Gujarat High Court
Vinay Kumar S/O Hukam Chand Sharma vs High Court Of Gujarat & on 16 August, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/8793/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8793 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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VINAY KUMAR S/O HUKAM CHAND SHARMA....Petitioner(s)
Versus
HIGH COURT OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR V SHEKHAR, COUNSEL WITH MR DIGANT M POPAT, ADVOCATE
for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 2
LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 1
MR GM JOSHI, ADVOCATE for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/08/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) Page 1 of 46 HC-NIC Page 1 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT
1. This petition is filed under Article 226 of the Constitution of India, wherein the petitioner has prayed for the following relief/s:
"a) The Hon'ble Court may be pleased to allow the Writ Petition of the petitioner along with cost;
b) The Hon'ble Court may be pleased to held that Rule 8(3) of the Amendment Rules, 2011 in Gujarat State Judicial Service Rules be ultra virus, unconstitutional and illegal and against the settled law pronounced by the Hon'ble Supreme Court and the same may kindly be quashed and set aside in the interest of justice;
c) The Hon'ble Court may be pleased to issue a writ,m order or direction calling for the records of selection process of the year 2012-2013 pertaining to recruitment to Gujarat Higher Judicial Services-2012, conducted by the Respondent No.1 and set aside the final result dated 30.01.2013 and respondent No.1 be directed to prepare a fresh merit list on the basis of total marks obtained by the petitioner in the written examination as well as proportionate marks of the interview or by adding marks obtained by the petitioner in the written examination and marks given to the petitioner in the interview to place the name of the petitioner in the final select List;
d) The Hon'ble Court may be pleased to issue a Writ, Order or Direction quashing the condition of securing minimum 40% marks in interview for being qualified for final selection and may direct the Respondent No.1 to recommend the name of Page 2 of 46 HC-NIC Page 2 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT the Petitioner for appointment to Gujarat Higher Judicial Service to Respondent No.2 along with all consequential benefits:
e) The Hon'ble Court may be pleased to pass an appropriate order for appointment of the petitioner out of the available unfilled 55 posts from the ongoing selection process or from any future selection process;
f) Pending hearing and final disposal of this petition, YOUR LORDSHIPS my be pleased to pass ex-parte direction to the Respondent No.1 not to issue further advertisement inviting application for direct recruitment to the vacant posts in Gujarat H.J.S. From Bar during the pendency of the present Writ Petition.
g) Pending hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondents to keep one post vacant for the petitioner in the cadre of District Judge.
h) The Hon'ble Court may be pleased to pass any other order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. The factual matrix of the present case is as under:
2.1. It is the case of the petitioner that the State of Gujarat promulgated and notified the Gujarat State Judicial Services Rules, 2005 (hereinafter referred as the Rules of 2005). The recruitment to the cadre of District Judge in the State of Gujarat is governed by the Rules of Page 3 of 46 HC-NIC Page 3 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT 2005. Rule 5 provides for the method of recruitment, qualification and the age limit.
Rule 8 of Rules of 2005 provides for the competitive examination. The Rules of 2005 came to be amended on 23.06.2011 by Gujarat State Judicial Services (Amendment) Rules of 2011 (hereinafter referred to as the Amendment Rules of 2011).
2.2. That on 03.05.2012, an advertisement was issued inviting the applications from the eligible advocates for filling up 40 (15 regular + 25 adhoc)vacancies, existing in future in the cadre of District Judges by direct recruitment. The petitioner being eligible for the same, applied for the post in question and appeared in the written examination conducted by the respondent authorities. The said examination consists of two stages; preliminary examination and main written examination. It is the case of the petitioner that only 142 candidates could qualify after preliminary examination. Thereafter, the candidates who qualified in the preliminary examination were called to appear in the main written examination which was held on 26.08.2012 and which comprised of two papers of 100 marks each. It is the say of the petitioner that object of written examination was to assess the knowledge of candidates in substantive as Page 4 of 46 HC-NIC Page 4 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT well as procedural law, judgment pronounced by the higher Courts, judgment writing and the knowledge of Gujarati language.
2.3. It is further the case of the petitioner that from the bar, only 8 candidates out of 142 were qualified in the main written examination. The said result was declared on 21.12.2012. Petitioner was qualified in the main written examination and therefore he was called for interview on 09.01.2013 by respondent No.1.
2.4. The final result was declared on 30.01.2013 and displayed on the official website of the Gujarat High Court and only five candidates (four candidates from the Bar and one candidate - Ex- Presiding Officer, Fast Track Court) were declared successful after the interview for the post in the cadre of District Judge in the State of Gujarat.
2.5. It is the grievance of the petitioner that the recommendation for the appointment of the petitioner could not go through for the reason which the petitioner came to know later on that he failed to secure minimum 40% marks out of 50 marks which was prescribed as benchmark by the selection committee. It is the case of the petitioner that though the Rules of 2005 did not Page 5 of 46 HC-NIC Page 5 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT prescribe any such condition of securing benchmark at the interview level for being finally selected, such criteria was wrongly applied by the selection committee.
2.6.The petitioner filed a petition under Article 32 of the Constitution of India before the Hon'ble Supreme Court as he was not having knowledge of fixing of any benchmark through any statutory Rules. The Hon'ble Supreme Court issued the notice in the said petition and when the counter affidavit has been filed by the Registrar General of High Court of Gujarat, as per the petitioner, for the first time, he came to know that by way of amendment in the year 2011, benchmark i.e. 40% marks in the interview has been prescribed by such amendment.
2.7. The writ petition was heard by the Hon'ble Supreme Court from time to time and on 03.12.2014, the Hon'ble Supreme Court transferred the petition filed by the petitioner to this Court for consideration and disposal of the same on merits. After the matter was transferred to this Court, the petitioner sought permission to withdraw the said petition with a view to file a fresh petition and this Court by an order dated 28.04.2015, permitted the petitioner to withdraw the said petition with a liberty to file a fresh Page 6 of 46 HC-NIC Page 6 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT petition.
2.8. Accordingly, the petitioner has filed the present petition in which the petitioner has also challenged the vires of Rule 8(3) of Amendment Rules of 2011 and also prayed for other relief/s as stated hereinabove.
3. Heard learned counsel Mr. V. Shekhar with learned advocate Mr. Digant Popat for the petitioner and learned advocate Mr. G.M.Joshi for respondent No.1.
4. Learned counsel Mr.V.Shekhar for the petitioner mainly contended that the petitioner was declared successful in written examination. However, he was not selected and recommended for appointment as he could not secure 40% marks out of 50 marks which were fixed separately for interview. The fixing of cut off marks in the interview by the selection committee is without jurisdiction, particularly when no minimum marks for interview has been prescribed in the Rules of 2005, before the amendment is made in the year 2011. The petitioner was called by the respondent No.1 in the interview. However, the benchmark prescribed for qualifying the interview test is in contravention of the direction issued by the Hon'ble Supreme Court in the case of All India Page 7 of 46 HC-NIC Page 7 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Judges' Association v. Union of India, reported in (2002) 4 SCC 247.
4.1. Learned counsel would rely upon the recommendations of Justice Shetty Commission. In the report of Justice Shetty Commission, in clause No.10.97 (iv), it has been prescribed that, 'viva-voce Test should be in a thorough and Scientific Manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva-voce shall carry 50 marks. There shall be no cut off marks in viva-voce Test.' 4.2. Learned counsel would further submit that the Hon'ble Supreme Court in the case of All India Judges' Association (supra) also observed that subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission were accepted. Learned counsel therefore submitted that it means that prescription of cut off marks at viva-voce test by the respondent No.1 was not in accordance with the decision rendered by the Hon'ble Supreme Court in the aforesaid case.
4.3. Thus, while framing the Rules of 2005, minimum passing criteria of 40% in the viva-voce was not prescribed. Learned counsel referred to Rule 8(3) of the Rules of 2005 which was in Page 8 of 46 HC-NIC Page 8 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT existence prior to the amendment of 2011.
4.4. Learned counsel thereafter urged that the object behind not prescribing minimum passing criteria in viva-voce is that those who are coming to give viva-voce are already filter class after getting through the written examination which has minimum passing criteria and therefore the amendment of 2011 made in Rule 8(3) of Rules of 2005 has no reasonable nexus to the object sought to be achieved and such amendment is in violation of the direction issued by the Hon'ble Supreme Court in the case of All India Judges' Association (supra) as well as the recommendations of Justice Shetty Commission. Thus, by putting condition of securing minimum marks in the interview is violative of Articles 14, 16 and 21 of the Constitution of India and violative of the law laid down by the Hon'ble Supreme Court and therefore, the said rules be held ultra vires.
4.5. It is further submitted that while issuing the advertisement, the respondent No.1 has not stated about the amendment carried out in the year 2011 in the Rules of 2005. Even as per the information received by the petitioner, Amendment Rules of 2011 have not been published in the official gazette. Hence, the petitioner was not Page 9 of 46 HC-NIC Page 9 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT aware about such an amendment.
4.6. Learned counsel thereafter has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Hemani Malhotra v. High Court of Delhi, reported in (2008) 7 SCC 11, and more particularly, observations made in paragraphs 17 and 18 in which the Hon'ble Supreme Court has laid down that 'prescription of cut off marks in viva-voce test by the respondent was not in accordance with the decision of this Court'.
4.7. It is, therefore, submitted that the Hon'ble Supreme Court in the said case also specifically stipulated that no cut off marks in viva-voce test could be fixed. At this stage, it is further contended that the decision rendered in the case of Hemani Malhotra (supra) was approved by the Hon'ble Supreme Court in another decision i.e. in the case of Ramesh Kumar v. High Court of Delhi, reported in (2010) 3 SCC 104. It is, therefore, submitted that the impugned rule 8(3) of the Rules of 2005 amended in the year 2011 is not in accordance with the decision rendered by the Hon'ble Supreme Court in various cases and therefore, the same be held ultra vires.
4.8. Learned counsel for the petitioner thereafter Page 10 of 46 HC-NIC Page 10 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT has placed reliance upon an advertisement of Calcutta High Court issued on 09.04.2015 for holding examination for direct recruitment from Bar to the cadre of Higher Judicial Officer in the rank of District Judge in West Bengal Judicial Service, wherein the Calcutta High Court, relying on the decision rendered by the Hon'ble Supreme Court in the case of Hemani Malhotra (supra) has clearly mentioned in the advertisement that there would be prohibition in fixation of benchmark for viva-voce/personality test.
4.9. Learned counsel therefore submitted that the relief/s prayed for in the petition be granted and direction be given to the respondent No.1 to give appointment to the petitioner on the post in question. At this stage, learned counsel referred to the interim order dated 15.07.2015 passed by this Court whereby this Court directed that one post of Higher Judicial Service shall be kept reserved for the petitioner which shall be subject to the final decision in this matter.
5. On the other hand, learned advocate Mr. G.M.Joshi appearing for the respondent No.1 submitted that the advertisement for the post in question was issued on 03.05.2012, whereas the amendment to the Rules of 2005 in the form of Page 11 of 46 HC-NIC Page 11 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Rule 8 (3) was already notified on 23.06.2011 i.e. much before the commencement of the recruitment process. The said amendment of 2011 had already been published in the Gazette much before the advertisement was issued. Therefore, it is contended that the petitioner who is seeking an appointment to the post of District Judge is expected to know the law/rules before making statement in the writ petition before the Hon'ble Supreme Court to the effect that there is no provision for cut off marks for viva-voce test.
5.1. Learned advocate thereafter submitted that this Court may not entertain the petition only on the ground that the petitioner has taken part in the selection process with full knowledge of the prevalent rules and with open eyes. Petitioner has taken his chance and having failed in the process, he has chosen to challenge the process and the rules. Hence, petitioner is not entitled to get any relief on the ground of waiver and acquiescence.
5.2. At this stage, learned advocate Mr. Joshi referred to the advertisement issued on 03.05.2012 which is produced at page 64 of the compilation. Learned advocate Mr. Joshi referred to clause no.5 of the advertisement which Page 12 of 46 HC-NIC Page 12 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT provides for scheme of examination and syllabus, wherein clause 5(II)(B) provides for viva-voce (oral interview). Clause (iii) of the said clause further provides that for being eligible to be included in the select list, the candidate must have obtained minimum 40% marks in viva-voce. 5.3. Thus, it has been submitted that in the advertisement itself it has been specifically stated about minimum 40% marks to be obtained in viva-voce. Thus, when the petitioner has participated in the selection process after verifying various provisions contained in the advertisement, it would not be open for the petitioner to challenge the said condition when he has failed to obtain the minimum marks. Hence, on this ground the petition be dismissed.
5.4. Learned advocate thereafter would urge that High Court is justified in inserting the amendment in the rules providing for a benchmark of 40% in viva-voce. The respondent No.1 is making the recruitment to the posts in the judicial service of the State. The written test held by the recruiting agency would bring out the academic knowledge of the candidate reproduced in the form of writing while the viva-voce would bring out the capacity of the candidate to answer the questions that may crop up on the spot and would also give an opportunity to the Page 13 of 46 HC-NIC Page 13 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT interviewing body to assess the thinking capacity and the thinking process of the candidate. Learned advocate referred to Rule 8(3) of the Rules of 2005 as amended in 2011 and submitted that the said rule provides that the purpose of vive-voce examination is to assess the suitability of a candidate by judging mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like. It is contended that in absence of a benchmark, the only role of the candidate would be to appear for viva-voce without any effective participation. A candidate may be able to secure full marks in written test but may not speak a word in the viva-voce. Such a candidate may find place in the select list as compared to a candidate performing reasonable well in both the tests, if there is no benchmark prescribed for viva-voce. Therefore, the prescription of 40% minimum marks for viva-voce is reasonable and the same is directly relatable to the object that is sought to be achieved viz. to select best candidates for the post in higher judicial service. Hence, it cannot be said that the rule in question is violative of Articles 14 and 16 of the Constitution of India as alleged by the petitioner.
Page 14 of 46HC-NIC Page 14 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT 5.5. Learned advocate for respondent No.1 has thereafter referred to the copies of the Higher Judicial Service Rules framed by various High Courts and submitted that in the Rules framed by various High Courts, minimum benchmark is prescribed.
5.6. Learned advocate Mr. Joshi submitted that the decision rendered by the Hon'ble Supreme Court in the case of Ramesh Kumar(supra) relied upon by the petitioner would not be applicable to the facts of the present case. It is submitted that since in Delhi there were no service Rules for direct recruitment to the cadre of District Judge, the Hon'ble Supreme Court has taken a view that in absence of any statutory requirement of securing minimum marks in the interview, the concerned High Court ought to have followed the principle laid down in the case of All India Judges' Association. However, in the present case, there is a specific rule providing minimum benchmark for viva-voce and therefore, this judgment would not be applicable in the facts of present case.
5.7. Learned advocate Mr. Joshi thereafter submitted that the decision rendered by the Hon'ble Supreme Court in the case of Hemani Page 15 of 46 HC-NIC Page 15 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Malhotra (supra) would not be applicable in the facts of the present case. In the said case it is evident that previous procedure was not having any minimum benchmark for viva-voce. However, such minimum marks for viva-voce was prescribed after written test was conducted and therefore it was held that after the written test is conducted, it is not permissible to prescribe minimum marks for viva-voce.
5.8. Learned advocate Mr. Joshi has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court:
1 K.H.Siraj v. High Court of Kerala [(2006)
6 SCC 395].
2. Manish Kumar Shahi v. State of Bihar & Ors.[(2010) 12 SCC 576]
3. Mahinder Kumar & Others v. High Court of Madhya Pradesh through Registrar General & Ors., [(2013) 11 SCC 87] 5.9. Learned advocate Mr. Joshi has also placed reliance upon the decisions rendered by the High Court of Delhi in the case of Kunal Kishor & Anr. v. Lt. Governor & Anr. in WP (C) No.10787/2009 delivered on 21.05.2010 and in the case of Rajendra Kumar & Anr. v. The High Court of Delhi & Anr., delivered on 11.02.2011 in WP(C) No.607/2011. It is submitted that against the aforesaid decisions rendered by the High Court of Page 16 of 46 HC-NIC Page 16 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Delhi, Special Leave Petitions were filed before the Hon'ble Supreme Court. However, Hon'ble Supreme Court has summarily dismissed both the SLPs and thereby not interfered with the order passed by the High Court of Delhi. Learned advocate Mr. Joshi has therefore requested that this petition be dismissed.
6. We have considered the submissions advanced on behalf of the learned advocates appearing for the parties. We have also gone through the material produced on record and the decisions upon which the reliance is placed by the learned advocates for the parties.
7. In view of aforesaid submissions canvassed on behalf of learned advocates for the parties, following questions arise for our consideration:
1) Whether it is open for the petitioner to challenge the criteria prescribed under amended sub-rule (3) of rule 8 after having participated in the selection process and having failed to obtain minimum qualifying marks?
2) Whether the amendment made in sub-
rule (3) of rule 8 in the Rules of 2005, prescribing minimum qualifying marks of 40% in viva-voce conducted for direct recruitment to the cadre of District Judge Page 17 of 46 HC-NIC Page 17 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT and Civil Judge is violative of Articles 14 and 16 of the Constitution of India and the directions issued by the Hon'ble Apex Court in the case of All India Judges' Association (supra)?
8. For deciding the aforesaid questions, certain relevant undisputed facts are required to be considered:
8.1. The State of Gujarat framed the Rules of 2005 for recruitment to the cadre of District Judges.
Rule 5 thereof provides for method of recruitment, qualification and age limit, whereas Rule 8 provides for competitive examination. Rule 8, prior to coming into force the amendment of 2011, provides as under:
"8. Competitive examination:-
(1)(a) the competitive examination for recruitment to the cadre of District Judges shall consist of -
(i) a written examination of not less than two hours duration with 200 maximum marks.
(ii) A viva voce with 50 maximum marks.
(b) All candidates who obtain sixty percent or more marks or corresponding grade in the written examination shall be eligible for the viva voce.
(c) Selection of candidates shall be made on the basis of cumulative grade value obtained in the written examination and viva voce.Page 18 of 46
HC-NIC Page 18 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT (2)(a) The competitive examination for recruitment of Civil Judges shall consist of a written examination of not less than 2:00 hours duration with 200 maximum marks.
(i) Viva Voce of 50 marks.
(b) All candidates who obtain sixty
percent marks or more marks or
corresponding grade in the written
examination shall be eligible for the viva voce.
Provided that Scheduled Caste, Scheduled Tribe and Other Backward Class candidates who obtain fifty percent or more marks or corresponding grade in the written examination shall be eligible for the viva voce.
(c) Selection of candidates shall be made on the basis of cumulative grade value obtained in the written examination and viva voce;
(3) The object of the viva voce examination under sub-rules (1) and (2) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like, of the candidate.
(4) All necessary steps not provided for in these rules for recruitment shall be decided by the High Court.
(5) The mode of evaluating the performance and grading in the written examination and viva voce shall be as specified in Schedule "A"."
8.2. Sub-rule (3) of Rule 8 after the amendment Page 19 of 46 HC-NIC Page 19 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT which was notified on 23.06.2011 reads as under:
"(3) The minimum qualifying marks in the Viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of marks."
8.3. On 03.05.2012, an advertisement was issued inviting applications from the eligible advocates for filling up 40 vacancies existing and future in the cadre of District Judge by direct recruitment. In the said advertisement which is produced at page 64 of the compilation, it has been specifically provided in Clause 5(II)(B) as under:
"(II)(B) Viva-vode (Oral Interview):-
(i) Viva-voce (Oral Interview), shall be of 50 Marks.
(ii) The object of the Viva-Voce is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and Intellectual depth and the like, of the candidate.
(iii)For being eligible to be included in the Select List, the candidate must have obtained minimum 40% marks in Viva-voce."
8.4. Thus, in the advertisement itself it has been clarified that for being eligible to be included in the select list, the candidate must obtain Page 20 of 46 HC-NIC Page 20 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT minimum 40% marks in viva-voce. Petitioner was in knowledge of the aforesaid aspect though he has tried to plead ignorance about the same. In spite of that, he has participated in the selection process. Petitioner successfully cleared preliminary examination and main written examination and thereafter he was called for interview. Petitioner has failed to obtain 40% marks out of 50 marks prescribed as benchmark as per the rules and as per the advertisement and therefore, he is not selected. Thus, the petitioner, after having failed to secure minimum 40% marks out of 50 marks which was prescribed as benchmark, has challenged the rules as well as action of the respondent No.1.
9. Thus, in this background of facts and circumstances of the case, the questions framed hereinabove are required to be considered.
Question No.1 Whether it is open for the petitioner to challenge the criteria prescribed under amended sub-rule (3) of rule 8 after having participated in the selection process and having failed to obtain minimum qualifying marks?
10. In the case of K.H.Siraj (supra), Hon'ble Page 21 of 46 HC-NIC Page 21 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Supreme Court has observed as under:
1072. The appellants-petitioners, in any event, are not entitled to any relief under Article 226 of the Constitution of India for more reasons than one. They had participated in the written test and in the oral test without raising any objection. They knew well from the High Court's Notification that a minimum marks had to be secured both at the written test and in the oral test. They were also aware of the High Court decision on the judicial side reported in Remany vs. High Court of Kerala, 1996 (2) KLT 439. This case deals with prescription of minimum qualifying marks of 30% for viva voce test. C.S. Rajan, J., in the above judgment, observed as under: (KLT pp.441-42, para 5) 11"..On the basis of the aggregate marks in both the tests, the selection has to be made. In I.C.A.R's case, AIR 1984 SC 541 also the relevant rules did not enable the selection Board to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. In the Delhi Judicial Service's case also (AIR 1985 SC 1351, the rules did not empower the committee to exclude candidates securing less than 600 marks in the aggregate. Therefore, in all these cases, the Supreme Court came to the conclusion that prescription of separate minimum marks for viva voce test is bad in law because under the rules, no minimum qualifying marks were prescribed."
The High Court also relied on P.K. Ramachandra Iyer case and Umesh Chandra case.Page 22 of 46
HC-NIC Page 22 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT
73. The appellants-petitioners having participated in the interview in this background, it is not open to the appellants-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper. It was so held by this Court in paragraph 9 of Madan Lal Vs. State of J&K, (1995) 3 SCC 486 as under: (SCC p.493) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The Petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitions as well as the contesting respondents concerned.
Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that Page 23 of 46 HC-NIC Page 23 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla, 1986 suppl SCC 283, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protect and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
74. Therefore, the writ petition filed by the appellants/petitioners should be dismissed on the ground of estoppel is correct in view of the above ruling of this Court. The decision of the High Court holding to the contrary is in per incuriam without reference to the aforesaid decisions."
11. Keeping in mind the law laid down by the Hon'ble Supreme Court in the aforesaid decision, if the facts of the present case are considered, it is clear that the amendment in the impugned Rule came to be effected from 23.06.2011. The same was published in the Official Gazette and thereafter advertisement was issued on 03.05.2012 wherein also there is specific reference with regard to the minimum benchmark in viva-voce. The petitioner having participated in the interview fully knowing that 40% minimum benchmark is prescribed in the viva-voce, it is not open for Page 24 of 46 HC-NIC Page 24 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT him to turn around thereafter when he failed at the interview and contend that the provision of minimum benchmark for viva-voce is not proper. It is well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair.
12. Accordingly, our answer to question No.1 is that it is not open for the petitioner to challenge the criteria prescribed under amended Rule 8(3) after having participated in the selection process and having failed to obtain minimum qualifying marks.
13. However, when the petitioner has challenged the vires of sub-rule (3) of Rule 8 of the amended Rules of 2011 and the learned advocates have made submissions with regard to the same, we deem it proper to decide it in following terms.
Question No.2:
Whether the amendment made in sub-rule (3) of rule 8 in the Rules of 2005, prescribing minimum qualifying marks of 40% in viva-voce conducted for direct Page 25 of 46 HC-NIC Page 25 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT recruitment to the cadre of District Judge and Civil Judge is violative of Articles
14 and 16 of the Constitution of India and the directions issued by the Hon'ble Apex Court in the case of All India Judges' Association (supra)?
14. The petitioner has challenged the vires of sub-rule (3) of Rule 8 of the amended Rules of 2011 on the ground that it is violative of the direction given by the Hon'ble Supreme Court in the case of All India Judges' Association (supra) as well as the same is violative of Articles 14 and 16 of the Constitution of India. In support of the same, learned counsel appearing for the petitioner has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of All India Judges' Association (supra), in the case of Hemani Malhotra (supra) and in the case of Ramesh Kumar(supra).
15. In the case of All India Judges' Association (supra), the Hon'ble Supreme Court has observed that subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission were accepted.
16. In the case of Hemani Malhotra (supra), the Page 26 of 46 HC-NIC Page 26 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Hon'ble Supreme Court has observed as under:
"15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive- voce, test was illegal.
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17. At this stage this Court notices that as per the information supplied by the respondent to the petitioners under the provisions of Right to Information Act, the petitioner in Writ Petition Civil No. 490/2007 had secured 142 marks out of 250 prescribed for the written test and 363 marks out of 750 marks in vive-voce test, whereas the petitioner in Writ Petition No. 491/2007 had secured 153.50 marks out of 250 marks in the written test and 316 marks out of 750 marks in vive-voce test. There is no manner of doubt that the prescription of 750 marks for vive-voce test is on higher side. This Court further notices that Hon'ble Justice Shetty Commission has recommended in its Report that:
"The vive-voce test should be in a thorough and scientific manner and it should be taken anything between 25 Page 27 of 46 HC-NIC Page 27 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT to 30 minutes for each candidate. What is recommended by the Commission is that the vive-voce test shall carry 50 marks and there shall be no cut off marks in vive-voce test."
18. This Court notices that in All- India Judges Association and ors. V. Union of India and Ors. (2002) 4 SCC 247, subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission (supra) were accepted by this Court. It means that prescription of cut off marks at vive-voce test by the respondent was not in accordance with the decision of this Court. It is an admitted position that both the petitioners had cleared written examination and therefore after adding marks obtained by them in the written examination to the marks obtained in the vive-voce test, the result of the petitioners should have been declared. As noticed earlier 16 vacant posts were notified to be filled up and only five candidates had cleared the written test. Therefore, if the marks obtained by the petitioners at vive-voce test had been added to the marks obtained by them in the written test then the names of the petitioners would have found place in the merit list prepared by the respondent. Under the circumstances, this Court is of the opinion that the petitions filed by the petitioners will have to be accepted in part."
17. In the case of Ramesh Kumar(supra), the Hon'ble Supreme Court has held as under:
"15. Thus, law on the issue can be Page 28 of 46 HC-NIC Page 28 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT 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.
16. In the instant case, the Rules do not provide for any particular procedure/criteria for holding the tests rather it enables the High Court to prescribe the criteria. This Court in All India Judges' Association & Ors. v Union of India & Ors. AIR 2002 SC 1752 accepted Justice Shetty Commission's Report in this regard which had prescribed for not having minimum marks for interview. The Court further explained that to give effect to the said judgment, the existing statutory rules may be amended. However, till the amendment is carried out, the vacancies shall be filled as per the existing statutory rules. A similar view has been reiterated by this Court while dealing with the appointment of Judicial Officers in Syed T.A. Naqshbandi & Ors. v. State of J & K & Ors. (2003) 9 SCC 592; and Malik Mazhar Sultan (3) v. U.P. Public Service Commission (2007) 2 SCALE 159. We have also accepted the said settled legal proposition while deciding the connected cases, i.e., Rakhi Ray & Ors. v. The High Court of Delhi & Ors. vide judgment and order of this date. It has been clarified in Ms. Rakhi Ray (supra) that where statutory rules do not deal with a particular subject/issue, so far as the appointment of the Judicial Officers is Page 29 of 46 HC-NIC Page 29 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT concerned, directions issued by this Court would have binding effect.
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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 Commission's 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.
18. On the other hand, learned advocate Mr. Joshi appearing for the respondent No.1 has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Mahinder Page 30 of 46 HC-NIC Page 30 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Kumar (supra) in which the Hon'ble Supreme Court, after considering all the aforesaid three decisions rendered by itself, observed and held in para 68, 69, 71 to 75 as under:
"68. The learned Senior Counsel then relied upon K. Manjusree, wherein a question arose as to whether the procedure adopted by the Full Court in preparing a fresh selection list by applying the requirement of minimum marks for an interview, was legal and valid. It was in that context this Court ultimately held that introduction of minimum marks for interview, would amount to changing the rules of the game, after the game was played, which was clearly impermissible. At the very outset it will have to be pointed out that the facts of that case was entirely different with what we are concerned. In the present case, no such minimum marks in the interview, was prescribed for the purpose of selection. What all was done by the Selection Committee based on the power vested in the High Court, under Rule 7 and what was prescribed in para 9(iv) of the advertisement, was a pattern of selection in which the 25 marks allotted for interview was simply applied. No minimum marks to be secured in the interview was prescribed afresh after the selection process commenced and thereby, for anyone to state that there was any change in the 'rule of game' in order to interfere with the selection. We, therefore, do not find any scope to apply the said decision also to the facts of this case.
69. The learned Senior Counsel then relied upon All India Judges Assn., in particular para 37 to point out that: (SCC Page 31 of 46 HC-NIC Page 31 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT p.273) "37. Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted."
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71. Sub-paras (i) to (v) of para 10.97 of the Shetty Commission Report have been set out to show how while holding a written examination and a viva voce examination, prescription of marks and other aspects are to be followed. In fact those sub- paragraphs, contained in para 10.97 of the Shetty Commission Report, can at best be stated to be a guideline, which any High Court should keep in mind, while resorting to selection for filling up the posts in the Higher Judicial Service. In this extent, in para 28 of All India Judges Assn., the Court while prescribing the extent to which direct recruitment to the Higher Judicial Service for the post of Higher Judicial Service for the District Judges can be made, also said that appropriate rules should be framed by the High Court at the earliest possible time. Therefore, once the rules come into place it will have to held that what all that can be expected of the High Court, would be to follow the said rules. We have in this judgment held that by virtue of Rule 7 and para 9 (iv), the 1st respondent High Court had every authority to prescribe the procedure, while making the selection to the post of Higher Judicial Service and that such procedure followed was also rational.
72. The learned Senior Counsel then relied upon Remesh Kumar. The said decision in fact followed the principle that the rule of the game cannot be Page 32 of 46 HC-NIC Page 32 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT changed after the game was over as has been held in K. Manjusree. Therefore, the said decision does not improve the case of the petitioners.
73. Mr. Shrivastava, learned Senior Counsel appearing for the High Court, referred to para 27 of the decision reported in All India Judges Assn., wherein this Court has emphasised the necessity for ensuring a high degree of efficiency in the matter of recruitment to the Higher Judicial Service, while holding the competitive examination and viva voce examination. There can be no two opinions about the said principle and for that very reason we have held that the selection and appointment finalised and made by the 1st respondent High Court does not call for interference.
74. The learned Senior Counsel rightly placed reliance upon K.H.Siraj. In para 50, this Court has highlighted as to how the High Court was justified in evolving its own procedure, while making a selection to fill up a post in the Higher Judicial Service. Para 50 has already been extracted above [see para 65 above].
75. Applying the principles laid down by this Court, we find that the procedure adopted by the 1st respondent High Court was well in order and the same does not call for interference."
19. Even the Delhi High Court has in the case of Kunal Kishor (supra) after considering the decision rendered by the Hon'ble Supreme Court in the case of All India Judges' Association (supra), Hemani Malhotra (supra) and Ramesh Page 33 of 46 HC-NIC Page 33 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Kumar(supra), observed and held in para 25, 26, 27, 31 and 32 as under:
25. We have given our deep thought to the matter especially as the issue relates to the selection of persons to the judicial service. The endeavour is to get the best persons eligible as its impact is felt over a long period of time during which a judicial officer performs his duties. The citizens look to the judiciary for redressal of their grievances and the best talent available only must thus be recruited. In this context, the importance of a viva voce can hardly be not emphasized. The knowledge of law is essential but certain other parameters including the ability to appreciate law and finer points as compared to mere bookish knowledge can often emerge only during a viva voce. It is in this background that not only a certain percentage of marks prescribed for viva voce but a minimum benchmark to be achieved in viva voce is also sought to be prescribed by way of amendment to the DJS Rules.
26. There is no doubt that however salutary be the objective, it must be done in accordance with law. Thus, an endeavour to mid-stream change the rules of the game was frowned upon by the Supreme Court in Hemani Malhotra v. High Court of Delhi and connected matters' case (supra).
Thereafter, the High Court mistakenly thought that the powers vested under Rule 10 of the DJS Rules sufficiently empower it to prescribe the minimum marks in the viva voce for the year 2007.
27. In any case, insofar as the Page 34 of 46 HC-NIC Page 34 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT examination for the DJS Examination, 2008 is concerned, steps were taken to incorporate the intention by amendment to the DJS Rules. After due deliberations, the recommendation to amend the DJS Rules was made on 22.07.2008 and the Full Court approved the same on 01.08.2008.
Thereafter, the said Rules were forwarded for being notified. The fact that the Govt. of NCT of Delhi had no objection is apparent from the notification of the amended appendix/Rules on 15.12.2008.
However, in anticipation of the notification, in order to not delay the recruitment and in an endeavour to meet the mandates of various pronouncements of the Supreme Court for yearly recruitment, the process for DJS Examination, 2008 was put in motion by issuing the advertisement. The advertisement clearly provided for such minimum marks to be prescribed in the interview. Thus, not only were all prospective candidates put to notice of the prescription of minimum marks to be obtained in viva voce, but the amendment to the DJS Rules also came into place soon after the process of recruitment was put into motion and admittedly prior to the written examination and the viva voce.
28xxx xxx xxx
31. No doubt in Ramesh Kumar v.High Court of Delhi & Anr."s case (supra), the factum of the candidates having participated in the selection process did not come in the way of their being granted the relief. This was, however, so because the norms sought to be applied were found to have no sanction under the rules. However, the observations made in Union of India & Ors.
Page 35 of 46HC-NIC Page 35 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT v. S.Vinodh Kumar & Ors.'s case (supra) relying upon the observations in Chandra Prakash Tiwari and Ors. v.Shakuntala Shukla & Ors's case (supra) as also the observations in Madan Lal & Ors. v. The State of Jammu & Kashmir and Ors."s case (supra) emphasizing the importance of participation in an examination to negate a relief cannot be ignored. The petitioners in the present case knew that the existing rules did not provide for such minimum marks in viva voce though the advertisement sought to provide for the same. They were also aware that in December, 2008, the amendment came into force and thus the intention was to apply the amendment to the examination of 2008. The petitioners participated in the examination and the viva voce but on their non-selection on account of not having obtained minimum marks in the viva voce, sought to rake up this issue in the present petition. The petitioners were thus fully conscious that the rules now mandate obtainment of minimum marks in viva voce, appeared for the viva voce but on being unsuccessful seek to raise the issue of cut off date for application of viva voce.
32. We find that the conduct of the petitioners in continuing to participate in the main examination and viva voce without challenging the same would also stand in their way."
20. In the case of Rajendrakumar & Anr. (supra) once again the Delhi High Court considered all the aforesaid three decisions and thereafter observed in para 9 to 12 as under:
Page 36 of 46HC-NIC Page 36 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT "9. Having considered the arguments advanced by the counsel for the parties, we are in agreement with the submissions made by Mr Bansal that the first issue with regard to minimum marks being prescribed for the viva-voce examination already stands settled by virtue of the decision of another Division Bench of this court in the case of Kunal Kishor (supra).
That decision also referred to the Supreme Court decision in the case of Ramesh Kumar (supra) and came to the conclusion that prescription of minimum marks in the viva- voce test would be erroneous in the absence of any statutory rules in that behalf. The Division Bench observed as under:-
"14. The upshot of the aforesaid judgment thus is that unless there are statutorily specific rules providing for minimum marks for viva- voce, the existing rules would not permit such minimum marks for viva- voce to be prescribed."
10. It is, therefore, clear that once there are statutory rules which prescribe minimum marks for viva-voce, it cannot be contended that those minimum marks would not be applicable. A reference to paragraph 13 of WP (C) 607/11 Page No.6 of 10 the Supreme Court decision in the case of Ramesh Kumar (supra) would also clarify this. The same reads as under:-
"13. In Durgacharan Misra v. State of Orissa and Ors.: 1987 (4) SCC 646, this Court considered the Orissa Judicial Service Rules which did not provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling Page 37 of 46 HC-NIC Page 37 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT 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 and Ors. v. State of Haryana and Ors.: 1980 Supp SCC 524, P.K. Ramachandra Iyer and Ors. v. Union of India and Ors. 1984 (2) SCC 141 and Umesh Chandra Shukla v. Union of India and Ors.: 1985 (3) SCC 721, 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."
(underlining added) From the above, it is clear that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly.
11. Rule 15 of the DJS Rules clearly stipulates that syllabus for the examination and the fee payable shall be as detailed in the Appendix to the Rules. Rule 17 also stipulates that for the viva- voce test, the Selection Committee shall call only those candidates who have qualified in the written test as provided in the Appendix. The Appendix to the said Rules prescribes the syllabus as well as Page 38 of 46 HC-NIC Page 38 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT the other details with regard to the break- up of marks and the minimum qualifying marks. With regard to the viva- voce, the Appendix prescribes the following:-
"5) Viva-Voce : Viva-Voce will carry 150 marks. Only such candidates will be called for viva- voce who have obtained 40% marks in each written paper and 50% marks in the aggregate except in the case of candidates belonging to reserved categories i.e. Scheduled Castes, Scheduled Tribes and Physically Handicapped (Blind/Low Vision) (mobility not to be restricted) / Orthopaedically in whose case the qualifying marks shall be 35% in each written paper and 45% in the aggregate.
A candidate of general category must secure minimum 50% marks and a candidate of reserved category i.e. Scheduled Castes, Scheduled Tribes and Physically Handicapped (Blind/Low Vision) (mobility not to be restricted) / Orthopaedically must secure minimum 45% marks in viva-voce to be eligible for being recommended for appointment to the service.
12. Thus, the DJS Rules clearly stipulate that a candidate of the General Category must secure in the minimum 50% marks and a candidate of the reserved category, which includes the Scheduled Castes / Schedule Tribes, must secure a minimum of 45% marks in viva-voce to be eligible for being recommended for appointment to the service. Clearly, the stipulation of minimum marks in the viva-voce is provided for in the statutory rules. Therefore, the contention of the learned counsel for the petitioners cannot be accepted in view of the clear decisions of the Supreme Court in the case of Ramesh Kumar (supra) and of Page 39 of 46 HC-NIC Page 39 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT this court in the Kunal Kishor (supra). The minimum marks for viva-voce have been prescribed by the statutory rules and have to be strictly adhered to."
21. In the case of Hemani Malhotra (supra), the Hon'ble Supreme Court came to the conclusion that it was not permissible to change the rule of game midway during the selection process or when it is over. It was further held that even otherwise this course of action was not permissible to appointment of Delhi Higher Judicial Service as it was contrary to recommendations of Justice Shetty Commission's Report as approved by certain modification in All India Judges' Association's case where it is expressly provided that there should be no cut off marks for viva-voce.
22. Similarly, in Ramesh Kumar (supra) wherein the advertisement was issued in the year 2007 in respect of Delhi Higher Judicial Service. The prescription of minimum marks for the viva-voce this time prescribed by the advertisement itself. This was again challenged before the Hon'ble Supreme Court. The High Court sought to defend the decision by contending that the decision for fixing the cut-off marks in the written test and further for securing the minimum Bench Marks in the interview had been taken prior to initiation Page 40 of 46 HC-NIC Page 40 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT of selection process and was made public at the same time. The Hon'ble Supreme Court, therefore held 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.
23. Thus, from the aforesaid decision rendered by the Hon'ble Supreme Court, it can be culled out that unless there are statutorily specific rules providing for minimum marks for viva-voce, the existing rules would not permit such minimum marks for viva-voce to be prescribed. In the present case, as discussed hereinabove, there are specific statutory rules framed by respondent No.1 by which minimum benchmark has been prescribed and therefore in the present case the decisions upon which the reliance is placed by the learned counsel for the petitioner would not render any assistance to him.
24. However, recently in the case of Mahinder Kumar (supra) it has been observed by the Hon'ble Supreme Court that para 10.97 of the report of Page 41 of 46 HC-NIC Page 41 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT Justice Shetty Pay Commission can be at best be stated to be a guideline, which any High Court should keep in mind, while resorting to selection for filling up the posts in the Higher Judicial Service. In the said case, the Hon'ble Supreme Court has further observed that "in para 28 of All India Judges' Association (supra), this Court while prescribing the extent to which direct recruitment to the Higher Judicial Service for the post of District Judges can be made, also said that appropriate rules should be framed by the High Courts at the earliest possible time." Hence, it was held that once the rules come into place it will have to be held that what all that can be expected of the High Court, would be to follow the said rules.
25. Thus, in view of the later decision rendered by the Hon'ble Supreme Court in the case of Mahinder Kumar (supra), we are not in agreement with the contention taken by the learned counsel appearing for the petitioner that the respondent No.1 has violated the direction given in the report submitted by Justice Shetty Commission as well as the direction rendered by the Hon'ble Supreme Court in the case of All India Judges' Association (supra).
26. Another submission canvassed on behalf of Page 42 of 46 HC-NIC Page 42 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT learned counsel for the petitioner is that the impugned prescription in the rule is violative of Articles 14 and 16 of the Constitution of India and no minimum benchmark is to be prescribed in the viva-voce.
27. The amended sub-rules (3), (4) and (5) of Rule 8 provide as under:
"(3) The minimum qualifying marks in the Viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of marks.
(4) merit list shall be prepared on the basis of total marks obtained in the written examination and Viva-Voce Test (interview).
(5) the object of the Viva-Voce Test (interview) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like, of the candidate."
28. From close scrutiny of aforesaid sub-rules of rule 8, we are of the view that in sub-rule (5) itself it has been stated that the object of Viva-Voce Test (interview) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, Page 43 of 46 HC-NIC Page 43 of 46 Created On Wed Aug 17 02:57:07 IST 2016 C/SCA/8793/2015 CAV JUDGMENT clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like, of the candidate. Thus, the object for which minimum benchmark is prescribed in the impugned rule has reasonable nexus with the object sought to be achieved. In fact the qualities which the Judicial Officer would possess are delineated by the Hon'ble Supreme Court in the case of Delhi Bar Association v. Union of India, reported in (2002) 10 SCC 159. A judicial officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. We are of the opinion that the respondent No.1 - High Court has therefore set a benchmark i.e. minimum 40% marks out of 50 marks in viva-voce.
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29. By introducing the impugned amendment the endeavour of the respondent No.1 is to assess the suitability of a candidate. This aspect is specifically stated by the respondent No.1 in para 9 of the affidavit-in-reply.
30. In the present case, as observed hereinabove, respondent No.1 has framed the rules in the year 2005 for recruitment in the cadre of District Judges and thereafter thought it fit to amend sub-rule (3) of Rule 8 in the year 2011. Thus, when the advertisement was issued on 03.05.2012 the amended Rules of 2011 was in force and therefore we are of the considered view that the decision relied upon by the learned counsel appearing for the petitioner in the case of All India Judges' Association (supra), Hemani Malhotra (supra) and Ramesh Kumar (supra) would not render any assistance to the petitioner. As discussed hereinabove, the amended rules were published and thereafter in the advertisement dated 03.05.2012 also the said aspect about 40% benchmark in viva-voce was already notified even though the petitioner participated in the said selection process and having been failed to obtain minimum benchmark as per the rules, now at later stage, he has challenged the action of the respondent No.1 as well as sub-rule (3) of Rule 8 of the Amended Rules of 2011.
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31. Accordingly, our answer to question No.2 is that the amendment made in sub-rule (3) of Rule 8 in the Rules of 2005 prescribing minimum qualifying marks of 40% in viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge is neither in violation of Articles 14 and 16 of the Constitution nor in violation of the directions issued by the Hon'ble Apex Court in the case of All India Judges' Association (supra).
32. In view of the aforesaid discussion, we do not think it a fit case to exercise the powers conferred under Article 226 of the Constitution of India. Accordingly, the present petition is dismissed. Interim relief granted earlier stands vacated.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 46 of 46 HC-NIC Page 46 of 46 Created On Wed Aug 17 02:57:07 IST 2016