PETITIONER:
STATE OF U . P ., ETC .
Vs.
RESPONDENT:
RAFIQUDDIN & ORS. ETC.
DATE OF JUDGMENT04/11/1987
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1988 AIR 162 1988 SCR (1) 794
1987 SCC Supl. 401 JT 1987 (4) 251
1987 SCALE (2)947
CITATOR INFO :
R 1988 SC1451 (9)
R 1991 SC 295 (14)
ACT:
Service matters-Questions of law relating to seniority
of Munsifs in the Uttar Pradesh Nyayik Seva appointed as a
result of the competitive Examinations of 1970, 1972 and
1973, held under the Uttar Pradesh Civil Service (Judicial
Branch) Rules, 1951-Determination of.
HEADNOTE:
%
These appeals and writ petitions raised common
questions of law relating to the determination of seniority
of Munsif appointed in the Uttar Pradesh Nyayik Seva as a
result of competitive Examinations of 1970, 1972 and 1973
held under the Uttar Pradesh Civil Service (Judicial Branch)
Rules, 1951 (the Rules).
Public Service Commission issued a notification dated
September 3, 1970, for recruitment to 85 posts of Munsifs.
In the examination held for the purpose, 294 out of 918
candidates qualified in the written test and were called for
viva voce test, and the Commission submitted to the State
Government a list of 46 approved candidates-list of 1970
examination-for appointment to the service. The Government
requested the Commission to recommend some more candidates
as there was a shortage of Munsifs, while suggesting that
the minimum of 40 per cent marks in the aggregate be reduced
to 35 per cent. The Commission forwarded another list of 33
candidates-the IInd list, comprising the candidates who had
secured 35 per cent marks in the aggregate and 35 percent,
in the Viva Voce.. All the 79 candidates of the two lists
above said were appointed to service between May, 1972, and
June, 1973, and in July, 1973, a notification was issued,
determining inter seniority of the 79 persons appointed on
the basis of the 1970 examination in accordance with their
position in the lists prepared by the Commission under rule
19 of the Rules. Meanwhile, the Public Service Commission
held another competitive examination-the 1972 examination-
for appointments to 150 posts of Munsifs, and forwarded a
list of 150 successful candidates to the Government for
appointment under Rule 19 above-mentioned, and they were so
appointed between 1975 and 1977.
The State Government, in view of the shortage of the
Munsifs
795
as also the amendment of rule 19 in pursuance whereof it was
no longer necessary for a candidate to qualify independently
in the viva voce, requested the Commission to reconsider the
result of the examination of 1967, 1968, 1969 and 1970 and
approve all those candidates for appointment who might have
obtained 40 per cent or more marks in the aggregate even if
they might have failed to secure the minimum marks in the
viva voce tests. The Commission refused to consider this
proposal as the minimum marks prescribed by it under the
then existing proviso to Rule 19 could not be ignored. The
Government thereupon constituted a high level committee
comprising the Chief Minister, the Chief Justice of the High
Court and the Chairman of the Public Service Commission to
consider this question, and the Committee decided that the
Commission be requested to recommend candidates of the 1967,
1968, 1969 and 1970 examinations as above-mentioned. The
Government wrote to the commission again for the purpose,
conveying to it the decision of the High level committee
above-said, and asking it to forward the applications and
the marks of the unsuccessful candidates of the Examinations
above-mentioned. The Commission could forward a list of 37
such candidates of the 1970 Examination only-the IIIrd list-
to the Government. The IIlrd list contained the names of
Refiquddin and 36 others, the "unplaced candidates" of the
1970 Examinations, unsuccessful due to failure in the viva
voce. Thereupon, the Government issued a notification,
appointing 21 of the 37 candidates above-mentioned as
Munsifs, the remaining 16 having already again appeared in
the 1972 Examination and selected and appointed to the
service. Upon a further request by the Government for 16
more candidates, the Commission forwarded another list of 16
candidates who had appeared in the l 972 Examination.
In March, 1977, the State Government published a
seniority list of the successful candidates of the 1970
examination, whereupon, the "unplaced candidates" of the
IIIrd list of the 1970 Examination submitted a
representation for determination of their seniority under
Rule 22 of the Rules on the footing that they were recruited
in pursuance of the 1970 Examination, and, therefore, they
were entitled to seniority as candidates of the examination
held in 1970 irrespective of their appointment being made in
1975, thereby claiming seniority over those who had been
recruited in pursuance of the 1972 Examination and those who
had been recruited earlier to them in pursuance of the 1970
Examination and the Ist and IInd lists of the 1970
Examination. The representation was rejected by the High
Court (administratively) and the Government. Then,
Rafiquddin and 16 other "unplaced candidates" filed a writ
petition in the High Court. The High Court allowed the writ
peti-
796
tion on the footing that the "unplaced candidates" were
appointed on the basis of the result of the 1970
Examination, quashed the seniority list and issued
directions for the preparation of the seniority list of the
candidates of the 1970 Examination afresh in accordance with
rule 22, read with rule 19 of the rules and for confirmation
and promotion of the petitioners in accordance with the
seniority list so drawn up. The State of Uttar Pradesh
appealed to this Court against the decision of the High
Court.
Appellants Sushil Kumar Srivastava and others also
preferred an appeal to this Court against the above-said
decision of the High Court.
D.P. Shukla and three other unsuccessful candidates of
the 1970 Examination preferred an appeal to this Court
against the judgment of the High Court dismissing the writ
petition filed by them, raising the grievance that they were
discriminated as they had not been appointed, and instead,
37 candidates "belonging to the lIlrd list" had been
appointed although they had obtained lower marks.
Chandra Prakash Agrawal, an unsuccessful candidate at
the 1970 Examination, Bled a writ petition in this Court,
challenging the appointments of those who had secured less
than 40 per cent marks in the aggregate.
Sushil Chand Srivastava, a member of the service
appointed in pursuance of the 1972 Examination filed a writ
petition in this Court, challenging the validity of the
appointments of the "unplaced candidates" of the 1970
Examination belonging to the IIIrd list which included
Kafiquddin and others, on the ground that their appointment
was illegal and, therefore, they could not be treated as
senior to him.
R.P. Lavaniya, a member of the service recruited in
pursuance of the 1973 Examination filed a writ petition in
this Court, claiming seniority over respondents 3 to 15 in
the writ petition, recruited in pursuance of the 1972
Examination and appointed in service after the petitioners
appointment.
P.N. Parasher and 11 others, recruited in pursuance of
the 1972 Examination, filed a writ petition in the High
Court, challenging the seniority list prepared in pursuance
of the judgment of the High Court in the writ petition filed
by Rafiquddin and others, afore-mentioned on the ground that
the "unplaced candidates" of the 1970 Examination were not
entitled to seniority over the candidates of the 1972
Examina
797
tion, as they had been appointed to service earlier in time,
that writ petition was transferred to this Court as the
Transferred case.
Allowing the appeal filed by the State of U.P. and the
appeal preferred by Sushil Kumar Srivastava and others and
allowing in part the writ petition of Sushil Chand
Srivastava and the Transferred case of P.N. Parashar and
others, and dismissing the appeal of D.P. Shukla and others,
and the writ petition of Chandra Prakash Agarwal and the
writ petition of R.P. Lavaniya, the Court.
^
HELD: The High Court completely misconceived the
relevant Rules, while rendering the judgment in the writ
petition filed by the "unplaced candidates" Rafiquddin and
16 others-in total disregard of the facts. It committed a
serious error in applying the principles of natural justice
to a competitive examination. [820E]
The Rules entrust the Public Service Commission with
the duty of holding competitive examinations and
recommending the names of the suitable candidates for
appointment to the service on the basis of the proficiency
shown by the candidates. Rule 19 provided that the list of
the selected candidates should be arranged in order of merit
on the basis of the aggregate marks of each candidate in the
written as well as viva voce tests. In pursuance of clause
(i) to the proviso to rule 19, the commission had the power
to fix minimum aggregate marks in the written test.
Similarly, clause (ii) of the proviso conferred power on the
Commission to fix the minimum marks for the viva voce to
judge the suitability of the candidates for the service. The
scheme underlying rule 19 and the proviso there to made it
apparent that the obtaining of the minimum aggregate marks
in the written test and the viva voce test, was the sine qua
non before the Commission could make its recommendations in
favour of the candidates for appointment to the service. It
is manifest that only those candidates could be appointed to
the service who were included in the list prepared by the
Commission under rule 19. Appointments to the service are
made from the list forwarded by the Commission to the State
Government. Seniority in the service is determined on the
basis of the year of the examination irrespective of the
date of the appointment and the inter se seniority of the
candidates recruited is determined on the basis of their
ranking in the merit list. Seniority of a candidate
appointed to the service would depend upon the result of the
competitive examination and his position in the list
prepared under rule 19. The claim to seniority on the basis
of the year of competitive examination as contemplated by
rule 22 is available only to those candidates who are
approved by the Commission on the basis of H
798
their marks in the written and viva voce tests. The
commission alone had the power to prescribe the minimum
marks in the viva voce test for judging the suitability of a
candidate for the service. That is the clear meaning of the
words in the proviso to rule 19. [814B-H]
In the instant case, the. commission had fixed 35 per
cent minimum marks for the viva voce test. The viva voce
test is a well-recognised method of judging the suitability
of a candidate for appointment to public services. There is
no constitutional, legal infirmity in the provision of
clause (ii) of the proviso to rule 19, conferring power on
the commission to fix minimum marks for the viva voce test,
as aforesaid, and so long as the clause (ii) remained in
force, the Commission had that power. Even if a candidate
had obtained higher aggregate marks in the written and viva
voce test, his name could not be included in the list
prepared by the Commission under rule 19. None of the
"unplaced candidates" of the 1970 examination (those
included in the IIIrd list) had secured minimum marks of 35
per cent in the viva voce test, and for that reason they
were not approved by the Commission. The appointments of the
"unplaced candidates" made in pursuance of the decision of
the high level committee are not countenanced by the rules.
There is no escape for the conclusion that the "unplaced
candidates" were appointed to service on the basis of the
result of the competitive examination of 1970. Their
appointments were made in breach of the rules. It is well-
settled that where recruitment to service is regulated by
the statutory rules, the recruitment must be made in
accordance with those rules, and any appointment made in
breach of the rules, would be illegal. The appointments of
the 21 "unplaced candidates" made out of the third list were
illegal as they were made in violation of the provisions of
the rules. The high level committee, even though constituted
by highly placed persons, had no authority in law to take
the decision it did as above-said, as the rules do no
contemplate any such committee and the decision taken by the
committee could not be implemented. The committee had no
authority in law to disregard the rules and direct the
Commission, which is a constitutional and independent
authority, not sub-servient to the directions of the
Government, to make a recommendation to the Government in c;
favour of the unsuccessful candidates by disregarding the
minimum marks prescribed for the viva voce test. Its view
that after the amendment of the rule 19, the minimum
qualifying marks fixed for viva voce could be ignored, was
wholly wrong. Rule 19 was amended in January 1972, but
before that the 1970 examination had already been held, and
the amendment was not retrospective. Even if the Commission
had made recommendations in favour of the "unplaced
candidates" under
799
the directions of the government, the appointments of the
said candidates would have been illegal as made in violation
of the rules. And there was no justification for the
appointments of the unsuccessful candidates in 1975 because
by then, the result of the 1972 examination had been
announced and duly selected candidates were available.
[816F-H; 822D-H; 823C-DJ
There is no express provision in the rules as to for
what period the list prepared under rule 19 can be utilised
for making appointments to the service. In the absence of
any provision in the rules, a reasonable period must be
followed during which the appointments on the basis of the
result of a particular examination should be made. The list
prepared by the Commission on the basis of the competitive
examination of a particular year could be utilized by the
Government for making appointments before the declaration of
the result of the subsequent examination. If selected
candidates are available for appointment on the basis of the
competitive examinations of subsequent years, it would be
unreasonable and unjust to revise the list of earlier
examination by changing norms to fill up the vacancies, as
that would adversely effect the rights of those selected at
the subsequent examination in the matters relating to their
seniority under rule 22. The 1970 examination could not be
utilised as a perennial source or an exhaustible reservoir
for making appointments indefinitely. The result of a
particular examination must come to an end at some point of
time, like a "dead ball" in cricket. The practice of
revising the list prepared by the Commission under rule 19
at the behest of the government by lowering down fixed
standards and norms, is subversive of the rule of law. This
practice is fraught with dangers of favouritism and nepotism
and it would open back door entry to the service. Once the
result of the subsequent examination of 1972 was declared,
the Commission could not revise the list of approved
candidates of 1970 examination prepared by it under rule 19
at the behest of the Government by lowering down the
standard_ fixed by it. The procedure adopted in appointing
the unplaced candidates of 1970 examination was unauthorised
by law and it practised discrimination in violation of
Articles 14 and 16 of the Constitution. [824B-H; 826H]
The "unplaced candidates" were appointed to the service
in breach of the rules and they form a separate class. They
cannot be equated with those appointed from the first and
the second lists of the 1970 examination as their
appointments were made on the recommendation of the
Commission. Similarly, the candidates appointed to the
service on the basis of the result of the competitive
examination of 1972 before the "unPlaced candidates" were
appointed, formed a separate
800
class as they were also appointed in accordance with the
rules. The "unplaced candidates" could not claim seniority
over them on the basis of rule 22, as their appointments
were not made on the basis of the list approved by the
Commission under rule 19. [827A-C]
Even though the 21 "unplaced candidates" of 1970
examination have been found to have been appointed to the
service illegally in breach of the rules, yet the judgments
and others passed by them are not rendered invalid; they
were appointed by competent authority with the concurrence
of the High Court. They have been working in the judicial
service all these years and some of them have been promoted
also; they have performed their functions as de facto
judicial officers. The judgments and orders of a de facto
judge cannot be challenged on the ground of his
ineligibility for appointment. Keeping in view the period of
12 years that has elapsed, the Court did not propose to
strike down the appointments of the "unplaced candidates".
Having regard to all the facts and circumstances, it would
be just and proper to assign seniority to the "unplaced
candidates" of the 1970 examination at the bottom of the
list of the 1972 candidates. The 16 "unplaced candidates"
out of the total of 37, who were successful in the 1972
examination and were approved and included by the Commission
in the list prepared under rule 19, are entitled to
seniority of 1972 examination on the basis of their
positions in the merit list of that examination. [827D-G;
828F-H]
The appeal of the State of U.P. and the appeal of
Sushil Kumar Srivastava and others allowed. Judgment of the
High Court set aside. The High Court and State Government
shall determine the seniority of the 21 "upheld candidates"
as directed by the Court. [829F-G]
In the Appeal filed by D.P. Shukla and others, directed
against another judgment of the High Court, the view of the
High Court was consistent with the view of this Court. The
appellants had appeared at the 1970 examination but were
unsuccessful as they had failed to secure 35 per cent
minimum marks at the viva voce test, although they had
secured higher marks in the aggregate than those selected
and appointed. They had challenged the selection made in
pursuance of the 1970 examination. [830A-B]
In the writ petition filed in this Court by Chandra
Prakash Aggarwal, as the petitioner had failed to obtain the
minimum marks prescribed for the viva voce test although he
had obtained more than 40 per cent marks in the aggregate,
he could not be granted the relief of appointment to the
service. He was also,
801
disentitled to any relief on the ground of inordinate
delay, there being no plausible explanation for the delay in
. challenging the validity of the 1970 examination in 1982.
L830C-D]
In the writ petition filed in this Court by Sushil
Chand Srivastava and in the transferred case of P.N.
Parasher and others, the petitioners, recruited to the
service on the basis of the 1972 examination, were aggrieved
by the decision of the High Court in Rafiquddin's case as
their seniority was affected adversely. This Court has
already taken the view that the "unplaced candidates" of the
1970 examination could not be senior to the candidates
appointed as a result of the 1972 examination, and the
petitioners were covered by that decision of the Court to
get relief to that extent. [830G]
In the writ petition filed in this Court by R.P.
Lavania, the petitioner was appointed to the service in
November, 1976 on the basis of the result of the 1973
examination. His grievance was that the respondents Nos. 3
to 15 in the petition had been shown senior to him; although
they had been appointed later in time on the basis of the
1972 examination, and that the selection and appointment of
the said respondents were against the rules and they were
not entitled to seniority over him as he was a regularly
selected candidate. There was no merit in the petitioner's
case. Rule 22 directs that seniority shall be determined on
the basis of the year of examination, which means that a
person recruited to the service in pursuance of the result
of a particular year of examination would rank senior to a
candidate who is recruited in pursuance of the result of a
subsequent year of examination, although he might have been
actually appointed earlier in time, as, after the selection
of the candidates, several formalities, like medical
examination, character and antecedents verification, etc.,
are followed before the appointments are made under rule 21.
Many a time, this process of formalities causes delay in the
making of the actual appointment, with the result that
sometimes persons selected on the basis of subsequent
examination are appointed before the successful candidates
of the earlier examination. But under rule 22, the latter
shall be senior to the former, irrespective of the date of
appointment. The petitioner was appointed in the service on
the basis of the result of the 1973 examination while the
respondents Nos. 3 to 15 were recruited to service on the
basis of the result of the 1972 examination. Therefore,
under rule 22, the validity of which has not been
challenged, the respondents Nos. 3 to 15 are entitled to be
senior to the petitioner. There was no illegality in the
appointments of the respondents
802
Nos. 3 to 15. Their appointments in the service were made by
the A State Government on the recommendation of the Public
Service Commission made under Rule 19, as they had obtained
the requisite aggregate marks in the written and the viva
voce tests. They were appointed in accordance with the rules
and were entitled to seniority in terms of rule 22. [831 A-
H]
The Public Service Commission has been changing the
norms fixed by it at the behest of the Government after the
declaration of the results. The Commission is an
independent, expert body. It has to act in an independent
manner. It may consult the State Government and the High
Court in prescribing the norms for judging the suitability
of the candidates if no norms are prescribed in the Rules.
Once the Commission determines the norms and makes selection
on the conclusion of a competitive examination and submits
the list of the suitable candidates to the Government, it
should not re-open the selection by lowering down the norms
at the instance of the Government. If the practice of
revising the results of competitive examinations by changing
the norms is followed there will be confusion and the people
will loss faith in the institution of the Public Service
Commission and the authenticity of the selections. The
Commission should take a firm stand in these matters,
uninfluenced by the directions of the State Government
unsupported by the Rules. [833A-D]
(ii) The practice of appointing a retired Judge of the
High Court as an expert to assist the Commission in making
selections for appointments to the judicial service, is not
desirable. A sitting Judge of the High Court should be
nominated by the Chief Justice of the State to participate
in the interviews as an expert; he would be in a better
position to give advice to the Commission in the selection
of suitable candidates and his advice would be binding on
the Commission unless there are strong and cogent reasons
for not accepting such advice, which must be recorded in
writing by the Chairman and Members of the Commission, as
observed by a Constitution Bench of this Court in A. K.
Yadav v. State of Haryana, [1985] 4 S.C.C. 417. The
Constitution Bench had issued directions to the Public
Service Commission of every state to follow this direction,
but it appears that in the State of U.P., this direction is
not being followed. In future, the selections for
appointments to the judicial service shall be made by the
Commission on the expert advice of a sitting judge of the
High Court nominated by the Chief Justice. [833E-H;834A]
(iii) It has been noticed that generally, there is a
considerable
803
interregnum between the holding of the examination and the
appointments of the selected candidates in these cases, no
system was followed in making the appointments, as some of
the candidates selected in the subsequent examination were
appointed earlier than those selected in the earlier
examination, and those appointed later in time are made
senior to those appointed earlier in time under Rule 22.
This causes heart-burning and other complications. To avoid
this situation, it is necessary that every effort should be
made to appoint the successful candidates of a particular
examination before any candidate of a subsequent examination
is appointed. [834B-D]
K.N. Chandrasekhra & Ors. v. State of Mysore and Ors.,
A.I.R. 1963 Mysore 292; T.N. Manjula Devi v. State of
Karnataka, [1982] Labour and Industrial Cases, 759; Durga
Charan Misra v. State of orissa, W.P. 1123 of 1986, decided
on 27.8.1987; Lila Dhar v. State of Rajasthan, [1982] 1
S.C.R. 320; A.K. Yadav v. State of Haryana, [1985] 4 S.C.C.
417; Umash Chandra Shukla v. Union of India & Ors., [1985] 3
S.C.C. 721; Shitla Prasad Shukla v. State of U.P. & Ors.,
[1986] Supp. S.C.C. 185 and Achanti Sreenivasa Rao & Ors. v.
State of Andhra Pradesh, [1981] 3 S.C.C. 133. referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4023 of
1982 etc
From the Judgment and order dated 31 3.1982 of the
Allahabad High Court in C.M.W.P. No. 1303 of 1979.
G. Vishwanath Iyer, Satish Chandra, D.P Singh, S P.
Gupta, G.L. Sanghi, Gopal Subramaniam, Shobha Dikshit, H.K.
Puri, S D. Lal, M.K.D. Namboodry, R.N. Keshwani, Irfan
Ahmad, S Balakrishnan, A.D. Sikri, Pradeep Misra, L R.
Singh, Jayanand, Gopal Singh, C.P. Pandey, Mrs. Rani Chhabra
and Krishnamani for the appearing parties.
The Judgment of the Court was delivered by
SINGH, J. These three civil appeals directed against
the judgment of the High Court of Allahabad and four writ
petitions filed under Article 226 of the Constitution raise
common questions of law relating to determination of
seniority of members appointed as Munsifs in the Uttar
Pradesh Nyayik Seva as a result of competitive Examinations
of 1970, 1972 and 1973 held under the Uttar Pradesh Civil
Service (Judicial Branch) Rules, 195 1 (hereinafter referred
to as
804
the Rules). Since the appeals and the petitions raise common
questions of law they have been heard together and are being
disposed of by a common judgment.
On September 3, 1970 a Notification was issued by the
Public Service Commission inviting applications for
recruitment to 85 posts of Munsifs. In this examination 918
candidates appeared, out of whom 294 candidates on the basis
of their marks in written papers, were called for viva voce
test. After completion of the written and viva voce test,
the commission submitted a list of approved candidates to
the Government on October 25, 1971 recommending the names of
46 candidates for appointment to the service, which shall
hereinafter be referred to as the Ist list of 1970
examination. On receipt of the list of 46 candidates the
State Government requested the Commission to recommend some
more candidates for appointment to the service as there was
shortage of Munsifs, and it further suggested that the
minimum of 40 per cent marks in the aggregate may be reduced
to 35 per cent. The Commission agreed to the State
Government’s suggestion and thereafter it forwarded another
list of 33 candidates on April 25, 1972 for appointment to
the service which shall hereinafter be referred to as the
IInd list. This list included those who had obtained 35 per
cent marks in the aggregate, as well as 35 percent marks in
viva voce.. All the 79 candidates, as recommended by the
Commission in the aforesaid two lists were appointed to
service by different Notifications issued between May, 1972
to 12th June 1973. On July 17, 1973 Notification was issued
determining inter-se seniority of all the 79 candidates
appointed on the basis of 1970 examination in accordance
with of their position in the list prepared by the
Commission under Rule 19 of the Rules. Meanwhile, the Public
Service Commission held another competitive examination for
appointment to the 150 posts of l- Munsifs which shall
hereinafter be referred to as the 1972 Examination. The
Written test was held in November, 1973 and the result was
declared on 26th June 1974. The Public Service Commission
forwarded a list of 150 successful candidates to the
Government for appointment to the service under Rule 19 of
the Rules and all those candidates were appointed to the
service on different dates between (, 1975 to 1977.
Some of the unsuccessful candidates of the 1970
Examination made representation to the State Government for
considering their case for appointment on the basis of their
aggregate marks irrespective of their low marks in the viva
voce. The State Government by its letter dated 24th July,
1973 requested the Commission that in view of the
805
shortage of Munsifs in the State and since in view of the
amendment of Rule 19 it was no longer necessary for a
candidate to qualify independently in the viva voce, it may
reconsider the result of the examinations of 1967, 1968,
1969 and 1970 and approve all those candidates for
appointment to the service who might have obtained 40 per
cent of marks or more in the aggregate even if they might
have failed to secure the minimum marks in the viva voce
test. The Commission refused to consider the proposal of the
Government, as the minimum marks prescribed by the
Commission under the then existing proviso to Rule 19 could
not be ignored in judging the suitability of a candidate.
Inspite of the Commission’s refusal the Government pursued
the matter further, and it convened a meeting of the Chief
Minister, Chief Justice of the High Court and the Chairman
of the Public Service Commission on 3rd May, 1974. At that
meeting it was decided that in view of the immediate need
for Munsifs the Public Service Commission should be
requested to recommend such candidates of 1967, 1968, 1969
and 1970 examination who might have secured 40 per cent or
more marks in the aggregate, but could not qualify in the
viva voce. The committee took the view that after the
amendment of Rule 19 it was not necessary for a candidate to
qualify in the viva voce test and therefore he could be
appointed to the service if he had got 40 per cent or more
marks in the aggregate. In pursuance of the decision taken
by the said high level Committee the Government by its
letter dated May 10, 1974 requested the Commission to
forward the application forms and the marks obtained by the
unsuccessful candidates of the Examinations held during the
years 1967, 1968, 1969 and 1970 who might have got 40 per
cent or more marks in the aggregate but might not have
qualified in the viva voce. The letter enclosed a note
containing the decision taken by the high level committee.
The Commission by its letter dated 9th June 1974 informed
the Government that the application forms and other
particulars of the unsuccessful candidates of 1967, 1968 and
1969 examination had been destroyed, and therefore the
Commission was unable to forward the names of candidates of
those examinations as desired by the Government. But the
Commission forwarded with a covering letter dated June 19,
1974 a list of 37 candidates of the 1970 Examination who had
obtained 40 per cent or more marks in the aggregate but who
had failed to secure 35 per cent qualifying marks in the
viva voce which shall hereinafter be referred to as the
lIIrd list. The Commission’s letter contained a note that
the candidates mentioned therein had obtained 40 per cent or
more marks in the aggregate but they had not been found
suitable by the Commission. This IIIrd list contained the
names of Rafiquddin and 36 others, who were unsuccessful at
the 1970 Examination who will be referred to
806
hereafter as the “unplaced candidates” of the 1970
Examination. On receipt of the IIIrd list of the “unplaced
candidates” the State Government after obtaining approval of
the High Court issued a Notification dated August 19, 1975
appointing 21 candidates out of the list of 37 candidates as
Munsifs with a note that the appointments were being made on
the basis of the 1970 Examination conducted by the
Commission and the persons appointed were “unplaced
candidates” with a further note that their seniority would
be determined later on out of the list of 37 candidates
forwarded by the Commission under its letter dated June 19,
1974 the State Government found that the remaining 16
persons who had been unsuccessful at the 1970 Examination
had again appeared in the 1972 Examination and they had been
selected and appointed to the service. Therefore, the
Government requested the Commission to select 16 more
candidates from the 1972 Examination In pursuance of the
Government’s request the Public Service Commission by its
letter dated 14/ l5th July, 1976 forwarded another list of
16 candidates who had appeared in the 1972 Examination for
appointment to the service.
In March, 1977 the State Government published a
seniority list of successful candidates of the competitive
examination of 1970. The “unplaced candidates” belonging to
the IIIrd list of the 1970 Examination made representation
to the High Court for determining their seniority in
accordance with Rule 22 of the Rules on the footing that
they were recruited to the service in pursuance of 1970
Examination and therefore they were entitled to the
seniority as candidates belonging to the examination held in
1970 irrespective of their appointment being made in 1975.
They claimed that they were senior to those who had been
recruited to service in pursuance of 1972 Examination as
well as to those who had been recruited to service, earlier
to them in pursuance of the 1970 Examination who were
appointed in service in pursuance of Ist and the IInd list
of 1970 Examination but who had secured lower marks in the
aggregate. Their representation was rejected by the High
Court as well as by the State Government as in their view
the “unplaced candidates” were unsuccessful in the
competitive examination of 1970, their appointment was not
in accordance with the Rules and as such they were not
entitled to seniority of 1970. Rafiquddin and 16 other
“unplaced candidates” filed Writ Petition No. 1303 of 1979
under Article 226 of the Constitution before the High Court
of Allahabad for quashing the decision of the High Court and
the State Government rejecting their representation and also
for the issue of a writ of mandamus directing the High Court
to confirm the petitioners and to grant them seniority of
1970, and to rearrange the
807
seniority of Munsifs appointed in service in pursuance of
1970 Examination in order of merit on the basis of the
aggregate marks obtained by each of the candidates at the
said examination. A Division Bench of the High Court
consisting of M.N. Shukla and K.M. Dayal JJ. by their
Judgment dated 31st March, 1982 allowed the writ petition on
the finding that the unplaced candidates were appointed in
service on the basis of the result of 1970 examination. The
Bench quashed the seniority list and issued a direction to
the State Government and the High Court to prepare the
seniority list of candidates of the 1970 Examination afresh
in accordance with Rule 22 read with Rule 19 of the Rules
and to confirm and promote them in accordance with the
seniority list so drawn. The State of Uttar Pradesh has
preferred Civil Appeal No. 4023 of 1982 against the judgment
of the Division Bench. Civil Appeal No. 4024 of 1982 has
been preferred by Sushil Kumar Srivastava and others against
the aforesaid judgment of the Division Bench It should be
stated here that D.P. Shukla and three other unsuccessful
candidates at the 1970 Examination had filed another writ
petition Writ Petition No. 4261 of 1974 in the High Court of
Allahabad under Article 226 of the Constitution raising the
grievance that even though they had secured higher marks in
the competitive examination than those appointed to the
service yet they were discriminated, as they had not been
appointed to the service instead 37 candidates “belonging to
the IIIrd list” were appointed although they had obtained
lower marks. Another Division Bench of the High Court
consisting of Satish Chandra CJ. and A.N. Verma J. by its
judgment dated March 30, 1982 dismissed the said writ
petition on the ground that since the petitioners therein
had failed to secure minimum qualifying marks in the viva
voce they were not entitled to selection. Civil Appeal No.
3736 of 1982 has been preferred by the unsuccessful
petitioners against the aforesaid judgment.
In addition to the aforesaid three civil appeals four
writ petitions have also been filed raising the same
controversy. Writ Petition No. 4636 of 1982 has been filed
in this Court under Article 32 of the Constitution b(y
Chandra Prakash Agrawal an unsuccessful candidate at the
1970 Examination, challenging the appointment of those who
had failed to secure less than 40 per cent marks in the
aggregate. Sushil Chand Srivastava a member of the service
appointed in pursuance of the 1972 Examination has also
filed Writ Petition No. 12818 of 1984 under Article 32 of
the Constitution challenging the validity of the appointment
of “unplaced candidates” of the 1970 Examination belonging
to the IIIrd list which include Rafiquddin and others on the
ground that their appointment was illegal and for that
reason they
808
could not be treated senior to him. R.P. Lavaniya a member
of the A service who was recruited in pursuance of the 1973
Examination has also filed Writ Petition No. 1347 of 1984
under Article 32 of the Constitution claiming seniority over
Respondents 3 to is to the writ petition who had been
recruited in service in pursuance of the 1972 Examination
and appointed in service after the petitioner’s appointment.
P.N. Parashar and 11 others who had been recruited to the
service in pursuance of the 1972 Examination filed a writ
petition under Article 226 of the Constitution before the
High Court of Allahabad being writ petition No. 5409 of the
1982 challenging the seniority list prepared in pursuance of
the judgment of the High Court in writ petition No. 1303 of
1979 (Rafiquddin and others v. State of Uttar Pradesh), on
the ground that the “unplaced candidates” of the 1970
Examination were not entitled to seniority over the
candidates of the 1972 Examination as they had been
appointed to service earlier in time. That writ petition was
transferred to this Court. Three Civil appeals and four writ
petitions including the transferred petition have been heard
together at length.
The U.P. Civil Service (Judicial Branch) Rules 1951
that is, the Rules have been framed by the Governor under
the proviso to Article 309 read with Article 234 of the
Constitution in consultation with the U . P. Public Service
Commission and the High Court which provide for recruitment
to the service and lay down the conditions of service of
personnel appointed to the U.P. Civil Service (Judicial
Branch). Rule 3 provides that the Rules shall apply to
Munsifs and Civil Judges. “Member of the service” as defined
by Rule 4 means a person appointed in a substantive capacity
‘under the provisions of these Rules” or of the Rules in
force previous to the introduction of these Rules to a post
in the cadre of the service. Rule S provides that the
strength of the service shall be determined by the Governor
from time to time in consultation with the High Court of
Judicature at Allahabad. It confers power on the Governor to
increase the cadre by creation of additional or temporary
posts as may be necessary. Rule 6 provides that recruitment
to the service shall be made on the result of a competitive
examination conducted by the Public Service Commission. Rule
8 lays down that the Governor shall decide the number of
recruits to be taken in any particular year. Rule 15
provides for holding of competitive examination for
recruitment to the service and it lays down that the
examination may be conducted at such time and on such date
as may be notified by the Commission and shall consist of
written examinations in such legal and allied subjects
including procedure as may be included in the syllabus
prescribed in Rule 18 and an examina-
809
tion to test the knowledge of the candidate in Hindi, Urdu
and also an interview to test the fitness of the candidates
for appointment. Rule 18 prescribes syllabus for the
competitive examination as contained in Appendix E. Appendix
provides that the examination will include written and viva
voce test, it specifies the subjects for written test and
the marks allotted to each subject. Clause 5 of Appendix
relates to the viva voce, and the notes appended thereto
relevant for the determination of the question raised in
these cases, are as under:
“5. Viva Voce: The suitability of the candidate
for employment in the judicial service will be
tested with reference to his record at school,
college and in university and his personality,
physique. The questions which may be put to him
may be of a general nature and will not
necessarily be on an academic or legal nature.
(I) The marks obtained in viva voce will be added
to the marks obtained in the written papers and
the candidate’s place will depend on the aggregate
of both.
(II) The Commission reserves the right to refuse
to call for viva voce and candidate who has not
obtained such marks in the two Law Papers as to
justify such refusal or who does not satisfy the
requirements of Rule 12(2) of the Rules.”
Rule 19 requires the Commission to prepare list of
candidates approved by it and to forward the same to the
Government. Rule 19 is it stood in the year 1970 read thus:
” 19. List of candidates approved by the
Commission-The Commission shall prepare a list of
candidates who have taken the examination for
recruitment to the service in order of their
proficiency as disclosed by the aggregate marks
finally awarded to each candidate. If two or more
candidates obtain equal marks in the aggregate the
Commission shall arrange them in order of merits
on the basis of their general suitability for the
service:
Provided that in making their recommendations
the Commission shall satisfy themselves that the
candidate-
(i) has obtained such an aggregate of marks
in the written test that he is qualified by his
ability for appointment to the service;
810
(iii) has obtained in the viva voce test such
sufficiently high marks that he is suitable for
the service.
While preparing the list the Commission had to satisfy
itself that a candidate had obtained such aggregate marks in
the written test as to qualify him for appointment to the
service and further that he had obtained such sufficiently
high marks in the viva voce test that he was suitable for
the service. The position of the candidates in the list was
to be determined on the aggregate marks obtained by a
candidate both in written as well as viva voce test. Rule 21
provides that the Governor shall on receipt of the list
prepared by the Commission consult the High Court and after
taking into consideration the view of the High Court, select
candidates for appointment from amongst those who stand
highest in order of merit in the list if they are duly
qualified in other respects. Rule 22 provides that the
seniority of candidates shall be determined by the year of
competitive examination on the results of which a candidate
is recruited and his position in the list prepared under
Rule lg. The Rules were amended by a Notification dated
January 31, 1972. After the amendment the Rules are known as
the U.P. Nyayik Seva Niyamavali 1951 Under the amended Rules
the service has been designated as the U.P. Nyayayik Seva.
It is not necessary to refer to all the amended provisions
of the Niyamavali. After the amendment Rule 15 provides that
the examination shall consist of written examination and
interview to assess all round student career of the
candidates and their personality address and general
suitability. Rule 19 after the amendment reads as under:
19. List of candidates approved by the Commission-
“The Commission shall prepare a list of candidates
who have taken the examination for recruitment to
the service in order of their proficiency as
disclosed by the aggregate marks finally awarded
to each candidate. If two or more candidates
obtain equal marks in the aggregate, the
Commission shall arrange them in order of merit on
the basis of their general suitability for the
service;
Provided that in making their recommendations
the Commission shall satisfy themselves that the
candidate has obtained such as aggregate of marks
in the written test that he is qualified by his
ability for appointment to the
811
A glance at the amended Rule 19 would show that the two
clauses of the proviso have been omitted. Instead the new
provision to Rule 19 has been inserted which lays down that
in preparing the list of the approved candidates the
Commission shall satisfy itself that the candidate has
obtained such aggregate of marks in the written test that he
is qualified by his ability for appointment to the service.
Now, after the amendment the Commission has no power to
prescribe or fix any minimum marks qualifying for viva voce.
Now it is not necessary for a candidate to be successful in
the viva voce. Prior to the amendment a candidate could not
be selected unless he had obtained minimum marks as fixed by
the Commission in viva voce. The amended proviso of Rule 19
has dispensed with that requirement though viva voce test
has been retained. It is not necessary to refer to other
Rules as these are the only Rules which are relevant for the
purposes of determining the controversy involved in these
cases.
The “unplaced candidates” of 1970 examination claimed
seniority of 1970 in terms of Rule 22 even though they were
appointed in 1975. The State Government as well as the High
Court rejected their claim as in their view the “unplaced
candidates” formed a separate class as their recruitment to
the service was made in special circumstances, even though
they had been unsuccessful at the examination. The High
Court on its administrative side rejected their claim for
seniority whereupon Rafiquddin and other “unplaced
candidates” approached the High Court on the judicial side
by filing the writ petition under Article 226 of the
Constitution challenging the order rejecting their
representation. The Division Bench of the High Court
constituting of M.N. Shukla and K.M. Dayal, JJ. held that
the appointment of the “unplaced candidates” had been made
in pursuance of the result of the competitive examination of
1970 and as such they were entitled to seniority of 1970 in
accordance to Rule 22. The Bench further held that as the
seniority in the service is determined on the basis of the
year of the competitive examination the “unplaced
candidates” belonging to the IIIrd list were entitled to the
senior to those appointed to service on the basis of the
result of the competitive examination of 1972 even though
the “unplaced candidates” had been appointed to service
later in time. At regards the inter-se-seniority of the
candidates recruited to the service in pursuance of 1970
examination the High Court held that the Commission had no
authority to prescribe any minimum qualifying marks for viva
voce and instead it should have prepared the list of
successful candidates on the basis of aggregate marks
secured by each candidate irrespective of the marks obtained
by a candidate in viva voce. Adverting to proviso to Rule 19
H
812
the Bench observed “It is true that the Rule authorises the
Public A Service Commission to lay down such minimum marks
but that it was so laid down prior to the holding of the
examination of the year 1970 does not appear from the
record. If any minimum marks were prescribed the candidate
should have had notice of the same and only thereafter they
could decide to appear or not to appear at the examination.
The Public Service Commission cannot at its whim at any
point of time without notice to the candidates fix minimum
marks.” on these findings the High Court directed that the
merit list of 1970 recruits, should be drawn afresh, on the
basis of the aggregate marks secured by each candidate
disregarding the qualifying marks fixed by the Public
Service Commission for the viva voce test. The Division
Bench directed that the seniority of the “unplaced
candidates” included in the third list be refixed after
rearranging the lists of candidates included in the first
and second list on the basis of the aggregate marks. The
effect of the judgment of the Bench has been that all those
candidates who had been appointed to service in pursuance to
the 1972 examination have been made junior to the “unplaced
candidates” of 1970 examination although they were appointed
much later. Further the seniority of regularly selected
candidates and appointed to the service out of the Ist and
IInd lists of the 1970 examination is adversely affected on
account of the rearrangement of the merit list as many of
the unsuccessful candidates have become senior to those who
had been included in the Ist and IInd list. Further the
candidates who had passed along-with the successful
candidates of 1972 examination also being unplaced
candidates would go above all the candidates of the 1972
examination including the candidates who had stood first in
the 1972 examination.
After hearing the learned counsel for the parties at
length and having given our anxious consideration to the
controversy raised in these cases, we are of opinion that
the Division Bench completely misconceived the Rules and
rendered the judgment in total disregard of the facts
available on record. As discussed earlier the Rules, entrust
the Public Service Commission with the duty of holding
competitive examination and recommending the names of
suitable candidates as approved by it for appointment to the
service on the basis of the proficiency shown by the
candidates at the examination adjudged on the basis of the
aggregate marks secured by them. The appointment to service
is made from the list forwarded by the Commission to the
State Government. Seniority in the service is determined on
the basis of the year of the competitive examination
irrespective of the date of appointment and the inter-se-
seniority of candidates recruited to the service is
determined on the basis of their ranking in the merit list.
To
813
recapitulate Rules 19, 21 and 22 as they stood during the
year 1970 i.e. prior to their amendment in January, 1972
were as under:
” 19. List of candidates approved by the
Commission-The Commission shall prepare a list of
candidates who have taken the examination for
recruitment to the service in order of their
proficiency as disclosed by the aggregate marks
finally awarded to each candidate. If two or more
candidates obtain equal marks in the aggregate the
Commission shall arrange them in order of merits
on the basis of their general suitability for the
service:
Provided that in making their recommendations
the Commission shall satisfy themselves that the
candidate-
(i) has obtained such an aggregate of marks in the
written test that he is qualified by his ability
for appointment to the
(ii) has obtained in the viva voce test such
sufficiently high marks that he is suitable for
the service.
21. Appointment-(1) subject to the provisions of
Rule 20, the Governor shall on receipt of the list
prepared by the Commission consult the High Court
and shall, after taking into consideration the
views of the High Court, select candidates for
appointment from amongst those who stand highest
in order of merit in such list provided that he is
satisfied that they duly qualified in other
respects.
(2) The Governor may make appointment in
temporary or officiating vacancies from persons
possessing necessary qualifications prescribed
under these Rules.
(3) All appointments made under this Rule
shall be notified in the official Gazette.
22. Seniority-Subject to the provisions of Rule 31
the seniority of candidates already in service at
the time when these rules come into force would be
determined according to the Rules in force
previously and for those appointed subsequently
the seniority shall be determined by the year of
competitive examination on the results of which a
candi-
814
date is recruited and the position in the list
prepared under Rule 19
NOTE: A candidate may lose his seniority if
without any reasonable cause he does not join his
service when a vacancy is offered to him.”
(underlining by us)
The aforesaid rules show that the Commission was required to
prepare a list of candidates approved by it for appointment
to the service. Rule 19 provided that the list of selected
candidates should be arranged in order of merit on the basis
of the aggregate marks finally awarded to each candidate in
written as well as in viva voce test. Clause (1) of proviso
to Rule 19 laid down that in making their recommendation,
the Commission should satisfy itself that a candidate had
obtained such aggregate of marks in the written test as to
indicate that he was qualified by his ability for
appointment to the service and further he had obtained in
the viva voce test such sufficiently high marks that he was
suitable for the service. In pursuance to clause (1) of the
proviso, the Commission had power to fix minimum aggregate
marks in written test for judging the suitability of a
candidate for appointment to service. Similarly clause (ii)
of the proviso conferred power on the Commission to fix the
minimum marks for viva voce test to judge the suitability of
a candidate for the service. One related to the fixation of
the minimum in the aggregate marks in the written test while
the other related to the fixation of the minimum marks in
the viva voce test. The enacting clause of Rule 19 directed
the Commission to prepare the list on the basis of the
aggregate marks awarded to a candidate Aggregate marks
obtained by a candidate determined his position in the list,
but the proviso of the Rule required the Commission to
satisfy itself that the candidate had obtained such
aggregate marks in the written test as to qualify him for
appointment to service and further he had obtained such
sufficiently high marks in viva voce which would show his
suitability for the service. The scheme underlying Rule 19
and the proviso made it apparent that obtaining of the
minimum aggregate marks in the written test and also the
minimum in the viva voce was the sine quo non before the
Commission could proceed to make its recommendation in
favour of a candidate for appointment to the service. The
Commission in view of the clause (ii) of the proviso
Commission had power to fix the minimum marks for vive voce
for judging the suitability of a candidate for service Thus
a candidate who had merely secured the minimum of the
aggregate marks or above was not entitled to be included in
the list of successful candidates unless he had also secured
the minimum marks which had been prescribed for the viva
815
voce test. The Commission was required to include the name
of candidates in the list prepared by it under Rule 19 on
the basis of the aggregate of marks as obtained by each
candidate both in written as well as in the viva voce test.
Rule 20 provides that no person shall be appointed as member
of the service unless he is medically fit. It further
provides that a candidate who has passed the competitive
examination and is finally approved for appointment to the
service shall be required to pass an examination by a
Medical Board. Rule 21 provides that the Governor, on
receipt of the list prepared by the Commission under Rule 19
shall select candidates for appointment from amongst those
who stand highest in order of merit in “such list” after
taking into consideration the views of the High Court. The
expression “such list” in Rule 2 l obviously refers to the
list prepared by the Commission under Rule 19. It is,
therefore, manifest that only those candidates can be
appointed to the service who are included in the list
prepared by the Commission under Rule 19. If the Commission
does not approve and include the name of a candidate in the
list prepared by it under Rule 19, he cannot be appointed to
the service under Rule 21 Rule 22 provides that the
seniority in the service shall be determined by the year of
competitive examination on the results of which a candidate
is recruited and his position in the list prepared under
Rule 19. The Rule clearly postulates determination of
seniority of members of the service recruited to the service
through competitive examination with reference to their
position in the list of approved candidates prepared by the
Commission under Rule 19. The expression “member of the
service” as defined by Rule 4(e) means a person appointed in
substantive capacity under the provisions of the Rules. Rule
22 read with Rule 4(e) lays down in unmistakable terms that
the seniority of members of service is to be determined on
the basis of the year of competitive examination and not
otherwise. In other words only those persons who are
appointed in accordance with the Rules on the result of a
competitive examination are entitled to the determination of
their seniority in accordance with Rule 22. Seniority of a
candidate appointed to the service would depend upon the
result of the competitive examination and his position in
the list prepared under Rule 19. Claim to seniority under
Rule 22 cannot be upheld if a candidate is not approved for
appointment under Rule 19 and has not found his way into
service on the recommendation of the Commission. We
therefore hold that the claim to seniority on the basis of
the year of competitive examination as contemplated by Rule
22 is available only to those candidates who are approved by
the Commission on the basis of their marks in the written
and viva voce test at the examination.
816
Learned counsel for the respondent (unplaced
candidates) urged that clause (2) of the proviso to Rule 19
did not confer power on the Commission to fix any qualifying
minimum marks for viva voce. In the alternative he
challenged the constitutional validity of the proviso on the
ground of excessive delegation of legislative power. Rule 19
as it stood in the year 1970 read with Rule 18 and Appendix
and the Note I of clause (5) of appendix required that the
aggregate of marks obtained in the written and viva voce
test, determined a candidate’s rank in the merit list. These
provisions conferred power on the Commission to fix
qualifying marks in the written test and if a candidate
failed to obtain the minimum marks in the written test the
Com mission might refuse to call him for viva voce test. The
enacting clause of Rule 19 provide guidance for the
Commission in preparing the list of approved candidates on
the basis of the aggregate marks obtained by a candidate in
the written as well as in viva voce test. Clause (2) of the
proviso to Rule 19 did not no doubt expressly lay down that
the minimum marks for the viva voce had to be prescribed but
the language used therein clearly showed that the Commission
alone had the power to prescribe minimum marks in viva voce
test for judging the suitability of a candidate for the
service. That is the clear meaning of the words in the
proviso to Rule 19 “provided that in making their
recommendation the Commission shall satisfy themselves that
the candidate i) .. ii) has obtained in the viva voce test
such sufficiently high marks that he is suitable for the
service.” Commission is required to judge the suitability of
a candidate on the basis of sufficiently high marks obtained
by a candidate in the viva voce test, it has to fix some
percentage of marks which in its opinion may be sufficient
to assess the suitability of a candidate. In the absence of
a fixed norm, there could be no uniformity in assessing
suitability of candidates in the viva voce test. The
Commission had therefore power to fix the norm and in the
instant case it had fixed 35 per cent minimum marks for viva
voce test. The viva voce test is a well-recognised method of
judging the suitability of a candidate for appointment to
public services and this method had almost universally been
followed in making selection for appointment to public
services. Where selection is made on the basis of written as
well as viva voce test, the final result is determined on
the basis of the aggregate marks. If any minimum marks
either in the written test or in viva voce test are fixed to
determine the suitability of a candidate the same has to be
respected. Clause (ii) of the proviso to Rule 19 clearly
confers power on the Commission to fix minimum marks for
viva voce test for judging the suitability of a candidate
for the service. We do not find any constitutional legal
infirmity in the provision.
817
The learned counsel placed reliance on a Division Bench
judgment of the Mysore High Court in K.N. Chandrasekhra &
Ors. v. State A of Mysore & Ors., AIR 1963 Mysore 292. In
that case A.R. Somnath Iyer, J. speaking for the Bench
observed that the power to fix minimum marks in viva voce
test for judging the suitability of a candidate for
appointment to State Judicial Service was legislative in
character and it could not be exercised by the Public
Service Commission. He also held that under Article 234 of
the Constitution it would be a special duty and
responsibility of the Commission alone to make a Rule
prescribing the minimum marks for viva voce examination and
in the absence of such a rule the committee constituted
could not prescribe any such minimum standard. No doubt this
decision support the submission raised on behalf of the
unplaced candidates but a Full Bench of the Mysore High
Court had not approved the view taken in K.N.
Chandrasekhra’s case as can be gathered from T.N. Manjula
Devi v. State of Karnataka. [ 1982] Labour and Industrial
Cases 759. In the latter case the Court held that the
process of selection of suitable candidates to a responsible
post involved a minimum standard to be crossed by candidates
and that had to be fixed by the selection commit- tee. I
earned counsel for the respondent referred to a decision of
this Court in Durga Charan Misra v. State of Orissa, W.P.
1123 of 1986 decided on 27.8.1987 for the proposition that
the Commission had no power to fix the qualifying marks for
the viva voce test. We have carefully considered the
decision but we do not find anything therein to support the
respondents’ contention. In that case the question for
consideration before this court was whether the minimum
marks prescribed by the Commission for the viva voce test
for appointment to the State Judicial Service of orissa was
justified. The Court on an analysis of the relevant rules of
the orissa Judicial Service Rules 1964 held that there was
no rule prescribing the minimum qualifying marks for the
viva voce test. The court found that the Commission had
fixed qualifying marks and on that basis it had excluded
candidates securing higher marks in written test. The Court
allowed the petition and quashed the selection made by the
Commission and directed the Commission to prepare the select
list afresh on the basis of the aggregate marks obtained by
the candidates in the written examination and the viva voce
test. This decision does not advance the case of respondents
in view of clause (ii) of the proviso to Rule 19. So long
clause (ii) of proviso to Rule 19 remained in force the
Commission had power to fix minimum qualifying marks for the
viva voce test. Thus even if a candidate had obtained higher
aggregate marks in written and viva voce test but if he had
failed to secure the minimum marks in the viva voce test his
name could not be included in the list prepared by the
Commission H
818
under Rule 19. This view was taken by another Bench of the
High Court in D.P. Shukfa’s case, and with which we agree.
There is no dispute that none of the unplaced candidates of
1970 examination (those included in the third list) had
secured minimum marks of 35 per cent in the viva voce test
and for that reason they were not approved by the
Commission, although they had obtained more than 40 per cent
marks in the aggregate.
Learned counsel for the respondents urged that 35 per
cent of qualifying marks fixed by the Commission for the
viva voce test was unreasonable and excessive. In Lila Dhar
v. State of Rajasthan, [1982] SCR 320 this Court held that
while a written examination assessed a candidate’s knowledge
and intellectual ability an interview test is valuable to
assess a candidate’s over all intellectual and other
qualities. The interview permits an assessment of qualities
of character which written papers ignore, it assesses the
man himself and not his intellectual abilities. The Court
observed that there could not be any rule of thumb regarding
the precise weight to be given to the viva voce test. It
must vary from service to service according to the
requirement of service the minimum qualifications may be
prescribed, the age group from which the selection is to be
made, the body to which the task of holding the interview is
entrusted. There can be no doubt that viva voce test
performs a very useful function of assessing personal
characteristics and traits of a candidate. The answer to
question as to what weight should be attached to viva voce
test where both written and viva voce test are held for
making the selection, would depend upon the purpose of the
selection. Chinnappa Reddy, J. speaking for the Court
observed
“Thus, the written examination assesses the man’s
intellect and the interview test the man himself
and “the twain shall meet” for a proper selection.
If both written examination and interview test are
to be essential features of proper selection the
question may arise as to the weight to be attached
respectively to them. In the case of admission to
a college, for instance, where the candidate’s
personality is yet to develop and it is too early
to identify the personal qualities for which
greater importance may have to be attached in
later life, greater weight has per force to be
given to performance in the written examination.
The importance to be attached to the interview
test must be minimal. That was what was decided by
this Court in Periakaruppan v. State of
Tarlilnadu, Ajay Hasia etc. v. Khalid Mujib
819
Sehravardi & Ors. etc. and other cases. In the
other hand, in the case of service to which
recruitment has necessarily to be made from
persons of mature personality, interview test may
be the only way, subject to basic and essential
academic a professional- requirements being
satisfied. To subject such persons to a written
examination may yield unfruitful and negative
results, apart from its being an act of cruelty to
those persons. There are, of course, many services
to which recruitment is made from younger
candidates whose personalities are on the
threshold of development and who show signs of
great promise, and the discerning may in an
interview test, catch a glimpse of the future
personality. In the case of such services, where
sound selection must combine academic ability with
personality promise, some weight has to be given,
though not much too great weight, to the interview
test. There cannot be any rule of thumb regarding
the precise weight to be given. It must vary from
service to service according to the requirement of
the service, the minimum qualifications
prescribed, the age group from which the selection
is to be made, the body to which the task of
holding the interview test is proposed to be
entrusted and host of other factors. It is a
matter for determination by experts. It is a
matter for research. It is not for courts to
pronounce upon it unless exaggerated weight has
been given with proven or obvious oblique motives.
The Kothari Committee also suggested that in view
of the obvious importance of the subject, it may
be examined in detail by the Research Unit of the
Union of Public Service Commission.
In A.K. Yadav v. State of Haryana, [1985] 4 SCC 417 a
Constitution Bench of this Court approved the view expressed
in Lila Dhar’s case. The Court observed there cannot be any
hard and fast rule regarding the weight to be given as
against the written examination. It must vary from service
to service according to the requirement of the service the
minimum qualification prescribed age group from which the
selection is to be made the body to which the task of
holding the interview test is proposed to be entrusted and a
host of other factors. It is a matter for determination by
experts. The Court does not possess the necessary equipment
and it would not be right for the court to pronounce upon
it. In Lila Dhar’s case 25 per cent of marks flxed for viva
voce test was upheld. In A.K. Yadav’s case selection made by
the Haryana Public Service Commission for appointment to the
post of Haryana Civil
820
Service (Executive and other allied services) was under
challenge. The A Court held that allocation of 33.3 per cent
for viva voce was high as it opened door for arbitrariness
and in order to diminish it if not eliminate the same the
percentage needs to be reduced. The Constitution Bench made
observation that marks for viva voce test should not exceed
12.2 per cent. In spite of these observations the
Constitution Bench did not interfere or strike down the
selection instead it directed the Commission to give one
more opportunity to the aggrieved candidates to appear at
the competitive examination. In the instant case there has
been no allegation of mala fides or arbitrariness against
the Commission which held the viva voce test. In the
circumstances we do not consider it necessary to set aside
selection or issue any direction to the Public Service
Commission or to the State Government as Rules relating to
viva voce test have already been amended. After the
amendment of the Rules on January 31, 1972 no minimum
qualifying marks can be fixed by the Commission for viva
voce test and therefore it is not necessary to issue any
direction in the matter.
The Division Bench of the High Court observed that the
Com mission had no authority to fix any minimum marks for
the viva voce test and even if it had such a power it could
not prescribe the minimum marks without giving notice to the
candidates. The Bench further observed that if the
Commission had given notice to the candidates before the
steps for holding the competitive examination were taken the
candidates may or may not have appeared at the examination.
In our opinion the High Court committed a serious error in
applying the principles of natural justice to a competitive
examination. There is a basic difference between an
examination held by a college or university or examining
body to award degree to candidates appearing at the
examination and a competitive examination. The examining
body or the authority prescribes minimum pass marks. If a
person obtains the minimum marks as prescribed by the
authority he is declared successful and placed in the
respective grade according to the number of marks obtained
by him. In such a case it would be obligatory on the
examining authority to prescribe marks for passing the
examination as well as for securing different grades well in
advance. A competitive examination on the other hand is of
different character. The purpose and object of the
competitive examination is to select most suitable
candidates for appointment to public services. A person may
obtain sufficiently high marks and yet he may not be
selected on account of the limited number of posts and
availability of persons of higher quality. Having regard to
the nature and characteristics of a competitive examination
it is not possible nor necessary to give notice
821
to the candidates about the minimum marks which the
Commission may determine for purposes of eliminating the
unsuitable candidates. The rule of natural justice does not
apply to a competitive examination.
The question arises as to whether the unplaced
candidates included in the third list” were appointed to the
service on the result of the competitive examination of
1970. We have already referred to necessary facts in detail
indicating the circumstances under which the unplaced
candidates (included in the third list) of 1970 examination
were appointed. Initially the Public Service Commission had
fixed 40 per cent of aggregate marks and 35 per cent as
minimum marks in the viva voce test for judging the
suitability of candidates and on that basis it had
recommended 46 candidates for appointment but subsequently
on a suggestion made by the Government the Commission
forwarded another list of 33 candidates for appointment to
service on the basis of 35 per cent marks in the aggregate
as well as 35 per cent minimum marks in viva voce. In
forwarding the first and the second list, the Commission had
applied the criteria of minimum marks of 35 per cent in viva
voce test. The Commission had not recommended any candidate
in either of the two lists, who had failed to secure minimum
marks of 35 per cent in viva voce test. After the amendment
of Rule 19 and deletion of the two proviso the State
Government on the representation of the unsuccessful
candidates of 1970 examination made suggestion to the
Commission for approving more candidates of the Examinations
held in 1967, 1968, 1969 and 1970 for appointment to the
service on the basis of 40 per cent of marks in aggregate
disregarding the minimum marks fixed for viva voce. The
Commission refused to accept the suggestion but subsequently
in pursuance of the decision taken by the high level
committee it forwarded the list of 37 unsuccessful
candidates of 1970 examination who had obtained 40 per cent
or more marks in the aggregate but had not qualified in the
viva voce. The Commission by its letter dated 19th June,
1974 for varded the list of 37 candidates to the State
Government. The Commissioner’s letter shows that it had not
approved the appointment of those included in the third list
as they had failed to secure minimum prescribed marks in the
viva voce test. During the course of hearing before us,
serious dispute and doubt was raised on the genuineness of
the annexure to the letter on behalf of the “unplaced
candidates.” It was suggested on their behalf that the
Commission had approved and recommended the names mentioned
in the third list for appointment and that it had no where
stated that they were unsuccessful candidates or that they
had not been found suitable by the Commission. In order to
resolve this
822
controversy, on our directive, the State Counsel produced
the original A of the letter before the Court and on a
perusal of the same we found that the Commission had neither
in the body of the letter nor in the annexure appended
thereto ever expressed its views that the candidates
mentioned therein had been found suitable by it. On the
contrary, the note appended to the list which was annexed to
the letter clearly stated that the candidates mentioned in
the list had not been found suitable by the Commission. This
would clearly show that the unplaced candidates (those
included in the third list) were unsuccessful at the
competitive examination and their names were not included in
the list of approved candidates as contemplated by Rule 19
as they had failed to obtain the minimum marks in the viva
voce test. The Commission had never made any recommendation
for their appointment ( instead under the influence of the
Government, it had forwarded the list without its
recommendation. The appointment of unplaced candidates made
in pursuance of the decision taken by the high level
committee, is not countenanced by the Rules. There is no
escape from the conclusion that the unplaced candidates were
not appointed to the service on the basis of the result of
the competitive examination of 1970. Their appointment was
made in breach of the Rules, in pursuance to the decision of
the high level committee. It is well-settled that where
recruitment to service is regulated by the statutory rules,
recruitment must be made in accordance with those Rules, any
appointment made in breach of rules would be illegal. The
appointment of 2 1 “unplaced candidates” made out of the
third list was illegal as it was made in violation of the
provisions of the Rules. The high level committee which took
decision for recruitment of candidates to the service on the
basis of the 40 per cent aggregate marks disregarding the
minimum marks fixed by the Commission for viva voce test had
no authority in law, as the Rules do not contemplate any
such committee and any decision taken by it could not be
implemented.
We are surprised that the Chief Justice, Chief Minister
as well as the Chairman of the Commission agreed to adopt
this procedure which was contrary to the Rules. The high
level committee even though constituted by. highly placed
persons had no authority in law to disregard the Rules and
to direct the Commission to make recommendation in favour of
unsuccessful candidates disregarding the minimum marks
prescribed for the viva voce test. The high level
committee’s view that after the amendment of Rule 19, the
minimum qualifying marks fixed for viva voce could be
ignored was wholly wrong. Rule 19 was amended in January
1972, but before that 1970 examination had already been
held. Since the amendment was not retrospective the
823
result of any examination held before January 1972 could not
be determined on the basis of amended Rules. The Public
Service Commission is a constitutional and independent
authority. It plays a pivotal role in the selection and
appointment of persons to public services. It secures
efficiency in the public administration by selecting
suitable and efficient persons for appointment to the
services. The Commission has to perform its functions and
duties in an independent and objective manner uninfluenced
by the dictates of any other authority. It is not sub-
servient to the directions of the Government unless such
directions are permissible by law. Rules vest power in the
Commission to hold the competitive examination and to select
suitable candidates on the criteria fixed by it. The State
Government or the high level committee could not issue any
directions to the Commission for making recommendation in
favour of those candidates who failed to achieve the minimum
prescribed standards as the Rules did not confer any such
power on the State Government. In this view even if the
Commission had made recommendation in favour of the unplaced
candidates under the directions of the Government the
appointment of the unplaced candidates was illegal as the
same was made in violation of the Rules.
On behalf of the respondents the “unplaced candidates”
it was contended that there was acute shortage of
Munsif/Magistrates in the State as a result of which large
number of cases were pending in the courts. In order to meet
the shortage of Munsifs State Government and the high level
committee, keeping in view the amendment of Rule 19
suggested to the Commission to recommend the names of those
candidates who may have obtained 40 per cent or more marks
in the aggregate disregarding the minimum qualifying marks
fixed for the viva voce test in the examination of 1967,
1968, 1969 and 1970. It was urged that the suggestion of the
committee was accepted by the Commission and therefore it
forwarded the names of 37 candidates for appointment to the
service. We have already noticed that the Commission never
agreed to the proposal. The Chairman of the Commission was a
member of the high level committee but the Commission never
took any decision to accept the proposals of the high level
committee. No material has been placed before the court to
support this contention. On the contrary, the Commission’s
letter dated 19th June 1974, clearly indicates that the
Commission as directed by the State Government merely
forwarded the list of 37 candidates of 1970 examination,
without making any recommendation and yet they were
appointed in service in breach of the Rules. But even if the
Commission had agreed to the Government’s suggestion, their
appointments continued to be
824
illegal, as the same were made in breach of Rules. There was
no justification for the appointment of the unsuccessful
candidates in 1975, because by that time result of 1972
examination had been announced and duly selected candidates
were available for appointment.
In this context, it is necessary to consider as to how
long the list of candidates for a particular examination can
be utilised for appointment. There is no express. provision
in the Rules as to for what period the list prepared under
Rule 19 can be utilised for making appointment to the
service. In the absence of any provision in the Rules a
reason able period must be followed during which the
appointment on the basis of the result of a particular
examination should be made. The State Government and the
Commission had announced 85 vacancies for being filled up
through the competitive examination of 1970. In normal
course, 85 vacancies could be filled on the basis of the
result of the competitive examination of 1970 but if all the
vacancies could not be filled up on account of non-
availability of suitable candidates, the appointment to the
remaining vacancies could be made on the basis of the result
of the subsequent competitive examination. The unfilled
vacancies of 1970 examination could not be filled after 5
years as subsequent competitive examinations of the year
1972 and of the year 1973 had taken place and the results
had been declared. The list prepared by the Commission on
the basis of the competitive examination of a particular
year could be utilised by the Government for making
appointment to the service before the declaration of the
result of the subsequent examination. If selected candidates
are available for appointment on the basis of the
competitive examinations of subsequent years, it would be
unreasonable and unjust to revise the list of earlier
examination by changing norms to fill up the vacancies as
that would adversely affect the right of those selected at
the subsequent examination in matters relating to their
seniority under rule 22. The 1970 examination could not be
utilised as a perennial source or in exhaustiable reservoir
for making appointments indefinitely. The result of a
particular examination must come to an end at some point of
time, like a “dead ball” in cricket. It could not be kept
alive for years to come for making appointments. The
practice of revising the list prepared by the Commission
under Rule 19 at the behest of the Government by lowering
down the standards and norms fixed by the Commission to
enable appointment of unsuccessful candidates is sub-versive
of rule of law. This practice is fraught with dangers of
favourtism and nepotism and it would open back door entry to
the service. We are, therefore, of the opinion that once the
result of the subsequent examination of 1972 was
825
declared, the Commission could not revise the list of
approved candidates of 1970 examination prepared by it under
Rule 19 at the behest of the Government by lowering down the
standard fixed by it.
In C. Channabasavaiah v. State of Mysore & Ors., l
1965] I SCR 360 the Mysore Public Service Commission made
selection and appointment to services in the Mysore State to
Class I and II posts of Administrative Services. After the
viva voce interviews were held the Commission published a
list of 98 successful candidates who were appointed. After
the announcement of the results, the State Government sent a
list of 24 candidates for the consideration of the
Government and the Commission approved it. These 24
candidates also were appointed. 16 candidates who had not
been selected filed a writ petition before the Mysore High
Court. During the pendency of the writ petition a compromise
was effected, as a result of an undertaking given by the
Government before the High Court and the 16 petitioners were
also appointed. Thereafter, some other candidates who had
not been selected, filed petition under Article 32 of the
Constitution before this Court challenging the selection of
24 candidates selected by the Government and the 16 persons
who had filed the writ petition. This Court set aside the
appointments made at the instance of the Government and of
the 16 writ petitioners. The Court observed:
“It seems surprising that Government should have
recommended as many a twenty four names and the
Commission should have approved of all those names
without a single exception even though in its own
judgment some of them did not rank as high as
others they had rejected. Such a dealing with
public appointments is likely to create a feeling
of distrust in the working of the Public Service
Commission, which is intended to be fair and
impartial and to do its work free from any
influence from any quarter.”
The procedure adopted for selection and the appointment
practiced discrimination in violations of Articles 14 and 16
of the Constitution. While setting aside the selection and
appointment the Court observed:
“It is very unfortunate that these persons should
be uprooted after they had been appointed but if
equality and equal protection before the law have
any meaning and if our public institutions are to
inspire that confidence which is expected of them
we would be failing in our duty if we did not,
even at the cost of considerable inconvenience to
826
Government and the selected candidates to do the
right thing.”
In Umesh Chandra Shukla v. Union of India & Ors., [ 1985] 3
SCC 72 1 a competitive examination was held for appointment
to the posts of subordinate Judges in Delhi Judicial
Service. Out of the candidates who appeared in the written
examination only 27 candidates could qualify for viva voce
test. The High Court approved the list of 27 qualified
candidates but having regard to the fact that some
candidates who had otherwise scored very high marks had been
kept out of the zone of consideration for final selection by
reason of their having secured one or two marks below the
aggregate or the qualifying marks prescribed for the
particular paper, the High Court directed that moderation of
two marks in each paper to every candidate be done. As a
result of moderation of two marks a second list was prepared
showing the names of eight more candidates who also
qualified for viva voce test. Petitions were filed by the
unsuccessful candidates challenging the procedure adopted by
the High Court and the selection committee in the
preparation of the final list of the successful candidates.
This Court struck down the list prepared by the High Court
after adding the moderation marks. The Court observed that
the High Court had no power to include the names of
candidates who had not initially secured the minimum
qualifying marks by resorting to the device of moderation,
particularly when there was no complaint either about the
question papers or about the mode of valuation. In striking
out the list prepared by the High Court, this Court
observed:
“Exercise of such power of moderation is likely to
create a feeling of distrust in the process of
selection to public appointments which is intended
to be fair and impartial. It may also result in
the violation of the principle of equality and may
lead to arbitrariness.”
We are in agreement with the views expressed in the
aforesaid decisions. The appointment of the unplaced
candidates of 1970 examination at the behest of the high
level committee was unwarranted by law and it was likely to
create a feeling of distrust in the process of selection for
appointment to public services which is intended to be fair
and impartial. The high level committee had no power to
lower down the standards fixed by the Commission with a view
to accommodate unsuccessful candidates in the judicial
services. The procedure adopted in appointing the unplaced
candidates of 1970 examination was unauthorised by law and
it practiced discrimination in violation of
827
Article 14 and Article 16 of the Constitution. A
The unplaced candidates were appointed to the service
in breach of the Rules and they form a separate class. They
cannot be equated with those who were appointed to the
service from the first and second list of 1970 examination
as their appointment was made on the recommendation of the
Public Service Commission. They remain unchallenged.
Similarly, candidates appointed to the service on the basis
of the result of the competitive examination of 1972 before
the unplaced candidates were appointed, formed separate
class as they were also appointed in accordance with the
Rules. The “unplaced candidates” of 1970 examination cannot
claim seniority over them on the basis of Rule 22 as their
appointment was not made on the basis of the list approved
by the Commission under Rule 19. In Shitla Prasad Shukla v.
State of U.P. & Ors. [1986] Supp. SCC 1985 this Court held
that an employee must belong to the same stream before he
can claim seniority vis-a-vis others. Those appointed
irregularly belong to a different stream and they cannot
claim seniority vis-a-vis those who may have been regularly
and properly appointed.
We have recorded findings that 21 unplaced candidates
of 1970 examination were appointed to the service illegally
in breach of the Rules. We would, however, like to add that
even though their appointment was not in accordance with law
but the judgment and orders passed by them are not rendered
invalid. The unplaced candidates are not usurpers of of
fice, they were appointed by the competent authority to the
posts of munsifs with the concurrence of the High Court,
though they had not been found suitable for appointment
according to the norms fixed by the Public Service
Commission. They have been working in the judicial service
during all these years and some of them have been promoted
also and they have performed their functions and duties as
de facto judicial officers. “A person who is ineligible to
judgeship, but who has nevertheless been duly appointed and
who exercise the powers and duties of the of fice is a de
facto judge, he acts validly until he is properly removed.”
Judgment and orders of a de facto judge cannot be challenged
on the ground of his ineligibility for appointment. This
doctrine in founded upon sound principles of public policy
and justice. In Achanti Sreenivasa Rao & Ors. v. State of
Andhra Pradesh, [1981] 3 SCC 133 the de facto doctrine in
relation to a judicial officer was considered at length.
Chinnappa Reddy, J. speaking for the court observed:
“A judge, de facto, therefore, is one who is not a
mere
828
intruder or usurper but one who holds office,
under colour of lawful authority, though his
appointment is defective and may later be found to
be defective. Whatever be the defect of his title
to the office, judgments pronounced by him and
acts done by him when he was clothed with the
powers and functions of the office, albeit
unlawfully, have the same efficacy as judgments
pronounced and acts done by a judge de jure. Such
is the de facto doctrine, born of necessity and
public policy to prevent needless confusion and
endless mischief. There is yet another rule also
based on public policy. The defective appointment
of a de facto judge may be questioned directly in
a proceeding to which he be a party but it cannot
be permitted to be questioned in a litigation
between two private litigants, a litigation which
is of no concern or consequence to the judge
except as a judge. Two litigants litigating their
private titles cannot be permitted to bring in
issue and litigate upon the title of a judge to
his office. Otherwise, so soon as a judge
pronounces a judgment a litigation may be
commenced for a declaration that the judgment is
void because the judge is no judge. A judge’s
title to his office cannot be brought into
jeopardy in that fashion. Hence the rule against
collateral attack on validity of judicial
appointments. To question a judge’s appointment in
an appeal against his judgment is, of course, such
a collateral attack.”
We have adverted to this aspect of the case in order to
avoid any challenge to the validity of judgments and orders
by the unplaced candidates of the 1970 examination on the
ground on legal infirmity in their appointments. But having
regard to the period of 12 years that have elapsed we do not
propose to strike down their appointments.
Now the question arises as to what seniority should be
assigned to the unplaced candidates. Their claim for
assigning them seniority on the basis of the competitive
examination of 1970 is not sustainable in law as discussed
above. They were appointed to service after five years of
the examination and before their appointment competitive
examination of 1972 had taken place and candidates selected
under that examination had been appointed to service prior
to their appointment. The directions issued by the High
Court for rearranging the merit list of 1970 examination
seriously affect the seniority of those who were regularly
selected in accordance with the norms prescribed by the
829
Commission. Having regard to these facts and circumstances
of the case we are of the opinion that the view taken by the
High Court on its administrative side and the State
Government that the unplaced candidates of 1970 examination
should be assigned seniority below the last candidates of
1972 examination appointed to the service is just and
reasonable. In our opinion it would be just and proper to
assign seniority to the unplaced candidates of 1970
examination at the bottom of the list of 1972 candidates.
There were 37 unplaced candidates of 1970 examination who
were included in the third list, out of them 16 candidates
appeared in the 1972 examination and they were successful
and their names were approved by the Commission in the list
prepared under Rule 19. The State Government appointed them
in service. Under Rule 22 they are entitled to seniority of
1972 examination but in view of the judgment of the High
Court in Rafiquddin’s case their seniority has been
determined on the basis of their recruitment to service
under the 1970 examination. We have already recorded
findings that unplaced candidates of 1970 examination (as
included in the third list) have not been recruited in
service according to the Rules and their recruitment to
service cannot be treated under 1970 examination for
purposes of determining their seniority under Rule 22. We
have further directed that 21 unplaced candidates of 1970
examination should be placed below the candidates of 1972
examination But so far as 16 remaining candidates are
concerned, they were appointed to the service on the result
of 1972 examination and their appointment does not suffer
from any legal infirmity. They are therefore entitled to
seniority of 1972 examination on the basis of their position
in the merit list of that examination. They are however not
entitled to the seniority of 1970 on the basis of the
examination of that year as held by the High Court.
We accordingly set aside the order of the Division
Bench dated 30.3.1982 and direct the High Court and the
State Government to determine the seniority of the 21
unplaced candidates of 1970 examination by placing them at
the bottom of the candidates appointed on the result of 1972
examination. We accordingly allow Civil Appeal No. 4023 of
1982 and Civil Appeal No. 4024 of 1982.
Civil Appeal No. 3736 of 1982.
This appeal is directed against the judgment of another
Division Bench of the High Court consisting of Satish
Chandra and A.N. Verma, JJ. dated 30th March, 1982. The
appellants appeared at the 1970 examination but they
remained unsuccessful as they had failed to
830
secure 35 per cent of minimum marks at the viva voce test,
although they had secured higher marks in the aggregate then
those selected and appointed. They challenged the selection
made in pursuance of 1970 examination. The Division Bench
held that since the minimum marks fixed for viva voce test
was integral part of the examination and as the appellants
had failed to secure the requisite minimum marks in viva
voce test, they. were not entitled to selection. The view
taken by the Division Bench is consistent with our view.
Accordingly, we dismiss the appeal.
Writ Petition 4636 of 1982.
The Petitioner O.P.. Aggarwal was unsuccesful at the
1970 examination as he failed to obtain the minimum marks
prescribed for viva voce test, although he had obtained more
than 40 per cent marks in the aggregate. For the reasons
stated earlier he cannot be granted relief of appointment to
the service. Further he is disentitled to any relief on the
ground of inordinate delay. The validity of the examination
of 1970 was challenged before this Court in 1982. There is
no plausible explanation for the delay. The petition is
liable to be dismissed and we accordingly dismiss it.
Writ Petition No. 12818 of 1984.
The petitioner was recruited to the service on the
basis of the competitive examination of 1972. He is
aggrieved by the direction issued by the Division Bench of
the High Court in Rafiquddin’s case, as his seniority was
affected adversely. We have already taken the view that the
unplaced candidates of 1970 examination cannot be senior to
the candidates appointed in the service as a result of the
1972 examination. The writ petition succeeds to that extent.
Transfer Case No. 15 of 1987.
The petitioners were recruited to the U.P. Nyayayik
Seva on the basis of the result of the competitive
examination of 1972. They are aggrieved by the direction
issued by the Division Bench in Rafiquddin’s case for
rearranging the seniority. Since we have already expressed
the view that the unplaced candidates of 1970 examination
are not entitled to seniority over the candidates appointed
to the service on the result of the 1972 Examination. The
petition is to succeed partly.
Writ Petition No. 13047 of 1985.
831
The petitioner was appointed to service on 22nd
November 1976 on the basis of the result of the 1973
examination. His main grievance is that respondent Nos. 3 to
15 to the petition have been shown senior to him although
they were appointed in service between May 1976 to November
1977 on the basis of the result of competitive examination
of 1972. Since the respondents were treated senior by the
High Court, they were promoted to the post of Chief Judicial
Magistrate/Civil Judge ignoring the petitioner’s claim. On
behalf of the petitioner, two submissions were made: (i)
respondent Nos. 3 to 15 were appointed later in time,
consequently they cannot- be treated senior to the
petitioner; (ii) the selection and appointment of respondent
Nos. 3 to 15 was against rules and as such they are not
entitled to seniority over the petitioner who is a regularly
selected candidate.
We do not find any merit in either of the two
submissions. Rule 22 lays down criteria for determination of
the seniority of members of service. It directs that the
seniority shall be determined on the basis of the year of
examination which means that a person recruited to the
service in pursuance of the result of a particular year of
examination would rank senior to the candidate who is
recruited to service in pursuance of result of subsequent
year of examination although he may have actually been
appointed earlier in time. After the selection of
candidates, several formalities are followed before
appointment is made under Rule 2 1. The selected candidates
are required to undergo medical examination, their character
and antecedents are verified and the approval of High Court
is obtained and only thereafter the Governor appoints them
by issuing notification. Many a time, this process causes
delay in making the actual appointment and in that process
sometimes persons selected on the basis of subsequent
examination are appointed before the successful candidates
of earlier examination are appointed. But in view of Rule 22
the latter shall be senior to the former inrrespective of
the date of appointment. Since there has been no challenge
to Rule 22 and the appointment is not shown to be illegal
for the reasons which we presently give, it must be applied
in its plain terms in determining the seniority of those
recruited to service in accordance with Rules. The
petitioner was appointed in service on the basis of the
result of the 1973 examination while respondent Nos. 3 to 15
were recruited to service on the basis of the result of the
1972 examination. Therefore, according to Rule 22, the
respondent Nos. 3 to 15 are entitled to be senior to the
petitioner. The mere fact that the petitioner was appointed
few months before the respondent Nos. 3 to 15 were
appointed, cannot override the express provision of Rule 22.
832
As regards, the second submission raised on behalf of
the petitioner, we do not find any illegality in the
appointment of respondent Nos. 3 to 15. The competitive
examination of 1972 was held for recruiting 150 candidates,
the examination was held in 1973 and 1974. 16 successful
candidates of 1972 examination were included in the list of
37 unplaced candidates of 1970 examination and the
Government 13 had appointed them in service treating them as
unplaced candidates of 1970 examination. On the request of
the State Government, the Public Service Commission made
recommendation in favour of 16 more candidates on the basis
of result of 1972 examination which included the name of
respondent Nos. 3 to 15 and they were appointed to the
service between May 1976 to November 1977. Their appointment
in service was made by the State Government on the
recommendation of Public Service Commission made in
accordance with Rule 19 as they had obtained the requisite
aggregate marks in the written and viva voce test. Unlike
the 21 unplaced candidates of 1970 examination respondents 3
to 15 were appointed in accordance with the Rules, they are
therefore entitled to their seniority in terms Rule 22. We
find no merit in the petition.
Before we close we would like to refer certain aspects
which came to our notice during the hearing of the case
relating to the functioning of the Public Service
Commission, selection of candidates and their appointment to
the Judicial Service. We were distressed to find that the
Public Service Commission has been changing the norms fixed
by it for considering the suitability of candidates at the
behest of the State Government after the declaration of
results. We have noticed that while making selection for
appointment to the U.P. Judicial’ Service the Commission had
initially fixed 40 per cent aggregate marks and minimum 35
per cent marks for viva voce test and on that basis it had
recommended list of 46 candidates only. Later on at the
instance of the State Government it reduced the standard of
40 per cent marks in aggregate to 35 per cent and on that
basis it forwarded a list of 33 candidates to the Government
for appointment to the service. Again at the behest of the
State Government and with a view to implement the decision
of the high level committee consisting of Chief Justice,
Chief Minister and the Chairman of the Commission forwarded
name of 37 candidates in 1974 ignoring the norms fixed by it
for judging the suitability of candidates. The Commission is
an independent expert body. It has to act in an independent
manner in making the selection on the prescribed norms. It
may consult the State Government and the High Court in
prescribing the norms for judging the suitability of
candidates if no norms are prescribed in the Rules. Once the
Commis
833
sion determines the norms and makes selection on the
conclusion of the competitive examination and submits list
of the suitable candidates to the Government it should not
reopen the selection by lowering down the norms at the
instance of the Government. If the practice of revising the
result of competitive examination by changing norms is
followed there will be confusion and the people will lose
faith in the institution of Public Service Commission and
the authenticity of selection. The State Government had made
a preposterous suggestion to the Commission that
unsuccessful candidates of 1967, 1968, 1969 should be
selected and recommended for appointment by ignoring the
marks obtained by them in viva voce test. If the Commission
had accepted the Government’s suggestion and forwarded the
list and appointments had been made in 1975 as was done in
the case of unplaced candidates of 1970 examination, it
would have made a mockery of the entire system. We are of
opinion that the Commission should take firm stand in these
matters in making the selection in accordance with the norms
fixed by law or fixed by it in accordance with law
uninfluenced by the directions of the State Government
unsupported by the Rules.
We have noticed that a retired Judge of the High Court
is appointed as an expert to assist the Commission in making
the selection for appointment to the Judicial Service. This
practice is not desirable . In A. K. Yadav’s case a
Constitution Bench of this Court observed that when
selection for judicial service of the State is made it is
necessary to exercise the utmost care to see that competent
and able persons possessing a high degree are selected
because if we do not have good competent and honest judicial
officers the democratic quality of the State itself will be
in serious peril. It is therefore essential that when
selections to the judicial service are being made a sitting
Judge of the High Court should be nominated by the Chief
Justice of the State to participate in the interview as an
expert. The Constitution Bench further observed that a
sitting High Court Judge would be in a better position to
give advice to the Commission in the matter relating to
selection of suitable candidates and his advice would be
binding on the Commission unless there are strong and cogent
reasons for not accepting such advice and such strong and
cogent reasons must be recorded in writing by the Chairman
and members of the Commission. The Constitution Bench had
issued directions to the Public Service Commission of every
State to follow this direction but it appears that in the
State of U.P. this direction is not being followed. We
therefore direct that in future selection for appointment to
the Judicial Service shall be made by the Commission on the
expert advice of a sitting
834
Judge of the High Court nominated by the Chief Justice.
There is another aspect which requires consideration.
Seniority of officers recruited to the service is determined
on the basis of the year of the competitive examination
under which they are recruited. We have noticed that
generally there is a considerable interreguum between
holding of the examination and the appointment of the
selected candidates. Those selected under 1970 examination
were appointed in 1973, 1974, and 1975 while those selected
under the 1972 examination were appointed in 1975 and 1976
and also in 1977. Similarly the successful candidates of
1973 examination were appointed in 1976 and 1977. No system
was followed in making appointments as some of the
candidates selected in subsequent examination were appointed
earlier to those selected under the earlier examination,
with the result those appointed to the service later in time
are made senior to those appointed in service earlier in
time in accordance with Rule 22. This causes heart burning
and other complications. In order to avoid these
complications it is necessary that every effort should be
made to appoint the successful candidates of a particular
examination before any candidate of subsequent examination
is appointed. If for some reason this is not possible the
State Government and the High Court both should consider the
desirability of amending the Rule 22 to ensure that the
length of service rendered by an officer is respected.
In the result, Civil Appeal No. 4023 of 1982 and Civil
Appeal No. 4024 of 1982 and allowed. Civil No. 3736 of 1982
is dismissed. Writ Petition No. 4636 of 1982 and Writ
Petition No. 13047 of 1985 are dismissed Writ Petition No.
128 10 of 1985 and Transfer Case No. 15 of 1987 (transferred
petition) are allowed partly. There will be no order as to
costs in these cases.
S.L
835