Karnataka High Court
Smt. Uma M.G. Alias Uma V. Shivapur vs The High Court Of Karnataka And Anr. on 4 January, 2002
Equivalent citations: ILR2002KAR1251, 2002(3)KARLJ420, 2002 AIR - KANT. H. C. R. 526, (2002) 3 KANT LJ 420 (2002) 3 SERVLR 730, (2002) 3 SERVLR 730
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. An unsuccessful aspirant for the post of District Judge is complaining about an endorsement dated 18-12-2001, Annexure-F in this petition. She is also seeking a declaration that the method adopted by the High Court in disqualifying her for the interview on the basis of minimum prescribed marks for passing in the written test is bad in law. She wants a direction to permit her to appear for viva voce test. The facts are as under:
2. The petitioner, a practising Advocate at- Gadag bar has completed 7 years of service. She is having rich experience as a member of the Bar at Gadag. The High Court has promulgated the Karnataka District Judges Recruitment Rules, 1962 (for short 'the Rules') for the purpose of recruitment for District and Sessions Judges in the Karnataka State Judiciary. New Rules came into force in terms of Karnataka Judicial Services (Recruitment) Rules, 1983, Annexure-B. The 1983 Rules provide two methods of recruitment. One by direct recruitment and another by promotion in the cadre of Civil Judges. No written test is to be conducted in terms of the Rules and no minimum marks is to be prescribed for viva voce examination. In 1997, the respondent-authorities called for the applications for selection to the post of District Judges. The petitioner applied for the post and she was not called for the selection. In the year 1997, a brief written examination was conducted in the form of an objective questionnaire.
3. The first respondent by a notification dated 11-10-2000 has published in the Official Gazette on 16-10-2000 in terms of Annexure-D. The petitioner applied for the said post, She was intimated that the written examination is fixed on 10th June, 2001 and she has to undergo the said examination. According to the petition averments, the candidate is required to secure minimum 50% marks to qualify for the viva voce examination. The petitioner, unfortunately, got 49%, thereby she is not eligible for viva voce examination in terms of the endorsement at An-nexure-F. This endorsement is challenged in this petition.
4. Heard Sri Kulkarni, learned Counsel for the petitioner. He strenuously and vehemently contends before me that no written examination is prescribed under the Rules. He also states that the minimum 50% fixed by the High Court is unsustainable. The Counsel says that this method of selection is in violation of Articles 14 and 16 of the Constitution of India. He also strongly relies on several judgments. However, at the time of arguments, he confined himself to 3 judgments namely, Jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan and Ors., P. Sadagopan and Ors. v. Food Corporation of India and Anr., and Union of India v. Madras Telephone SC and ST Social Welfare Association.,
5. After hearing the Counsel, what requires to be decided by this Court is as to whether the endorsement at Annexure-F suffers from any arbitrariness, as contended by the petitioner. It is also required to be decided by the Court as to whether this Court can prescribe 50% in terms of the Rules,
6. The admitted facts reveal that the High Court has framed Rules known as "Karnataka District Judges Recruitment Rules, 1962". The said Rules has been subsequently amended in terms of 1983 Rules. The 1983' Rules deal with method of recruitment, minimum qualification and etc., in terms of the Rules of 1983 Rules. Method of recruitment is provided by way of direct recruitment and also by way of promotion from the cadre of Civil Judges. The Rules further provide in terms of a note that the High Court of Karnataka may, subject to this Rules may adopt such procedure as it deems fit by selecting the candidates by direct recruitment or by promotion "by seniority-cum-merit basis. In terms of the averments made in the petition, the High Court has adopted the procedure of written examination for recruitment of District Judges from the members of the bar, by way of direct recruitment. The petitioner has accepted the written examination and has also undergone written examination. It is also prescribed that only those candidates who secured minimum of 50% is to be called for viva voce test. The petitioner in this case only complains about her being not called on the sole ground of 50% qualifying marks. A careful reading of Rules of 1983 would show that the method of recruitment is prescribed by the schedule. It further provides for adoption of such procedure as deemed lit by the High Court, subject to the Rules for selecting the candidates by seniority-cum-merit basis. In the case on hand, the High Court, in its wisdom has provided written test in the year 1997 and in the present year, it has prescribed written examination with a minimum 50%. This prescription, in my view cannot be said to be in violation of the Rules. The Counsel is unable to show that there is any such prohibition available in the Rules. Even otherwise, the note to Rule 2 would show that the High Court has necessary powers to adopt such procedure as deemed fit for selection in the matter of selection of District Judges. The method of selection by way of written examination is not something unknown in service law. For any responsible competent posts, the authorities have prescribed a written examination. In addition, they have also prescribed minimum qualifying marks. The object of written examination and the object of prescribing minimum qualifying marks is to see that a best mind is available for shouldering the heavy responsibility of a responsible post of a District Judge. Therefore, the prescription of written examination and also the prescription of 50% cannot be said to be in violation of Article 14, as contended by the learned Counsel. No arbitrariness is shown to me in the case on hand. In these circumstances, the contention of arbitrary argument is not available to the petitioner.
7. The Counsel though cited number of judgments, he relies only on 3 judgments, as I mentioned earlier.
Jammu and Kashmir Public Service Commission's case, supra, is pressed into service for the purpose of a contention with regard to the supplementing or supplanting while exercising an executive power. The Counsel contends that the present imposition of 50% is not for supplementing but for supplanting purpose. The Supreme Court in the said case was considering the ad hoc appointment. While so considering, the Supreme Court noticed the Jammu and Kashmir Medical Education Services Recruitment Rules. There were no Rules available by the Governor in that case prohibiting Jammu and Kashmir from making any ad hoc appointments. In those circumstances, the Court ruled that the ad hoc appointments cannot be treated as made one under Rule. In that connection, the Court notices that "a little leeway to make ad hoc appointment due to emergent exigencies does not clothe the executive Government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot co-exist in the same sheath. The former is in negation of fair play; the latter are the products of order and regularity. Every eligible person not necessarily be fit to be appointed to a post or office under the State, selection according to Rules by a properly constituted Commission and fitment for appointment assures fail-ness in selection and inhibits arbitrariness in appointments".
8. The second judgment relied on by the Counsel is P. Sadagapan's case, supra. That was again a case of relaxation by way of executive instructions in defiance of statutory regulations. In the present case, it is not anybody's case of any relaxation contrary to any regulation. Therefore, the said judgment is equally not applicable to the facts of this case.
9. The last judgment is Union of India's case, supra. That was a case with regard to the promotion in terms of Telegraph Engineering Service, Class II Recruitment Rules. The Court was considering the Rules in that case with regard to the promotion. This judgment again, with respect to the Counsel, is not applicable to the present set of facts. On the other hand, the principle of supplementing and supplanting would go more in favour of the High Court. The insistence of 50% is nothing but a supplementing power and not supplanting power, as contended by the Counsel.
10. Before concluding, it is also to be noted that the petitioner accepted the written examination and the 50% minimum requirement of marks, for the viva voce examination. Having accepted the position, it is not open to the petitioner now to contend contra, in these proceedings. In these circumstances, I do not find any justifiable grounds to interfere with the endorsement and I also do not find justifiable grounds to grant any relief, as sought for by the petitioner.
11. Writ petition stands rejected.