{"id":136825,"date":"1995-02-06T00:00:00","date_gmt":"1995-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madan-lal-ors-vs-the-state-of-jammu-kashmir-and-ors-on-6-february-1995"},"modified":"2016-07-26T22:10:30","modified_gmt":"2016-07-26T16:40:30","slug":"madan-lal-ors-vs-the-state-of-jammu-kashmir-and-ors-on-6-february-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madan-lal-ors-vs-the-state-of-jammu-kashmir-and-ors-on-6-february-1995","title":{"rendered":"Madan Lal & Ors vs The State Of Jammu & Kashmir And Ors on 6 February, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Madan Lal & Ors vs The State Of Jammu & Kashmir And Ors on 6 February, 1995<\/div>\n
Equivalent citations: 1995 AIR 1088, \t\t 1995 SCC (3) 486<\/div>\n
Author: M S.B.<\/div>\n
Bench: Majmudar S.B. (J)<\/div>\n
           PETITIONER:\nMADAN LAL & ORS.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF JAMMU & KASHMIR AND ORS.\n\nDATE OF JUDGMENT06\/02\/1995\n\nBENCH:\nMAJMUDAR S.B. (J)\nBENCH:\nMAJMUDAR S.B. (J)\nVERMA, JAGDISH SARAN (J)\n\nCITATION:\n 1995 AIR 1088\t\t  1995 SCC  (3) 486\n JT 1995 (2)   291\t  1995 SCALE  (1)494\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
1.   This   petition  by  to  petitioners  has\tbrought\t  in
\nchallenge the process of selection of Munsiffs in the  State
\nof Jammu and Kashmir undertaken by Jammu and Kashmir  Public
\nService Commission (hereinafter referred to as\tCommission),
\npursuant  to an advertisement notice, inviting\tapplications
\nin the months of July and August, 1993.\t The said  selection
\nof the concerned successful respondents has been  challenged
\non  diverse  grounds  to which we will make  a\treference  a
\nlittle later.\n<\/p>\n
2.   Now   a  glance  at  a  few  introductory\tfacts.\t  An
\nadvertisement  notice issued by 1993,  invited\tapplications
\nfrom eligible candidates for filling up posts of Munsiffs in
\nthe  State  of\tJammu and Kashmir.   The  petitioners  being
\neligible  for  competing  for  the  said  advertised   posts
\nsubmitted  their applications to the Secretary of  the\tCom-
\nmission.   Similarly,  the  concerned  respondents  who\t are
\nselected   for\t the  said  posts   also   submitted   their
\napplications.\tThe Commission conducted the written  exami-
\nnation\tin  July  and  August,\t1993  and  thereafter\tvide
\nnotification dated 27th April, 1994 candidates mentioned  in
\nthe  notification were declared to have qualified  for\tviva
\nvoce  test.  In all 79 candidates were found  qualified\t for
\nthe  viva voce test.  ‘Mat included the petitioners and\t the
\ncontesting  respondents.  Under the Jammu and Kashmir  Civil
\nService\t (Judicial) Recruitment Rules of  1967\t(hereinafter
\nreferred to as rules’) examination for selection of Munsiffs
\nconsists  of  written examination and viva voce\t test.\t The
\nCommission, respondent no. 2 accordingly conducted the\tsaid
\nviva voce test under rule 10 of the aforesaid rules.  On the
\nrequest\t of  the Commission the Chief Justice  of  the\tHigh
\nCourt  is  to nominate a Judge to act as an  expert  on\t the
\nCommission for the purpose of conducting the viva voce test.
\nIn pursuance of this rule a viva voce test was conducted  by
\nfour Members of the Commission and an expert (sitting  Judge
\nof  the High Court) Mr. Justice B.A. Khan.  The Chairman  of
\nthe  Commission\t respondent no. 3 and  one  member,  namely,
\nrespondent  no. 4 did not participate in the viva voce\ttest
\non the ground that one of the candidates selected as per the
\nresult\tof written test, namely, respondent no. 13  –  Zaneb
\nShams is a daughter of respondent no. 3 and  daughter-in-law
\nof respondent no. 4.\n<\/p>\n
3.   According\tto the petitioners in the they\twere  called
\nfor oral interview.  According to them they also fared\twell
\nin the viva voce test but they were kept guessing as to\t the
\nresult\tof  this  test.\t They came to  know  that  concerned
\nrespondent nos. 618 and some others who had appeared at\t the
\ntest  were given confidential information to  appear  before
\nMedical Board for medical test while no such intimation\t was
\nsent  to  the  petitioners.   ‘Mat gave\t them  a  cause\t for
\napprehension  that they may have been illegally left out  of
\nselection  for\tthe said posts and that is why\tthe  present
\npetition is filed.  The main prayers in the petition read as
\nunder:-\n<\/p>\n
\t      a)  Call\tfor the records of  the\t examination
\n\t      conducted\t by Respondent No.2 for scrutiny  by
\n\t      this Hon’ble Court;\n<\/p><\/blockquote>\n
\t      b)    Issue an appropriate writ order or
\n\t      296<\/span>
\n\t      direction in the nature of certiorari quashing
\n\t      the viva voce test of the said examination  as
\n\t      being  invalid,  arbitrary  and  against\t the
\n\t      principles of natural justice and quashing the
\n\t      candidature of the respondents IO & 13.\n<\/p><\/blockquote>\n
\t      c)    Issue  an  appropriate  writ  order\t  or
\n\t      direction in the nature of Mandamus commanding
\n\t      the Respondent No. 2 to declare the result  of
\n\t      the  written  test of the candidates  and\t may
\n\t      give  selections on the basis of\tthe  written
\n\t      test  alone and in the alternative to  conduct
\n\t      fresh viva voce test after removing defects in
\n\t      it  and  for  assessing  the  merits  of\t the
\n\t      candidates objectively.\n<\/p><\/blockquote>\n
\t      d)    To\tissue an appropriate Writ  Order  or
\n\t      direction\t  in  the  nature   of\t prohibition
\n\t      restraining  the Respondents No, 1 & 2  and  5
\n\t      from  issuing the appointment letters  to\t the
\n\t      Selected\tCandidates whose list has  not\tbeen
\n\t      published as yet till the filing of this\tWrit
\n\t      Petition, but are required to undergo  medical
\n\t      test vide Annexure-\n<\/p><\/blockquote>\n
4.   A\tmere  look at the prayers makes it  clear  that\t the
\nattack\tof  the\t petitioner  on the  manner  and  method  of
\nconducting’ viva voce test and result thereof So far as\t the
\nresult of written test is concerned not only the petitioners
\nhave no grievance the same but they rely on the same.  Their
\nmain  contention is that viva voce test was  so\t manipulated
\nthat only preferred candidates, by inflating their marks  in
\nthe  viva  voce test, were permitted to get  in\t the  select
\nlist.\tIt may be mentioned at this stage as  revealed\tfrom
\nthe record of this case, that the second respondent prepared
\na  select list of twenty successful candidates in the  order
\nof merit on the basis of the aggregate of marks obtained  by
\nthem  in written as well as viva voce test.  The said  merit
\nlist  of  candidates  recommended by respondent\t no.  2\t for
\nappointment  as Munsiffs consists of two parts.\t  The  first
\npart  at  annexure-C  collectively deals  with\tthe  general
\ncategory  candidates.\tSixteen such  candidates  have\tbeen
\nincluded  in the general category merit list while there  is
\nalso a waiting list of five such candidates.  At  annexure-C
\ncollectively  is also found merit list of  Scheduled  Castes
\nand  Scheduled Tribes candidates who have  been\t recommended
\nfor appointment as Munsiffs pursuant to aforesaid selection.
\nTwo   candidates  belonging  to\t Scheduled  Caste  and\t two
\ncandidates  belonging to Scheduled Tribe are found  to\thave
\nbeen  listed  in  reserved category as seen  from  the\tsaid
\nannexure.   It\tthus becomes clear that\t sixteen  candidates
\nfrom general category and two candidates each from  reserved
\ncategories  of Scheduled Caste and Scheduled Tribe,  in\t all
\ntwenty candidates are so recommended.\n<\/p>\n
5.   After petitioners moved this petition, it was  admitted
\nto  final  hearing  and\t the stay  of  the  appointments  of
\nconcerned selected candidates was also granted.\n<\/p>\n
6. At the final hearing of this petition the learned  senior
\ncounsel for the petitioners raised the following contentions
\nin support of the petition.\n<\/p>\n
1)   The impugned viva voce test conducted   by\t\t the
\nrespondent no. 2, Commission is patently illegal as there is
\nnothing to show that the Members who conducted the test\t had
\nassigned  separate  marks  faculty-wise\t for  assessing\t the
\nperformance  of the concerned candidates as per rule  10  of
\nthe rules.\n<\/p>\n
2)   The expert, namely, the sitting
\n297<\/span>
\nJudge of the High Court was entitled to award only 60  marks
\nfor  viva voce test while the remaining 80 marks  were\tper-
\nmitted\tto be given by other members of the  Commission\t and
\nthat  affected the overall assessment of the  candidates  in
\nthe viva voce test which as a whole comprised of 140 marks.\n<\/p>\n
3)   There  is nothing to show that any\t tape-recording\t was
\ndone  regarding\t the  questions put to\tcandidates  and\t the
\nanswers\t given\tby them at the viva voce test and  that\t has
\nvitiated the said test.\n<\/p>\n
4)   The petitioners fared very well in the written test  as
\ncompared to the selected candidates, respondents herein\t and
\nstill  at  the\tviva  voce test they  were  pushed  down  by
\nassigning   very  low  marks  as  compared   to\t  contesting
\nrespondents and thus they were treated unfairly at the\tsaid
\nviva voce test.\n<\/p>\n
5)   The  viva voce test was conducted in an  unfair  manner
\nonly  with  a  view  to select\tcandidates  belonging  to  a
\nparticular  community as the list of candidates\t recommended
\nshows.\tTherefore, the entire test is vitiated being totally
\narbitrary and lopsided.\n<\/p>\n
6)   Respondent\t No.  IO and respondent no. 13\twhose  names
\nwere included in the impugned list of recommended candidates
\nwere not eligible to be appointed as Munsiffs as they failed
\nto  satisfy  the eligibility requirement of rule  9  of\t the
\nrules  in as much as they had not put in 2 years  of  actual
\npractice at the bar by the date on Which he or she submitted
\nhis or her application for such recruitment and hence  their
\nnames  should  be  eliminated from the merit  list  of\topen
\ncategory candidates.\n<\/p>\n
7)   In\t any  case respondent no. 13 being daughter  of\t the
\nChairman  of the Commission and daughter-in-law\t of  another
\nMember\tthereof was given a special favourable treatment  by
\nunduly inflating her marks in the viva voce test so that any
\nhow she would get selected for the advertised post and hence
\nher selection is bad in law.\n<\/p>\n
8)   That  preparation\tof the merit list of  16  candidates
\nfrom  general  category\t and  4\t candidates  from   reserved
\ncategory, in all 20 is in any case bad and violative of rule
\n41 of the rules as the vacancies for which the advertisement
\nwas  issued by the Commission were only 11  and\t requisition
\nwas  sent by the Govt. for selection of suitable  candidates
\nthrough the Commission for those vacancies.\n<\/p>\n
7.   The  learned  counsel for\tthe  contesting\t respondents
\ncomprising  of selected candidates as well as the  State  of
\nJammu  &  Kashmir  and the Commission  have  resisted  these
\ncontentions and have submitted that there was nothing  wrong
\nwith  the  selection process so far as viva  voce  test\t was
\nconcerned  and that the petition is devoid of merits and  is
\nrequired to be dismissed.\n<\/p>\n
8.   It\t is  now time for us to deal  with  the\t contentions
\ncanvassed  by the learned senior counsel in support  of\t the
\npetition.  We shall deal with these contentions seriatim.\n<\/p>\n
Contention No. 1<\/span><\/p>\n
9.   Before  dealing with this contention, we must  keep  in
\nview  the salient fact that the petitioners as well  as\t the
\ncontesting successful candidates being concerned
\n298<\/span>
\nrespondents herein, were all found eligible in the light  of
\nmarks  obtained\t in the written test, to be eligible  to  be
\ncalled for oral interview.  Upto this stage there is no dis-
\npute between the parties.  The petitioners also appeared  at
\nthe oral interview conducted by the concerned Members of the
\nCommission  who interviewed the petitioners as well  as\t the
\nconcerned contesting respondents.  Thus the petitioners took
\na  chance  to  get  themselves selected\t at  the  said\toral
\ninterview.   Only  because they did not find  themselves  to
\nhave  emerged  successful  as a\t result\t of  their  combined
\nperformance  both at written test and oral  interview,\tthat
\nthey have filed this petition.\tIt is now well settled\tthat
\nif a candidate takes a calculated chance and appears at\t the
\ninterview then, only because the result of the interview  is
\nnot  palatable to him he cannot turn round and\tsubsequently
\ncontend\t that  the  process  of\t interview  was\t unfair\t  or
\nSelection  Committee was not properly constituted.   In\t the
\ncase of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors.,
\n(AIR<\/a> 1986 SC 1043), it has been clearly laid down by a Bench
\nof  three  learned  Judges  of\tthis  Court  that  when\t the
\npetitioner  appeared at the examination without protest\t and
\nwhen  he found that he would not succeed in  examination  he
\nfiled a petition challenging the said examination, the\tHigh
\nCourt  should  not  have  granted  any\trelief\tto  such   a
\npetitioner.\n<\/p>\n
10.  Therefore, ‘the result of the interview test on  merits
\ncannot be successfully challenged by a candidate who takes a
\nchance\tto  get\t selected  at the  said\t interview  and\t who
\nultimately finds himself to be unsuccessful.  It is also  to
\nbe  kept  in view that in this petition we cannot sit  as  a
\nCourt of appeal and try to reassess  the relevant merits  of
\nthe  concerned candidates who had been assessed at the\toral
\ninterview  nor can the petitioners successfully urge  before
\nus that they were given less marks though their\t performance
\nwas better.  It is for the Interview Committee which amongst
\nothers consisted of a sitting High Court Judge to judge\t the
\nrelative   merits   of\tthe  candidates\t who   were   orally
\ninterviewed in the light of the guidelines laid down by\t the
\nrelevant  rules governing such interviews.   Therefore,\t the
\nassessment  on\tmerits as made by such an  expert  committee
\ncannot\tbe brought in challenge only on the ground that\t the
\nassessment was not proper or justified as that would be\t the
\nfunction  of  an  appellate body and we\t are  certainly\t not
\nacting as a court of appeal over the assessment made by such
\nan expert committee.\n<\/p>\n
11.In the light of the aforesaid settled legal. position let
\nus  see\t whether there is any substance in  the\t contentions
\ncanvassed  before  us  by the  learned\tsenior\tcounsel\t for
\nunsuccessful candidates at the oral interview.\n<\/p>\n
12.So  far  as\tthe first contention  is  concerned  learned
\nsenior counsel for petitioners submitted that rule 10 of the
\nrules  lays  down  that the  examination  for  selection  of
\ncandidates  shall consist of written examination as well  as
\nviva voce test.\t So far as written examination is  concerned
\nit is not challenged before us as noted earlier.  So far  as
\nviva  voce  test is concerned rule  10(1)(b)  lays  down  as
\nunder:-\n<\/p>\n
\t      “‘The  object of viva-voce examination  is  to
\n\t      assess  the candidates’ intelligence,  general
\n\t      knowledge,    personality,    aptitude\t and
\n\t      suitability.”\n<\/p><\/blockquote>\n
The  learned senior counsel for petitioners  submitted\tthat
\nwhen a candidates is orally
\n299<\/span>
\ninterviewed,  the  members of the  committee  should  assign
\nseparate marks for the different faculties of the  concerned
\ncandidate  namely, intelligence, general knowledge, etc,  as
\nlaid down in the rule and that does not appear to have\tbeen
\ndone by the interviewing committee and hence the entire viva
\nvoce  test  is vitiated.  In this connection,  reliance\t was
\nplaced\t on  the  decision  of\tthis  Court  in\t  Minor\t  A.
\nPeeriakaruppan\t&  Sobha Joseph v. State of Tamil  Nadu\t and
\nOrs.<\/a> (1971 (1) SCC 38).\n<\/p>\n
13.It is not possible to agree with this contention.  So far
\nas  rule 10(1)(b) is concerned it does not provide  for\t any
\nseparate  assessment  of marks for candidates at  viva\tvoce
\nexamination  faculty-wise, that is on intelligence,  general
\nknowledge,  etc. listed in the said rule.  On the  contrary,
\nit appears that as per the said rule, while conducting\tviva
\nvoce examination the Committee has to keep in view the\tmain
\nobject\tof  assessing such candidates in the  light  of\t the
\nguidelines given therein.  In other words, the\tinterviewing
\ncommittee has to keep in view the overall performance of the
\ncandidates  at the oral inter-view and while doing so  their
\nintelligence,  general knowledge, personality, aptitude\t and
\nsuitability have to be kept in the centre.  The rule  merely
\nlays  down  the object of assessing such candidates  in\t the
\nviva  voce examination.\t It is a general guideline given  to
\nthe  interviewing committee members.  Therefore,.it  is\t not
\npossible to agree with the submission of the senior  counsel
\nfor petitioners that the members of the interview  committee
\nmust  separately assess and give marks on  different  listed
\ntopics\tfaculty-wise  as per the said rule.  So far  as\t the
\ndecision  of this Court in Minor A. Peeriakaruppan v.  State
\nof  Tamil  Nadu and Ors.<\/a> is concerned it has to be  kept  in
\nview that this Court was dealing with admissions to M.B.B.S.
\ncourse in the State of Tamil Nadu.  The selection  committee
\nwas  constituted for assessing the merits of  the  concerned
\napplicants  for\t such  admissions at  oral  interview  after
\nwritten\t test.\t75 marks were assigned for  oral  interview.
\nThe  selection committee was. asked to award these marks  on
\nthe basis of following five tests\n<\/p>\n
\t      1.    Sports  of\tNational  Cadet\t Corps\t ac-\n<\/p>\n
\t      tivities;\n<\/p>\n
\t      2.    Extra curricular special services;\n<\/p>\n
\t      3.    General    physical\t   condition\t and\n\t      endurance;\n\t      4.    General ability; and\n\t      5.    Aptitude.\n<\/pre>\n
14.Now\tit becomes at once clear that when 75 marks were  to
\nbe assigned to a candidate called for oral interview on\t the
\nbasis  of  the aforesaid five types of performances  by\t the
\ncandidate, the assessment on first three tests would  depend
\nupon documentary evidence regarding his career record  which
\nthe candidates can furnish to the interview committee  while
\nthe  last two tests will depend upon his performance at\t the
\ninterview.   In view of this hybrid type of tests for  which
\nassessment  was to be made at the oral intervire,  75  marks
\nassigned  for  all these five tests necessarily\t had  to  be
\nsplit  up  and\tfrom the carrier record\t of  the  candidate,
\nseparate marks had to be assigned for first three tests\t and
\nthat  necessarily required separate assessment of  marks  on
\nthe  remaining\ttwo heads of tests.  It is in the  light  of
\nthis  requirement  of peculiar type of marking at  the\toral
\ninter-\n<\/p>\n
300<\/span><\/p>\n
view that it has been observed in para 16 & 17 of the report
\nthat  it was clearly illegal to give marks in a lumpsum\t and
\nthat  the committee had not divided the marks under  various
\nheads nor on the basis of item-wise.  It is also to be\tkept
\nin  view  that while selecting a student  for  admission  in
\nM.B.B.S.  course, what is more important is his\t performance
\nin the written test and even at the oral interview his\tpast
\nrecord\tof performance has its own weight.  A student  while
\nundertaking  study is not required to perform any duty of  a
\npublic office.\tBut in the case of recruitment to the  posts
\nof  Munsiffs he is required to work at the grass-root  level
\nof State Judiciary.  For candidates aspiring to be appointed
\nin such a judicial office, apart from the written test,\t his
\noverall performance at oral interview is more important\t and
\nconsequently  split up of the marks on various sub-heads  at
\noral  interview\t of  such a candidate may  not\tbe  strictly
\nnecessary  unless the concerned rule regulating such a\tviva
\nvoce  test expressly provides to that effect.  As  we  have,
\nseen  earlier rule 10(1)(b) does not so prescribe and  hence
\nit  was\t open  to the members of the committee\tto  make  an
\noverall assessment of the interviewed candidates keeping  in
\nview the various factors for such assessment as laid down by
\nthe said rule.\t‘Mat is precisely what has been done in\t the
\npresent\t case as stated by Dr. Girija Dhar a member  of\t the
\ninterview committee in para 3 of her affidavit in reply.  It
\nis  stated  by her that the only  considerations  which\t the
\nMembers of the Interview Board had during the viva voce test
\nwere  to  judge\t the  candidates  on  the  basis  of   their
\nintelligence,  general knowledge, personality, aptitude\t and
\nsuitability as required by rule 10(1)(b) of the\t recruitment
\nrules, that all the question directed at the viva voce\ttest
\nto  the\t candidates were with this object in  view  and\t the
\nassessment had been made of the candidates at the viva\tvoce
\ntest  accordingly.   As a matter of  fact,  the\t particulars
\nfurnished  by  the  candidates\tin  their  applications\t  in
\npursuance  of the advertisement only had been placed  before
\nthe  Members  of the Interview Board.  The  results  of\t the
\ncandidates at the written examination were not placed before
\nthe  Members  of  the Interview\t Board.\t  Nothing  has\tbeen
\npointed\t out  by  the learned  counsel\tfor  petitioners  to
\ndisbelieve  this version.  No bias is also  alleged  against
\nher  or any other member who made the selection.  It  cannot
\ntherefore  be  said that rule 10(1)(b) was violated  by\t the
\ninterview committee while conducting viva voce test.  It may
\nalso be mentioned at this stage that decision of this  Court
\nin  Minor A. Peeriakaruppan v. State of Tamil Nadu and\tOrs.<\/a>
\n(supra) (1971 (1) SCC 38) was later considered by this Court
\nin the case of Lila Dhar v. State of Rajasthan<\/a> (1981 (4) SCC\n<\/p>\n
159).  in  Lila Dhar’s case this  Court\t distinguishing\t the
\nratio in Peeriakaruppan’s case (supra) observed as under:-\n<\/p>\n
\t      “It  is true that in Peeriakanippan case\t(AIR
\n\t      1971  SC\t2303) the Court held that  the\tnon-
\n\t      allocation of marks under various heads in the
\n\t      interview\t test  was  illegal  but  that\t was
\n\t      because  the  instructions  to  the  Selection
\n\t      Committee\t provided  that\t marks\twere  to  be
\n\t      awarded at the interview on the basis of\tfive
\n\t      distinct\ttests.\t It  was  thought  that\t the
\n\t      failure  to allocate marks under each head  or
\n\t      distinct\ttest was an illegality.\t But in\t the
\n\t      case before us, the rule merely and  generally
\n\t      indicates the criteria to be considered in the
\n\t      interview test without dividing the  interview
\n\t      test  into distinct, if we may so\t call  them,
\n\t      sub-tests……..\n<\/p><\/blockquote>\n
The aforesaid decision in Lila Dhar’s case
\n301<\/span>
\nwas approved by a Constitution Bench of this Court  speaking
\nthrough Bhagwati, J. as he then was in Ashok Kumar Yadav  v.
\nState  of Haryana (1985 (4) SCC 417).  This aspect was\talso
\nconsidered later by a Division Bench of this Court  speaking
\nthrough\t Chinnappa  Reddy, J. in Dr. Keshav Ram Pal  v.\t UP.
\nHigher Education Services Commission, Allahabad & Ors.\t(AIR
\n1986 SC 597).  An identical contention concerning viva\tvoce
\ntest  conducted\t by the interview board which had  not\tsub-
\ndivided the total marks into sub-heads was rejected in\tthat
\ncase.\tChinnappa Reddy, J. speaking for the Division  Bench
\nobserved  that interview board was not under any  obligation
\nto  sub-divide\tthe marks under various\t heads.\t  The  Court
\nnoted that the basis of selection in that case was to assess
\nthe  candidates academic attainments, technical\t experience,
\nadministrative\texperience and suitability for the -post  of
\nPrincipal.   In the light of that-rule it was held  by\tthis
\nCourt in the aforesaid decision that the interview board was
\nnot under any obligation to sub-divide the marks under vari-
\nous  heads.   Almost an identical position  obtains  in\t the
\npresent case.  Consequently, it must be held that there\t was
\nno  obligation\tfor the members of the\tCommission  to\tgive
\nseparate marks under various heads faculty-wise as mentioned
\nin rule 10(1)(b).  The first contention therefore fails\t and
\nis rejected.\n<\/p>\n
Contention No. 2<\/span><\/p>\n
15.  So far as contention no. 2 is concerned it is difficult
\nto appreciate how it can be   urged that expert was allotted
\nonly 60 marks for assessment while the remaining  assessment
\nwas done by the other members.\tThere is no factual basis on
\nthe record of this case for supporting this contention.\t  On
\nthe other hand, the averments made by Dr. Girija Dhar in the
\nreply  affidavit clearly shows that all the members  of\t the
\ninterview committee participated in the process of selection
\nof candidates at the oral interview keeping in view the\t re-
\nquirement of rule 10(1)(b).  The second contention therefore
\nalso, being devoid of any factual basis, stands rejected.\n<\/p>\n
Contention No. 3<\/span><\/p>\n
16.It  is  difficult to appreciate  this  contention.\tRule
\n10(1)(b) to which we made reference earlier nowhere provides
\nthat  tape-recording should be kept of questions put by\t the
\nmembers\t of  the  committee and the  answers  given  by\t the
\nconcerned  candidates at the oral interview and that in\t the
\nabsence\t of such tape-recording the interview process  would
\nfail.\tThe  learned senior counsel for the  petitioners  in
\nthis  connection  invited. our attention to  a\tConstitution
\nBench  decision\t of this Court in the case of Ajay  Hasia  &
\nOrs.  v. Khalid Mujib Sehravardi & Ors.<\/a> (1981 (1) SCC  722).
\nThat  was a case in which the Constitution Bench dealt\twith
\nthe claim of petitioners for admission in B.E. course.\t The
\ncandidates  had appeared in written test and then they\twere
\ncalled for oral interview.  Rejecting the contention of\t the
\npetitioner that the oral test was defective, it was observed
\nthat  oral interview is undoubtedly not a very\tsatisfactory
\ntest  for assessing and evaluating the capacity and  caliber
\nof  candidates,\t but in the absence of any better  test\t for
\nmeasuring  personal  characteristics and  traits,  the\toral
\ninterview  test must, at the present stage, be\tregarded  as
\nnot  irrational\t or irrelevant though it is  subjective\t and
\nbased on first impression, its result is influenced by\tmany
\nuncertain  factors and it is capable of abuse.\tHowever,  in
\nthe
\n302<\/span>
\nmatter\tof  admission to college or even  in  the  matter-of
\npublic employment, the oral interview test as presently held
\nshould\tnot be relied upon as an exclusive test, but it\t may
\nbe  resorted to only as an additional or supplementary\ttest
\nand, moreover, great care must be taken to see that  persons
\nwho are appointed to conduct the oral interview test are men
\nof  high integrity, calibre and qualification.\tIt is to  be
\nkept in view that Bhagwati, J. as he then was, speaking\t for
\nthe  Court in that case ultimately dismissed  the  petitions
\nsubject to certain general observations and directions.\t  So
\nfar   as  tape-recording  is  concerned,  as  one   of\t the
\ncontentions  of the petitioners was that the oral  interview
\nwas   held  in\tan  arbitrary  and  slip  sort\tmanner,\t  an
\nobservation was made in para 20 of the report to the  effect
\nthat  it  would also be desirable if the  interview  of\t the
\ncandidates is tape-recorded, for in that event there will be
\ncontemporaneous\t evidence  to show what were  the  questions
\nasked  to the candidates by the interviewing  committee\t and
\nwhat were the answers given and that will eliminate a lot of
\nunnecessary  controversy  besides acting as a check  on\t the
\npossible arbitrariness of the interviewing committee.  These
\nobservations  cannot be read to mean that in the absence  of
\ntape-recording\tof  questions  and  answers  the   interview
\nprocess would fail or the result of the interview would\t get
\nvitiated.   In\tthe  very  writ\t petitions  decided  by\t the
\nConstitution  Bench, even though were was no  tape-recording
\nof  questions  and answers, interview test was\tupheld.\t  It
\nappears\t that  the  aforesaid observation  only\t suggests  a
\nbetter\t method\t for  insulating  oral\tinterviews   against
\npossible  future attacks of arbitrariness and nothing  more.
\nConsequently, it cannot be said that merely because there is
\nnothing\t on  the record to show that any  tape-recording  of
\nquestions  and answers at the interview was done,  the\tviva
\nvoce  test  should  on that  score  fail.   Therefore,\tthis
\ncontention also stands rejected.\n<\/p>\n
Contention No. 4<\/span><\/p>\n
17.In the light of what is stated above, while dealing\twith
\ncontention  no.\t 1,  this contention also  must\t fail.\t The
\npetitioners subjectively feel that as they had fared  better
\nin  the\t written  test and had\tgot  more  marks-therein  as
\ncompared to concerned selected respondents, they should have
\nbeen given more marks also at the oral interview.  But\tthat
\nis  in\tthe  realm  of\tassessment  of\trelative  merits  of
\nconcerned  candidates  by the expert committee\tbefore\twhom
\nthese candidates appeared for the viva voce test.  Merely on
\nthe basis of petitioners apprehension or suspicion that they
\nwere deliberately given less marks at the oral interview  as
\ncompared to the rival candidates, it cannot be said that the
\nprocess\t of assessment was vitiated.  This contention is  in
\nthe realm of mere suspicion having no factual basis.  It has
\nto  be kept in view that there is not even a whisper in\t the
\npetition  about\t any  personal bias of the  members  of\t the
\ninterview committee against the petitioner.  They have\talso
\nnot  alleged  any mala fides on the part  of  the  interview
\ncommittee  in this connection.\tConsequently, the attack  on
\nassessment  of\tthe  merits of\tthe  petitioners  cannot  be
\ncountenanced.\tIt  remains in the exclusive domain  of\t the
\nexpert\tcommittee  to decide whether more  marks  should  be
\nassigned to the petitioners or to the concerned respondents.
\nIt cannot be the subject matter of an attack before us as we
\nare  not  sitting as a court of appeal over  the  assessment
\nmade  by the committee so far as the candidates\t interviewed
\nby them are concerned.\n<\/p>\n
303<\/span><\/p>\n
In  the light of the affidavit in reply filed by Dr.  Girija
\nDhar  to which we have made reference earlier, it cannot  be
\nsaid  that  the\t expert committee  had\tgiven  a  deliberate
\nunfavorable  treatment\tto the\tpetitioners.   Consequently,
\nthis contention also is found to be devoid of any merit\t and
\nis rejected.\n<\/p>\n
Contention No. 5<\/span><\/p>\n
18.This\t contention  is equally devoid of  any\tmerit.\t The
\nsubmission of the learned senior counsel for the petitioners
\nis  that a mere look at annexure-C will show that the  merit
\nlist of open category candidates recommended for appointment
\ncomprises  of  majority\t of  candidates\t belonging  to\t one
\ncommunity only and therefore the committee has shown special
\nliking\tfor such candidates who are preferred  by  inflating
\ntheir marks in the oral interview.  To say the least, it  is
\na mere conjecture on the part of the petitioners.  The\tvery
\nfirst  candidate in the order of merits is roll no. 100\t who
\ndoes  not  belong  to the other community.  He\tis  one\t Sh.
\nVinod Chatterji.  Similarly, there are also other candidates
\nin the said merit list of 16 candidates who do not belong to
\nthe other community’ Once the interview process is found  to
\nbe  proper and justified and not being vitiated by any\tmala
\nfides,\tthe  result  of the viva voce  test  may  project  a
\npicture in which more candidates from one community may\t get
\nselected on merits but that is neither here nor there.\t The
\nvalidity  of viva voce test cannot be judged simply  on\t the
\nbasis of the result thereof unless there is anything to show
\nthat the entire selection process was vitiated on account of
\nmala fides or bias or that the interview committee,  members
\nhad  acted with an ulterior motive from the  very  beginning
\nand  the whole selection process was a camouflage.  No\tsuch
\nallegations  have been made by the petitioners\tagainst\t the
\nselectors who sat in the interview committee.\tConsequently
\neven  this contention is found to be devoid of\tany  factual
\nbasis and stands rejected.\n<\/p>\n
Contention No. 6<\/span><\/p>\n
19.  So far as this contention is concerned  the  submission
\nof learned senior counsel     for the petitioners is that as
\nper  rule 9 of the rules a candidate for recruitment to\t the
\nservice must have put in at least two years actual  practice
\nat  the bar by the date on which he submits his\t application
\nfor such recruitment and must produce a certificate to\tthis
\neffect\tfrom the District Judge within the local  limits  of
\nwhose  jurisdiction  he\t has practiced at the  Bar.   It  is
\nsubmitted that neither respondent no.  IO nor respondent no.
\n13 had Out in two years of actual practice at the bar.\tThis
\ncontention  is\tsought to be repelled  by  the\trespondents.
\nThey  submitted that the District Judge of Jammu has  issued
\nrequisite certificates to both these candidates showing that
\nthey  had put in at least 2 years of actual practice at\t the
\nbar.   It  may be noted that learned counsel for  the  peti-
\ntioners\t submitted that so far as the certificate issued  by
\nDistrict  Judge\t to respondent no. 10 is  concerned  he\t had
\nnothing\t more to say but according to him, there is  nothing
\non  record to show that such a certificate was available  to
\nrespondent  no. 13.  During the course of arguments  learned
\ncounsel for respondents showed to us a certificate issued to
\nrespondent  no. 13 by the District Judge, Jammu.   That\t was
\nshown  to  the\tlearned\t counsel  for  the  petitioners\t who
\nthereafter did not pursue this objection further.   However,
\nhe submitted that according to him this certificate may\t not
\nbe correct as atleast respondent no. 13
\n304<\/span>
\nwas stationed in Leh where her husband was a police officer.
\nThis  contention is controverted by the\t respondents.\tEven
\napart from that the rule requires production of\t certificate
\nby District Judge within whose local limits of\tjurisdiction
\nthe  concerned\tadvocate should have practiced at  the\tbar.
\nThe  Commission would be justified in not going\t behind\t the
\ncertificate  issued by the concerned District Judge  and  in
\nnot  holding any further enquiry into the extent  of  actual
\npractice  put  in  by such candidate at the  bar  for  being
\npermitted  to appear at the written and viva voce test.\t  As
\nboth  these  candidates are armed  with\t certificates  which
\nclearly\t indicated that before 28th December ’92, being\t the
\nlast   date   for  submitting  applications   by   concerned
\ncandidates  for\t such  recruitment,  these  candidates\t had
\ncompleted  atleast 2 years of actual practice at the bar  as
\ncertified  by their District Judge, it cannot be urged\twith
\nany emphasis that still they are not eligible to compete for
\nthe said posts.\n<\/p>\n
20.It was next vehemently contended by the petitioners\tthat
\nactual\tpractice  would mean that the  concerned  candidates
\nshould\thave  appeared\tbefore courts  and  conducted  cases
\nduring\tthese  two years.  It is difficult  to\taccept\tthis
\ncontention.  A member of the bar can be said to be in actual
\npractice  for  2  years and more if he\tis  enrolled  as  an
\nAdvocate by the concerned Bar Council since 2 years and more
\nand  has attended law courts during that period.   Once\t the
\nPresiding Officer of the District Court has given him such a
\ncertificate,  it cannot be said that only because as an\t ad-
\nvocate\the has put in less number of appearances  in  courts
\nand  has  kept\thimself\t busy  while  attending\t the  courts
\nregularly by being in the law library or in the bar room, he
\nis  not\t a  member of the profession or\t is  not  in  actual
\npractice  for that period.  The words ‘actual  practice’  as
\nemployed in rule 9 indicate that the concerned advocate must
\nbe  whole time available as a professional attached  to\t the
\nconcerned court and must not be pursuing any other full time
\navocation.   To\t insist\t that the  terms  ‘actual  practice’
\nshould mean continuous appearances in the court would amount
\nto  rewriting the rule when such is not the  requirement  of
\nthe  rule.   There is no substance even in  this  additional
\naspect of the matter canvassed by the learned senior counsel
\nfor  the  petitioners.\t It  must  therefore  be  held\tthat
\nrespondent  no. 10 & 13 were eligible for competing for\t the
\nsaid posts of Munsiffs.\n<\/p>\n
21.It is difficult to appreciate how only because respondent
\nno. 13 was the daughter of the Chairman and  daughter-in-law
\nof   another  Member  of  the  Commission,  both   of\twhom
\ndisassociated  themselves from the selection process as\t she
\nwas  competing,\t can be said to be disqualified\t from  being
\nconsidered   for  selection  only  on  the  ground  of\t her
\nrelationship  with the concerned Members of the\t Commission.
\nThe  learned  senior  counsel  for  the\t petitioners  fairly
\nsubmitted  that\t relatives of Members  simpliciter  are\t not
\ndisqualified  but his contention was that other\t Members  of
\nthe  Commission\t are also bureaucrats and  would  be  having
\nliking\tand soft comer for each other.\tThey  may  therefore
\ntry  to push up the relative- of the Chairman  by  inflating
\nher  marks at the oral test.  Such a contention, to say\t the
\nleast,\t is  totally  outside  the  scope  of  the   present
\nproceedings.  As we have noted earlier, it is not alleged by
\nthe petitioners that the Members of the Interview  Committee
\nwere  biased either against the petitioners or in favour  of
\nany given candidate.  In the absence of such
\n305<\/span>
\npleading  of  bias  and\t mala  fides  such  a\thypothetical
\ncontention,  only based on the result of the oral  interview
\ncannot\tbe  sustained.\tIt is also to be kept in  view\tthat
\nthere  is  one\tsalient feature of the\tcase  which  contra-
\nindicates  this contention.  As noted earlier there were  11
\nvacancies  of Munsiffs for which the selection\tprocess\t was
\nstarted\t by  the Commission as recommended by the  State  of
\nJammu and Kashmir.  So far as respondent No. 13 is concerned
\nher rank on merits of open category candidates is at sl. no.
\n14, in the light of the marks obtained by her.\tThere are 13
\ncandidates above her who have got more marks.  Therefore, if
\n11 vacancies were to be filled in, respondent no.13 would be
\nleft out.  If what the petitioners contended was true and if
\nthe Members of the Commission were interested in seeing that
\nanyhow she walks in an for that purpose they were to inflate
\nher  marks, they would have resorted to inflating her  marks
\nto such an extent that she would clearly walk in the list of
\nfirst  11  selected candidates.\t Consequently  there  is  no
\nsubstance  in  this contention of learned  counsel  for\t the
\npetitioners.   In  this connection, we may  also  profitably
\nrecapitulate  what is stated in para 2 of the  affidavit  in
\nreply of Dr. Girija Dhar.  She has clearly stated that as  a
\nmatter\tof fact the particulars furnished by the  candidates
\nin their applications in pursuance of the advertisement only
\nhad  been placed before the Members of the Interview  Board.
\nThe  results  of the candidates at the\twritten\t examination
\nwere  not placed before the Members of the Interview  Board.
\nThese averments could not be successfully challenged by\t the
\nlearned counsel for the petitioners.  Consequently, it\tmust
\nbe held that the Members of the Interview Committee were not
\nknowing as to what marks were obtained by the candidates  at
\nthe written test.  Therefore, there would be no occasion for
\nthem  to manipulate the marks of any candidate at  the\toral
\ninterview  so  as to bring them in the light  of  the  marks
\nobtained  by him in the written test to a total which  would
\nmake him eligible to be included in the select list of first
\nII  candidates\tas  there  were\t only  11  clear  vacancies.
\nConsequently,  there is no substance even in this  grievance
\nof the petitioners.\n<\/p>\n
Contention No.8\n<\/p>\n
22.This\t takes\tus  to the  last  contention.\tThe  learned
\ncounsel\t for  the  petitioners submitted  that\tas  per\t the
\nrequisition  forward  by  the State  of\t Jammu\tand  Kashmir
\nthrough\t the  Secretary to the Law  Department,\t the  second
\nrespondent  was required to hold the selection\tprocess\t for
\nrecruiting  candidates\tfrom open market for filling  up  11
\nvacancies.   The  said\tletter\tof  the\t Secretary  to\t the
\nGovernment, Law Department is at annexure-A to the petition.
\nIt reads as under: –\n<\/p>\n
\t      GOVERNMENT   OF JAMMU AND KASHMIR CIVIL  SECTT
\n\t      :LAW DEPARTMENT
\n\t      TO
\n\t      The Secretary,
\n\t      J & K State Public Service
\n\t      Commission, Srinagar
\n\t      No.\t\t\t\t  LD(A)92\/78
\n\t      Dated: 22.7.1992
\n\t      Subject:\t Selection  of\tCandidates  for\t ap-
\n\t      pointment\t  as   Munsiffs\t in   the   Judicial
\n\t      Department.\n<\/p><\/blockquote>\n
\t      Sir,.\n<\/p><\/blockquote>\n
\t      I\t am directed to say that the Public  Service
\n\t      Commission  may  kindly  start  a\t process  in
\n\t      accordance with the Jammu
\n\t\t\t\t   306<\/span>
\n\t      and  Kashmir  Civil  Service  (Judicial)\t Re-
\n\t      cruitment\t Rules, 1967 for selection  of\tcan-
\n\t      didates  for  appointment as Munsiffs  in\t the
\n\t      K.C.S.\t(Judicial)    Service.\t    However,
\n\t      considering  the fact that only  11  vacancies
\n\t      are presently available, only a select list of
\n\t      twenty   candidates  inclusive  of   Scheduled
\n\t      Castes\/Scheduled\tTribes\tcandidates  as\t per
\n\t      their reservation quota may kindly be prepared
\n\t      and  furnished to the Government.\t No  waiting
\n\t      list of candidates is ‘required.
\n\t\t\t Yours faithfully,
\n\t\t\t       Sd\/-\n<\/p><\/blockquote>\n
\t\t\t    G.A Lone,
\n\t\t\t    Secretary  to  Government\tLaws
\n\t      Department”\n<\/p><\/blockquote>\n
A  mere\t look  at  the\tletter\tshows  that  the  Government
\nrequested the Commission to hold selection for filling up II
\nclear  vacancies only.\tThe letter nowhere showed that\tmore
\nvacancies  were likely to arise in future and selection\t may
\nbe  held  also for such anticipated vacancies.\tIt  is\ttrue
\nthat  the  letter  mentioned  that  a  select  list  of\t  20
\ncandidates  may be prepared and furnished to the  Government
\nbut  these  9 additional candidates would serve\t as  waiting
\nlist candidates from which eligible candidates can be  drawn
\nin  order  or  merits  if any of  the  first  11  candidates
\nselected  did  not join or for any reason  could  not  join.
\n‘Mat  is the precise reason why no separate list of  waiting
\nlist candidates was directed to be prepared.  Learned senior
\ncounsel for the petitioners was right when he submitted that
\nthe  recruitment  process in the present case was  only\t for
\nfilling\t up II existing clear vacancies of Munsiffs.  It  is
\nnot  possible to agree with the respondents that  this\treq-
\nuisition also took note of anticipated vacancies during\t the
\ncourse\tof  one year and therefore it can be said  to  be  a
\nrequisition  for  recruiting  20  candidates  on  clear\t and
\nanticipated vacancies.\tIf that was so, the contents of\t the
\nletter would have been different.  We agree with the learned
\ncounsel\t  for  the  respondents\t that  while   sending\t the
\nrequisition for recruitment to posts the Government can keep
\nin view not only actual vacancies then existing but also an-
\nticipated  vacancies  during one more year or  for  a  given
\nperiod of time and in that case the requisition would  cover
\nactual\tvacancies and anticipated ones.\t But one  the  clear
\nwordings  of  the aforesaid letter, it is  not\tpossible  to
\nagree  with  this  submission.\tIt must\t be  held  that\t the
\nrequisition  in the present case by the Government  was\t for
\nholding\t selection tests by the Commission  for fillings  up
\n11  clear  vacancies  and  nothing  more.   No\t anticipated
\nvacancies were contemplated to be filled in.  The process of
\nrecruitment  was  got  initiated by the\t State\tthrough\t the
\nCommission, for only eleven clear vacancies.\n<\/p>\n
23.  It is no doubt true that even if requisition is made by
\nthe  Government for II Dosts the public\t Service  Commission
\nmay ‘send merit list of suitable candidates which may exceed\n<\/p>\n
11. That by itself may not be bad but at the time of  giving
\nactual\tappointments  the merit list has to be\tso  operated
\nthat  only  11\t  vacancies  are  filled  up,  because\t the
\nrequisition   being  for  11\t vacancies,  the   consequent
\nadvertisement and recruitment could also be for 11 vacancies
\nand  no more.  It easy to visualise that if  requisition  is
\nfor  11\t  vacancies and that results in\t the  initiation  of
\nrecruitment  process  by way of advertisement,\twhether\t the
\nadvertisement mentions filling up of 11\t  vacancies or\tnot,
\nthe  prospective  candidates can easily find  out  from\t the
\nOffice\tof  the\t Commission that  the  requisition  for\t the
\nproposed  recruitment  is for filling up 11  vacancies.\t  In
\nsuch a case a given can-\n<\/p>\n
307<\/span><\/p>\n
didate\tmay not like to compete for diverse reasons  but  if
\nrequisition  is\t for larger number of  vacancies  for  which
\nrecruitment  is\t initiated he may like to  compete.   Conse-
\nquently\t the  actual appointments to the posts\thave  to  be
\nconfined  to the posts for recruitment to which\t requisition
\nis  sent  by  the  Government.\t In  such  an\teventuality,
\ncandidates  in excess of 11 who are lower in the merit\tlist
\nof candidates can only be treated as wait listed  candidates
\nin  order  of merit to fill only the  eleven  vacancies\t for
\nwhich recruitment has been made, in the event of any  higher
\ncandidate not being available to fill the 11 vacancies,\t for
\nany  reason.   Once 11 Vacancies are  filled  by  candidates
\ntaken in order of merit from the select list that list\twill
\nget exhausted, having served its purpose.\n<\/p>\n
24.It is now time to refer to rule 41 as pointed out by\t the
\nlearned counsel for the petitioners.  The said rule reads as
\nunder:-\n<\/p>\n
\t      “Security\t of  the  list.\t The  list  and\t the
\n\t      waiting list of the selected candidates  shall
\n\t      remain  in operation for a period of one\tyear
\n\t      from  the\t date  of  its\tpublication  in\t the
\n\t      Government Gazette or till it is exhausted  by
\n\t      appointment  of  the candidates  whichever  is
\n\t      earlier,\tprovided that nothing in  this\trule
\n\t      shall  apply to the list and the waiting\tlist
\n\t      prepared\tas a result of the examination\theld
\n\t      in  1981 which will remain in  operation\ttill
\n\t      the list or the waiting fist is exhausted.\n<\/p><\/blockquote>\n
A  mere\t look  at  the\trule  shows  that  Pursuant  to\t the
\nrequisition to be forwarded by Government to the  Commission
\nfor  initiating the recruitment process, if  the  Commission
\nhas  prepared  merit  list  and\t waiting  list\tof  selected
\ncandidates  such list will have a life of one year from\t the
\ndate  of  publication in Government Gazette or\ttill  it  is
\nexhausted  by  the appointment of candidates,  whichever  is
\nearlier.   This means that if requisition is for filling  up
\nof  II\tvacancies and it does not  include  any\t anticipated
\nvacancies, the recruitment to be initiated by the Commission
\ncould  be for selecting 11 suitable candidates.\t  ‘The\tCom-
\nmission\t may by abundant caution prepare a merit list of  20
\nor  even  30  candidates as per their inter  se\t ranking  on
\nmerits.\t  But such a merit list will have a maximum life  of
\none  year  from\t the date of publication  or  till  all\t the
\nrequired  appointments\tare  made  whichever  even  happened
\nearlier.   It means that if requisition for  recruitment  is
\nfor  11\t vacancies  and the merit list prepared\t is  for  20
\ncandidates, the moment 11  vacancies are filled in from\t the
\nmerit list the gets exhausted, or if during the span of\t one
\nyear  from  the date of obligation of such list all  the  11
\nvacancies are not filled in, the moment the year is over the
\nlist  gets  exhausted.\t In  either  event,  thereafter,  if
\nfurther vacancies are to be filled in or remaining vacancies
\nare to be filled in, after one year, a fresh opportunity  to
\nall  the  open market candidates to compete.   This  is\t the
\nthrust\tof  rule 41.  It is in consonance with\tthe  settled
\nlegal  position as we will presently see.  We  cannot  agree
\nwith  the  learned counsel for respondents that\t during\t the
\nperiod of one year even if all the 11  vacancies are  filled
\nin  for which requisition is initiated by the State  in\t the
\npresent case and if some more vacancies arise during the one
\nyear,  the present list can still be operated  upon  because
\nthe Commission has sent the list of 20 selected\t candidates.
\nAs  discussed above, the candidates standing at serial\tnos.
\n12  to 20 in the list can be considered only in case  within
\none  year of its publication, all the 11  vacancies  do\t not
\nget  filled  up for any reason.\t In such a  case  only\tthis
\nadditional list of
\n308<\/span>
\nselected  candidates would serve as a reservoir\t from  which
\nmeritorious  suitable  candidates can be drawn in  order  of
\nmerit to fill up the remaining requisitioned and  advertised
\nvacancies, out of the total 11 vacancies.  If that cannot be
\ndone  for any reason within one year of the  publication  of
\nthe  list,  even this reservoir will dry up and\t the  entire
\nlist  will  get\t exhausted.  We asked  learned\tcounsel\t for
\nrespondents  State to point out whether after the letter  at
\npage 87, there was any further communication by the State to
\nthe  Commission\t to  initiate  process\tfor  recruitment  to
\nadditional anticipated vacancies.  He -fairly stated that no
\nfurther\t request  was sent.  That letter at page 87  is\t the
\nonly  material for this purpose since that is the basis\t for
\nthe recruitment made by the Commission in the present  case.
\nIn  this connection, we may usefully refer to a decision  of
\nthis  Court  in the Case of State of Bihar  v.\tMadan  Mohan
\nSingh  & Ors. (AIR<\/a> 1994 SC 765).  In that case\tappointments
\nto the posts of Additional District and Sessions Judges were
\nbeing  questioned.   The question was  whether\tappointments
\ncould be made to more than 32 posts when the selection\tpro-
\ncess  was initiated for filling up 32 vacancies and  whether
\nthe  merit list of larger number of candidates would  remain
\nin Operation after 32 vacancies were filled in.\t  Negativing
\nthe  contention\t the such merit list for  larger  number  of
\ncandidates could remain in operation after 32 advertised va-
\ncancies\t were filled in, K. Jayachandra Reddy, J.  made\t the
\nfollowing pertinent observations:-\n<\/p>\n
\t      “Where  the particular advertisement  and\t the
\n\t      consequent  selection process were meant\tonly
\n\t      to fill up 32 vacancies and not to fill up the
\n\t      other   vacancies,  the  merit  list  of\t 129
\n\t      candidates prepared in the ratio of 1:4 on the
\n\t      basis of the written test as well as viva voce
\n\t      will  hold  good\tonly  ‘for  the\t purpose  of
\n\t      filling  up those 32 vacancies and no  further
\n\t      because said process of selection for those 32
\n\t      vacancies\t got exhausted and came to  an\tend.
\n\t      If the same list has to be kept subsisting for
\n\t      the purpose of filling up other vacancies also
\n\t      that would naturally amount to deprivation  of
\n\t      rights  of  other candidates  who\t would\thave
\n\t      become   eligible\t subsequent  to\t  the\tsaid
\n\t      advertisement and selection process.\n<\/p><\/blockquote>\n
Reliance  placed by the learned counsel for  respondents  in
\nthe  case of Asha Kaul (Mrs) and Anr.  Vs.  State  of  Jammu
\nand Kashmir and Ors. (1993 (2) SCC 573), is of no avail.  In
\nthat  case  the very same Jammu and Kashmir  Government\t had
\nsent  a\t requisition  to the Public  Service  Commission  to
\nselect 20 candidates for the posts of Munsiffs in accordance
\nwith the High Court requirement.  Therefore, the  Commission
\nadvertised  for\t recruitment  to the  said  posts  and\theld
\nwritten\t test  and oral interview.   The  Commission  having
\nselected  20  candidates  in the order of  merits  and\talso
\nhaving\tprepared a waiting list of candidates, the State  of
\nJammu\tand  Kashmir  did  not\tappoint\t even  selected\t  20
\ncandidates  on\tthese  advertised  posts.   The\t High  Court
\nrejected  the writ petition praying for a  suitable writ  of
\nmandamus to the State to fill up the remaining vacancies out
\nof  20\tfor  which recruitment was  made.   The\t petitioners
\napproached  this  court in appeal by way of  special  leave.
\nThis  court speaking through Jeevan Reddy, J took  the\tview
\nthat though inclusion in the select list does not confer any
\nindefeasible  right to appointment, there was an  obligation
\nfor  the  Government  to fill up all  the  posts  for  which
\nrequisition  and advertisement were given.  However  on\t the
\npeculiar  facts of the case, the court did not think it\t fit
\nto interfere.  This court in para 10 of the
\n309<\/span>
\nreport clearly observed that by merely approving the list of
\n20 there was no obligation on the Government to appoint them
\nforthwith.  The appointment depends upon the availability of
\nthe vacancies.\tThe list remains valid for one year from the
\ndate  of its approval and date of publication and if  within
\nsuch  one  year\t any  of  the  candidates  therein  is\t not
\nappointed,  the\t list  lapses and a fresh  list\t has  to  be
\nprepared.   Though a number of complaints had been  received
\nby  the\t Government  about the\tselection  process,  if\t the
\nGovernment wanted to disapprove or reject the list, it ought
\nto  have done so within a reasonable time of the receipt  of
\nthe select list and for reasons to be recorded.\t Not  having
\ndone that and having approved the list partly (13 out of  20
\nnames), they cannot put forward any ground for not approving
\nthe remaining list.  It is difficult to appreciate how\tthis
\njudgment  can  be of any avail to the respondents.   In\t the
\ncase   aforesaid  before  this\tcourt  there  was  a   clear
\nrequisition  and  recruitment for 20 posts.  The  State\t had
\nhowever chosen to appoint only 13 out of 20. The list had  a
\nlife  of one year till all the 20 posts were fill up.\tThis
\nwas  in\t consonance with rule 41.  In the present  case\t the
\nfacts  are  different.\t The  requisition  is  not  for\t  20
\nvacancies as in Asha Kaul’s case but for 11 posts.  There is
\nno  requisition to fill up any anticipated  more  vacancies.
\nOnce the list is approved eventhough it may contain names of
\n20  candidates,\t the  list  in the  present  case  will\t get
\nexhausted once 11 vacancies for which advertisement had been
\nissued and recruitment is made are filled up.\n<\/p>\n
25.At  this  stage  we\tmay profitably\trefer  to  one\tmore
\ndecision  of  this  court in Hoshiar  Singh  Vs.   State  of
\nHaryana\t and Ors. (1993 supp (4) SCC 377).  In that case  of
\nrequisition for recruitment as sent by the Director  General
\nof  Police  to the Haryana  Subordinate\t Services  Selection
\nBoard was for appointment of 8 posts of Inspector of Police.
\nThe  Board however sent the list of 19 selected\t candidates,
\nout  of\t them  18  persons  were  given\t appointments.\t The
\nappointments   on  posts  beyond  the  8  posts\t for   which
\nrequisition was made by the Director General of Police\twere
\nbrought in challenge before the High Court.  The High  Court
\naccepted  the challenge and held that appointments beyond  8
\nposts were illegal.  This Court while upholding the decision
\nof High Court speaking through Agrawal, J. observed in\tpara
\n10 of the report as under:-\n<\/p>\n
\t      “The learned counsel for these appellants have
\n\t      not  been able to show that after the  revised
\n\t      requisition dated January 24, 1991 whereby the
\n\t      Board was requested to send its recommendation
\n\t      for 8 posts, any further requisition was\tsent
\n\t      by the Director General of Police for a larger
\n\t      number  of posts.\t Since the  requisition\t was
\n\t      for  eight posts of Inspector of\tPolice,\t the
\n\t      ‘Board\twas    required\t   to\t sent\t its
\n\t      recommendations  for  eight posts\t only.\t The
\n\t      Board,  on its own, could not recommend  names
\n\t      of 19 persons for appointment even though\t the
\n\t      requisition  was for eight posts only  because
\n\t      the  selection  and recommendation  of  larger
\n\t      number  of  persons than the posts  for  which
\n\t      requisition  is sent.  The appointment on\t the
\n\t      additional   posts  on  the  basis   of\tsuch
\n\t      selection\t and  recommendation  would  deprive
\n\t      candidates   who\t were\tnot   eligible\t for
\n\t      appointment to the posts on the last date\t for
\n\t      submission  of applications mentioned  in\t the
\n\t      advertise\t  and\twho  became   eligible\t for
\n\t      appointment thereafter, of the opportunity  of
\n\t      being   considered  for  appointment  on\t the
\n\t      additional   posts   because   if\t  the\tsaid
\n\t      additional  posts are advertised\tsubsequently
\n\t      those  who  become  eligible  for\t appointment
\n\t      would be
\n\t      310<\/span>
\n\t      entitled\tto  apply for the  same.   The\tHigh
\n\t      Court  was, therefore, right in  holding\tthat
\n\t      the selection of 19 persons by the Board\teven
\n\t      though  the requisition was for 8 posts  only,
\n\t      was not legally sustainable.  ”\n<\/p><\/blockquote>\n
In  the present case as the requisition is for 11 posts\t and
\neven  though  the  Commission might have  sent\tlist  of  20
\nselected candidates, appointments to be effected out of\t the
\nsaid  list would be on 11 posts and not beyond 11 posts,  as
\ndiscussed  by  us  earlier.   This  contention\twill   stand
\naccepted to the extent indicated hereinabove.\n<\/p>\n
26.  As per annexure-C so far as open category\t  candidates
\nare concerned, they are shown in   the order of merits\tupto
\nsl.  no.  16.  There  arc also\t2  Scheduled  Castes  and  2
\nScheduled Tribes candidates in all making 20. The extend  of
\nselected  Scheduled Caste and Scheduled Tribe candidates  on
\nreservation  quota  works  out to be 1\/5  of  the  total  20
\nselected  candidates.\tIf this list has to operate,  as  we
\nhave  held, only till vacancies are filled up, then  on\t the
\nratio  of  115 of the total vacancies to be filled  up,\t the
\nposts  to  be reserved for Scheduled  Castes  and  Scheduled
\nTribes\tout  of\t total\t1 1 posts  could  be  one  each\t for
\nScheduled Caste and Scheduled Tribe candidates, as 1\/5 of 11
\nwould be 2.5 which would yield either 2 reserved  candidates
\nor maximum 3 candidates but as maximum 3 candidates may tilt
\nthe  inter  se\tbalance between\t the  Scheduled\t Castes\t and
\nScheduled Tribes, if either of these two categories is given
\n2 posts out of 3, interest of justice would be served if  we
\ndirect\tthe respondents to reserve 2 posts in all out of  II
\nfor being filled up by 1 Scheduled Caste and Scheduled Tribe
\ncandidate each, in the order of inter se merits of Scheduled
\nCaste  and Scheduled Tribe selected candidates as  mentioned
\nin  the list at annexure-C.  The remaining 9 posts  will  be
\navailable to general category candidates as listed in  order
\nof  merits in the list at annexure-C.  The moment  these  11
\nposts are filled up within 1 year of the publication of list
\nat  annexureC  this list will get exhausted or\tif  for\t any
\nreason these II vacancies could not be filled up by the time
\none  year from the date of publication of the list is  over,
\neven then the list would get exhausted and fresh recruitment
\nwill have to be made in the light of fresh requisition\tfrom
\nthe  State.  For computing one year’s currency\tof  impugned
\nselect\tlist  as  per  rule  41,  the  period  during  which
\nappointments  were stayed during pendency of these  proceed-
\nings  would  naturally got excluded.   The  contention\tno.8
\ntherefore  will stand accepted to the aforesaid extent.\t  In
\nthe  result  this writ petition fails subject  only  to\t the
\ndirections  issued  by\tus to  the  State  Government  while
\naccepting  contention  no. 8 aforesaid.\t In  the  facts\t and
\ncircumstances  of  the case, there will be no  order  as  to
\ncosts.\n<\/p>\n
312<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Madan Lal & Ors vs The State Of Jammu & Kashmir And Ors on 6 February, 1995 Equivalent citations: 1995 AIR 1088, 1995 SCC (3) 486 Author: M S.B. Bench: Majmudar S.B. (J) PETITIONER: MADAN LAL & ORS. Vs. RESPONDENT: THE STATE OF JAMMU & KASHMIR AND ORS. DATE OF JUDGMENT06\/02\/1995 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-136825","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMadan Lal & Ors vs The State Of Jammu & Kashmir And Ors on 6 February, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/madan-lal-ors-vs-the-state-of-jammu-kashmir-and-ors-on-6-february-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madan Lal & Ors vs The State Of Jammu & Kashmir And Ors on 6 February, 1995 - 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