LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -1-
HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: August 7 , 2009
(1)
LPA No.111 of 2007
Ajay Kumar Verma ...Petitioner
Vs.
State of Haryana and others ...Respondents
*-*-*
(2)
C.W.P.No. 17020 of 2006
Sunil …Petitioner
Vs.
State of Haryana and others ...Respondents
*-*-*
(3)
C.W.P.No. 1815 of 2007
Harun ...Petitioner
Vs.
State of Haryana and others ...Respondents
*-*-*
(4)
C.W.P.No. 11856 of 2007
Dharambir ...Petitioner
Vs.
State of Haryana and others ...Respondents
Present: Mr. Rajiv Atam Ram, Senior Advocate with
Mr. Vikas Kuthiala, Advocate and
Mr. Daman Dhir, Advocate
for the Petitioner in LPA No.111 of 2007
Mr. Bhag Singh, Advocate for the petitioners in
CWP Nos.1815 of 2007 & CWP No.17020 of 2006
Mr. G.K. Khanna, Advocate
for the petitioner in CWP No.11856 of 2007
Mr. Randhir Singh, Additional Advocate General, Haryana
Mr. R.N. Raina, Advocate for respondent No.2
*-*-*
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -2-
CORAM: HON’BLE MR.JUSTICE T.S.THAKUR, CHIEF JUSTICE
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
1. Whether Reporters of local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
T.S.Thakur, C.J.
Common questions arise for consideration in this Letters
Patent Appeal and in the accompanying writ petitions which were heard
together and shall stand disposed of by this common order.
Letters Patent Appeal No.111 of 2007 arises out of an order
dated 27.04.2007 passed by a learned Single Judge of this Court whereby
Petition No.13557 of 2006 filed by the appellant has been dismissed, and
the challenge to the validity of Rules 7(2) and 8 of the Punjab Civil Services
(Judicial Branch) Rules, 1951 as applicable to the State of Haryana
repelled. The prayer for a Mandamus directing the respondents to
consider the claims of the petitioner for appointment to the Haryana Civil
Services (Judicial Branch) by conducting a viva voce test and assessing
his merit on that basis was also declined, as was the prayer for a direction
to the respondents to frame rules similar to the one’s prevalent in the State
of Punjab for recruitment to the Punjab Civil Services (Judicial Branch).
Petitioner in Writ Petition No.13557 of 2006 belongs to
Backward Class category, who was enrolled as an Advocate in the year
2001. Pursuant to an advertisement issued for filling up of thirty one posts
in the Haryana Civil Service (Judicial Branch) four out of which were
reserved for Backward Class candidates, the petitioner appeared in the
written test, the result whereof published on 20th May, 2006, declared only
39 candidates to have qualified in the said test. In due course when the
petitioner received a detailed marks sheet, it dawned upon him that he had
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -3-
obtained only 434 marks out of a total of 900 which came to just about
48.22% of the total. This meant that he did not qualify for being invited for
interview/viva voce, as Rule 7 of the Punjab Civil Service (Judicial Branch)
Rules, 1951 in its application to the State of Haryana required a candidate
to obtain at least 50% marks in the aggregate of all the written papers and
33% marks in the language paper before he could be so invited.
The petitioner’s case was that as per the unamended Rules,
the cut-off percentage applicable to candidates belonging to the reserved
categories including Backward Classes for being called for viva voce test
was only 45% in the aggregate of all written papers and 33% in Hindi. Rule
8 of the said Rules, however, required the candidates to obtain at least
50% marks in the aggregate in all papers including viva voce to be eligible
for appointment. The petitioner asserted that a combined reading of Rules
7 and 8 of the Rules mentioned above, brought out a conflict between the
said two rules inasmuch as a person who had obtained 48.22% marks and
had a chance of making up the deficiency of marks in the written test by
getting higher marks in the viva voce test was considered to be ineligible
for viva voce. On account of what the petitioner described as an anomaly
in the Rules, only two persons were appointed, as against 4 posts reserved
for Backward Class candidates.
The petitioners’ further case was that in the State of Punjab,
the qualifying percentage of marks for being invited to appear in the viva
voce test is 45% unlike in the State of Haryana where a higher percentage
of 50% has been stipulated. The result is that in the State of Punjab
candidates who do not possess 50% marks in the aggregate of written
examination have been recommended for appointment. Relying upon the
provisions of Article 15(4) and Article 16(4) of the Constitution of India, the
petitioner argued before the ld. Single Judge that the stipulation of a
uniform percentage of marks for general category candidates and those
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -4-
belonging to reserved categories as a condition of eligibility for being
invited to the viva voce test was not justified apart from the same being
opposed to the spirit of the constitutional guarantees contained in the said
provisions. It was contended that inasmuch as Rule 7 and 8 of the Rules
as applicable to the State of Haryana equated members of the Backward
classes with those belonging to the General Category, the same were
unconstitutional hence liable to be struck down.
The writ petition was heard and finally dismissed by a learned
Single Judge of this Court in terms of the order impugned in this appeal.
The learned Single Judge was of the view that the petitioner was not
entitled to question the validity of the Recruitment Rules after he had
appeared in the competitive examination held in terms of the said Rules.
The learned Single Judge also held that even if the standards prescribed
by the States of Punjab and Haryana for inviting candidates for interview
were different the same did not constitute discrimination offensive to Article
14 and 16 of the Constitution. The Court further took the view that the
provision contained in the earlier Rules that prescribed 45% marks in the
aggregate for being called for viva voce test had been amended by the
rule-making authority to stipulate 50% marks in consultation with the High
Court of Punjab and Haryana. While doing so the High Court had,
observed the learned Single Judge, taken into consideration all the
relevant aspects, which cannot be found fault with. The petitioner-appellant
has in the present appeal assailed the view taken by the learned Single
Judge.
In the accompanying Writ Petition No.17020 of 2006 also, the
petitioner was a candidate in the competitive examination mentioned
earlier and was declared unsuccessful and ineligible for being called for
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -5-
interview as he had obtained only 47% marks as against 50% required for
being declared eligible. The challenge to the provisions of Rules governing
the selection process to the extent the same prescribed 50% marks in the
aggregate as a condition of eligibility for being invited to appear in the
interview proceeds on a similar reasoning as was urged by the appellant in
LPA No.111 of 2007.
To the same effect is the grievance of the petitioner in WP
No.1815 of 2007 who also appeared in the competitive examination but did
not qualify for being invited for interview against the Backward Class
vacancies since he did not have 50% qualifying marks for being invited for
such interview.
The case of the petitioner in WP No.11856 of 2007 has also
been filed in a similar backdrop with the only difference that the petitioner
in the said petition was a candidate for appointment against a post
reserved for Ex-servicemen but was unable to obtain the qualifying
percentage of marks necessary for being invited to appear for the
interview. The petitioner’s case in this petition also proceeds on somewhat
similar reasoning that the rules ought to have made a suitable concession
for candidates belonging to Ex-servicemen category in the matter of
eligibility to appear in the viva voce examination.
On behalf of the appellant in LPA No.111 of 2007 and the
petitioners in the connected writ petitions, it was strenuously argued by the
learned counsel appearing for them that Rules 7 and 8 of the Punjab Civil
Services (Judicial Branch) Rules as applicable to the State of Haryana
were unconstitutional inasmuch as the said rules equated candidates
belonging to the Scheduled Castes, Scheduled Tribes and Backward
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -6-
Classes with those belonging to the General Category. It was contended
that the Rules as applicable before the amendment introduced in the same
stipulated a lower qualifying percentage of marks at 45% for being invited
to appear in the interview. The amendment of the said rules by which the
said percentage was raised to 50% and made applicable uniformly to all
the candidates whether belonging to the General or reserved categories
was against the spirit of constitutional promise contained in Article 15 and
16 of the Constitution. It was according to the learned counsel necessary
for the rule-making authority to keep in view the constitutional framework
and the philosophy underlying Article 14, 15 and 16 while providing for
recruitment from Scheduled Castes, Scheduled Tribes or Backward
Classes who could not for historical reasons be treated as equal to the
candidates belonging to the General Category in terms of their ability and
qualification for public employment. The equation of General Category
candidates with reserved category candidates would according to the
learned counsel for the petitioners amount to treating ‘unequals as equals’
which was another form of discrimination unacceptable under the
constitutional framework. Heavy reliance in support of these submissions
was placed by the learned counsel on the decision of the Supreme Court in
Ram Bhagat and Another vs. State of Haryana and another (1997) 11 SCC
417.
417 It was urged that the rule-making authority and so also the High Court
had failed to keep in view the observations made by their Lordships in the
said judgment thereby rendering the rules as amended legally infirm and
invalid.
On behalf of the respondents, it was per contra argued that the
challenge to the validity of the recruitment Rules after the candidates had
appeared in the competitive examination and taken a chance with the
selection process was legally untenable. It was not according to Mr.
Randhir Singh appearing for the respondents open to a candidate to
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -7-
approbate or reprobate by taking a chance for selection based on the
competitive examination and challenge the rules and norms governing the
said examination after he was declared unsuccessful. It was also argued
by the respondents that the rule-making authority was free to stipulate a
percentage of marks considered reasonable keeping in view the demands
of efficiency of the judicial service and the need for giving representation to
the weaker sections of the society. Inasmuch as the High Court had
examined the matter at length and recommended stipulation of a higher
percentage of marks as a condition of eligibility for being called for viva
voce test, it had committed no constitutional impropriety that may call for
any interference by this Court. What standards would be reasonable
having regard to the nature of the service to which recruitments have been
made and the need for giving representation to the Scheduled Castes,
Scheduled Tribes and Backward Class candidates was a matter on which
the Court could not express any authoritative opinion as it was a matter
that had to be left to be determined by the constitutional functionaries
charged with the duty of framing the rules.
We have given careful consideration to the submissions made
by the learned counsel and perused the record. It is common ground that
the appellant in LPA No.111 of 2007 and the petitioners in the connected
writ petitions were all candidates for appointment against the posts that
were advertised and had appeared in the competitive examination held in
accordance with the rules governing such selection and appointments.
What to speak of mounting a challenge in proper proceeding before a
competent court against the recruitment Rules, the petitioners did not make
any murmur, lodge any protest or objection to the validity of the same
before appearing in the competitive examination. There is no explanation
much less a cogent one forthcoming for their silence in this regard. This
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -8-
implies that the petitioners were satisfied with the stipulation of the
conditions of eligibility not only for appearing in the competitive
examination but also with the condition of eligibility stipulated for being
invited for viva voce and for appointment as members of the Service. It
also implies that the challenge to the validity of the rules comes belatedly
after the petitioners had realized that they did not qualify for being
appointed or for being invited for interview. Such being the case we find it
difficult to entertain a challenge to the Rules after the game has been
played according to the Rules published and made known before hand.
Apart from estoppel by conduct, we are of the view that any
interference with the Rules at this distant point of time on the ground of the
same being invalid for any reason would create anomalous situations in
which candidates who may be similarly situate and who may not have been
invited for interview on account their marks being below 50% of the
aggregate shall have to be invited and vacancies offered to them, in
disregard of the rights and the aspirations of those who may have in the
intervening period become eligible for appearing in any competitive
examination aimed at filling up the said posts.
It is also noteworthy that after the competitive examination
held in the year 2007, another examination was held against vacancies
that were available in the general and reserved categories in the year
2009. A large number of candidates had appeared in the said examination
also, out of whom a handful of candidates only were selected, leaving the
remaining vacancies unfilled which vacancies shall now be offered again in
the fresh examination that may be held by the competent authority in
accordance with the prevalent rules.
Suffice it to say that any interference with the Rules at this
stage is neither feasible nor judicially prudent, even assuming that the
petitioners could maintain the present writ petitions after having taken their
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 -9-
chance with the Rules under challenge. The learned Single Judge was,
therefore, justified in dismissing the writ petition filed by the appellant in
LPA No.111 of 2007.
Having said that we may hasten to add that dismissal of these
petitions would not prevent the competent authority from having a fresh
look at the Rules keeping in view the observations made by the Supreme
Court in Ram Bhagat and Another vs. State of Haryana and another (1997)
11 SCC 417. It is true that the amendment to the Rules by which the rule-
making authority had reduced the percentage of marks required in the
aggregate in all the papers including the viva voce test from 55% to 50%
and stipulation of a higher percentage of marks required for appearing in
the viva voce test uniformly for all the candidates including the Scheduled
Caste, Scheduled Tribe and Backward Class candidates was made on the
recommendations of the High Court. But it is equally true that the said
amendment while granting the relief to the Scheduled Caste, Scheduled
Tribe and Backward Class candidates in terms of the percentage required
for appointment had taken away from them, the advantage they enjoyed in
terms of the lower percentage stipulated for being invited to interview. In
the process the rule equated the reserved category candidates with those
in the General Category. The petitioners have not assailed the
amendment of the Rules in so far as the same reduced the percentage of
marks stipulated as a condition of eligibility for appointment from 55% to
50% as the said reduction is to their benefit no matter the same applies
uniformly to all categories of candidates. What causes prejudice to the
reserved category candidates, however, is the enhancement of the
qualifying percentage of viva voce from 45% to 50%. The amendment has
thus taken away from the reserved category by the left hand what was
given to them by the right hand. Whether or not the rule-making authority
ought to make a more favourable provision for SC/ST and Backward Class
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 – 10 –
candidates in the matter of eligibility to appear in the viva voce examination
and for appointment is, however, a matter on which the Rules brought on
the Statute Book need not be said to be a last word. We say so for two
distinct reasons namely; (i) because the constitutional philosophy
underlying Article 15(4) and 16(4) would not frown on any provision that
may show a reasonable concession to the reserved category candidates in
terms of lower conditions of eligibility in comparison to General Category
candidates; and (ii) because the Selection Committee constituted to make
selection for the Haryana Superior Judicial Service has formulated the
following norms for the said service:
“No candidate will be called for the viva voce unless he
obtains 40% marks in each paper and 50% marks (45% for the
SC/BC category candidates, instead of 50%) in the aggregate.
Further, no candidate will be considered to have successfully
qualified the Haryana Superior Judicial Services Examination
unless he obtains 50% marks (45% marks for the SC/BC
category candidates) in the aggregate out of the total marks
fixed for the written examination and viva voce. It is made
clear that merely having obtaining 50% marks (read 45% for
the SC/BC category candidates) in the written examination will
not confer a right on a candidate to be called for the viva voce
and the High Court may short-list the candidates equal to 3
times the number of vacancies to be called for the viva voce.
It is also made clear that no candidate will get the right to be
appointed even if he obtains 50% marks (45% marks for the
SC/BC category candidates) in the aggregate of the written
examination and viva voce. However, candidates will be
appointed strictly in the order of merit (category wise) in which
they are placed after the result of written examination and viva
voce. The advertisement/notification will mention all these
facts.”
There is in our opinion no justification for the dichotomy
evident from what is seen in (ii) above. If the reserved category candidates
are treated eligible with 45% marks even for recruitment at a higher level,
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 – 11 –
there is no reason why the same should be denied when the candidates
enter at a lower level as Civil Judges (Junior Division). Superadded to that
is the fact that in the State of Punjab of which Haryana was till re-
organization of the States a part, the condition of eligibility for appearance
in the viva voce examination for Punjab Superior Judicial Service remains
45% only. This is evident from the minutes of the meeting of Selection
Committee constituted for making selection to the said service dated
23.01.2008 for the State of Punjab, which reads:
“There shall be a recital in the advertisement that no candidate
may be called for viva voce unless he/she obtains 40% marks
in each paper and 50% marks (45% for the SC/BC category
candidates, instead of 50%) in the aggregate. Further, no
candidate may be considered to have successfully qualified
the Punjab Superior Judicial Services Examination unless he
obtains 50% marks (45% marks for the SC/BC category
candidates) in the aggregate out of the total marks fixed for the
written examination and viva voce. It may be made clear that
merely having obtaining 50% marks (read 45% for the SC/BC
category candidates) in the written examination will not confer
a right on a candidate to be called for the viva voce and the
High Court may short-list the candidates equal to 3 times the
number of vacancies to be called for the viva voce. It may
also made clear that no candidate will get the right to be
appointed even if he obtains 50% marks (45% marks for the
SC/BC category candidates) in the aggregate of the written
examination and viva voce. However, candidates will be
appointed strictly in the order of merit (category wise) in which
they are placed after the result of written examination and viva
voce.”
Two different standards being prescribed in two States served
by the very same High Court need to be reconciled and a uniform approach
adopted. We say so because the difference in the standards prescribed
does not appear to be based on any conscious decision about the need for
making a differentiation. It is not as though the High Court of Punjab and
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 – 12 –
Haryana when consulted qua the State of Punjab considers 45% marks in
the aggregate as sufficient for appearance in the viva voce examination but
insists on a higher percentage when it comes to dealing with Haryana. It is
also not as though there is any difference in the human resource available
in the two States or the representation of the Scheduled Castes,
Scheduled Tribes and Backward Classes in the services in the same that
has inspired this dichotomy. In our view it may only be because the
dichotomy has gone unnoticed at the appropriate level. We, therefore,
consider this to be a fit case in which the High Court ought to consider on
the administrative side the desirability of reviewing the relevant rules and
making necessary amendments wherever the same are found just and
reasonable. This can be done not only in relation to Schedule Caste,
Schedule Tribe and Backward Class candidates, but even in relation to
other reserved category candidates like ex-servicemen etc. We need only
extract for the consideration of the rule-making authority and the High
Court on the administrative side, the following passage from the decision of
Supreme Court in Ram Bhagat Singh’s case (supra):-
“We are conscious that high efficiency is required
because the recruitment is in the judicial branch, that is
to say, for prospective judicial officers who will be in
charge of administration of justice in the country. But at
the same time, if possible, in order to ensure that there
is equality of opportunity, a percentage should be fixed
without, in any way, compromising with the efficiency
required for the job which will be attainable by backward
communities, that is to say, Scheduled Castes and
Scheduled Tribes. Unless such a percentage is fixed on
the aforesaid basis and a percentage is fixed for
LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007, CWP No.11856 of 2007 – 13 –qualification which would normally be unattainable by
the Scheduled Castes and Scheduled Tribes
determined on an objective basis, it would not be
possible to ensure equality of opportunity. Both Shri
Mahabir Singh and Shri Nayar have urged that the
minimum must be presumed to have been so fixed in
the Haryana Service. However, that fact is not apparent
and there is nothing on record to indicate that this
percentage was fixed deliberately on an analysis and
careful examination and determination on the lines and
the principles indicated above.”
In the result LPA No.111 of 2007, CWP No.17020 of 2006,
CWP No.1815 of 2007 and CWP No.11856 of 2007 fail and are hereby
dismissed. A copy of this order shall however be placed before the Chief
Justice for appropriate orders on the administrative side, regarding a
possible re-look at the rules, keeping in view the observations made in the
body of this order. No costs.
(T.S. THAKUR)
CHIEF JUSTICE
(KANWALJIT SINGH AHLUWALIA)
JUDGE
August 7, 2009
‘shonkar’