Telangana High Court
Md.Ghouse Pasha vs The State Of Telangana, on 13 June, 2023
Author: P.Naveen Rao
Bench: P Naveen Rao, Nagesh Bheemapaka
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION Nos.18509 of 2021 & 5603 of 2021
Date: 13.06.2023
W.P.No.18509 of 2021:
Between :
Prudhviraj Kandrakota, s/o. K.Vidya Sagar,
Aged 32 years, occu: Advocate, r/o.H.No.9-2-4/1,
Shantinagar Colony, Bhadrachalam, Bhadradri-
Kothagudem district and others.
.... Petitioners
And
The State of Telangana, rep.by its
Chief Secretary to Government, Law Department,
Secretariat, Hyderabad, Telangana and others.
.... Respondents
This Court made the following :
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HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION Nos.18509 of 2021 & 5603 of 2021
COMMON ORDER :(Per Hon'ble Sri Justice P. Naveen Rao) Junior Civil Judge cadre is regulated by the Telangana State Judicial (Service and Cadre) Rules, 2017 notified vide G.O.Ms.No.59, Law (LA & J-SPl.C) Department, dated 15.07.2017. The post of Junior Civil Judge can be filled up by direct recruitment from the open market and by appointment by transfer by existing employees working in the District Judiciary and in the High Court service. Rule 5 of the Rules deals with Eligibility criteria to compete in the recruitment and Rule 6 deals with the recruitment methodology for conducting Examination, Selection process, Fee etc.
2. According to clause (e) of Rule 6, written examination shall comprise of three papers in (i) Civil Law, (ii) Criminal Law and (iii) English (Translation and Essay writing) respectively carrying 100 marks each. Candidates successful in the written examination shall be subjected to viva-voce. On the overall performance in the written examination and viva-voce, merit list is prepared. Before the written examination, the respondents also hold qualifying examination to screen 3 the number of candidates applying for the post and short list the candidates for appearance in the written examination in the ratio of 1:10.
3. According to clause (f) of Rule 6, a candidate belonging to open competition should secure minimum of 55% marks in each of papers (1) and (2) and not less than 60% marks in aggregate in papers (1) and (2) in the written examination to be eligible for viva-voce carrying 50 marks. When it comes to BC's, a candidate has to secure 50% marks in each of the papers (1) and (2) and not less than 55% marks in aggregate in the written examination to be eligible for viva-voce. When it comes to SC/STs, this criteria is reduced to 45% and 50% respectively. Based on the performance, subject to above criteria, candidates are called for viva- voce in the ratio of 1:3. According to Rule 6(f) a candidate has to secure at least 60% marks in aggregate in written examination and viva-voce if he belongs to open competition and backward classes and 50% marks if he belongs to SC/ST to be eligible for selection.
4. By way of notification vide G.O.Ms.No.3 LAW (LA& J-SPL-B) Department, dated 06.01.2020, Rule 6 was amended. As per this amendment, candidates belonging to open competition and Backward Classes applying for direct recruitment or recruitment by transfer should secure not less than 60% marks in papers 1 and 2 each in the written examination to be eligible to be subjected to viva-voce test. When it comes to SC/ST it is reduced to 50%. In other words, amended provision 4 does not envisage relaxation of minimum standard prescribed to the BC candidates and placed the BC candidates on par with open competition candidates to qualify for viva-voce test.
5. Petitioners herein who are aspiring to be selected as Junior Civil Judges in the vacancies reserved for BCs challenge the validity of the amended Rule 6 (f) in these writ petitions.
6. We have heard learned Senior Counsel Sri G.Vidyasagar appearing for Sri Sai Prasan Gundavaram in W.P.No.18509 of 2021 and Ms. K.Udaya Sree in W.P.No.5603 of 2021 for the petitioners and learned standing counsel Sri K.Pavan Kumar for the respondents 2 and 3 in W.P.No.18509 of 2021, learned standing counsel Sri J.Anil Kumar for respondents 2 and 3 in W.P.No.5603 of 2021 and the learned Government Pleader for respondent no.1 in both writ petitions.
7. According to learned senior counsel when certain posts are identified to be filled up by BC category, the clause removing the reduction of pass marks is illegal. By amending the clause (f) of Rule 6 the object sought to be achieved is not spelt out. It is nothing but arbitrary exercise of power without any purpose and object. He further submitted that the counter affidavit is also silent on justification to carry such amendments.
57.1. He further submitted that in the counter affidavit reliance is placed on judgment of Hon'ble Supreme Court in Chattar Singh and others V State of Rajasthan and others1. This judgment was in force in the year 2017 when the earlier rules were made. Therefore, this judgment cannot be the basis to effect changes. It is not the case of the respondents that the candidates selected as per the pre-amended rules are not upto the mark and on account of such selections the quality of rendering decisions is drastically effected necessitating to change the eligibility criteria and prescribe higher standard. He would therefore submit that the amendments are arbitrary and discriminatory. 7.2. According to learned senior counsel, there is no rationale in amending the rules. Even in the pre-amended provision, the BCs were required to secure aggregate 60% marks to be included in the merit list. It appears there is no application of mind.
7.3. He would submit that Chattar Singh (supra) case deals with preliminary examination. Marks in preliminary examination do not count for final selection and, therefore, said decision has no application.
8. According to learned standing counsel Sri K.Pavan Kumar, principle of reservation in employment, and concession of marks to acquire eligibility to participate in the selection process are two different 1 1996 11 SCC 742 6 aspects. It is always open to the employer to prescribe particular criteria to assess the suitability of a person for employment and in that process it is always permissible for the employer to prescribe higher standards of eligibility as compared to the standard of eligibility earlier prescribed. Therefore, by amending this rule, no illegality is committed. It is well within the competence of the employer to prescribe higher eligibility criteria. Unless the Court holds that the eligibility criteria introduced is manifestly arbitrary, the prescription of higher eligibility criteria cannot be nullified.
8.1. He would further submit that it is settled principle of law that OBC's cannot compare themselves with SC/ST's and therefore the privileges extended to SC/ST's cannot be extended to OBC's. Therefore, OBCs cannot seek to extend the relaxed standard as specified for SCs/STs to qualify for viva-voce.
8.2. He would submit that Article 16(4) of the Constitution of India is only enabling provision. No right is vested in any person. The amendment under challenge is not manifestly arbitrary and does not offend Articles 14 and 16 of the Constitution of India. The rationale behind the amendment is to attract more merit.
8.3. Learned counsel referred to paragraph Nos.17 to 19 of the judgment in Chattar Singh (supra) to support his contentions. He further 7 submitted that merely because lesser eligibility criteria was prescribed earlier, it is no ground to contend that the same should be continued and not granting the relaxed standard does not amount to discrimination. He further contended that scope of judicial review against prescription of cut off mark is very limited as held by Hon'ble Supreme Court in A.Marx vs. Government of Tamil Nadu and others2.
9. He further justifies the amendments by contending that they are carried out with an objective to ensure selection of more meritorious candidates and by prescribing such higher criteria, no prejudice is caused to any person. He would submit that there is not much of change in the pre-amended rule and present rule in as much as the Rule 6(f) is concerned. Even earlier, a Backward Class category candidate was required to acquire overall 60% of marks in the written examination and viva-voce to qualify for inclusion in the merit list.
10. Sri J.Anil Kumar while concurring with the submissions made by Sri K.Pavan Kumar further submitted that as held by Hon'ble Supreme Court in Lila Dhar vs. State of Rajasthan & others3, it is always open for the employer to secure the best and most suitable person in its employment. It is permissible for the employer to prescribe higher qualifications. He further placed reliance on decision of Hon'ble Supreme 2 MANU/SC/1291/2013 3 1981 4 SCC 159 8 Court in State of Haryana vs. Subash Chander Marwaha and others4 wherein it is held that prescribing higher qualifications is essentially a matter of administrative policy and no interference is called in exercise of power of judicial review.
11. The question for consideration is 'Whether the amendment to Rule 6(f) of Telangana State Judicial (Service and Cadre) Rules, 2017 is unconstitutional' ?
12. Before considering this question, we set out hereunder broad principles on the subject in issue. It is settled principle of law require no reiteration that it is the prerogative of the employer to prescribe eligibility criteria, method of selection and procedure of selection. The scope of judicial review in such matters is in a very narrow band width. Unless a criteria of selection is found to be patently illegal that shocks the judicial conscience, no interference is called for.
13. It is settled principle of law that mere inclusion in a select list does not enure an indefeasible right for employment [Shankarsan Dash vs. Union of India : (1991) 3 SCC 47]. It is also settled principle of law that merely because vacancies are available candidate included in the select list cannot seek mandamus to appoint him. It is also settled principle of law that employer can fix higher bench mark to select and/or appoint 4 1974 3 SCC 220 9 persons to a post. In Subash Chander Marwaha, Hon'ble Supreme Court has said, "10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence."
14. It is also settled principle that having participated in the selection process the candidate cannot challenge the selection criteria after completion of selection process (MCD vs. Surender Singh : [(2019) 8 SCC 67].
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15. It is also settled principle of law that what cut off marks to be stipulated and whether to fix relaxed standard of cut off mark and to what extent for a reserved category is a policy decision of employer. The High Court in exercise of power of judicial review cannot interject such policy decision nor can issue mandamus to relax. These are all broad principles to be kept in mind to test the validity of impugned rule.
16. This takes us to the consideration of submissions on either side regarding application of Chatter Singh (supra) judgment. The Government of Rajasthan introduced reservation to OBCs by reserving 21% of public service w.e.f. 28.09.1993. On 21.11.1994, recruitment notification was issued to make recruitment to 274 posts in administrative and subordinate service. Rule 13 of the relevant rules prescribed scheme of the examination. Selection process comprises of preliminary examination and main examination. Preliminary examination is intended to filter large number of applicants and call only few numbers of applicants to main examination. The performance in the main examination alone is the criteria. In the process of filtering the candidates to main examination in the ratio of 1:15 the rule also enables the public service commission to reduce upto 5% eligibility mark to SC and ST candidates if sufficient number of candidates belonging to SC and ST categories are not available to fill 1:15 ratio. The candidates belonging to OBC category claimed that same benefit should be extended to OBCs also in Civil W.P.No.1579 of 1996 filed before Rajasthan High Court.
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17. In the appeal arising out of decision of Rajasthan High Court before Hon'ble Supreme Court in Chattar Singh, Hon'ble Supreme Court considered the scope of application of Articles 14 and 16 to the claim of party by candidates belonging to OBC with SC and ST candidates. Hon'ble Supreme Court held, "17. The next question is whether the OBCs are to be treated alike Scheduled Castes and Scheduled Tribes and given the 5% cut-off marks in the Preliminary Examination under proviso to Rule 13 and whether omission thereof prohibits the right to equality envisaged in Article 14? ......... Backward Classes are not entitled to the benefit of reservation under Article 15(4) or 16(4) of the Constitution. Articles 14 and 16 read with the Preamble gives equality of opportunity in matters relating to employment or appointment to any office under the State. By hierarchical unequal social status and denial of opportunities and facilities due to untouchability, a practice against Scheduled Castes and Scheduled Tribes living in the forest area require protective measures to remove handicaps and disadvantages suffered by the members belonging to the Scheduled Castes and Scheduled Tribes so as to enable them to compete for selection. ....... Affirmative action or positive discrimination, therefore, is inbuilt in equality of opportunity in status enshrined in Articles 14 and 16(1) of the Constitution. Therefore, Scheduled Castes and Scheduled Tribes stand as two separate classes while OBCs stand apart.
18. ......Though OBCs are socially and educationally not forward, they do not suffer the same social handicaps inflicted upon Scheduled Castes and Scheduled Tribes. Articles 15(2) and 17 furnish evidence of historical and social dissatisfaction inflicted on them. The object of reservation for the Scheduled Castes and Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the backward classes is to remove their social and educational handicaps. Therefore, they are always treated as dissimilar and they do not form an integrated class with Dalits and Tribes for the purpose of Article 16(4) or 15(4). Obviously, therefore, proviso to Rule 13 confines the 5% further cut-off marks in the Preliminary Examination from the lowest range fixed for general candidates. So, it is confined only to the Scheduled Castes and Scheduled Tribes who could not secure total aggregate marks on a par with the general candidates. The rule expressly confines the benefit of the proviso to Scheduled Castes and Scheduled Tribes. By process of interpretation, OBCs cannot be declared alike the Scheduled Castes and Scheduled Tribes. Therefore, the contention that in view of the doctrine of fusing "any backward class of citizen" in Article 16(4), further classification of Scheduled Castes and Scheduled Tribes and OBCs as distinct classes for the purpose of reservation and omission to extend the same benefits to OBCs violates Article 14 is devoid of 12 substance. If the logic of equality as propounded by minority Judge is given acceptance, logically they are also entitled to reservation of seats in the House of the People or in the Legislative Assemblies of States, though confined to Scheduled Tribes and Scheduled Castes, by operation of Article 334(a) of the Constitution with a non obstante clause engrafted therein. The Founding Fathers of the Constitution, having been alive to the dissimilarities of the socio-economic and educational conditions of the Scheduled Castes and Scheduled Tribes and other segments of the society have given them separate treatment in the Constitution. The Constitution has not expressly provided such benefits to the OBCs except by way of specific orders and public notifications by the appropriate Government. It would, therefore, be illogical and unrealistic to think that omission to provide same benefits to OBCs, as was provided to Scheduled Castes and Scheduled Tribes, was void under Articles 16(1) and 14 of the Constitution."
(emphasis supplied)
18. Therefore, petitioners cannot compare themselves with SC/ST candidates. The relaxed eligibility criteria prescribed to SC/ST cannot be claimed by BC candidate.
19. It was also contended that the decision is Chattar Singh concerns securing qualifying marks in a preliminary examination which has no bearing on final selection. This submission is stated to be rejected. Though, Hon'ble Supreme Court was considering a case of relaxed standard of eligibility on the performance in preliminary examination to call for main examination, the principle decided therein is on scope of right of an OBC/BC to claim parity with SC/ST and to insist for relaxation of cut off marks. Therefore, the principle laid down therein is equally applicable to test the validity of rule in question.
20. Learned senior counsel would contend that the decision in Chattar Singh was available when 2017 Rules were made and therefore the respondents cannot rely on said decision to support the amended 13 provision. We see no merit in this contention. Merely because the judgment in Chattar Singh was rendered prior to formulating 2017 Rules is no ground to test the correctness of amendments to the rules on the stand point of the principle laid down therein. Once a principle is laid down by Hon'ble Supreme Court it has force of law till it is overruled or the basis of the decision is removed by legislative intervention. Therefore, respondents are entitled to place reliance on the said judgment to support their decision.
21. Rule 6(f) prior to amendment and after amendment read as under:
Existing Rules Amended as
Rule 6: Rule 6:
(f) The candidate applying for being appointed (f) (i) The candidate applying for being appointed
under Direct Recruitment who secures not less under direct recruitment or by transfer who
than 55% of marks in each paper and not less secures not less than 60% of marks in Papers I
than 60% of marks in aggregate in the written and II each in the written examination shall be
examination shall be eligible for viva voce eligible for viva voce carrying 50 marks.
carrying 50 marks.
(ii) That the Scheduled Casts and
Scheduled Tribes candidates who secure not
less than 50% marks in Papers I and II each in
the written examination shall be eligible for the
viva voce carrying 50 marks.
Provided that the candidates belonging to Provided further that from among the
Backward Class category who secure not less than candidates qualified and eligible, the High
50% of marks in aggregate in the written Court shall call the candidates for viva voce for
examination shall be eligible for the viva voce. the post of Civil Judge/District Judge in the
ratio of 1:3 proportionate to the vacancies
notified.
Provided that the Scheduled Castes and
Scheduled Tribes candidates who secure not Provided further that if more than one
less than 45% marks in each paper and not candidate secured same cut off marks, all such
less than 50% of marks in aggregate in the candidates shall be called upon to appear for
written examination shall be eligible for the viva voce.
viva voce.
The final selection of the candidates is based
Provided further that, the High Court shall on the aggregate marks obtained in written
call the candidates for viva voce for the post of examination and viva voce. Civil Judge/District Judge in the ratio of 1:3 of the available vacancies to the successful candidates.
14Provided that if there are more than one candidate who have secured identical cut off marks, for maintaining the ratio of 1:3, all such candidates shall be called upon to appear for viva voce.
Provided also that only such candidate who secures at least 60% marks in aggregate in written examination and viva voce and above in respect of OC/BC category and 50% marks in aggregate in written examination and viva voce and above in SC/ST category shall be eligible for selection.
22. Pre-amended and post-amended Rule 6(f) is two fold. In the first limb it deals with cut-off mark to call for oral interview. In the second limb, the pre-amended rule specifies the cut-off mark to include in the final select list, a post-amended cut-off mark system is removed.
23. While pre-amended rule provided relaxation of 10% in aggregate to BC candidates from the minimum aggregate percentage prescribed to OC candidates in the written examination to qualify for being called for viva- voce, in the amended Rule that relaxation is deleted. Now a BC candidate is also required to secure not less than 60% marks each in papers I and II to qualify for oral test.
24. While pre-amended rule also required OC and BC candidates to secure aggregate 60% marks in written test and oral test to include in the final merit list, that requirement is now deleted. In the written examination 100 marks each is prescribed for papers I and II and oral interview carries 50 marks. For a meritorious candidate who secures above 60% in the written examination and performs exceptionally well in 15 the oral interview the pre-amended or post-amended rule would make no impact on his selection. The impact of pre-amended rule and post- amended has relevance only to BC candidates who fall between 50% and 60%.
25. To test the rationale of this amendment, we note an example hereunder. Let us assume that a candidate belonging to BC category secured 55% in aggregate in two papers in written examination total of which comes to 110 out of 200. As per pre-amended rule, to qualify for being included in the selection list he has to secure 40 marks out of 50 marks in oral interview, which would be 80%. Whereas, post- amendment, a candidate is required to get aggregate 60% in the written examination and is not required to get any particular percentage in interview as no minimum marks are prescribed in the oral test to qualify for inclusion in the final merit list. One other scenario can also be noted. If a BC candidate secured 100 marks out of 200 marks in the written examination, he was qualified to be called for oral test as per pre- amended Rule 6(f). However, since a BC candidate is also required to get 60% aggregate in written examination and oral test, he would require to secure 100% marks in oral test to acquire eligibility for inclusion in final merit list, which is impossible. Therefore, as per post-amendment Rule 6(f), depending on his social status group and number of vacancies available to that group, a BC candidate can be included in the final select 16 list even if he secured 130 marks as against earlier requirement of minimum of 150 marks out of total of 250 marks put together in written examination and oral interview. The amendment takes care of both limbs. The challenge could have required more serious consideration if only one limb is amended. Therefore, it cannot be said that the post amendment rule is disadvantageous to the BCs.
26. There is perceptible difference in the scheme of Rule 6(f) prior to the amendment and after the amendment. As noticed above, prior to amendment though 10% relaxation in qualifying marks to appear in viva-voce was provided to BC candidates, but to include in the final merit list the candidate has to secure aggregate 60% marks put together in written examination and oral interview. In the amended rule while no relaxation in qualifying marks is extended to BC candidates, requirement to secure 60% aggregate marks in written examination and oral interview is omitted. Thus, the amendments carried out to the rules have to be seen as a whole and examination of validity cannot be confined to a portion of the amended rule, confining to prescription of qualifying marks in the written examination to be called for interview. In other words, there is a change in the policy decision on selection procedure. It is not for this Court to weigh which decision is correct. It cannot be said that there was no application of mind.
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27. From the scheme of the rule, it is apparent that it is a well considered decision. The impugned rule posses the test of reasonableness. The decision of respondents to amend the rule musters its validity by the dicta in Chatter Singh case. The policy decision leading to amendment of Rule 6 (f) does not offend Articles 14, 15(4) and 16(4) of the Constitution of India. It is neither arbitrary nor discriminatory. No interference is called for. Writ Petitions fail. They are accordingly dismissed. Pending miscellaneous applications if any shall stand closed.
__________________________ P.NAVEEN RAO, J ___________________________ NAGESH BHEEMAPAKA, J Date: 13.06.2023 Vrks/KKM 18 HON'BLE SRI JUSTICE P.NAVEEN RAO AND HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION Nos.18509 of 2021 & 5603 of 2021 Date: 13.06.2023 Vrks/KKM