Rajasthan High Court - Jaipur
Rajender Kumar And Anr vs State Of Raj & Anr on 28 January, 2011
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R (1) D.B. Civil Writ Petition No. 568/2011 Rajesh Jain & Ors. vs. Rajasthan High Court & Anr. (2) D.B. Civil Writ Petition No. 15482/2010 Sanjeev Mago & Ors. vs. High Court of Judicature for Rajasthan & Anr. (3) D.B. Civil Writ Petition No. 16647/2010 Rajendra Kumar & Anr. vs. State of Rajasthan & Anr. Date of Order : January 28, 2011 PRESENT HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Alok Sharma, Sr. Advocate with Ms. Sheetal Mirdha ], for the petitioners.
Mr. Sanjeev Prakash Sharma, Sr. Advocate with Mr. Gaurav Sharma ] Mr. Sunil Samdaria ] Mr. G.S. Bafna, Advocate General with Mr. Veyankatesh Garg ] for the State.
Mr. A.K. Sharma, Sr. Advocate with Mr. Rajit Sharma, for the High Court.
**** ORAL ORDER (Per Arun Mishra, C.J.) REPORTABLE These writ petitions have been preferred with respect to the Rajasthan Higher Judicial Service Examination for which 58 posts were advertised on 15.04.2010, out of which, 36 were to be filled by direct recruitment and 22 were by limited competitive examination, to be conducted under Rajasthan Judicial Services Rules, 2010 (hereinafter referred to as the Rules of 2010). Writ petition No.568/2011 has been filed by the direct recruits, who are applicants for the aforesaid posts to be filled up by way of direct recruitment and other two writ petitions No. 15482/2010 and 16647/2010 have been filed by the Senior Civil Judges- cum- Judicial Magistrates, who are applicants for the posts to be filled by way of limited competitive examination. In these writ petitions, decision of the Full Court cancelling examinations and deciding to hold examinations afresh has been assailed.
2. Brief facts of the case are that on 30.03.2010, Rajasthan High Court had issued a notification, which was published in various newspapers, on 15.04.2010 inviting applications from practicing advocates for filling up vacant posts in the cadre of District Judge by direct recruitment in the Rajasthan Higher Judicial Services under the Rajasthan Judicial Services Rules, 2010. As per the said notification, 36 posts were advertised against the quota of direct recruitment to be filled from amongst practicing lawyers/ advocates, out of which, 20 posts were meant for the general category including 6 posts for women, apart from this, 5 posts were reserved for scheduled castes candidates including 1 post for scheduled castes women, 4 posts were reserved for scheduled tribes candidates including 1 post for women and 7 posts were reserved for the OBC candidates including 2 posts for women candidates. The notification contains the scheme of examination for the recruitment to the posts in issue, as per the Rules of 2010. The scheme comprised of written examination and thereafter an interview to test the suitability of the successful candidates.
Pursuant to the advertisement dated 15.04.2010, the petitioners applied for the posts in issue and they appeared in the examination conducted under the Rules of 2010 on 30.06.2010 alongwith about 3400 other candidates. On 16.08.2010, the result of written examination was declared. Only 37 candidates fulfilled the requirement of minimum marks in the written examination under the Rules of 2010. The petitioners were amongst the successful candidates.
On 30.08.2010, the Rajasthan High Court issued a notice notifying the dates of interviews for the candidates who were found successful in the written examination. The interviews were to be commenced at Jaipur from 01.09.2010 to 08.09.2010. The interviews of the successful candidates including petitioners were however postponed sine die.
3. Considering the various representations submitted by the members of different Bar Associations in respect of irregularities alleged to have been committed during the written examination for direct recruitment as well as in limited competitive examination held on 30.6.2010 in pursuance of Rules of 2010 and in the result declared on 16.8.2010, the then Chief Justice constituted a Committee of three Judges consisting of Justice Ajay Rastogi, Justice G.K. Vyas and Justice M.N. Bhandari vide order dated 03.09.2010 and 16.09.2010 for examining the grievances of agitating lawyers and also to give suggestions for resolving the dispute.
The Committee after considering the various representations of the Bar Council as well as Bar Associations and the entire matter including the Rules of 2010 submitted its report on 21.09.2010. The Committee found that for the purpose of direct recruitment, in all 3413 candidates appeared in the examination, out of which, 37 were declared successful, including 4 candidates who had appeared under the respective interim orders passed by the High Court and their matter was still sub-judice. The Committee also noted that 197 applications were received for limited competitive examination to be held for District Judges Cadre out of which 145 candidates were found to be eligible. In all 112 candidates/ officers appeared and 14 were declared successful in the written examination. The Committee further noted that before the selection could be made after holding the interview, agitation was started by the lawyers. Hence, interviews for both the categories were deferred sine die. Before the Committee, the Chief Coordinator of Lawyers Agitation submitted a letter on 21.09.2010 conveying that they do not want to allege regarding corruption in the process of selection and the representation submitted by them be considered only on legal grounds. Thus, the allegations of corruption made in the representations were withdrawn and they were not pressed.
4. The Committee after considering the representations and examining the legal infirmities opined that for 36 vacancies, 108 candidates were expected to be called for interview in the selection process for direct recruitment but in the present process, only 37 candidates were able to qualify in the written examination, with 50% marks in aggregate in both the papers consisting of law as well as language. Further, the committee observed that though the interview is the basic method of objective assessment but looking to the number of candidates who have qualified in the written examination, it becomes insignificant as for 36 vacancies, it was not possible to call for 108 candidates. Relying upon the decision of the Apex Court in K.H.Siraj Vs. High Court of Kerala, (2006) 6 SCC 395, the Committee was of the view that an oral test can disclose the overall intellectual and personal qualities of a candidate. As emphasised in the aforesaid decision, the Committee held that it would not be possible to adjudge the overall suitability of the candidates, objectively. The candidates to be finally selected, as contemplated in Rule 33 (iv), will not be available to the interview Committee for examining in its right earnest and there is all possibility that looking to the number of candidates who have finally qualified in the written examination, even if they are not able to fulfill the minimum eligibility requirement under the Rules, may be finally selected in terms of the procedure provided in the Rules of 2010. The Committee therefore opined that it is the duty of the High Court to look into before it intends to carry on the process any further.
The Committee further opined that there is basic infirmity under Rule 33 (2) of the Rules of 2010, as it was the duty of the High Court to have fixed the qualifying marks in the written examination, before the process was initiated. In the present process, the High Court did not fix the qualifying marks in the written examination nor any decision was taken in regard thereto. This should have been done before the process was initiated, in pursuance of the advertisement dated 15.04.2010. The Committee gave suggestion for scrapping of both the examinations. It also suggested other modes of filling up the vacancies by calling the candidates for interview and rest of the vacancies to be carried forward in the subsequent year. The Committee suggested that option may be provided to such applicants who intend to get their answer-sheets reevaluated/rechecked by a Professor of the subject or by a Judge of the High Court. The Committee further opined that both the examinations suffer from the same basic infirmities. Consequently, it would be desirable to cancel both the examinations.
5. Pursuant to the report submitted by the Committee, the matter was placed before the Full Court by way of circulation and the Full Court accepted the recommendations of the Committee to cancel both the examinations and to have a re-look to the Rules of 2010. The Full Court decided to scrap the examinations in its entirety and approved the suggestions of amending the Rules of 2010 in the interest of justice and that of the institution. The selection process was not to be proceeded any further, pursuant to Notification Nos. Estt. (RJS) 26/10 dated 15.04.2010 and Notification No.Estt. (RJS) 28/2010 dated 15.04.2010, and the examinations were to be held afresh. In compliance of Full Court Resolution, two orders were issued by the Registrar General on 22.09.2010, specifying that examinations shall be held afresh.
6. Thereafter, the matter was taken to the Apex Court by the petitioners in three writ petitions. By the order dated 03.01.2011, SLP No. 351/2010 was permitted to be withdrawn with liberty to approach the High Court by an appropriate petition. However, the two SLPs preferred by the incumbents who had appeared in limited competitive examination, had been dismissed as withdrawn on 8.11.2011 without specifically granting any liberty to approach the High Court with an appropriate writ. Hence, the present writ petitions have been preferred before this Court.
7. Shri Alok Sharma, Sr. Advocate; Shri Sanjeev Prakash Sharma, Sr. Advocate and Shri Sunil Samdaria appearing on behalf of the petitioners have submitted that cancellation of the examination for direct recruits as well as limited competitive examination was illegal. There were no infirmities in the Rules of 2010 and once the process was initiated and the result of written examination having been declared, the entire examinations could not have been cancelled. Reasons employed by the Committee that candidates three times the number of vacancies were not available for the purpose of holding the interview, could not have come in the way and the candidates who had been declared successful in the written examination, ought to have been interviewed and thereafter they should have been appointed. Qualifying marks were not necessary to be specified by the High Court. The candidates who had obtained requisite percentage, as prescribed under Schedule IX or Rule 32 of the Rules of 2010, were required to be called for interview. The High Court has prescribed the aggregate marks to be obtained in the paper of law as well as language. The candidates had acquired the requisite aggregate marks in both the papers. Consequently there was no rhyme or reason to cancel the examination. In fact, examinations were cancelled due to the ongoing agitation of the lawyers in the State, which cannot be regarded as valid ground.
In the case of limited competitive examination, it was not necessary to prescribe qualifying marks for the purpose of calling candidates for interview. Hence, the reasoning employed by the Committee could not hold good for selection on the basis of limited competitive examination. It was also submitted that minimum marks in each paper could have been taken as 50% to call the incumbents for interview so as to do complete justice to the candidates who had appeared in the examination. Limited competitive examination is a promotional exercise. The incumbents have served for a considerable period and as such it was not necessary to prescribe minimum passing marks in the interview. There was no infirmity in the selection process with respect to them. It was not necessary to have called candidates three times the number of vacancies for the purpose of interview. It was also submitted by Mr. Alok Sharma that revaluation of answer sheets is necessary to be gone into so as to clear the cloud cast on valuation. The assessment of service record of the candidate for limited competitive examination was required to be looked into. Therefore, the decision to cancel the examinations being bad in law, deserves to be quashed.
8. Shri G.S. Bafna, Advocate General appearing on behalf of the State and Shri A.K Sharma, Senior Advocate appearing for the High Court have submitted that there were basic infirmities in the entire selection process so held. The law paper and language paper were of 100 marks each and interview was of 20 marks. No minimum passing marks were prescribed in the paper of law and language. Thus, there was possibility of a person securing high marks in the language paper and having done miserably poor in the paper of law, being selected on the basis of language paper only. No minimum passing marks in the interview were prescribed for direct recruitment. It was necessary to provide for the minimum passing marks in the case of direct recruitmet as such candidates had not served in the judiciary and it was incumbent to testify the overall intellectual and personal qualities to adjudge their suitability, as emphasised by the Apex Court in catena of decisions. They have further submitted that before holding the examination qualifying marks were also not fixed by the High Court. Before declaring the result of written examination of the direct recruitment, it was not only necessary to fix the minimum passing marks but also the qualifying marks on the basis of which the candidates were to be called for interview. Thus, in the circumstances of the present case, holding of the interview would have been a farce. Besides, the Committee had also opined for revaluation of the answer sheets but the same was not provided under Rules of 2010 and as such it could not be resorted to. Hence, in larger interest decision for cancellation of examinations had been taken and no vested right of the petitioners have been taken away by the High Court. Consequently, it cannot be said that the High Court had acted arbitrarily and irrationally. In the facts and circumstances of the case, since mere participation in the process of selection does not confer any right to be appointed, the writ petitions being devoid of merits deserve to be dismissed.
We have been addressed at length on question of maintainability of two petitions which have been withdrawn in Supreme Court without liberty to file petition in the High Court. We find that in one of the petitions, out of three, permission has been granted by the Supreme Court to approach the High Court. Though it would have been appropriate to obtain the permission to file petition in the High Court so that we could ascertain reason behind withdrawal of the petition, however, in the light of decision of the Apex Court in Homfraygunj Martyrs Memorial Committee Vs. Union of India & ors., 2008 (1) Supreme 417, we proceed to decide the petitions on merits.
9. At the very outset, we may mention here that there was a large scale agitation by the Advocates in the State of Rajasthan with respect to the aforesaid examinations. Various kind of allegations were made and the entire judicial system was at a stand still for approximately a month. Reports on various kind of agitations have been placed on record in one of the petitions. We are conscious of the fact that nothing can turn on the basis of agitation. However, sensible decision was taken by the then Chief Justice in the prevailing situation by forming a Committee of three Judges to consider the infirmities in the process and to further undertake appropriate exercise within the parameters of the existing Rules of 2010. The Committee, after not only hearing the Bar Associations on the wake of ongoing agitations, but also after applying its mind to the Rules, ultimate number of candidates available for interview etc., came to the conclusion that it would not be possible to get the desired good stuff on the basis of the examination which had been conducted for direct recruitment and limited competitive examination. The report of the Committee was placed before the Full Court and the Full Court resolved that it would be appropriate to have a re-look at the Rules and accepted the recommendations of the Committee to scrap the entire examinations and further resolved to hold the examinations afresh.
10. It is a settled proposition of law that mere participation in the process of selection does not confer any right to be appointed. Even if a candidate is placed in the select list, he cannot claim any unfettered right for appointment. In the instant case, the process of selection had not been concluded and it was dropped/ cancelled at the stage of written examination itself. No select list had been prepared. At the same time, we are alive of the situation that the decision to scrap the examinations cannot be taken arbitrarily, on whim or caprice, it has to be taken on the basis of prevailing fact-situation. In case the decision has been taken on the basis of the factual scenario that it would not be possible to get appropriate meritorious candidates, within the frame-work of the examinations on the basis of which the written test was held, then the examination itself can be cancelled, as laid down by the Apex Court in the case of East Coast Railway & Anr. vs. Mahadev Appa Rao & Ors., (2010) 7 SCC 678.
11. Before proceeding further, it would be appropriate to take note of the relevant Rules 7, 8, 31, 32, 40, 41, 42 and 47(5) of the Rules of 2010, which are as follows:
7. Determination of vacancies.- (1) Subject to the provisions of these rules, the Court shall determine and notify the actual number of existing and expected vacancies in each cadre as per the time schedule specified in Schedule-III.
(2) Where the vacancies in the cadre are to be filled in by a single method, the vacancies so determined shall be filled in by that method.
(3) Where the vacancies in the cadre are to be filled in by more than one methods, the apportionment of vacancies determined under sub-rule (1), to each such method shall be done maintaining the prescribed percentage for the particular method taking into consideration the over all number of posts already filled in:
Provided that the apportionment for filling up vacancies in the cadre of District Judge, shall be made in a cyclic order of respective quota of each category, i.e. Promotee on the basis of merit-cum-seniority, Promotee on the basis of Limited Competitive Examination and the Direct Recruitee.
8. Examination.- For filling of vacancies in the cadre of District Judge and Civil Judge, examination shall be conducted by the Recruiting Authority, as per the time schedule specified in Schedule III.
31. Source of recruitment.- (1) Fifty percent posts in the cadre of District Judge shall be filled in by promotion from amongst Senior Civil Judges on the basis of merit-cum-seniority subject to passing of suitability test as provided under Schedule-VI.
(2) Twenty Five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted by the Court.
32. Recruitment by promotion.- (1) Fifty percent posts in the cadre of District Judge shall be filled in by promotion from amongst Senior Civil Judges recommended by the Court, on the basis of merit-cum-seniority, subject to passing of suitability test as provided in Schedule-VI.
Explanation:- Qualifying the eligibility test shall not affect the inter-se-seniority of the officers in the Cadre of Senior Civil Judges.
(2) The recruitment in the cadre of District Judges under sub-rule (2) of rule 31 shall be made by a Limited Competitive Examination conducted by the Court in accordance with the scheme of the examination prescribed under Schedule-VIII.
(3) A Senior Civil Judge who has completed actual five years service as on the first day of January preceding the last date fixed for the receipt of the applications shall be eligible for appearing in the Limited Competitive Examination for promotion to the Cadre of District Judge.
(4) For the purpose of Limited Competitive Examination, applications shall be invited by the Court from all eligible Senior Civil Judges in such manner and in such form as may be specified by the Court.
(5) Candidates who have obtained minimum 50% marks in the Limited Competitive Examination shall be eligible for interview by a Committee consisting of Chief Justice, Administrative Judge and two other Judges nominated by the Chief Justice. The Committee taking into consideration the performance at examination, the service record and the performance at the interview shall assess the suitability and recommend the names of officers for promotion.
40. Examination.- (1) A competitive examination for direct recruitment to the cadre of District Judge shall be held by the Court every year as per time schedule specified in Schedule-III.
(2) A Candidate who obtains such qualifying marks in written examination, as may be fixed by the Court, shall be called for interview.
Note:- Number of persons called for interview shall not exceed three times the number of vacancies advertised in each category.
(3) The Committee consisting of the Chief Justice, the Administrative Judge and two other Judges nominated by the Chief Justice shall interview the candidates.
41. List of selected candidates.- The Committee shall prepare the merit list category wise on the basis of aggregate marks obtained in written examination and interview considering the suitability in general.
42. Combined select list.- The Court shall prepare a combined select list putting the names of candidates in cyclic order as provided in Schedule-VII from the list prepared under sub-rule (1) and (5) of rule 32 and 41 and sent it to the Appointing Authority.
47(5) .- The seniority of direct recruitee vis-a-vis the promotee appointed to the cadre of District Judge shall be determined in the order of their names placed in the combined select list prepared under rule 42.
The Rule 7 of the Rules of 2010 provides for determination of vacancies. Proviso to Rule 7 contains that appointment in the cadre of District Judge shall be made in a cyclic order of respective quota of each category i.e. Promotee on the basis of merit-cum-seniority, promotee on the basis of Limited Competitive Examination and the Direct Recruitee. As per Rule 8, for filling up the vacancies in the cadre of District Judge and Civil Judge, examination shall be conducted by the Recruiting Authority, in accordance to the time schedule specified in Schedule III. It has been framed in the light of the decision in the case of Malik Mazhar Sultan & ors. Vs. Uttar Pradesh Public Service Commissions & ors., (2008) 17 SCC 703. Rules 31(1) of the Rules of 2010 provides that fifty percent posts in the cadre of District Judge shall be filled in by promotion from amongst Senior Civil Judges, on the basis of merit-cum-seniority, subject to passing of suitability test as provided under Schedule VI. Rule 31(2) provides that Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges, strictly on the basis of merit through limited competitive examination conducted by the Court in accordance with the scheme of examination prescribed under Schedule VIII. Rule 32(1) provides fifty percent posts in the cadre of District Judge to be filled in by promotion from amongst Senior Civil Judges recommended by the Court, on the basis of merit-cum-seniority, subject to passing of suitability test as provided in Schedule-VI. Rules 32(2) deals with the recruitment in the cadre of District Judges.
The eligibility for limited competitive examination has been prescribed in Rule 32(3). A Senior Civil Judge who has completed actual five years of service, as on the first day of January preceding the last date fixed for the receipt of the applications, shall be eligible for appearing in the Limited Competitive Examination for promotion to the Cadre of District Judge. Rule 32(5) provides that candidates who have obtained minimum 50% marks in the Limited Competitive Examination shall be eligible for interview by a Committee. It also provides that the Committee has to consider the performance at examination, the service record and the performance at the interview to assess the suitability and recommend the names of officers for promotion.
12. For the purpose of direct recruitment, the eligibility is provided in Rule 33. Rule 40 of the Rules of 2010 provides a competitive examination for direct recruitment to the cadre of District Judge to be held by the Court every year, as per time schedule specified in Schedule-III. Rule 40(2) lays down that a candidate who obtains such qualifying marks in written examination, as may be fixed by the Court, shall be called for interview. Rule 41 provides that the Committee shall prepare the merit list, category wise, on the basis of aggregate marks obtained in written examination and interview considering the suitability in general.
Rule 47 deals with the Seniority. Sub-rule (5) of Rule 47 provides the seniority of direct recruitee vis-a-vis the promotee appointed to the cadre of District Judge which shall be determined in the order of their names placed in the combined select list prepared under rule 42. Thus, combined select list under Rule 47(5) as contemplated under Rule 42 has to be prepared to accord the seniority. Schedule-VIII deals with the scheme for Limited Competitive Examination for promotion to the District Judge Cadre and Schedule-IX deals with the syllabus for direct recruitment to the District Judge cadre.
13. It is apparent from Schedule VIII and IX that; 1. Law paper was of 100 marks; 2. Language (i) Translation was of 50 marks, (ii) Precis of 50 marks; and 3. Interview was of 20 marks. No minimum passing marks were prescribed in the Schedule-VIII for the Law paper and Language paper. In Schedule-IX, for direct recruitment from bar, passing marks for interview were not prescribed, however, a provision was made to the effect that candidate securing fifty percent marks belonging to General category and Other Backward Classes, and 45% marks belonging to the categories of Scheduled Caste and Scheduled Tribe shall only be called for interview.
14. The aforesaid provision deals with the requirement of securing 50% marks to be called for the interview. It was necessary under Rule 40(2) to fix the qualifying marks for the direct recruits. It clearly provides that a candidate who obtains such qualifying marks in written examination, as may be fixed by the Court, shall be called for interview. At no stage, the qualifying marks were fixed. Thus, what emerges from the aforesaid scenario is that no minimum passing marks were prescribed in the Rules of 2010 or otherwise by the High Court for the paper of Law or Language or for interview for direct recruits, nor any qualifying marks were fixed by the High Court for the purpose of interview. Mentioning of 50% marks in Schedule-IX, for candidates belonging to General category and Other Backward Classes and 45% marks for the categories of Scheduled Caste and Scheduled Tribe and candidates securing above marks shall only be called for interview, cannot be said to be the marks required to be specified under Rule 40(2) of the Rules of 2010. The result of written examination was prepared on the basis of 50% aggregate marks obtained by the candidates, both in Law as well as Language papers, and they were declared eligible for the interview, without prescribing the minimum passing marks and also without prescribing qualifying marks, which was mandatory under Rule 40(2) of the Rules of 2010.
15. Thus, it is apparent that there was a room left, by operation of the Rules, to give rise to absurd results. It was submitted on behalf of the respondents that a person, who has secured 90% marks in Language paper and 10% marks only in Law paper could have been selected and interview was going to be a farce as no minimum passing marks for the same were prescribed. The entire procedure would have been fate accompli and would not have fetched meritorious candidates. Therefore, in the above situation, if the examinations were cancelled by the High Court on the basis of recommendations of the Committee, it cannot be said that the High Court has acted in an illegal or arbitrary manner. We find force in the submissions so raised. The Committee had rightly found that it was necessary to have prescribed the minimum passing marks and qualifying marks which was not done and considering the entire materials on record including the Rules of 2010, the committee has rightly recommended for cancellation of examinations.
16. As already stated above, 36 posts were advertised for direct recruitment. Number of persons to be called for interview were not to exceed three times the number of vacancies advertised in each category. The Committee has rightly opined that holding of interview for the selection of 36 candidates, as were available because one more person was found to be ineligible out of 37 who were declared passed, the holding of the interviews for 36 posts was not going to mean anything as no minimum passing marks for the same were prescribed and it would have been an empty formality. We find no force in the submission that after holding of the interviews, all the 36 candidates were required to be appointed by the High Court. The High Court has, in our opinion, rightly taken a decision to cancel the entire examination in the aforesaid factual scenario and for the aforesaid reasons.
17. Similar was the situation in the limited competitive examination. No minimum passing marks were prescribed for Language paper or the Law paper and only 14 candidates were to be interviewed. Though it was not necessary to prescribe minimum passing marks for interview in Limited Competitive Examination as it was limited to judiciary, but the total number of candidates who have been declared passed in the written examination were only 14 which were not enough to adjudge their suitability in Limited Competitive Examination, whereas the normal rule is that at least 1: 3 candidates are to be called. The Committee has rightly decided not to continue the process of limited competitive examination any further. Besides, the Committee has also opined that revaluation was necessary which may be resorted to in view of the complaints. Since revaluation was not permissible under the Rules of 2010, it could not have been undertaken either for direct recruitment or for the candidates who appeared in the Limited Competitive Examination.
However, criteria for consideration of the service record was also not prescribed for the Limited Competitive Examination. Under Rule 32(5), the candidates who have obtained minimum 50% marks in the Limited Competitive Examination shall be eligible for interview. Thus, there was possibility that only on the basis of Language paper, the incumbents could have taken the march. Thus, absurd results could not have been ruled out in a situation where the papers are compulsory and moderation was not resorted, scaling is not permissible and the revaluation could not have been undertaken in the absence of provision in the Rules of 2010. In our opinion, in the prevailing factual scenario, the decision was rightly taken by the High Court so as to hold the examination afresh and to have a re-look to the Rules of 2010 for which process has been undertaken and various amendments have been approved by the Full Court, in its last meeting.
18. It was further submitted by Shri Alok Sharma appearing on behalf of the petitioners that no minimum passing marks were required to be prescribed in interviews for direct recruitment in view of the Shetti Commission Report which has been accepted by the Apex Court in the case of All India Judges Association & ors. Vs. Union of India & ors., AIR 2002 SC 1752. He has further relied upon the decision in the case of Ramesh Kumar Vs. High Court of Delhi & Anr., (2010) 3 SCC 104.
19. In Ramesh Kumar (supra), the Apex Court has laid down that passing marks in interview cannot be prescribed once the process has been started. It is open to prescribe passing marks in the interview as it is desirable before starting the process of examination. The Apex Court has laid down, relying upon decision in the case of State of U.P. Vs. Rafiquddin, AIR 1988 SC 162; Krushna Chandra Sahu (Dr.) Vs. State of Orissa, (1995) 6 SCC 1; Manjeet Singh Vs. ESI Corpn., (1990) 2 SCC 367; and K.H. Siraj Vs. High Court of Kerala, (2006) 6 SCC 395 that Commission/ Board has to satisfy itself that a candidate who has obtained aggregate marks in written test has to qualify for interview and obtain sufficient marks in viva voce which would show his suitability for service. Such a course is permissible for adjudging qualities/ capabilities of candidates. Only persons with a prescribed minimum of said qualities/ capacities should be selected otherwise standard of judiciary would get diluted and substandard stuff may get selected. Interview may also be the best mode of assessing suitability of a candidate for a particular position as it brings out overall intellectual qualities of the candidates. While written test will testify a candidate's academic knowledge the oral test can bring out or disclose overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a Judicial Officer.
The Apex Court has summarised the law 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.
The Apex Court has laid down in para 10, 11, 12, 13, 14 and 15 as under:-
10. The aforesaid statutory provision undoubtedly does not fix any particular criteria or minimum Bench Marks either in the written test or in interview for the purpose of selection. Rule 10 provides that the High Court may hold such tests as may be considered necessary, it impliedly provides for requirement necessary for assessment of suitability of a candidate. There is no challenge to the validity of Rule 10 in these writ petitions. The question does arise as to whether the Rules enabled the High Court to fix the minimum Bench Marks for interview?
11. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162; Dr. Krushna Chandra Sahu & Ors. v. State of Orissa & Ors. AIR 1996 SC 352; Majeet Singh, UDC & Ors. v. Employees State Insurance Corporation & Anr. AIR 1990 SC 1104; and K.H. Siraj v. High Court of Kerala & Ors. AIR 2006 SC 2339, this Court held that Commission/Board has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained sufficient marks in viva voce which would show his suitability for service. Such a course is permissible for adjudging the qualities/capacities of the candidates. It may be necessary in view of the fact that it is imperative that only persons with a prescribed minimum of said qualities/capacities should be selected as 6 otherwise the standard of judiciary would get diluted and sub-standard stuff may get selected. Interview may also be the best mode of assessing the suitability of a candidate for a particular position as it brings out overall intellectual qualities of the candidates. While the written test will testify the candidates academic knowledge, the oral test can bring out or disclose overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a Judicial Officer.
12. Re-iterating similar views, this Court has given much emphasis on interview in Lila Dhar v. State of Rajasthan & Ors., AIR 1981 SC 1777; and Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. AIR 1987 SC 454 stating that interview can evaluate a candidates initiative, alertness, resourcefulness, dependableness, co-operativeness, 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 with some degree of error.
13. In Shri Durgacharan Misra v. State of Orissa & Ors. AIR 1987 SC 2267, this Court considered the Orissa Judicial Service Rules which did not 7 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 case, the Court placed reliance upon its earlier judgments in B.S. Yadav & Ors. v. State of Haryana & Ors. AIR 1981 SC 561; P.K. Ramachandra Iyer & Ors. v Union of India & Ors. AIR 1984 SC 541; and Umesh Chandra Shukla v. Union of India & Ors. AIR 1985 SC 1351, 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.
14.. Similarly, in K Manjusree v. State of Andhra Pradesh & Anr. AIR 2008 SC 1470, this Court held that selection criteria has to be adopted and declared at the time of commencement of the recruitment process. The rules of the game cannot be changed after the game is over. The competent 8 authority, if the statutory rules do not restrain, is fully competent to prescribe the minimum qualifying marks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is not permissible.
15. Thus, 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.
20. The learned Senior counsel Shri Alok Sharma has relied upon discussion made in para 18 of the judgment by the Apex Court in Ramesh Kumar (supra). Para 18 reads thus:
18. These cases are squarely covered by the judgment of this Court in Hemani Malhotra v. High Court of Delhi AIR 2008 SC 2103, wherein it has been held that it was not permissible for the High Court to change the criteria of selection in the midst of selection process. This Court in All India Judges case (supra) had accepted Justice Shetty Commissions Report in this respect i.e. that there should be no requirement of securing the minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer the appointment to candidates who had secured the requisite marks in aggregate in the written examination as well as in interview, ignoring the requirement of securing minimum marks in interview. In pursuance of those directions, the Delhi High Court offered the appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle. In such a fact-situation, the question of acquiescence would not arise.
What emerges from the aforesaid decision is that minimum passing marks could not have been prescribed in the midst of selection process. Thus, gauged in the instant case, there were such infirmities in the entire process which could not have been cured by holding the interviews. Neither the minimum passing marks in each written paper nor the qualifying marks were prescribed for direct recruits as is mandatory under Rule 40(2) of the Rules of 2010. The result was prepared only on the basis of 50% aggregate marks obtained by the candidates of General category and OBC and 45% marks for SC/ ST categories and minimum passing marks could not have been prescribed during the selection process. Further, on considering the number of candidates who were available and in view of the report of the Committee, in our opinion, it was rightly decided by the Full Court to scrap the entire process of the examinations, which were conducted for filling up the posts of District Judge cadre.
21. In K. Manjusree Vs. State of Andhra Pradesh & Anr., (2008) 3 SCC 512, the Apex Court has laid down that selection criteria has to be prescribed in advance. Rules of game cannot be changed afterwards. Prescription of minimum qualifying marks for interview was not permissible after the process for the same was over. The Apex Court has also laid down that minimum qualifying marks can be prescribed both for written examination and interview but such prescription has to be done before the process commences.
The Apex Court in Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11 has also laid down that prescription of minimum marks by the respondent High Court for viva voce, after written test was over, was not permissible. Initially there was prescription of minimum marks for written test only and not for viva-voce. However, minimum marks for the interview cannot be prescribed either during the selection process or after the selection process. The Hon'ble Court declined to reconsider the proposition of law as laid down, in this regard, in the case of Manjushree (supra).
22. In the instant case, the marks which were prescribed for Language paper were unduly excessive and such defect could not have been cured during selection process. Thus, there was possibility of leading to an absurd result and no useful purpose would have been achieved by taking further the process of selection. In Malik Mazhar Sultan & Anr. Vs. Uttar Pradesh Public Service Commission & ors., (2008) 17 SCC 703, time schedule was prescribed for filling up of posts by direct recruitment and promotion in subordinate courts which was being followed by the Court but it was not possible to take the process to its conclusion.
23. In Union of India & Anr. vs. Hem Raj Singh Chauhan & ors., (2010) 4 SCC 290, the Apex Court has laid down that there is a legitimate expectation for being considered for promotion which cannot be denied by unreasonable inaction on the part of the employer. The Apex Court has also laid down that rights of eligible employees to be considered for promotion have been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable inaction on the part of the Government of State of Uttar Pradesh stood in the way of the respondents' chances of promotion being fairly considered when it is due and delay has made them ineligible for such consideration. Further, the Hon'ble Court held that it is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
24. There is no dispute with the aforesaid proposition but the question is whether the High Court has acted arbitrarily or unreasonably in the circumstances. In the instant case, there is no delay whereas in the aforesaid decision, as noted by the Apex Court, there was delay in exercise of statutory function and no plausible reason was given. Thus, the ratio in that case has different field to operate.
25. In East Coast Railway & Anr. vs. Mahadev Appa Rao & Ors., (2010) 7 SCC 678, the Apex Court has laid down thus:-
14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the States decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.
It is apparent from the aforesaid dictum that no candidate acquires any indefeasible right to a post merely because he has appeared in the examination but at the same time, there is no unqualified prerogative of the State to act arbitrarily to disregard the merit of the candidates as reflected by the merit prepared at the end of selection. In the instant case, the selection process has not been completed and no merit list was prepared. Neither any right was accrued in favour of the petitioners nor infringed by the High Court.
26. Apart from that, cancellation of the examinations by the High Court could not be said to be illegal or arbitrary or on the basis of whim or caprice. The meaning of word `arbitrary' has been considered by the Apex Court in detail in the aforesaid dictum in para 19, 20 and 21, which are quoted as under:-
19. Blacks Law Dictionary describes the term arbitrary in the following words: 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious.
20. To the same effect is the meaning given to the expression arbitrary by Corpus Juris Secundum which explains the term in the following words: ARBITRARY Based alone upon ones will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to ones own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, nonrational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, arbitrary has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with willful.
21. . There is no precise statutory or other definition of the term arbitrary. In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. (AIR 1991 SC 537), this Court explained that the true import of the expression arbitrariness is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you. This is what men in power must remember, always.
Applying the aforesaid yardsticks, it cannot be said that decision of High Court in cancelling examinations in the present case is illegal or arbitrary.
Further, the Apex Court has laid down in paras 26 and 27 as under:-
26. If a test is cancelled just because some complaints against the same have been made howsoever frivolous, it may lead to a situation where no selection process can be finalized as those who fail to qualify can always make a grievance against the test or its fairness. What is important is that once a complaint or representation is received the competent authority applies its mind to the same and records reasons why in its opinion it is necessary to cancel the examination in the interest of purity of the selection process or with a view to preventing injustice or prejudice to those who have appeared in the same. That is precisely what had happened in Dilbagh Singhs case (supra). The examination was cancelled upon an inquiry into the allegations of unjust, arbitrary and dubious selection list prepared by the Selection Board in which the allegations were found to be correct.
27. Even in Tarun K. Singhs case (supra) relied upon by Mr. Malhotra an inquiry into the complaints received against the selection process was conducted no matter after the cancellation of the examination. This Court in that view held that since the selection process was vitiated by procedural and other infirmities cancellation thereof was perfectly justified.
27. In view of the aforesaid discussion, the decision of the Full Court in the instant case cannot be said to be illegal or arbitrary. The representations of Bar Associations were considered on legal aspects, coupled with the availability of the number of candidates to be interviewed. In the factual matrix, the decision cancelling examinations cannot be termed to be illegal, arbitrary, capricious or based on whims or under the pressure of the ongoing agitation, rather it was based on objective consideration.
28. It was also submitted by Mr. Sanjeev Prakash Sharma, Senior Advocate that reasons have to be recorded for exercising the power of cancelling the examinations. He has relied upon the decision in Union of India & Anr. Vs. Bhaskarendu Datta Majumdar, 2010 (9) SCC 38. In the instant case, various reasons have been given. Thus, it cannot be said that decision of cancelling the Limited Competitive Examination or examination for direct recruitment has been taken without giving any reasons.
29. It was also submitted by Mr. Sanjeev Prakash Sharma that the incumbents appearing in Limited Competitive Examination have taken leave of approximately two months as such it would not be fair to cancel the examination. Consequently, we had directed the counsel appearing on behalf of the High Court to apprise us as to how many candidates had taken leave. Shri A.K. Sharma, learned Senior Advocate appearing for the High Court has submitted a chart indicating that large number of candidates had taken leaves before examination on one reason or the other. He has also submitted that the High Court has already decided to fill up 22 posts this year on the basis of Limited Competitive Examination and to reserve 36 posts for direct recruitment. Efforts are being made to fill up the posts in the light of principles laid down in Malik Mazhar's case (supra).
30. In our opinion, no right can accrue to the petitioners to declare the result merely on the basis that they had taken the leave to appear in the examination for one reason or the other. What is desirable in such a situation is that such leaves of longer duration are not taken, that too were taken on one pretext or the other, before the examination, setting at naught the judicial function of several courts before the examination is held. Otherwise we cannot rule out the persons who are taking longer leaves have better chance of succeeding, as compared to those who are taking part in examination but have not taken the leaves and have continued to perform their effective judicial functions in the courts. We leave the matter at that in the judicial review and reject the submission of Shri Sanjeev Prakash Sharma.
31. For the reasons indicated above, we hold that the decision of the High Court cancelling the examination for direct recruitment as well as Limited Competitive Examination and deciding to conduct examinations afresh is perfectly just, proper and valid and it is well within the framework of law and competence. Neither it is tainted with malafide nor suffers from any illegality or vice of arbitrariness nor based on any extraneous consideration. The decision does not affect or infringe the right of the petitioners in any manner. The arguments so advanced on behalf of the petitioners have no legs to stand. Thus, no interference is required to be made by this Court with the impugned decision in exercise of the extra-ordinary writ jurisdiction under Article 226 of the Constitution of India.
In the result, we find no merit in the petitions and the same are hereby dismissed.
[RAGHUVENDRA S. RATHORE],J. [ARUN MISHRA],CJ. Gandhi/-