Punjab-Haryana High Court
Jarnail Singh Etc vs State Of Punjab Etc on 23 January, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Mahesh Grover, Jaswant Singh, Daya Chaudhary, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 23.01.2014
CWP No.4277 of 2000
Jarnail Singh etc. ...Petitioners
Versus
State of Punjab etc. ...Respondents
Present: Mr. G.S.Bal, Advocate, for the petitioners.
Mr. G.P.Singh, Addl. AG, Punjab, for respondent Nos.1 & 2.
Mr. Anupam Bhardwaj, Advocate, for respondent No.3.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE MAHESH GROVER
HON'BLE MR. JUSTICE JASWANT SINGH
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
1. The present writ petition is preferred by 3 petitioners i.e. Jarnail Singh, Joginder Pal and Surinder Kumari, candidates for appointment to Punjab Civil Services (Judicial Branch) pursuant to advertisement dated 08.10.1998. Petitioner No.1 belongs to Backward Class, whereas petitioners No.2 and 3 belong to the category of Scheduled Castes. All the petitioners qualified written test by securing more than 45% marks and were called for viva voce. The names of the petitioners appear as the candidates recommended for the appointment in the result published in the Punjab Government Gazette Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 2 CWP No.4277 of 2000 on 04.10.1999. All the petitioners had obtained more than 45% marks but less than 50% marks in the aggregate of written test and viva voce. The petitioners were not offered appointment in view of the decision of this Court communicated on 08.11.1998 to the Government of Punjab. The relevant extract from the communication reads as under:
"Hon'ble the Chief Justice and Judges have been pleased to decide that a candidate who had secured less than 50% marks in the aggregate of written and viva may not be appointed to the Punjab Civil Service (Judicial Branch) unless there are very compelling reasons to lower the standard."
2. Brief background leading to issuance of such letter needs to be stated. The appointment to Punjab Civil Service (Judicial Branch) is governed by the Punjab Civil Services (Judicial Branch) Rules, 1951 (for short 'the Rules'). The Rules have undergone many amendments, but for the purposes of present writ petition, the relevant extract from Part C of the same particularly as it existed prior to 1989; as substituted on 10.04.1989 and later amended on 04.06.1991 and unchanged Part D of the Rules reads as under:
PART - C Prior to 1989 Substituted vide notification dated Substituted vide notification 10.04.1989 dated 06.12.1994 The following rules and instructions, which are liable to alteration from year to year, are prescribed for examination of candidates for admission to the judicial Branch of the Punjab Civil Services:-
xxx xxx
4. The examination paper shall 4. The examination papers shall be 4. The examination papers
be set and marks awarded by set and marks awarded by shall be set and marks
examiners who will be examiners who will be appointed awarded by examiners who
appointed by the Punjab Public by the Punjab Public Service will be appointed by the
Service Commission. Commission. There shall also be a Punjab Public Service
viva voce test which will be Commission. There shall also
conducted by the Punjab Public be a viva voce test which will
Service Commission. be conducted by the Punjab
Public Service Commission.
The representative of the High
Court of Punjab & Haryana
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CWP No.4277 of 2000
shall be associated in the
selection process and his
advice with regard to the
suitability of the candidate
shall prevail unless there are
strong and cogent reasons for
not accepting the same for
which reasons shall be
recorded in writing.
5. The Judges of the High Court
may from time to time declare
what the subjects of the
examination shall be.
Substituted vide notification
dated 04.06.1991
7. No candidates shall be 7. No candidates shall be credited 7. (1) No candidate shall be
credited with any marks in any with any marks in any paper unless credited with any marks in any
paper unless he obtains at least he obtains at least 33% marks in it paper unless he obtains at least
33% marks in it. and no candidates shall be called thirty three per cent marks in
for the viva-voce test unless he it.
obtains at least forty five per cent (2) No candidate shall be
marks in the aggregate of all the called for the viva-voce test
written paper which he has passed unless he obtains at least fifty
and thirty three per cent marks in per cent qualifying marks in
the language paper of Punjabi (in the aggregate of all the written
Gurmukhi Script). 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. No candidate shall be 8. (i) No candidate shall be 8. The merit of the qualified
considered to have qualified considered to have qualified in the candidates shall be determined
unless he obtains 45 per cent examination unless he obtains at by the Punjab Public Service
marks in the aggregate of all least fifty-five per cent marks in Commission according to the
the papers and at least 33 per the aggregate of all the papers aggregate marks obtained in
cent marks in the language including viva voce test and at the written papers and viva-
paper, that is Punjabi (in least thirty three per cent marks in voce.
Gurmukhi script). The standard the language paper of Punjabi Provided that in the case of
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CWP No.4277 of 2000
of the language paper will be (Gurmukhi Script). The standard two or more candidates
that of the Matriculation of the language paper will be that obtaining equal marks, to
examination of the Panjab of Matriculation Examination of candidate older in age shall be
University. the Punjab School Education placed higher in the order of
Board or equivalent to it. merit.
(ii) The merit of the qualified
candidates shall be determined by
the Punjab Public Service
Commission strictly according to
the marks obtained by them:
Provided that in case two or
more candidates obtain equal
marks, their merit shall be
determined according to the marks
secured by them in viva voce and
if the marks in the viva voce are
also equal, the older in age shall be
placed higher in the order of merit.
9. The syllabus which is liable 9. The syllabus which is liable to
to alteration is given below:- alteration is given below:-
Paper I to V Paper I to V
Paper VI - Viva Voce to judge the
personal qualities of the candidates
PART - D
1. The names of the candidates selected by Government for appointment as Subordinate Judges under rules 10 and 11 of Part C shall be entered on the High Court Register in the order of their selection.
7. (1) Whenever it shall appear to the Judges that a vacancy or vacancies in the cadre of the Judicial Branch of the Punjab Civil Service, whether permanent, temporary or officiating, should be filled, they will make a selection from the High Court Register in the order in which the names have been entered in the Register under Rule 1 of this part. The name or names of the selected candidate or candidates will be forwarded to Government for appointment as Subordinate Judges under Article 234 of the Constitution of India. Every Subordinate Judge shall, in the first instance be appointed on probation for two years but this period may be extended from time to time expressly or impliedly so that the total period of probation, including extension if any, does not exceed three years.
3. The interpretation of the Rules in question is not res-integra. Such Rules came up for consideration in CWP No.1313 of 1986 titled 'Ram Bhagat Vs. State of Haryana & another' decided on 05.06.1987. The challenge in the said petition before this Court was to fixing of minimum standard of total marks for interview/viva voce in Rule 8, inter alia, for the reason that it is irrational and that the provisions fixing identical qualifying marks as 55% both for general and Scheduled Castes candidates is illegal. Such Rule as it existed in Haryana, is pari materia with Rule 8 introduced in Punjab vide notification Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 5 CWP No.4277 of 2000 dated 10.04.1989. The Division Bench of this Court held that Rule 8 is for judging the fitness or suitability of a candidate for the job and merely because some candidates, who could not possibly qualify, does not mean either that any legal right of theirs' has been affected or that any prejudice is caused to them.
Thus Rule 8 was not found to be invalid. While examining the condition of obtaining 55% marks in the aggregate of written test including viva voce even by Scheduled Castes candidates, the Court found that there is no obligation upon the respondents to recruit the Scheduled Castes candidates by relaxing the standard for the purpose laid down in the Rule.
4. In an appeal against the said order, the Supreme Court in Ram Bhagat Singh & another Vs. State of Haryana & another decided on 04.09.1990 reported as (1997) 11 SCC 417, considered the argument that fixation of the identical standard of marks for the Scheduled Castes and Scheduled Tribes, as General category, results in denial of opportunity to such candidates. The Court noticed that though high efficiency in the judicial service is required, that is to say, for prospective judicial officers, who will be in charge of administration of justice in the country, but at the same time, if possible, in order to ensure that there is equality of opportunity, a percentage should be fixed which without, in any way, compromising with the efficiency required for the job, will be attainable by backward communities. It was found that there is nothing on record to indicate that this percentage was fixed on an analysis and careful examination and determination of the relevant principles. In view of such finding, the judgment of this Court, as mentioned above, was modified and the Government was directed to consider as to what should be minimum percentage of marks necessary for the efficiency of administration of justice in respect of Scheduled Caste and Backward Class candidates. The relevant extract reads as under:
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"6. In that view of the matter, in our opinion, in the interest of justice and our constitutional mandates and in the light of the efficiency of the services and with a view to create a sense of justice, it is necessary for the Government concerned to consider this question as to what should be the minimum percentage of marks necessary for the administration. We direct that the Government will make a conscious decision objectively before the next selections for the post in Haryana Judicial Service take place, and determine a minimum percentage of marks consistent with efficiency and the need for ensuring equality of opportunity to scheduled castes and scheduled tribes."
5. After the aforesaid judgment, the Rules were amended in Punjab vide notification dated 04.06.1991 contemplating that no candidate shall be called for viva voce test unless he obtains at least 50% qualifying marks in the aggregate of all the written papers, it being 45% marks for Scheduled Caste and Backward Class candidates [Rule 7(2)]. The merit of the qualified candidates is required to be determined by the Punjab Public Service Commission as per the aggregate marks obtained in the written papers and viva voce [Rule 8] as amended in the year 1991.
6. Another Division Bench in a judgment reported as Ravinder Singh & others Vs. State of Punjab & others (1992) 1 PLR 313 examined the Rules in question in respect of selection process initiated vide advertisement dated 08.09.1990 i.e. prior to amendment in the year 1991. It was argued that the anomaly has been created by the amendment in the Rules in the year 1991, thus, it should operate retrospectively i.e. in respect of selection process already in progress. The Bench, considering the judgment in Ram Bhagat Singh's case (supra), held that the amendment operates retrospectively and is clarificatory in nature. The Court observed as under:
".....By virtue of amendment brought about in 1991, it is only a lacuna which was removed. The amendment, thus, has to be held to be of clarificatory nature. It is only something which was amiss that was inserted and in such a situation, it is only the correct position which shall be said to be in existence ever since when the original Rule or clause containing lacuna came into Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 7 CWP No.4277 of 2000 being. In the facts and circumstances of the present case, thus, the amendment brought about in 1991 shall be deemed to be in existence in the Rules that were available prior to the advertisement that came into being with regard to holding of present examination."
7. In view of the findings recorded, the respondents were directed to prepare merit list of Scheduled Class/Scheduled Tribes candidates, who have secured more than 45% marks even though they had not obtained 55% marks in aggregate of written test and viva voce.
8. In another CWP No.2710 of 1995 titled 'Anshul Kakkar & another Vs. State of Punjab & others' decided on 15.10.1996, the Court was considering a petition filed by the candidates seeking appointment to the Punjab Civil Services (Judicial Branch) consequent to the advertisement published on 24.12.1994. Such candidates were not found suitable for the reason that though they had secured more than 50% marks in the written examination, but less than 50% marks in viva voce. The Division Bench held that the Public Service Commission is to conduct examination and determine merit, but has no jurisdiction to determine the suitability of a candidate for appointment. Therefore, while allowing the writ petition and quashing the notification declaring the petitioners as unsuitable, the Bench observed as under:
"10. The other contention raised by the learned Asstt. Advocate General is that it is always open to the Government not to appoint a person even though his name is found in the list of selected candidates and that simply because the name of a person is found in the select list prepared by the Public Service Commission, it vests no right in him to claim that he should be appointed. Reliance was placed on the decisions in Neelima Vs. State of Haryana AIR 1987 SC 169 and State of Haryana Vs. Subash Chander Marwaha & others AIR 1973 SC 2216, which certainly support the legal proposition propounded by the learned Asstt. Advocate General. It is certainly open to the High Court not to either fix a minimum standard or not to fill up all the vacancies for any valid reason, even though there may be vacancies. Therefore, the Kumar Vimal petitioners will not be entitled to the relief that they should be appointed."2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 8 CWP No.4277 of 2000
9. Another Division Bench in CWP No.1044 of 1996 titled "Rakesh Kumar Sharma Vs. The State of Punjab etc." decided on 01.10.1996 was considering the claim of the candidates, who appeared in the Punjab Civil Services (Judicial Branch) examination held in August/September, 1995. The Punjab Public Service Commission did not recommend the names of the candidates who have secured more than 50% marks in aggregate of written test and viva voce for entry in the High Court Register. The Division Bench while examining the Rules, as it existed in the year 1991, observed as under:
"xxx xxx xxx From the scheme of the Rules, mentioned herein above, it is evident that the PPSC would hold first written test in the subjects and next a viva voce test. All candidates securing 50% of the marks in the aggregate in the written test and viva voce test and 33% in the language paper of Punjabi (Gurmukhi script) are considered as qualified for appointment, their merit being determined strictly in accordance with the marks obtained by them. Under Rule 10 of Part 'C' of the rules, the result of the examination is required to be published in the official gazette and selection for appointment is to be made strictly in the order in which the names of the candidates have been placed by the PPSC, in the list of candidates qualified under Rule 7 of Part C. As per Rule 1 of Part D of the Rules, the names of the candidates selected by Government for appointment as Subordinate Judges are required to be entered in the High Court Register in the order of their selection.
xxx xxx xxx In view of the above discussion, we direct the Punjab Public Service Commission (respondent No.3) to make available to the State Government (respondent No.1) the names of the candidates who qualified in the examination held in August/September, 1995 in terms of Rule 7 of the Rules (excluding the names of those who have already been selected) and the Government (respondent No.1) is directed to forward those names to the High Court for entering the same in the Register maintained by the High Court in the order of merit. The relief sought by the petitioners that they should be appointed to the P.C.S. (Judicial Branch) is, however, rejected as it will be open to the High Court not to fill up all the vacancies for any valid reason."
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10. Thereafter, the State Government on 02.04.1997 forwarded, a representation dated 21.03.1997 of some of the candidates, who have not obtained 50% marks in the aggregate of written test and viva voce to High Court subsequent to the order passed by this Court in Rakesh Kumar Sharma's case (supra). Earlier, the State Government on 30.01.1997 sent the names of candidates, who have obtained 50% marks in the aggregate of written test and viva voce. The relevant extract from the said communication reads as under:
"6. It is submitted that from the paras [as quoted from the judgment in Rakesh Kumar Sharma case (supra)] laying down a norm of 50% marks in written and viva voce test, it has been inferred that to become a qualified candidates those much marks are required to be obtained in the written and viva voce test. However, there is no such mention in the Rule 7 ibid. Therefore, the names of all the candidates from Sr.No.16 to 43 (list attached), who have obtained less than 50% marks in the written and viva voce test and have been declared qualified, but not recommended by the Public Service Commission (except those already recommended) are forwarded to the Hon'ble High Court of Punjab and Haryana for consideration whether their names are required to be entered in the concerned Register even though they have not obtained the required marks to become a qualified candidates as discussed earlier. As the scheme of things has become slightly doubtful, in view of the point raised by the applicants in their representation, a copy of their application is also forwarded herewith, with the request that you may like to evolve a rational decision in the matter in consultation with the Hon'ble Judges of the High Court on whether names of those candidates, who have obtained less than 50% aggregate marks in written and viva voce test as narrated above are required to be entered in the Register or otherwise. The decision taken in the matter may kindly be intimated to the State Government."
11. The representation was also on behalf of the candidates, who have obtained less than 50% in the aggregate of written and viva voce including Surjit Singh and Shankar i.e. Backward Class candidates, but have got more than 45% marks. It was considered by a sub-committee of three Judges of this Court. Such sub-committee gave its opinion on 24.08.1998. In the report dated 24.08.1998, the Committee examined the following questions: Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 10 CWP No.4277 of 2000
"...The question before us is whether the persons who though qualified by obtaining 50% or more marks in the written examination but not 50% marks in the viva, though entitled to be brought on the register, have a vested right to seek appointment. Their names have also been forwarded by the State Government with a query as to whether their names should also be entered in the Register or not."
12. It was found that prior to amendment in the Rules in the year 1991, no person getting less than 50% marks in the aggregate of written and viva was given appointment and even after the amendment of the Rules in 1991, no candidate has been given appointment, who had secured less than 50% marks in the aggregate of written and viva. It was noticed that only once exception was made in respect of 4 candidates, who had qualified the examination held in February, 1995. The Committee concluded as under:
"....As observed above that Rules do not require after the amendment in the year 1991 that a candidate to be declared qualified must get 50% marks in the viva. The only required is that a candidate should have 50% marks in the written examination (which would include 33% marks in the language paper). The apex court in S.C.Marwaha's case as well as in Neelam Shangla's case had observed that a qualified person may have a right to get his name entered in the register, but does not get a vested right to seek appointment. The High Court in given circumstances may decide not to appoint a person getting below a particular percentage of marks for maintaining higher standard. We are of the view that a candidate who had secured less than 50% marks in the aggregate of written and viva may not be appointed to Punjab Civil Service (Judicial Branch) unless there are very compelling reasons to lower that standard."
Such decision of the Committee was approved by the Full Court on 15.10.1998, which led to communication dated 08.11.1998, as extracted in para 1 hereinabove.
13. The decision of Division Bench of this Court in Rajinder Pal Singh Vs. State of Haryana etc. 2003 (4) SCT 677, pertaining to State of Haryana led to the present reference. The Court was considering the letters Kumar Vimal dated 05.05.2000 & 20.07.2000 of this court to the Government fixing higher 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 11 CWP No.4277 of 2000 standards as a condition for entry of the names in the High Court Register for appointment. It was held that the High Court can fix higher standards as a condition for qualification for entry of the names in the Register for appointment with the consent of the State Government even without amending the Rules. The relevant extract of the judgment reads as under:
"31. 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 maintenances 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.
xxx xxx xxx
37. In order to encapsulate conclusions of our above discussion, it is necessary to revert back to the contentions raised by the parties before us. We are of the considered view that the letter dated 5th May, 2000 (20th July, 2000) neither lacked jurisdiction nor competence on the part of the High Court. It was intended to provide higher standard to achieve excellence in State Judicial Services. It was not necessary that the rules ought to have been amended prior to the enforcement of this rule."
14. The said principle was extended in respect of examination process in the State of Punjab in CWP No.5608 of 2002 titled "Joginder Singh Gill Vs. State of Punjab & others" decided on 05.12.2003 and in CWP No.13486 of 1999 titled "Amrish Kumar Jain Vs. The High Court of Punjab and Haryana at Chandigarh & another" decided on 05.12.2003.
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15. The present writ petition pertains to the selection process initiated in the year 1998. The selection process for the said year including the selection processes for the years 1999; 2000 and 2001 came to be scrapped in view of the alleged irregularities in the examination process during the tenure of Shri Ravinder Pal Singh Sidhu, as the Chairman of the Punjab Public Service Commission. The services of all the appointed candidates in these years were set aside. The petitioners were not appointed for the reason that they have not obtained 50% marks in the aggregate of written papers and viva voce. A Full Bench of this court dismissed the writ petitions filed by the aggrieved officers, but in Inderpreet Singh Kahlon & others Vs. State of Punjab & others 2006 (11) SCC 356, the matter was remanded back to this Court to constitute a Committee to find out the tainted candidates. Such Committee by majority concluded that the entire selection process is tainted. Such recommendations were set aside by Full Bench of three judges of this Court in CWP No.1626 of 2003 titled "Sirandip Singh Panag Vs. State of Punjab & others" decided on 27.05.2008. In further appeal before the Supreme Court, the Supreme Court in High Court of Punjab & Haryana at Chandigarh Vs. State of Punjab & others 2010 (11) SCC 684 ordered that in the interest of justice and to settle equities, the Judicial Officers were ordered to be appointed and assigned seniority in the manner mentioned therein, but such seniority was not from the date of their initial appointment.
16. The petitioners herein, were the candidates in the year 1998, therefore, claim the same relief on the strength of judgment in Rajinder Pal Singh's case (supra), wherein the candidates, who have not obtained 50% aggregate marks in the written test or viva voce were ordered to be appointed after the decision of Full Bench in Sirandip Singh Panag's case (supra) and the order of the Supreme Court in High Court of Punjab & Haryana's case (supra). Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 13 CWP No.4277 of 2000 During the course of hearing before the Division Bench of this Court, the reliance was placed upon letter dated 08.11.1998 and the correspondence exchanged between High Court and the State Government. A Division Bench of this Court referred the following questions for the opinion of the Larger Bench:
1. Whether in view of communication dated 08.11.1998, a candidate can seek appointment to the State Judicial Services even if he/she has not obtained 50% marks in aggregate of the written papers and viva voce?
2. Whether the State Government has impliedly accepted the proposal of the High Court vide communication dated 08.11.1998, when it had not recommended the name of the candidates for entry in the High Court Register for appointment in any of the subsequent selection processes?
3. Whether the findings recorded by the Full Bench of this Court in Sirandip Singh Panag's case (supra) are binding on this Court in view of the order passed by the Supreme Court in High Court of Punjab & Haryana at Chandigarh Vs. State of Punjab & others 2010 (11) SCC 684?
4. If the judgment of the Full Bench in Sirandip Singh Panag's case (supra) is not binding, whether this Court can examine the question of tainted candidates in terms of earlier direction of the Supreme Court in Inderpreet Singh Kahlon's case (supra)?
5. If this Court cannot re-examine the questions, whether this Court in any case can issue directions in terms of the order passed by the Supreme Court in High Court of Punjab & Haryana at Chandigarh case (supra) under Article 142 of the Constitution?
17. The aforesaid questions were considered by a Bench of three Judges' on 19.11.2013, when another following question was said to be arising Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 14 CWP No.4277 of 2000 in the present writ petition and the matter was ordered to be referred to still Larger Bench:
"2-A.Whether the findings recorded by the Full Bench of this Court in Sirandip Singh Panag's case (supra) setting aside the report of the Committee are legal and valid and that the selection made in the year in question in respect of all the candidates is tainted or not?"
18. After hearing learned counsel for the parties, we find that first two questions are required to be reframed. Such questions are as under:
1. Whether the communication dated 08.11.1998 falls within scope of Part-D of the Rules and the condition of obtaining 50% marks in aggregate of the written papers and viva voce is valid reason to decline appointment to a candidate to the State Judicial Services?
2. Whether the communication dated 08.11.1998 has been issued in consultation with the State Government as part of process of examination contained in Part-C of the Rules and, thus, validly issued by the Rule Making Authority?
Question No.1:
19. The Rules framed in the year 1951 are in different parts. Part-A prescribes the qualifications for appointment as a Member of the service; Part- B deals with preparation and submission of rolls for appointment; Part-C deals with examination; and Part-D with the process of appointment. For the purpose of the questions raised, Part-C and Part-D are relevant. The relevant extracts of such Parts stand reproduced above.
20. The scheme of Part-C is that the examinations are conducted by Public Service Commission in the subjects determined by the High Court generally or in respect of each examination. The Rules and instructions in Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 15 CWP No.4277 of 2000 relation to examination of candidates are liable to alteration from year to year. The Judges of the High Court have been empowered to declare the subjects of the examination from time to time as well. The viva voce was introduced as a subject of examination in the year 1989, when Part-C of the Rules was amended. Rule 7 as is substituted in the year 1991 requires that no candidate shall be credited with any marks in any paper unless he obtains at least 33% marks in it. However, the candidate must obtain 50% qualifying marks in the aggregate of all the written papers, it being 45% for Scheduled Castes/Scheduled Tribes and Backward Classes candidates to be called for viva voce test. Rule 8 enjoins an obligation on the Public Service Commission to prepare a merit list of qualifying candidates according to aggregate marks in the written papers and viva voce. Rule 8 does not talk about any minimum marks to be obtained in the viva voce.
21. The large number of judgments referred to by Mr. Bal, learned counsel for the petitioners and Mr. G.P.Singh, learned State Counsel, are to the effect that in terms of Article 234 of the Constitution, the Rules for appointment to the judicial service is to be made by the Governor of the State after consultation with the State Public Service Commission and the High Court. The statutory Rules i.e. Punjab Civil Services (Judicial Branch) Rules, 1951 are framed in accordance with Article 234 of the Constitution. The argument is that the decision of the High Court as conveyed on 08.11.1998 determines the marks required in the aggregate of written test and viva voce. Thus, under the garb of higher standard to maintain efficiency in the judicial service, the decision of the High Court cannot be given effect to unless such decision is consented to by the State. It is argued that even in the absence of amendment of Rules, the executive instructions to supplement the Rules can be issued only in the manner contemplated by Article 234 of the Constitution. It Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 16 CWP No.4277 of 2000 is argued that though the decision of the High Court has to be given due regard, but the State Government cannot be ignored while issuing any instructions supplementing the statutory Rules to fix higher standards unilaterally. It is argued that the State Government on 01.12.1999 communicated to the High Court that condition of obtaining 50% marks in the aggregate of written examination and the viva voce cannot be given effect without amending the Rules after mutual consultation. The then Home Secretary inter-alia stated as under:
"3. In view of the above statutory provision, I feel that the administrative decision taken by the Hon'ble Judges cannot be implemented without amending the Rules after mutual consultations. Any amendment of the Rules ibid would have prospective effect. Therefore, if at this stage appointment is declined to any candidate on the basis of the Administration decision taken by the Hon'ble Judges, it can lead to unwarranted litigation. Requisite documents i.e. Medical Fitness Certificates and Character Verification Reports have already been forwarded to you.
4. In the meanwhile, I shall be grateful if the High Court registers the names of the candidates in the relevant Register, who have secured more than 50% marks and the recommendations of the High Court may be sent and the recommendations of the High Court may be sent to this Department so that the appointments of the candidates can be made. The inter-se-seniority of the Scheduled Caste candidates shall be determined later on subject to final decision in this matter."
22. As a matter of fact, it may be noticed that in the Gazette notification, the Public Service Commission has recommended 21 candidates for appointment out which 3 candidates i.e. present petitioners have obtained more than 45% marks in the aggregate of written examination and viva voce, but less than 50% marks in such aggregate. Such candidates are the junior- most in the list of selected candidates. In terms of the said communication, the names of 18 candidates other than the petitioners were entered in the High Court Register and offered appointment.
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23. Another communication dated 22.12.1999 was received by the High Court, wherein the Home Secretary again requested that the names of the candidate be entered in the High Court register. It was also pointed out that for future recruitment, necessary amendment in the relevant provisions of Rules will be made. The relevant extract from the communication dated 22.12.1999 reads as under:
"2. ......In case of remaining 3 candidates, 2 of whom belong to Scheduled Caste and 1 to Backward Classes category whose names have been duly recommended by the Punjab Public Service Commission may be considered and their names may be entered in the High Court Register, otherwise it will lead to un-warranted litigation. For future recruitment, necessary amendment in the relevant provisions of Rules will be made and the Punjab Public Service Commission will be asked not to send the recommendations of those candidates who have secured less than 50% marks and belong to SC/BC category."
24. It was on 07.02.2001, another communication was received from the then Home Secretary, Punjab Government on the premise that the Rules contemplate that the candidates belonging to reserved category shall be eligible to be appointed if they secure above 45% marks in the aggregate of written examination and viva voce. The communication also records that an administration decision has been taken in pursuance of the order passed in Rakesh Kumar Sharma's case (supra), but the said writ petition is from the general category candidates and, therefore, the decision would be applicable only to the general category candidates. It was observed as under:
"I am to refer to your letter No.528/GAZ I/VI E 34, dated 26.08.2000 vide which the candidature of Ms. Parveen Bali has not been approved for making her appointment to the post of PCS (JB) in view of your administrative order dated 08.11.1998 as she has secured marks less than 50% and above 45% in the Examination and viva-voce of PCS (JB). According to P.C.S.(JB) (First amendment) Rules, 1991 candidates belonging to reserved category shall be eligible to be appointed as Judicial Officer if they secure marks above 45% in the written examination and viva voce.Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 18 CWP No.4277 of 2000
xxx xxx xxx
4. In view of the position given above, I am to request you to kindly reconsider your administrative decision dated 08.11.1998 especially with regard to reserve category candidates otherwise the reservation provided to them under Punjab Govt. instructions cannot be achieved. If rules are to be amended at all through mutual consent that would have prospective effect whereas denying the appointments to the reserve category candidates contrary to the provision of the Rules would lead to un-warranted litigation. It is, therefore, once again requested that the reserved category candidates recommended by the PPSC may be allowed appointment as PCS (JB). The matter may kindly be looked into on priority basis."
25. We have heard learned counsel for the parties. We find that the communication dated 08.11.1998 has not been correctly appreciated by the State Government. The said communication deals with the appointment of candidates falling in Part-D of the Rules and not as part of the process of examination contained in the Part-C of the Rules, as is sought to be argued by the petitioners supported by the learned counsel for the State Government. As per the scheme of the Rules, the names of successful candidates are required to be recommended to the High Court for entry into the High Court Register as per Rule 1 of Part-D. It is Rule 7 of Part-D, which empowers the High Court to fill a vacancy - permanent, temporary or officiating, after making selection from the High Court Register in the order in which the names have been entered in the Register under Rule 1. The names of the selected candidates have to be recommended by the High Court to the Government for appointment.
26. In State of Haryana Vs. Subash Chander Marwaha 1974 (3) SCC 220 in respect of State of Haryana, the candidates who have obtained 55% marks were appointed in view of the State Government, which view was shared by the High Court previously in the interest of maintaining high standards of judicial competence. Such condition was challenged on the Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 19 CWP No.4277 of 2000 ground that the State Government was not entitled to impose a new standard of 55% of marks for selection as the rule provided for a minimum of 45%. The Court considering Rule 1 in Part-D, held to the following effect:
"5. It is contended on behalf of the appellant that the above finding against the State was erroneous. The submission was that under the rules the minimum of 45% was an element to be considered for the eligibility of a candidate for selection and that while making the actual appointment by selection the State Government, in the interest of maintaining high-standards of judicial competence, were not prevented from fixing a minimum standard of a score of 55% marks, especially, as that was the view of the High Court also previously intimated to them. In our view that submission is correct.
xxx xxx xxx
8. This will clearly go to show that the High Court itself had recommended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate Judges and the Haryana Government in the interest of maintaining high-standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.
xxx xxx xxx
12. .....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 more eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who got less than 55% have no right to claim that the selections be made of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C."Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 20 CWP No.4277 of 2000
27. Later, while examining Parts-C & D of the Rules, the Supreme Court in Neelima Shangla Vs. State of Haryana, (1986) 4 SCC 268 held that it is open to the State Government and the High Court not to make appointment, even if the name of the candidate has been recommended for entry into High Court register. The Court held as under:
"2. .......Therefore, it appears that the duty of the Public Service Commission is confined to holding the written examination, holding the viva voce test and arranging the order of merit according to marks among the candidates who have qualified as a result of the written and the viva voce tests. Thereafter the Public Service Commission is required to publish the result in the gazette and, apparently, to make the result available to the government. The Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the names of any qualified candidates. 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 from the names entered in that Register also strictly in the same order. It is, of course, open to the government not to fill up all the vacancies for a valid reason. The government and the High Court may, for example, decide that, though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks...."
(...Emphasis Supplied)
28. The judgments of the Division Bench in Anshul Kakkar's and Rakesh Kumar Sharma's cases (supra), are to the effect that even if the names of the candidates are entered in the High Court Register, it is open to the High Court not to recommend the candidates for appointment "for any valid reason". The State Government has sought an opinion of this Court on 02.04.1997 as to whether the names of the candidates, who have obtained less than 50% marks in the written test and viva-voce, are required to be entered in the Register concerned. The said communication of the State Government is in the context Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 21 CWP No.4277 of 2000 of the entry of the names in the High Court Register, yet the opinion of the Committee was relating to appointment. The decision of this Court is in the context of right to seek appointment even if a candidate has not obtained 50% marks in aggregate of written papers and viva voce even if the names of such candidates were to be brought on the High Court Register. Therefore, the opinion of the Sub-Committee, as approved by the Full Court was in respect of the right of a candidate to seek appointment in terms of Part-D of the Register. The recommendation is also that the candidate, who had secured less than 50% marks in the aggregate of the written examination and the viva-voce, may not be 'appointed' to the State Public Service, unless there are very compelling reasons to lower the standard. The said reason cannot be said to be arbitrary, irrational or invalid. Such decision falls within the jurisdiction of the High Court.
29. The argument then raised is that the candidates belonging to the reserved category cannot be treated at par with the general category candidates.
30. We do not find any merit in the said argument that the Scheduled Castes or the Backward Classes candidates cannot be treated at par with the General Category candidates inter-alia for the reason that the sub-committee has considered the condition of 50% marks even in respect of Backward Class candidates. As per Rule 7 of Part-C, the candidates belonging to the Scheduled Castes and Backward Classes are required to obtain 45% marks in aggregate in the written examinations to be called for viva-voce. The decision taken by the Sub-Committee and communicated to the State Government applies to the candidates of all the categories and is not restricted to the General Category candidates. The marks fixed for making a candidate eligible for vivo voce widens the zone of consideration. It does not mean that a candidate, who has obtained 45% marks, is required to be appointed. The stage of appointment is Kumar Vimal to come later after viva voce.
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31. The decision of this Court not to appoint the candidates, who have obtained less than 50% marks in aggregate of the written examinations and viva-voce, is applicable at the stage of appointment after the examination process is complete. Such decision is to ensure efficiency and quality decision making process so as to maintain integrity of the Judiciary as a pillar of Indian democracy. The decision of this Court is dated 15.10.1988, though the ministerial part of the communication was performed on 08.11.1998. The decision was before the last date of expiry of the receipt of the applications, which was 05.11.1998. The advertisement (Annexure P-1) does not refer to any condition for qualifying the examination or the condition for entry into High Court register nor there is any reference to the Rules applicable.
32. The argument that it is highly improbable for a Scheduled Castes category candidate to obtain 50% marks in the aggregate of the written examination and the viva-voce, cannot be accepted for the reason that few of the candidates of the reserved categories have obtained such marks and they have, in fact, been appointed. The distinction between the qualification of examinations in terms of the Part-C of the Rules and right to seek appointment in terms of Part-D of the Rules was not brought to the notice of some of the earlier Division Benches of this Court. Such distinction was noticed by the Hon'ble Supreme Court in Subhash Chander Marwaha's and Neelima Shangla's cases (supra) and by this court in Anshul Kakkar's and Rakesh Kumar Sharma's cases (supra).
33. In fact, in a recent order dated 28.03.2013 reported as Tej Prakash Pathak and others vs. Rajasthan High Court and others, (2013)4 SCC 540, a three-Judge Bench judgment of the Hon'ble Supreme Court has referred the matter to the Larger Bench for the reason that the decision in Subhash Chander Marwaha's case (supra) was not brought to the notice of the Hon'ble Supreme Kumar Vimal Court in P.K. Ramachandra Iyer and others Vs. Union of India and others, 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 23 CWP No.4277 of 2000 (1984) 2 SCC 141; Umesh Chandra Shukla Vs. Union of India and others, (1985) 3 SCC 721 and Durgacharan Misra Vs. State of Orissa and others, (1987) 4 SCC 646. In view of the said fact, the question; whether the change sought is more rigorous scrutiny for selection after the selection process has started is pending an authoritative pronouncement of the Larger Bench, though in the present case, such question does not arise.
34. Thus, it cannot be said that the rules of the game have been changed after the game started. Even the State Government was informed, though not required, on 08.11.1998, soon after the last date of receipt of the application came to an end on 05.11.1998. Such decision is not tailor made, but is to ensure efficiency in the administration of justice. Thus, there is no change in the rules of game.
Question No.2:
35. Rule 8 of Part-C is silent in respect of the percentage of aggregate marks required to be obtained in the written examinations and viva-voce. It is not disputed that the Rule Making Authority can supplement Statutory Rules though cannot supplant the same. That is the correct proposition of law as well. Therefore, the Rule Making Authority is competent to fix the percentage of marks required to qualify the examination in the absence of any such condition in the Rules. The question to be examined is that; which is the competent Rule Making Authority, who can fix the percentage of the marks required to be obtained by the candidates for qualifying the examinations.
36. Learned counsel for the petitioners sought to distinguish the Supreme Court judgment in K.H. Siraj Vs. High Court of Kerala and others, (2006) 6 SCC 395. In the aforesaid case, as per Kerala Judicial Service Rules, 1991, the High Court was competent to prepare a list of the candidates considered suitable for appointment. Therefore, the decision to fix higher Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 24 CWP No.4277 of 2000 standards for appointment was held to be within the jurisdiction of the High Court alone. It is argued that the Rules in question do not empower the High Court to determine the suitability criteria. We do not find any merit in the argument raised. The following observation is relevant in respect of the role of the High Court:
"Thus, it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe bench marks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the Rule with a view to implement them by prescribing relevant standards in the advertisement for selection."
37. The Constitution Bench in State of Bihar Vs. Bal Mukund Shah (2000) 4 SCC 640, held that a very responsible and onerous duty is cast on the High Court under the Constitutional scheme to ensure independence of judiciary. It has been given a prime and paramount position in this matter, with the necessity of choosing the best available talent for manning the subordinate judiciary. In the aforesaid case, the reservation was sought to be made to the posts of the Judicial Officers of the State without consulting High Court. Such statutory reservation was challenged, inter-alia, on the ground that the reservation in Rules promulgated in terms of proviso to Article 309 of the constitution has to satisfy other constitutional provisions such as Article 234/235 of the Constitution.
38. The Court held that the consultation with the High Court as envisaged by Article 234 is for fructifying the Constitutional mandate of preserving the independence of Judiciary, which is its basic structure. The advice which in the process of consultation can be tendered by the Public Service Commission is confined to the Constitutional requirements of Article Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 25 CWP No.4277 of 2000
320. They are entirely different from the nature of consultation and advice to be solicited from the High Court which is having full control over Subordinate Judiciary under Article 235 of the Constitution and is directly concerned with the drafting of efficient judicial appointments so that appropriate material will be available to it through the process of selection both at the grass-root level and at the apex level of the District Judiciary. It was observed as under:
"53. .....The advice which in the process of consultation can be tendered by the Public Service Commission will confine itself to the Constitutional requirements of Article 320. They are entirely different from the nature of consultation and advice to be solicited from the High Court which is having full control over Subordinate Judiciary under Article 235 of the Constitution and is directly concerned with the drafting of efficient judicial appointments so that appropriate material will be available to it through the process of selection both at the grass-root level and at the apex level of the District Judiciary. Consultation, keeping in view the role of the High Court under Article 234 read with Article 235, stands on an entirely different footing as compared to the consultation with the Public Service Commission which has to discharge its functions of entirely different type as envisaged by Article 320 of the Constitution.
54. Naturally, therefore, consultation with the High Court will have a direct linkage with the policy decision as to how many posts should be advertised, what are the felt needs of District Judiciary and whether there can be any reservation which can be permitted to be engrafted in the Rules framed by the Governor consistent with the maintenance of efficiency of judicial administration in the State."
39. It is for the High Court to determine the subjects and the syllabus for the examinations which are also liable to alternation from year to year in the Rules in question. The viva-voce is the sixth paper of the syllabus contemplated by Rule 9 of the Part-C to judge the personal qualities of the candidates. Thus the scheme of examination including syllabus is to be prescribed by the High Court alone. Therefore, the fixation of the qualifying marks would fall within the jurisdiction of the High Court as per the judgment in K.H. Siraj's case (supra).
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40. Still further, the reasoning given by the State Government in the communication dated 1.12.1999, is that this administrative decision would be prospective and cannot be implemented without amending the Rules. There is no reservation in the said communication that the condition of obtaining 50% marks in aggregate of the written examinations and viva voce is not acceptable to the State Government for any reason. In the second communication dated 22.12.1999, it was communicated that the necessary amendments in the relevant provisions would be made for future requirements while recommending the names of 18 candidates for entry in the High Court Register. But till the time of hearing of the reference, the Rules have not been amended. In the communication dated 07.02.2001, it was communicated that the decision of the High Court in respect of condition of obtaining 50% marks in the aggregate of the written test and viva voce is in respect of the general category candidates. The said communication is based on incorrect facts so much so it is observed that the requirement of 45% marks in the written examinations and viva voce is the condition for the reserved category candidates. The rules do not provide of such condition. Had, it been so, then obviously, the High Court could not have prescribed different percentage of marks then contemplated by the Rules. Still further, it was on 02.04.1997, the State had forwarded the representation of the candidates, who had obtained less than 50% marks in the aggregate of the written examinations and viva voce and sought opinion of this Court for entry of their names in the High Court Register. Therefore, the decision of this Court on 08.11.1998 is part of the consultation process undertaken between the State Government and the High Court.
41. In terms of Bal Mukund Shah's case (supra), the High Court is to consider the suitability of the candidates for appointment. In the absence of any Kumar Vimal unequivocal denial to obtain the minimum percentage of marks for 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 27 CWP No.4277 of 2000 appointment by the State Government, the High Court was within its jurisdiction to lay down the condition that the candidate must obtain 50% marks in aggregate of the written examination and viva voce before he can be said to have qualified the examinations.
42. Article 16(4) of the Constitution provides for reservation for the candidates belonging to the Scheduled Castes category, but to what extent, the percentage of marks are required to be obtained by such candidates in order to maintain efficiency in the service, lies within the domain of the competent authorities. The correctness of the judgments, relied upon the learned counsel for the petitioner i.e. in Manushree and Tej Prakash Pathak's cases (supra), has been doubted and a reference has been made to the Larger Bench. Therefore, the judgments referred to by the learned counsel for the petitioner, while interpreting the Rules in question such as Subhash Chander Marwaha's and Neelima Shangla's cases (supra), are the binding judgments on this Court. In the face of such judgments, the reliance of the petitioner on the other judgments, the correctness of which itself is doubted, does not merit consideration. Thus, the communication of this court on 08.11.1998 has been issued after the consultation process was undertaken. It would, thus, be deemed to be on behalf of the Rule Making Authority.
43. Apart from the reasons recorded above, we find that though the present petition was preferred by three petitioners, but during the course of arguments, Shri Bal submitted that he has no instructions to appear on behalf of petitioner No.1. Shri Bhardwaj, learned counsel representing the High Court, points out that in fact, petitioner No.1 appeared in a limited examination conducted for the candidates, who applied in the years 1998, 1999, 2000, 2001 and was successful. He is working as a Judicial Officer. The resultant vacancies for the reason of not offering appointments to the petitioners or other Kumar Vimal similarly situated candidates must have been taken into consideration in the 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh 28 CWP No.4277 of 2000 subsequent selection processes in the last more than 15 years. Any concession at this stage, would be detrimental to the administration of justice, apart from the fact that the date of deemed appointment shall be a debatable issue in view of the judgment of the Supreme Court in High Court of Punjab & Haryana' case (supra), whereby the candidates of the 1998 batch were given seniority after the candidates, who joined in the year 2007.
44. Thus, we find that in view of the communication dated 08.11.1998, a candidate cannot seek appointment to the State Judicial Service, if he obtains less than 50% marks in aggregate of the written examination and viva voce.
45. In view of the above opinion on questions No.1 and 2, we do not think it necessary to answer the other questions referred to the Larger Bench at this stage.
46. The matter be now placed before the Bench as per roster for decision of the writ petition on merits.
(HEMANT GUPTA) JUDGE (MAHESH GROVER) JUDGE (JASWANT SINGH) JUDGE (DAYA CHAUDHARY) JUDGE January 23, 2014 (FATEH DEEP SINGH) ds/Vimal JUDGE Kumar Vimal 2014.02.26 13:49 I attest to the accuracy and integrity of this document Chandigarh