Kerala High Court
Jayachandran.C vs The High Court Of Kerala on 13 September, 2010
Author: J.Chelameswar
Bench: J.Chelameswar, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16206 of 2010(R)
1. JAYACHANDRAN.C., AGED 38,
... Petitioner
Vs
1. THE HIGH COURT OF KERALA, REPRESENTED BY
... Respondent
2. THE REGISTRAR (SUBORDINATE JUDICIARY),
3. STATE OF KERALA, REPRESENTED BY THE
4. KRISHNAKUMAR.P., S/O.G.P.PANICKER,
5. SMITHA.M., UPHAR, UDAYA NAGAR,
6. MUHAMMED RAEES, S/O.MUHAMMED BASHEER,
7. SULEKHA.M., PANAMVILAKAM VEEDU,
8. BALAKRISHNAN K.K., KARIYANGATTE HOUSE,
9. NAZEERA.S., 8/61, NELSA,
10. BABU.K., CHARUVILA PUTHEN VEEDU,
11. KAUSER EDAPAGATH, ZAHIRA,
12. BADHARUDEEN.A., PANAYIL VEEDU,
13. MANILAL C.S., CHENNATTU HOUSE,
For Petitioner :SRI.MATHAI M PAIKADAY(SR.)
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :13/09/2010
O R D E R
J.Chelameswar, CJ. & P.R.Ramachandra Menon, J.
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W.P.(C)Nos. 16206 and 16207 of 2010
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Dated this the 13th day of September, 2010
JUDGMENT
J.Chelameswar, CJ.
These two Writ Petitions are inter connected. The challenge in these two Writ Petitions is with regard to the selection and appointment of respondent Nos.4 to 13 to the Kerala Higher Judicial Service as District and Sessions Judges. The respondent Nos. 4 to 13 are same in both the Writ Petitions. The facts leading to the litigation are as follows:
2. The first respondent issued the Notification dated 16.04.2007 inviting applications for appointment to the post of District and Sessions Judges to the Kerala Higher Judicial Service through Direct Recruitment from the Bar.
As per the said Notification, the recruitment process was WP(C) Nos. 16206 and 16207 of 2010 -:2:- initiated for filling up of six vacancies in the above mentioned service. Three stipulations made in the notification are relevant for the purpose of the decision in these writ petitions. They are:
(i) Candidates must not have completed the age of 47 years (as on 01.01.2007).
(ii) The selection process consists of a written examination and viva-voce. The written examination consists of three papers carrying 200 marks each and viva-voce for 50 marks.
(iii) A candidate is required to secure a stipulated cut off mark in the written examination to be qualified for being called for viva-voce.
Under Clause 6 of the Notification, it has stipulated that the rules relating to reservation in the matter of appointment of Backward Classes, Scheduled Castes and Scheduled Tribes, as envisaged under Part II of the Kerala State and Subordinate Service Rules (Rules 14 to 17) shall apply to the selection WP(C) Nos. 16206 and 16207 of 2010 -:3:- process in question*.
-------------------------------------------------------------------------------------- * "A candidate for appointment as District Judge from Bar shall satisfy the following conditions:
xx xx xx
(b) He shall not have completed 47 years of age on the
first day of January, 2007.
xx xx xx
The Kerala Higher Judicial Service Examination for selection of candidates for appointment as District and Sessions Judges shall consist of written examination and viva-voce. The written examination shall consist of three papers, each paper carrying a maximum of 200 marks. The duration of each paper will be three hours. General candidates and candidates belonging to Other Backward Classes securing not less than 50 per cent marks and candidates belonging to Scheduled Caste and Scheduled Tribes securing not less than 40 per cent marks in each paper of the written examination shall alone be eligible for being called for viva-voce. Maximum marks for viva-voce shall be 50. The merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and viva-voce.
xx xx xx The rules relating to reservation of appointment for Backward Classes, Scheduled Castes and Scheduled Tribes contained in Part II of the Kerala State and Subordinate Service Rules (Rules 14 to 17) shall apply to appointment by direct recruitment, subject to the condition that the benefit in the case of Other Backward Classes will be available only to those who do not belong to the creamy layer of the respective communities". WP(C) Nos. 16206 and 16207 of 2010 -:4:-
3. In response to the said Notification, 960 "valid applications" were received by the first respondent. The said 960 applicants were invited to participate in the selection process. But it appears that eventually, only 443 applicants appeared for the written examination, which was conducted from 27th to 29th October 2007. After the written examination, the answer scripts of the above mentioned participants were evaluated and it was found that only seven candidates obtained "cut off" marks in the written examination. 'Cut-off', i.e., the minimum qualifying marks to be secured by the candidates in each of the papers for qualifying the examination as specified in paragraph 4 of the Notification dated 16.04.2007. The relevant portion of paragraph No.4 of the Notification reads as follows:
"The Kerala Higher Judicial Service Examination for selection of candidates for appointment as District and Sessions Judges shall consist of written examination and viva-voce. The written examination shall consist of three papers, each paper carrying a WP(C) Nos. 16206 and 16207 of 2010 -:5:- maximum of 200 marks. The duration of each paper will be three hours. General candidates and candidates belonging to Other Backward Classes securing not less than 50 per cent marks and candidates belonging to Scheduled Caste and Scheduled Tribes securing not less than 40 per cent marks in each paper of the written examination shall alone be eligible for being called for viva-voce. Maximum marks for viva-voce shall be 50.. The merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and viva-voce."
It can be seen from the above extract that 'cut off' marks, in so far as candidates belonging to Scheduled Castes/Scheduled Tribes is 40% in each of the papers in the written examination while it is 50% with reference to the candidates belonging to other categories. Of the above mentioned seven candidates, it appears that one candidate belongs to Scheduled Caste category, three belong to OBC and the remaining candidates belong to open category.
4. A Committee of Judges, known as "Recruitment Committee", consisting of first five Judges of this Court, in a WP(C) Nos. 16206 and 16207 of 2010 -:6:- meeting held on 22.09.2008, opined that "it may not be possible" to obtain sufficient number of candidates to fill up the notified vacancies, in view of the fact that only seven candidates secured the minimum qualifying marks for being called for viva-voce and the number of vacancies sought to be filled up is six. In view of such an opinion, the Committee further resolved "to award" 20 marks by way of moderation in all the three papers of the written examination to all the candidates, who appeared for the examination. A final mark list of candidates, after giving the benefit of above resolution, was prepared and was approved by the Recruitment Committee. It is also recorded in the minutes dated 22.09.2008 that on giving the benefit of above mentioned moderation, forty five candidates became qualified for being called for the viva-voce.
5. Of the above mentioned 45 candidates, two candidates, i.e., one Muhammed Raees M and the petitioner in W.P.(C)No.16207 of 2010 (Minu Mathews) secured employment in the interregnum between the notification and viva-voce. WP(C) Nos. 16206 and 16207 of 2010 -:7:- Therefore, a decision was taken by the Recruitment Committee that the above mentioned two persons were not to be permitted to participate in the further selection process. Aggrieved by the said decision, two Writ Petitions came to be filed by the above mentioned persons. Finally, in view of the decision in W.A.No.2292 of 2008, arising from W.P.(C)No.34161 of 2008 filed by Muhammed Raees, both the above mentioned persons were permitted to participate in the viva-voce, though against the judgment in W.A.No.2292 of 2008, the first respondent herein carried the matter to the Supreme Court by way of SLP No.4203 of 2009.
6. To add another complication to the whole process, in the meanwhile the Kerala Higher Judicial Service Rules came to be amended by G.O.(P)No.98/2008/Home dated 09.06.2008, which was published in Kerala Gazette dated 12.06.2008. One of the changes brought about by the said amendment is that while prior to the amendment, the said Rules provided a limitation of upper age limit of 47 years for the WP(C) Nos. 16206 and 16207 of 2010 -:8:- candidates seeking for appointment as District and Sessions Judges from the Direct Recruitment Category from Bar, the amendment stipulates a minimum age limit of 35 years and maximum age limit of 45 years. In view of the said amendment, the High Court once again took a decision to exclude the candidates, who do not qualify for being appointed as per the amended Rules. Consequent to the said decision, after excluding the candidates who were found ineligible as per the amended Rules, there remained only 29 candidates. Both the present writ petitioners were among those who were eliminated.
7. Finally, a list of six candidates was prepared by the Selection Committee, who were found fit for appointment pursuant to the notification dated 16.04.2007, at the end of the selection process. The said list was approved in a Full Court meeting and thereafter, the same was forwarded to the Government for issuance of appropriate orders of appointment.
8. In the meanwhile, some of the candidates who were excluded from consideration on the ground that they do not WP(C) Nos. 16206 and 16207 of 2010 -:9:- fall within the permissible age limits prescribed in the amended Rules, described earlier, approached this Court by various writ Petitions (seven in number) which were eventually allowed by a Division Bench of this Court by its decision dated 12.11.2009, holding that the amended Rules do not have any retrospective operation and therefore, elimination of candidates on the basis of the amended rule from the selection process is illegal. The said decision was unsuccessfully challenged before the Supreme Court by the first respondent and some others. The SLP was dismissed by order dated 15.12.2009. As a consequence of the judgment of the Division Bench dated 12.11.2009 referred to earlier, the first respondent once again re-opened the entire selection process to consider the cases of 16 candidates who were excluded earlier on the ground that they are not falling within the permissible age limits under the amended Rules.
9. Thereafter, the 16 excluded candidates mentioned earlier were subjected to the process of viva-voce and select list WP(C) Nos. 16206 and 16207 of 2010 -:10:- of the candidates was drawn up. At that stage, it appears that the 1st respondent decided that "the then existing four vacancies (which arose subsequent to the Notification) also be reckoned for the purpose of selection" in a Full Court Meeting held on 08.03.2010. It may be mentioned here that pursuant to the recommendation of the High Court, the 6 candidates, who were found suitable for appointment at the earlier stage of selection, before the decision of the Division Bench dated 12.11.2009, referred to earlier, were in fact appointed and were discharging the functions as District Judges. In view of the subsequent developments, three of the above mentioned six candidates were required to be removed from service, if only six posts are to be filled up. In view of the fact that the said 3 candidates belong to various reserved categories, the High Court opined that by increasing the number of posts to be filled up by taking into account the vacancies that arose subsequent to the notification the said 3 candidates' service have to be protected. Accordingly, a select list of 10 candidates was drawn WP(C) Nos. 16206 and 16207 of 2010 -:11:- up to fill up the above mentioned ten posts of District and Sessions Judges and the same was forwarded to the Government. From the counter affidavit filed by the first respondent, it appears that at that juncture, the Government was requested to invoke the inherent power under Rule 39 of the KS & SSR to protect the three candidates, whose services were found to be very satisfactory.
10. It may be mentioned for the sake of precision that pursuant to the Full Court decision dated 08.03.2010 to fill up 10 posts of District and Sessions Judges, a recommendation was sent to the State Government with the names of 9 candidates. One slot was kept unfilled in view of pendency of SLP No.4203 of 2009. The said slot pertains to turn No.42 of the roster prepared under the KS & SSR, which is earmarked to be filled up by a candidate belonging to OBC, falling under the sub category of Muslim. Eventually, when the said SLP was dismissed by the Supreme Court, even the said slot was recommended to be filled by appointing Muhammed Raees M. WP(C) Nos. 16206 and 16207 of 2010 -:12:- The said recommendations are still pending with the Government of Kerala and only the six candidates originally appointed are functioning.
11. Both the writ petitioners herein before us, though they were qualified initially for being called for viva-voce examination, as each of them secured the 'cut-off' marks in each of the three papers in accordance with the original stipulation contained in the Notification dated 16.04.2007, failed to secure appointment in view of the decision of the Selection Committee to award grace marks/moderation of 20 marks in each of the three papers to all the candidates participated in the written examination. By virtue of the said decision, some of the candidates, who would otherwise have been disqualified to be called for viva-voce examination on the ground that they failed to secure the cut-off marks in each of the three papers of the written examination, ended up having higher marks than the writ petitioners herein. Hence the present Writ Petitions.
WP(C) Nos. 16206 and 16207 of 2010 -:13:-
12. A Preliminary objection is raised regarding the maintainability of the present Writ Petitions by the respondent No.9, i.e., when both the writ petitioners herein had earlier approached this Court by way of two separate Writ Petitions [W.P.(C) No.14027 of 2009 was filed by C.Jayachandran, the petitioner in W.P.(C)No.16206 of 2010) and W.P.(C)No. 9289 of 2009 was filed by Minu Mathews, the petitioner in W.P.(C) No.16207 of 2010] questioning the decision of the High Court to exclude them from consideration on the ground that they were not falling within the permissible age limits as per the amended Kerala Higher Judicial Service Rules, the instant ground of challenge, i.e., the illegality of the decision of the High Court to provide moderation, was also available to the writ petitioners and the petitioners having failed to raise such a ground in the earlier Writ Petitions are debarred from raising such a ground afresh in these Writ Petitions either on the principle of constructive res judicata contained in Section 11, Explanation IV of the C.P.C., or on the principle envisaged under Order II, WP(C) Nos. 16206 and 16207 of 2010 -:14:- Rule 2 of the C.P.C.
13. The learned counsel for the petitioners however submitted that the preliminary objections are not tenable in view of the fact that the moderation granted pursuant to the decision of the Recruitment Committee dated 22.09.08 was not within the knowledge of the petitioners at the point of time when they had approached earlier this court in the year 2009. The learned counsel in support of such an assertion brought to our notice that the petitioner in W.P.(C) No. 16206 of 2010 made an application under the provisions of the Right to Information Act to the Information Officer of the 1st respondent on 5th March, 2010 enquiring whether any moderation or grace marks were granted to the candidates in the written test in issue. The said information was declined by the Public Information Officer of the 1st respondent by a letter dated 31.03.2010, marked as Ext.P8 in the abovementioned writ petition.
14. The learned counsel for the 9th respondent had relied upon the judgments of the Supreme Court in Executive WP(C) Nos. 16206 and 16207 of 2010 -:15:- Engineer, ZP Engg. Divn. v. Digambara Rao [(2004) 8 SCC 262], State of U.P. v. Nawab Hussain [AIR 1977 SC 1680], A.T. Sharma v. A.P. Sharma [AIR 1979 SC 1047], Forward Construction Co. v. Prabhat Mandal [AIR 1986 SC 391] and The Direct Recruit Class-II Engg. Officers' Assocn. v. State of Maharashtra [AIR 1990 SC 1607]. We do not consider it really necessary to examine in detail the above mentioned decisions. Suffice it to say, each of the above decisions deal with the various aspects of the doctrine of res judicata and their applicability to the proceedings under Article 226. The applicability of the question of res judicata to the proceedings under Article 226 is no more doubt; nor the applicability of doctrine of constructive res judicata. None of the above decisions, in our view, are relevant to the facts of this case. It must be noted that the dispute and the issue in the previous round of litigation was totally different. The question there was whether the elimination of the present petitioners from the consideration on the ground that they were not within the WP(C) Nos. 16206 and 16207 of 2010 -:16:- permissible limits of the age was legally tenable. On the other hand, the question in these two writ petitions is whether the decision of the 1st respondent to award moderation is legally sustainable. In the background, we are required to examine whether the doctrine of constructive res judicata could be pressed into service. In our opinion, judgment reported in State of U.P. v. Nawab Hussain [AIR 1977 SC 1680] throw sufficient light on the matter. The Supreme Court after taking note of two earlier decisions reported in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara (AIR 1964 SC 1013) and Devilal Modi v. Sales Tax Officer, Ratlam (AIR 1965 SC 1150) held:
".... the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi's case ....."
and further held:
"It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended himself by raising the other pleas .................... It was therefore not permissible for WP(C) Nos. 16206 and 16207 of 2010 -:17:- him to challenge ................".
Justice C.K.Thakker in his textbook on Code of Civil Procedure, referring to the above decisions, opined as follows:
In State of U.P. v. Nawab Hussain (AIR 1977 SC 1680), A, a sub-inspector of police, was dismissed from service by the D.I.G. He challenged the order of dismissal by filing a writ petition in the High Court on the ground that he was not afforded reasonable opportunity of being heard before passing the order.
The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an additional ground that since he was appointed by the I.G.P., D.I.G. had no power to dismiss him. The State contended that the suit was barred by constructive res judicata. The trial court, the first appellate court as well as the High Court held that the suit was not barred by res judicata. Allowing the appeal filed by the State, the Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and could well have been taken in earlier writ petition. The same principle applies to the pleas which were taken but not pressed at the time of hearing".
WP(C) Nos. 16206 and 16207 of 2010 -:18:- So, it appears clearly from the above that knowledge of the relevant fact is an essential ingredient to be ascertained before coming to a conclusion that a party ought to be barred from seeking a relief from this Court on the ground of constructive res judicata. The fact that the writ petitioners did not have the knowledge of the decision of the 1st respondent to grant moderation and the 1st respondent declined to divulge such information, in spite of the application by the petitioners, is clearly established. In the circumstances, we see no substance in the preliminary objection raised by the 9th respondent.
15. Under the scheme of the Constitution of India appointments of persons to be as District Judges in any State is mandated to be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to the State territories under Article 233*. For the purpose of
------------------------------------------------------------------------------ Art.233. Appointment of District Judges:(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. WP(C) Nos. 16206 and 16207 of 2010 -:19:- effectuating mandate of Article 233, the 1st respondent made the Rules known as the Kerala State Higher Judicial Services Special Rules, 1961, which were amended from time to time, and the same were published in the Kerala Gazette. The said Rules provide for some of the aspects of the procedure that is required to be followed by the High Court in providing necessary advice to the Governor to enable him to make appointments of District Judges. The categories of the posts of District Judges, the method of appointments to the said categories, the appropriate qualifications with reference to each of the categories of the posts etc; are some of the aspects specified under the rules.
16. On the date of the notification in question, the said rules provided for a service consisting of two categories of District Judges (now 3); the first category being the Selection Grade District and Sessions Judges and the second category being the District and Sessions Judges. The 6 posts which were initially notified and the 10 posts eventually sought to be filled WP(C) Nos. 16206 and 16207 of 2010 -:20:- up, which are the subject matter of the dispute in these writ petitions, belong to the abovementioned second category. It was stipulated under the rules that 1/3rd of the abovementioned second category were required to be filled up by direct recruitment from the members of the Bar and the balance of the posts to be filled up by promotion from the Kerala State Judicial Services (the further details of the category may not be necessary for the present purpose). It may be mentioned here that subsequent to the advertisement, the percentage of posts earmarked to be filled up by direct recruitment from the members of the Bar is reduced to 25% by an amendment of the rules.
17. Though the rules specify the percentage of the posts to be filled up from the members of the Bar, the rules are silent about the procedure of selection to be followed for selecting the candidates from the Bar. It is too well settled in law that any activity of any one of the organs of the State is required to be rational and non-arbitrary in a system of governance where WP(C) Nos. 16206 and 16207 of 2010 -:21:- the principle of the rule of law is all pervasive. Therefore,in order to satisfy the requirements of rationality of the procedure for selecting the suitable candidates to the post of District Judges from the members of the Bar, the High Court devised the system under which the candidates who otherwise satisfy the basic eligibility criteria such as the age, academic qualification etc., are subjected to a process of examination consisting of two components, (1) written examination and (2) viva-voce. Such procedure obviously enables High Court to make a comparative assessment on the merits of the various candidates seeking appointment. It is this decision of the High Court to have a system of examination which is incorporated in the notification dated 16.04.2007, specifying the nature of the selection process under para 4 of the said notification which is already extracted earlier in this judgment. Apart from that, both the note 2 of Rule 2 of the Special Rules, 1961 as well as paragraph 6 of the notification dated 16.04.2007 specified that, the rules relating to reservation of appointment from backward classes, Scheduled WP(C) Nos. 16206 and 16207 of 2010 -:22:- Castes and Scheduled Tribes etc; contained in Part II of the K.S & S.S.R were also applied to the recruitment in question.
18. We have already noticed that pursuant to the advertisement, a written examination was conducted in which initially only 7 persons were found to be successful in the sense that they secured cut off marks and became eligible for being called for viva-voce examination. The Selection Committee opined that such a limited number of successful candidates(7) would limit the choice in the matter of selection of the suitable candidates to fill up the posts of District Judges and therefore opined that, moderation to the extent of granting '20 marks' to each one of the candidates who appeared for the written examination in all the three papers is to be given. Such a decision obviously was taken on the belief that by adopting such a procedure, more number of candidates would be available for selection.
19. The question is whether such a procedure is rational and permissible consistent with the mandates of Articles WP(C) Nos. 16206 and 16207 of 2010 -:23:- 14 and 16 of the Constitution of India. The learned counsel for the petitioners Sri.Mathai M. Paikeday argued that the decision of the selection committee to award grace marks or moderation is wholly illegal in view of a long line of decisions of the Supreme Court which laid down the principle that in matters of recruitment into the services of the State, the rules could not be changed "midstream", as permitting such a change in the rules has the potential to give scope for arbitrary action in the process of recruitment. The learned counsel in this regard relied upon Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721], K. Manjusree v. State of A.P. [(2008) 3 SCC 512], Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC 11], Madan Mohan Sharma v. State of Rajastan [(2008) 3 SCC 724], T. Nadu Computer Science B.Ed. Graduate Teachers Welfare Society v. Higher Secondary School Computer Teachers' Association [(2009) 14 SCC 517] and Secretary, A.P.P.S.C. v. B. Swapna [(2005) 4 SCC 154].
20. The Supreme Court in (2008) 3 SCC 512 had an WP(C) Nos. 16206 and 16207 of 2010 -:24:- occasion to consider a similar question. The brief facts of the case before the Supreme Court are as follows. The selection of 10 posts of District and Sessions Judges in the Andhra Pradesh State Higher Judicial Services was in dispute before the Supreme Court. By a resolution of the Administrative Committee of the said High Court dated 30.11.2004, it was decided to have an examination for all the eligible candidates who responded to the notification. The examination was in two parts, written and oral. The resolution also provided for a minimum qualifying mark for the written examination which renders the candidates securing such minimum qualifying mark eligible for being called for viva-voce examination. The written examination was conducted and it was found that 83 candidates were successful on the basis of the minimum qualifying mark referred to earlier. On a subsequent date, on the basis of recommendation made by a sub-committee of the Judges of the Andhra Pradesh High Court, the High Court decided to apply a minimum qualifying mark criteria even with reference to the viva-voce component of WP(C) Nos. 16206 and 16207 of 2010 -:25:- the examination. As a consequence of such a decision, some of the candidates who were called for the viva-voce examination and secured higher total marks than some of the candidates selected after applying the minimum qualifying mark criteria in the viva-voce were eliminated from the selection process which resulted in litigation culminating in the above said decision. At paragraph 27 the Supreme Court held as follows:
"27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24.07.2001 and 21.02.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. WP(C) Nos. 16206 and 16207 of 2010 -:26:- Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them - P.K.Ramachandra Iyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Orissa."
(emphasis ours)
21. For coming to such a conclusion as the above extracted, the Supreme Court relied upon three earlier decisions of the Court referred therein. One of the said decisions, Umesh Chandra Shukla (supra), is also relied upon by the learned counsel for the petitioners. In the said case, recruitment to fill up certain posts of Delhi Judicial Service was in dispute. Such a recruitment was governed by the Rules known as Delhi Judicial Services Rules, 1970 made by the Lt. Governor of Delhi in exercise of the powers conferred by the proviso to Article 309 of the Constitution read with Article 234 of the Constitution. The WP(C) Nos. 16206 and 16207 of 2010 -:27:- rules also contain a provision that the selection process consists of a written examination followed by viva-voce. The rules also specified a minimum cut off mark in the written examination to qualify a candidate for being subjected to a further viva-voce examination. On evaluation of the papers of the written examination initially it was found 27 candidates qualified for participation in the further process of selection. However, by a Full Court decision of the Delhi High Court it was decided to grant two marks to each of the candidates in each paper by way of moderation for various reasons(the details of which may not be necessary for the present purpose). It was this decision to grant moderation became one of the issues before the Supreme Court in the above said case.
22. The Delhi High Court gave elaborate reasons in its counter affidavit which prompted the High Court to take a decision to grant moderation. The Supreme Court held that such a decision was illegal on the ground that, such a decision virtually tantamounted to amend the Delhi Judicial Services WP(C) Nos. 16206 and 16207 of 2010 -:28:- Rules which can only be made by the Lt. Governor (Administrator) after consulting with the High Court and not by the High Court alone. Apart from that, the Supreme Court also considered the effect of the decision of the High Court to grant moderation and observed at paragraph 13 as follows:
"13. The question for consideration is whether the High Court in the circumstances of this case had the power to add two marks to the marks obtained in each paper by way of moderation. It is no doubt, true that the High Court is entrusted with the duty of conducting the competitive examination under Rule 13 of the Rules. It is argued on behalf of the High Court that the power to conduct an examination includes the power to add marks either by way of moderation or by way of grace marks if it feels that it is necessary to do so, and reliance is placed by the High Court on its own post practice, and the practice prevailing in a number of universities in India, where marks are awarded either as moderation marks or as grace marks. It is true that in some educational institutions marks are awarded by way of moderation at an examination of the examining body finds any defect in the examination conducted by it such as inclusion of questions in the question papers which are outside the syllabus, extremely stiff valuation of the answer books by WP(C) Nos. 16206 and 16207 of 2010 -:29:- an examiner or any other reason relevant to the question papers or the valuation of the answer books. The reason given by the High Court for adding the moderation marks has nothing to do either with the question papers or with the mode of valuation. The High Court approved the list of 27 candidates who had secured the required qualifying marks which would enable them to appear at the viva-voce test as prescribed in the Appendix. Thereafter the High Court resolved to add two marks to the marks obtained in each paper by way of moderation on the ground that a few candidates who had otherwise secured very high marks may have to be kept out of the zone of consideration for final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed in the particular paper. The resolution does not show the names of the particular candidates considered at the meeting in whose case such a concession had to be shown. The affidavit filed on behalf of the High Court, of course, refers to certain hard cases which persuaded the High Court to add additional marks by way of moderation. The question for decision is whether such a resolution can be passed by the High Court which is entrusted with the duty of conducting the examination. The High Court had not WP(C) Nos. 16206 and 16207 of 2010 -:30:- found any defect in the question papers or any irregularities in the valuation of the answer books. It may be that some candidates had obtained high marks in some papers and by reason of their not obtaining the required marks in the other papers or 60% and above in the aggregate they may not have become qualified for the Viva Voce test. In our opinion this alone would not be sufficient to add any marks by way of moderation. It is relevant to note the mandatory character of clause (6) in the Appendix to the Rules which says only such candidates will be called for Viva Voce who have obtained 50% marks in each written paper and 60% in the aggregate except in the case of candidates belonging to the Scheduled Castes/Tribes in whose case the qualifying marks will be 40% in each written paper and 50%in the aggregate. Addition of any marks by way of moderation to the marks obtained in any written paper or to the aggregate of the marks in order to make a candidate eligible to appear in the Viva Voce test would indirectly amount to an amendment of clause (6) of the Appendix. Such amendment to the Rules can be made under Article 234 only by the Lt. Governor (Administrator) after consulting the High Court in that regard. In the instant case by resolving to add two marks to the marks obtained in each answer book by a candidate(sic) has virtually amended the Rules by WP(C) Nos. 16206 and 16207 of 2010 -:31:- substituting 48% in the place of 50% which is required to be secured in each written paper and 58% in the place of 60% which is required to be secured in the aggregate in the case of candidates not belonging to Scheduled castes/Tribes and 38% in the place of 40% in each written paper and 48% in the place of 50% in the aggregate in the case of candidates belonging to Scheduled Castes/Tribes. The adverse effect of the moderation on the candidates who had secured the required qualifying marks at the examination in question is quite obvious, since four candidates whose names were not in the list of 27 candidates published on the first occasion have been included in the first list of candidates chosen for appointment from out of the final list of successful candidates in preference to some of the candidates who had obtained the qualifying marks in the written papers and they would have been appointed as Sub-Judges but for the interim order made by this Court. These four candidates were able to get in to the list of persons to be appointed as Sub-Judges because of the high marks they were able to secure at the Viva Voce test for which they were not eligible but for the moderation marks. The area of competition which the 27 candidates who had been declared as candidates WP(C) Nos. 16206 and 16207 of 2010 -:32:- eligible to appear at the Viva Voce examination before such moderation had to face became enlarged as they had to compete also against those who had not been so qualified according to the Rules. The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra marks by way of moderation. In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the Viva Voce test should be the basis for selection. On reading Rule 16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall b sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. WP(C) Nos. 16206 and 16207 of 2010 -:33:- It may also result in the violation of the principle of equality and may lead to arbitrariness."
(emphasis is ours)
23. The facts situation on hand is similar to the fact situation observed in the above extracted portion of the judgment. The present two writ petitioners were among the seven successful candidates in the written examination who secured the cut off marks in each of the papers as stipulated by the notification. In view of the decision of the selection committee to award moderation though the writ petitioners still continued to be the successful candidates in the written examination, many more candidates artificially became eligible for being called for the viva-voce resulting in a heavier competition for the petitioners at the second stage of selection process, i.e., viva-voce. In the above extracted passage of the judgment (1985) 3 SCC 721, the Supreme Court held that the candidates who secured the minimum qualifying marks in the written examination acquire the right to be included in the list of candidates to be called for viva-voce examination and such a WP(C) Nos. 16206 and 16207 of 2010 -:34:- right cannot be defeated by enlarging the said list including certain other candidates who are otherwise ineligible.
24. The learned counsel appearing for the 1st respondent as well as the various counsel appearing for some of the respondents who are the beneficiaries of the decision of the Selection Committee to award moderation argued that in the absence of any express rules either prescribing the system of examination or prohibiting the grant of moderation, the 1st respondent(High Court) has the inherent power to grant such a moderation and such decision was taken to bring more number of people within the zone of consideration for being called for the viva-voce examination. The decision of the Selection Committee to grant such moderation to all the candidates who participated in the written examination without discrimination cannot be condemned as an arbitrary decision as the benefit was uniformly extended to all the candidates. It is further submitted that such a bona fide decision was taken in the larger interest of the institution to enable the institution to have a wider range of WP(C) Nos. 16206 and 16207 of 2010 -:35:- choice in the matter of appointment of District Judges.
25. We may make it clear that it is not the case of any one of the petitioners that the decision of the High Court to award moderation lacks in bona fides. The challenge is on a different ground that such a decision is impermissible in law and inconsistent with the requirements of Articles 14 and 16 of the Constitution of India. It need not be emphasised that every bona fide decision need not necessarily be a legally right decision. On the other hand, a decision which is ostensibly legal may still be liable to be declared illegal if the decision is vitiated by mala fides. The decision of the recruitment committee to provide moderation, in our view, is straight in the teeth of the decision of the Supreme Court in Umesh Chandra Shukla's case referred above.
26. Another aspect of the matter which is required to be examined is the stand of respondents 1 and 2 that if the selection was to be proceeded on the basis of the seven successful candidates who secured the cut off marks in the WP(C) Nos. 16206 and 16207 of 2010 -:36:- written examination, three candidates by name Smt.M.Sulekha, Sri.K.K.Balakrishnan and Smt.S.Nazeera who eventually found place in the list along with the 10 successful candidates prepared after allowing the moderation (the said three candidates belong to various reserved categories) would never have come up for consideration in the selection process but for the decision of the 1st respondent to award moderation. The learned counsel for the respondents also submitted that in view of Rule 14(e) Part II of K.S & S.S.R, the 1st respondent was within the permissible legal limits to grant moderation.
27. On the other hand, the learned counsel for the petitioners submitted that if some of the 10 slots sought to be filled up pursuant to the notification are reserved in favour of various categories of constitutionally protected classes, their interest could well have been protected. Rule 15 of the K.S & S.S.R specifically provides for such a situation. Rule 14 of the K.S & S.S.R stipulates the method and manner of effectuating rules of reservation in any service under the State of Kerala WP(C) Nos. 16206 and 16207 of 2010 -:37:- governed by the said rules. Under sub-rule (c) of Rule 14 an order of rotation in a cycle of 20 vacancies is specified which indicates the slots reserved in favour of the various reserved categories. Rule 14(a)* contemplates reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes which stipulates that in a cycle of 20 vacancies, 10 vacancies shall be reserved and 10 vacancies shall be filled up by open competition on the basis of merit. Insofar as the 10 slots reserved are concerned, two slots are to be filled by candidates belonging to Scheduled Castes/Scheduled Tribes
----------------------------------------------------------------------- *14(a) The unit of appointment for the purpose of this rule shall be 20, of which two shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for the other Backward classes and the remaining 10 shall be filled on the basis of merit:
[Provided that out of every five posts reserved for Scheduled Castes and Scheduled Tribes, one shall go to Scheduled Tribe candidate and the remaining four shall go to Scheduled Caste candidates and in the absence of a candidate to fill up the post reserved for Scheduled Tribe candidates, it shall go to a Scheduled Caste candidate and vice-versa.] WP(C) Nos. 16206 and 16207 of 2010 -:38:- and 8 slots are to be filled up by candidates belonging to OBC.
28. In Rule 17 of the abovementioned rules, OBCs are further sub-classified into various groups (details of which may not be necessary for the present purpose). Rule 15 contemplates the preparation of an integrated cycle combining the rotation in clause (c) of rule 14 and the rotation in sub-rule(2) of rule 17. It is the admitted case of all the parties herein that such an integrated cycle constituting 100 points is in operation and it is also the undisputed case that in the recruitment in question the posts sought to be filled up commence from slot No.37 which admittedly is an open slot available for open competition. Of the 10 posts which were eventually sought to be filled up reckoned from slot No.37, if some posts are earmarked for being filled up by candidates belonging to some reserved category or the other the scheme of K.S. & S.S.R appears to be is that if a suitable candidate is not available in any particular recruitment process for filling up of a vacancy reserved in favour of a particular community such WP(C) Nos. 16206 and 16207 of 2010 -:39:- vacancy is required to be kept unfilled and notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. Rule 15 (a) reads as follows:
"15(a). The integrated cycle combining the rotation in clause(c) of rule 4, and the sub-rotation in sub-rule(2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of these rules or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re-notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available Other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from WP(C) Nos. 16206 and 16207 of 2010 -:40:- available Scheduled Tribes candidates."
29. However, the learned counsel for the respondents placed reliance on clause (e) of Rule 14 to justify the procedure adopted by the 1st respondent in awarding moderation. Clause
(e) reads as follows:
"14. Reservation of appointments.- xx xx
(e) A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published.
Note:- 'Suitable candidates' for the purpose of this rule shall mean candidates with notified minimum qualifications and marks in selection procedure lowered to the extent necessary."
30. The learned counsel for the respondents argued lying emphasis on the note to clause (e) which contemplates lowering of the minimum marks to the extent necessary for identifying the suitable candidates belonging to reservation categories.
31. Clause (e) essentially stipulates the preparation WP(C) Nos. 16206 and 16207 of 2010 -:41:- of a supplementary list with reference to each community or group of communities belonging to the reserved categories in any selection for the purpose of finalising the select list in order to satisfy the requirements of rules of reservation. The expression 'suitable candidates' under clause (e) is sought to be explained under the note to mean a candidate who has the notified minimum qualifications and minimum marks in the selection procedure lowered to the extent necessary. According to the learned counsel for the respondents the decision to award moderation is an exercise of lowering the marks to the extent necessary to identify the suitable candidates belonging to the reserved candidates. We reject the submission for more than one reason, (1) granting of moderation to all the candidates who participated in the selection process without reference to the fact whether such candidate belongs to reserved category or not, is not contemplated under clause (e), (2) assuming for the sake of argument that granting of moderation (only in favour of candidates belonging to reserved categories) tantamounts to WP(C) Nos. 16206 and 16207 of 2010 -:42:- "lowering of marks to the extent necessary" for the purpose of identifying suitable candidates from the reservation categories, in our opinion, such an exercise is permissible only at the threshold, but not after the selection process commenced and (3) if such a procedure of lowering of the marks subsequent to the initiation of the selection process is permitted, the procedure contemplated under Rule 15 which provides for resort to the limited recruitment mentioned above, would become wholly redundant. It is well settled in law of interpretation of statutes that any construction of a provision which would render another provision of the same law redundant is to be avoided as far as possible. We do not see any reason why the construction such as the one suggested by the respondents should be accepted on the face of the express language of Rule 15(a).
32. In the result, we are of the opinion that the decision of the Selection Committee to grant moderation is unsustainable in law. Therefore, all further steps pursuant to the said decision would be unsustainable. The resultant WP(C) Nos. 16206 and 16207 of 2010 -:43:- situation is that only the seven candidates who were initially found eligible on the basis of their having secured the cut off marks in the examination should have been subjected to the viva-voce examination and an appropriate decision regarding their suitability to fill up the originally advertised 6 posts should have been taken by the 1st respondent in accordance with law.
33. However, in view of the subsequent decision of the 1st respondent to fill up 10 posts, the 1st respondent may now proceed with the selection from out of the 7 abovementioned candidates in accordance with law by recasting the select list. In view of the fact that some of the 10 posts sought to be filled up are required to be filled up by candidates belonging to reserved categories, if on such an exercise any of the vacancies of the abovementioned 10 posts sought to be filled up cannot be filled up for lack of a suitable candidate, the respondents should now resort to the procedure contemplated under Rule 15(a) of the K.S. & S.S.R. It goes without saying that it should be open to the respondents to prescribe such cut off marks as the WP(C) Nos. 16206 and 16207 of 2010 -:44:- minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances.
Both the writ petitions are allowed as above.
All impleading petitions are not-pressed. Dismissed.
J.Chelameswar, Chief Justice.
P.R.Ramachandra Menon, Judge.
lk/ttb/vku.