediments in the way of the writ petitioner, viz., (i) he has not passed in two papers. Unless he was successful in all the four papers, securing minimum marks prescribed for pass, he was not at all eligible to be called for viva voce examination, irrespective of the ratio, whether it is 1:3 or 1:6; and (ii) having appeared for the written examination and failed, no relief can be granted to the petitioner. The Apex Court in the case of "Om Prakash Shukla v. Akhilesh Kumar Shukla in paragraph 23, has stated thus:
Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardshuip to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.
20. The Supreme Court, in Sant Ram Sharma v. State of Rajasthan dealing with the absence of specific provision in the rules, in paragraph 7, has stated thus:
We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governiag promotions to selection grade posts the Goverament cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
21. Thus applying the principles stated in the aforementioned decisions of the Apex Court, and in view of the fact that the point is covered by the decision of the Division Bench of this Court in the Judgment in W.P. No. 13529 of 1997, dated 3.9.1997 aforementioned, we have to reject the contention of the learned Counsel for the petitioner that action of the first respondent was illegal in fixing the ratio as 1:3. We do not think it necessary to refer to the various decisions cited by the learned Counsel for the petitioner in view of the facts of the case on hand, as they do not advance the case the petitioner any further. No other point for consideration.
22. In the result, for the reasons stated, finding no merit, the writ petition is liable to be dismissed. Accordingly it is dismissed.