PETITIONER:
DURGACHARAN MISRA
Vs.
RESPONDENT:
STATE OF ORISSA & ORS.
DATE OF JUDGMENT27/08/1987
BENCH:
SHETTY, K.J. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1987 AIR 2267 1987 SCR (3)1097
1987 SCC (4) 646 JT 1987 (3) 459
1987 SCALE (2)417
ACT
Orissa Judicial Service Rules, 1964: Rules 16-19: Judicial Service--Probationary Munsifs--Recruitment of--Viva-voce test-Minimum qualifying marks not prescribed--State Public Service Commission--Whether competent to prescribe additional requirements for selection--High Court Judge present as an expert at the viva-voce-Advice of--Whether could run counter to the Statutory Rules.
HEADNOTE
The petitioner had secured 470 marks out of 950 in the written examination conducted by the Orissa Public Service Commission for the post of Probationary Munsifs for the year 1982-83. In the viva-voce test he was given 30 marks out of 200. But he did not find a place in the merit list though candidates with less number of aggregate marks had been selected.
In the writ petition under Art. 32 of the Constitution he challenged the validity of selection on the ground, among others, that it was arbitrary and contrary to rules. For the respondents it was submitted that the Commission had taken a decision on the advice of the High Court Judge who was present at the viva-voce test as provided under r. 17 of the Orissa Judicial Service Rules, 1964, that a candidate to be suitable for the post of Munsif should secure at least 30 per cent marks at the viva-voce test, and that the petitioner did not secure the minimum qualifying marks so prescribed. Allowing the writ petition,
HELD: 1. The decision of the Orissa Public Service Commission to prescribe the minimum marks to be secured at the viva-voce test for the post of Probationary Munsifs in the State Judicial Service was illegal and without authority. [1106B]
2.1 The Orissa Judicial Service Rules, 1964 flamed under the proviso to Article 309 read with Article 234 of the Constitution, have been made by the Governor of the State after consultation with the State 1098 Public Service 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. [1105G-H; 1106A]
2.2 Rule 16 of the Rules requires a candidate to secure a minimum of 30 per cent marks in the written examination to qualify. The candidates who have secured more than that minimum would alone be called for viva-voce test. The Rules do not prescribe any such minimum marks to be secured at the viva-voce test. Rule 18 mandates the Commission to add the marks obtained at the written examination and the viva-voce test together, no matter what the marks at the viva-voce test. On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit. The list so prepared is then to be forwarded to the Government under Rule 19. [1101D-E; F]
The Commission, therefore, had no power to exclude the name of any candidate from the select list merely because he had secured less marks at the viva-voce test. [1101G]
P.K. Ramchandra Iyer & Ors. v. Union of India & Ors., [1984] 2 SCR 200; and Umesh Chandra Shukla etc. etc. v. Union of India, [1985] Supp. 2 SCR 367, referred to.
3. Even if the minimum qualifying marks were fixed for the viva-voce test by the Commission on the advice of the High Court Judge, present at the viva-voce test in accordance with r. 17 of the Rules, that cannot validate the action of the Commission, for he had no power to add anything to the Rules of recruitment. Rule 17 itself proceeds to state that such a Judge shall not be responsible for selection of candidates. He may advise 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. [1104F-H; 1105F]
Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and Ors. etc. etc., [1985] Supp. 1 SCR 657, referred to.
4. The Orissa Public Service Commission is directed to re-do the select list on the basis of the aggregate marks obtained by the candidates 1099 in the written examination and at the viva-voce test. The list so prepared to be forwarded to the Government as required under r. 19 of the Rules for appointments as Munsifs. The persons who fall within the revised list, if already in service need not be disturbed. Their inter-se seniority to be regulated as per the rankings in the revised list. [1106B-D]
JUDGMENT
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 vivavoce test. The written examination carries the maximum marks of 950 and the viva-voce test 200.
In accordance with the Rules, the Commission issued advertisement No. 12 of 1982-83 inviting applications from eligible candidates for posts of Probationary Munsifs. The petitioner was one of the candidates who applied in response thereof. In the written examination conducted by the Commission the petitioner secured 470 marks. He was called for viva-voce test in which he was given 30 marks. He thus secured in all 500 out of 1150. The Commission prepared a list of candidates which we may term as ’select list’ and recommended to the Government altogether 56 candidates in four batches as desired by the latter. The petitioner did not find a place in that list. The candidates with less number of aggregate marks than that of the petitioner have, however, been selected. The petitioner, therefore, challenges the validity of selection, on the ground among others that it is arbitrary and contrary to the Rules. 1100
The reason for exclusion of the petitioner from the select list is not obscure. It has been at any rate now made explicit. He did not secure the minimum qualifying marks prescribed by the Commission in the viva-voce test. In the counter affidavit filed on behalf of the Commission it has been so stated. It is said that the Commission has taken a decision that a candidate to be suitable for the-post of Munsif, should secure at least 30% at the viva-voce test. That decision was taken on the advice of the High Court Judge.
The question for our consideration is whether the minimum marks prescribed by the Commission at the viva-voce test is justified, and whether the select list prepared by the Commission is in accordance with the Rules.
Rules 16, 17, 18 and 19 are the relevant
rules which have a material bearing on the
question that falls for determination:
These Rules read as under:
Rule 16: "The Commission shall summon for the
viva-voce test all candidates who have secured
at the written examination not less than the
minimum qualifying marks obtained in all
subjects taken together which shall be the
(30%) of the total marks in all the papers:
Provided that Government may after consulta-
tion with the High Court and Commission fix
higher qualifying marks in any or all of the
subjects in the written examination in respect
of any particular recruitment.
Rule 17: The Chief Justice or any of the other
Judges of the High Court nominated by the
Chief Justice shall represent the High Court
and be present at the viva-voce test and
advise the Commission on the fitness of candi-
dates at the viva-voce test from the point of
view of their possession of the special quali-
ties required in the judicial service, but
shall not be responsible for selection of
candidates.
Rule 18: The marks obtained at the vive-voce
test shall be added to the marks obtained in
the written examination. The names of candi-
dates will then be arranged by the Commission
in order of merit. If two or more candidates
obtain equal marks in the aggregate, the order
shall be determined in accordance with the
marks, secured at the written examination.
Should the marks secured at the written exami-
nation of the
1101
candidate concerned be also equal, then the
order shall be decided in accordance with the
total number of marks obtained in the optional
papers.
Rule 19: (1) The Commission shall then forward
to the Government in the Law Department the
list of candidates prepared in accordance with
Rule 18 indicating therein whether a candidate
belongs to Schedule Caste or Scheduled Tribes.
(2) The list prepared shall be published by
the Commission for general information.
(3) The list, unless the Governor in consulta-
tion with the High Court otherwise decides,
shall ordinarily be in force for one year from
the date of its preparation by the Commi-
ssion."
The Rule making authorities have provided a scheme for selection of candidates for appointment to judicial posts. Rule 16 prescribes the minimum qualifying marks to be secured by candidates in the written examination. It is 30% of the total marks in all the papers. The candidates who have secured more than that minimum would alone be called for viva-voce test. The Rules do not prescribe any such minimum marks to be secured at the viva-voce test. After the vivavoce test, the Commission shall add the marks of the vivavoce test to the marks in the written examination. There then, Rule 18 states:
"The names of candidates will then be arranged
by the Commission in the order of merit."
This is the mandate of Rule 18. The Commission shall add the two marks together, no matter what those marks at the viva-voce test. On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit. The list so prepared shall be forwarded to the Government. The Commission has no power to exclude the name of any candidate from the select list merely because he has secured less marks at the viva-voce test.
Similar pattern of selection is generally found in all the rules of recruitment which prescribe written examination and also viva-voce test. There are two authorities of this Court in this aspect of the matter. In P.K. Ramchandra Iyer & Ors. v. Union of India & Ors., [1984] 2 SCR 200 this Court considered the scope of recruitment rules 1102 governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research. There the Agricultural Scientists Recruitment Board (ASRB) was required to select candidates by holding competitive examination and viva-voce test. ASRB prescribed minimum qualifying marks which a candidate must obtain at the viva-voce test before his name could be included in the merit list. The question that fell for consideration was whether the ASRB was competent to prescribe such a minimum? Accepting the contention that ASRB has no such power, this Court observed (p. 244):
"Neither Rule 13 nor Rule 14 nor any other
rule enables the ASRB to prescribe minimum
qualifying marks to be obtained by the candi-
date at the viva-voce test. On the contrary,
the language of Rule 14 clearly negatives any
such power in the ASRB when it provides that
after the written test if the candidate has
obtained minimum marks, he is eligible for
being called for viva-voce test and the final
merit list would be drawn up according to the
aggregate of marks obtained by the candidate
in written test plus viva-voce examination.
The additional qualification which ASRB pre-
scribed to itself namely, that the candidate
must have a further qualification of obtaining
minimum marks in the viva-voce test does not
find place in Rules 13 and 14, it amounts
virtually to a modification of the Rules. By
necessary inference, there was no such power
in the ASRB to add to the required qualifica-
tions. If such power 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."
The closest to the facts of this case is the recent decision of this Court in Umesh Chandra Shukla etc. etc. v. Union of India, [19851 Supp. 2 SCR 367. There the scope of Delhi Judicial Service Rules, 1970 came up for consideration. Rules 17 and 18 of the Delhi Judicial Service Rules, 1970 are similar to Rules 16 and 18 of Orissa Judicial Service Rules, 1964. The Selection Committee constituted under these Rules consisted among others of Judges of the High Court of Delhi. The Selection Committee apparently thought that it has got power to exclude candidates securing less than 600 marks in the aggregate as not being suitable for appointment to the Judicial Service. Accordingly it excluded all such candidates from the select list. It was contended before this Court that the Selection Committee would be competent to 1103 prescribe a minimum standard to be crossed by candidates at the vive-voce test in order to be suitable for appointment to judicial posts. Repelling that contention this Court observed (pp. 382-383):
"With regard to the second contention, namely,
that the High Court had no power to eliminate
the names of candidates who had secured less
than 600 marks in the aggregate after the
viva-voce test, reference has to be made to
Rules 17 and 18 of the Rules which provide
that the Selection Committee shall call for
viva-voce test only such candidates who are
qualified at the written test as provided in
the Appendix and that the Selection Committee
shall prepare the list of candidates in order
of merit after the viva-voce test. There is no
power reserved under rule 18 of the Rules for
the High Court to fix its own minimum marks in
order to include candidates in the final list.
It is stated in paragraph 7 of the counter-
affidavit filed in Writ Petition No. 4363 of
1985 that the Selection Committee has inherent
power to select candidates who according to it
are suitable for appointment by prescribing
the minimum marks which a candidate should
obtain in the aggregate in order to get into
the Delhi Judicial Service. It is not neces-
sary to consider in this case whether any
other reason such as character, antecedents,
physical fitness which may disqualify a candi-
date from being appointed to the Delhi Judi-
cial Service may be taken into consideration
by the Selection Committee while preparing the
final list. But on going through the Rules, we
are of the view that no fresh disqualification
or bar may be created by the High Court or the
Selection Committee merely on the basis of the
marks obtained at the examination because
clause (6) of the Appendix itself has laid
down the minimum marks which a candidate
should obtain in the written papers or in the
aggregate in order to qualify himself to
become a member of the Judicial service. The
prescription of the minimum of 600 marks in
the aggregate by the Selection Committee as an
additional requirement which the candidate has
to satisfy amounts to an amendment of what is
prescribed by clause (6) of the Appendix. The
question whether a candidate included in the
final list prepared and forwarded by the
Selection Committee may be appointed or not is
a matter to be considered by the appointing
authority. In the instant case the decision
that a candidate should have sec-
1104
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."
In the light of these decisions the conclusion is inevitable that the Commission in the instant case also has no power to prescribe the minimum standard at viva-voce test for determining the suitability of candidates for appointment as Munsifs.
It was, however, urged by counsel for the respondents that the principles enunciated by the aforesaid two decisions of this Court cannot be extended to the case on hand. The counsel sought to derive support for their contention on rule 17. Rule 17 provides that the Chief Justice or any other Judge of the High Court nominated by the Chief Justice shall represent the High Court and be present at the vivavoce test. He shall also advice the Commission on the fitness of the candidates at the viva-voce test. The advice may relate to the special qualities to be possessed by candidates for Judicial Service. The Rule 17, however, proceeds to state that such a Judge shall not be responsible for selection of candidates. The contention for the respondents was that a Judge of the High Court was present at the vivavoce test. He was an expert in the field. He was primarily concerned with regard to fitness of candidates for judicial service. He advised the Commission to determine the minimum marks to be secured at the viva-voce test. The Commission accepted the advice and determined the cut out
1105 marks in the viva-voce. It was also contended that the Judge could advise as to fitness of candidates for judicial appointment and his advice could also relate to the minimum which a candidate should secure in the viva-voce test. If such power is not conceded to the Judge, his presence at the interview as provided under rule 17 would totally be unnecessary.
We are not persuaded by this argument. That does not mean that we are doubting the purpose of rule 17. The purpose is undoubtedly laudable and indeed, it is in accordance with the observations of this Court in Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and Ors etc. etc., [19851 Supp. 1 SCR 657. There it was observed:-
"It is therefore essential that when selec-
tions to the Judicial Service are being made,
a sitting Judge of the High Court to be nomi-
nated by the Chief Justice of the State should
be invited to participate in the interview as
an expert and since such sitting Judge comes
as an expert who, by reason of the fact that
he is a sitting High Court Judge knows the
quality and character of the candidates ap-
pearing for the interview, the advice given by
him should ordinarily be accepted, unless
there are strong and cogent reasons for not
accepting such advice and such strong and
cogent reasons must be recorded in writing by
the Chairman and members of the Public Service
Commission."
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 1106 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 selection made by the Orissa Public Service Commission with a direction to redo the select list on the basis of the aggregate marks obtained by the candidates in the written examination 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 regulated as per the rankings in the revised list. In the circumstances, however, we make no order as to cost. P.S.S. Petition allowed. 1107