Rajasthan High Court - Jaipur
Sanjay Kumar Meena & Ors. vs . State Of Rajasthan & Ors. on 11 April, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: ORDER :: D.B. CIVIL WRIT PETITION NO.18639/2013 Sanjay Kumar Meena & Ors. Vs. State of Rajasthan & Ors. Date of Order : 11th April, 2014 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA Mr.R.P.Singh, Senior Advocate assisted by Mr.Shashi Kant Saini for the petitioners. Mr.S.K.Gupta, Additional Advocate General assisted by Mr.Gaurav Tanwar for the State-respondent. Mr.S.N.Kumawat, for the respondent-RPSC. Mr.A.K.Sharma, Senior Advocate assisted by Mr.V.K.Sharma, for the respondent-Rajasthan High Court. ***** BY THE COURT (PER HON'BLE THE CHIEF JUSTICE) :
The present indictment is of the second proviso to Rule 24 of the Rajasthan Judicial Service Rules, 2010 (for short, hereafter referred to as 'the Rules') inserted vide notification No.F.1 DOP(3)/A-II/2010, G.S.R.No.35 dated 10.6.2011, amending the same. The gauntlet has been taken by up some of the candidates who, though had participated in the process for direct recruitment to the post of Civil Judge (Junior Division) & Judicial Magistrate (for short, hereafter referred to as 'Civil Judge') initiated by the advertisement dated 22.7.2011, had been eventually proclaimed to be unsuccessful therefor.
We have heard Mr.R.P.Singh, learned Senior Counsel assisted by Mr.Shashi Kant Saini for the petitioners, Mr.S.K.Gupta, learned Additional Advocate General, Rajasthan assisted by Mr.Gaurav Tanwar, for the State-respondent, Mr.S.N.Kumawat, learned counsel for the Rajasthan Public Service Commission, Ajmer (for short, hereafter referred to as 'the Commission/respondent-Commission') & Mr.A.K.Sharma, learned Senior Counsel assisted by Mr.V.K.Sharma, for the respondent-High Court of Judicature for Rajasthan at Jodhpur (for short, hereafter referred to 'High Court' as well).
The vires of the above provision of the Rules under impeachment though, skeletal facts, borne out by the pleadings, are indispensable. To reiterate, the respondent-Commission had issued an advertisement dated 22.7.2011 for direct recruitment to 101 posts of Civil Judge, in terms of the Rules. The advertisement disclosed, amongst others, the conditions of eligibility and the extent of reservation in appointment, as per the break-up of posts, referred to therein. The petitioners, claiming themselves to be eligible, did respond to the advertisement. The exercise, designed in compliance of the Rules, comprised of a Preliminary Examination (objective type) and the Main Written Examination, followed by Interview of all the candidates successful in the said examination. The main examination consisted of Law Paper-I & Law Paper-II of 100 marks each and Language Paper-I in Hindi Essay & Paper-II in English Essay of 50 marks each. For the interview, 35 marks were earmarked. In terms of the scheme of examination, the Recruiting Authority was to call for the interview, such candidates who had obtained a minimum of 35% marks in each of the law papers and 40% marks in the aggregate. For Scheduled Castes or Scheduled Tribes category candidates, the minimum percentages, on these counts, were fixed at 30% and 35% respectively. Incidentally, by the amendment, adverted to hereinabove, vide second proviso to Rule 24 of the Rules, it was prescribed that no candidate, who would fail to obtain minimum 25% marks in the interview, would be recommended. The number of candidates, to be called for the interview in accordance with their order of merit in the written test, was predicated to be approximately three times the vacancies reserved for each category.
According to the petitioners, they appeared in the preliminary examination, and having passed the same, did take the main written examination as well. Further, on the basis of their performance, they were also called for the interview, and that, they partook in the same. In the results declared on 16.8.2013 and the mark-sheets uploaded on the internet, it transpired that the petitioners had not been recommended for appointment, as they had failed to secure the minimum 25% marks in the interview though, in aggregate, all of them had scored in excess of the cut-off marks in the respective category. Tracing their exclusions from the list of recommended candidates, to the mandate of the second proviso to Rule 24 of the Rules, they have assailed the validity thereof on the touchstone of Articles 14, 16 & 21 of the Constitution of India as well as Justice Shetty Commission Recommendations (hereafter referred to as 'the Recommendations'), since approved by the Hon'ble Apex Court in All India Judges' Association & Ors. Vs. Union of India & Ors., (2002) 4 SCC 247.
The respondent-State, in its reply, while emphatically endorsing the constitutional validity of the proviso involved, has, with reference to Schedule IV of the Rules, highlighted the indispensable essentiality and pre-eminence of interview to ensure a complete and wholesome evaluation of a candidate, irrespective of his/her performance in the written examination for induction to the post involved, in judicial service. Placing reliance on the decisions of the Hon'ble Apex Court inter alia in Lila Dhar Vs. State of Rajasthan & Ors., (1981) 4 SCC 159 underscoring the indispensable needfulness to evaluate a candidate's initiative, alertness, resourcefulness, dependableness, adaptability, ability to make decision etc., in judging the candidature of a person and his/her suitability in judicial service, the respondent has asserted that the statutory rules, having approved a minimum percentage of marks therefor, the same is per se valid, and thus, the exercise undertaken, in conformity therewith, is unassailable.
The respondent-Commission, in its reply, has asserted that on receipt of the necessary requisition from the State Government, it had issued the advertisement, as above, and the petitioners, without any demur, having participated in the process that ensued, they are estopped from turning a volte-face and questioning the validity thereof or any provision of the Rules, governing the same. It admitted that the petitioners, having been declared eligible on the basis of their performance in the main written examination, were called for the interview, in terms of the Rules, whereafter eventually, the merit list was prepared, strictly as per Rule 24 of the Rules. According to the respondent-Commission, had the petitioners any reservation, as now expressed, they ought to have challenged the process before partaking in the same. Their instant endeavour has been dismissed by the respondent-Commission to be a patent afterthought. According to it, the Rules have been framed in conformity with the constitutional mandate, to which it had accorded its concurrence, and thus, it is irrefutably valid. Pleading that judicial service is exclusive by nature and its inherent attributes, for which a minimum level of performance in the interview is an indispensable imperative to secure the quality of inductions thereto, the respondent-Commission has asserted that the impugned provision of the Rules has been uniformly applied to all the candidates, and thus, the challenge thereto, on the measure of Articles 14, 16 & 21 of the Constitution of India, is wholly misconceived. According to it, failure of the petitioners to obtain the minimum percentage of marks in the interview, is an unmistakable index of want of required merit in them, imperative for appointment in judicial service.
Mr.Singh, with profuse reference to Chapters -8 & 10 of the Recommendations, has argued that as predicated thereby, there cannot be any cut-off marks in the viva-voce test. According to the learned senior counsel, these Recommendations, having been approved by the Hon'ble Apex Court in All India Judges' Association & Ors. (supra), no statutory rule for appointment to the judicial service by direct recruitment, in violation thereof, can be framed, after the said verdict. Mr.Singh has urged that the impugned proviso to Rule 24, having been incorporated by an amendment effected in the year 2011, it is per se repugnant to the Recommendations as well as the enjoinments in All India Judges' Association & Ors. (supra), and is thus, liable to be adjudged illegal and null and void. The learned senior counsel insisted that having regard to the exhaustive and insightful analysis of all inalienable facets of judicial service, the Shetty Commission's recommendations, on the basis of such empirical exercise encapsulate its well dilated suggestions which, on being approved by the Hon'ble Apex Court in All India Judges' Association & Ors. (supra), have been rendered mandatory, prohibiting enactment of any statutory rule, governing recruitment thereto (judicial service), incompatible therewith. While drawing the attention of this Court to the Draft Judicial Service Rules recommended by the Shetty Commission, Mr.Singh has rejected the plea of approbation and reprobation by the petitioners, due to their participation in the impugned recruitment process. The following decisions have been relied upon :-
1. All India Judges' Association & Ors. Vs. Union of India & Ors., (2002) 4 SCC 247.
2. Rakhi Ray & Ors. Vs. High Court of Delhi & Ors., (2010) 2 SCC 637.
3. Ramesh Kumar Vs. High Court of Delhi & Anr.,(2010) 3 SCC 104.
4. State of Tamil Nadu & Ors. Vs. K.Shyam Sunder & Ors., (2011) 8 SCC 737.
5. Tridip Kumar Dingal & Ors. Vs. State of West Bengal & Ors., (2009) 1 SCC 768.
6. Rajasthan State Industrial Development and Investment Corporation & Anr. Vs. Diamond & Gem Development Corporation Limited & Anr., (2013) 5 SCC 470.
Mr.Gupta, as against this, has persuasively argued that the Rules involved, having been framed in exercise of power conferred by the Constitution, the provision thereof, prescribing minimum percentage of marks in the interview, having regard to the nature and demand of the service involved, is valid, and thus, the process of recruitment is unassailable. Insistently contending that the petitioners having, without any cavil, participated in the exercise, being fully aware of the peremptory provisions of the Rules, bearing on eligibility and suitability of the candidates qua the service, they are estopped to turn around and question the same, and on that alone, the petition is liable to be dismissed. The petitioners, having submitted themselves to the Rules as a whole, they cannot be permitted to approbate and reprobate in the same breath, he urged. He apprised this Court that as meanwhile, a new process of recruitment to the same post has already been initiated, on that ground as well, the instant endeavour ought to be annulled at this stage. The learned counsel, in order to reinforce his arguments, placed reliance on the decisions of the Hon'ble Apex Court in K.H.Siraj Vs. High Court of Kerala & Ors., (2006) 6 SCC 395, Barot Vijaykumar Balakrishna & Ors. Vs. Modh Vinaykumar Dasrathlal & Ors., (2011) 7 SCC 308 and Kunal Kishor & Anr. Vs. Lt.Governor & Anr., 2012(1) All India S.L.J. 356.
Mr.Kumawat, while generally endorsing the stand taken on behalf of the State-respondent, has emphasized upon the aspect of estoppel and repudiated the instant challenge to be an afterthought. He reiterated that the prescription of minimum marks in the interview, having been incorporated by a set of rules framed by the competent authority in exercise of powers under the Constitution of India, such a norm is valid.
Mr.Sharma, learned senior counsel for the High Court has submitted that the recommendations of the Shetty Commission being, in essence, its suggestions, bereft of any binding bearing thereof on the rule-making authority constitutionally endowed, the assailment of the validity of the second proviso to Rule 24 founded thereon, is wholly unsustainable. Emphasizing on the interview to ensure induction of correctly screened and evaluated candidates in the service, the learned senior counsel has argued that not only the marks therefor (interview) compared to the marks in the written examination, is minimum, 25% thereof as a pre-condition for a candidate to be recommended, is rational as well. The learned senior counsel relied on the decision of the Hon'ble Apex Court in Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand & Ors., (2011) 1 SCC 150.
The contrasting pleadings and the contentious arguments advanced have received our due consideration.
As the Preamble of the Rules would authenticate, those have been framed, as contemplated and authorized by Articles 233, 234 and 309 of the Constitution of India. The Rules are thus, the yield of exercise of power, as constitutionally vested. There is no wrangle at the Bar that the petitioners herein had, without any remonstrance, participated in the already concluded process for direct recruitment to the post of Civil Judge conducted in terms of the Rules, and that, they had been rendered unsuccessful in their pursuit. As per the Rules which, amongst others, stood amended in the year 2011, as referred to hereinabove, vide notification dated 10.6.2011, recruitment to the cadre of Civil Judge has to be made only by direct recruitment on the basis of result of a competitive examination conducted by the Recruiting Authority which, in the present case, had been the respondent-Commission. Part IV of the Rules, which deals with such recruitment, apart from containing the conditions of eligibility for the post, sets out the scheme of examination and syllabus in Rule 20, as extracted hereunder:-
20. Scheme of Examination and Syllabus - (1) The competitive examination for the recruitment to the post of Civil Judge shall be conducted by the Recruiting Authority in two stages i.e. preliminary examination and Main examination as per the Scheme specified in Schedule-IV. The marks obtained in the preliminary Examination by the candidate who are declared qualified for admission to the main examination will not be counted for determining their final merit.
(2) The number of candidate to be admitted to the main examination will be fifteen times the total number of vacancies (Category wise) to be filled in the year but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Recruiting Authority for any lower range will be admitted to the Main Examination.
(3) On the basis of marks secured in Main Examination, candidates to the extent of three times of total number of vacancies (Category wise) shall be declared qualified to be called for interview.
(4) The Recruiting Authority shall not recommended a candidate who has failed to appear, in any of the written paper or before the Board for Viva Voce.
(5) Syllabus shall be such as may be prescribed by the Recruiting Authority from time to time.
Provided that same may be amended by the Governor from time to time in consultation with the Court.
Rule 24, validity of second proviso whereof, is under scrutiny, outlines the norms for drawing up the list of candidates recommended by the Recruiting Authority for appointment to the cadre of Civil Judge. Having regard to the pre-eminence of this provision in the instant adjudication, the same is, as well, extracted hereunder, for ready reference:-
24. List of candidates recommended by the Recruiting Authority.- The Recruiting Authority shall prepare a list of the candidates in the order of their performance on the basis of their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Recruiting Authority shall arrange them in the order of merit on the basis of their general suitability for service and recommend their names to the Appointing Authority for appointment to the Cadre of Civil Judge:
Provided that the Recruiting Authority shall not recommend a candidate of Scheduled Castes or Scheduled Tribes category unless he obtains minimum 35% marks in the aggregate of written examination and the interview, and, in the case of other candidates, unless he obtains minimum 40% marks in the aggregate of written examination and the interview.
Provided further that no candidate shall be recommended who fails to obtain minimum 25% marks in the interview.
Schedule IV contains the examination scheme for recruitment to the post involved in details, and thus, demand extraction as well :-
SCHEDULE IV [See Rule 20] A. The examination scheme for recruitment to the cadre of Civil Judge shall consist of an objective type preliminary examination, a written main examination and an interview to test general knowledge of the candidate and his fitness (suitability) for appointment.
B. The preliminary examination shall be objective type examination in which 70% weightage will be given to the subjects prescribed in syllabus for Law Paper-I and Law Paper-II and 30% weightage shall be given to test proficiency in Hindi and English language. The marks obtained in the preliminary examination shall not be counted towards the final selection.
C.The main examination shall consist of following subjects:
Subjects Marks (i) Law Paper-I 100 (ii) Law Paper-II 100 (iii) Language (i) Paper-I Hindi Essay 50 (ii) Paper-II English Essay 50 (iv)Interview 35
It shall be compulsory to appear, in each and every paper of written test, as also before the Interview Board for viva-voce.
Law Paper-I is designed to test the practical knowledge of the candidates in civil law and procedure e.g. drafting, pleadings, framing issues and writing out judgments etc. in civil cases.
Law Paper-II is designed to test practical knowledge of the candidates in criminal law and procedure e.g. framing charges and writing out the judgments etc. in criminal cases.
Interview: After the marks obtained by the candidate in written test have been received, the Recruiting Authority shall call for interview such of them as have obtained a minimum of 35% marks in each of the law papers and 40% marks in the aggregate:
Provided that a candidate belonging to Scheduled Caste or Scheduled Tribe category shall be deemed to be eligible for interview if he has obtained a minimum of 30% marks in each of the Law papers and 35% marks in the aggregate:
Provided further that as far as practicable, the number of candidates called for interview in accordance with their order of merit in written test shall be approximately three times the vacancies reserved for each category:
Provided also that if the recruiting authority is the Commission A sitting Judge of the High Court to be nominated by the Chief Justice should be invited to participate in the interview as an expert, The advice given by him should ordinarily be prevailed.
In interviewing a candidate, the suitability for employment to the Service shall be tested with reference to his record at the School, College and University, and his character, personality, address and physique. The questions, which may be put to him, may be of a general nature and will not necessarily be academic or legal. The candidate will also be put questions to test his general knowledge including knowledge of current affairs and present day problems. Marks shall also be awarded for the candidate's proficiency in the Rajasthani dialects and his knowledge of social customs of Rajasthan. The marks-so awarded shall be added to the marks obtained in the written test by each candidate.
A cumulative reading of the above provisions of the Rules, does unequivocally demonstrate that recruitment to the cadre of Civil Judge has to be only by direct recruitment and in terms of the scheme of examination, as referred to in Rule 20 and detailed in Schedule IV to the Rules. The competitive examination for recruitment to the post is envisaged in two stages i.e.Preliminary Examination and Main Examination, so much so, that the candidates qualifying in the preliminary examination would be allowed to take the main examination, and that, the number thereof would be fifteen times the total number of vacancies to be filled up in the year. Rule 20 clarifies that the marks obtained in the preliminary examination by the candidates declared qualified for admission to the main examination will not be counted for determining their final merit. The candidates who are declared qualified in the main examination, in terms of the marks obtained by them, as prescribed, would be called for the interview, to the extent of three times the total number of vacancies. Rule 20(4) predicates that a candidate, who fail to appear in any of the written paper or before the Board for Viva Voc, would not be recommended for appointment.
Rule 24 enjoins that the Recruiting Authority would prepare a list of candidates in order of their performance on the basis of their aggregate marks in the main examination and the interview, subject to the stipulation that a candidate of Scheduled Castes or Scheduled Tribes category, unless he obtains 35% marks in the aggregate of the written examination and the interview, and in case of other candidates, unless he/she obtains a minimum of 40% marks in the aggregate, would not be recommended. The second proviso to Rule 24 mandates that no candidate, who fails to obtain the minimum 25% marks in the interview, would be recommended. Thus, a candidate, who otherwise is qualified as per the aggregate of the written examination and the interview, in terms of the first proviso to Rule 24, would not be recommended, unless he/she obtains a minimum of 25% marks in the interview. As would be evident from Schedule IV to the Rules, the main examination is to consist of the following subjects with the corresponding allocation of marks:-
Subjects Marks (i) Law Paper-I 100 (ii) Law Paper-II 100 (iii) Language (i) Paper-I Hindi Essay (ii)Paper-II English Essay 50 50 (iv) Interview 35
It is thus, patent that the marks earmarked for the interview i.e.35 is noticeably minimal compared to the marks in the written examination i.e.300.
The advertisement, whereby the process for recruitment to the cadre of Civil Judge through the Rajasthan Judicial Service Competitive Examination, 2011 was initiated, is dated 22.7.2011 i.e.subsequent to the amendment in the Rules vide notification dated 10.6.2011. The advertisement, as apparent on the face of the records, did, amongst others, mention in clear terms that no candidate, who fails to obtain minimum 25% marks in the interview, would be recommended, as predicated by the second proviso to Rule 24, as adverted to hereinabove. The willing candidates as well as the participating candidates, including the petitioners herein, were thus fully aware of the above prescription of the Rules and did offer their candidature and partake in the examination, that followed, without any reservation. It is also not their case that at any point of time, during which this process was underway, any challenge, as now laid, had been posted against any provision of the Rules, including the second proviso to Rule 24. It is thus, after they had not been recommended, for having failed to secure 25% marks in the interview i.e.8.75 out of 35, that they have turned around and questioned the constitutional validity of the second proviso to Rule 24.
Noticeably, there is no, and rightly so, any remonstrance that the Rules had been applied uniformly to all the participating candidates. No allegation of bias or mala fide, lack of fairness in action or erroneous evaluation of the performance and of objectivity, has also been made. To reiterate, the requirement of securing 25% marks in the interview, to qualify for being recommended, has been the edict of the Rules, prior to the commencement of the exercise, and cannot also be denunciated to have been imposed subsequently, altering the norms of the process existing at the time of its initiation.
The facet of estoppel, traceable to the Doctrine of Approbation and Reprobation, in the above factual backdrop thus, deserves attention, at the threshold.
In Om Prakash Shukla Vs. Akhilesh Kumar Shukla, 1986 Supp. SCC 285, the Hon'ble Apex Court held, in no uncertain terms, that when a candidate appears in the examination without protest, and subsequently, is found to be not successful in the examination, question of entertaining a petition by him challenging the said examination would not arise. This view of a three-Judge Bench was noted, with approval, amongst others, in Madan Lal & Ors. Vs. State of Jammu & Kashmir & Ors., (1995) 3 SCC 486. Their Lordships, in endorsing this proposition, held, in the contextual facts, that though the question of any estoppel by conduct did not arise therein, it was well settled that in the event, any candidate appears in the interview and participates therein, he cannot turn around subsequently contending that the process was unfair and there was some lacuna in the process.
Recently, in a process involving recruitment to the post of Munsiff Magistrate in Kerala Judicial Service in terms of a notification issued under the Kerala Judicial Service Rules, 1991, wherein qualifying marks for oral examination had been prescribed, their Lordships, while repelling the challenge thereto, not only did highlight the essentiality of interview to effect overall assessment and suitability of the candidate for the service to ensure that high traditions and standards of the judiciary are maintained, also dismissed the challenge on the ground of estoppel, by concurring with the view with regard thereto, as expressed in Om Prakash Shukla (supra) and Madan Lal (supra).
Subsequent thereto, in Tridip Kumar Dingal & Ors. (supra) as well, the Hon'ble Apex Court, referring its decision in Swaran Lata Vs. Union of India, (1979) 3 SCC 165, did reiterate that unsuccessful candidates, having participated in the selection process without any objection or protest, could not be allowed to turn around and challenge the selection as illegal or null and void. It was, amongst others, observed that no doubt that there cannot be any waiver of a fundamental right, but the power to issue writ is discretionary. On an exhaustive survey of the law on this theme, their Lordships of the Hon'ble Supreme Court reiterated the above proposition in Vijendra Kumar Verma (supra) as well, though in the context of contractual obligations, as involved therein. The Hon'ble Apex Court in Rajasthan State Industrial Development and Investment Corporation & Anr.(supra), while dwelling on this aspect, observed that a party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate, and thus, when one knowingly accepts the benefits of a contract or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract or conveyance or order upon himself. Their Lordships expounded that this rule is applied to ensure equity however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience.
The legal exposition qua the 'Doctrine of Estoppel', adumbrated hereinabove, if juxtaposed to the imperative essentiality of interview as a screening norm for induction in judicial service would, in our view, attest the decisive bearing thereof in the contextual facts.
The Hon'ble Apex Court in Lila Dhar (supra), while examining the challenge inter alia to the allocation of 25% total marks for viva-voce examination under the relevant rules for appointment to the post of Munsif in the service, on a comparative appraisal of the pertinence of written examination and interview as a contributory determinant for an overall assessment of a candidate to be drafted in any public service, observed as hereunder:-
It is now well recognized that while a written examination assesses a candidate's knowledge and intellectual ability, an interview-test is valuable to asses 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, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability 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.
The above profound comprehension has since reverberated in umpteen renditions in consolidation and consummation thereof. To reiterate, whereas in K.H.Siraj (supra) involving induction in the post of Munsif Magistrate in the Kerala Judicial Service, their Lordships had held that the High Court is vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to man the subordinate judiciary, and that, the interview is the best mode of assessing the suitability of a candidate for a particular position. In Delhi Bar Association Vs. Union of India & Ors., (2002) 10 SCC 159, the Hon'ble Apex Court has held that a judicial officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments, and the like. It was observed that existence of such capacities can be brought out only in an oral interview and it is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the Institution. This indeed, has been the proponent unflinching judicial mandate firmly endorsing the prelacy of the segment of interview qua written examination in a participatory process for recruitment to any public office, more particularly, judicial service. Any statutory prescription enjoining oral interview/viva-voce to be a constituent of such an exercise and obligating norms to fix an index of suitability for eventual selection for recruitment thus, cannot be repudiated per se to be illegal and unconstitutional, so as to exclude invocation of the Doctrine of Estoppel grounded on the conduct of approbation and reprobation.
In Kunal Kishore & Anr. (supra), a Division Bench of the Delhi High Court was seized with the challenge to a process for direct recruitment to the Delhi Judicial Service conducted in terms of the Delhi Judicial Service Rules, 1970 amended vide Delhi Judicial Service (Amendment) Rules, 2008 enforced with effect from 15.12.2008. The amendment prescribed the requirement of a minimum of 50% mark in the viva-voce for the General Category and 45% marks for the Reserved Category, as a qualifying norm. The examination process however, had been commenced in the month of August, 2008 and preliminary examination in connection therewith was held before the enforcement of this amendment. The final examination was held after the amendment was brought into force. The requirement of minimum percentage of marks in viva-voce was assailed on the ground that it had not been provided by the Rules in force when the process had been initiated. Their Lordships, in the contextual facts, noticed that steps to incorporate the provision pertaining to the minimum percentage of marks in the viva-voce in the rules had been taken, on being approved by the Full Court before the process of recruitment had been put in motion by issuing the advertisement relating thereto. The prospective candidates were also put to notice of the said prescription of minimum marks to be obtained in the viva-voce and the amendment was enforced prior to the main written examination and the viva voce. It was held that the rules thus did not provide for any retrospective application. Vis-a-vis the recruitment process involved, it was held that the intent to bring the amendment into force being clear and was entertained prior to the issuance of the advertisement and as the petitioners therein being fully aware of the amendment had participated in the examination and the viva-voce, their challenge after being rendered unsuccessful, was not sustainable.
It cannot be gainsaid that the Justice Shetty Commission Recommendations are yield of an exercise informed with explorative exhaustiveness and insight. The Rules in hand are substantially designed on the model recommended by this Commission.
Noticeably, the next process for recruitment to the Civil Judge cadre has meanwhile been initiated as well in terms of the same Rules and is presently underway.
Be that as it may, in the singular factual perspectives, we are left unpersuaded to entertain the challenge, as laid in the instant petition, at the instance of the petitioners, unsuccessful candidates, who had participated in the process initiated by the advertisement dated 22.7.2011 in terms of the Rules and has since been completed in all respects. In our firm opinion and having regard to the unambiguous judicial pronouncements on the Doctrine of Estoppel, as narrated hereinabove, the impeachment of the second proviso to Rule 24 by them, ought not to be entertained.
Ordered accordingly.
In view of this conclusion, we refrain from examining, on merits, the dissensus pertaining to the bearing of the Justice Shetty Commission Recommendations on the second proviso to Rule 24 of the Rules.
The petition is therefore, rejected. The stay application also stands dismissed.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, PA