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ORIGINAL JURISDICTION: Writ Petition No. 1123 of 1986. (Under Article 32 of the Constitution of India). R.K. Garg and J.R. Das for the petitioner.

A.K. Panda and Vinoo Bhagat for the Respondents. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This is a petition under Article 32 of the Constitution challenging the validity of the list of candidates prepared by Orissa Public Service Commission, Cuttack for appointment as Probationary Munsifs in the State Judicial Service.

The selection of candidates for subordinate judicial service is governed by the Orissa Judicial Service Rules, 1964 (the "Rules"). The Rules were flamed under the proviso to Article 309 read with Article 234 of the Constitution of India. The State Public Service Commission (The "Commission") is the selecting authority. The candidates are required to be selected by written test followed by viva- voce test. The written examination carries the maximum marks of 950 and the viva-voce test 200.

ured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee. Moreover, recruit- ment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court. Article 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of persons other than District Judges to the judicial service as it has been expressly dealt with in Article 234 of the Constitution. We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. We are, therefore, of the view that the exclusion of the names of certain candi- dates, who had not secured 600 marks in the aggregate including marks obtained at the viva-voce test from the list prepared under rule 18 of the Rules is not legal."

But the crux of the matter is whether the Judge present at the viva-voce test has the power to add anything to the Rules of recruitment. He may advice the Commission as to the special qualities required for judicial appointments. His advice may be in regard to the range of subjects in respect of which the viva-voce shall be conducted. It may also cover the type and standard of questions to be put to candidates; or the acceptance of the answers given thereof. But his advice cannot run counter to the statutory Rules. The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva-voce test would, therefore, be illegal and without authority. In the result we allow the petition and quash the selec- tion made by the Orissa Public Service Commission with a direction to redo the select list on the basis of the aggre- gate marks obtained by the candidates in the written exami- nation and at the viva-voce test and in the light of the observations made. The list so prepared shall be forwarded to the Government as required under rule 19 of the Rules for appointments as Munsifs. The persons who fall within the revised list, if they are already in service need not be disturbed. Their inter-se seniority, may however, be regu- lated as per the rankings in the revised list. In the circumstances, however, we make no order as to cost.