Orissa High Court
Smt. Madhumita Das vs State Of Orissa And Others on 7 February, 2018
Author: S.C.Parija
Bench: S.C. Parija
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) Nos.2870 & 3025 of 2013
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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W.P.(C) No.2870 OF 2013
Smt. Madhumita Das ... ... Petitioner
Versus.
State of Orissa & others ... ... opp. parties.
For Petitioner : Dr. Ashok Kumar Mohapatra,
Senior Advocate
For opp.parties : Mr. Prasanna Kumar Parhi,
(for opp.party nos.4,5 & 9.
Mr. Amiya Kumar Mohanty,
(for opp. Party no.16).
Mr. Bibhu Prasad Tripathy,
Additional Government Advocate.
W.P.(C) NO.3025 OF 2013
Bijaya Kumar Jena & others ... ... Petitioners.
Versus.
State of Orissa & another ... ... Opp. parties.
For Petitioners : Mr. Ramakant Mohanty,
Senior Advocate.
For opp.parties : Mr. Bibhu Prasad Tripathy,
Additional Government Advocate.
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PRESENT :
THE HONOURABLE SHRI JUSTICE S.C. PARIJA
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Date of Judgment: 07.02.2018
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S.C. Parija, J.These two writ petitions have come up before me by way of a reference, in view of the difference of opinion between the two learned Judges of the Division Bench. The question which needs to be answered in this reference is whether after fixing minimum qualifying marks in the written examination, the High Court was justified in fixing minimum qualifying marks for the interview and whether such fixation was in accordance with the direction of the Hon'ble Supreme Court contained in paragraph 207.9 of the judgment in Brij Mohanlal v. Union of India and others (2012) 6 SCC 502.
2. Paragraph 207.9 of the judgment in Brij Mohanlal (supra) reads as under:-
"207.9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective States only in the following manner:
(a) The direct recruits to FTCs who opt for regularization shall take a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges.3
(b) Therefore, they shall be subjected to an interview by a Selection Committee consisting of the Chief Justice and four senior most Judges of that High Court.
(c) There shall be 150 marks for the written examination and 100 marks for the interview.
The qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shall be held in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services.
(d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks.
(e) Needless to point out that this examination and interview should be conducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases.
(f) The candidates who qualify the written examination and obtain consolidated percentage as aforeindicated shall be appointed to the post of Additional District Judge in the regular cadre of the State.
(g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected.
(h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be 4 given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age."
3. The challenge in these two writ petitions before the Division Bench was with regard to the notice dated 06.12.2012, issued by the High Court of Orissa as an addendum, indicating therein that the written examination shall consist of two papers of 150 marks, each carrying 75 marks, and that the qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST & OBC candidates in each paper, and that the interview shall carry 100 marks and the qualifying marks in the interview for both the general and SC/ST and OBC candidates shall be 40% and each of the appointees shall be entitled to one mark per year of service in Fast Tract Courts, which shall be added to the interview mark. The written examination was scheduled to be held on 16.12.2012.
4. The grievance of the writ petitioners was that the impugned notice fixing qualifying marks of 40% for general candidates and 35% for SC/ST/OBC candidates in each paper of the written examination and the qualifying mark of 40% in the interview for both the categories of candidates are contrary guidelines laid down by the Hon'ble Supreme Court in paragraph 207.9 of its judgment in Brij Mohanlal (supra).
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5. Considering the guidelines prescribed by the Hon'ble Supreme Court in paragraph 207.9 of the judgment in Brij Mohanlal (supra), as detailed above, Hon'ble Justice B.K. Nayak has come to find as under:-
"(i) In the matter of written test and viva voce test, the High Court is competent to follow the relevant Rules governing the procedure for direct recruitment to Higher Judicial Service (District Judge Cadre) to the extent the Rule is not inconsistent with the directions contained in paragraph-207.9 of the said judgment;
Therefore, the High Court is competent to specify qualifying marks for the written examination. This is clear from clause (f) of paragraph-207.9 of the judgment, which signifies that a candidate shall be called to interview only if he secures qualifying marks in the written examination and shall be given appointment only if he secures the consolidated aggregate percentage of marks, in both the written test and interview taken together as indicated in clause (c) of the said paragraph of the judgment depending on his caste;
(ii) Once a particular percentage of qualifying mark is prescribed for the written test, the High Court cannot prescribe a minimum percentage of qualifying mark for the interview, which taken together with the qualifying marks prescribed for the written test would be more than the aggregate percentage of marks which has been indicated in clause (c) of paragraph-207.9 of the judgment; and
(iii) Fixing qualifying marks for the written test as well as viva voce test, which together works out to an aggregate of more than 40% or 35% as the case may be depending upon the caste of the 6 candidate, would run contrary to the direction of the Hon'ble Supreme Court."
6. On the basis of the above analysis, Hon'ble Justice B.K. Nayak has come to hold as under:-
"13. Once the minimum aggregate qualifying marks in the written papers have been prescribed at 40% or 35% as the case may be depending upon the caste of the candidate, a further direction in clause (iii) of the notice under Annexure-7 that the candidate must secure 40% of marks out of 100 in the interview is wholly contrary to the direction of the Hon'ble Supreme Court in clause (c) of paragraph-207.9 of the judgment in Brij Mohan Lal-(2) (supra). The Hon'ble Court's direction that a general candidate securing aggregate marks of 40% and SC/ST/OBC candidate securing 35% of marks in aggregate both in written test and interview shall be selected, cannot be followed where prescription in the advertisement is of minimum qualifying marks for both the written test as well as the interview taken together exceeds the minimum aggregate qualifying marks stipulated by the Hon'ble Supreme Court for selection. Therefore, fixing of 40% of qualifying marks in the interview in the notice under Annexure-7 is bad and illegal and the same is hereby quashed. In case the aggregate qualifying marks fixed for written test in the advertisement added with whatever marks secured in the interview aggregates to 40% for general candidates and 35% for SC/ST/OBC candidates, such candidates are bound to be selected."
7. On a perusal of the judgment under reference it is seen that Hon'ble Justice D.P. Choudhury has differed with the views 7 expressed by Hon'ble Justice B.K.Nayak with regard to the fixing of minimum qualifying marks of 40%, which is required to be secured by a candidate in the interview, in order to be eligible for selection. Findings of his Lordship in this regard is extracted below:-
"28. From the aforesaid OSJS & OJS Rule, it is clear that there are 200 marks in written examination and 30 marks in interview. The candidate who has secured 50% of marks in each of the written paper shall be called for the interview and a minimum 40% of marks shall be secured in the interview to be included in the merit list. As per the directive of the Hon'ble Supreme Court 200 marks for the written examination have been reduced to 150 marks and the interview marks have been raised to 100 marks. Moreover, there is no any aggregate marks to be secured in the written examination under the Rules whereas the aggregate marks of 40% for General candidates and 35% for SC/ST/OBC candidates have been prescribed by the directive of the Hon'ble Supreme Court. Without prescribing any mark for the interview specifically their Lordships directed to follow the OSJS & OJS Rule so far as the interview and the written examination are concerned for direct recruitment to the post of District Judges. Where the minimum mark for interview is not specifically mentioned but directive is made to follow the OSJS & OJS Rule, obviously their Lordships have directed to follow the Recruitment Rules by keeping the minimum marks in the interview for the candidates who qualify in the written examination by keeping such consolidated aggregate marks in both the papers. The directive in this regard is clearly inferred from the directive of the Hon'ble Supreme Court in Clauses (a) (b) (c) and (e) of para 207.9."8
8. Accordingly, Hon'ble Justice D.P. Choudhury has proceeded to hold as under:-
"36. From the aforesaid discussions, I am of the view that Clause (ii) of Annexure-7 being not in compliance to the directive of the Hon'ble Apex Court in Brij Mohan case (supra), asking 40% in aggregate for general candidates and 35% for SC/ST/OBC candidates in each paper is illegal and improper in part. Hence, same is liable to be quashed by deleting the words "in each paper"
and the Court do so. It is further directed that both the petitioners in W.P.(C) No.2870 of 2013 and W.P.(C) NO.3025 of 2013 having obtained the minimum aggregate written examination marks are allowed to appear in the interview. But Clause
(iii) of Annexure-7 being in consonance with the directive of the Hon'ble Supreme Court and the OSJS & OJS Rule issued for direct recruitment to the cadre of District Judges is legal and proper and same cannot be interfered. Even if Clause (ii) of Annexure-7 is quashed by this order, it shall not affect the District Judges who have already been appointed."
9. From the above, it is apparent that Hon'ble Justice D.P. Choudhury has differed with the views of Hon'ble Justice B.K. Nayak only with regard to the fixation of minimum qualifying marks of 40% for the interview, on the ground that the Hon'ble Supreme Court has not prescribed any mark for the interview and the Hon'ble Court having directed to follow the relevant recruitment Rules, which in this case is the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 ("the Rules" for short), a candidate is required to 9 secure the minimum 40% marks in the interview, as has been prescribed under the said Rules, in order to be eligible for selection.
10. It is surprising that the Rule with regard to the necessity of a candidate securing 40% in each of the written papers, as per the impugned notice, having been found to be not in conformity with the guidelines laid down by the Hon'ble Supreme Court in paragraph 207.9 of its judgment in Brij Mohanlal (supra), how the other part of the same notice, prescribing minimum 40% marks in the interview can be upheld. This is more so, when the Hon'ble Supreme Court has clearly indicated in sub-para (c) of paragraph 207.9 that there shall be 150 marks for written examination and 100 marks for the interview and the qualifying mark will be 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The observation of the Hon'ble Supreme Court in sub-para (c) of paragraph 207.9 that the examination and the interview shall be held in accordance with the relevant Rules would only imply that the procedure for holding the written examination and interview is required to be conducted in accordance with the relevant Rules and not the minimum qualifying marks prescribed under the said Rules. Further, in sub-para (f) of paragraph 207.9 of the judgment, Hon'ble Supreme Court has directed that candidates who qualify in the written examination and obtain consolidated percentage of 40% and 35%, as the case may be, shall be appointed as Additional District Judge in the regular cadre of the State.
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11. The aforesaid directions of the Hon'ble Supreme Court is amply clear that a candidate working as Judge under the FTC Scheme who secures the qualifying marks in aggregate, both in the written examination and interview taken together, shall be appointed to the regular cadre of Higher Judicial Service. The words "aggregate" and "consolidated" means taken as one unit or combined and therefore, there is no scope for any doubt or ambiguity with regard to the usage of said two words in sub-paras (c) and (f) of paragraph 207.9 of judgment as indicated above, which needs any interpretation.
12. Moreover, the very object and purpose of the Hon'ble Supreme Court in prescribing a specific guidelines for recruitment of persons working as Judges under the FTC Scheme to be appointed to the regular cadre of Higher Judicial Service was laid down keeping in mind the fact that the said Judges have put in several years of service as FTC Judges and have served the country by administering justice in accordance with law. Accordingly, Hon'ble Supreme Court had directed that while framing written examination and interview module, the aforesaid facts be borne in mind. Therefore, Hon'ble Supreme Court intended that the existing recruitment Rules for appointment to Higher Judicial Service is not to be made applicable to the FTC Judges and a separate module be framed for them, keeping in view the guidelines and directions laid down in paragraph 207.9 of the judgment in Brij Mohanlal (supra).
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13. For the reasons as indicated above and in view of the clear guidelines and directions contained in sub-paras (c) and (f) of paragraph 207.9 of the judgment in Brij Mohanlal (supra), I am of the considered view that there is no ambiguity in the directions of the Hon'ble Supreme Court that the qualifying marks for persons working as FTC Judges would be 40% in aggregate for general candidates and 35% for SC/ST/OBC candidates, both in the written examination and interview combined. Therefore, I am in respectful agreement with the views expressed by Hon'ble Justice B.K. Nayak.
The reference is answered accordingly.
(S.C.PARIJA, J.) ORISSA HIGH COURT; CUTTACK 7th February, 2018/BBP.