REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION(C)No.294 of 2015
Salam Samarjeet Singh …..Petitioner
Versus
High Court of Manipur at Imphal & Anr. …..Respondents
J U D G M E N T
Shiva Kirti Singh, J.
I have perused the judgment written by Banumathi, J. Since I am unable to
agree with the same, I hereby record my views on the main issues involved
in the case.
As most of the relevant facts including the submissions of the rival
parties as well as relevant provisions of rules have already been
extracted, I will borrow and refer from such facts and statutory provisions
where ever necessary. Only to recapitulate the seminal facts, it is noted
that the relevant advertisement for filling up a single vacancy in the post
of District Judge (Entry Level) by way of direct recruitment through
examination of 2013 was published on 15.5.2013. The advertisement
disclosed that the recruitment shall be governed by the Manipur Judicial
Service (Recruitment and Conditions of Service) Rules, 2005 (for brevity,
‘the Rules’). The duly filled applications were to be sent to Registrar,
High Court of Manipur at Imphal. Inter alia, it was also indicated, as is
the position in the Rules, that for being called for viva voce test a
candidate must secure in the written examination 60% marks if he is from
unreserved category and 50% if he is of reserved category. The viva voce
was to carry 50 marks. The examination was held in July 2013. As per
initial notification dated 17.10.2013, the Joint Registrar notified that
none of the candidates was successful in their written examination. The
mark sheet was published on 29.01.2014 in which petitioner being a
scheduled caste category candidate had secured more than the minimum
qualifying marks of 50%. In fact he had secured 52.8% marks. Hence
petitioner filed a representation on 04.02.2014 for reconsideration of his
result. On 07.02.2014 the High Court issued a corrigendum and declared the
petitioner as successful in the written examination. Be it noted that the
petitioner was the only successful candidate for the unreserved single post
under contest. For almost a year the recruitment process remained at a
standstill. Through a letter dated 29.01.2015 the petitioner was informed
that viva voce will be held on 12.02.2015. The petitioner undertook the
said test. On 19.02.2015 the petitioner learnt from a notice dated
16.02.2015 issued by the Joint Registrar of the High Court and placed on
the Notice Board of the High Court that the petitioner had failed to
qualify in the interview.
The petitioner made a request for certain informations under the RTI Act
from the concerned officer of High Court of Manipur on 21.02.2015. The
informations sought for included queries as to whether there was any pass
mark/cut-off mark out of the total 50 marks for the interview and also
details of the particular rule under which he had failed in the interview.
The information was supplied on 19.03.2015 disclosing that he had obtained
18.8% marks in the viva voce test and the cut-off mark/pass mark is 40% out
of total 50 marks for the interview. The High Court did not provide
reference to any particular rule under which petitioner had been found not
qualified in the interview.
It is not in dispute and it was subsequently discovered that the Full Court
of the Manipur High Court had resolved on 12.01.2015, only a few days
before interviewing the lone candidate- the petitioner, to fix 40% as the
pass mark for viva-voce. Since the petitioner was interviewed by all the
three Judges of the High Court in the viva voce and was declared to have
failed on account of pass marks prescribed for viva voce examination by the
Full Court on 12.01.2015, he did not have much option but to prefer the
present writ petition in this Court mainly to seek the relief for quashing
of his viva voce result dated 16.02.2015 and for declaration of his result
for appointment to MJS Grade I with retrospective effect from a reasonable
date and/or to grant any just and equitable relief in the facts and
circumstances of the case.
A perusal of relevant informations given to the candidates in the
advertisement, particularly the general instructions contained in Appendix
‘A’ of the Scheme of Examination clearly discloses that scheduled caste
candidates shall be eligible for the viva voce examination on obtaining 50%
or more marks in the written examination. It is also clearly spelt out
that selection of candidates shall be made on the basis of cumulative grade
value obtained in the written and viva voce examination. In my considered
view the statutory mandate for selection on the basis of cumulative grade
required the authorities to add the marks of both the examinations, prepare
the merit list as per total marks for the cumulative grade and make the
selection from such merit list.
This mandate was violated for a reason that does not muster scrutiny.
Although the object of viva voce examination has been given in some detail
but that is only for the guidance of members of the Board conducting the
viva voce test. The mode of evaluating the performance of grading in the
written and viva voce examination has been indicated in the general
instructions and the same has already been noted in the judgment of
Banumathi, J. The grade ‘F’ which provides for percentage of marks below
40% corresponds to numerical grade ‘0’ but beyond that there is nothing to
support the submission on behalf of the High Court that ‘F’ is indicator of
failure in the written examination or in the viva voce. The cut-off mark
for the written examination is separately provided under the Rules, to the
effect that written examination will carry 200 marks and the cut-off marks
should be 60% or corresponding grade for general candidates and 50% or
corresponding grade for SC/ST candidates. So 40% to 49% denoted by ‘C’
also stand for fail marks for the written examination and therefore there
is no basis to infer that ‘F’ standing for below 40% is a symbol of fail
marks. Further when the Rules explicitly specify the pass marks for the
written examination and conspicuously make no such provision in respect of
viva voce examination, rather provide to the contrary that the final
selection list will be by combining the cumulative grade value obtained in
the written and the viva voce examination, nothing can be gainsaid on the
basis of evaluating procedure alone. For the purpose of deciphering cut-off
marks or pass marks for the viva voce examination there ought to be a
similar specific provision in the Rules. But it was not there at the
relevant time. It has been introduced much later in 2016.
In my considered view the Rules and the instructions clearly demonstrate
that there was no cut-off mark or pass mark for the viva voce examination
in the past and therefore the High Court on 12.01.2015 made a specific
Resolution that no one shall be declared passed and selected for
appointment unless he secures minimum 40% in the interview (viva voce).
This power to add to the Rules is claimed from the provisions of sub-rule
(3) of Rule 1 of Schedule ‘B’ of the Rules empowering the recruitment
authority to take “all necessary steps not provided for in these Rules for
recruitment under these Rules......”. In my view the Resolution of the
High Court on 12.01.2015 ran counter to express provision in the Rules as
to how the final merit list was to be prepared by combining the marks of
both the examinations. Not providing any pass mark for the viva voce while
so providing for the written examination clearly indicates that the Rules
deliberately chose not to prescribe any cut-off for the viva voce. The
explanation for the same lies in the recommendations made in this regard by
the Shetty Commission. The Rules are almost verbatim copy of most of the
recommendations in respect of such examination for recruitment. Clearly,
they also followed the recommendation of the Shetty Commission that there
should not be any cut off or fail marks for the viva voce examination.
Such omission was thus clearly deliberate to facilitate the intended
result. There was no gap or vacuum here and therefore Clause 1(3) of the
Rules is not attracted. Hence, the Rules could not have been altered by a
Resolution taken by the Full Court. We have been informed that ultimately
the Rules have been formally amended vide notification dated 09.03.2016
issued in exercise of powers under Article 309 read with Article 234 of the
Constitution of India whereby, inter alia, it has been included in the
general instructions under Schedule ‘B’ that candidates securing minimum
40% marks in the interview shall only be eligible to be included in the
select list. Apparently this amended rule is to come into force only in
future from a date to be specified. But in any case it has not been made
retrospective and rightly so because such Rules governing selection
procedure for recruitment cannot be amended to affect the results after the
game has been played.
In the aforesaid facts and circumstances, the contention advanced on behalf
of the petitioner that the impugned act of bringing about change in the
selection procedure by providing minimum marks for interview or viva voce
test in midst of the selection process which has already been initiated
amounts to changing the rules of the game and hence impermissible, is well
supported by judgment in the case of K. Manjusree v. State of Andhra
Pradesh & Anr.[1] as well as in the case of Hemani Malhotra Etc. v. High
Court of Delhi[2]. In my view once petitioner was declared as the lone
candidate having passed in the written examination, it matters little
whether minimum marks for interview were introduced before or after calling
him for interview. The petitioner or any other person in his place,
knowing fully well that there was no separate cut-off or pass mark for the
viva voce, would not feel any pressure to be extra ready for the interview.
In order to ensure fairness, after the Full Court decision on 12.01.2015
to fix 40% as pass marks for viva voce, the petitioner ought to have been
informed of this development, at least when intimation of date of interview
was communicated to him through letter dated 29.01.2015. Since the viva
voce was held on 12.02.2015, he would have got some time to improve his
preparations to meet the 40% cut-off newly introduced. That was not done.
In such circumstances, I do not find any material, reason or circumstance
to distinguish the case of K. Manjusree as well as of Hemani Malhotra. In
my considered view the High Court did not have the power to change the
scheme of the rules which prescribed pass marks only for the written
examination, deliberately omitted the same for viva voce examination and
warranted final results after adding both the marks. If for the sake of
arguments, such power is conceded even then the power could not have been
exercised to change the rules of the game when petitioner alone was left in
the arena and could not have been disqualified except by changing the rules
midway. Para 15 in the case of Hemani Malhotra extracted earlier in the
preceding judgment applies on all force like the judgment in the case of K.
Manjusree. Learned counsel for the petitioner has rightly placed reliance
on those judgments. The judgment in the case of Ramesh Kumar v. High Court
of Delhi & Anr.[3] draws some inspiration from the recommendations of
Justice Shetty Commission’s Report in para 16 but the general law already
settled and stated in para 15 also clearly helps the case of the
petitioner. In my view the statutory rules did prescribe a particular mode
of selection which did not require any pass mark for the viva voce
examination and it had to be given strict adherence accordingly, at least
till the ongoing recruitment process got concluded. Since the procedure
was already prescribed by the Rules, in the present case there was clear
impediment in law in the way of the High Court in proceeding to lay down
minimum pass mark for the viva voce test which was meant only for the
petitioner as he was the lone candidate successful in the written
examination. In my view the petitioner was clearly prejudiced and although
no case of bias has been pleaded, the impugned action would validly attract
the criticism of malice in law.
For the aforesaid reasons alone, in my view, there is no need in the
present case to go into recommendations of the Shetty Commission, even if
it be conceded for the sake of arguments that State Government may decide
not to fill up posts if it has reasons to believe that appointing the
selected candidate would adversely affect the required standards of
competence. That stage was never arrived at in this case. Hence reference
to an issue of aforesaid nature to a larger Bench by the order in the case
of Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.[4] rendered by
a Bench of three Judges will not have any effect on the outcome of this
case. The law laid down in the case of State of Haryana v. Subash Chander
Marwaha & Ors.[5] is applicable only at the stage when the selection
process is complete and then if appointment is refused to a selected
candidate for good reasons, the candidate may not have an indefeasible
right to claim a right of appointment. This course of action would be
valid, subject to satisfactory answer by the authority to any charge of
arbitrariness. But as noted earlier that stage has not been reached in the
case of the petitioner. He has been disqualified by the High Court on the
basis of its Full Bench Resolution taken in the course of the selection
procedure. That process in my view must be continued and completed fairly,
disregarding the subsequent changes brought about by the High Court or
subsequent amendment of the Rules.
Hence while not delving into effect of judgment in the case of All India
Judges’ Association v. Union of India & Ors.[6] and leaving the issue open
for decision in an appropriate case as to what is the effect of aforesaid
judgment sub silentio accepting the recommendations of Shetty Commission’s
Report that there shall be no cut-off marks in viva voce test. The
Judicial Service Rules of various High Courts in my view cannot affect the
rights of the petitioner which have to be governed by the Rules on which I
have already expressed my view that it deliberately did not provide any cut-
off marks for the viva voce test and instead provide for preparation of
final result by adding the marks of written examination and viva voce test.
The law laid down in the case of Madan Lal & Ors. v. State of J & K &
Ors.[7] in my considered view does not stand in the way of the petitioner.
The High Court Resolution was not communicated to the petitioner. It was
neither a part of the Rules nor of the advertisement and hence the theory
that if a candidate takes a calculated chance and faces the selection
procedure then on the result being unfavourable, he cannot be permitted to
turn around and challenge the process of selection is not at all attracted.
The theory rests on the hypothesis that the impugned procedure or rule is
already in public domain and the candidate must, therefore, be aware of it
when he participates. So far as the judgment in the case of Kulwinder Pal
Singh & Anr. v. State of Punjab & Ors.[8] is concerned, I am in respectful
agreement with the same and with the view expressed by Banumathi, J. that
only being in the selected panel does not give the petitioner or anybody
else an indefeasible right to get an appointment. But the vacancies, as
highlighted in paragraph 11, have to be filled up as per statutory rules
and in conformity with the constitutional mandate. I do not see anything
in that judgment against the consideration of petitioner’s case in
accordance with law after declaring his results by ignoring the pass mark
criteria for the viva voce examination introduced by the High Court and
then proceed as per Rules by adding the marks of written examination with
that of viva voce test. All actions of authorities must meet the test of
reasonableness and in case petitioner is not offered appointment though
being the only successful candidate, then the respondents may have to
justify their action, if challenged, on the basis of case of Kulwinder Pal
Singh and similar other judgments. As already indicated earlier, that
stage is yet to arrive.
In the result, in my view the petitioner is entitled to the relief sought
for in the writ petition which is allowed in the light of discussions made
above. The viva voce result of the petitioner dated 16.02.2015 showing him
as ‘unsuccessful’ shall stand quashed. The respondents shall declare the
result of the petitioner for appointment to MJS Grade I as per discussion
made in this judgment forthwith and in any case within four weeks. In the
peculiar facts of the case, in my view, a decision for appointment of
petitioner to MJS Grade I with retrospective effect after a reasonable
period from date of the viva voce result which was 16.02.2015 or say w.e.f.
01.04.2015 should be communicated to the petitioner within the aforesaid
period of four weeks. In case petitioner is offered the appointment and
joins the service, he would get wages by way of salary etc. only from the
date he starts working on the post. For the past period he would be
entitled only for notional benefits of increment and length of service for
pensionary benefits, as and when occasion arises in future. The writ
petition of the petitioner succeeds accordingly. The petitioner is held
entitled to a cost of Rs.50,000/-.
……………………………….J.
[SHIVA KIRTI SINGH]
New Delhi.
October 07, 2016.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 294 OF 2015
SALAM SAMARJEET SINGH PETITIONER
VERSUS
HIGH COURT OF MANIPUR AT IMPHAL & ANR. RESPONDENTS
J U D G M E N T
R. BANUMATHI J.
In this Writ Petition filed under Article 32 of the Constitution of India,
the petitioner prays for issuance of a writ of certiorari quashing the
Notification dated 16th February, 2015 issued by the High Court of Manipur,
whereby the petitioner was declared unsuccessful in viva-voce conducted by
the High Court of Manipur for appointment to the post of District Judge
(Entry Level) in Manipur Judicial Services Grade-I. Petitioner seeks
further direction to declare his appointment to Manipur Judicial Services
Grade-I with retrospective effect.
2. An advertisement was issued by the Manipur High Court vide
Notification No. HCL/A-1/2013-A&E(J)/288 dated 15th May, 2013, inviting
applications for recruitment to one vacant (unreserved) post of District
Judge (Entry Level) in Higher Judicial Service through District Judge
(Entry Level) Direct Recruitment Examination, 2013. As per the conditions
prescribed in the aforesaid advertisement, the petitioner being eligible
applied for the said post under the category of ‘Scheduled Caste’.
Examination was held on 21st, 22nd & 23rd July, 2013 and the petitioner
also appeared in the same. The High Court of Manipur issued a Notification
dated 17th October, 2013 stating therein that none of the candidates had
secured the minimum qualifying marks in the said Examination. The marks
obtained by all the candidates who appeared in the said examination were
uploaded on the website of the High Court of Manipur on 29th January, 2014.
From the result made available on the website of the High Court, the
petitioner learnt that he had scored 52.8% and that he was eligible for the
interview/viva-voce as per the advertisement dated 15th May, 2013 and
Schedule “B” of the Manipur Judicial Service Rules, 2005, (for short ‘the
MJS Rules’) as he belongs to the Scheduled Caste community of the State of
Manipur. The petitioner had given a representation on 4th February, 2014
to the High Court for reviewing the Notification dated 17th October, 2013
issued by the High Court of Manipur. In response to petitioner’s
representation, the High Court issued a corrigendum dated 7th February,
2014, modifying the said Notification by stating that only one candidate
namely Shri Salam Samarjeet Singh (SC), petitioner herein had secured the
minimum qualifying marks in the written examination held on 21st, 22nd and
23rd July, 2013 for recruitment to MJS Grade-I, under direct recruitment
quota and had been found qualified for appearing in the viva-voce. It was
also stated therein that the date and time for interview would be notified
in due course. Before conducting the viva-voce, the respondent High Court
held a Full Court meeting on 12th January, 2015 wherein one of the agenda
was to prescribe “qualifying marks for interview (viva-voce)”. After
discussion on this agenda, the Full Court took a decision that “no one
shall be declared pass and selected for appointment unless he secures
minimum 40% from the interview”.
3. The petitioner appeared before the Interview Committee comprising of
the Chief Justice and two other Judges of the High Court of Manipur on 12th
February, 2015. In the interview, the petitioner obtained 18.8 marks out of
50 marks i.e. 37.6%. Since the petitioner failed to secure the minimum
marks of 40% vide Notification dated 16th February, 2015 issued by the High
Court, the petitioner was declared “not selected”. Aggrieved by the
aforesaid Notification, the petitioner has filed this Writ Petition,
seeking a writ of certiorari to quash the Notification and another of
mandamus directing the High Court to declare him appointed to MJS Grade-I
with retrospective effect.
4. In the Writ Petition, petitioner has stated that the marks obtained
in the viva-voce should be merely added to the marks obtained in the
written examination to finalize the merit list and it was not permissible
to have fixed a minimum bench mark for the viva-voce. According to the
petitioner, his non-qualification in the interview and the impugned
Notification dated 16th February, 2015 pursuant thereto are in violation of
the law laid down by this Court in P.K. Ramachandra Iyer & Ors. v. Union of
India & Ors. (1984) 2 SCC 141and Umesh Chandra Shukla v. Union of India &
Ors. (1985) 3 SCC 721. It is further averred that before the commencement
of selection process, the Selection Committee prescribed minimum marks only
for written examination and that during the course of the selection
process, it cannot change the criteria by adding an additional eligibility
condition/requirement that the candidates shall secure minimum marks in the
interview.
5. On notice, the respondents entered appearance and filed their counter
affidavit.
6. Case of the respondent-High Court is that the entire selection
process of the 2013 Examination has been conducted in a just and fair
manner following the Rules prescribed under the MJS Rules and the action of
the respondents is not violative of Articles 14 and 16 of the Constitution
of India. Schedule ‘B’ of the MJS Rules prescribes the minimum qualifying
marks for viva-voce as 40%. It is the case of the respondent-High Court
that the minimum qualifying marks prescribed have been further clarified in
its Full Court Resolution dated 12th January, 2015 before the viva-voce was
conducted by the Interview Committee, so as to avoid any discrepancies.
7. In its counter affidavit, the respondent-High Court has further
stated that the Recruitment Committee during the course of the interview of
the petitioner, which lasted for half an hour, did individual assessment of
the candidate in nine disciplines (each discipline carrying 5.55 marks).
The total marks obtained by the petitioner from each member were 19.5, 19.0
and 18.0 totalling to 37.6%. The petitioner failed to secure the minimum
qualifying marks of 40% in viva-voce as prescribed under the MJS Rules and
hence he failed to qualify in the interview and is not entitled to the
relief sought for in the Writ Petition.
8. We have heard learned counsel for the parties at length.
9. Learned Senior Counsel for the writ petitioner, Mr. Sanjay R. Hegde
submitted that the Full Court Resolution dated 12th January, 2015 fixing
cut-off marks – minimum 40% in the interview is an erroneous interpretation
of Evaluation of Performance given in Schedule B of the 2005 Rules. It was
further submitted that the action of the respondents to apply the criteria
of minimum qualifying marks in the interview would amount to change in the
criteria for selection after the selection process started. It was further
submitted that the petitioner was never informed about the Resolution dated
12th January, 2015 prescribing minimum marks to be secured in the
interview, and the same amounts to violation of principles of natural
justice. In support of the contention that changing the ‘rules of the game’
during the course of selection process would vitiate the entire selection,
reliance was placed upon Hemani Malhotra v. High Court of Delhi (2008) 7
SCC 11 and K. Manjusree v. State of Andhra Pradesh & Anr. (2008) 3 SCC 512.
10. Per contra, learned counsel for the respondent has submitted that
Schedule B of the MJS Rules stipulates minimum qualifying marks
cumulatively for both written examination and viva-voce; and the said
minimum qualifying marks so prescribed by the Rules were further clarified
in the Full Court meeting dated 12th January, 2015 so as to avoid any
discrepancies during the viva-voce conducted by the Interview Committee.
It was submitted that the MJS Rules clearly stipulate “that all necessary
steps not provided for in the Rules for recruitment shall be decided by the
Recruiting Authority” and while so, the Full Court Resolution dated 12th
January, 2015, fixing minimum cut-off marks as 40% cannot amount to change
in the rules of the game. It was contended that the respondent has not
deviated from the Rules nor has it adopted any different criteria for the
aforesaid selection process.
11. For filling up one “unreserved” post of District Judge (Entry Level)
Grade-I in Manipur Judicial Service, by direct recruitment from the Bar,
admittedly, recruitment process was set in motion by advertisement dated
15th May, 2013. General Instructions with respect to the scheme of
recruitment were appended to the said advertisement. The said instructions
in the advertisement were incorporated from Schedule ‘B’ ? Competitive
Examination of Manipur Judicial Services Rules, 2005. As per MJS Rules,
the competitive examination comprises of two parts viz., —(i) written
examination comprising of three papers each carrying 100 marks total 300
marks; (ii) interview (viva voce) carrying 50 marks. General Instructions
in Schedule ‘B’ Clause 1(3) read as under:-
3. GENERAL INSTRUCTIONS:-
All candidates who obtain sixty percent or more marks or corresponding
grade in the written examination shall be eligible for viva-voce
examination.
Provided that Scheduled Caste/Scheduled Tribe candidates who obtain fifty
per cent or more marks or corresponding grade in the written examination
shall be eligible for the viva-voce examination.
Selection of candidates shall be made on the basis of cumulative grade
value obtained in the written and viva-voce examination.
The object of the viva-voce examination under sub-rule (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.
All necessary steps not provided for in these rules for recruitment under
these Rules shall be decided by the recruiting authority.
The mode of evaluating the performance of Grading in the written and viva-
voce examination shall be as specified below:
EVALUATING PERFORMANCE IN COMPETITIVE EXAMINATION FOR JUDICIAL SELECTION
The system Operates as follows:-
The questions in the question paper may carry numerical marks for each
question.
The examiner may assign numerical marks for each sub-question which may be
totaled up and shown against each full question in numbers.
The tabulator will then convert the numerical marks into grades in a seven
point scale with corresponding grade values as follows:
|Percentage of marks |Grade |Grade Value |
|Grade value | | |
|70% and above |O |7 |
|65& to 69% |A+ |6 |
|60% to 64% |A |5 |
|55% to 59% |B+ |4 |
|50% to 54% |B |3 |
|45% to 49% |C+ |2 |
|40% to 44% |C |1 |
|Below 40% |F |0 |
4. After converting the numerical marks of each question into the
appropriate grade according to the formula given in first column above the
tabulator will re-convert to Grades obtained for each question to the Grade
value according to the value given in the third column above.
…..
6. What happens if there are several successful candidates obtaining the
same grade and the available positions are fewer in number? How do you rank
them to determine who is to be given the job? Of course, this situation can
develop with numerical marking also where persons with one mark of half a
mark difference are given advantage. This is unfair given the fact that in
actual practice this may happen because of the play of subjective elements
on the part of the individual examiners. What is therefore recommended is a
similar vigorous and objective grade value exercise for the viva-voce
examination as well.
7. At the end of each day’s interview the tabulator will convert the
numerical marks assigned to each category into grade and then to grade
values. This will then be totalled up and the cumulative grade value
average of each candidate interviewed will be obtained.
……
9. The final selection list will be readied by combining the cumulative
grade value obtained in the written examination and the viva-voce
examination. [Emphasis added]
12. The above instructions for Competitive Examination For Direct
Recruitment of Grade–I Judicial Officer were inter alia incorporated in the
2013 advertisement. On a reading of Clause 1(3) – General Instructions in
Schedule ‘B’, it is clear that the first respondent has reserved a
residuary right in its favour to take necessary steps which are not
expressly included in the Rules. Before conducting the interview/viva-voce
of the petitioner, the High Court held a Full Court Meeting on 12th
January, 2015 wherein Agenda No.2 – “qualifying marks for interview (viva-
voce)” was taken up for discussion. After referring to the
Rules–“Evaluating Performance in Competitive Examination for Judicial
Selection” and also the table for converting numerical marks into grades,
the Full Court resolved that 40% marks would be the minimum qualifying
marks for the interview/viva-voce. The resolution of the Full Court reads
as under:-
MINUTES OF THE FULL COURT HELD ON 12.01.2015 IN THE CHAMBER OF
HON’BLE THE CHIEF JUSTICE
Agenda No.2: Qualifying mark for interview (viva-voce)
Resolution: A question as to what percentage would be the minimum
qualifying marks for passing interview (viva-voce) is discussed. The
following provisions of sub-rule (3) of Schedule-B of Manipur Judicial
Service (MJS) Rules were taken into consideration:
“All necessary steps not provided for in these Rules for recruitment under
these Rules shall be decided by the recruitment authority. The mode of
evaluating the performance of Grading in the written and viva-voce
examination shall be as specified below:
………………..
The Full Court after considering the power conferred on the Recruitment
Authority in the above states Rules and percentage of marks with Grade
Value given above resolved that no one shall be declared passed and
selected for appointment unless he secures minimum 40% from the interview
(viva-voce).
13. Having regard to the submissions of the petitioner and the
respondent, the question falling for consideration is whether prescribing
40% marks as the minimum qualifying marks for the interview after holding
the written examination and before conducting the viva-voce was within the
power of the respondents; or whether it amounts to change in the criteria
of selection in the midst of the selection process.
14. As seen from the MJS Rules - under the head - “EVALUATING PERFORMANCE
IN COMPETITIVE EXAMINATION FOR JUDICIAL SELECTION”, a scheme of converting
the numerical marks of each question into an appropriate grade, according
to the formula given in the table and re-converting into grades, is
stipulated. In the table, the percentage of marks and Grade prescribe that
marks below 40% is Grade ‘F’ which means ‘Fail’ and its Grade Value is ‘0’.
The High Court has maintained that the Full Court decision prescribing
minimum 40% marks in the interview/viva-voce was taken in order to
introduce consistency in the criteria of evaluating performance of
candidates in written examination and interview/viva-voce. Since the MJS
Rules already stipulate that less than 40% marks is Grade ‘F’ with Grade
Value ‘0’, it is implicit in the Rules that for a ‘pass’ in the
examination, 40% minimum marks need to be obtained, though of course as per
MJS Rules, this is for the cumulative Grade Value obtained in the written
examination and the interview/viva-voce examination. Keeping in view the
MJS Rules, in particular, the table converting numerical marks into Grades
and the final Select List that is prepared by adding cumulative grade value
obtained in the written examination and the interview/viva-voce, it is my
considered view that fixing 40% for interview/viva-voce out of total marks
of 50 is in consonance with MJS Rules and it will not amount to change in
the criteria of selection in the midst of selection process.
15. Clause 1(3), General Instructions of the MJS Rules reserves a right
in favour of the High Court which enables the High Court to resort to the
procedures, in addition to, what has been specifically laid down in the
Rules. It provides that “all necessary steps not provided for in these
Rules for recruitment under these Rules shall be decided by the Recruiting
Authority”. Having regard to the aforesaid provision, the High Court cannot
be faulted with, in prescribing cut-off marks for the interview/viva-voce.
The object of conducting interview/viva-voce examination has been rightly
stated in the Rules to assess suitability of the candidate by judging the
mental alertness, knowledge of law, clear and original exposition,
intellectual depth and the like. The Rules further stipulate a vigorous and
objective grade value exercise for the interview/viva-voce examination as
well. Keeping in view the Rules and having regard to the seniority of the
post which is District Judge (Entry Level), the High Court cannot be
faulted with for exercising its residuary right reserved in its favour by
prescribing cut-off marks for the interview.
16. Contending that change in the norms for selection by introducing the
minimum marks for interview during the selection process would amount to
change in the rules of the game, reliance was placed upon K. Manjusree v.
State of A.P. (2008) 3 SCC 512 wherein this Court held that selection
criteria has to be adopted and declared at the time of commencement of the
recruitment process. The rules of the game cannot be changed after the
commencement of the game. It was held that the competent authority, if not
restrained by the statutory rules, is fully competent to prescribe the
minimum qualifying marks for written examination as well as for interview.
But such prescription must be done at the time of initiation of selection
process. Change of criteria of selection in the midst of selection process
is not permissible.
17. Counsel for the Petitioner has also relied on Hemani Malhotra v. High
Court of Delhi (2008) 7 SCC 11. In Hemani Malhotra’s case, the result of
the written examination of the Delhi Higher Judicial Service was not
announced by the High Court of Delhi, and individual communication was sent
to the petitioners therein, informing them of their selection for the
interview. Five candidates were called for interview on various occasions
and were informed of its postponement, i.e. the interview first scheduled
for 20.09.2006 was later deferred to 29.11.2006, 07.12.2006, 23.01.2007,
05.02.2007 and was finally conducted on 27.02.2007. Meanwhile on
13.12.2006, by a Full Court Resolution, minimum qualifying marks for the
viva-voce was prescribed (55% for General Candidates and 50% for SC and ST
candidates). In such facts and circumstances, prescribing minimum marks for
the interview was struck down along the same lines as in the case of
Manjushree.
18. Observing that prescribing minimum marks for the interview was not
permissible after the written test was conducted, in Hemani Malhotra v.
High Court of Delhi (2008) 7 SCC 11, it was held 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 viva-voce, but if minimum marks are not prescribed for viva-
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 viva-voce
test was illegal.”
19. In Hemani Malhotra, candidates were called for interview on various
dates but no interview was held and it was deferred. In the meanwhile
minimum qualifying marks were prescribed for interview. This is not the
case before us. In this case, prior to the interview which was conducted on
12th February, 2015, a Full Court meeting was held on 12th January, 2015
and a decision was taken prescribing minimum qualifying marks for the viva-
voce. Thus, it would be incorrect to contend that prejudice was caused to
the petitioner, especially when no bias is alleged.
20. After referring to the cases of Manjusree and Hemani Malhotra, in
Ramesh Kumar v. High Court of Delhi & Anr. (2010) 3 SCC 104, it was also
held as under:-
15. Thus, the law on the issue can be 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 benchmarks 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’ Assn. (3) v.
Union of India (2002) 4 SCC 247 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
v. State of J&K (2003) 9 SCC 592 and Malik Mazhar Sultan (3) v. U.P. Public
Service Commission (2008) 17 SCC 703. We have also accepted the said
settled legal proposition while deciding the connected cases i.e. Rakhi Ray
v. High Court of Delhi (2010) 2 SCC 637 vide judgment and order of this
date. It has been clarified in Rakhi Ray v. High Court of Delhi (2010) 2
SCC 637 that where statutory rules do not deal with a particular
subject/issue, so far as the appointment of the Judicial Officers is
concerned, directions issued by this Court would have binding effect.
21. Both Hemani Malhotra and Ramesh Kumar relied upon Manjusree to hold
that prescription of minimum marks in the interview was not permissible
after the written test was conducted. After referring to State of Haryana
v. Subash Chander Marwaha and Ors. (1974) 3 SCC 220 and observing that the
principles laid down in Manjusree without any further scrutiny would not be
in the larger public interest or the goal of establishing an efficient
administrative machinery, in Tej Prakash Pathak & Ors. v. Rajasthan High
Court & Ors.(2013) 4 SCC 540 (three Judges), this Court observed that the
matter deserves consideration by a larger Bench. In paras (12) to (15), it
was held as under:-
12. If the principle of Manjusree case (2008) 3 SCC 512 is applied strictly
to the present case, the respondent High Court is bound to recruit 13 of
the “best” candidates out of the 21 who applied irrespective of their
performance in the examination held. In such cases, theoretically it is
possible that candidates securing very low marks but higher than some other
competing candidates may have to be appointed. In our opinion, application
of the principle as laid down in Manjusree case (2008) 3 SCC 512 without
any further scrutiny would not be in the larger public interest or the goal
of establishing an efficient administrative machinery.
13. This Court in State of Haryana v. Subash Chander Marwaha (1974) 3 SCC
220 while dealing with the recruitment of Subordinate Judges of the Punjab
Civil Services (Judicial Branch) had to deal with the situation where the
relevant rule prescribed minimum qualifying marks. The recruitment was for
filling up of 15 vacancies. 40 candidates secured the minimum qualifying
marks (45%). Only 7 candidates who secured 55% and above marks were
appointed and the remaining vacancies were kept unfilled. The decision of
the State Government not to fill up the remaining vacancies in spite of the
availability of candidates who secured the minimum qualifying marks was
challenged. The State Government defended its decision not to fill up posts
on the ground that the decision was taken to maintain the high standards of
competence in judicial service. The High Court upheld the challenge and
issued a mandamus. In appeal, this Court reversed and opined that the
candidates securing minimum qualifying marks at an examination held for the
purpose of recruitment into the service of the State have no legal right to
be appointed. In the context, it was held: (Subash Chander Marwaha case,
(1974) 3 SCC 220 p. 227, para 12)
“12. … In a case where appointments are made by selection from a number of
eligible candidates it is open to the Government with a view to maintain
high standards of competence to fix a score which is much higher than the
one required for more (sic mere) eligibility.”
14. Unfortunately, the decision in Subash Chander Marwaha (1974) 3 SCC 220
does not appear to have been brought to the notice of Their Lordships in
Manjusree (2008) 3 SCC 512. This Court in Manjusree (2008) 3 SCC 512 relied
upon P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141, Umesh
Chandra Shukla v. Union of India (1985) 3 SCC 721 and Durgacharan Misra v.
State of Orissa(1987) 4 SCC 646. In none of the cases, was the decision in
Subash Chander Marwaha (1974) 3 SCC 220 considered.
15. No doubt it is a salutary principle not to permit the State or its
instrumentalities to tinker with the “rules of the game” insofar as the
prescription of eligibility criteria is concerned as was done in C.
Channabasavaih v. State of Mysore, AIR 1965 SC 1293 in order to avoid
manipulation of the recruitment process and its results. Whether such a
principle should be applied in the context of the “rules of the game”
stipulating the procedure for selection more particularly when the change
sought is to impose a more rigorous scrutiny for selection requires an
authoritative pronouncement of a larger Bench of this Court. We, therefore,
order that the matter be placed before the Hon’ble Chief Justice of India
for appropriate orders in this regard.
Since the decision laid down in the Manjusree’s case is doubted and the
matter is pending for consideration by a larger Bench, and in the facts and
circumstances of this case, it is my view that the ratio laid down in
Manjusree and Hemani Malhotra is not applicable to the present case.
22. This Court has laid much emphasis on interview/viva-voce in a catena
of decisions. In the recruitment for judicial services, the importance of
interview/viva-voce cannot be underestimated. Viva-voce is the best mode
of assessing the suitability of a candidate as it brings out the overall
intellectual qualities of the candidates. In Ramesh Kumar v. High Court of
Delhi & Anr. (2010) 3 SCC 104, this Court held as under:-
“11. In State of U.P. v. Rafiquddin (1987) Supp SCC 401; Krushna Chandra
Sahu (Dr.) v. State of Orissa (1995) 6 SCC 1; Manjeet Singh v. ESI Corpn.
(1990) 2 SCC 367 and K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395
this Court held that the Commission/Board has to satisfy itself that a
candidate had obtained such aggregate marks in the written test as to
qualify for interview and obtained “sufficient marks in viva-voce” which
would show his suitability for service. Such a course is permissible for
adjudging the qualities/capacities of the candidates. It may be necessary
in view of the fact that it is imperative that only persons with a
prescribed minimum of said qualities/capacities should be selected as
otherwise the standard of judiciary would get diluted and substandard stuff
may get selected. Interview may also be the best mode of assessing the
suitability of a candidate for a particular position as it brings out the
overall intellectual qualities of the candidates. While the written test
will testify the candidate’s academic knowledge, the oral test can bring
out or disclose overall intellectual and personal qualities like alertness,
resourcefulness, dependability, capacity for discussion, ability to take
decisions, qualities of leadership, etc. which are also essential for a
Judicial Officer.
12. Reiterating similar views, this Court has given much emphasis on
interview in Lila Dhar v. State of Rajasthan (1981) 4 SCC 159 and Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417 stating that interview
“can evaluate a candidate’s initiative, alertness, resourcefulness,
dependableness, cooperativeness, capacity for clear and logical
presentation, effectiveness in discussion, effectiveness in meeting and
dealing with others, adaptability, judgment, ability to make decision,
ability to lead, intellectual and moral integrity with some degree of
error.”
23. Full Court decision dated 12th January, 2015 prescribing minimum
qualifying marks for viva-voce is a decision taken towards ensuring the
fair and meritorious appointment on the post advertised and no mala fide
can be attributed to the respondents for such a decision. Had the High
Court convened the Full Court Meeting after conducting the viva-voce and
had then prescribed the minimum qualifying marks, the contention of the
petitioner would have been justified. When the decision of the Full Court
was to ensure selection of meritorious candidate, it cannot be said that
the decision of the High Court amounted to change in the criteria of
selection after the selection process has started.
24. Petitioner contends that the decision of the High Court to prescribe
minimum qualification marks is against the recommendations of the Shetty
Commission and is violative of the judgment of this Court in All India
Judges’ Association and Ors. v. Union of India and Ors. (2002) 4 SCC 247.
It is further argued that in the said case, the Court accepted Shetty
Commission’s Report which has recommended not having cut-off marks in
interview for the recruitment of the judicial officers.
25. No doubt, Shetty Commission has recommended in its Report that there
should be no cut-off marks in the viva-voce test. Relevant recommendation
of Shetty Commission reads as under:-
“The viva-voce test should be in a thorough and scientific manner and it
should take anything between 25 to 30 minutes for each candidate. What is
recommended by the Commission is that the via voce test shall carry 50
marks and there shall be no cut-off marks in viva-voce test.”
26. Admittedly, the Shetty Commission has recommended that the viva-voce
test shall carry fifty marks and there shall be no cut-off marks in the
viva-voce test. In All India Judges’ Association case para (37), this
Court subject to various modifications in the judgment, accepted all other
recommendations of the Shetty Commission. While there was a detailed
discussion on the perks, mode of recruitment to the Higher Judicial Service
and the proportionate percentage for promotion as District Judges for
judicial officers, limited competitive examination for Civil Judges (Junior
Division) and percentage of direct recruitment, there was no detailed
discussion regarding the other recommendations of Shetty Commission. As
rightly contended by the learned Senior Counsel for the respondent, All
India Judges’ Association case is sub silentio on the recommendation of
Shetty Commission as to “no cut-off marks for the viva-voce”. Contention
of the petitioner that fixing cut-off marks for the viva-voce is in
violation of the decision of this Court is not tenable.
27. Learned senior counsel for the respondents has also drawn attention
to the Judicial Service Rules of various High Courts namely, Delhi,
Maharashtra, Odisha, West Bengal and Himachal Pradesh which have prescribed
minimum cut-off marks for the interview. Insofar as MJS Rules are
concerned, such fixing of cut-off marks in the interview/viva-voce cannot
be said to be arbitrary or in violation of the decision of this Court.
28. Yet another aspect of the matter is that the petitioner participated
in the selection process and only because in the final result the
petitioner being unsuccessful, he cannot turn around and contend that the
criteria for selection was changed. It is fairly well-settled that the
candidate having participated in the selection process without any protest
cannot be allowed to turn around and question the very process having
failed to qualify. In Madan Lal & Ors. v. State of J&K & Ors. (1995) 3 SCC
486, this Court observed:-
“9. … 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 the process of interview was unfair….
10. Therefore, the result of the interview test on merits cannot be
successfully challenged by a candidate who takes a chance to get selected
at the said interview and who ultimately finds himself to be unsuccessful.”
29. In the written examination, the petitioner has secured 158.50 out of
300; in the interview/viva-voce 18.80 out of 50 totalling 177.30 out of 350
i.e. 50.65%. Learned senior counsel for the petitioner submitted that as
per the existing Rules, the final selection is to be made by adding the
cumulative grade value obtained in the written examination and
interview/viva-voce examination. The petitioner having obtained cumulative
percentage of 50.65 which is equivalent to Grade ‘B’; it is contended that,
had the High Court followed the Rules, the petitioner must have been
declared to have been selected and the High Court has deliberately denied
the appointment to the petitioner.
30. For the sake of argument, even assuming that the petitioner was
successful in the selection, in my view, it would not give the petitioner
an indefeasible right to get an appointment as well. Referring to various
judgments, in Kulwinder Pal Singh and Another v. State of Punjab and Others
(2016) 6 SCC 532, this Court held as under:
10. It is fairly well settled that merely because the name of a candidate
finds place in the select list, it would not give him indefeasible right to
get an appointment as well. The name of a candidate may appear in the merit
list but he has no indefeasible right to an appointment (vide Food
Corporation of India v. Bhanu Lodh (2005) 3 SCC 618, All India SC & ST
Employees’ Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav
Dwivedi (1999) 5 SCC 180.
11. This Court again in State of Orissa v. Rajkishore Nanda (2010) 6 SCC
777 held as under: (SCC p. 783, paras 14 & 16)
“14. A person whose name appears in the select list does not acquire any
indefeasible right of appointment. Empanelment at best is a condition of
eligibility for the purpose of appointment and by itself does not amount to
selection or create a vested right to be appointed. The vacancies have to
be filled up as per the statutory rules and in conformity with the
constitutional mandate.”
31. No mandamus can be issued in favour of the petitioner as no prejudice
was caused to him. I say so because the 2013 advertisement was issued only
for one ‘unreserved’ post. Had somebody else been appointed, the grievance
of the petitioner might have had substance. Admittedly, nobody was
appointed for the said post and the post remains vacant. Subsequent
developments are also relevant and noteworthy. For filling up of three
‘unreserved’ posts of MJS Grade-I, fresh advertisement was issued on 12th
August, 2015 by the High Court. The petitioner also applied for the said
post. Because of litigation and certain directions thereon, selection
process pursuant to the said advertisement was cancelled. In supersession
of the said earlier advertisement, a fresh advertisement was issued by the
High Court on 4th August, 2016 seeking applications for three ‘unreserved’
and one ‘reserved’ post of MJS Grade-I. The last date for the receipt of
applications was 26th August, 2016 and the petitioner also applied for the
said post. The learned senior counsel appearing for the High Court
submitted that the examinations are likely to be conducted in October,
2016. When the said post of 2013 examination has now been clubbed with
other vacant posts and advertised seeking applications from the eligible
candidates, the petitioner cannot seek mandamus seeking for appointment for
the said post with retrospective effect. The petitioner has no
indefeasible right to seek appointment as District Judge (Entry Level) in
the Manipur Judicial Services Grade-I. In the facts and circumstances of
the case, the petitioner is not entitled to the relief sought for.
32. For the foregoing discussions, the petitioner is not entitled to the
relief sought for. In the result, the Writ Petition is dismissed.
………………………..J.
[R. BANUMATHI]
New Delhi;
October 07, 2016
IN THE SPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION(C)No.294 of 2015
Salam Samarjeet Singh …..Petitioner
Versus
High Court of Manipur at Imphal & Anr. …..Respondents
O R D E R
Since there is a difference of opinion between us in view of the
dissenting judgments pronounced by us, the matter may be placed before
appropriate Bench for final adjudication after obtaining permission of
Hon’ble the Chief Justice of India.
……………………………….J.
[SHIVA KIRTI SINGH]
..…………………………….J.
[R. BANUMATHI]
New Delhi.
October 07, 2016.
-----------------------
[1]
[2] (2008) 3 SCC 512
[3]
[4] (2008) 7 SCC 11
[5]
[6] (2010) 3 SCC 104
[7]
[8] (2013) 4 SCC 540
[9]
[10] (1974) 3 SCC 220
[11]
[12] (2002) 4 SCC 247
[13]
[14] (1995) 3 SCC 486
[15]
[16] (2016) 6 SCC 532
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION(C)No.294 of 2015
Salam Samarjeet Singh …..Petitioner
Versus
High Court of Manipur at Imphal & Anr. …..Respondents
J U D G M E N T
Shiva Kirti Singh, J.
I have perused the judgment written by Banumathi, J. Since I am unable to
agree with the same, I hereby record my views on the main issues involved
in the case.
As most of the relevant facts including the submissions of the rival
parties as well as relevant provisions of rules have already been
extracted, I will borrow and refer from such facts and statutory provisions
where ever necessary. Only to recapitulate the seminal facts, it is noted
that the relevant advertisement for filling up a single vacancy in the post
of District Judge (Entry Level) by way of direct recruitment through
examination of 2013 was published on 15.5.2013. The advertisement
disclosed that the recruitment shall be governed by the Manipur Judicial
Service (Recruitment and Conditions of Service) Rules, 2005 (for brevity,
‘the Rules’). The duly filled applications were to be sent to Registrar,
High Court of Manipur at Imphal. Inter alia, it was also indicated, as is
the position in the Rules, that for being called for viva voce test a
candidate must secure in the written examination 60% marks if he is from
unreserved category and 50% if he is of reserved category. The viva voce
was to carry 50 marks. The examination was held in July 2013. As per
initial notification dated 17.10.2013, the Joint Registrar notified that
none of the candidates was successful in their written examination. The
mark sheet was published on 29.01.2014 in which petitioner being a
scheduled caste category candidate had secured more than the minimum
qualifying marks of 50%. In fact he had secured 52.8% marks. Hence
petitioner filed a representation on 04.02.2014 for reconsideration of his
result. On 07.02.2014 the High Court issued a corrigendum and declared the
petitioner as successful in the written examination. Be it noted that the
petitioner was the only successful candidate for the unreserved single post
under contest. For almost a year the recruitment process remained at a
standstill. Through a letter dated 29.01.2015 the petitioner was informed
that viva voce will be held on 12.02.2015. The petitioner undertook the
said test. On 19.02.2015 the petitioner learnt from a notice dated
16.02.2015 issued by the Joint Registrar of the High Court and placed on
the Notice Board of the High Court that the petitioner had failed to
qualify in the interview.
The petitioner made a request for certain informations under the RTI Act
from the concerned officer of High Court of Manipur on 21.02.2015. The
informations sought for included queries as to whether there was any pass
mark/cut-off mark out of the total 50 marks for the interview and also
details of the particular rule under which he had failed in the interview.
The information was supplied on 19.03.2015 disclosing that he had obtained
18.8% marks in the viva voce test and the cut-off mark/pass mark is 40% out
of total 50 marks for the interview. The High Court did not provide
reference to any particular rule under which petitioner had been found not
qualified in the interview.
It is not in dispute and it was subsequently discovered that the Full Court
of the Manipur High Court had resolved on 12.01.2015, only a few days
before interviewing the lone candidate- the petitioner, to fix 40% as the
pass mark for viva-voce. Since the petitioner was interviewed by all the
three Judges of the High Court in the viva voce and was declared to have
failed on account of pass marks prescribed for viva voce examination by the
Full Court on 12.01.2015, he did not have much option but to prefer the
present writ petition in this Court mainly to seek the relief for quashing
of his viva voce result dated 16.02.2015 and for declaration of his result
for appointment to MJS Grade I with retrospective effect from a reasonable
date and/or to grant any just and equitable relief in the facts and
circumstances of the case.
A perusal of relevant informations given to the candidates in the
advertisement, particularly the general instructions contained in Appendix
‘A’ of the Scheme of Examination clearly discloses that scheduled caste
candidates shall be eligible for the viva voce examination on obtaining 50%
or more marks in the written examination. It is also clearly spelt out
that selection of candidates shall be made on the basis of cumulative grade
value obtained in the written and viva voce examination. In my considered
view the statutory mandate for selection on the basis of cumulative grade
required the authorities to add the marks of both the examinations, prepare
the merit list as per total marks for the cumulative grade and make the
selection from such merit list.
This mandate was violated for a reason that does not muster scrutiny.
Although the object of viva voce examination has been given in some detail
but that is only for the guidance of members of the Board conducting the
viva voce test. The mode of evaluating the performance of grading in the
written and viva voce examination has been indicated in the general
instructions and the same has already been noted in the judgment of
Banumathi, J. The grade ‘F’ which provides for percentage of marks below
40% corresponds to numerical grade ‘0’ but beyond that there is nothing to
support the submission on behalf of the High Court that ‘F’ is indicator of
failure in the written examination or in the viva voce. The cut-off mark
for the written examination is separately provided under the Rules, to the
effect that written examination will carry 200 marks and the cut-off marks
should be 60% or corresponding grade for general candidates and 50% or
corresponding grade for SC/ST candidates. So 40% to 49% denoted by ‘C’
also stand for fail marks for the written examination and therefore there
is no basis to infer that ‘F’ standing for below 40% is a symbol of fail
marks. Further when the Rules explicitly specify the pass marks for the
written examination and conspicuously make no such provision in respect of
viva voce examination, rather provide to the contrary that the final
selection list will be by combining the cumulative grade value obtained in
the written and the viva voce examination, nothing can be gainsaid on the
basis of evaluating procedure alone. For the purpose of deciphering cut-off
marks or pass marks for the viva voce examination there ought to be a
similar specific provision in the Rules. But it was not there at the
relevant time. It has been introduced much later in 2016.
In my considered view the Rules and the instructions clearly demonstrate
that there was no cut-off mark or pass mark for the viva voce examination
in the past and therefore the High Court on 12.01.2015 made a specific
Resolution that no one shall be declared passed and selected for
appointment unless he secures minimum 40% in the interview (viva voce).
This power to add to the Rules is claimed from the provisions of sub-rule
(3) of Rule 1 of Schedule ‘B’ of the Rules empowering the recruitment
authority to take “all necessary steps not provided for in these Rules for
recruitment under these Rules......”. In my view the Resolution of the
High Court on 12.01.2015 ran counter to express provision in the Rules as
to how the final merit list was to be prepared by combining the marks of
both the examinations. Not providing any pass mark for the viva voce while
so providing for the written examination clearly indicates that the Rules
deliberately chose not to prescribe any cut-off for the viva voce. The
explanation for the same lies in the recommendations made in this regard by
the Shetty Commission. The Rules are almost verbatim copy of most of the
recommendations in respect of such examination for recruitment. Clearly,
they also followed the recommendation of the Shetty Commission that there
should not be any cut off or fail marks for the viva voce examination.
Such omission was thus clearly deliberate to facilitate the intended
result. There was no gap or vacuum here and therefore Clause 1(3) of the
Rules is not attracted. Hence, the Rules could not have been altered by a
Resolution taken by the Full Court. We have been informed that ultimately
the Rules have been formally amended vide notification dated 09.03.2016
issued in exercise of powers under Article 309 read with Article 234 of the
Constitution of India whereby, inter alia, it has been included in the
general instructions under Schedule ‘B’ that candidates securing minimum
40% marks in the interview shall only be eligible to be included in the
select list. Apparently this amended rule is to come into force only in
future from a date to be specified. But in any case it has not been made
retrospective and rightly so because such Rules governing selection
procedure for recruitment cannot be amended to affect the results after the
game has been played.
In the aforesaid facts and circumstances, the contention advanced on behalf
of the petitioner that the impugned act of bringing about change in the
selection procedure by providing minimum marks for interview or viva voce
test in midst of the selection process which has already been initiated
amounts to changing the rules of the game and hence impermissible, is well
supported by judgment in the case of K. Manjusree v. State of Andhra
Pradesh & Anr.[1] as well as in the case of Hemani Malhotra Etc. v. High
Court of Delhi[2]. In my view once petitioner was declared as the lone
candidate having passed in the written examination, it matters little
whether minimum marks for interview were introduced before or after calling
him for interview. The petitioner or any other person in his place,
knowing fully well that there was no separate cut-off or pass mark for the
viva voce, would not feel any pressure to be extra ready for the interview.
In order to ensure fairness, after the Full Court decision on 12.01.2015
to fix 40% as pass marks for viva voce, the petitioner ought to have been
informed of this development, at least when intimation of date of interview
was communicated to him through letter dated 29.01.2015. Since the viva
voce was held on 12.02.2015, he would have got some time to improve his
preparations to meet the 40% cut-off newly introduced. That was not done.
In such circumstances, I do not find any material, reason or circumstance
to distinguish the case of K. Manjusree as well as of Hemani Malhotra. In
my considered view the High Court did not have the power to change the
scheme of the rules which prescribed pass marks only for the written
examination, deliberately omitted the same for viva voce examination and
warranted final results after adding both the marks. If for the sake of
arguments, such power is conceded even then the power could not have been
exercised to change the rules of the game when petitioner alone was left in
the arena and could not have been disqualified except by changing the rules
midway. Para 15 in the case of Hemani Malhotra extracted earlier in the
preceding judgment applies on all force like the judgment in the case of K.
Manjusree. Learned counsel for the petitioner has rightly placed reliance
on those judgments. The judgment in the case of Ramesh Kumar v. High Court
of Delhi & Anr.[3] draws some inspiration from the recommendations of
Justice Shetty Commission’s Report in para 16 but the general law already
settled and stated in para 15 also clearly helps the case of the
petitioner. In my view the statutory rules did prescribe a particular mode
of selection which did not require any pass mark for the viva voce
examination and it had to be given strict adherence accordingly, at least
till the ongoing recruitment process got concluded. Since the procedure
was already prescribed by the Rules, in the present case there was clear
impediment in law in the way of the High Court in proceeding to lay down
minimum pass mark for the viva voce test which was meant only for the
petitioner as he was the lone candidate successful in the written
examination. In my view the petitioner was clearly prejudiced and although
no case of bias has been pleaded, the impugned action would validly attract
the criticism of malice in law.
For the aforesaid reasons alone, in my view, there is no need in the
present case to go into recommendations of the Shetty Commission, even if
it be conceded for the sake of arguments that State Government may decide
not to fill up posts if it has reasons to believe that appointing the
selected candidate would adversely affect the required standards of
competence. That stage was never arrived at in this case. Hence reference
to an issue of aforesaid nature to a larger Bench by the order in the case
of Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.[4] rendered by
a Bench of three Judges will not have any effect on the outcome of this
case. The law laid down in the case of State of Haryana v. Subash Chander
Marwaha & Ors.[5] is applicable only at the stage when the selection
process is complete and then if appointment is refused to a selected
candidate for good reasons, the candidate may not have an indefeasible
right to claim a right of appointment. This course of action would be
valid, subject to satisfactory answer by the authority to any charge of
arbitrariness. But as noted earlier that stage has not been reached in the
case of the petitioner. He has been disqualified by the High Court on the
basis of its Full Bench Resolution taken in the course of the selection
procedure. That process in my view must be continued and completed fairly,
disregarding the subsequent changes brought about by the High Court or
subsequent amendment of the Rules.
Hence while not delving into effect of judgment in the case of All India
Judges’ Association v. Union of India & Ors.[6] and leaving the issue open
for decision in an appropriate case as to what is the effect of aforesaid
judgment sub silentio accepting the recommendations of Shetty Commission’s
Report that there shall be no cut-off marks in viva voce test. The
Judicial Service Rules of various High Courts in my view cannot affect the
rights of the petitioner which have to be governed by the Rules on which I
have already expressed my view that it deliberately did not provide any cut-
off marks for the viva voce test and instead provide for preparation of
final result by adding the marks of written examination and viva voce test.
The law laid down in the case of Madan Lal & Ors. v. State of J & K &
Ors.[7] in my considered view does not stand in the way of the petitioner.
The High Court Resolution was not communicated to the petitioner. It was
neither a part of the Rules nor of the advertisement and hence the theory
that if a candidate takes a calculated chance and faces the selection
procedure then on the result being unfavourable, he cannot be permitted to
turn around and challenge the process of selection is not at all attracted.
The theory rests on the hypothesis that the impugned procedure or rule is
already in public domain and the candidate must, therefore, be aware of it
when he participates. So far as the judgment in the case of Kulwinder Pal
Singh & Anr. v. State of Punjab & Ors.[8] is concerned, I am in respectful
agreement with the same and with the view expressed by Banumathi, J. that
only being in the selected panel does not give the petitioner or anybody
else an indefeasible right to get an appointment. But the vacancies, as
highlighted in paragraph 11, have to be filled up as per statutory rules
and in conformity with the constitutional mandate. I do not see anything
in that judgment against the consideration of petitioner’s case in
accordance with law after declaring his results by ignoring the pass mark
criteria for the viva voce examination introduced by the High Court and
then proceed as per Rules by adding the marks of written examination with
that of viva voce test. All actions of authorities must meet the test of
reasonableness and in case petitioner is not offered appointment though
being the only successful candidate, then the respondents may have to
justify their action, if challenged, on the basis of case of Kulwinder Pal
Singh and similar other judgments. As already indicated earlier, that
stage is yet to arrive.
In the result, in my view the petitioner is entitled to the relief sought
for in the writ petition which is allowed in the light of discussions made
above. The viva voce result of the petitioner dated 16.02.2015 showing him
as ‘unsuccessful’ shall stand quashed. The respondents shall declare the
result of the petitioner for appointment to MJS Grade I as per discussion
made in this judgment forthwith and in any case within four weeks. In the
peculiar facts of the case, in my view, a decision for appointment of
petitioner to MJS Grade I with retrospective effect after a reasonable
period from date of the viva voce result which was 16.02.2015 or say w.e.f.
01.04.2015 should be communicated to the petitioner within the aforesaid
period of four weeks. In case petitioner is offered the appointment and
joins the service, he would get wages by way of salary etc. only from the
date he starts working on the post. For the past period he would be
entitled only for notional benefits of increment and length of service for
pensionary benefits, as and when occasion arises in future. The writ
petition of the petitioner succeeds accordingly. The petitioner is held
entitled to a cost of Rs.50,000/-.
……………………………….J.
[SHIVA KIRTI SINGH]
New Delhi.
October 07, 2016.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 294 OF 2015
SALAM SAMARJEET SINGH PETITIONER
VERSUS
HIGH COURT OF MANIPUR AT IMPHAL & ANR. RESPONDENTS
J U D G M E N T
R. BANUMATHI J.
In this Writ Petition filed under Article 32 of the Constitution of India,
the petitioner prays for issuance of a writ of certiorari quashing the
Notification dated 16th February, 2015 issued by the High Court of Manipur,
whereby the petitioner was declared unsuccessful in viva-voce conducted by
the High Court of Manipur for appointment to the post of District Judge
(Entry Level) in Manipur Judicial Services Grade-I. Petitioner seeks
further direction to declare his appointment to Manipur Judicial Services
Grade-I with retrospective effect.
2. An advertisement was issued by the Manipur High Court vide
Notification No. HCL/A-1/2013-A&E(J)/288 dated 15th May, 2013, inviting
applications for recruitment to one vacant (unreserved) post of District
Judge (Entry Level) in Higher Judicial Service through District Judge
(Entry Level) Direct Recruitment Examination, 2013. As per the conditions
prescribed in the aforesaid advertisement, the petitioner being eligible
applied for the said post under the category of ‘Scheduled Caste’.
Examination was held on 21st, 22nd & 23rd July, 2013 and the petitioner
also appeared in the same. The High Court of Manipur issued a Notification
dated 17th October, 2013 stating therein that none of the candidates had
secured the minimum qualifying marks in the said Examination. The marks
obtained by all the candidates who appeared in the said examination were
uploaded on the website of the High Court of Manipur on 29th January, 2014.
From the result made available on the website of the High Court, the
petitioner learnt that he had scored 52.8% and that he was eligible for the
interview/viva-voce as per the advertisement dated 15th May, 2013 and
Schedule “B” of the Manipur Judicial Service Rules, 2005, (for short ‘the
MJS Rules’) as he belongs to the Scheduled Caste community of the State of
Manipur. The petitioner had given a representation on 4th February, 2014
to the High Court for reviewing the Notification dated 17th October, 2013
issued by the High Court of Manipur. In response to petitioner’s
representation, the High Court issued a corrigendum dated 7th February,
2014, modifying the said Notification by stating that only one candidate
namely Shri Salam Samarjeet Singh (SC), petitioner herein had secured the
minimum qualifying marks in the written examination held on 21st, 22nd and
23rd July, 2013 for recruitment to MJS Grade-I, under direct recruitment
quota and had been found qualified for appearing in the viva-voce. It was
also stated therein that the date and time for interview would be notified
in due course. Before conducting the viva-voce, the respondent High Court
held a Full Court meeting on 12th January, 2015 wherein one of the agenda
was to prescribe “qualifying marks for interview (viva-voce)”. After
discussion on this agenda, the Full Court took a decision that “no one
shall be declared pass and selected for appointment unless he secures
minimum 40% from the interview”.
3. The petitioner appeared before the Interview Committee comprising of
the Chief Justice and two other Judges of the High Court of Manipur on 12th
February, 2015. In the interview, the petitioner obtained 18.8 marks out of
50 marks i.e. 37.6%. Since the petitioner failed to secure the minimum
marks of 40% vide Notification dated 16th February, 2015 issued by the High
Court, the petitioner was declared “not selected”. Aggrieved by the
aforesaid Notification, the petitioner has filed this Writ Petition,
seeking a writ of certiorari to quash the Notification and another of
mandamus directing the High Court to declare him appointed to MJS Grade-I
with retrospective effect.
4. In the Writ Petition, petitioner has stated that the marks obtained
in the viva-voce should be merely added to the marks obtained in the
written examination to finalize the merit list and it was not permissible
to have fixed a minimum bench mark for the viva-voce. According to the
petitioner, his non-qualification in the interview and the impugned
Notification dated 16th February, 2015 pursuant thereto are in violation of
the law laid down by this Court in P.K. Ramachandra Iyer & Ors. v. Union of
India & Ors. (1984) 2 SCC 141and Umesh Chandra Shukla v. Union of India &
Ors. (1985) 3 SCC 721. It is further averred that before the commencement
of selection process, the Selection Committee prescribed minimum marks only
for written examination and that during the course of the selection
process, it cannot change the criteria by adding an additional eligibility
condition/requirement that the candidates shall secure minimum marks in the
interview.
5. On notice, the respondents entered appearance and filed their counter
affidavit.
6. Case of the respondent-High Court is that the entire selection
process of the 2013 Examination has been conducted in a just and fair
manner following the Rules prescribed under the MJS Rules and the action of
the respondents is not violative of Articles 14 and 16 of the Constitution
of India. Schedule ‘B’ of the MJS Rules prescribes the minimum qualifying
marks for viva-voce as 40%. It is the case of the respondent-High Court
that the minimum qualifying marks prescribed have been further clarified in
its Full Court Resolution dated 12th January, 2015 before the viva-voce was
conducted by the Interview Committee, so as to avoid any discrepancies.
7. In its counter affidavit, the respondent-High Court has further
stated that the Recruitment Committee during the course of the interview of
the petitioner, which lasted for half an hour, did individual assessment of
the candidate in nine disciplines (each discipline carrying 5.55 marks).
The total marks obtained by the petitioner from each member were 19.5, 19.0
and 18.0 totalling to 37.6%. The petitioner failed to secure the minimum
qualifying marks of 40% in viva-voce as prescribed under the MJS Rules and
hence he failed to qualify in the interview and is not entitled to the
relief sought for in the Writ Petition.
8. We have heard learned counsel for the parties at length.
9. Learned Senior Counsel for the writ petitioner, Mr. Sanjay R. Hegde
submitted that the Full Court Resolution dated 12th January, 2015 fixing
cut-off marks – minimum 40% in the interview is an erroneous interpretation
of Evaluation of Performance given in Schedule B of the 2005 Rules. It was
further submitted that the action of the respondents to apply the criteria
of minimum qualifying marks in the interview would amount to change in the
criteria for selection after the selection process started. It was further
submitted that the petitioner was never informed about the Resolution dated
12th January, 2015 prescribing minimum marks to be secured in the
interview, and the same amounts to violation of principles of natural
justice. In support of the contention that changing the ‘rules of the game’
during the course of selection process would vitiate the entire selection,
reliance was placed upon Hemani Malhotra v. High Court of Delhi (2008) 7
SCC 11 and K. Manjusree v. State of Andhra Pradesh & Anr. (2008) 3 SCC 512.
10. Per contra, learned counsel for the respondent has submitted that
Schedule B of the MJS Rules stipulates minimum qualifying marks
cumulatively for both written examination and viva-voce; and the said
minimum qualifying marks so prescribed by the Rules were further clarified
in the Full Court meeting dated 12th January, 2015 so as to avoid any
discrepancies during the viva-voce conducted by the Interview Committee.
It was submitted that the MJS Rules clearly stipulate “that all necessary
steps not provided for in the Rules for recruitment shall be decided by the
Recruiting Authority” and while so, the Full Court Resolution dated 12th
January, 2015, fixing minimum cut-off marks as 40% cannot amount to change
in the rules of the game. It was contended that the respondent has not
deviated from the Rules nor has it adopted any different criteria for the
aforesaid selection process.
11. For filling up one “unreserved” post of District Judge (Entry Level)
Grade-I in Manipur Judicial Service, by direct recruitment from the Bar,
admittedly, recruitment process was set in motion by advertisement dated
15th May, 2013. General Instructions with respect to the scheme of
recruitment were appended to the said advertisement. The said instructions
in the advertisement were incorporated from Schedule ‘B’ ? Competitive
Examination of Manipur Judicial Services Rules, 2005. As per MJS Rules,
the competitive examination comprises of two parts viz., —(i) written
examination comprising of three papers each carrying 100 marks total 300
marks; (ii) interview (viva voce) carrying 50 marks. General Instructions
in Schedule ‘B’ Clause 1(3) read as under:-
3. GENERAL INSTRUCTIONS:-
All candidates who obtain sixty percent or more marks or corresponding
grade in the written examination shall be eligible for viva-voce
examination.
Provided that Scheduled Caste/Scheduled Tribe candidates who obtain fifty
per cent or more marks or corresponding grade in the written examination
shall be eligible for the viva-voce examination.
Selection of candidates shall be made on the basis of cumulative grade
value obtained in the written and viva-voce examination.
The object of the viva-voce examination under sub-rule (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.
All necessary steps not provided for in these rules for recruitment under
these Rules shall be decided by the recruiting authority.
The mode of evaluating the performance of Grading in the written and viva-
voce examination shall be as specified below:
EVALUATING PERFORMANCE IN COMPETITIVE EXAMINATION FOR JUDICIAL SELECTION
The system Operates as follows:-
The questions in the question paper may carry numerical marks for each
question.
The examiner may assign numerical marks for each sub-question which may be
totaled up and shown against each full question in numbers.
The tabulator will then convert the numerical marks into grades in a seven
point scale with corresponding grade values as follows:
|Percentage of marks |Grade |Grade Value |
|Grade value | | |
|70% and above |O |7 |
|65& to 69% |A+ |6 |
|60% to 64% |A |5 |
|55% to 59% |B+ |4 |
|50% to 54% |B |3 |
|45% to 49% |C+ |2 |
|40% to 44% |C |1 |
|Below 40% |F |0 |
4. After converting the numerical marks of each question into the
appropriate grade according to the formula given in first column above the
tabulator will re-convert to Grades obtained for each question to the Grade
value according to the value given in the third column above.
…..
6. What happens if there are several successful candidates obtaining the
same grade and the available positions are fewer in number? How do you rank
them to determine who is to be given the job? Of course, this situation can
develop with numerical marking also where persons with one mark of half a
mark difference are given advantage. This is unfair given the fact that in
actual practice this may happen because of the play of subjective elements
on the part of the individual examiners. What is therefore recommended is a
similar vigorous and objective grade value exercise for the viva-voce
examination as well.
7. At the end of each day’s interview the tabulator will convert the
numerical marks assigned to each category into grade and then to grade
values. This will then be totalled up and the cumulative grade value
average of each candidate interviewed will be obtained.
……
9. The final selection list will be readied by combining the cumulative
grade value obtained in the written examination and the viva-voce
examination. [Emphasis added]
12. The above instructions for Competitive Examination For Direct
Recruitment of Grade–I Judicial Officer were inter alia incorporated in the
2013 advertisement. On a reading of Clause 1(3) – General Instructions in
Schedule ‘B’, it is clear that the first respondent has reserved a
residuary right in its favour to take necessary steps which are not
expressly included in the Rules. Before conducting the interview/viva-voce
of the petitioner, the High Court held a Full Court Meeting on 12th
January, 2015 wherein Agenda No.2 – “qualifying marks for interview (viva-
voce)” was taken up for discussion. After referring to the
Rules–“Evaluating Performance in Competitive Examination for Judicial
Selection” and also the table for converting numerical marks into grades,
the Full Court resolved that 40% marks would be the minimum qualifying
marks for the interview/viva-voce. The resolution of the Full Court reads
as under:-
MINUTES OF THE FULL COURT HELD ON 12.01.2015 IN THE CHAMBER OF
HON’BLE THE CHIEF JUSTICE
Agenda No.2: Qualifying mark for interview (viva-voce)
Resolution: A question as to what percentage would be the minimum
qualifying marks for passing interview (viva-voce) is discussed. The
following provisions of sub-rule (3) of Schedule-B of Manipur Judicial
Service (MJS) Rules were taken into consideration:
“All necessary steps not provided for in these Rules for recruitment under
these Rules shall be decided by the recruitment authority. The mode of
evaluating the performance of Grading in the written and viva-voce
examination shall be as specified below:
………………..
The Full Court after considering the power conferred on the Recruitment
Authority in the above states Rules and percentage of marks with Grade
Value given above resolved that no one shall be declared passed and
selected for appointment unless he secures minimum 40% from the interview
(viva-voce).
13. Having regard to the submissions of the petitioner and the
respondent, the question falling for consideration is whether prescribing
40% marks as the minimum qualifying marks for the interview after holding
the written examination and before conducting the viva-voce was within the
power of the respondents; or whether it amounts to change in the criteria
of selection in the midst of the selection process.
14. As seen from the MJS Rules - under the head - “EVALUATING PERFORMANCE
IN COMPETITIVE EXAMINATION FOR JUDICIAL SELECTION”, a scheme of converting
the numerical marks of each question into an appropriate grade, according
to the formula given in the table and re-converting into grades, is
stipulated. In the table, the percentage of marks and Grade prescribe that
marks below 40% is Grade ‘F’ which means ‘Fail’ and its Grade Value is ‘0’.
The High Court has maintained that the Full Court decision prescribing
minimum 40% marks in the interview/viva-voce was taken in order to
introduce consistency in the criteria of evaluating performance of
candidates in written examination and interview/viva-voce. Since the MJS
Rules already stipulate that less than 40% marks is Grade ‘F’ with Grade
Value ‘0’, it is implicit in the Rules that for a ‘pass’ in the
examination, 40% minimum marks need to be obtained, though of course as per
MJS Rules, this is for the cumulative Grade Value obtained in the written
examination and the interview/viva-voce examination. Keeping in view the
MJS Rules, in particular, the table converting numerical marks into Grades
and the final Select List that is prepared by adding cumulative grade value
obtained in the written examination and the interview/viva-voce, it is my
considered view that fixing 40% for interview/viva-voce out of total marks
of 50 is in consonance with MJS Rules and it will not amount to change in
the criteria of selection in the midst of selection process.
15. Clause 1(3), General Instructions of the MJS Rules reserves a right
in favour of the High Court which enables the High Court to resort to the
procedures, in addition to, what has been specifically laid down in the
Rules. It provides that “all necessary steps not provided for in these
Rules for recruitment under these Rules shall be decided by the Recruiting
Authority”. Having regard to the aforesaid provision, the High Court cannot
be faulted with, in prescribing cut-off marks for the interview/viva-voce.
The object of conducting interview/viva-voce examination has been rightly
stated in the Rules to assess suitability of the candidate by judging the
mental alertness, knowledge of law, clear and original exposition,
intellectual depth and the like. The Rules further stipulate a vigorous and
objective grade value exercise for the interview/viva-voce examination as
well. Keeping in view the Rules and having regard to the seniority of the
post which is District Judge (Entry Level), the High Court cannot be
faulted with for exercising its residuary right reserved in its favour by
prescribing cut-off marks for the interview.
16. Contending that change in the norms for selection by introducing the
minimum marks for interview during the selection process would amount to
change in the rules of the game, reliance was placed upon K. Manjusree v.
State of A.P. (2008) 3 SCC 512 wherein this Court held that selection
criteria has to be adopted and declared at the time of commencement of the
recruitment process. The rules of the game cannot be changed after the
commencement of the game. It was held that the competent authority, if not
restrained by the statutory rules, is fully competent to prescribe the
minimum qualifying marks for written examination as well as for interview.
But such prescription must be done at the time of initiation of selection
process. Change of criteria of selection in the midst of selection process
is not permissible.
17. Counsel for the Petitioner has also relied on Hemani Malhotra v. High
Court of Delhi (2008) 7 SCC 11. In Hemani Malhotra’s case, the result of
the written examination of the Delhi Higher Judicial Service was not
announced by the High Court of Delhi, and individual communication was sent
to the petitioners therein, informing them of their selection for the
interview. Five candidates were called for interview on various occasions
and were informed of its postponement, i.e. the interview first scheduled
for 20.09.2006 was later deferred to 29.11.2006, 07.12.2006, 23.01.2007,
05.02.2007 and was finally conducted on 27.02.2007. Meanwhile on
13.12.2006, by a Full Court Resolution, minimum qualifying marks for the
viva-voce was prescribed (55% for General Candidates and 50% for SC and ST
candidates). In such facts and circumstances, prescribing minimum marks for
the interview was struck down along the same lines as in the case of
Manjushree.
18. Observing that prescribing minimum marks for the interview was not
permissible after the written test was conducted, in Hemani Malhotra v.
High Court of Delhi (2008) 7 SCC 11, it was held 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 viva-voce, but if minimum marks are not prescribed for viva-
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 viva-voce
test was illegal.”
19. In Hemani Malhotra, candidates were called for interview on various
dates but no interview was held and it was deferred. In the meanwhile
minimum qualifying marks were prescribed for interview. This is not the
case before us. In this case, prior to the interview which was conducted on
12th February, 2015, a Full Court meeting was held on 12th January, 2015
and a decision was taken prescribing minimum qualifying marks for the viva-
voce. Thus, it would be incorrect to contend that prejudice was caused to
the petitioner, especially when no bias is alleged.
20. After referring to the cases of Manjusree and Hemani Malhotra, in
Ramesh Kumar v. High Court of Delhi & Anr. (2010) 3 SCC 104, it was also
held as under:-
15. Thus, the law on the issue can be 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 benchmarks 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’ Assn. (3) v.
Union of India (2002) 4 SCC 247 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
v. State of J&K (2003) 9 SCC 592 and Malik Mazhar Sultan (3) v. U.P. Public
Service Commission (2008) 17 SCC 703. We have also accepted the said
settled legal proposition while deciding the connected cases i.e. Rakhi Ray
v. High Court of Delhi (2010) 2 SCC 637 vide judgment and order of this
date. It has been clarified in Rakhi Ray v. High Court of Delhi (2010) 2
SCC 637 that where statutory rules do not deal with a particular
subject/issue, so far as the appointment of the Judicial Officers is
concerned, directions issued by this Court would have binding effect.
21. Both Hemani Malhotra and Ramesh Kumar relied upon Manjusree to hold
that prescription of minimum marks in the interview was not permissible
after the written test was conducted. After referring to State of Haryana
v. Subash Chander Marwaha and Ors. (1974) 3 SCC 220 and observing that the
principles laid down in Manjusree without any further scrutiny would not be
in the larger public interest or the goal of establishing an efficient
administrative machinery, in Tej Prakash Pathak & Ors. v. Rajasthan High
Court & Ors.(2013) 4 SCC 540 (three Judges), this Court observed that the
matter deserves consideration by a larger Bench. In paras (12) to (15), it
was held as under:-
12. If the principle of Manjusree case (2008) 3 SCC 512 is applied strictly
to the present case, the respondent High Court is bound to recruit 13 of
the “best” candidates out of the 21 who applied irrespective of their
performance in the examination held. In such cases, theoretically it is
possible that candidates securing very low marks but higher than some other
competing candidates may have to be appointed. In our opinion, application
of the principle as laid down in Manjusree case (2008) 3 SCC 512 without
any further scrutiny would not be in the larger public interest or the goal
of establishing an efficient administrative machinery.
13. This Court in State of Haryana v. Subash Chander Marwaha (1974) 3 SCC
220 while dealing with the recruitment of Subordinate Judges of the Punjab
Civil Services (Judicial Branch) had to deal with the situation where the
relevant rule prescribed minimum qualifying marks. The recruitment was for
filling up of 15 vacancies. 40 candidates secured the minimum qualifying
marks (45%). Only 7 candidates who secured 55% and above marks were
appointed and the remaining vacancies were kept unfilled. The decision of
the State Government not to fill up the remaining vacancies in spite of the
availability of candidates who secured the minimum qualifying marks was
challenged. The State Government defended its decision not to fill up posts
on the ground that the decision was taken to maintain the high standards of
competence in judicial service. The High Court upheld the challenge and
issued a mandamus. In appeal, this Court reversed and opined that the
candidates securing minimum qualifying marks at an examination held for the
purpose of recruitment into the service of the State have no legal right to
be appointed. In the context, it was held: (Subash Chander Marwaha case,
(1974) 3 SCC 220 p. 227, para 12)
“12. … In a case where appointments are made by selection from a number of
eligible candidates it is open to the Government with a view to maintain
high standards of competence to fix a score which is much higher than the
one required for more (sic mere) eligibility.”
14. Unfortunately, the decision in Subash Chander Marwaha (1974) 3 SCC 220
does not appear to have been brought to the notice of Their Lordships in
Manjusree (2008) 3 SCC 512. This Court in Manjusree (2008) 3 SCC 512 relied
upon P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141, Umesh
Chandra Shukla v. Union of India (1985) 3 SCC 721 and Durgacharan Misra v.
State of Orissa(1987) 4 SCC 646. In none of the cases, was the decision in
Subash Chander Marwaha (1974) 3 SCC 220 considered.
15. No doubt it is a salutary principle not to permit the State or its
instrumentalities to tinker with the “rules of the game” insofar as the
prescription of eligibility criteria is concerned as was done in C.
Channabasavaih v. State of Mysore, AIR 1965 SC 1293 in order to avoid
manipulation of the recruitment process and its results. Whether such a
principle should be applied in the context of the “rules of the game”
stipulating the procedure for selection more particularly when the change
sought is to impose a more rigorous scrutiny for selection requires an
authoritative pronouncement of a larger Bench of this Court. We, therefore,
order that the matter be placed before the Hon’ble Chief Justice of India
for appropriate orders in this regard.
Since the decision laid down in the Manjusree’s case is doubted and the
matter is pending for consideration by a larger Bench, and in the facts and
circumstances of this case, it is my view that the ratio laid down in
Manjusree and Hemani Malhotra is not applicable to the present case.
22. This Court has laid much emphasis on interview/viva-voce in a catena
of decisions. In the recruitment for judicial services, the importance of
interview/viva-voce cannot be underestimated. Viva-voce is the best mode
of assessing the suitability of a candidate as it brings out the overall
intellectual qualities of the candidates. In Ramesh Kumar v. High Court of
Delhi & Anr. (2010) 3 SCC 104, this Court held as under:-
“11. In State of U.P. v. Rafiquddin (1987) Supp SCC 401; Krushna Chandra
Sahu (Dr.) v. State of Orissa (1995) 6 SCC 1; Manjeet Singh v. ESI Corpn.
(1990) 2 SCC 367 and K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395
this Court held that the Commission/Board has to satisfy itself that a
candidate had obtained such aggregate marks in the written test as to
qualify for interview and obtained “sufficient marks in viva-voce” which
would show his suitability for service. Such a course is permissible for
adjudging the qualities/capacities of the candidates. It may be necessary
in view of the fact that it is imperative that only persons with a
prescribed minimum of said qualities/capacities should be selected as
otherwise the standard of judiciary would get diluted and substandard stuff
may get selected. Interview may also be the best mode of assessing the
suitability of a candidate for a particular position as it brings out the
overall intellectual qualities of the candidates. While the written test
will testify the candidate’s academic knowledge, the oral test can bring
out or disclose overall intellectual and personal qualities like alertness,
resourcefulness, dependability, capacity for discussion, ability to take
decisions, qualities of leadership, etc. which are also essential for a
Judicial Officer.
12. Reiterating similar views, this Court has given much emphasis on
interview in Lila Dhar v. State of Rajasthan (1981) 4 SCC 159 and Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417 stating that interview
“can evaluate a candidate’s initiative, alertness, resourcefulness,
dependableness, cooperativeness, capacity for clear and logical
presentation, effectiveness in discussion, effectiveness in meeting and
dealing with others, adaptability, judgment, ability to make decision,
ability to lead, intellectual and moral integrity with some degree of
error.”
23. Full Court decision dated 12th January, 2015 prescribing minimum
qualifying marks for viva-voce is a decision taken towards ensuring the
fair and meritorious appointment on the post advertised and no mala fide
can be attributed to the respondents for such a decision. Had the High
Court convened the Full Court Meeting after conducting the viva-voce and
had then prescribed the minimum qualifying marks, the contention of the
petitioner would have been justified. When the decision of the Full Court
was to ensure selection of meritorious candidate, it cannot be said that
the decision of the High Court amounted to change in the criteria of
selection after the selection process has started.
24. Petitioner contends that the decision of the High Court to prescribe
minimum qualification marks is against the recommendations of the Shetty
Commission and is violative of the judgment of this Court in All India
Judges’ Association and Ors. v. Union of India and Ors. (2002) 4 SCC 247.
It is further argued that in the said case, the Court accepted Shetty
Commission’s Report which has recommended not having cut-off marks in
interview for the recruitment of the judicial officers.
25. No doubt, Shetty Commission has recommended in its Report that there
should be no cut-off marks in the viva-voce test. Relevant recommendation
of Shetty Commission reads as under:-
“The viva-voce test should be in a thorough and scientific manner and it
should take anything between 25 to 30 minutes for each candidate. What is
recommended by the Commission is that the via voce test shall carry 50
marks and there shall be no cut-off marks in viva-voce test.”
26. Admittedly, the Shetty Commission has recommended that the viva-voce
test shall carry fifty marks and there shall be no cut-off marks in the
viva-voce test. In All India Judges’ Association case para (37), this
Court subject to various modifications in the judgment, accepted all other
recommendations of the Shetty Commission. While there was a detailed
discussion on the perks, mode of recruitment to the Higher Judicial Service
and the proportionate percentage for promotion as District Judges for
judicial officers, limited competitive examination for Civil Judges (Junior
Division) and percentage of direct recruitment, there was no detailed
discussion regarding the other recommendations of Shetty Commission. As
rightly contended by the learned Senior Counsel for the respondent, All
India Judges’ Association case is sub silentio on the recommendation of
Shetty Commission as to “no cut-off marks for the viva-voce”. Contention
of the petitioner that fixing cut-off marks for the viva-voce is in
violation of the decision of this Court is not tenable.
27. Learned senior counsel for the respondents has also drawn attention
to the Judicial Service Rules of various High Courts namely, Delhi,
Maharashtra, Odisha, West Bengal and Himachal Pradesh which have prescribed
minimum cut-off marks for the interview. Insofar as MJS Rules are
concerned, such fixing of cut-off marks in the interview/viva-voce cannot
be said to be arbitrary or in violation of the decision of this Court.
28. Yet another aspect of the matter is that the petitioner participated
in the selection process and only because in the final result the
petitioner being unsuccessful, he cannot turn around and contend that the
criteria for selection was changed. It is fairly well-settled that the
candidate having participated in the selection process without any protest
cannot be allowed to turn around and question the very process having
failed to qualify. In Madan Lal & Ors. v. State of J&K & Ors. (1995) 3 SCC
486, this Court observed:-
“9. … 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 the process of interview was unfair….
10. Therefore, the result of the interview test on merits cannot be
successfully challenged by a candidate who takes a chance to get selected
at the said interview and who ultimately finds himself to be unsuccessful.”
29. In the written examination, the petitioner has secured 158.50 out of
300; in the interview/viva-voce 18.80 out of 50 totalling 177.30 out of 350
i.e. 50.65%. Learned senior counsel for the petitioner submitted that as
per the existing Rules, the final selection is to be made by adding the
cumulative grade value obtained in the written examination and
interview/viva-voce examination. The petitioner having obtained cumulative
percentage of 50.65 which is equivalent to Grade ‘B’; it is contended that,
had the High Court followed the Rules, the petitioner must have been
declared to have been selected and the High Court has deliberately denied
the appointment to the petitioner.
30. For the sake of argument, even assuming that the petitioner was
successful in the selection, in my view, it would not give the petitioner
an indefeasible right to get an appointment as well. Referring to various
judgments, in Kulwinder Pal Singh and Another v. State of Punjab and Others
(2016) 6 SCC 532, this Court held as under:
10. It is fairly well settled that merely because the name of a candidate
finds place in the select list, it would not give him indefeasible right to
get an appointment as well. The name of a candidate may appear in the merit
list but he has no indefeasible right to an appointment (vide Food
Corporation of India v. Bhanu Lodh (2005) 3 SCC 618, All India SC & ST
Employees’ Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav
Dwivedi (1999) 5 SCC 180.
11. This Court again in State of Orissa v. Rajkishore Nanda (2010) 6 SCC
777 held as under: (SCC p. 783, paras 14 & 16)
“14. A person whose name appears in the select list does not acquire any
indefeasible right of appointment. Empanelment at best is a condition of
eligibility for the purpose of appointment and by itself does not amount to
selection or create a vested right to be appointed. The vacancies have to
be filled up as per the statutory rules and in conformity with the
constitutional mandate.”
31. No mandamus can be issued in favour of the petitioner as no prejudice
was caused to him. I say so because the 2013 advertisement was issued only
for one ‘unreserved’ post. Had somebody else been appointed, the grievance
of the petitioner might have had substance. Admittedly, nobody was
appointed for the said post and the post remains vacant. Subsequent
developments are also relevant and noteworthy. For filling up of three
‘unreserved’ posts of MJS Grade-I, fresh advertisement was issued on 12th
August, 2015 by the High Court. The petitioner also applied for the said
post. Because of litigation and certain directions thereon, selection
process pursuant to the said advertisement was cancelled. In supersession
of the said earlier advertisement, a fresh advertisement was issued by the
High Court on 4th August, 2016 seeking applications for three ‘unreserved’
and one ‘reserved’ post of MJS Grade-I. The last date for the receipt of
applications was 26th August, 2016 and the petitioner also applied for the
said post. The learned senior counsel appearing for the High Court
submitted that the examinations are likely to be conducted in October,
2016. When the said post of 2013 examination has now been clubbed with
other vacant posts and advertised seeking applications from the eligible
candidates, the petitioner cannot seek mandamus seeking for appointment for
the said post with retrospective effect. The petitioner has no
indefeasible right to seek appointment as District Judge (Entry Level) in
the Manipur Judicial Services Grade-I. In the facts and circumstances of
the case, the petitioner is not entitled to the relief sought for.
32. For the foregoing discussions, the petitioner is not entitled to the
relief sought for. In the result, the Writ Petition is dismissed.
………………………..J.
[R. BANUMATHI]
New Delhi;
October 07, 2016
IN THE SPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION(C)No.294 of 2015
Salam Samarjeet Singh …..Petitioner
Versus
High Court of Manipur at Imphal & Anr. …..Respondents
O R D E R
Since there is a difference of opinion between us in view of the
dissenting judgments pronounced by us, the matter may be placed before
appropriate Bench for final adjudication after obtaining permission of
Hon’ble the Chief Justice of India.
……………………………….J.
[SHIVA KIRTI SINGH]
..…………………………….J.
[R. BANUMATHI]
New Delhi.
October 07, 2016.
-----------------------
[1]
[2] (2008) 3 SCC 512
[3]
[4] (2008) 7 SCC 11
[5]
[6] (2010) 3 SCC 104
[7]
[8] (2013) 4 SCC 540
[9]
[10] (1974) 3 SCC 220
[11]
[12] (2002) 4 SCC 247
[13]
[14] (1995) 3 SCC 486
[15]
[16] (2016) 6 SCC 532
