IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: .12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MR.JSTICE N.PAUL VASANTHAKUMAR WRIT PETITION NOs.25778 and 26588 OF 2010 and connected miscellaneous petitions .. V.Yamuna Devi .. Petitioner in WP.No.25778 of 2010 Venkateswaran .. Petitioner in WP.No.26588 of 2010 Vs. 1.The Registrar General High Court, Madras. 2.The Government of Tamil Nadu Rep. by its Secretary to the Government Public (Special-A) Department Secretariat, Chennai 9. 3.R.Sakthivel (R.3 is representing R.4 to R.105) 4.T.S.Nandakumar 5.P.Dhanabal 6.S.Shaji Bino 7.N.Ramesh 8.S.Pandiarajan 9.A.Nazeema Banu 10.V.Senthil Murugan 11.VR.Shanmuganathan 12.A.Edwin Prabakar 13.M.Sadiq Basha 14.S.Mahesh Babu 15.A.Kanthakumar 16.P.Murugan 17.S.Karthikeyan 18.S.Balaraman 19.C.R.Gowthaman 20.V.Gunasekaran 21.T.Shanmuga Boopathi 22.S.Karnan 23.C.Kumarappan 24.K.Chenthil Kumar 25.K.Dhanasekaran 26.V.Esaikumar 27.M.Manikandan 28.S.Sounthar 29.I.Stephen 30.R.Shanmuga Sundaram 31.Chinnaraja G Naidu 32.T.Muthukumar 33.R.Karl Marx 34.N.Suresh 35.B.Ratha 36.S.Gopalamanikandan 37.S.Deenadhayalan 38.S.Mythili 39.M.D.Sumathi 40.P.Arun Jayat Ram 41.S.Subadevi 42.H.Aurumugam 43.A.Chellapandian 44.V.Raja 45.P.Sivakumar 46.S.Suresh Kumar 47.M.Suresh Viswanathan 48.M.Chenthura Pandiyan 49.S.N.Dhananjeyan 50.D.Gopinath 51.M.Jothiraman 52.D.Karthikeyan 53.P.Selvi 54.S.Senthilrajan 55.A.Xavier Pandian 56.R.Anburaj 57.K.Rajasekar 58.P.Chellum 59.M.Mohamed Riyaz 60.S.Anil Sandeep 61.S.Annamalai 62.S.Janarathanam 63.T.R.Narayanan 64.K.Porkodi 65.S.Ettieswaran 66.M.S.Karthikeyan 67.S.Kiruba Vijay Anand 68.E.Nalla Maharajan 69.R.Poornima 70.A.K.A.Rahmaan 71.R.Sumithra 72.C.Kumaresan 73.P.Murugan 74.K.Pandian 75.V.Praburam 76.R.Prem Anand 77.G.Senthilkumar 78.M.R.Thangavel 79.R.Saravanan 80.M.Ponniah 81.K.H.Elvazhagan 82.R.Barathiraja 83.N.Gunasekaran 84.S.Jeevagan 85.N.Sivakumar 86.D.Lingeswaran 87.A.Nambunayagam 88.G.Gengaraj 89.T.G.Kavitha 90.A.P.Srinivas 91.N.S.Sivakumar 92.S.P.Maharajan 93.R.Raja 94.S.Umar Farooq Raja 95.G.Sendil Kumaran 96.A.Vijayarajan 97.S.Chella Mani 98.N.Vijayaraj 99.H.Nagarajan 100.N.Srinivasan 101.C.Jotheeswaran 102.P.Ganapathi Subramanian 103.M.Paramasivam 104.C.Sanjai Baba 105.P.Senthil Kumaran .. Respondents in WP.No.25778 of 2010 1.The Registrar General High Court, Madras. 2.The Government of Tamil Nadu Rep. by its Secretary to the Government Public (Special-A) Department Secretariat, Chennai 9. .. Respondents in WP.26588 of 2010 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.N.G.R.Prasad in WP.25778/2010 For petitioner : Mr.R.Sankarasubbu in WP.26588/2010 For respondents : Mr.R.Muthukumarasamy,Sr.Counsel in both the cases for Mr.V.Ayyadurai for R.1 Mr.A.C.Manibharathi for R.2 .. COMMON ORDER P.JYOTHIMANI,J.
The petitioners, practicing lawyers belonging to Adi-Dravida Community (which is a scheduled caste) and Backward Class community respectively, have applied for the post of District Judge (Entry Level), pursuant to the notification issued by the Government. Having taken part in the written examination conducted by the High Court of Madras and having failed to get their names short-listed for the viva-voce, they have filed the present writ petitions challenging the short-list of candidates published by the respondents 1 and 2 for viva-voce for direct recruitment to the post of District Judge (Entry Level) and also for direction to the respondents 1 and 2 to prepare a valid short-list of candidates by giving weightage for the years of practice at the Bar and a proper zone for women candidates on par with men candidates and challenging the notification with direction to revalue the answer sheets by an independent expert Committee respectively.
2. As it is seen in the notification issued by the Government dated 24.6.2010 and subsequent corrigendum dated 27.10.2010, applications were called for filling up of the posts of District Judge (Entry Level) in the Tamil Nadu State Judicial Service to be filled up through direct recruitment. The recruitment process is governed by the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 (in short, “the Rules”). The applications were called for from advocates or pleaders in India having not less than 7 years of practice and practicing on the date of notification. The vacancy position as per the said notification was as follows:
General Turn 4(1 woman) Scheduled Caste (Arunthathiyars on preferential Basis) 1 (1 woman) Most Backward Classes and Denotified Communities 4 (1 woman) Backward Classes (Other than Backward Class Muslims) 4 (1 woman) Scheduled Castes 3 (1 woman) Backward Class Muslims 1
a) Out of the total 17 vacancies, five have been allotted for woman candidates in each of the categories of reservation. As per the notification, the selection is made based on the results of the written examination and viva-voce stating that the total marks obtained by the candidates in the written examination and viva-voce would be taken together, subject to the rule of reservation. The maximum marks allotted for written examination is 75 marks while for viva-voce it is 25 marks as per the notification.
b) The written examination, as per clause 7 of the notification, is stated to be for three hour duration involving three papers, viz., Law Paper Part-I (Civil), Law Paper Part-II (Criminal) and Law Paper Part-III (General) each carrying 25 marks to a total of 75 marks. In the said notification it is also stated that the written examination would precede the viva-voce examination and as to the short-listing of candidates, the length of practice at the Bar and the marks obtained by them in the written examination would be considered and such short-listed candidates alone would be called for viva-voce examination.
c) It is, based on the said explicit contents in the notification, the petitioners applied for the post of District Judge (Entry Level) in the Tamil Nadu State Judicial Service. Under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, which have been framed by the Governor of Tamil Nadu in consultation with the High Court and the Government of Tamil Nadu under Article 309 of the Constitution of India, three avenues are provided viz., (i) 50% by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrate/Chief Metropolitan Magistrate/Metropolitan Magistrates, on the basis of principle of merit-cum-seniority and suitability; (ii) 25% by promotion from amongst the Civil Judges (Senior Division), etc., on the basis of merit through limited competitive examination and viva-voce test as prescribed and conducted by the High Court; and (iii) 25% by direct recruitment from amongst the eligible advocates on the basis of written and viva-voce test prescribed and conducted by the High Court.
3. In the present writ petitions, we are concerned with the last category viz., direct recruitment from amongst the eligible advocates, in respect of which the following qualifications are prescribed as per the rules:
a) must possess a degree in law of a University in India, established or incorporated by or under a Central Act or a State Act or an institution recognized by the University Grants Commission or any other equivalent qualification and got enrolled in the Bar Council of Tamil Nadu and in the case of candidates enrolled in the Bar Councils of other States, they should submit proof of transfer of their enrollment to the Bar Council of Tamil Nadu;
b) must be practicing on the date of notification as an advocate and must have so practiced for a period of not less than seven years as on such date; and
c) must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year in which the selection for appointment is made.
4. As per rule 9 of the said Rules, all rules regulating the conditions of service of the members of the State Civil Services made from time to time under any law or under the proviso to Article 309 of the Constitution of India subject to Articles 233, 233A, 234 and 235 of the Constitution of India would apply. Again, rule 10 which relates to the reservation of appointments also states that rules 21(b) and 22 of the General Rules for the Tamil Nadu State and Subordinate Service relating to reservation of appointment shall apply for the selection to the post of District Judge (Entry Level) by direct recruitment.
5. As per Annexure-I to the said Rules, the relevant portion of which is as follows:
DISTRICT JUDGE (ENTRY LEVEL) BY DIRECT RECRUITMENT
(1) The Government, in consultation with the Madras High Court shall invite applications for filling up the post of District Judge (Entry Level) by Direct Recruitment.
The High Court shall conduct the written examination and viva-voce as specified below for selection of District Judge (Entry Level) by Direct Recruitment.
(2) A candidate shall, along with his application-
(a) If he/she is an Advocate or Pleader, produce from the Presiding Officer of the Court in which he/she is actually practicing, a certificate indicating the length of his/her practice.
(b) If he/she is an Assistant Public Prosecutor, Grade I or an Assistant Public Prosecutor, Grade II, produce from the Collector of the District concerned a certificate indicating the length of his/her service.
(c) Produce a certificate of good character, from a Senior Advocate/counsel and another from a responsible person, not being a relative but who is well acquainted with him/her in private life.
The selection shall be made based on the results of written examination and viva-voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva-voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva-voce shall be 75% and 25% respectively
The Notification enlisting the successful candidates prepared under these rules shall be published in the Tamil Nadu Government Official Gazette and it shall cease to be operative as from the date of Publication of the next list of successful candidates prepared under these rules, in the Tamil Nadu Government Official Gazette.”
the selection is made based on the total marks obtained by the candidates in the written examination and viva-voce would be taken together, as stated above.
6. In the Annexure-II to the Rules which relate to the appointment of Civil Judge (Junior Division) by direct recruitment, which also contains the written examination as well as viva-voce, a detailed procedure has been earmarked and in that regard, it is stated that, the minimum marks for a pass in each written examination shall be 30% for candidates belonging to SC and ST, 35% for candidates belonging to BC and MBC/DNC and 40% for others. In that regard, it is the Tamil Nadu Public Service Commission which invites applications and conducts the written examination and viva-voce.
7. In respect of appointment of District Judge (Entry Level), as it is seen in the Annexure-I, the Government in consultation with the Madras High Court, invites applications and the High Court conducts the written examination and viva-voce.
8. The said rule along with the Annexure is in accordance with the constitutional mandate, in respect of appointment of District Judges, as enunciated under Articles 233 and 235 of the Constitution of India, viz.,
” 233. Appointment of district judges.-
(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.”
” 235.Control over subordinate Courts.-
The total control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.”
which entrusts the appointment and promotion of District Judges with the Governor of the State in consultation with the High Court.
9. The rules 21(b) and 22 of the General Rules as mentioned in rule 10 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, relate to the appointment of women and reservation of appointment respectively. In respect of appointment of women, rule 21(b) of the General Rules specifically states as follows:
Rule 21. Appointment of women.
(a) xxx
(b) A minimum of 30% of all vacancies which are to be filled through direct recruitment shall be set apart for women candidates irrespective of the fact whether the rule of reservation of appointment applies to the post or not. In respect of the posts to which the rule of reservation of appointments applies, 30% of vacancies shall be set apart for women candidates following the existing reservation for Scheduled Castes and Scheduled Tribes, Backward Classes, Most Backward Classes/De-notified Communities and General Turn. Women Candidates shall also be entitled to compete for the remaining 70% of vacancies along with male candidates.
Provided that in the case of direct recruitment to the posts in the scale of pay, the minimum of which does not exceed Rs.4000/- ten percent of vacancies out of 30% vacancies set apart for women shall be set apart for destitute widows and the first vacancy in every ten vacancies set apart for women in each category namely the General Turn, Backward Classes, Most Backward Classes/De-notified Communities, Scheduled Castes or Scheduled Tribes shall be set apart for destitute widows. If no qualified and suitable destitute widow is available, the turn so set apart for destitute widow shall go to the women (other than destitute widow) belonging to the respective category.
Explanation: In this rule, the expression destitute widow shall have the same meaning as in the Explanation under sub-rule(d) of Rule 12.
10. In respect of rule 22 which relates to reservation of appointments, the unit of selection for appointment is taken as 100 of which 18 shall be reserved for Scheduled Castes, one for Scheduled Tribes, 30 for backward Classes, 20 for Most Backward Classes and De-notified communities and 31 shall be filled up on the basis of merit. Therefore, the principle of reservation by allotment of various percentage as stated above, is vertical in nature in each and everyone of categories of reservation whereas, the appointment of women to the extent of 30% of vacancies is on horizontal basis, where women candidates who are to be filled up in each of the categories, are also entitled to compete for the remaining 70% of vacancies along with male candidates, on merit.
11. The petitioner in WP.No.25778 of 2010, who was given registration No.022530 and the petitioner in WP.No.26588 of 2010 with registration No.022459 were allowed to write examination pursuant to their applications along with other candidates, numbering 2047 in total. It was, on the basis of performance in the written examination, the High Court short-listed 103 candidates for the purpose of calling them for viva-voce. As it is seen in the list of candidates short-listed for viva-voce furnished by one of the petitioners in the typed-set of papers, the last four candidates in sl.Nos.100, 101, 102 and 103 have obtained 37.5 marks out of 75, while the first candidate short-listed obtained 61 marks out of 75. The petitioner in WP.No.25778 of 2010 secured 27.25 marks and the petitioner in WP.No.25688 of 2010 secured 20 marks and therefore, their names did not find place in the short-listed candidates for viva-voce examination.
12. The main grievance of the petitioner in WP.No.25778 of 2010, as it is seen from the affidavit filed by her is that while short-listing the candidates, the first respondent ought not to have merely considered the marks obtained in the written examination alone and as per the terms of notification, weightage should have been given for the length of practice at the Bar. According to her, if such weightage was given to her, since she has the Bar experience of 16 years, she would have got a fair chance of being included in the short-listed candidates for viva-voce examination. Therefore, according to her, the short-listing was done contrary to the terms of the notification which contemplates for the weightage to be given for Bar experience.
13. It is her further grievance, as it is seen from the affidavit filed by her that out of the short-listed candidates eligible for viva-voce test, in respect of 12 posts meant for men candidates, 92 men candidates have been short-listed, while in respect of 5 vacancies reserved for women, only 11 women candidates were short-listed and therefore, according to her, the zone of consideration has not been arrived at on the basis of proper proportion. In other words, according to her, equal proportion of men and women candidates should have been called for, so as to equalize the zone of consideration at 1:8 as stated to have been followed by the first respondent in short-listing the candidates for viva-voce.
14. Incidentally, the petitioner has also chosen to state that she understands that no dummy numbers were allotted to candidates for correction of papers and there was no proper guideline and therefore, according to her, the selection can only be presumed to be arbitrary. It is also her case that 25% of marks allotted for interview has no basis and that the examination and selection process should have been entrusted to an outside agency like, Law University, since it is stated that some of the relatives of Honble Judges happened to be the candidates. According to her, non-calling her for viva-voce is discriminatory.
15. The grievance of the petitioner in WP.No.26588 of 2010 is that he has applied for revaluation of answer papers on 27.10.2010, which was not considered by the first respondent and that the selection process should not have been conducted by the High Court.
16. In the counter affidavit filed by the first respondent in WP.No.25778 of 2010, it is stated that the writ petition is not maintainable for the reason that the notifications calling for applications for appointment to the posts of District Judge (Entry Level) dated 24.6.2010 and 10.7.2010 were challenged earlier and a Division Bench has already upheld the validity of the notifications. Further, it is stated that the petitioner having participated in the selection process by appearing in the written examination, knowing fully about the contents of the notification, has now chosen to approach this Court only due to the reason that she was not selected for viva-voce examination. It is stated that the notification which was issued by the Government as per the Rules provides that for the purpose of short-listing of candidates, after written examination, the marks obtained in the same and the length of service should be considered and only such short-listed candidates were called for viva-voce.
a) It is stated that pursuant to the notification, 2047 candidates appeared for written examination conducted on 3.10.2010 including the petitioner and since large number of candidates appeared for the examination, it became necessary to short-list the candidates for viva-voce. It is stated that considering the number of vacancies and by following the distribution pattern mentioned in the notification, from among the merit list which was based on the marks secured in the written examination, serial Nos.1 to 103 were short-listed and that the short-listing was done taking into consideration the rule of reservation and merit. b) It is stated that the short-list of candidates contains all categories of reservation and the short-list was notified and viva-voce was called and conduced between 11.11.2010 and 13.11.2010 and based on the performance in the viva-voce, along with the marks obtained by the candidates in the written examination, select list was drawn and sent to the Government on 13.11.2010. It is also stated that 11 women candidates were called for viva-voce on the basis of marks obtained in the written examination.
c) In respect of weightage to be given for the length of practice, it is stated that the statutory rules framed only contemplate selection through written examination and viva-voce with 75% of marks in written examination and 25% in viva-voce and the rules do not enable consideration of weightage or awarding of marks for the length of practice of the candidates. It is the case of the first respondent in the counter affidavit that the weightage for Bar experience as found in clause-7 of the notification only means that while short-listing, when two or more candidates secure equal marks, the length of practice will be considered as a criterion for assigning rank by giving preference among them.
d) It is also stated that the said clause-7 itself came to be challenged earlier in W.P.No.15566 of 2010 reported in K.Appadurai vs. The Secretary to Government, Public (Special A) Department [2010 (5) CTC 1] to the effect that the consideration of such Bar experience would amount to going beyond 100 marks and the said writ petition was dismissed accepting the stand of the first respondent as to the manner proposed to be done while implementing the notification, as stated above, and therefore, according to the first respondent, it is not open to the petitioner to reagitate the case once again. It is stated that the reservation for women is on horizontal basis and therefore, there is no question of preparation of separate zone for consideration for women because, women candidates are entitled to be fit in any of the categories subject to 30%.
e) It is also stated that the reservation itself cannot be claimed as a matter of right under Article 16 of the Constitution of India and the same is subject to Article 335 of the Constitution of India, as laid down by the Supreme Court and fixation of cut-off marks for each category of reserved communities is not a required condition and non-fixation thereof cannot be said to be violative of Articles 14 and 16 of the Constitution of India.
f) It is further stated that, in fact, dummy numbers were allotted to the answer scripts before giving them for valuation, and other allegations regarding arbitrariness are also denied. It is stated that sufficient number of candidates belonging to Scheduled Caste/Scheduled Tribes, Backward Community, Most Backward Community/De-notified community were available and therefore, there was no need for relaxation of marks, especially with reference to Scheduled Caste community.
g) It is also stated that the viva-voce was conducted by the Honble Judges of this Court and it is not necessary to issue any guideline for viva-voce. It is also stated that deploying of outside agency for appointment of District Judges is not permissible and the selection process was done by the High Court and the short-listing was done in a proper manner with proper reasonings.
17. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner in WP.25778 of 2010 has made the following submissions:
i) As per the notification, the marks obtained in the written examination and viva-voce have to be taken together for the completion of selection process and therefore, after written examination is completed, there is no power on the part of the first respondent to reduce the number of candidates to be called for interview. Even though ultimately he accepts that large number of candidates that is, 2047 in total, have written examination and therefore, it may not be possible for calling each and every one of them for viva-voce examination, according to him, there should be a clear methodology for the purpose of calling the number of candidates for viva-voce examination. He would also submit that since as per the list of candidates for viva-voce, the last candidate has obtained 37.5 marks out of 75, 50% marks have been taken as cut-off marks for which, according to the learned counsel, there is no rational basis. He would rely upon the judgments in Sanjay Singh and another vs. U.P.Public Service Commission, Allahabad and another [(2007) 3 SCC 720] and Durgacharan Misra vs. State of Orissa and others [(1987) 4 SCC 646].
ii) It is his next submission that if short-listing is made among large number of candidates who have appeared for written examination for the purpose of viva-voce, it should be done taking into account the length of service. According to him, when the notification issued by the first respondent contemplates the length of service to be taken into consideration, the same has not been followed and therefore, the procedure followed for the purpose of short-listing of candidates who appeared for written examination for viva-voce is opposed to the notification itself. According to him, the petitioner has put in more than 16 years of Bar experience and if that is taken together, she would get fair chance of being called for viva-voce test. It is his contention that for the purpose of appointment of the highest post in the District, viz., District Judge, what would be taken into consideration is the length of Bar experience as the persons with rich Bar experience would be having better quality in performing the functions of District Judge. Therefore, according to him, the procedure that has been followed is with total non-application of mind.
iii) It is his further submission that when for the Scheduled Castes and Scheduled Tribes candidates, relaxation in respect of age has been given, the absence of such relaxation in respect of marks in the written examination is opposed to the principles of reservation and the mandatory constitutional duty cast on the respondents in giving concession to the Scheduled Castes candidates and the relaxation of such standards for Scheduled Castes and Scheduled Tribes is permitted by long line of judgments in the interest of social justice for the purpose of creating a balance between the downtrodden community and others. He would rely upon the judgments in Ram Bhagat Singh and another vs. State of Haryana and another [(1997) 11 SCC 417] and Comptroller and Auditor General of India, Gian Prakash, New Delhi and another vs. K.S.Jagannathan and another [(1986) 2 SCC 679].
iv) He would further submit that among the candidates called for viva-voce numbering 103, the short-listing of which, according to him is without any rational basis, for 12 men candidates to be selected, 92 have been short-listed, while for five women candidates to be selected, only 11 have been short-listed and therefore, the zone of consideration between men and women has not been properly identified. According to him, if for men candidates 1:8 ratio is considered to be appropriate, why that has not been followed in respect of women candidates. He would also submit that the zone of consideration must be in respect of each category, community-wise and when that has not been followed, the selection process is vitiated.
v) He would also submit that earlier even though the Division Bench upheld the validity of the notification in the judgment reported in K.Appadurai vs. The Secretary to Government, Public (Special A) Department and another [2010 (5) CTC 1], the point here is as to whether non-taking of length of service into consideration would vitiate, which has not been considered by the Division Bench earlier and therefore, the petitioner is entitled to raise the same now.
vi) Learned counsel would submit that there appears to be certain bias since it has been widely noticed that some persons interested are finding place in the short-listed serial numbers and it is the duty of the judiciary to come out with clean hands in order to infuse confidence in the minds of people.
18. It is the contention of Mr.R.Sankarasubbu, learned counsel appearing for the petitioner in WP.No.26588 of 2010, that the petitioner, on 27.10.2010 has applied to the first respondent for furnishing xerox copy of his answer sheets with Postal Order for Rs.50/- and there was no reply. On receipt of the copy it can be decided as to whether revaluation can be ordered through an independent valuer and the first respondent cannot act arbitrarily by relying upon the judgment in East Coast Railways vs. Mahadev Appa Rao (2010 (5) Supreme 556).
19. Per contra, it is the submission of Mr.R.Muthukumarasamy, learned senior counsel for the first respondent that the validity of notification which has been challenged has already been upheld by the Division Bench of this Court in K.Appadurai vs. The Secretary to Government, Public (Special A) Department and another [2010 (5) CTC 1], in which the question of consideration of length of service has been argued at length and ultimately, the notification has been upheld. While meeting the argument regarding short-list of candidates, it is his submission that the said short-listing is acceptable and permissible as long as the same is reasonable. According to him, when large number of candidates have undergone written examination, the short-listing of candidates to the extent of 103 cannot be said to be unreasonable.
a) It is his submission that it is not as if 50% of marks in the written examination have been taken as cut-off mark and according to him, there is no cut-off mark fixed. He would submit that insofar as last four candidates in Sl.Nos.100 to 103 selected for viva-voce are concerned, all of them got 37.5% and therefore, all the four have been called for interview. Even if the ratio 1:6 is followed, it is sufficient to call 102 candidates for interview and since one more candidate has also got the same marks, he has been added and that itself shows the fairness in the selection process. It is his submission that the length of practice would be taken into consideration only if there is a tie between two candidates who obtained equal marks, for the purpose of selecting one among them and in fact the petitioner in WP.No.25778 of 2010 was given weightage for her Bar experience.
b) As far as the reservation is concerned, he would submit that while the grant of reservation to various categories on communal basis is vertical in nature, the allotment of posts and seats to various candidates either under women category or under physically challenged persons category is by way of horizontal reservation and in fact, the allotment of 30% seats to women cannot be held as reservation since in all categories of reservation, women candidates would be fit in horizontal manner and that is the zone of consideration. He has also contended that by judicial precedents, it has been established that the rights under Article 16(4) of the Constitution of India cannot be claimed as a matter of right.
c) It is his submission that while the notification speaks about the weightage for the length of practice, apart from the fact that the same is in the cases where there is tie between two candidates having secured the same marks, inasmuch as the rules governing the appointment in Judicial Service in respect of District Judges which are statutory in nature, do not enable to take such length of experience for the purpose of selection, the petitioner cannot, as a matter of right, claim that the length of experience put in by her at Bar should be taken into consideration. To support his contention that the calling of the candidates for viva-voce based on the examination is permissible, he would rely upon the judgment in Andhra Pradesh Public Service Commission vs. Baloji Badhavath and others [(2009) 5 SCC 1]. Of course, this has been vehemently opposed by Mr.N.G.R.Prasad, learned counsel for the petitioner on the basis that the said judgment is not applicable, since that relates to preliminary examination where large number of candidates write examination and there is final examination to be conducted and therefore, it cannot be said to be acceptable practice of short-listing the candidates.
d) It is the further submission of the learned senior counsel for the first respondent that the petitioner has not challenged the Rules/notification and therefore, it is not open to her to raise the points which were raised earlier. As far as the question of bias which has been raised, he would submit that the question of bias cannot be raised by the petitioner since no such pleading has been taken. It is his submission that the petitioners, having consciously known about the rules and taken part in the written examination, cannot question the validity of selection process. In this connection he would rely upon the judgment in Union of India and others vs. S.Vinodh Kumar and others [(2007) 8 SCC 100].
e) He would also submit that the petitioner in WP.No.25778 of 2010 is ranked Sl.No.422 as she secured 27.25 marks and there are five candidates including the petitioner who got the same marks. He would also state that in between Sl.Nos.104 and 422, there are 67 women candidates out of whom 8 are Scheduled Caste women candidates, who got higher marks than the petitioner. It is also stated by the learned senior counsel across the bar that like the petitioner, four other candidates, that is, totally five candidates in Sl.Nos.421 to 425 have obtained 27.25% marks and in order to avoid tie between the said candidates among them, Bar experience of the said five candidates were taken into consideration.
f) It is his submission that the selection process cannot be termed as arbitrary. While meeting the argument regarding weightage to be given for Bar experience, it is his submission that if such additional weightage of marks is to be given, the total marks would be more than 100, which is not permissible in law. For the purpose of bringing home his submission regarding zone of consideration of women candidates which is horizontal in nature, he would rely upon the judgment in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others [(2007) 8 SCC 785]. He would submit that in horizontal reservation, there is no scope for any further reservation and therefore, the plea of the petitioner for 30% reservation for women is not permissible.
g) While meeting the contention regarding the revaluation, he should submit that the Rules does not contemplate issuance of xerox copies of answer sheets or enable revaluation. When the process of selection is as per Articles 233 and 235 of the Constitution of India, there is no scope for revaluation. He would also submit that in the absence of specific rules or clause in the Notification for revaluation, the same cannot be claimed by the petitioner as a matter of right relying upon the judgment in Himachal Pradesh Public Service Commission vs. Mukesh Thakur (2010 (6) SCC 759). It is his submission that the claim of the petitioner is belated. The petitioner has filed the writ petition on 23.11.2010, after the interview was conducted, which was on 13.11.2010.
20. We have heard the learned counsel for the petitioners and the learned senior counsel appearing for the first respondent and given our anxious thoughts to the issues involved in this case.
21. Even though the short-listed candidates as well as the Government of Tamil Nadu have been arrayed as parties in the writ petition, since the petitioner is challenging the examination as well as the process of short-listing conducted by the first respondent, this Court proceeds with the matter, after considering and hearing the case of the first respondent. We have also perused the marks obtained by 103 short-listed candidates.
22. At the outset, the present notification issued calling for applications for the posts of District Judge (Entry Level) by the Government contemplates that the selection process consists of written examination which would precede the viva-voce examination. The selection has to be made based on the written examination and viva-voce which has been mentioned in the notification in Clauses 4 and 7 thus:
4. The selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva-voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for written examination and viva-voce shall be 75% and 25% respectively’
5. xxx
6. xxx
7. The written examination will be of 3 hours duration involving Law Paper Part-I (Civil), Law Paper-II (Criminal) and Law Paper Part-III (General) carrying 25 marks each (75 marks total) and 25 marks is earmarked for viva-voce.
The question papers on Law Paper Part-I, II & III will be set in English as well as in Tamil. The candidates shall answer either in English or in Tamil/but not in both.
The writ examination will be precede the viva-voce examination. As to shortlisting the candidates, their length of practice at the bar and the marks obtained by them in the written examination will be considered and such short listed candidates alone will be called for viva-voce examination.”
Therefore, on a bare reading of the said contents, one cannot come to a conclusion that by notification it is intended that all persons who appeared for written examination are eligible to be called for viva-voce, but what is stated is that in respect of ultimate selection process, the maximum marks obtained by the candidates in written examination and viva-voce are put together, i.e., 75 + 25. It can therefore never be presumed that based on the written examination, the candidates cannot be short-listed. In fact, Mr.N.G.R.Prasad, learned counsel has also fairly conceded that the short-listing may not be incorrect, but it is his submission that while short-listing, the Bar experience of candidates should have been taken into consideration for the purpose of making the selection more appropriate and proper.
23. It is true that in the notification it is stated that for short-listing, weightage for the length of practice at Bar and the marks obtained in the written examination will be considered. The expression precisely used in the notification in this regard is as follows:
The written examination will precede the viva-voce examination. As to short-listing the candidates, their length of practice at the Bar and the marks obtained by them in the written examination will be considered and such short-listed candidates alone will be called for viva-voce examination.
Even though it is the submission of Mr.R.Muthukumarasamy, learned senior counsel for the first respondent that such Bar experience should be taken into consideration only in case where there is a tie between two candidates who have obtained same marks in the written examination, which is also the case of the first respondent as it is seen in the counter affidavit, it is relevant to point out that the Rules governing such appointments are alone the basis not only for the notification, but also for the selection process, as the said Rules are statutory in nature which do not state anywhere about the conferring of marks for the length of practice of candidates.
24. The Rules which govern the appointment of District Judges (Entry Level) is the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007. The said Rules apply for the appointment of Judges at various levels and we are concerned with category 3 in Rule 3 viz., District Judges (Entry Level). As far as the appointment of District Judges is concerned, as per Article 233 of the Constitution of India, which has been elicited above, the High Court is the authority to complete the selection process while the appointment is by the Governor of the State.
25. Regarding the selection conducted by the High Court as per Rule 9 of the Tamil Nadu State Judicial Services (Cadre and Recruitment) Rules, 2007, all rules are subject to Articles 233, 233A, 234 and 235 of the Constitution of India. Article 233 deals with appointment of District Judges. Article 235 deals with control of the High Court. Rule 2 defines ‘High Court’ as ‘the High Court of Judicature at Madras’. From the perusal of the above statutory rule extracted it is evident that the High Court shall conduct the written examination and viva-voce for selection to the post of District Judge (Entry Level) by direct recruitment. The said rule as well as the notification issued pursuant thereto are in strict compliance with Articles 233 and 235 of the Constitution of India. In the decision reported in The Registrar, High Court of Madras v. R.Rajiah (AIR 1988 SC 1388 : (1988) 3 SCC 211 ) in para 9 (in AIR) it is held thus,
“9. It is now necessary to consider the provision of Article 235 of the Constitution and its impact on Rule 56(d) of the Fundamental Rules as to the absolute right of the State Government to retire a member of the subordinate judicial service. Article 235 vests in the High Court the control over District Courts and courts subordinate thereto. The vesting of such control is consistent with the ideal of preservation of the independence of the judiciary. The power of control comprises within it various matters in respect of subordinate judiciary including those relating to appointment, promotion and imposition of punishment, both major and minor. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Article 235 of the Constitution.”
We are aware that formal orders of appointment or punishments are to be issued by the Governor and the Governor is bound by the recommendations of the High Court.
26. The method of appointment, qualification and age are contemplated in Rule 5 of the Rules. In respect of appointment of District Judges (Entry Level) by direct recruitment, Annexure-I only contemplates that the selection should be made based on the results of written examination and viva-voce, taking the total marks obtained by the candidates together subject to the rules of reservation. Therefore, the Rules as such do not contemplate for giving any preference or adding any mark for Bar experience of candidates who are eligible for appointment by direct recruitment as District Judges (Entry Level). In the absence of any such provision in the statutory rules, which are the governing factors, mere using of words in the notification issued by the Government enabling to take length of practice at Bar for short-listing, does not, in our considered view, enable the petitioner to claim the same as a matter of right. When the maximum marks for which the candidates can be assessed in this selection being 100 only, and the same have to be decided on the basis of written examination and viva-voce examination at 75 and 25 marks respectively, there is no reason to hold that for the purpose of short-listing, further marks are to be added to the candidates against their length of Bar experience. The weightage in the form of total marks of candidates cannot go beyond 100. In such circumstances, we are of the considered view that using of the words, length of practice at the Bar in the notification cannot be taken as a compulsory requirement for the purpose of selection process and the same can only be taken into consideration in case of tie of marks between candidates in the ultimate selection process. Therefore, the contention of the learned counsel for the petitioner that the said aspect was not considered earlier is in no way helpful to the case of the petitioner.
27. It is true that in the earlier decision in K.Appadurai vs. The Secretary to Government, Public (Special A) Department and another [2010 (5) CTC 1], before the Honble First Bench of this Court, the petitioner therein raised the point that the length of experience is stated in the notification for short-listing the candidates for viva-voce examination and the same was considered in paragraph-31 of the judgment which is as follows:
” 31. In this case the impugned notification has been challenged only on the ground that the maximum marks allotted to the written examination and the viva voce shall not be 75% and 25% respectively. Learned counsel for the petitioner contended that apart from 100% marks, the length of Bar experience is fixed as a criteria for short listing candidates for viva voce without any explanation as to the manner in which it is proposed to be done, which is illegal and unconstitutional. According to the learned counsel, the marks to be allotted to the viva voce shall not in any case exceed 12.5% of the total marks. In this connection, the learned counsel for the petitioner relied upon a decision of the Supreme Court in Mohinder Sen Garg Vs. State of Punjab (1991) 1 SCC 662. In this context, first we would like to refer to Annexure-I under Rule 5 of the Tamil Nadu State Judicial (Cadre and Recruitment) Rules, 2007, which reads as follows:-
“The selection shall be made based on the results of written examination and viva voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva voce shall be 75% and 25% respectively.”
Ultimately, the said writ petitions were dismissed by this Court by holding that the notification is not bad in law. In fact, as it is seen in the said judgment, in one of the writ petitions filed in the said batch of cases, viz., W.P.No.18451 of 2010, the petitioner challenged the validity of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 and to declare the same as unconstitutional and consequently to set aside the impugned notification issued by the Government for appointment to the posts of District Judge (Entry Level) and the Honble First Bench has considered the same and dismissed by holding that the said Rules are not invalid. In such circumstances, we are of the considered view that the said clause in the notification giving weightage to the length of practice at the Bar cannot be claimed as a matter of right by the petitioner, as the same has to be construed in the light of the statutory rules viz., Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007.
28. It is further relevant to note that the appointment shall be as per the notification. The notification issued by the Government also specifically states that the appointments are to be made under the amended provisions of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules,2007. In the light of the above position, as held by the Supreme Court in N.K.Devin Katti and others vs. Karnataka Public Service Commission and others [(1990) 3 SCC 157], the petitioner is only entitled to be considered and there is no vested right of selection in accordance with the rules. The Supreme Court observed as follows:
” 11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.
29. As for the judgment in Andhra Pradesh Public Service Commission vs. Baloji Badhavath and others [(2009) 5 SCC 1] on which reliance was placed by the learned senior counsel for the first respondent, it relates to the short-listing of candidates for main examination based on the performance in the preliminary examination. Taking note of the fact that large number of candidates numbering around 1,68,000 applied and participated in the preliminary examination, for admitting in the main examination, the ratio was revised at 1:50 and 9800 candidates were short-listed. The writ petition was filed challenging the method of selection and ultimately, by setting aside the judgment of the High Court, the Supreme Court held that if category-wise statement on the basis of communal roster is prepared, it would be detrimental to the meritorious candidates belonging to the reserved category. The relevant portion of the judgment on which reliance was placed by the learned senior counsel for the first respondent viz., paragraphs 29 and 30, which are as follows:
” 29. Indisputably, the preliminary examination is not a part of the main examination. The merit of the candidate is not judged thereby. Only an eligibility criterion is fixed. The papers for holding the examination comprise of general studies and mental ability. Such a test must be held to be necessary for the purpose of judging the basic eligibility of the candidates to hold the tests. How and in what manner the State as also the Commission would comply with the constitutional requirements of Article 335 of the Constitution of India should ordinarily not be allowed to be questioned.
30. The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates (sic categories) is not a constitutional mandate at the threshold. It is permissible only for the purpose of promotion. Those who possess the basic eligibility would be entitled to appear at the main examination. While doing so, in regard to General English whereas the minimum qualifying marks are 40% for OCs, it would be 35% for BCs and 30% for SC/STs and physically handicapped persons. However, those marks were not to be counted for ranking.
The above said paragraphs even though establishes that lowering of marks for the candidates belonging to the reserved category is not a constitutional mandate at the threshold, inasmuch as on the facts of the said case, there was a preliminary examination, followed by the final examination and thereafter viva-voce, except recording the submission made by the learned senior counsel for the first respondent, we are of the view that the said decision is of no assistance to substantiate the case of the first respondent.
30. Equally, the judgment in Ram Bhagat Singh and another vs. State of Haryana and another [(1997) 11 SCC 417] on which reliance was placed by the learned counsel for the petitioner in support of his contention, cannot be said to have any application to the facts of the present case. Inasmuch as it is seen that the petitioner is far below in the rank list and in the light of abundant number of women candidates belonging to Scheduled Castes are available prior to her on merit, there is no question of lowering the standard of eligibility for SC/ST candidates. In the light of the established principle that the benefit under Article 16(4) cannot be claimed as a matter of right, and in the context of merit to be maintained in public service, the reliance placed by the learned counsel on paragraph-4 of the judgment in the above said case, which is as follows:
” 4. We are of the opinion that equality of opportunity should be striven for and ensured in public employment. Steps should be taken to see where unequals are competing, conditions must be created by relaxation or otherwise so that unequals compete in terms of equality with others in respect of jobs and employments of the State. Our Constitution so enjoins it. Article 38 of the Constitution read with Articles 14, 15 and 16 so mandates it. In order, therefore, to give those who are unequals, and it is accepted that Scheduled Castes and Scheduled Tribes for reasons historical or otherwise, are unequal with the general members of the community in respect of ability and qualification for public employment. Hence, in order to make the unequals compete on conditions of equality certain relaxations and other factors ensuring equality are imperative. Those groups or segments of society which are by reasons of history or otherwise unable to compete in terms of absolute equality with the members of other communities or groups in the society, should be ensured and assured chances of competing in terms of equality. They must be helped to compete equally but it is important to emphasise that equality of opportunity is sought to be achieved for the public services or employment. The efficacy and efficiency of that service is of prime consideration. Equality must be there for all to compete for the public services. Public services and public employment do not exist for providing jobs in terms of equality or otherwise to all. Public services and public employment must serve only public purpose and anything that hampers or impairs the efficiency or efficacy of public services cannot and should not be permitted in ensuring conditions of constitutional equality. These should be done objectively, rationally and reasonably. As is often said, it may be that need to ensure equality for Scheduled Castes and Scheduled Tribes should not be surrendered on the facile and value-based perception of efficiency. Yet efficiency must be ensured. Real equality must be accorded.
is of no assistance to the case of the petitioner.
31. Further reliance was placed on the judgment in Comptroller and Auditor General of India, Gian Prakash, New Delhi and another vs. K.S.Jagannathan and another [(1986) 2 SCC 679] which relates to the reservation in promotion by giving relaxation of standards to SC/ST candidates in the qualifying examinations like, Subordinate Accounts Service Examination. In that case, instead of granting relaxation, as per the letter of Government of India dated 21.1.1977, in respect of SC/ST candidates grace marks were added after ascertaining the results and same was held to be illusory and contrary to the requirements of the letter of Government of India and the letter as elicited in the judgment is as follows:
” Subject: Reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotionPromotions on the basis of seniority subject to fitness.
The undersigned is directed to refer to para 2-C of the Ministry of Home Affairs OM No. 1/12/67-Estt. (C) dated July 11, 1968 according to which there is no reservation for Scheduled Castes and Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness, although cases involving supersession of Scheduled Castes and Scheduled Tribes officers in Class I and Class II appointments are required to be submitted for prior approval to the Minister or Deputy Minister concerned and cases of supersession in Class III and Class IV appointments have to be reported within a month to the Minister or Deputy Minister concerned for information.
2. The policy in regard to reservations for Scheduled Castes and Scheduled Tribes officers in posts filled by promotion on the basis of seniority subject to fitness has now been reviewed and it has been decided, in supersession of the orders contained in the aforesaid para 2-C of the OM dated July 11, 1968, that there will be reservation at 15% for Scheduled Castes and 7=% for Scheduled Tribes in promotions made on the basis of seniority subject to fitness, in appointments to all Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, does not exceed 50%.
We have no hesitation to hold that the said judgment does not really help the case of the petitioner, as the said judgment relates to promotion and there was want of candidates.
32. Likewise, the judgment in Sanjay Singh and another vs. U.P.Public Service Commission, Allahabad and another [(2007) 3 SCC 720] relates to the scaling formula followed by the Commission in view of the specific provisions in the Rules viz., U.P. Judicial Service Rules, 2001 regarding the mode of preparation of list of selected candidates and it was in those circumstances, the statistical scaling procedure followed was held to be against the rules. It was, in that context, the Honble Apex Court held that when the rules provide for considering the marks obtained in the written examination and interview, no other method of scaling would be technically permitted. Hence, the first respondent has scrupulously followed the statutory Rules.
33. The contention in respect of the bias raised in both the cases has no meaning in the absence of any specific pleading and instances. In this regard, the allegation made by the petitioner that outside agency should have been deployed for the purpose of conducting written examination and viva-voce, is totally opposed to the contents and spirit of Articles 233 and 235 of the Constitution of India, which enshrines that there should be effective consultation of the High Court in the matter of appointment to the post of District Judge. On the other hand, employing such agencies for the appointment to the post of District Judge would be outside the purview of the Constitution. Inasmuch as it is specifically stated in the counter affidavit filed by the first respondent that dummy numbers were given and there was no scope for any influence being placed either at the time of valuation or during viva-voce examination conducted by the Honble Judges, the reliance placed by the learned counsel for the petitioner on the judgment in Union of India vs. T.Sundararaman and others [(1997) 4 SCC 664] for justifying the claim that screening and recruitment should be conducted by an outside agency is misconceived. That relates to the case of appointment of Assistant Professors and short-listing of candidates to call for interview on the basis of experience, and when the Tribunal directed for reprocessing of applications, the Supreme Court held as follows:
” 4. The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received the Commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission v. Navnit Kumar Potdar (1994) 6 SCC 293 this Court has upheld shortlisting of candidates on some rational and reasonable basis. In that case, for the purpose of shortlisting, a longer period of experience than the minimum prescribed was used as a criterion by the Public Service Commission for calling candidates for an interview. This was upheld by this Court. In the case of Govt. of A.P. v. P. Dilip Kumar (1993) 2 SCC 310 also this Court said that it is always open to the recruiting agency to screen candidates due for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the Commission was legitimate. The decision of the Tribunal is, therefore, set aside and the appeal is allowed. There will, however, be no order as to costs.”
In the light of the specific provisions in the Constitution of India under Articles 233 and 235, it is not possible to accept the contention of the learned counsel for the petitioner, in this regard.
34. Regarding the likelihood of bias alleged by the petitioners are concerned, apart from the fact that no specific allegations are made by the petitioners, the High Court is the constitutional body and the Judges are constitutional functionaries. The Constitutional functionaries are deemed to discharge their duties without bias and independently. The said proposition is clearly explained by the Full Bench of this Court in the decision reported in 1997 WLR 1 (The High Court of Judicature at Madras v. T.S.Sankaranarayanan)(FB). In paragraph 55 the Full Bench held as follows:
“55.Constitutional functionaries like the Honourable Judges engaged in the administration of the justice cannot be said to be biased merely because one of the Judges has participated in the earlier disciplinary proceedings as one of the Enquiring Judges. The Honourable Judges are credited for judicious and unbiased approach in relation to the matters that come up for their consideration and decision, be it on judicial side or administrative side, as the judicial minds are trained in that way by reason of the background, knowledge, experience and the nature of the duties and functions they perform. It is not uncommon that Judges taking one view tentatively are persuaded to take a different view; even on review applications there are occasions where the Honourable Judges revise their orders and even correct errors without hesitation in accordance with law and in the interest of justice. This indicates the openness of the mind of the Honourable Judges negativing the apprehensions of bias. …………….”
The Supreme Court in the decision reported in (1980) 3 SCC 189 (Hari Datt Kainthla v. State of Himachal Pradesh) considered the extent of power conferred to the High Courts to select District Judges either on promotion or by direct recruitment. In paragraphs 12 to 14 the Supreme Court held thus,
“12. Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court. In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight. Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court. Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service, the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person. The Governor who would be acting on the advice of the minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion. Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the minister or the Governor. In Chandra Mohan v. State of U.P.(AIR 1966 SC 1987 : (1967) 1 SCR 77,83 : (1967) 2 SCJ 717) a Constitution Bench of this Court observed as under:
The constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the judicial service or to the Bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him.
This view was reaffirmed in Chandramouleshwar Prasad v. Patna High Court ((1969) 3 SCC 56 : AIR 1970 SC 370), observing:
The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits.
13. In A. Panduranga Rao v. State of A.P. ((1975) 4 SCC 709 : AIR 1975 Lab IC 1922) this Court observed that there are two sources of recruitment to the post of District Judge viz. judicial service in subordinate rank and members of the Bar. In either case the consultation would assume the form of recommendation made by the High Court.
14. It is thus incontrovertible that appointment to the post of DSJ/ ADSJ in Himachal Pradesh will have to be made in accordance with the provisions contained in Article 233. If any rules are enacted under Article 309 for regulating recruitment and conditions of service of DSJ/ADSJ, the rules will have to be in conformity with Article 233 and if they violate the constitutional mandate of Article 233 the rules will be held ultra vires as succinctly laid down in Chandra Mohan case (AIR 1966 SC 1987 : (1967) 1 SCR 77,83 : (1967) 2 SCJ 717). To be precise so as to leave no ambiguity, in that case Rule 13 of the U.P. Higher Judicial Service Rules provided for procedure for selection by promotion to the post of District Judge from the subordinate judicial service and amongst others, the procedure provided for selection to be made by a committee consisting of two Judges of the High Court and the Judicial Secretary to Government. This rule was held to be ultra vires as being violative of Article 233 inasmuch as the High Court could be said to have abdicated its constitutional function of making recommendation to an outside authority not known to Constitution.”
Thus, conducting written and viva-voce test cannot be entrusted to any other authority to preserve the independence of the judiciary and to select meritorious candidates as District Judges (Entry level). In this case what the High Court did is absolutely as per the constitutional provisions and based on the settled legal principles. The averments made and the arguments advanced by the learned counsel for the petitioner are therefore rejected as unsustainable and without any basis.
35. Now, coming to the next contention regarding the zone of consideration for women, viz., equal number of women candidates should be called for viva-voce and even in respect of SC/ST candidates equal number of women candidates should be called for, the question to be considered is as to whether such appointment of women candidates subject to maximum of 30% is to be considered as reservation. The Honble Apex Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others [(2007) 8 SCC 785] considered the concept of vertical reservation and horizontal reservation. That was considered in the context of persons belonging to reserved category were appointed in non-reserved posts based on their merit, along with the further question whether they should be considered as persons appointed as forming part of reserved category. It was held that such reservation is horizontal reservation and such appointment cannot be taken as an appointment under reserved category. The Supreme Court held that while Article 16(4) of the Constitution of India contemplates vertical reservation, what is contemplated under Article 16(1) as well as Article 15(3) is horizontal reservation. Article 15(3) which is as follows:
” Article 15.Prohiition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1) xxx
(2) xxx
(3) Nothing in this article shall prevent the State from making any special provision for women and children.”
and Article 16(4) which is as follows:
” Article 16.Equality of opportunity in matters of public employment.-
(1) to (3) xxxx
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
are categorized as classes of horizontal reservation. Therefore, as per the said judgment, the special provision made for women enabling them to get 30% reservation, of course, in addition to that on merit in open category, has been held to be horizontal reservation. While explaining the difference between vertical and horizontal reservations, it was held by the Supreme Court in no uncertain terms, especially relating to the special provision of reservation for women, as follows:
” 6. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India 1992 Supp (3) 217, the principle of horizontal reservation was explained thus: (SCC pp. 735-36, para 812)
[A]ll reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as vertical reservations and horizontal reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservationswhat is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of Backward Class of citizens remainsand should remainthe same.
7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. (1995) 5 SCC 173 thus: (SCC p. 185, para 18)
The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfiedin case it is an overall horizontal reservationno further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.) (emphasis supplied)
8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: For SC: 30 posts, of which 9 posts are for women. We find that many a time this is wrongly described thus: For SC: 21 posts for men and 9 posts for women, in all 30 posts. Obviously, there is, and there can be, no reservation category of male or men.
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are vertical reservations. Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are horizontal reservations. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745, Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ritesh R. Sah v. Dr.Y.L. Yamul (1996) 3 SCC 253.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of Scheduled Caste women. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that SC women have been selected in excess of the prescribed internal quota of four.)
10. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 woman candidates, which was equal to the quota for general category women. There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven woman candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the selection list) and another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) included under reservation quota for general category women. This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation.”
36. On the reading of the said judgment, it is clear and categorical that the provision given for women, of course, as a matter of right, for appointment is horizontal, applicable to each and everyone of the reserved categories viz., SC/ST/MBC. etc. and the provision cannot be said to be vertical reservation which is on social basis. In fact, the Supreme Court held that while reservation in favour of physically handicapped, women, etc., is horizontal in nature, the reservation made on the social basis viz., community-wise is vertical reservation. Therefore, in respect of horizontal reservation, there is no question of any separate zone of consideration required. It is relevant to point out that the said judgment was only a reproduction and explanation of the earlier judgment in Indra Sawhney vs. Union of India [1992 Suppl. (3) SCC 217], as it has been elicited in the said judgment itself. In such circumstances, the contention that different zone of consideration must be made for women candidates among the Scheduled Castes is totally misconceived and opposed to the established legal position.
37. In Dhananjay Malik and others vs. State of Uttaranchal and others [(2008) 4 SCC 171] it was held that the candidates having participated in the selection process and became unsuccessful are estopped from challenging the selection criteria. The Supreme Court held as follows:
” 7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal v. State of J&K (1995) 33 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. ”
38. We have also perused the marks and communities of the 103 candidates, who were shortlisted for appearing in the viva-voce and candidates belonging to all categories namely G.T., G.T.(W), B.C., B.C.(W), B.C.(M), M.B.C., M.B.C.(W), SC & ST were called for assessing their merits through viva-voce. There is no discrimination against women while inviting candidates for viva-voce.
39. The issue regarding right of a candidate seeking revaluation is well settled. Neither the Tamil Nadu Judicial Service (Cadre and Recruitment) Rules, 2007, nor the notification issued pursuant to which the petitioner applied for the post and taken part in the written test, contemplates a right of revaluation/rescrutiny of answer sheets. In the absence of such provision, the petitioner is not entitled to seek for revaluation as held by the Supreme Court in the decision reported in AIR 2010 SC 2620 : (2010) 6 SCC 759 (H.P.Public Service Commission v. Mukesh Thakur) wherein the Supreme Court held that in the absence of any provision under the statute or statutory rules/regulations, the Court should not direct revaluation. In paragraphs 24 to 26 (in SCC) the Supreme Court held thus,
“24. The issue of revaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (AIR 1984 SC 1543), wherein this Court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/ Regulations not providing for rechecking/verification/revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under:
14. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act.
* * *
16. The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act.
25. This view has been approved and relied upon and reiterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission (AIR 2004 SC 4116 : 2004 AIR SCW 4541) observing as under:
7. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks.
(emphasis added)
A similar view has been reiterated in Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State (AIR 1984 SC 1585), Board of Secondary Education v. Pravas Ranjan Panda ((2004) 13 SCC 383), Board of Secondary Education v. D. Suvankar ((2007) 1 SCC 603), W.B. Council of Higher Secondary Education v. Ayan Das (AIR 2007 SC 3098 : 2007 AIR SCW 5976) and Sahiti v. Dr. N.T.R. University of Health Sciences ((2009 1 SCC 599 : AIR 2009 SC 879 : 2008 AIR SCW 8194).
26. Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation.”
40. The decision cited by Mr.R.Sankarasubbu, reported in 2010 (5)Supreme 556 (East Coast Railways v. Mahadev Appa Rao) is regarding cancellation of the railway examinations and when a candidate wanted to disclose the reason for cancellation as per Right to Information Act, the Supreme Court rendered the said decision, which has no application to the facts of these cases.
41. In respect of the above issue, it is submitted by the learned senior counsel for the first respondent that, after the matter was referred to the Hon’ble Chief Justice, the same has been sent to the concerned Committee to deal under the Right to Information Act,2005. Hence, we do not express any opinion on the same. However, for the reasons stated above and in the absence of any provisions for the revaluation under the statutory rules, it is a fit case in which the petitioners are not entitled to any relief.
42. In view of the above said reasonings, we are of the view that there are absolutely no grounds to interfere with the impugned proceedings of the first respondent in short-listing of candidates for selection to the posts of District Judge (Entry Level) and looking at any angle, the petitioners are not entitled to any relief claimed in the writ petitions. The writ petitions, therefore fail and the same are dismissed. No costs. Connected miscellaneous petitions are also dismissed.
Index:Yes/No Internet:Yes/No (P.J.M.J.,) (N.P.V.J.,) Kh .12.2010 P.JYOTHIMANI,J. AND N.PAUL VASANTHAKUMAR,J. To 1.The Registrar General High Court, Madras. 2.The Secretary to the Government Government of Tamil Nadu Public (Special-A) Department Secretariat, Chennai 9. P.D.Common Order in W.P.Nos.25778 & 26588 of 2010 Dated: .12.2010
