Jharkhand High Court
Chandrika Ram And Ors vs Personnel And Adminis Reform on 6 February, 2014
Author: R.Banumathi
Bench: Chief Justice, R.R.Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S)No. 7098 of 2013
Chandrika Ram & Others ... Petitioner
Vs.
The State of Jharkhand &Ors. ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE R.R.PRASAD
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For the Petitioners : Mr. Anil Kumar Sinha, Senior Advocate
Mr. Indrajit Sinha, Advocate.
For the Respondent Nos. 1 & 2 :Mr. Rajesh Kumar, G.A.
For the Respondent No. 3 : Mr. Ajit Kumar, Advocate
For the Respondent Nos. 4, 6, 12, : M/s. Rajiv Ranjan, Vishal Kumar Trivedi,
13, 14, 17, 20, 21, 22& 23 Shresth Gautam, Advocates.
For the Respondent Nos. 7,8,10
& 19 : M/s. Rajendra Krishna and Amit Sinha
For the Respondent Nos. 5, 9, 11,
15, 16, 25 and 26 : M/s Anil Kumar & A.K.Singh, Advocates
For the Respondent Nos. 18&24 : M/s. Manoj Tandon, Shiv Shankar Kumar
Ms. Kumari Rashmi, Advocates
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CAV on 29thof January, 2014 Pronounced on 6th of February, 2014
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R. Banumathi, C.J.
&
R.R.Prasad, J. Challenging the selection and promotion of
respondent Nos.4 to 26 as District and Additional Sessions Judges
(as against 65% quota), the petitioners, most of whom are seniors to
respondent Nos.4 to 26, have filed this writ petition. The petitioners
have also challenged the vires of Rules 4(b) and 5 of the Jharkhand
Superior Judicial Service (Recruitment, Appointment and Conditions
of Service) Rules, 2001 as unconstitutional and also seek for
quashing the Notification Nos. 9853 to 9875 dated 08.10.2013
promoting respondent Nos.4 to 26.
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2. Facts in brief which led to the filing of this writ petition
are as follows:-
The petitioners and respondent Nos. 4 to 26 are the Civil
Judges (Senior Division) in the Judicial Service of the State of
Jharkhand. Recruitment, Appointment and Conditions of Service in
respect of Jharkhand Higher Judicial Service is governed by
Jharkhand Superior Judicial Service (Recruitment, Appointment
and Conditions of Service) Rules, 2001, as amended in 2008. The
Rules applicable for promotion by way of appointment to the post of
Superior Judicial Service interalia provided that 65% shall be filled
by promotion among the Civil Judge Senior Division (Sub-Judges) on
the basis of merit-cum-seniority and subject to passing of suitability
test as may from time to time be prescribed by the High Court. 10%
shall be filled strictly on the basis of merit through Limited
Competitive Examination of Civil Judge (Senior Division) having not
less than five years of service and also having due regard to service
records in the past. Remaining 25% shall be filled in by direct
recruitment from the Bar on the basis of written test and viva voce
conducted by the High Court.
3. The Jharkhand High Court issued a notification No.
102/A dated 22.03.2012 (Annexure-3) notifying 64 vacancies in the
post of District and Additional Sessions Judge which are to be filled
up by way of promotion from Civil Judge (Senior Division) on the
basis of merit-cum-seniority (as against 65% quota) under the
amended Rules 4(b) and 5(i) and (iv) of Jharkhand Superior Judicial
Service (Recruitment, Appointment and Conditions of Service) Rules,
2001 (for short the „Rules‟). Vide Reference No. 8383/Apptt. dated
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19.06.2012(Annexure-4), Jharkhand High Court published the list of 93 Civil Judges (Senior Division) eligible for consideration of promotion to the post of District and Additional Sessions Judge. Altogether 93 candidates appeared in interview conducted on 22 nd, 23rd and 24th of June, 2012. As per Rule 5(iv), the suitability test as provided in Clause (i) of Rule 5 shall consist of interview comprising 50 marks and suitability on the basis of service profile of last ten years comprising 50 marks. The Selection Committee conducted the interview and recommended the name of 53 candidates who have passed their suitability test. The writ petitioners did not pass the suitability test. The Jharkhand High Court, in its administrative side, took decision to give promotion to 28 officers and recommended their names vide letter No. 9593/Apptt. dated 17.07.2012 (Annexure-5) and the same was forwarded to the State Government. On the basis of recommendation of the Jharkhand High Court, State of Jharkhand promoted 28 Civil Judges (Senior Division) to the post of District and Additional Sessions Judge and accordingly, those 28 officers have already been promoted and posted as District and Additional Sessions Judge in different courts since October, 2012. In respect of others (i.e. respondent Nos.4 to
26), who have passed the suitability test, the High Court resolved that the same shall be considered in due course.
4. Thereafter in the administrative side, the High Court of Jharkhand took decision and recommended names of 23 officers (respondent Nos. 4 to 26) for promotion to the post of District and Additional Sessions Judge vide impugned letter No. 9353/Apptt. dated 06.09.2013 (Annexure-6) and the same was forwarded to the 4 State Government. Upon the recommendation of the High Court of Jharkhand, respondent Nos. 4 to 26 were promoted to the post of District and Additional Sessions Judge vide Notification No. 9853 to 9875 as contained in Memo dated 08.10.2013 (Annexure-7).
5. Aggrieved by the recommendation made by the High Court, the petitioner Nos. 1 to 23 moved the Hon‟ble Supreme Court by filing I.A. No.123/2013 in Civil Appeal No.1867 of 2006 in Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others case. The Hon‟ble Supreme Court vide its order dated 18.11.2013 dismissed I.A. No.123/2013 expressing the view that the petitioners have to agitate their grievances before the High Court of Jharkhand by filing appropriate application. Hence, this writ petition has been filed contending that Rule 4(b) read with Rule 5(i) and (iv) of the Rules are arbitrary and contrary to the directions of the Hon‟ble Supreme Court given in the case of Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 530 and also to the extent it attaches 50% weightage to the interview. The petitioners interalia challenge the promotion of the private respondents on the ground that fixing 40% marks as qualifying marks is dehors the provision as contained in Rule 5(iv) of the Rules and in gross derogation of the directions of the Hon‟ble Supreme Court.
6. On notice, the State of Jharkhand and High Court of Jharkhand filed their counter affidavit. The private respondent Nos.4 to 26 have also filed their counter affidavits.
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7. We have heard Mr. Anil Kumar Sinha, Senior counsel appearing for the petitioners, Mr. Rajesh Kumar, G.A. appearing for the respondent-State of Jharkhand, Mr. Ajit Kumar, learned counsel appearing for the respondent Jharkhand High Court and Mr. Rajiv Ranjan, Mr. Rajendra Krishna, Mr. Manoj Tandon and Mr. Anil Kumar, learned counsels appearing for the private respondents.
8. Learned Senior counsel for the petitioners contended that Rule 5(iv) of the Jharkhand Superior Judicial Service Rules, 2001 (as amended in 2008 and 2011) which provides allocation of 50 marks, out of 100 i.e., 50% of the total marks to interview, cannot be justified as the same is highly excessive. It was further submitted that the Selection Committee had decided to impose qualifying marks 40% only after the vacancies were notified and the impugned Rule 5(iv) does not provide for fixing qualifying marks. Contention of the petitioners is that in the absence of an enabling provision for fixation of minimum qualifying marks, after the vacancies were notified and selection process commenced, would amount to amending the Rules itself. It was also submitted that fixing 40% minimum qualifying marks was impermissible. The learned Senior counsel urged that since the fixation of 40% minimum qualifying marks was not informed to the candidates, the question of acquiescence would not arise merely because of participation of the petitioners in the test.
9. Mr. Ajit Kumar, the learned Additional Advocate General, appearing for the High Court of Jharkhand-3rd respondent, submitted that Rules 4(b) and 5(i) and (iv) of the Jharkhand Superior Judicial Service Rules is not repugnant to the direction of 6 the Hon‟ble Supreme Court. It was submitted that the break-up marks allocated to interview was 50 marks, service profile 40 marks and length of service 10 marks and evidently the service aspect of the candidates including their service profiles were given due consideration in making recommendation for promotion and the recommendation for the post was made on the basis of suitability test adjudged on the basis of marks obtained by them in the personal interview as well as marks allotted to them on the basis of their service profile and length of service in Sub-Judge cadre. The learned counsel contended that the petitioners, who participated in the suitability test which was conducted as per the Rules and the decision of the Selection Committee and having failed to secure the minimum marks in the suitability test, are not entitled to challenge the promotion of the respondent Nos. 4 to 26. The learned counsel submitted that the petitioners have taken stand on wrong footing in comparing the two processes of Limited Competitive Examination which is purely based on the merit and 65% promotion which is based on the merit-cum-seniority.
10. The learned counsel has taken us through the judgment in All India Judges' Association and Others v. Union of India and Others, (2002) 4 SCC 247 and also placed reliance upon Syed T.A. Naqshbandi and others v. State of Jammu & Kashmir and others, (2003) 9 SCC 592, Rajasthan Judicial Service Officers' Association v. State of Rajasthan and Another, (2009) 14 SCC 656, Manish Kumar Shahi v. State of Bihar and Others, (2010) 12 SCC 576, K.A.Nagmani v. Indian Airlines and Others, (2009) 5 SCC 515 and Ashok Tanwar 7 and Another v. State of H.P. and others, (2005) 2 SCC 104 and various other decisions.
11. Mr. Rajiv Ranjan, the learned counsel appearing for the respondent Nos. 4, 6, 12, 13, 14, 17, 20, 21, 22 and 23submitted that recommendation of the Selection Committee cannot be challenged except on the ground of malafide and serious violation of the Rules and the Court cannot sit as an appellate authority to examine the process of the Selection Committee. Placing reliance upon K.Nagmani v. Indian Airlines and Others, (2009) 5 SCC 515, the learned counsel submitted that in K.Nagmani's case, 50% marks for interview and 50% for confidential report was made criteria for selection which was upheld by the Hon‟ble Supreme Court. Mr. Rajiv Ranjan interalia submitted that the service profile has been assessed on the basis of the quality of the judgment, ACR assessment and length of service. 40 marks allocated for service profile and 50 marks allocated for the interview is in accordance with Rule 5(i) read with Rule 5(iv) and the petitioners, who participated in the selection process, having been unsuccessful, cannot turnaround and challenge the selection process. The learned counsel also placed reliance upon All India Judges' Association and Others v. Union of India and Others, (2002) 4 SCC 247 and other decisions.
12. Mr. Rajendra Krishna, the learned counsel appearing for the respondent Nos. 7, 8, 10 and 19 submitted that the minimum qualifying marks i.e. 40% of the aggregate marks of the written test and interview fixed by the Selection Committee is in consonance with the law and the rules and fixing of 40% as qualifying marks in aggregate for promotion is not dehors the Jharkhand Superior 8 Judicial Service Rules, 2001 since the fixation of the minimum qualifying marks is inherent in the Rules. The learned counsel submitted that the respondents have been notified by Notification dated 08.10.2013 and therefore, substantive right has been created in favour of the concerned respondents and the said substantive right cannot be taken away by declaring any provision of Rules unconstitutional. In support of his contention, the learned counsel placed reliance upon K.H.Siraj v. High Court of Kerala and Others, (2006) 6 SCC 395 and Lila Dhar v. State of Rajasthan &Ors., AIR 1981 SC 1777.
13. Reiterating the above submissions, Mr. Anil Kumar, learned counsel appearing for respondent Nos.5, 9, 11, 15, 16, 25 and 26, submitted that the Selection Committee is empowered to prescribe the norms/procedures by prescribing minimum qualifying marks as 40%. In support of his contention, he has placed reliance on the decision rendered in the case of K.Manjusree v. State of Andhra Pradesh and Another, (2008) 3 SCC 512.
14. Mr. Manoj Tandon, the learned counsel appearing for respondent Nos. 18 and 24 submitted that Rules 4(b) and 5 are not ultra vires and the petitioners have not shown as to how Rules 4(b) and 5 are in violation of Articles 14 and 21 of the Constitution of India. The learned counsel submitted that "to be considered for promotion" is a right and the petitioners were duly considered for promotion and the petitioners were duly considered for promotion and the petitioners having participated in the selection process cannot turnaround and challenge the vires of the Rules. 9
15. We have considered the submissions and also the materials on record. We have also perused the Jharkhand Superior Judicial Service Rules, 2001.
16. The Jharkhand Superior Judicial Service Rules, 2001 originally provided for 67% by promotion from the Civil Judges (Senior Division) and 33% by direct recruitment. In All India Judges' Association and Others v. Union of India and Others, (2002) 4 SCC 247, in para No.28, the Hon‟ble Supreme Court held as under :-
28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be:
(1)(a) 50 percent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-
seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High Courts as early as possible."
17. In compliance of the direction in All India Judges' Association's case, the Jharkhand Superior Judicial Service Rules, 2001 was amended vide Notification No. 4544 dated 20th August, 2004 providing:-
(i) 50 percent to be filled by promotion from amongst the Sub-Judges on the basis of merit-cum-seniority and passing a suitability test as may from time to time be prescribed by the High Court;10
(ii) 25 per cent to be filled by promotion strictly on the basis of merit through limited competitive examination of Sub-
Judges having not less than five years service and also having due regard to his service record in the past;
(iii) 25 per cent to be filled by direct recruitment from the Bar on the basis of written test and viva voce conducted by the High Court.
Again the Rule was amended vide Notification No. 1507 dated 14.03.2008 amending Rule 5 and adding Clause (iv) stipulating suitability test which consists of interview comprising 50 marks and suitability on the basis of service profile of last 10 years comprising 50 marks. Rule 5(v) was also added stipulating the mode of conducting examination for the 25% Limited Competitive Examination.
18. In All India Judges' Association and Others v. Union of India, (2010) 15 SCC 170, the Hon‟ble Supreme Court directed that 25% for limited competitive examination be reduced to 10%. Accordingly, the Jharkhand Superior Judicial Service Rules, 2001 was again amended vide Notification No. 7974 dated 14.12.2011.
19. 64 vacancies were notified as against 65% quota of promotion of Civil Judge (Senior Division) on the basis of merit-cum- seniority and suitability test vide Notification dated 22nd March, 2012. The total marks allocated to different segments, as provided under Rule 5(iv) of the Rules, are (i) Interview 50 marks, (ii) Service Profile 40 marks and Length of service 10 marks, totalling 100 marks.
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20. The list of various dates and events in the selection process is as under :-
22.03.2012 The Jharkhand High Court (JHC) notified 64 vacancies for promotion to the post of District Judge.
12.04.2012 Meeting of Appointment Committee of JHC resolving that the earlier procedure will be followed. 40% was decided to be the qualifying marks.
19.06.2012 List of eligible candidates 93 in number was published by the Jharkhand High Court.
22nd, 23rd, Interview held for the 93 eligible candidates.
24th June,
2012
The Selection Committee recommended names of
53 candidates who had obtained more than 40% for
being promoted.
12.07.2012 Standing Committee of the JHC decided to give
promotion to only 28 officers for the time being. 17.07.2012 JHC recommended names of 28 officers for promotion to the State Government.
27.09.2012 The State Government Notification appointing the 28 officers, whose names were recommended by the JHC and in October, 2013 those 28 officers were appointed as District and Additional Sessions Judge and functioning as District Judge.
06.09.2013 The JHC recommended the names of Respondent Nos. 4 to 26 for promotion to the post of District and Additional Sessions Judge.
16.09.2013 The petitioners filed I.A. No. 123 of 2013 in Civil Appeal No. 1867 of 2006, interalia, for modification of the recommendation dated 06.09.2013.
23.09.2013 The Hon‟ble Supreme Court issued notices in I.A. No. 123/2013 and orally directed to stay further steps. 08.10.2013 State Government issued notification promoting Respondent Nos. 4-26.
23.10.2013 Reply Affidavit on behalf of JHC in I.A. No. 123 of 2013 in Civil Appeal No. 1867/2006.
JHC in its reply affidavit in I.A. No. 123/2013 at para 12 16 stated that the oral stay was honoured and matter was kept in abeyance.
18.11.2013 Hon‟ble Supreme Court passed the following order:
"On going through the details mentioned in I.A. No. 123 filed in Civil Appeal No. 1867 of 2006, we are of the view that the applicants have to agitate their grievance before the High Court by filling appropriate petition. With the above observation, I.A. No. 123 for permission to file intervention, as well as application for direction are dismissed."
21. The 64 vacancies so notified on 22nd March, 2012, are governed by the Jharkhand Superior Judicial Service Rules, 2001 (as amended in 2008 and 2011).To appreciate the contention, we may usefully refer to Rules 4(b) and 5 of the Jharkhand Superior Judicial Service Rules, 2001, which are as under :-
"4. APPOINTMENT TO THE SERVICE : Appointment to the service, which shall in the first instance ordinarily be to the post of Additional District Judge, shall be made by the Governor, in consultation with High Court.
(a) by direct recruitment of persons as recommended by the High Court for such appointment under clause (2) of Article 233 of the Constitution of India;
(b) by promotion from amongst the Sub-Judges (Civil Judge, Senior Division) on the basis of merit-cum-seniority and passing a suitability test and
(c) by promotion on the basis of Limited Competitive Examination of Sub Judges (Civil Judge, Senior Division) having not less than 5 years service in the same cadre.
5. Of the total post in the cadre of service:-
(i) 65% shall be filled in by promotion from amongst the Sub-Judges (Civil Judge, Senior Division) on the basis of merit-cum-seniority and passing a suitability test as may from time to time be prescribed by the High Court.
(ii) 10% shall be filled in by promotion (by way of selection) strictly on the basis of merit through a limited competitive examination of Sub-
Judges (Civil Judge, Senior Division) having not less than 5 years service and also having due regard to his service records in the past.
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Provided, if candidates are not available for 10% quota, or are not able to qualify in the examination, then vacant post shall be filled up by regular promotion.
(iii) 25% shall be filled in by direct recruitment from the Bar on the basis of written test and viva-voce conducted by the High Court.
(iv) The suitability test as provided in clause (i) above shall consist of interview comprising 50 marks and suitability on the basis of service profile of last 10 years comprising 50 marks.
Provided that in determining the inter-se-merit, the service rendered in the cadre shall be taken into consideration and one mark shall be allotted for each year of Service in the same cadre. However, the inter-se-seniority of such suitable candidates shall be determined in terms of Rule 8(b) of this Rule.
(v) The Limited competitive Examination as provided in clause (ii) above shall consists of written test and viva-voce test. The written test shall be subjective in nature comprising four parts i.e. questions based on (i) civil, (ii) criminal, (iii) other Laws including local laws & (iv) English Language. The paper shall be 100 marks and each part shall carry 25 marks. It shall be compulsory for the candidates to attempt all the four parts. However, a candidate shall be required to obtain at least 30% marks in each part comprising 25 marks. The candidates obtaining minimum 40% marks in written test shall only be called for viva-voce test. The Viva-voce test shall carry 25 marks and a candidate obtaining minimum six marks in viva-voce test shall only be considered suitable for selection. The merit list of candidates shall be prepared on the cumulative marks obtained by the candidates in written and viva-voce test. The candidates obtaining minimum 40% marks alone shall qualify for appointment. The appointment to the posts shall be made on the basis of inter-se-merit of successful candidates against vacancies available in the cadre as provided in clause (ii) above. The Inter-se-seniority of such successful candidates after appointment will be determined in terms of Rule 8(b) of this rule."
22. Whether the requirement of securing minimum marks of 40% of the aggregate of written test and interview is dehors the Rules 5(i) read with 5(iv) vitiating the selection process :-
The amended Rule 5(i), inter alia, provides for promotion of Civil Judge, Senior Division, to the post of District Judge on the 14 basis of merit-cum-seniority on passing a suitability test as prescribed by the High Court from time to time. Rule 5(iv) provides for manner in which the suitability test as mentioned in Rule 5(i) is to be conducted. As per Rule 5(iv), 50% marks allocated for interview and 50% marks to assess the suitability on the basis of service profile. In paragraph 10 of the counter affidavit filed by the Jharkhand High Court, the break-up of marks allotted to different segment is given as (i) Interview - 50 marks, (ii) Service Profile-40 marks and (iii) Length of Service-10 marks.
23. The question falling for consideration is whether the Jharkhand Superior Judicial Service Rules, enables the High Court to fix minimum of the aggregate marks for qualifying for promotion.
24. The Selection Committee by its resolution dated 12.4.2012 has fixed 40% marks as the minimum qualifying marks. The petitioners, most of whom were seniors to respondent Nos.4 to 26, did not secure the minimum qualifying marks and their names were not recommended for promotion. The names of respondent Nos.4 to 26, most of whom are juniors to the petitioners (barring few), were recommended for promotion.
25. In para (27) of All India Judges' Association case(1) the Hon‟ble Supreme Court held that 50% (now 65%) of the total post in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. The Hon‟ble Supreme Court directed that for this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with 15 adequate knowledge of case law. Rule 5(iv) stipulates the suitability test. As per said Rule 5(iv), suitability test shall consist of interview comprising 50 marks and suitability on the basis of service profile of last 10 years and comprising 50 marks i.e. the marks allocated in different segments.
26. Rule 5(i) which provides for 65% posts to be filed in by promotion from amongst the Sub-Judges (Civil Judge, Senior Division) on the basis of merit-cum-seniority and stipulates passing of suitability test „as may from time to time be prescribed by the High Court‟. Rule 5(iv) is the suitability test prescribed by the High Court. Evidently Rule 5(iv) does not stipulate any minimum of the aggregate marks to be secured. Rule 5(iv) only stipulates the suitability test i.e. 50% marks provided for interview and 50% marks on the basis of service profile of last 10 years. Rule 5(iv) does not fix any minimum bench mark of the aggregate.
27. The statutory Rule 5(i) read with Rule 5(iv) prescribes a particular mode of suitability test. Rule 5(iv) does not provide for prescribing the minimum qualifying marks of the aggregate. Providing minimum qualifying marks of the aggregate is in a way elimination of the Judicial Officers who cannot secure minimum qualifying marks. In the absence of Rules, prescription of minimum marks of the aggregate for the purpose of elimination is bad so far as it adversely affects the officers who have put in long years of service.
28. Rule 5(v) stipulates that for limited competitive examination the written test shall comprise of four parts and each part shall carry 25 marks and it is compulsory for the candidate to 16 attempt all the four part and obtain atleast 30% marks in each part comprising 25 marks. The candidates obtaining minimum 40% marks in written test shall only be called for viva voce test. It also stipulates that viva voce test shall carry 25 marks and a candidate obtaining minimum six marks in viva voce shall only be considered suitable for selection. Rule 5(v) also stipulates that the merit list of the candidates shall be prepared on the cumulative marks obtained by the candidates in written and viva voce test and the candidates obtaining minimum 40% marks alone shall qualify for appointment. Rule 5(v) thus prescribes so many criteria prescribing minimum marks in the written test, minimum marks in viva voce test and also prescribing minimum 40% marks of the aggregate to qualify for appointment. It is significant to note that no such minimum marks is prescribed in Rule 5(i) read with Rule 5(iv). In the absence of Rules, prescribing minimum qualifying marks of 40% of the aggregate, is impermissible and vitiates the selection process.
29. On behalf of the respondents, it was contended that the petitioners participated in the selection process and were unsuccessful and by prescription of minimum qualifying marks, no prejudice was caused to the petitioners. The above contention does not merit acceptance. As pointed out earlier, out of 64 vacancies notified, only the names of 53 candidates were recommended. Only because of the minimum qualifying marks of 40% of the aggregate fixed, the petitioners could not be selected and therefore, it cannot be contended that no prejudice was caused to the petitioners.
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30. Rule 5(iv) does not provide for prescribing the minimum qualifying marks of the aggregate. When the Rule 5(iv) does not provide for minimum qualifying marks of the aggregate, selection to be made in strict adherence to the Rules. In the absence of enabling provision, fixation of minimum marks of the aggregate, would amount to amending the Rules itself. In our considered view, in the absence of Rules, prescribing minimum qualifying marks of the aggregate, vitiates the selection process.
31. Re. Contention : Fixing of minimum qualifying marks of the aggregate by the Selection Committee following the same parameters adopted by the High Court in 2010.
The respondents then contended that prescription of minimum qualifying marks 40% was well laid by the High Court in the selection process of 2010 and vide resolution dated 12.04.2012, the Selection Committee resolved to adopt the same norms/procedure as followed in the earlier Selection Committee‟s resolution dated 29.10.2010 and 03.11.2010 and Selection Committee was empowered to prescribe such minimum qualifying marks of the aggregate.
32. As pointed out earlier, for promotion of Civil Judges (Senior Division) as against 65% quota, the vacancies were notified on 22.03.2012. By the minutes of the Chief Justice, the Selection Committee was nominated and thereafter the Selection Committee had its meeting on 12.04.2012. Vide its resolution dated 12.04.2012 the Selection Committee adopted the earlier norms/procedure prescribing minimum qualifying marks of the aggregate. As against 65% quota, the vacancies on the basis of merit-cum-seniority were 18 already notified on 22.03.2012. After the selection process has started, the Selection Committee adopted the earlier resolution thereby prescribing minimum qualifying marks of the aggregate. Rule 5(iv) is silent as to the fixation of minimum qualifying marks of the aggregate. After the selection process commenced, the Selection Committee cannot prescribe the minimum standard as the qualifying marks. In Maharashtra SRTC v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51, the Hon‟ble Supreme Court held that "the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced".
33. Placing reliance upon K.Manjusree v. State of Andhra Pradesh and Another, (2008) 3 SCC 512, Mr. Anil Kumar, the learned counsel for the respondents contended that where the Rules do not prescribe any norms/procedure the Selection Committee was empowered to prescribe the minimum marks. It was submitted that only on notification of the eligible candidates i.e. on 19 th June, 2012 the selection process commenced and even before that, vide resolution dated 12.04.2012 the Selection Committee prescribed the minimum qualifying marks and having participated in the selection process, the petitioners cannot challenge the prescription of minimum qualifying marks by the Selection Committee. Manjushree's case relates to direct recruitment of 10 posts of District and Sessions Judges (Grade-II) in Andhra Pradesh State Higher Judicial Service. The Administrative Committee by its resolution decided the method and manner of selection and it resolved to conduct the written examination for the candidates for 19 written examination for 75 marks and oral examination for 25 marks. It also resolved to have the minimum qualifying marks for the viva voce. After the selection process was over, the list of candidates recommended for appointment was placed before the Full Court for its consideration. The Full Court did not agree with the select list prepared by the Interview Committee and approved by the Administrative Committee and by the resolution of the Full Court, a Sub-Committee was constituted and the Sub-Committee scaled down the marks and reduced the ratio between the written examination marks and interview marks from 3:1 to 4:1. The Hon‟ble Supreme Court, setting aside the selection process, in para (33) held as under :-
"33. ... ... ... We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
The ratio of the above decision does not advance the case of the respondents; on the other hand it only advances the case of the 20 petitioners. That is, if the Selection Committee wants to prescribe the minimum marks for the interview it should do so before the commencement of the selection process.
34. A feeble attempt was made contending that the selection process commenced only when the list of eligible 93 candidates was notified on 19.06.2012 and the Selection Committee vide its resolution dated 12.04.2012 adopted the earlier norms of securing minimum qualifying marks much prior to the commencement of selection process i.e. before the publication of list of candidates. According to the contesting private respondents, the date of publication of list of eligible candidates is the date of commencement of selection process.
35. There is no force in the contention that the selection process commenced on 19.06.2012, the date on which the list of eligible candidates was published. As pointed out earlier, as against 65% quota by promotion from Civil Judge (Senior Division) on the basis of merit-cum-seniority under Rule 4(b), vacancies were notified on 22.03.2012. By the minutes of the Chief Justice, the Selection Committee was nominated and only thereafter the Selection Committee had its meeting on 12.04.2012 on which date the Selection Committee resolved to adopt the same norms/procedure as followed earlier in the Selection Committee‟s resolution dated 29.10.2010 and 03.11.2010. After the selection process commenced, prescribing minimum qualifying marks of the aggregate by the Selection Committee, is impermissible more so, when the eligible candidates were not informed about the prescription of minimum qualifying marks.
21
36. In Ramesh Kumar v. High Court of Delhi and Another, (2010) 3 SCC 104, the Hon‟ble Supreme Court considered the permissibility of prescription of minimum qualifying marks for interview. In the said case, to fill up 20 vacancies in the cadre of District Judge in Delhi, the High Court of Delhi issued advertisement. Out of those 20 vacancies, 13 to be filled by the general category candidates and 3 from Scheduled Caste candidates and 4 from Scheduled Tribe candidates. The petitioners therein belonged to Scheduled Caste category faced the selection process. All the three vacancies reserved for Scheduled Caste candidates could not be filled up as the Delhi High Court found only one person suitable for the post. The petitioners therein were found unsuitable on the ground that they did not secure the required minimum marks in the interview. The Delhi Higher Judicial Service Rules, 1970 did not provide for securing minimum bench marks either in the written test or in the interview. Rule 10 of Delhi Higher Judicial Service Rules provides that the High Court may hold such tests as may be considered necessary. Observing that in the absence of any statutory requirement of securing minimum marks in the interview and the High Court ought not to have followed the said principle, the Hon‟ble Supreme Court directed the Delhi High Court to offer appointment to the petitioner Ramesh Kumar. In paras 13 and 15 of the said judgment, the Hon‟ble Supreme Court held as under :-
"13. In Durgacharan Misra v. State of Orissa this Court considered the Orissa Judicial Service Rules which did not provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling provision for fixation of minimum marks in interview would amount to amending the rules itself. While deciding the said 22 case, the Court placed reliance upon its earlier judgments in B.S. Yadav v. State of Haryana, P.K. Ramachandra Iyer v. Union of India, and Umesh Chandra Shukla v. Union of India, wherein it had been held that there was no "inherent jurisdiction" of the Selection Committee/Authority to lay down such norms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. "inherent jurisdiction" is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and irreversible harm."
... ... ...
15. Thus, the law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum Bench Marks for written test as well as for viva-voce.
37. Rule 5(iv) does not provide for fixation of minimum qualifying marks of the aggregate. In our considered view, in the absence of Rules, prescribing minimum qualifying marks of the aggregate vitiates the selection process.
38. 50% marks allocated for interview is highly excessive.
We may now examine the merits of the contention that fixation of 50 marks out of 100 marks i.e. 50% for the interview for promotion of Civil Judges (Senior Division) on merit-cum-seniority basis is excessive. In All India Judges' Association case (1), while holding that 50% of the total post in the Higher Judicial Service (now 65%) must be filled by promotion on the basis of principle of merit-cum-seniority, the Hon‟ble Supreme Court held that the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their 23 continued efficiency with adequate knowledge of case law. Accordingly, the Jharkhand High Court evolved the suitability test, i.e. Rule 5(iv), fixing 50 marks for interview and 50 marks for service i.e. 40 marks for service profile and 10 marks for length of service.
39. Learned counsel appearing for respondents relied upon a number of decisions to contend that while the written test will testify the candidates‟ academic knowledge, oral test brings out overall intellectualness and personnel qualities, like alertness etc., which are essential for the Judicial Officers in the cadre of District and Additional Sessions Judge.
40. Various decisions regarding fixation of marks for interview in a selection broadly fall into three categories :-
(i) Selection for admission to educational institutions;
(ii) Selection for employment in service;
(iii) Selection for the next level of promotion on the basis of merit-cum-seniority.
41. It is well settled that interview is the best mode of assessing the suitability of a candidate for a particular position as it brings out the overall intellectual and personal qualities of the candidates, like alertness, resourcefulness, ability to take decision, qualities of leadership etc. The importance of holding interview has been succinctly stated in Lila Dhar v. State of Rajasthan &Ors., (1981) 4 SCC 159 by the Hon‟ble Supreme Court:-
"5. ... ... ... it is now well recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview test there are yet no written tests which can evaluate a candidate's initiative, alertness, 24 resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, abi1ity to make decision, ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much depending on the constitution of the interview Board."
42. Same view was expressed in Ashok Kumar Yadav and others v. State of Haryana and others, (1985) 4 SCC 417. In the said case selection for Haryana Civil Service (Executive) and other allied services were made on the basis of written examination and interview. The allocation of marks for interview was 33.3% in the case of ex-service officers and 22.2% in the case of other candidates. The Hon‟ble Supreme Court felt that allocation of 33.3% marks for viva voce for ex-service officers and 22.2% for other candidates was excessive and that the same should not exceed 25% for ex-service officers and 12.2% for other candidates. In Ashok Kumar Yadav's case, the Hon‟ble Supreme Court held as under :-
23. ... ...The competitive examination may be based exclusively on written examination or it may be exclusively on interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case. ... ... It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may be posts and appointments where the only proper method of selection may be by a viva voce test. ....
25. ... ...Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. ... ... There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed 25 to be entrusted and a host of other factors. It is essentially a matter for determination by experts. The Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy, J.
in Liladhar's case "exaggerated weight has been given with proven or obvious oblique motives." (underlining added)
43. In Ashok Kumar Yadav's case and other decisions, the Hon‟ble Supreme Court held that no hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination can be laid down and the said weight vary from service to service according to the requirement of the service. The Hon‟ble Supreme Court further held that the Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it. It is not within the competence of the Court to lay down whether the interview test should be held at all or how many marks should be allowed for the interview test and it must be left to the wisdom of the experts. The Hon‟ble Supreme Court categorically held that the marks allotted for the interview must be minimal so as to avoid charges of arbitrariness.
44. In the case of Ajay Hasia v. Khalid Mujib Sehravardi and others(1981) 1 SCC 722, the Hon‟ble Supreme Court took the view that allocation of high percentage as 33.3% of the total marks for the viva voce was beyond reasonable proportion and rendered the selection of the candidates arbitrary. In A. Periakaruppan and Another v. State of T.N. and Others, (1971) 1 SCC 38, the Hon‟ble Supreme Court observed that earmarking 75 marks out of 275 marks (27.27%) for interview prima facie appears to be excessive. In Lila Dhar case, the Court referred to Ajay Hasia's case where the Court found that the allocation of more than 15% of the total marks 26 for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. The Court observed that the viva voce test conducted must be held to be fair, free from the charge of arbitrariness, reasonable and just.
45. On behalf of the respondents much reliance was placed on the decisions of the Hon‟ble Supreme Court in Manish Kumar Shahi v. State of Bihar and Others, (2010) 12 SCC 576 and K.H.Siraj v. High Court of Kerala and Others, (2006) 6 SCC 395 in order to justify that allocation of 50 marks for interview is valid and emphasis has been laid on the said two decisions on the ground that the same relate to Judicial Service. Even at the outset, it is to be pointed out that those two decisions relate to selection process of direct recruits. The case of K.H.Siraj relates to the appointment of Munsif Cadre in Kerala Judicial Service in which the written examination consists of four papers carrying 100 marks each. There was also to be an oral examination carrying 50 marks for deciding candidate‟s general knowledge, grasp of general principles of law and suitability. Thus, the marks fixed for the interview was only 12.5% whereas in the case of Manish Kumar Shahi, the marks allotted for the interview was 19% of the total marks. Considering that percentage of marks fixed for interview, the Hon‟ble Supreme Court upheld the allocation of marks for interview as valid.
46. The respondents then placed much reliance upon K.A.Nagmani v. Indian Airlines and Others, (2009) 5 SCC 515 where the Hon‟ble Supreme Court upheld the criteria of 50 marks for interview and 50 marks for confidential reports which was adopted for the Upper Managerial Post in Indian Airlines. K.A.Nagmani's 27 case dealt with promotion to the Upper Managerial Posts in Indian Airlines and after interpreting the Recruitment and Promotion Rules, at paras 44 and 45 the Hon‟ble Supreme Court held that the post of Deputy Manager is a "selection grade post" and the selection is a "rigorous selection on merit" and held that promotion to such selection grade is to be on the basis of selection on merit from amongst the employees in grades or inter-linked grades below the grade concerned.
47. The ratio in K.A.Nagmani's case may not be applicable to the case on hand where we are concerned with the promotion of Civil Judges (Senior Division) to the post of District and Additional Sessions Judges on the basis of merit-cum-seniority and such promotion cannot be said to be a "rigorous selection on merit" as held in K.A.Nagmani's case.
48. At this juncture, we may usefully refer to the decision rendered in the case of Director General, Indian Council for Agricultural Research & Others v. D. Sundara Raju, (2011) 6 SCC 605. In the said case, the Hon‟ble Supreme Court held that allocation of 50% marks for interview was highly excessive and totally unjustified. The said case pertains to the promotion to the post of Principal Scientist under the „Career Advancement Scheme‟ formulated by the Indian Council for Agricultural Research. There are two streams from which selections are made to the post of Principal Scientist: (i) Direct recruitment; and (ii) Promotion from the post of Senior Scientist on the basis of personal merit. The respondent thereon was a Senior Scientist in the service of ICAR and he presented himself for assessment and interview under the „Career 28 Advancement Scheme‟. The respondent thereon secured only 49 marks out of 100 and was found unfit for promotion to the post of Principal Scientist. The respondent challenged the same before the Central Administrative Tribunal, Bangalore Bench and the Tribunal clearly held that ICAR had acted in an arbitrary manner to allocate 50% marks for personal interview and set aside the non-selection of the respondent thereon. The order of the Central Administrative Tribunal was challenged before the High Court and the High Court held that 50% marks for the interview was excessive which rendered the process of selection arbitrary and the High Court upheld the decision of the Central Administrative Tribunal. Indian Council for Agricultural Research challenged the judgment of the High Court before the Hon‟ble Supreme Court. Referring to Ashok Kumar Yadav and others v. State of Haryana and others, (1985) 4 SCC 417, dismissing the appeal filed by the ICAR, in paras 41 and 42 the Hon‟ble Supreme Court held as under :-
"41.No fault can be found in the impugned judgment in view of the legal position which emerges after proper scrutiny of the following cases of this Court, namely, Ashok Kumar Yadav, Ajay Hasia, Lila Dhar and A. Peeriakaruppan. 50% marks allocated for the interview were highly excessive for the post of a Principal Scientist and contrary to the settled legal position crystallized from a series of the judgments of this court.
42. The appellants were totally unjustified in allocating 50% marks for the interview particularly when the appellants did not even disclose to the respondent that the interview would also be held to evaluate the suitability of the candidate for the said post. The procedure evolved by the Selection Committee for evaluating the respondent was totally arbitrary and contrary to the settled legal position."
(underlining added) 29
49. Similarly in Mohinder Sain Garg v. State of Punjab, (1991) 1 SCC 662 allocation of 25% of the total marks for viva voce test in selection was held arbitrary and excessive. In P.Mohanan Pillai v. State of Kerala, (2007) 9 SCC 497, 50% marks fixed for the interview was held to be excessive.
50. In our considered view, Rule 5(iv) allocating 50% of the total marks for the interview is not in accordance with the consistent view taken by the Hon‟ble Supreme Court in various decisions. In All India Judges' Association's case(1), the Hon‟ble Supreme Court directed the High Courts to devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The suitability test does not mean to say that the interview would carry 50 marks which will be in derogation from the consistent view taken by the Hon‟ble Supreme Court in various cases.
51. At this juncture, we may usefully refer to the Rule 5(v) of Jharkhand Superior Judicial Service Rules which stipulates the procedure for the limited competitive examination where selection is purely on merit basis. As discussed earlier, for LCE the written test comprises of four parts and each part shall carry 25 marks and the candidates obtaining minimum 40% marks in the written test shall only be called for viva voce test. Even for limited competitive examination which is strictly on merit basis, Rule 5(v) prescribes only 25 marks for viva voce (which means 20% of the total marks) and a candidate obtaining six marks in viva voce shall only be considered suitable for selection. When in the limited competitive 30 examination only 20% marks is stipulated for viva voce, we are of the view that fixing 50% marks for the interview for the promotion, based on merit-cum-seniority, is excessive. Such high marks fixed for the interview operates causing prejudice of the Judicial Officers.
52. In All India Judges' Association's case(1), what is stipulated is suitability of the candidates and assessment of their continued efficiency with the adequate knowledge of case law. What is required is suitability. Ofcourse, some standards of suitability and efficiency for continued service is required. But when the officer has put in long number of years of service, it would be easy for the High Court to assess the suitability of the officers because of long period of service. In Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2008) 17 SCC 703, expressing concern over the vacancies in the subordinate courts, the Hon‟ble Supreme Court issued certain directions for filling up all vacancies in the subordinate courts in the cadre of District Judge in respect of 50% vacancies (presently 65%) as against promotion to be filled in by promotion from Civil Judges (Senior Division)prescribing the time schedule. The Hon‟ble Supreme Court has laid down the criteria as under :-
Criteria
(a) ACR for last five years;
(b) evaluation of judgments furnished; and
(c) performance in the oral interview.
53. In Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 530, considering the large number of post of District Judges lying vacant in the State of 31 Bihar and 60 vacancies available for promotion of Civil Judges (Senior Division) (under 25% limited competitive examination), the Hon‟ble Supreme Court directed the High Court, Patna to fill up those posts by promotion of Civil Judges (Senior Division) based on seniority-cum-merit and further directed that whenever the candidates are not available for being promoted to the category of District Judges for the limited competitive examination, such posts be filled up by promotion from amongst the candidates available from Civil Judges (Senior Division) based on seniority-cum-merit and directed the High Court to take urgent steps to fill up those vacancies. The Hon‟ble Supreme Court held as under :-
"3. We see large number of vacancies of District Judges are lying vacant as the promotion of these posts are not being done timely by the High Court. Considering the large number of vacant posts of District Judges, the High Court should take timely action to fill up these vacancies keeping in mind the principle of seniority-cum-merit. The High Court may deny promotion to a Civil Judge (Senior Division) only in case he/she is not suitable for being promoted and the seniority should always have a predominant role in giving promotion to the Civil Judge (Senior Division) to the post of District Judge. If the posts of District Judges are not filled up in time it is likely that sessions cases may not have timely trial, thereby delaying the whole procedure of justice delivery system. We request the High Court to be practical in the matter of promotion and filling up the posts of the District Judges. ... ..."
54. The direction of the Hon‟ble Supreme Court in Malik Mazhar Sultan's case was in the context of number of vacancies available under the 25% limited competitive examination. While considering the promotion of Civil Judges (Senior Division) as against 65% quota, the principle laid down by the Hon‟ble Supreme Court in Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public 32 Service Commission and Others, (2009) 17 SCC 530 - the principle being seniority has to be kept in view.
55. In Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 583, the Hon‟ble Supreme Court considered the case of 18 Civil Judges (Junior Division) in the cadre of Andhra Pradesh State Subordinate Judicial Service who were denied promotion to the cadre of Civil Judge (Senior Division). The main contention urged by the applicants thereon was that Civil Judges (Junior Division) who were in the zone of consideration for promotion to the cadre of Civil Judge (Senior Division) were subjected to oral interview and based on the marks secured in the interview, promotions were given and 33 candidates including the application were denied promotion.
56. In the case of Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 583, the Hon‟ble Supreme Court has gone to say to the extent that promotion should be based only on the evaluation of the ACRs and seniority, when grievance was raised by the members of Andhra Pradesh State Subordinate Judicial Service that they were subjected to oral interview and based on the marks secured in the interview, promotions were given whereby they were denied promotions. Their Lordships considering the earlier direction given in the case of Malik Mazhar Sultan, did observe as follows :-
"5. The High Court has filed a counter-affidavit/reply stating that they followed the guidelines issued by this Court in Malik Mazhar Sultan (3) v. U.P. Public Service Commission passed on 4-1- 2007. As regards the promotion to the cadre of Civil Judge (Senior Division), in the said judgment, this Court had given a direction under clause (4). It states that for the purpose of filling up 33 vacancies in the cadre of Civil Judge (Senior Division) to be filled by promotion:
"... Viva voce criteria"
and it was further stated:
"(a) ACRs for last five years;
(b) Evaluation of judgments furnished; and
(c) Performance in the oral interview."
6. Promotion from the cadre of Civil Judge (Junior Division) to Civil Judge (Senior Division) is the first promotion stage in the Subordinate Judicial Service. All these officers must have worked for more than five years in the State Subordinate Service and in some cases they would have got promotion as Civil Judge (Senior Division) only after completion of 10 years of service as Civil Judge (Junior Division). So their performance is evaluated on the basis of their past ACRs and also in case of necessity their judgments can also be perused for the purpose of evaluation. But we do not think that these officers should be subjected to oral interview for the purpose of promotion. Normally promotions are given based on the evaluation of the ACRs and seniority. We do not think that they shall be subjected to oral interview for the purpose of their promotion to Civil Judge (Senior Division). The direction of this Court in the said judgment that for the purpose of promotion, their performance based on oral interview shall also be considered as deleted. If any High Court/State Government has framed any rules pursuant to the direction of this Court, that rule also be treated as deleted." (underlining added)
57. In the above case, the Hon‟ble Supreme Court held that "normally promotions are given based on the evaluation of the ACRs and seniority". Though the said observation was in the context of promotion of Civil Judge (Junior Division) to Civil Judge (Senior Division), we are of the view that the ratio of the above decision that normally promotions are given based on the evaluation of the ACRs and seniority has to be kept in view.
58. As per the criteria laid down by the Supreme Court, while the emphasis is on suitability, the seniority is also to be kept in view. In fact, Jharkhand Superior Judicial Service Rules itself 34 emphasize on seniority. Proviso to Rule 5(iv) provides that inter-se- seniority of suitable candidates shall be determined in terms of Rule 8(b) of the Rules. Rule 8(b) provides that "seniority inter-se of promoted officers shall be determined on the basis of their seniority as existing in the Jharkhand Judicial Service immediately prior to their appointment under the Jharkhand Superior Judicial Service Rules". In terms of Rule 5(v), the inter-se-seniority of successful candidates in the limited competitive examination will also be determined in terms of the above Rule 8(b). Fixing inter-se seniority in terms of Rule 8(b) clearly shows that the Jharkhand Superior Judicial Service Rules lay emphasis upon the seniority as existing in the Jharkhand Judicial Service immediately prior to their appointment under Jharkhand Superior Judicial Service Rules.
59. In our considered view, for promotion of Civil Judge (Senior Division) as District and Additional Sessions Judge as against 65% quota on the basis of merit-cum-seniority, allocation of 50% of the total marks for the interview is excessive and it has caused serious prejudice to the Officers who have put in long years of service and on this ground also, the selection of the Respondent Nos. 4 to 26 has to be set aside.
60. The contention of the respondents is that the petitioners, who have participated in the selection process are estopped from challenging the criteria for selection and if the petitioners had any valid objection, they should have challenged the advertisement and selection procedure without participating in the same as has been held in the decision rendered in the case of Dhananjay Malik &Ors. Vs. State of Uttaranchal &Ors. [(2008) 4 SCC 171] and 35 M.V.Thimmaiah & Ors. Vs. Union Public Service Commission &Ors.[(2008) 2 SCC 119]. Reliance was also placed upon the decision rendered in the case of Manish Kumar Shahi Vs. State of Bihar &Ors. [(2010) 12 SCC 576), in which challenge was to the recruitment process and selection of Bihar Civil Judge, Junior Division by Patna High Court by one of the candidates, who participated in the selection process. In para (16), the Hon‟ble Supreme Court held that "after having taken part in the process of selection knowing full well that 19% marks have been earmarked for viva voce test, the petitioner was not entitled to challenge the criteria or process of selection and the conduct of the petitioner clearly disentitles him for questioning the selection".
61. In the facts and circumstances of the present case, participation of the petitioner in the selection process will not operate as estoppel from challenging from the selection process. As discussed earlier, fixation of minimum qualifying 40% marks is not provided by the Rules and hence, was impermissible. After the vacancies were notified on 22.3.2012, the Appointment Committee in the meeting held on 12.4.2012, had resolved that the procedure adopted in the earlier Selection Process would be followed, which, inter alia, included fixation of minimum qualifying marks. The petitioners were not informed about the fixation of minimum qualifying 40% marks of the aggregate. According to the petitioners, they came to know of the aforesaid fact from the reply affidavit filed by the 3rd respondent in Hon‟ble Supreme Court in I.A No.123/2013 in Civil Appeal No.1867 of 2006. As rightly contended by the learned Senior Counsel for the petitioners, in the 36 absence of any statutory requirement of securing minimum qualifying marks coupled with the fact of such criteria was stipulated after the vacancies were notified, that too without information to the candidates, the question of acquiescence does not arise.
62. In the decision rendered in the case of Rajesh Kumar Gupta & Ors. v. State of U.P. &Ors., [(2005) 5 SCC 172, applications were invited by the State Government for selection to undergo Special Basic Teachers‟ Certificate (BTC Training), where suitable candidates were selected and appointed as Assistant Teachers and initially policy decision was taken to prepare State Level Merit List of the candidates and subsequently policy decision was taken to prepare District-wise Merit List. Some of the candidates, who had applied on the basis of decision for preparation of State Level Merit List, found themselves left out from consideration as a result of change in the criteria of preparation of District-wise Merit List and when the Merit List was notified, and not finding their names therein, filed writ petition challenging the action of the State Government. In the said case, Hon‟ble Supreme Court held that there was no question of estoppel, nor could there be any plea of promissory estoppel. In the present case, after the vacancies were notified and selection process commenced, the minimum qualifying marks was prescribed, which was not notified to the Officers and therefore, the plea of estoppel/acquiescence cannot be put against the petitioners.
63. Further objection has been taken by the respondents that out of 53 candidates, pursuant to the recommendation made 37 by the 3rd respondent, 28 candidates were already promoted, vide Notification dated 27.9.2012, and that the petitioners have not challenged the said notification, nor impleaded those 28 Officers, who are working in the promotional posts of District & Additional Sessions Judge since October, 2012. The contention of the respondents is that the selection process cannot be challenged partially and when the petitioners have not challenged the earlier notification, it is not open to them to challenge the promotion of respondent Nos.4 to 26, whose names were recommended in the same selection process.
64. In response thereto, on behalf of the petitioners it was submitted that out of 28 Officers so promoted by the earlier Notification dated 27.9.2012, most of the Officers, (barring 3 or 4), were senior to the petitioners and therefore, the same was not challenged. Besides, the Selection Process can be severed and challenged to the extent that it is bad.
65. The vires of Rules 4(b) and 5(iv) of the Rules is challenged as arbitrary and violative of Article 14 of the Constitution of India. The case of the petitioners is that allocation of 50 marks for interview is beyond reasonable proportion, which is violative of the directions issued by Hon‟ble Supreme Court in the case of All India Judges' Association and Others v. Union of India and Others, (2002) 4 SCC 247. Further case of petitioners is that in the case of Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2008) 17 SCC 703, Hon‟ble Supreme Court had specified three criteria, namely, (i) ACRs, (ii) Evaluation of Judgments and (iii) Interview and the petitioners understand that 38 each of the three criteria should be assessed in equal proportion and since the Rules under challenge have not given equal proportion to those three criteria, the Rules are violative of Article 14 of the Constitution of India and thus ultra vires.
66. Rule 30 of the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 empowers the High Court to frame regulation and rules. In exercise of such power under Rule 30, the High Court has framed rules and amended rules from time to time. Rule 5(i) stipulates that promotion to be given on merit-cum-seniority basis subject to passing of suitability test as may be prescribed by the High Court from time to time. Suitability test is provided in Rule 5(iv). As discussed earlier, ofcourse, in Rule 5(iv), by allocating 50 marks for interview, excess weightage is given to interview. But Rule 5(iv) cannot be held to be ultra vires to the Constitution of India on the ground that excessive weightage is given to interview.
67. Since we are setting aside the selection of respondent Nos.4 to 26 on the grounds elaborated earlier, we are not inclined to go into the other contentions raised by the petitioners, namely, (i) arbitrariness in assignment of marks in interview;
(ii) recommendation of the names of 4 to 26 for promotion being sent after one year of selection; (iii) names of respondent Nos.4 to 26, who were kept under watch list, were cleared after showing indulgence to them while the petitioners, who are having good service record, are not being considered.
39
68. Summarizing our conclusion, we hold that the Selection and promotion of respondent Nos. 4 to 26 Civil Judge (Senior Division) to the post of District and Additional Sessions Judge(as against 65% quota) on the basis of merit-cum-seniority is vitiated on the following grounds:-
(i) Prescribing minimum qualifying marks of the aggregate is dehors Rule 5(iv) of the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules.
(ii) Allocation of 50% marks for Interview for promotion of Civil Judges (Senior Division) as District and Additional Sessions Judge (65% quota) is not in consonance with the consistent view taken by the Hon‟ble Supreme Court in the decisions rendered in the cases of Director General, Indian Council for Agricultural Research & Others v. D. Sundara Raju, (2011) 6 SCC 605, Ramesh Kumar v. High Court of Delhi and Another, (2010) 3 SCC 104, Ashok Kumar Yadav and others v. State of Haryana and others, (1985) 4 SCC 417, Ajay Hasia v. Khalid Mujib Sehravardi and others (1981) 1 SCC 722 and Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 530.
This order shall not affect the promotion of 28 officers who were already promoted as District and Additional Sessions Judge and functioning in the promotional posts since October, 2012 and since their promotion is also not under challenge.
69. In the result, it is held:-
(i) the recommendation of the High Court contained in Memo No. 9353/Apptt. dated 06.09.2013 for promotion of respondent Nos.4 to 26 and the 40 Notification No. 9853 to 9875 as contained in Memo dated 08.10.2013 are quashed and promotion of respondent Nos.4 to 26 are set aside.
(ii) 3rd respondent is directed to take decision on the administrative side of the High Court to amend Rule 5(iv) of the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 (as amended in 2008 and 2011), which prescribes 50% marks for interview in consonance with the judgment of Hon‟ble Supreme Court rendered in the case of Director General, Indian Council for Agricultural Research & Others v. D. Sundara Raju, (2011) 6 SCC 605, Ashok Kumar Yadav and others v.
State of Haryana and others, (1985) 4 SCC 417 and Ajay Hasia v. Khalid Mujib Sehravardi and others, (1981) 1 SCC 722.
(iii) 3rd respondent is directed to take a decision on the administrative side whether prescribing minimum qualifying marks of the aggregate is required for promotion of Civil Judge Senior Division to the post of District and Additional Sessions Judge (as against 65% quota) and if so, to suitably amend the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 (amended in 2008 and 2011) and 41
(iv) In view of huge vacancies in the Higher Judicial Service in the State of Jharkhand, 3rd respondent is directed to expedite the steps for amendment of the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, and thereafter notify the vacancies in the Jharkhand State Superior Judicial Service including the future vacancies till 31.12.2014 at an early date and to expedite the selection process.
This writ petition is allowed accordingly.
(R.Banumathi, C.J.) (R.R.Prasad, J.) Dey/Birendra/ A.F.R.