{"id":249440,"date":"1987-11-04T00:00:00","date_gmt":"1987-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-etc-vs-rafiquddin-ors-etc-on-4-november-1987"},"modified":"2018-06-01T09:46:48","modified_gmt":"2018-06-01T04:16:48","slug":"state-of-u-p-etc-vs-rafiquddin-ors-etc-on-4-november-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-etc-vs-rafiquddin-ors-etc-on-4-november-1987","title":{"rendered":"State Of U . P ., Etc vs Rafiquddin & Ors. Etc on 4 November, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U . P ., Etc vs Rafiquddin & Ors. Etc on 4 November, 1987<\/div>\n
Equivalent citations: 1988 AIR 162, 1988 SCR (1) 794<\/div>\n
Author: K Singh<\/div>\n
Bench: Singh, K.N. (J)<\/div>\n
           PETITIONER:\nSTATE OF U . P ., ETC .\n\n\tVs.\n\nRESPONDENT:\nRAFIQUDDIN & ORS. ETC.\n\nDATE OF JUDGMENT04\/11\/1987\n\nBENCH:\nSINGH, K.N. (J)\nBENCH:\nSINGH, K.N. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1988 AIR  162\t\t  1988 SCR  (1) 794\n 1987 SCC  Supl.  401\t  JT 1987 (4)\t251\n 1987 SCALE  (2)947\n CITATOR INFO :\n R\t    1988 SC1451\t (9)\n R\t    1991 SC 295\t (14)\n\n\nACT:\n     Service matters-Questions\tof law relating to seniority\nof Munsifs  in the  Uttar Pradesh Nyayik Seva appointed as a\nresult of  the competitive  Examinations of  1970, 1972\t and\n1973, held  under the  Uttar Pradesh Civil Service (Judicial\nBranch) Rules, 1951-Determination of.\n\n\n\nHEADNOTE:\n%\n     These  appeals   and  writ\t  petitions  raised   common\nquestions of  law relating to the determination of seniority\nof Munsif  appointed in\t the Uttar  Pradesh Nyayik Seva as a\nresult of  competitive Examinations  of 1970,  1972 and 1973\nheld under the Uttar Pradesh Civil Service (Judicial Branch)\nRules, 1951 (the Rules).\n     Public Service  Commission issued\ta notification dated\nSeptember 3,  1970, for\t recruitment to 85 posts of Munsifs.\nIn the\texamination held  for the  purpose, 294\t out of\t 918\ncandidates qualified in the written test and were called for\nviva voce  test, and  the Commission  submitted to the State\nGovernment a  list of  46 approved  candidates-list of\t1970\nexamination-for appointment  to the  service. The Government\nrequested the  Commission to  recommend some more candidates\nas there  was a\t shortage of  Munsifs, while suggesting that\nthe minimum of 40 per cent marks in the aggregate be reduced\nto 35  per cent. The Commission forwarded another list of 33\ncandidates-the IInd  list, comprising the candidates who had\nsecured 35  per cent  marks in the aggregate and 35 percent,\nin the\tViva Voce..  All the  79 candidates of the two lists\nabove said  were appointed to service between May, 1972, and\nJune, 1973,  and in  July, 1973,  a notification was issued,\ndetermining inter  seniority of\t the 79 persons appointed on\nthe basis  of the  1970 examination in accordance with their\nposition in  the lists prepared by the Commission under rule\n19 of  the Rules.  Meanwhile, the  Public Service Commission\nheld another  competitive examination-the  1972 examination-\nfor appointments  to 150  posts of  Munsifs, and forwarded a\nlist of\t 150 successful\t candidates to\tthe  Government\t for\nappointment under  Rule 19 above-mentioned, and they were so\nappointed between 1975 and 1977.\n     The State\tGovernment, in\tview of\t the shortage of the\nMunsifs\n795\nas also the amendment of rule 19 in pursuance whereof it was\nno longer necessary for a candidate to qualify independently\nin the viva voce, requested the Commission to reconsider the\nresult of  the examination  of 1967, 1968, 1969 and 1970 and\napprove all  those candidates for appointment who might have\nobtained 40  per cent or more marks in the aggregate even if\nthey might  have failed\t to secure  the minimum marks in the\nviva voce  tests. The  Commission refused  to consider\tthis\nproposal as  the minimum  marks prescribed  by it  under the\nthen existing  proviso to  Rule 19 could not be ignored. The\nGovernment thereupon  constituted  a  high  level  committee\ncomprising the Chief Minister, the Chief Justice of the High\nCourt and  the Chairman\t of the Public Service Commission to\nconsider this  question, and  the Committee decided that the\nCommission be requested to recommend candidates of the 1967,\n1968, 1969  and 1970  examinations as  above-mentioned.\t The\nGovernment wrote  to the  commission again  for the purpose,\nconveying to  it the  decision of  the High  level committee\nabove-said, and\t asking it  to forward\tthe applications and\nthe marks of the unsuccessful candidates of the Examinations\nabove-mentioned. The  Commission could\tforward a list of 37\nsuch candidates of the 1970 Examination only-the IIIrd list-\nto the\tGovernment. The\t IIlrd list  contained the  names of\nRefiquddin and\t36 others,  the \"unplaced candidates\" of the\n1970 Examinations,  unsuccessful due  to failure in the viva\nvoce.  Thereupon,  the\tGovernment  issued  a  notification,\nappointing  21\tof  the\t 37  candidates\t above-mentioned  as\nMunsifs, the  remaining 16  having already again appeared in\nthe 1972  Examination and  selected  and  appointed  to\t the\nservice. Upon  a further  request by  the Government  for 16\nmore candidates, the Commission forwarded another list of 16\ncandidates who had appeared in the l 972 Examination.\n     In\t March,\t 1977,\tthe  State  Government\tpublished  a\nseniority list\tof the\tsuccessful candidates  of  the\t1970\nexamination, whereupon,\t the \"unplaced\tcandidates\"  of\t the\nIIIrd\tlist   of   the\t  1970\t Examination   submitted   a\nrepresentation for  determination of  their seniority  under\nRule 22 of the Rules on the footing that they were recruited\nin pursuance  of the  1970 Examination, and, therefore, they\nwere entitled  to seniority as candidates of the examination\nheld in 1970 irrespective of their appointment being made in\n1975, thereby  claiming seniority  over those  who had\tbeen\nrecruited in pursuance of the 1972 Examination and those who\nhad been  recruited earlier to them in pursuance of the 1970\nExamination  and   the\tIst  and  IInd\tlists  of  the\t1970\nExamination. The  representation was  rejected by  the\tHigh\nCourt\t(administratively)   and   the\t Government.   Then,\nRafiquddin and\t16 other  \"unplaced candidates\" filed a writ\npetition in  the High Court. The High Court allowed the writ\npeti-\n796\ntion on\t the footing  that the\t\"unplaced  candidates\"\twere\nappointed  on\tthe  basis   of\t the   result  of  the\t1970\nExamination,  quashed\tthe  seniority\t list\tand   issued\ndirections for\tthe preparation of the seniority list of the\ncandidates of the 1970 Examination afresh in accordance with\nrule 22, read with rule 19 of the rules and for confirmation\nand promotion  of the  petitioners in  accordance  with\t the\nseniority list\tso drawn  up. The  State  of  Uttar  Pradesh\nappealed to  this Court\t against the  decision of  the\tHigh\nCourt.\n     Appellants Sushil\tKumar  Srivastava  and\tothers\talso\npreferred an  appeal to\t this Court  against the  above-said\ndecision of the High Court.\n     D.P. Shukla  and three other unsuccessful candidates of\nthe 1970  Examination preferred\t an  appeal  to\t this  Court\nagainst the  judgment of  the High Court dismissing the writ\npetition filed by them, raising the grievance that they were\ndiscriminated as  they had  not been appointed, and instead,\n37  candidates\t\"belonging  to\tthe  lIlrd  list\"  had\tbeen\nappointed although they had obtained lower marks.\n     Chandra Prakash  Agrawal, an  unsuccessful candidate at\nthe 1970  Examination, Bled  a writ  petition in this Court,\nchallenging the\t appointments of  those who had secured less\nthan 40 per cent marks in the aggregate.\n     Sushil  Chand  Srivastava,\t a  member  of\tthe  service\nappointed in  pursuance of the 1972 Examination filed a writ\npetition in  this Court,  challenging the  validity  of\t the\nappointments  of  the  \"unplaced  candidates\"  of  the\t1970\nExamination belonging  to  the\tIIIrd  list  which  included\nKafiquddin and\tothers, on the ground that their appointment\nwas illegal  and, therefore,  they could  not be  treated as\nsenior to him.\n     R.P. Lavaniya,  a member  of the  service recruited  in\npursuance of  the 1973\tExamination filed a writ petition in\nthis Court,  claiming seniority\t over respondents 3 to 15 in\nthe writ  petition,  recruited\tin  pursuance  of  the\t1972\nExamination and\t appointed in  service after the petitioners\nappointment.\n     P.N. Parasher  and 11 others, recruited in pursuance of\nthe 1972  Examination, filed  a writ  petition in  the\tHigh\nCourt, challenging  the seniority list prepared in pursuance\nof the judgment of the High Court in the writ petition filed\nby Rafiquddin and others, afore-mentioned on the ground that\nthe \"unplaced  candidates\" of  the 1970 Examination were not\nentitled to  seniority\tover  the  candidates  of  the\t1972\nExamina\n797\ntion, as they had been appointed to service earlier in time,\nthat writ  petition was\t transferred to\t this Court  as\t the\nTransferred case.\n     Allowing the  appeal filed by the State of U.P. and the\nappeal preferred  by Sushil  Kumar Srivastava and others and\nallowing  in   part  the   writ\t petition  of  Sushil  Chand\nSrivastava and\tthe Transferred\t case of  P.N. Parashar\t and\nothers, and dismissing the appeal of D.P. Shukla and others,\nand the\t writ petition\tof Chandra  Prakash Agarwal  and the\nwrit petition of R.P. Lavaniya, the Court.\n^\n     HELD:  The\t  High\tCourt  completely  misconceived\t the\nrelevant Rules,\t while rendering  the judgment\tin the\twrit\npetition filed\tby the\t\"unplaced candidates\" Rafiquddin and\n16 others-in  total disregard  of the  facts. It committed a\nserious error  in applying the principles of natural justice\nto a competitive examination. [820E]\n     The Rules\tentrust the  Public Service  Commission with\nthe   duty   of\t  holding   competitive\t  examinations\t and\nrecommending  the  names  of  the  suitable  candidates\t for\nappointment to\tthe service  on the basis of the proficiency\nshown by  the candidates.  Rule 19 provided that the list of\nthe selected candidates should be arranged in order of merit\non the basis of the aggregate marks of each candidate in the\nwritten as  well as  viva voce tests. In pursuance of clause\n(i) to\tthe proviso to rule 19, the commission had the power\nto  fix\t  minimum  aggregate  marks  in\t the  written  test.\nSimilarly, clause (ii) of the proviso conferred power on the\nCommission to  fix the\tminimum marks  for the\tviva voce to\njudge the suitability of the candidates for the service. The\nscheme underlying  rule 19  and the proviso there to made it\napparent that  the obtaining  of the minimum aggregate marks\nin the written test and the viva voce test, was the sine qua\nnon before  the Commission could make its recommendations in\nfavour of  the candidates for appointment to the service. It\nis manifest that only those candidates could be appointed to\nthe service  who were  included in  the list prepared by the\nCommission under  rule 19.  Appointments to  the service are\nmade from  the list forwarded by the Commission to the State\nGovernment. Seniority  in the  service is  determined on the\nbasis of  the year  of the  examination irrespective  of the\ndate of\t the appointment  and the  inter se seniority of the\ncandidates recruited  is determined  on the  basis of  their\nranking\t in   the  merit  list.\t Seniority  of\ta  candidate\nappointed to the service would depend upon the result of the\ncompetitive  examination   and\this  position  in  the\tlist\nprepared under\trule 19. The claim to seniority on the basis\nof the\tyear of\t competitive examination  as contemplated by\nrule 22\t is available  only  to\t those\tcandidates  who\t are\napproved by the Commission on the basis of H\n798\ntheir  marks  in  the  written\tand  viva  voce\t tests.\t The\ncommission alone  had the  power to  prescribe\tthe  minimum\nmarks in the viva voce test for judging the suitability of a\ncandidate for  the service. That is the clear meaning of the\nwords in the proviso to rule 19. [814B-H]\n     In the  instant case,  the. commission had fixed 35 per\ncent minimum  marks for\t the viva  voce test.  The viva voce\ntest is\t a well-recognised method of judging the suitability\nof a  candidate for appointment to public services. There is\nno constitutional,  legal  infirmity  in  the  provision  of\nclause (ii)  of the  proviso to rule 19, conferring power on\nthe commission\tto fix minimum marks for the viva voce test,\nas aforesaid,  and so  long as\tthe clause  (ii) remained in\nforce, the  Commission had  that power.\t Even if a candidate\nhad obtained  higher aggregate marks in the written and viva\nvoce test,  his name  could not\t be  included  in  the\tlist\nprepared by  the Commission  under  rule  19.  None  of\t the\n\"unplaced  candidates\"\t of  the   1970\t examination  (those\nincluded in  the IIIrd list) had secured minimum marks of 35\nper cent  in the  viva voce  test, and\tfor that reason they\nwere not approved by the Commission. The appointments of the\n\"unplaced candidates\"  made in\tpursuance of the decision of\nthe high  level committee are not countenanced by the rules.\nThere is  no escape  for the  conclusion that  the \"unplaced\ncandidates\" were  appointed to\tservice on  the basis of the\nresult\tof   the  competitive  examination  of\t1970.  Their\nappointments were  made in  breach of the rules. It is well-\nsettled that  where recruitment\t to service  is regulated by\nthe  statutory\trules,\tthe  recruitment  must\tbe  made  in\naccordance with\t those rules,  and any\tappointment made  in\nbreach of  the rules,  would be illegal. The appointments of\nthe 21 \"unplaced candidates\" made out of the third list were\nillegal as  they were made in violation of the provisions of\nthe rules. The high level committee, even though constituted\nby highly  placed persons,  had no  authority in law to take\nthe decision  it did  as above-said,  as  the  rules  do  no\ncontemplate any such committee and the decision taken by the\ncommittee could\t not be\t implemented. The  committee had  no\nauthority in  law to  disregard the  rules  and\t direct\t the\nCommission,  which   is\t a  constitutional  and\t independent\nauthority,  not\t  sub-servient\tto  the\t directions  of\t the\nGovernment, to make a recommendation to the Government in c;\nfavour of  the unsuccessful  candidates by  disregarding the\nminimum marks  prescribed for  the viva\t voce test. Its view\nthat after  the\t amendment  of\tthe  rule  19,\tthe  minimum\nqualifying marks  fixed for  viva voce could be ignored, was\nwholly wrong.  Rule 19\twas amended  in\t January  1972,\t but\nbefore that  the 1970 examination had already been held, and\nthe amendment  was not retrospective. Even if the Commission\nhad  made   recommendations  in\t  favour  of  the  \"unplaced\ncandidates\" under\n799\nthe directions\tof the\tgovernment, the\t appointments of the\nsaid candidates would have been illegal as made in violation\nof the\trules.\tAnd  there  was\t no  justification  for\t the\nappointments of\t the unsuccessful candidates in 1975 because\nby then,  the  result  of  the\t1972  examination  had\tbeen\nannounced  and\tduly  selected\tcandidates  were  available.\n[816F-H; 822D-H; 823C-DJ\n     There is  no express  provision in\t the rules as to for\nwhat period  the list prepared under rule 19 can be utilised\nfor making  appointments to  the service.  In the absence of\nany provision  in the  rules, a\t reasonable period  must  be\nfollowed during\t which the  appointments on the basis of the\nresult of  a particular examination should be made. The list\nprepared by  the Commission  on the basis of the competitive\nexamination of\ta particular  year could  be utilized by the\nGovernment for making appointments before the declaration of\nthe  result  of\t the  subsequent  examination.\tIf  selected\ncandidates are available for appointment on the basis of the\ncompetitive examinations  of subsequent\t years, it  would be\nunreasonable and  unjust  to  revise  the  list\t of  earlier\nexamination by\tchanging norms\tto fill up the vacancies, as\nthat would  adversely effect the rights of those selected at\nthe subsequent\texamination in the matters relating to their\nseniority under\t rule 22.  The 1970 examination could not be\nutilised as  a perennial  source or an exhaustible reservoir\nfor  making  appointments  indefinitely.  The  result  of  a\nparticular examination\tmust come to an end at some point of\ntime, like  a  \"dead  ball\"  in\t cricket.  The\tpractice  of\nrevising the  list prepared  by the Commission under rule 19\nat the\tbehest of  the government  by  lowering\t down  fixed\nstandards and  norms, is subversive of the rule of law. This\npractice is fraught with dangers of favouritism and nepotism\nand it\twould open  back door entry to the service. Once the\nresult of  the subsequent  examination of 1972 was declared,\nthe  Commission\t could\tnot  revise  the  list\tof  approved\ncandidates of  1970 examination prepared by it under rule 19\nat the\tbehest\tof  the\t Government  by\t lowering  down\t the\nstandard_ fixed\t by it.\t The procedure adopted in appointing\nthe unplaced candidates of 1970 examination was unauthorised\nby law\tand it\tpractised  discrimination  in  violation  of\nArticles 14 and 16 of the Constitution. [824B-H; 826H]\n     The \"unplaced candidates\" were appointed to the service\nin breach  of the rules and they form a separate class. They\ncannot be  equated with\t those appointed  from the first and\nthe  second   lists  of\t  the  1970   examination  as  their\nappointments  were   made  on\tthe  recommendation  of\t the\nCommission.  Similarly,\t the  candidates  appointed  to\t the\nservice on  the basis  of  the\tresult\tof  the\t competitive\nexamination of\t1972 before  the \"unPlaced  candidates\" were\nappointed, formed a separate\n800\nclass as  they were  also appointed  in accordance  with the\nrules. The  \"unplaced candidates\"  could not claim seniority\nover them  on the  basis of  rule 22,  as their appointments\nwere not  made on  the basis  of the  list approved  by\t the\nCommission under rule 19. [827A-C]\n     Even  though  the\t21  \"unplaced  candidates\"  of\t1970\nexamination have  been found  to have  been appointed to the\nservice illegally  in breach of the rules, yet the judgments\nand others  passed by  them are\t not rendered  invalid; they\nwere appointed\tby competent  authority with the concurrence\nof the\tHigh Court.  They have\tbeen working in the judicial\nservice all  these years and some of them have been promoted\nalso; they  have  performed  their  functions  as  de  facto\njudicial officers.  The judgments  and orders  of a de facto\njudge  cannot\tbe  challenged\t on  the   ground   of\t his\nineligibility for appointment. Keeping in view the period of\n12 years  that has  elapsed, the  Court did  not propose  to\nstrike down  the appointments  of the \"unplaced candidates\".\nHaving regard  to all  the facts and circumstances, it would\nbe just\t and proper  to assign\tseniority to  the  \"unplaced\ncandidates\" of\tthe 1970  examination at  the bottom  of the\nlist of\t the 1972  candidates. The  16 \"unplaced candidates\"\nout   of the  total of\t37, who\t were successful in the 1972\nexamination and were approved and included by the Commission\nin  the\t list  prepared\t under\trule  19,  are\tentitled  to\nseniority  of\t1972  examination  on  the  basis  of  their\npositions in  the merit\t list of  that examination. [827D-G;\n828F-H]\n     The appeal\t of the\t State of  U.P. and  the  appeal  of\nSushil Kumar  Srivastava and others allowed. Judgment of the\nHigh Court  set aside.\tThe High  Court and State Government\nshall determine\t the seniority of the 21 \"upheld candidates\"\nas directed by the Court. [829F-G]\n     In the Appeal filed by D.P. Shukla and others, directed\nagainst another\t judgment of the High Court, the view of the\nHigh Court  was consistent  with the view of this Court. The\nappellants had\tappeared at  the 1970  examination but\twere\nunsuccessful as\t they had  failed  to  secure  35  per\tcent\nminimum marks  at the  viva voce  test,\t although  they\t had\nsecured higher\tmarks in  the aggregate\t than those selected\nand appointed.\tThey had  challenged the  selection made  in\npursuance of the 1970 examination. [830A-B]\n     In the  writ petition  filed in  this Court  by Chandra\nPrakash Aggarwal, as the petitioner had failed to obtain the\nminimum marks  prescribed for the viva voce test although he\nhad obtained  more than\t 40 per cent marks in the aggregate,\nhe could  not be  granted the  relief of  appointment to the\nservice. He was also,\n801\n disentitled  to any  relief on\t the  ground  of  inordinate\ndelay, there being no plausible explanation for the delay in\n. challenging  the validity of the 1970 examination in 1982.\nL830C-D]\n     In the  writ petition  filed in  this Court  by  Sushil\nChand  Srivastava  and\tin  the\t transferred  case  of\tP.N.\nParasher and  others,  the  petitioners,  recruited  to\t the\nservice on the basis of the 1972 examination, were aggrieved\nby the\tdecision of  the High  Court in Rafiquddin's case as\ntheir seniority\t was  affected\tadversely.  This  Court\t has\nalready taken the view that the \"unplaced candidates\" of the\n1970 examination  could not  be\t senior\t to  the  candidates\nappointed as  a result\tof the\t1972  examination,  and\t the\npetitioners were  covered by  that decision  of the Court to\nget relief to that extent. [830G]\n     In the  writ petition  filed  in  this  Court  by\tR.P.\nLavania, the  petitioner was  appointed to  the\t service  in\nNovember, 1976\ton the\tbasis of  the  result  of  the\t1973\nexamination. His  grievance was\t that the respondents Nos. 3\nto 15 in the petition had been shown senior to him; although\nthey had  been appointed  later in  time on the basis of the\n1972 examination,  and that the selection and appointment of\nthe said  respondents were  against the\t rules and they were\nnot entitled  to seniority  over him  as he  was a regularly\nselected candidate.  There was\tno merit in the petitioner's\ncase. Rule  22 directs that seniority shall be determined on\nthe basis  of the  year of  examination, which\tmeans that a\nperson recruited  to the  service in pursuance of the result\nof a  particular year  of examination would rank senior to a\ncandidate who  is recruited  in pursuance of the result of a\nsubsequent year\t of examination, although he might have been\nactually appointed  earlier in time, as, after the selection\nof  the\t  candidates,  several\t formalities,  like  medical\nexamination, character\tand antecedents\t verification, etc.,\nare followed before the appointments are made under rule 21.\nMany a time, this process of formalities causes delay in the\nmaking of  the actual  appointment,  with  the\tresult\tthat\nsometimes  persons  selected  on  the  basis  of  subsequent\nexamination are\t appointed before  the successful candidates\nof the\tearlier examination.  But under\t rule 22, the latter\nshall be  senior to  the former, irrespective of the date of\nappointment. The  petitioner was appointed in the service on\nthe basis  of the  result of  the 1973 examination while the\nrespondents Nos.  3 to\t15 were\t recruited to service on the\nbasis of  the result  of the  1972  examination.  Therefore,\nunder  rule   22,  the\t validity  of  which  has  not\tbeen\nchallenged, the\t respondents Nos. 3 to 15 are entitled to be\nsenior to  the petitioner.  There was  no illegality  in the\nappointments of the respondents\n802\nNos. 3 to 15. Their appointments in the service were made by\nthe A  State Government\t on the recommendation of the Public\nService Commission  made under Rule 19, as they had obtained\nthe requisite  aggregate marks\tin the\twritten and the viva\nvoce tests. They were appointed in accordance with the rules\nand were  entitled to seniority in terms of rule 22. [831 A-\nH]\n     The Public\t Service Commission  has been  changing\t the\nnorms fixed  by it at the behest of the Government after the\ndeclaration  of\t  the  results.\t  The\tCommission   is\t  an\nindependent, expert  body. It  has to  act in an independent\nmanner. It  may consult\t the State  Government and  the High\nCourt in  prescribing the  norms for judging the suitability\nof the\tcandidates if  no norms are prescribed in the Rules.\nOnce the Commission determines the norms and makes selection\non the\tconclusion of  a competitive examination and submits\nthe list  of the  suitable candidates  to the Government, it\nshould not  re-open the selection by lowering down the norms\nat the\tinstance of  the  Government.  If  the\tpractice  of\nrevising the results of competitive examinations by changing\nthe norms is followed there will be confusion and the people\nwill loss  faith in  the institution  of the  Public Service\nCommission and\tthe  authenticity  of  the  selections.\t The\nCommission should  take\t a  firm  stand\t in  these  matters,\nuninfluenced by\t the  directions  of  the  State  Government\nunsupported by the Rules. [833A-D]\n     (ii) The  practice of appointing a retired Judge of the\nHigh Court  as an  expert to assist the Commission in making\nselections for\tappointments to the judicial service, is not\ndesirable. A  sitting Judge  of the  High  Court  should  be\nnominated by  the Chief\t Justice of the State to participate\nin the\tinterviews as  an expert;  he would  be in  a better\nposition to  give advice  to the Commission in the selection\nof suitable  candidates and  his advice\t would be binding on\nthe Commission\tunless there  are strong  and cogent reasons\nfor not\t accepting such\t advice, which\tmust be\t recorded in\nwriting by  the Chairman  and Members  of the Commission, as\nobserved by  a Constitution  Bench of  this Court  in A.  K.\nYadav  v.  State  of  Haryana,\t[1985]\t4  S.C.C.  417.\t The\nConstitution Bench  had\t issued\t directions  to\t the  Public\nService Commission  of every state to follow this direction,\nbut it\tappears that in the State of U.P., this direction is\nnot  being   followed.\tIn   future,  the   selections\t for\nappointments to\t the judicial  service shall  be made by the\nCommission on  the expert  advice of  a sitting judge of the\nHigh Court nominated by the Chief Justice. [833E-H;834A]\n(iii) It  has  been  noticed  that  generally,\tthere  is  a\nconsiderable\n803\ninterregnum between  the holding  of the examination and the\nappointments of\t the selected  candidates in these cases, no\nsystem was  followed in\t making the appointments, as some of\nthe candidates\tselected in  the subsequent examination were\nappointed  earlier   than  those  selected  in\tthe  earlier\nexamination, and  those appointed  later in  time  are\tmade\nsenior to  those appointed  earlier in\ttime under  Rule 22.\nThis causes  heart-burning and other complications. To avoid\nthis situation,\t it is necessary that every effort should be\nmade to\t appoint the  successful candidates  of a particular\nexamination before any candidate of a subsequent examination\nis appointed. [834B-D]\n     K.N. Chandrasekhra\t & Ors. v. State of Mysore and Ors<\/a>.,\nA.I.R. 1963  Mysore 292;  T.N.\tManjula\t Devi  v.  State  of\nKarnataka, [1982]  Labour and  Industrial Cases,  759; Durga\nCharan Misra  v. State of orissa, W.P. 1123 of 1986, decided\non 27.8.1987;  Lila Dhar  v. State  of Rajasthan<\/a>,  [1982]  1\nS.C.R. 320;  A.K. Yadav v. State of Haryana, [1985] 4 S.C.C.\n417; Umash Chandra Shukla v. Union of India & Ors<\/a>., [1985] 3\nS.C.C. 721;  Shitla Prasad  Shukla v.  State of U.P. & Ors<\/a>.,\n[1986] Supp. S.C.C. 185 and Achanti Sreenivasa Rao & Ors. v.\nState of Andhra Pradesh<\/a>, [1981] 3 S.C.C. 133. referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 4023 of
\n1982 etc
\n     From the  Judgment and  order dated  31 3.1982  of\t the
\nAllahabad High Court in C.M.W.P. No. 1303 of 1979.\n<\/p>\n
     G. Vishwanath  Iyer, Satish  Chandra, D.P\tSingh, S  P.
\nGupta, G.L.  Sanghi, Gopal Subramaniam, Shobha Dikshit, H.K.
\nPuri, S\t D. Lal,  M.K.D.  Namboodry,  R.N.  Keshwani,  Irfan
\nAhmad, S  Balakrishnan, A.D.  Sikri,  Pradeep  Misra,  L  R.
\nSingh, Jayanand, Gopal Singh, C.P. Pandey, Mrs. Rani Chhabra
\nand Krishnamani for the appearing parties.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SINGH, J.\tThese three  civil appeals  directed against
\nthe judgment  of the  High Court  of Allahabad and four writ
\npetitions filed\t under Article 226<\/a> of the Constitution raise
\ncommon\tquestions   of\tlaw  relating  to  determination  of
\nseniority of  members appointed\t as  Munsifs  in  the  Uttar
\nPradesh Nyayik\tSeva as a result of competitive Examinations
\nof 1970,  1972 and  1973 held  under the Uttar Pradesh Civil
\nService (Judicial Branch) Rules, 195 1 (hereinafter referred
\nto as
\n804<\/span>
\nthe Rules). Since the appeals and the petitions raise common
\nquestions of law they have been heard together and are being
\ndisposed of by a common judgment.\n<\/p>\n
     On September  3, 1970  a Notification was issued by the
\nPublic\tService\t  Commission   inviting\t  applications\t for
\nrecruitment to\t85 posts of Munsifs. In this examination 918
\ncandidates appeared, out of whom 294 candidates on the basis
\nof their  marks in written papers, were called for viva voce
\ntest. After  completion of  the written\t and viva voce test,
\nthe commission\tsubmitted a  list of  approved candidates to
\nthe Government on October 25, 1971 recommending the names of
\n46 candidates  for appointment\tto the\tservice, which shall
\nhereinafter  be\t  referred  to\tas  the\t Ist  list  of\t1970
\nexamination. On\t receipt of  the list  of 46  candidates the
\nState Government  requested the Commission to recommend some
\nmore candidates\t for appointment to the service as there was
\nshortage of  Munsifs, and  it  further\tsuggested  that\t the
\nminimum of 40 per cent marks in the aggregate may be reduced
\nto  35\t per  cent.  The  Commission  agreed  to  the  State
\nGovernment’s suggestion\t and thereafter it forwarded another
\nlist of\t 33 candidates\ton April 25, 1972 for appointment to
\nthe service  which shall  hereinafter be  referred to as the
\nIInd list.  This list included those who had obtained 35 per
\ncent marks  in the aggregate, as well as 35 percent marks in
\nviva voce..  All the  79 candidates,  as recommended  by the
\nCommission in  the aforesaid  two lists\t were  appointed  to
\nservice by  different Notifications issued between May, 1972
\nto 12th\t June 1973. On July 17, 1973 Notification was issued
\ndetermining inter-se  seniority of  all\t the  79  candidates
\nappointed on  the basis\t of 1970  examination in  accordance
\nwith  of   their  position  in\tthe  list  prepared  by\t the
\nCommission under Rule 19 of the Rules. Meanwhile, the Public
\nService Commission  held another competitive examination for
\nappointment to\tthe 150\t posts of  l-  Munsifs\twhich  shall
\nhereinafter be\treferred to  as the  1972  Examination.\t The
\nWritten test  was held\tin November, 1973 and the result was
\ndeclared on  26th June\t1974. The  Public Service Commission
\nforwarded  a  list  of\t150  successful\t candidates  to\t the
\nGovernment for\tappointment to\tthe service under Rule 19 of
\nthe Rules  and all  those candidates  were appointed  to the
\nservice on different dates between (, 1975 to 1977.\n<\/p>\n
     Some  of\tthe  unsuccessful  candidates  of  the\t1970
\nExamination made  representation to the State Government for
\nconsidering their case for appointment on the basis of their
\naggregate marks\t irrespective of their low marks in the viva
\nvoce. The  State Government  by its  letter dated 24th July,
\n1973 requested the Commission that in view of the
\n805<\/span>
\nshortage of  Munsifs in\t the State  and since in view of the
\namendment of  Rule 19  it was  no  longer  necessary  for  a
\ncandidate to  qualify independently in the viva voce, it may
\nreconsider the\tresult of  the examinations  of 1967,  1968,
\n1969  and   1970  and\tapprove\t all  those  candidates\t for
\nappointment to\tthe service  who might\thave obtained 40 per
\ncent of\t marks or  more in  the aggregate even if they might
\nhave failed  to secure\tthe minimum  marks in  the viva voce
\ntest. The Commission refused to consider the proposal of the
\nGovernment,  as\t  the  minimum\t marks\tprescribed   by\t the
\nCommission under  the then existing proviso to Rule 19 could
\nnot be\tignored in  judging the\t suitability of a candidate.
\nInspite of  the Commission’s  refusal the Government pursued
\nthe matter  further, and  it convened a meeting of the Chief
\nMinister, Chief\t Justice of  the High Court and the Chairman
\nof the\tPublic Service\tCommission on 3rd May, 1974. At that
\nmeeting it  was decided\t that in  view of the immediate need
\nfor  Munsifs   the  Public   Service  Commission  should  be
\nrequested to  recommend such  candidates of 1967, 1968, 1969
\nand 1970  examination who  might have secured 40 per cent or
\nmore marks  in the  aggregate, but  could not qualify in the
\nviva voce.  The committee  took\t the  view  that  after\t the
\namendment of Rule 19 it was not necessary for a candidate to
\nqualify in  the viva  voce test\t and therefore\the could  be
\nappointed to  the service  if he had got 40 per cent or more
\nmarks in  the aggregate.  In pursuance of the decision taken
\nby the\tsaid high  level Committee  the\t Government  by\t its
\nletter dated  May  10,\t1974  requested\t the  Commission  to
\nforward the  application forms and the marks obtained by the
\nunsuccessful candidates\t of the Examinations held during the
\nyears 1967,  1968, 1969\t and 1970  who might have got 40 per
\ncent or\t more marks  in the  aggregate but  might  not\thave
\nqualified in  the viva\tvoce. The  letter  enclosed  a\tnote
\ncontaining the\tdecision taken\tby the high level committee.
\nThe Commission\tby its\tletter dated  9th June 1974 informed
\nthe  Government\t  that\tthe   application  forms  and  other
\nparticulars of the unsuccessful candidates of 1967, 1968 and
\n1969 examination  had  been  destroyed,\t and  therefore\t the
\nCommission was\tunable to forward the names of candidates of
\nthose examinations  as desired\tby the\tGovernment. But\t the
\nCommission forwarded  with a  covering letter dated June 19,
\n1974 a list of 37 candidates of the 1970 Examination who had
\nobtained 40  per cent or more marks in the aggregate but who
\nhad failed  to secure  35 per  cent qualifying\tmarks in the
\nviva voce  which shall\thereinafter be\treferred to  as\t the
\nlIIrd list.  The Commission’s  letter contained\t a note that
\nthe candidates mentioned therein had obtained 40 per cent or
\nmore marks  in the  aggregate but  they had  not been  found
\nsuitable by  the Commission.  This IIIrd  list contained the
\nnames of  Rafiquddin and 36 others, who were unsuccessful at
\nthe 1970 Examination who will be referred to
\n806<\/span>
\nhereafter  as\tthe  “unplaced\t candidates”  of   the\t1970
\nExamination. On\t receipt of  the IIIrd list of the “unplaced
\ncandidates” the State Government after obtaining approval of
\nthe High  Court issued\ta Notification dated August 19, 1975
\nappointing 21 candidates out of the list of 37 candidates as
\nMunsifs with a note that the appointments were being made on
\nthe  basis   of\t the   1970  Examination  conducted  by\t the
\nCommission  and\t  the  persons\t appointed  were   “unplaced
\ncandidates” with  a further  note that their seniority would
\nbe determined  later on\t out of\t the list  of 37  candidates
\nforwarded by  the Commission under its letter dated June 19,
\n1974 the  State\t Government  found  that  the  remaining  16
\npersons who  had been  unsuccessful at\tthe 1970 Examination
\nhad again appeared in the 1972 Examination and they had been
\nselected  and  appointed  to  the  service.  Therefore,\t the
\nGovernment  requested  the  Commission\tto  select  16\tmore
\ncandidates from\t the 1972  Examination In  pursuance of\t the
\nGovernment’s request  the Public  Service Commission  by its
\nletter dated  14\/ l5th\tJuly, 1976 forwarded another list of
\n16 candidates  who had\tappeared in the 1972 Examination for
\nappointment to the service.\n<\/p>\n
     In\t March,\t  1977\tthe  State  Government\tpublished  a
\nseniority list\tof successful  candidates of the competitive
\nexamination of\t1970. The “unplaced candidates” belonging to
\nthe IIIrd  list of  the 1970 Examination made representation
\nto  the\t High  Court  for  determining\ttheir  seniority  in
\naccordance with\t Rule 22  of the  Rules on  the footing that
\nthey were  recruited to\t the service  in pursuance  of\t1970
\nExamination  and   therefore  they   were  entitled  to\t the
\nseniority as candidates belonging to the examination held in
\n1970 irrespective  of their  appointment being made in 1975.
\nThey claimed  that they\t were senior  to those\twho had been
\nrecruited to  service in  pursuance of\t1972 Examination  as
\nwell as\t to those who had been recruited to service, earlier
\nto them\t in pursuance  of  the\t1970  Examination  who\twere
\nappointed in  service in  pursuance of Ist and the IInd list
\nof 1970\t Examination but  who had secured lower marks in the
\naggregate. Their  representation was  rejected by  the\tHigh
\nCourt as  well as  by the  State Government as in their view
\nthe  “unplaced\t candidates”  were   unsuccessful   in\t the
\ncompetitive examination\t of 1970,  their appointment was not
\nin accordance  with the\t Rules and  as such  they  were\t not
\nentitled to  seniority of  1970.  Rafiquddin  and  16  other
\n“unplaced candidates”  filed Writ  Petition No. 1303 of 1979
\nunder Article  226<\/a> of the Constitution before the High Court
\nof Allahabad for quashing the decision of the High Court and
\nthe State Government rejecting their representation and also
\nfor the issue of a writ of mandamus directing the High Court
\nto confirm  the petitioners  and to  grant them seniority of
\n1970, and to rearrange the
\n807<\/span>
\nseniority of  Munsifs appointed\t in service  in pursuance of
\n1970 Examination  in order  of merit  on the  basis  of\t the
\naggregate marks\t obtained by  each of  the candidates at the
\nsaid  examination.  A  Division\t Bench\tof  the\t High  Court
\nconsisting of  M.N. Shukla  and\t K.M.  Dayal  JJ.  by  their
\nJudgment dated 31st March, 1982 allowed the writ petition on
\nthe finding  that the  unplaced candidates were appointed in
\nservice on  the basis of the result of 1970 examination. The
\nBench quashed  the seniority  list and issued a direction to
\nthe State  Government and  the High  Court  to\tprepare\t the
\nseniority list\tof candidates of the 1970 Examination afresh
\nin accordance  with Rule  22 read  with Rule 19 of the Rules
\nand to\tconfirm and  promote them  in  accordance  with\t the
\nseniority list\tso drawn.  The State  of Uttar\tPradesh\t has
\npreferred Civil Appeal No. 4023 of 1982 against the judgment
\nof the\tDivision Bench.\t Civil Appeal  No. 4024\t of 1982 has
\nbeen preferred by Sushil Kumar Srivastava and others against
\nthe aforesaid  judgment of  the Division  Bench It should be
\nstated here  that D.P.\tShukla and  three other unsuccessful
\ncandidates at  the 1970\t Examination had  filed another writ
\npetition Writ Petition No. 4261 of 1974 in the High Court of
\nAllahabad under\t Article 226<\/a> of the Constitution raising the
\ngrievance that\teven though they had secured higher marks in
\nthe competitive\t examination than  those  appointed  to\t the
\nservice yet  they were\tdiscriminated, as  they had not been
\nappointed to the service instead 37 candidates “belonging to
\nthe IIIrd  list” were  appointed although  they had obtained
\nlower marks.  Another  Division\t Bench\tof  the\t High  Court
\nconsisting of  Satish Chandra  CJ. and\tA.N. Verma J. by its
\njudgment dated\tMarch  30,  1982  dismissed  the  said\twrit
\npetition on  the ground\t that since  the petitioners therein
\nhad failed  to secure  minimum qualifying  marks in the viva
\nvoce they  were not  entitled to selection. Civil Appeal No.
\n3736  of   1982\t has  been  preferred  by  the\tunsuccessful
\npetitioners against the aforesaid judgment.\n<\/p>\n
     In addition  to the  aforesaid three civil appeals four
\nwrit  petitions\t have  also  been  filed  raising  the\tsame
\ncontroversy. Writ  Petition No.\t 4636 of 1982 has been filed
\nin this\t Court under  Article 32<\/a>  of  the  Constitution\t b(y
\nChandra Prakash\t Agrawal an  unsuccessful candidate  at\t the
\n1970 Examination,  challenging the  appointment of those who
\nhad failed  to secure  less than  40 per  cent marks  in the
\naggregate. Sushil  Chand Srivastava  a member of the service
\nappointed in  pursuance of  the 1972  Examination  has\talso
\nfiled Writ  Petition No.  12818 of  1984 under Article 32<\/a> of
\nthe Constitution challenging the validity of the appointment
\nof “unplaced  candidates” of  the 1970 Examination belonging
\nto the IIIrd list which include Rafiquddin and others on the
\nground that  their appointment\twas  illegal  and  for\tthat
\nreason they
\n808<\/span>
\ncould not  be treated  senior to him. R.P. Lavaniya a member
\nof the\tA service who was recruited in pursuance of the 1973
\nExamination has\t also filed  Writ Petition  No. 1347 of 1984
\nunder Article 32<\/a> of the Constitution claiming seniority over
\nRespondents 3  to is  to the  writ  petition  who  had\tbeen
\nrecruited in  service in  pursuance of\tthe 1972 Examination
\nand appointed in service after the petitioner’s appointment.
\nP.N. Parashar  and 11  others who  had been recruited to the
\nservice in  pursuance of  the 1972  Examination filed a writ
\npetition under\tArticle 226<\/a>  of the  Constitution before the
\nHigh Court  of Allahabad being writ petition No. 5409 of the
\n1982 challenging the seniority list prepared in pursuance of
\nthe judgment  of the High Court in writ petition No. 1303 of
\n1979 (Rafiquddin  and others  v. State of Uttar Pradesh), on
\nthe ground  that  the  “unplaced  candidates”  of  the\t1970
\nExamination  were   not\t entitled   to\tseniority  over\t the
\ncandidates  of\t the  1972  Examination\t as  they  had\tbeen
\nappointed to service earlier in time. That writ petition was
\ntransferred to this Court. Three Civil appeals and four writ
\npetitions including the transferred petition have been heard
\ntogether at length.\n<\/p>\n
     The U.P.  Civil Service  (Judicial Branch)\t Rules\t1951
\nthat is,  the Rules  have been\tframed by the Governor under
\nthe proviso  to Article\t 309<\/a> read  with Article\t 234<\/a> of\t the
\nConstitution in\t consultation with the U . P. Public Service
\nCommission and\tthe High Court which provide for recruitment
\nto the\tservice and  lay down  the conditions  of service of
\npersonnel appointed  to the  U.P.  Civil  Service  (Judicial
\nBranch). Rule  3 provides  that the  Rules  shall  apply  to
\nMunsifs and Civil Judges. “Member of the service” as defined
\nby Rule 4 means a person appointed in a substantive capacity
\n‘under the  provisions of  these Rules”\t or of\tthe Rules in
\nforce previous\tto the introduction of these Rules to a post
\nin the\tcadre of  the service.\tRule  S\t provides  that\t the
\nstrength of  the service shall be determined by the Governor
\nfrom time  to time  in consultation  with the  High Court of
\nJudicature at Allahabad. It confers power on the Governor to
\nincrease the  cadre by\tcreation of  additional or temporary
\nposts as  may be necessary. Rule 6 provides that recruitment
\nto the\tservice shall be made on the result of a competitive
\nexamination conducted by the Public Service Commission. Rule
\n8 lays\tdown that  the Governor\t shall decide  the number of
\nrecruits to  be\t taken\tin  any\t particular  year.  Rule  15
\nprovides  for\tholding\t of   competitive  examination\t for
\nrecruitment to\tthe  service  and  it  lays  down  that\t the
\nexamination may\t be conducted  at such time and on such date
\nas may\tbe notified  by the  Commission and shall consist of
\nwritten examinations  in  such\tlegal  and  allied  subjects
\nincluding procedure  as may  be\t included  in  the  syllabus
\nprescribed in Rule 18 and an examina-\n<\/p>\n
809<\/span><\/p>\n
tion to\t test the  knowledge of the candidate in Hindi, Urdu
\nand also  an interview to test the fitness of the candidates
\nfor  appointment.   Rule  18  prescribes  syllabus  for\t the
\ncompetitive examination as contained in Appendix E. Appendix
\nprovides that  the examination will include written and viva
\nvoce test,  it specifies  the subjects\tfor written test and
\nthe marks  allotted to\teach subject.  Clause 5\t of Appendix
\nrelates to  the viva  voce, and\t the notes  appended thereto
\nrelevant for  the determination\t of the\t question raised  in
\nthese cases, are as under:\n<\/p>\n
\t  “5. Viva  Voce: The  suitability of  the candidate
\n\t  for employment  in the  judicial service  will  be
\n\t  tested with  reference to  his record\t at  school,
\n\t  college and  in university  and  his\tpersonality,
\n\t  physique. The\t questions which  may be  put to him
\n\t  may  be   of\ta   general  nature   and  will\t not
\n\t  necessarily be on an academic or legal nature.
\n\t  (I) The  marks obtained in viva voce will be added
\n\t  to the  marks obtained  in the  written papers and
\n\t  the candidate’s place will depend on the aggregate
\n\t  of both.\n<\/p><\/blockquote>\n
\t  (II) The  Commission reserves\t the right to refuse
\n\t  to call  for viva  voce and  candidate who has not
\n\t  obtained such\t marks in  the two  Law Papers as to
\n\t  justify such\trefusal or  who does not satisfy the
\n\t  requirements of Rule 12(2) of the Rules.”\n<\/p><\/blockquote>\n
Rule  19   requires  the   Commission  to  prepare  list  of
\ncandidates approved  by it  and to  forward the\t same to the
\nGovernment. Rule 19 is it stood in the year 1970 read thus:\n<\/p>\n
\t  ”  19.   List\t of   candidates  approved   by\t the
\n\t  Commission-The Commission  shall prepare a list of
\n\t  candidates who  have\ttaken  the  examination\t for
\n\t  recruitment to  the  service\tin  order  of  their
\n\t  proficiency as  disclosed by\tthe aggregate  marks
\n\t  finally awarded  to each candidate. If two or more
\n\t  candidates obtain equal marks in the aggregate the
\n\t  Commission shall  arrange them  in order of merits
\n\t  on the  basis of their general suitability for the
\n\t  service:\n<\/p><\/blockquote>\n
\t       Provided that in making their recommendations
\n\t  the Commission  shall satisfy\t themselves that the
\n\t  candidate-\n<\/p><\/blockquote>\n
\t       (i) has\tobtained such  an aggregate of marks
\n\t  in the  written test\tthat he\t is qualified by his
\n\t  ability for appointment to the service;\n<\/p><\/blockquote>\n
810<\/span><\/p>\n
\t       (iii) has obtained in the viva voce test such
\n\t  sufficiently high  marks that\t he is\tsuitable for
\n\t  the service.\n<\/p><\/blockquote>\n
 While\tpreparing the  list the\t Commission had\t to  satisfy
\nitself that a candidate had obtained such aggregate marks in
\nthe written  test as  to qualify  him for appointment to the
\nservice and  further that  he had obtained such sufficiently
\nhigh marks  in the  viva voce  test that he was suitable for
\nthe service.  The position of the candidates in the list was
\nto be  determined on  the  aggregate  marks  obtained  by  a
\ncandidate both in written as well as viva voce test. Rule 21
\nprovides that  the Governor  shall on  receipt of  the\tlist
\nprepared by  the Commission consult the High Court and after
\ntaking into consideration the view of the High Court, select
\ncandidates for\tappointment from  amongst  those  who  stand
\nhighest in  order of  merit in\tthe list  if they  are\tduly
\nqualified in  other respects.  Rule  22\t provides  that\t the
\nseniority of  candidates shall\tbe determined by the year of
\ncompetitive examination\t on the results of which a candidate
\nis recruited  and his  position in  the list  prepared under
\nRule lg.  The Rules  were amended  by a\t Notification  dated
\nJanuary 31, 1972. After the amendment the Rules are known as
\nthe U.P. Nyayik Seva Niyamavali 1951 Under the amended Rules
\nthe service  has been  designated as the U.P. Nyayayik Seva.
\nIt is  not necessary  to refer to all the amended provisions
\nof the Niyamavali. After the amendment Rule 15 provides that
\nthe examination\t shall consist\tof written  examination\t and
\ninterview  to\tassess\tall  round  student  career  of\t the
\ncandidates  and\t  their\t personality   address\tand  general
\nsuitability. Rule 19 after the amendment reads as under:\n<\/p>\n
19. List of candidates approved by the Commission-\n<\/p>\n
\t  “The Commission shall prepare a list of candidates
\n\t  who have  taken the examination for recruitment to
\n\t  the service  in  order  of  their  proficiency  as
\n\t  disclosed by\tthe aggregate  marks finally awarded
\n\t  to each  candidate.  If  two\tor  more  candidates
\n\t  obtain  equal\t  marks\t in   the   aggregate,\t the
\n\t  Commission shall arrange them in order of merit on
\n\t  the basis  of their  general suitability  for\t the
\n\t  service;\n<\/p><\/blockquote>\n
\t       Provided that in making their recommendations
\n\t  the Commission  shall satisfy\t themselves that the
\n\t  candidate has\t obtained such as aggregate of marks
\n\t  in the  written test\tthat he\t is qualified by his
\n\t  ability for appointment to the
\n811<\/span>
\nA glance  at the  amended Rule\t19 would  show that  the two
\nclauses of  the proviso\t have been  omitted. Instead the new
\nprovision to  Rule 19 has been inserted which lays down that
\nin  preparing  the  list  of  the  approved  candidates\t the
\nCommission shall  satisfy  itself  that\t the  candidate\t has
\nobtained such aggregate of marks in the written test that he
\nis qualified  by his ability for appointment to the service.\n<\/p><\/blockquote>\n
Now, after  the amendment  the Commission  has no  power  to
\nprescribe or fix any minimum marks qualifying for viva voce.
\nNow it\tis not necessary for a candidate to be successful in
\nthe viva  voce. Prior to the amendment a candidate could not
\nbe selected unless he had obtained minimum marks as fixed by
\nthe Commission\tin viva voce. The amended proviso of Rule 19
\nhas dispensed  with that  requirement though  viva voce test
\nhas been  retained. It\tis not\tnecessary to  refer to other
\nRules as these are the only Rules which are relevant for the
\npurposes of  determining the  controversy involved  in these
\ncases.\n<\/p>\n
     The “unplaced  candidates” of  1970 examination claimed
\nseniority of  1970 in terms of Rule 22 even though they were
\nappointed in  1975. The State Government as well as the High
\nCourt rejected\ttheir claim  as in  their view the “unplaced
\ncandidates” formed  a separate class as their recruitment to
\nthe service  was made  in special circumstances, even though
\nthey had  been unsuccessful  at the  examination.  The\tHigh
\nCourt on  its administrative  side rejected  their claim for
\nseniority   whereupon\tRafiquddin   and   other   “unplaced
\ncandidates” approached\tthe High  Court on the judicial side
\nby filing  the\twrit  petition\tunder  Article\t226<\/a>  of\t the
\nConstitution   challenging   the   order   rejecting   their
\nrepresentation.\t The   Division\t Bench\tof  the\t High  Court
\nconstituting of\t M.N. Shukla  and K.M.\tDayal, JJ. held that
\nthe appointment\t of the\t “unplaced candidates” had been made
\nin pursuance of the result of the competitive examination of
\n1970 and  as such they were entitled to seniority of 1970 in
\naccordance to  Rule 22.\t The Bench  further held that as the
\nseniority in  the service  is determined on the basis of the
\nyear  of   the\t competitive   examination   the   “unplaced
\ncandidates” belonging to the IIIrd list were entitled to the
\nsenior to  those appointed  to service\ton the\tbasis of the
\nresult of  the competitive  examination of  1972 even though
\nthe “unplaced  candidates” had\tbeen  appointed\t to  service
\nlater in  time. At  regards the\t inter-se-seniority  of\t the
\ncandidates recruited  to the  service in  pursuance of\t1970
\nexamination the\t High Court  held that the Commission had no
\nauthority to prescribe any minimum qualifying marks for viva
\nvoce and  instead  it  should  have  prepared  the  list  of
\nsuccessful  candidates\ton  the\t basis\tof  aggregate  marks
\nsecured by each candidate irrespective of the marks obtained
\nby a candidate in viva voce. Adverting to proviso to Rule 19
\nH
\n812<\/span>
\nthe Bench  observed “It is true that the Rule authorises the
\nPublic A  Service Commission  to lay down such minimum marks
\nbut that  it was  so laid  down prior  to the holding of the
\nexamination of\tthe year  1970\tdoes  not  appear  from\t the
\nrecord. If  any minimum\t marks were prescribed the candidate
\nshould have  had notice of the same and only thereafter they
\ncould decide  to appear or not to appear at the examination.
\nThe Public  Service Commission\tcannot at  its whim  at\t any
\npoint of  time without\tnotice to the candidates fix minimum
\nmarks.” on  these findings  the High Court directed that the
\nmerit list  of 1970 recruits, should be drawn afresh, on the
\nbasis of  the aggregate\t marks\tsecured\t by  each  candidate
\ndisregarding  the  qualifying  marks  fixed  by\t the  Public
\nService Commission  for the  viva voce\ttest.  The  Division
\nBench  directed\t  that\tthe   seniority\t of   the  “unplaced
\ncandidates” included  in the  third list  be  refixed  after
\nrearranging the\t lists of  candidates included\tin the first
\nand second  list on  the basis\tof the\taggregate marks. The
\neffect of  the judgment of the Bench has been that all those
\ncandidates who had been appointed to service in pursuance to
\nthe 1972  examination have been made junior to the “unplaced
\ncandidates” of 1970 examination although they were appointed
\nmuch later.  Further the  seniority  of\t regularly  selected
\ncandidates and\tappointed to  the service out of the Ist and
\nIInd lists  of the 1970 examination is adversely affected on
\naccount of  the rearrangement  of the  merit list as many of
\nthe unsuccessful  candidates have become senior to those who
\nhad been  included in  the Ist\tand IInd  list. Further\t the
\ncandidates  who\t  had  passed\talong-with  the\t  successful
\ncandidates  of\t 1972  examination   also   being   unplaced
\ncandidates would  go above  all the  candidates of  the 1972
\nexamination including  the candidates who had stood first in
\nthe 1972 examination.\n<\/p>\n
     After hearing  the learned\t counsel for  the parties at
\nlength and  having given  our anxious  consideration to\t the
\ncontroversy raised  in these  cases, we\t are of opinion that
\nthe Division  Bench completely\tmisconceived the  Rules\t and
\nrendered the  judgment\tin  total  disregard  of  the  facts
\navailable on record. As discussed earlier the Rules, entrust
\nthe Public  Service Commission\twith  the  duty\t of  holding
\ncompetitive  examination   and\trecommending  the  names  of
\nsuitable candidates as approved by it for appointment to the
\nservice on  the\t basis\tof  the\t proficiency  shown  by\t the
\ncandidates at  the examination\tadjudged on the basis of the
\naggregate marks\t secured by them. The appointment to service
\nis made\t from the  list forwarded  by the  Commission to the
\nState Government.  Seniority in the service is determined on
\nthe  basis  of\tthe  year  of  the  competitive\t examination
\nirrespective of\t the date  of appointment  and the inter-se-
\nseniority  of\tcandidates  recruited\tto  the\t service  is
\ndetermined on  the basis of their ranking in the merit list.
\nTo
\n813<\/span>
\nrecapitulate Rules  19, 21  and 22  as they stood during the
\nyear 1970  i.e. prior  to their\t amendment in  January, 1972
\nwere as under:\n<\/p>\n
\t  ”  19.   List\t of   candidates  approved   by\t the
\n\t  Commission-The Commission  shall prepare a list of
\n\t  candidates who  have\ttaken  the  examination\t for
\n\t  recruitment to  the  service\tin  order  of  their
\n\t  proficiency as  disclosed by\tthe aggregate  marks
\n\t  finally awarded  to each candidate. If two or more
\n\t  candidates obtain equal marks in the aggregate the
\n\t  Commission shall  arrange them  in order of merits
\n\t  on the  basis of their general suitability for the
\n\t  service:\n<\/p><\/blockquote>\n
\t       Provided that in making their recommendations
\n\t  the Commission  shall satisfy\t themselves that the
\n\t  candidate-\n<\/p><\/blockquote>\n
\t  (i) has obtained such an aggregate of marks in the
\n\t  written test\tthat he\t is qualified by his ability
\n\t  for appointment to the\n<\/p><\/blockquote>\n
\t  (ii) has  obtained in\t the  viva  voce  test\tsuch
\n\t  sufficiently high  marks that\t he is\tsuitable for
\n\t  the service.\n<\/p><\/blockquote>\n
\t  21. Appointment-(1)  subject to  the provisions of
\n\t  Rule 20, the Governor shall on receipt of the list
\n\t  prepared by  the Commission consult the High Court
\n\t  and shall,  after taking  into  consideration\t the
\n\t  views of  the High  Court, select  candidates\t for
\n\t  appointment from  amongst those  who stand highest
\n\t  in order of merit in such list provided that he is
\n\t  satisfied  that   they  duly\tqualified  in  other
\n\t  respects.\n<\/p><\/blockquote>\n
\t       (2) The\tGovernor  may  make  appointment  in
\n\t  temporary or\tofficiating vacancies  from  persons
\n\t  possessing  necessary\t  qualifications  prescribed
\n\t  under these Rules.\n<\/p><\/blockquote>\n
\t       (3) All\tappointments made  under  this\tRule
\n\t  shall be notified in the official Gazette.\n<\/p><\/blockquote>\n
\t  22. Seniority-Subject to the provisions of Rule 31
\n\t  the seniority\t of candidates already in service at
\n\t  the time when these rules come into force would be
\n\t  determined  according\t  to  the   Rules  in  force
\n\t  previously and  for those  appointed\tsubsequently
\n\t  the seniority\t shall be  determined by the year of
\n\t  competitive examination  on the results of which a
\n\t  candi-\n<\/p><\/blockquote>\n
814<\/span><\/p>\n
\t  date is  recruited and  the position\tin the\tlist
\n\t  prepared under Rule 19
\n\t  NOTE:\t A  candidate  may  lose  his  seniority  if
\n\t  without any  reasonable cause he does not join his
\n\t  service  when\t  a  vacancy  is  offered  to  him.”<\/p><\/blockquote>\n
\t  (underlining by us)
\nThe aforesaid rules show that the Commission was required to
\nprepare a  list of candidates approved by it for appointment
\nto the\tservice. Rule  19 provided that the list of selected
\ncandidates should be arranged in order of merit on the basis
\nof the\taggregate marks finally awarded to each candidate in
\nwritten as  well as in viva voce test. Clause (1) of proviso
\nto Rule\t 19 laid  down that  in making their recommendation,
\nthe Commission\tshould satisfy\titself that  a candidate had
\nobtained such  aggregate of  marks in the written test as to
\nindicate  that\t he  was   qualified  by   his\tability\t for
\nappointment to\tthe service  and further  he had obtained in
\nthe viva  voce test such sufficiently high marks that he was
\nsuitable for  the service. In pursuance to clause (1) of the
\nproviso, the  Commission had  power to fix minimum aggregate
\nmarks in  written test\tfor judging  the  suitability  of  a
\ncandidate for  appointment to service. Similarly clause (ii)
\nof the\tproviso conferred power on the Commission to fix the
\nminimum marks for viva voce test to judge the suitability of
\na candidate  for the service. One related to the fixation of
\nthe minimum in the aggregate marks in the written test while
\nthe other  related to  the fixation  of the minimum marks in
\nthe viva  voce test. The enacting clause of Rule 19 directed
\nthe Commission\tto prepare  the list  on the  basis  of\t the
\naggregate marks\t awarded  to  a\t candidate  Aggregate  marks
\nobtained by a candidate determined his position in the list,
\nbut the\t proviso of  the Rule  required\t the  Commission  to
\nsatisfy\t itself\t  that\tthe   candidate\t had  obtained\tsuch
\naggregate marks\t in the\t written test  as to qualify him for
\nappointment to\tservice and  further he\t had  obtained\tsuch
\nsufficiently high  marks in  viva voce\twhich would show his
\nsuitability for\t the service.  The scheme underlying Rule 19
\nand the\t proviso made  it apparent  that  obtaining  of\t the
\nminimum aggregate  marks in  the written  test and  also the
\nminimum in  the viva  voce was\tthe sine  quo non before the
\nCommission could  proceed  to  make  its  recommendation  in
\nfavour of  a candidate\tfor appointment\t to the service. The
\nCommission in  view  of\t the  clause  (ii)  of\tthe  proviso
\nCommission had\tpower to fix the minimum marks for vive voce
\nfor judging  the suitability of a candidate for service Thus
\na candidate  who had  merely  secured  the  minimum  of\t the
\naggregate marks\t or above was not entitled to be included in
\nthe list of successful candidates unless he had also secured
\nthe minimum marks which had been prescribed for the viva
\n815<\/span>
\nvoce test.  The Commission  was required to include the name
\nof candidates  in the  list prepared  by it under Rule 19 on
\nthe basis  of the  aggregate of\t marks as  obtained by\teach
\ncandidate both\tin written as well as in the viva voce test.
\nRule 20 provides that no person shall be appointed as member
\nof the\tservice unless\the  is\tmedically  fit.\t It  further
\nprovides that  a candidate  who has  passed the\t competitive
\nexamination and\t is finally  approved for appointment to the
\nservice shall  be required  to\tpass  an  examination  by  a
\nMedical Board.\tRule  21  provides  that  the  Governor,  on
\nreceipt of the list prepared by the Commission under Rule 19
\nshall select  candidates for  appointment from amongst those
\nwho stand  highest in  order of\t merit in  “such list” after
\ntaking into  consideration the\tviews of the High Court. The
\nexpression “such  list” in  Rule 2 l obviously refers to the
\nlist prepared  by the  Commission  under  Rule\t19.  It\t is,
\ntherefore,  manifest  that  only  those\t candidates  can  be
\nappointed to  the service  who\tare  included  in  the\tlist
\nprepared by  the Commission under Rule 19. If the Commission
\ndoes not  approve and include the name of a candidate in the
\nlist prepared by it under Rule 19, he cannot be appointed to
\nthe  service  under  Rule  21  Rule  22\t provides  that\t the
\nseniority in  the service shall be determined by the year of
\ncompetitive examination\t on the results of which a candidate
\nis recruited  and his  position in  the list  prepared under
\nRule  19.  The\tRule  clearly  postulates  determination  of
\nseniority of members of the service recruited to the service
\nthrough competitive  examination  with\treference  to  their
\nposition in  the list of approved candidates prepared by the
\nCommission under  Rule 19.  The expression  “member  of\t the
\nservice” as defined by Rule 4(e) means a person appointed in
\nsubstantive capacity under the provisions of the Rules. Rule
\n22 read\t with Rule 4(e) lays down in unmistakable terms that
\nthe seniority  of members  of service is to be determined on
\nthe basis  of the  year of  competitive examination  and not
\notherwise.  In\tother  words  only  those  persons  who\t are
\nappointed in  accordance with  the Rules  on the result of a
\ncompetitive examination are entitled to the determination of
\ntheir seniority\t in accordance\twith Rule 22. Seniority of a
\ncandidate appointed  to the  service would  depend upon\t the
\nresult of  the competitive  examination and  his position in
\nthe list  prepared under  Rule 19.  Claim to seniority under
\nRule 22\t cannot be upheld if a candidate is not approved for
\nappointment under  Rule 19  and has  not found\this way into
\nservice\t on   the  recommendation   of\tthe  Commission.  We
\ntherefore hold\tthat the  claim to seniority on the basis of
\nthe year  of competitive examination as contemplated by Rule
\n22 is available only to those candidates who are approved by
\nthe Commission\ton the\tbasis of  their marks in the written
\nand viva voce test at the examination.\n<\/p>\n
816<\/span><\/p>\n
     Learned   counsel\t  for\tthe   respondent   (unplaced
\ncandidates) urged  that clause (2) of the proviso to Rule 19
\ndid not confer power on the Commission to fix any qualifying
\nminimum\t marks\t for  viva   voce.  In\tthe  alternative  he
\nchallenged the constitutional validity of the proviso on the
\nground of excessive delegation of legislative power. Rule 19
\nas it  stood in the year 1970 read with Rule 18 and Appendix
\nand the\t Note I\t of clause (5) of appendix required that the
\naggregate of  marks obtained  in the  written and  viva voce
\ntest, determined a candidate’s rank in the merit list. These
\nprovisions  conferred\tpower  on   the\t Commission  to\t fix
\nqualifying marks  in the  written test\tand if\ta  candidate
\nfailed to  obtain the  minimum marks in the written test the
\nCom mission might refuse to call him for viva voce test. The
\nenacting  clause   of  Rule  19\t provide  guidance  for\t the
\nCommission in  preparing the  list of approved candidates on
\nthe basis  of the aggregate marks obtained by a candidate in
\nthe written  as well as in viva voce test. Clause (2) of the
\nproviso to  Rule 19 did not no doubt expressly lay down that
\nthe minimum marks for the viva voce had to be prescribed but
\nthe language used therein clearly showed that the Commission
\nalone had  the power to prescribe minimum marks in viva voce
\ntest for  judging the  suitability of  a candidate  for\t the
\nservice. That  is the  clear meaning  of the  words  in\t the
\nproviso\t to   Rule  19\t “provided  that   in  making  their
\nrecommendation the  Commission shall satisfy themselves that
\nthe candidate  i) ..  ii) has obtained in the viva voce test
\nsuch sufficiently  high marks  that he\tis suitable  for the
\nservice.” Commission is required to judge the suitability of
\na candidate on the basis of sufficiently high marks obtained
\nby a  candidate in  the viva  voce test,  it has to fix some
\npercentage of  marks which  in its opinion may be sufficient
\nto assess  the suitability of a candidate. In the absence of
\na fixed\t norm, there  could be\tno uniformity  in  assessing
\nsuitability  of\t candidates  in\t the  viva  voce  test.\t The
\nCommission had\ttherefore power\t to fix\t the norm and in the
\ninstant case it had fixed 35 per cent minimum marks for viva
\nvoce test. The viva voce test is a well-recognised method of
\njudging the  suitability of  a candidate  for appointment to
\npublic services\t and this method had almost universally been
\nfollowed in  making  selection\tfor  appointment  to  public
\nservices. Where selection is made on the basis of written as
\nwell as\t viva voce  test, the  final result is determined on
\nthe basis  of the  aggregate marks.  If\t any  minimum  marks
\neither in the written test or in viva voce test are fixed to
\ndetermine the  suitability of a candidate the same has to be
\nrespected. Clause  (ii) of  the proviso\t to Rule  19 clearly
\nconfers power  on the  Commission to  fix minimum  marks for
\nviva voce  test for  judging the  suitability of a candidate
\nfor the\t service. We  do not  find any\tconstitutional legal
\ninfirmity in the provision.\n<\/p>\n
817<\/span><\/p>\n
     The learned counsel placed reliance on a Division Bench
\njudgment of  the Mysore\t High Court  in K.N. Chandrasekhra &
\nOrs. v.\t State A  of Mysore  & Ors<\/a>., AIR 1963 Mysore 292. In
\nthat case  A.R. Somnath\t Iyer, J.  speaking  for  the  Bench
\nobserved that  the power  to fix  minimum marks in viva voce
\ntest  for   judging  the  suitability  of  a  candidate\t for
\nappointment to\tState Judicial\tService was  legislative  in
\ncharacter and  it could\t not  be  exercised  by\t the  Public
\nService Commission.  He also  held that under Article 234<\/a> of
\nthe  Constitution   it\twould\tbe  a\tspecial\t  duty\t and
\nresponsibility of  the\tCommission  alone  to  make  a\tRule
\nprescribing the\t minimum marks for viva voce examination and
\nin the\tabsence of  such a  rule the  committee\t constituted
\ncould not prescribe any such minimum standard. No doubt this
\ndecision support  the submission  raised on  behalf  of\t the
\nunplaced candidates  but a  Full Bench\tof the\tMysore\tHigh
\nCourt  had   not   approved   the   view   taken   in\tK.N.
\nChandrasekhra’s case  as can  be gathered  from T.N. Manjula
\nDevi v.\t State of  Karnataka. [\t 1982] Labour and Industrial
\nCases 759.  In the  latter case\t the  Court  held  that\t the
\nprocess of selection of suitable candidates to a responsible
\npost involved a minimum standard to be crossed by candidates
\nand that  had to  be fixed  by the  selection commit- tee. I
\nearned counsel\tfor the respondent referred to a decision of
\nthis Court  in Durga  Charan Misra  v. State of Orissa, W.P.
\n1123 of\t 1986 decided  on 27.8.1987 for the proposition that
\nthe Commission\thad no power to fix the qualifying marks for
\nthe  viva  voce\t test.\tWe  have  carefully  considered\t the
\ndecision but  we do not find anything therein to support the
\nrespondents’ contention.  In  that  case  the  question\t for
\nconsideration before  this court  was  whether\tthe  minimum
\nmarks prescribed  by the  Commission for  the viva voce test
\nfor appointment\t to the State Judicial Service of orissa was
\njustified. The Court on an analysis of the relevant rules of
\nthe orissa  Judicial Service  Rules 1964 held that there was
\nno rule\t prescribing the  minimum qualifying  marks for\t the
\nviva voce  test. The  court found  that the  Commission\t had
\nfixed qualifying  marks and  on that  basis it\thad excluded
\ncandidates securing  higher marks in written test. The Court
\nallowed the  petition and  quashed the selection made by the
\nCommission and directed the Commission to prepare the select
\nlist afresh  on the basis of the aggregate marks obtained by
\nthe candidates\tin the written examination and the viva voce
\ntest. This decision does not advance the case of respondents
\nin view\t of clause  (ii) of  the proviso to Rule 19. So long
\nclause (ii)  of proviso\t to Rule  19 remained  in force\t the
\nCommission had power to fix minimum qualifying marks for the
\nviva voce test. Thus even if a candidate had obtained higher
\naggregate marks\t in written and viva voce test but if he had
\nfailed to secure the minimum marks in the viva voce test his
\nname could  not be  included in\t the list  prepared  by\t the
\nCommission H
\n818<\/span>
\nunder Rule  19. This  view was taken by another Bench of the
\nHigh Court  in D.P.  Shukfa’s case, and with which we agree.
\nThere is  no dispute that none of the unplaced candidates of
\n1970 examination  (those included  in the  third  list)\t had
\nsecured minimum\t marks of  35 per cent in the viva voce test
\nand  for   that\t reason\t  they\twere  not  approved  by\t the
\nCommission, although they had obtained more than 40 per cent
\nmarks in the aggregate.\n<\/p>\n
     Learned counsel  for the  respondents urged that 35 per
\ncent of\t qualifying marks  fixed by  the Commission  for the
\nviva voce  test was unreasonable and excessive. In Lila Dhar
\nv. State  of Rajasthan<\/a>, [1982]\tSCR 320 this Court held that
\nwhile a written examination assessed a candidate’s knowledge
\nand intellectual  ability an  interview test  is valuable to
\nassess\ta   candidate’s\t over  all  intellectual  and  other
\nqualities. The\tinterview permits an assessment of qualities
\nof character  which written  papers ignore,  it assesses the
\nman himself  and not  his intellectual\tabilities. The Court
\nobserved that there could not be any rule of thumb regarding
\nthe precise  weight to\tbe given  to the  viva voce test. It
\nmust  vary   from  service   to\t service  according  to\t the
\nrequirement of\tservice the  minimum qualifications  may  be
\nprescribed, the\t age group from which the selection is to be
\nmade, the body to which the task of holding the interview is
\nentrusted. There  can  be  no  doubt  that  viva  voce\ttest
\nperforms  a  very  useful  function  of\t assessing  personal
\ncharacteristics and  traits of\ta candidate.  The answer  to
\nquestion as  to what  weight should be attached to viva voce
\ntest where  both written  and viva  voce test  are held\t for
\nmaking the  selection, would  depend upon the purpose of the
\nselection.  Chinnappa  Reddy,  J.  speaking  for  the  Court
\nobserved
\n\t  “Thus, the  written examination assesses the man’s
\n\t  intellect and\t the interview\ttest the man himself
\n\t  and “the twain shall meet” for a proper selection.
\n\t  If both written examination and interview test are
\n\t  to be\t essential features  of proper selection the
\n\t  question may arise as to the weight to be attached
\n\t  respectively to  them. In the case of admission to
\n\t  a college,  for instance,  where  the\t candidate’s
\n\t  personality is  yet to develop and it is too early
\n\t  to  identify\tthe  personal  qualities  for  which
\n\t  greater importance  may have\tto  be\tattached  in
\n\t  later life,  greater weight  has per\tforce to  be
\n\t  given to  performance in  the written examination.
\n\t  The importance  to be\t attached to  the  interview
\n\t  test must be minimal. That was what was decided by
\n\t  this\tCourt\tin   Periakaruppan   v.\t  State\t  of
\n\t  Tarlilnadu, Ajay Hasia etc. v. Khalid Mujib
\n819<\/span>
\n\t  Sehravardi &\tOrs. etc.  and other  cases. In\t the
\n\t  other hand,  in  the\tcase  of  service  to  which
\n\t  recruitment  has   necessarily  to  be  made\tfrom
\n\t  persons of  mature personality, interview test may
\n\t  be the  only way,  subject to\t basic and essential
\n\t  academic  a\tprofessional-\trequirements   being
\n\t  satisfied. To\t subject such  persons to  a written
\n\t  examination  may  yield  unfruitful  and  negative
\n\t  results, apart from its being an act of cruelty to
\n\t  those persons. There are, of course, many services
\n\t  to  which   recruitment  is\tmade  from   younger
\n\t  candidates  whose   personalities   are   on\t the
\n\t  threshold of\tdevelopment and\t who show  signs  of
\n\t  great\t promise,  and\tthe  discerning\t may  in  an
\n\t  interview test,  catch a  glimpse  of\t the  future
\n\t  personality. In  the case  of such services, where
\n\t  sound selection must combine academic ability with
\n\t  personality promise,\tsome weight has to be given,
\n\t  though not much too great weight, to the interview
\n\t  test. There  cannot be any rule of thumb regarding
\n\t  the precise  weight to be given. It must vary from
\n\t  service to service according to the requirement of
\n\t  the\tservice,    the\t   minimum    qualifications
\n\t  prescribed, the age group from which the selection
\n\t  is to\t be made,  the body  to which  the  task  of
\n\t  holding the  interview  test\tis  proposed  to  be
\n\t  entrusted and\t host of  other\t factors.  It  is  a
\n\t  matter for  determination  by\t experts.  It  is  a
\n\t  matter for  research. It  is\tnot  for  courts  to
\n\t  pronounce upon  it unless  exaggerated weight\t has
\n\t  been given with proven or obvious oblique motives.
\n\t  The Kothari  Committee also suggested that in view
\n\t  of the  obvious importance  of the subject, it may
\n\t  be examined  in detail by the Research Unit of the
\n\t  Union of Public Service Commission.\n<\/p>\n
In A.K.\t Yadav v.  State of  Haryana, [1985]  4\t SCC  417  a
\nConstitution Bench of this Court approved the view expressed
\nin Lila\t Dhar’s case. The Court observed there cannot be any
\nhard and  fast rule  regarding the  weight to  be  given  as
\nagainst the  written examination.  It must vary from service
\nto service  according to  the requirement of the service the
\nminimum qualification  prescribed age  group from  which the
\nselection is  to be  made the  body to\twhich  the  task  of
\nholding the interview test is proposed to be entrusted and a
\nhost of\t other factors.\t It is a matter for determination by
\nexperts. The  Court does not possess the necessary equipment
\nand it\twould not  be right  for the court to pronounce upon
\nit. In\tLila Dhar’s case 25 per cent of marks flxed for viva
\nvoce test was upheld. In A.K. Yadav’s case selection made by
\nthe Haryana Public Service Commission for appointment to the
\npost of Haryana Civil
\n820<\/span>
\nService (Executive  and other  allied  services)  was  under
\nchallenge. The A Court held that allocation of 33.3 per cent
\nfor viva  voce was  high as it opened door for arbitrariness
\nand in\torder to  diminish it  if not eliminate the same the
\npercentage needs  to be reduced. The Constitution Bench made
\nobservation that  marks for viva voce test should not exceed
\n12.2  per   cent.  In\tspite  of   these  observations\t the
\nConstitution Bench  did not  interfere or  strike  down\t the
\nselection instead  it directed\tthe Commission\tto give\t one
\nmore opportunity  to the  aggrieved candidates\tto appear at
\nthe competitive\t examination. In  the instant case there has
\nbeen no\t allegation of\tmala fides  or arbitrariness against
\nthe Commission\twhich  held  the  viva\tvoce  test.  In\t the
\ncircumstances we  do not  consider it necessary to set aside
\nselection or  issue any\t direction  to\tthe  Public  Service
\nCommission or  to the  State Government as Rules relating to
\nviva  voce   test  have\t already  been\tamended.  After\t the
\namendment of  the Rules\t on  January  31,  1972\t no  minimum
\nqualifying marks  can be  fixed by  the Commission  for viva
\nvoce test  and therefore  it is\t not necessary\tto issue any
\ndirection in the matter.\n<\/p>\n
     The Division  Bench of the High Court observed that the
\nCom mission  had no  authority to  fix any minimum marks for
\nthe viva  voce test and even if it had such a power it could
\nnot prescribe the minimum marks without giving notice to the
\ncandidates.  The   Bench  further   observed  that   if\t the
\nCommission had\tgiven notice  to the  candidates before\t the
\nsteps for holding the competitive examination were taken the
\ncandidates may\tor may not have appeared at the examination.
\nIn our\topinion the  High Court committed a serious error in
\napplying the  principles of natural justice to a competitive
\nexamination.  There   is  a   basic  difference\t between  an
\nexamination held  by a\tcollege or  university or  examining
\nbody  to   award  degree  to  candidates  appearing  at\t the
\nexamination and\t a competitive\texamination.  The  examining
\nbody or\t the authority\tprescribes minimum  pass marks. If a
\nperson obtains\tthe  minimum  marks  as\t prescribed  by\t the
\nauthority he  is  declared  successful\tand  placed  in\t the
\nrespective grade  according to\tthe number of marks obtained
\nby him.\t In such  a case  it  would  be\t obligatory  on\t the
\nexamining authority  to\t prescribe  marks  for\tpassing\t the
\nexamination as well as for securing different grades well in
\nadvance. A  competitive examination  on the other hand is of
\ndifferent  character.\tThe  purpose   and  object   of\t the
\ncompetitive  examination   is  to   select   most   suitable
\ncandidates for\tappointment to public services. A person may
\nobtain sufficiently  high  marks  and  yet  he\tmay  not  be
\nselected on  account of\t the limited  number  of  posts\t and
\navailability of\t persons of higher quality. Having regard to
\nthe nature  and characteristics of a competitive examination
\nit is not possible nor necessary to give notice
\n821<\/span>
\nto  the\t  candidates  about  the  minimum  marks  which\t the
\nCommission may\tdetermine for  purposes of  eliminating\t the
\nunsuitable candidates.\tThe rule of natural justice does not
\napply to a competitive examination.\n<\/p>\n
     The  question   arises  as\t  to  whether  the  unplaced
\ncandidates included in the third list” were appointed to the
\nservice on  the result\tof the\tcompetitive  examination  of
\n1970. We  have already referred to necessary facts in detail
\nindicating  the\t  circumstances\t under\twhich  the  unplaced
\ncandidates (included  in the third list) of 1970 examination
\nwere appointed.\t Initially the Public Service Commission had
\nfixed 40  per cent  of aggregate  marks and  35 per  cent as
\nminimum\t marks\tin  the\t viva  voce  test  for\tjudging\t the
\nsuitability  of\t  candidates  and   on\tthat  basis  it\t had
\nrecommended 46\tcandidates for\tappointment but subsequently
\non a  suggestion  made\tby  the\t Government  the  Commission
\nforwarded another  list of  33 candidates for appointment to
\nservice on  the basis  of 35 per cent marks in the aggregate
\nas well\t as 35\tper cent  minimum marks\t in  viva  voce.  In
\nforwarding the first and the second list, the Commission had
\napplied the criteria of minimum marks of 35 per cent in viva
\nvoce test.  The Commission had not recommended any candidate
\nin either of the two lists, who had failed to secure minimum
\nmarks of  35 per cent in viva voce test. After the amendment
\nof Rule\t 19 and\t deletion  of  the  two\t proviso  the  State
\nGovernment  on\t the  representation   of  the\tunsuccessful
\ncandidates  of\t1970  examination  made\t suggestion  to\t the
\nCommission for approving more candidates of the Examinations
\nheld in\t 1967, 1968,  1969 and\t1970 for  appointment to the
\nservice on  the basis  of 40  per cent of marks in aggregate
\ndisregarding the  minimum marks\t fixed for  viva  voce.\t The
\nCommission refused to accept the suggestion but subsequently
\nin pursuance  of  the  decision\t taken\tby  the\t high  level
\ncommittee  it\tforwarded  the\t list  of   37\tunsuccessful
\ncandidates of  1970 examination who had obtained 40 per cent
\nor more\t marks in the aggregate but had not qualified in the
\nviva voce.  The Commission  by its  letter dated  19th June,
\n1974 for  varded the  list of  37 candidates  to  the  State
\nGovernment. The\t Commissioner’s letter shows that it had not
\napproved the appointment of those included in the third list
\nas they had failed to secure minimum prescribed marks in the
\nviva voce  test. During\t the course  of hearing\t before\t us,
\nserious dispute\t and doubt  was raised on the genuineness of
\nthe annexure  to the  letter  on  behalf  of  the  “unplaced
\ncandidates.” It\t was suggested\ton  their  behalf  that\t the
\nCommission had\tapproved and recommended the names mentioned
\nin the\tthird list  for appointment and that it had no where
\nstated that  they were\tunsuccessful candidates or that they
\nhad not\t been found  suitable by the Commission. In order to
\nresolve this
\n822<\/span>
\ncontroversy, on\t our directive,\t the State  Counsel produced
\nthe original  A of  the letter\tbefore the  Court and  on  a
\nperusal of the same we found that the Commission had neither
\nin the\tbody of\t the letter  nor in  the  annexure  appended
\nthereto\t ever\texpressed  its\tviews  that  the  candidates
\nmentioned therein  had been  found suitable  by it.  On\t the
\ncontrary, the note appended to the list which was annexed to
\nthe letter   clearly stated that the candidates mentioned in
\nthe list had not been found suitable by the Commission. This
\nwould clearly  show  that  the\tunplaced  candidates  (those
\nincluded  in  the  third  list)\t were  unsuccessful  at\t the
\ncompetitive examination and their names were not included in
\nthe list  of approved  candidates as contemplated by Rule 19
\nas they\t had failed  to obtain the minimum marks in the viva
\nvoce test.  The Commission had never made any recommendation
\nfor their  appointment (  instead under the influence of the
\nGovernment,  it\t  had  forwarded   the\tlist   without\t its
\nrecommendation. The  appointment of unplaced candidates made
\nin pursuance  of  the  decision\t taken\tby  the\t high  level
\ncommittee, is  not countenanced\t by the\t Rules. There  is no
\nescape from the conclusion that the unplaced candidates were
\nnot appointed  to the  service on the basis of the result of
\nthe competitive\t examination of\t 1970. Their appointment was
\nmade in breach of the Rules, in pursuance to the decision of
\nthe high  level committee.  It is  well-settled\t that  where
\nrecruitment to\tservice is regulated by the statutory rules,
\nrecruitment must be made in accordance with those Rules, any
\nappointment made  in breach  of rules  would be illegal. The
\nappointment of\t2 1  “unplaced candidates”  made out  of the
\nthird list  was illegal\t as it\twas made in violation of the
\nprovisions of the Rules. The high level committee which took
\ndecision for recruitment of candidates to the service on the
\nbasis of  the 40  per cent  aggregate marks disregarding the
\nminimum marks fixed by the Commission for viva voce test had
\nno authority  in law,  as the  Rules do\t not contemplate any
\nsuch committee\tand any\t decision taken\t by it\tcould not be
\nimplemented.\n<\/p>\n
     We are surprised that the Chief Justice, Chief Minister
\nas well\t as the\t Chairman of  the Commission agreed to adopt
\nthis procedure\twhich was  contrary to\tthe Rules.  The high
\nlevel committee\t even though  constituted by.  highly placed
\npersons had  no authority  in law to disregard the Rules and
\nto direct the Commission to make recommendation in favour of
\nunsuccessful  candidates   disregarding\t the  minimum  marks
\nprescribed  for\t  the  viva   voce  test.   The\t high  level
\ncommittee’s view  that after  the amendment  of Rule 19, the
\nminimum qualifying  marks  fixed  for  viva  voce  could  be
\nignored was  wholly wrong.  Rule 19  was amended  in January
\n1972, but  before that\t1970 examination  had  already\tbeen
\nheld. Since the amendment was not retrospective the
\n823<\/span>
\nresult of any examination held before January 1972 could not
\nbe determined  on the  basis of\t amended Rules.\t The  Public
\nService\t Commission  is\t a  constitutional  and\t independent
\nauthority. It  plays a\tpivotal role  in the  selection\t and
\nappointment  of\t persons  to  public  services.\t It  secures
\nefficiency  in\t the  public   administration  by  selecting
\nsuitable  and  efficient  persons  for\tappointment  to\t the
\nservices. The  Commission has  to perform  its functions and
\nduties in  an independent  and objective manner uninfluenced
\nby the\tdictates of  any other\tauthority. It  is  not\tsub-
\nservient to  the directions  of the  Government unless\tsuch
\ndirections are\tpermissible by\tlaw. Rules vest power in the
\nCommission to hold the competitive examination and to select
\nsuitable candidates  on the  criteria fixed by it. The State
\nGovernment or  the high\t level committee could not issue any
\ndirections to  the Commission  for making  recommendation in
\nfavour of those candidates who failed to achieve the minimum
\nprescribed standards  as the  Rules did\t not confer any such
\npower on  the State  Government. In  this view\teven if\t the
\nCommission had made recommendation in favour of the unplaced
\ncandidates  under  the\tdirections  of\tthe  Government\t the
\nappointment of\tthe unplaced  candidates was  illegal as the
\nsame was made in violation of the Rules.\n<\/p>\n
     On behalf\tof the respondents the “unplaced candidates”
\nit  was\t  contended  that   there  was\t acute\tshortage  of
\nMunsif\/Magistrates in  the State  as a result of which large
\nnumber of cases were pending in the courts. In order to meet
\nthe shortage  of Munsifs State Government and the high level
\ncommittee,  keeping   in  view\tthe  amendment\tof  Rule  19
\nsuggested to  the Commission to recommend the names of those
\ncandidates who\tmay have  obtained 40 per cent or more marks
\nin the\taggregate disregarding\tthe minimum qualifying marks
\nfixed for  the viva  voce test\tin the\texamination of 1967,
\n1968, 1969 and 1970. It was urged that the suggestion of the
\ncommittee was  accepted by  the Commission  and therefore it
\nforwarded the  names of 37 candidates for appointment to the
\nservice. We  have already  noticed that the Commission never
\nagreed to the proposal. The Chairman of the Commission was a
\nmember of  the high level committee but the Commission never
\ntook any  decision to accept the proposals of the high level
\ncommittee. No  material has  been placed before the court to
\nsupport this  contention. On  the contrary, the Commission’s
\nletter dated  19th June\t 1974, clearly\tindicates  that\t the
\nCommission  as\tdirected  by  the  State  Government  merely
\nforwarded the  list of\t37 candidates  of 1970\texamination,
\nwithout\t making\t  any  recommendation\tand  yet  they\twere
\nappointed in service in breach of the Rules. But even if the
\nCommission had\tagreed to the Government’s suggestion, their
\nappointments continued to be
\n824<\/span>
\nillegal, as the same were made in breach of Rules. There was
\nno justification  for the  appointment of  the\tunsuccessful
\ncandidates in  1975, because  by that  time result  of\t1972
\nexamination had\t been announced and duly selected candidates
\nwere available for appointment.\n<\/p>\n
     In this  context, it is necessary to consider as to how
\nlong the list of candidates for a particular examination can
\nbe utilised  for appointment. There is no express. provision
\nin the\tRules as  to for what period the list prepared under
\nRule 19\t can be\t utilised  for\tmaking\tappointment  to\t the
\nservice. In  the absence  of any  provision in\tthe Rules  a
\nreason\table  period  must  be\tfollowed  during  which\t the
\nappointment on\tthe basis  of the  result  of  a  particular
\nexamination should  be made.  The State\t Government and\t the
\nCommission had\tannounced 85  vacancies for  being filled up
\nthrough the  competitive  examination  of  1970.  In  normal
\ncourse, 85  vacancies could  be filled\ton the\tbasis of the
\nresult of the competitive examination of 1970 but if all the
\nvacancies  could  not  be  filled  up  on  account  of\tnon-
\navailability of\t suitable candidates, the appointment to the
\nremaining vacancies could be made on the basis of the result
\nof the\tsubsequent  competitive\t examination.  The  unfilled
\nvacancies of  1970 examination\tcould not  be filled after 5
\nyears as  subsequent competitive  examinations of  the\tyear
\n1972 and  of the  year 1973  had taken place and the results
\nhad been  declared. The\t list prepared\tby the Commission on
\nthe basis  of the  competitive examination  of a  particular
\nyear  could   be  utilised  by\tthe  Government\t for  making
\nappointment to\tthe service  before the\t declaration of\t the
\nresult of the subsequent examination. If selected candidates
\nare  available\t for  appointment   on\tthe   basis  of\t the
\ncompetitive examinations  of subsequent\t years, it  would be
\nunreasonable and  unjust  to  revise  the  list\t of  earlier
\nexamination by\tchanging norms\tto fill\t up the vacancies as
\nthat would  adversely affect  the right of those selected at
\nthe subsequent\texamination in\tmatters\t relating  to  their
\nseniority under\t rule 22.  The 1970 examination could not be
\nutilised as  a perennial source or in exhaustiable reservoir
\nfor  making  appointments  indefinitely.  The  result  of  a
\nparticular examination\tmust come to an end at some point of
\ntime, like  a “dead  ball” in  cricket. It could not be kept
\nalive  for  years  to  come  for  making  appointments.\t The
\npractice of  revising the  list prepared  by the  Commission
\nunder Rule  19 at  the behest  of the Government by lowering
\ndown the  standards and\t norms fixed  by the  Commission  to
\nenable appointment of unsuccessful candidates is sub-versive
\nof rule\t of law.  This practice\t is fraught  with dangers of
\nfavourtism and nepotism and it would open back door entry to
\nthe service. We are, therefore, of the opinion that once the
\nresult of the subsequent examination of 1972 was
\n825<\/span>
\ndeclared, the  Commission  could  not  revise  the  list  of
\napproved candidates of 1970 examination prepared by it under
\nRule 19 at the behest of the Government by lowering down the
\nstandard fixed by it.\n<\/p>\n
     In C.  Channabasavaiah v.\tState of  Mysore &  Ors<\/a>.,  l
\n1965] I\t SCR 360  the Mysore  Public Service Commission made
\nselection and appointment to services in the Mysore State to
\nClass I\t and II\t posts of Administrative Services. After the
\nviva voce  interviews were  held the  Commission published a
\nlist of\t 98 successful\tcandidates who were appointed. After
\nthe announcement of the results, the State Government sent a
\nlist  of   24  candidates   for\t the  consideration  of\t the
\nGovernment  and\t  the  Commission   approved  it.  These  24
\ncandidates also\t were appointed.  16 candidates\t who had not
\nbeen selected  filed a\twrit petition before the Mysore High
\nCourt. During the pendency of the writ petition a compromise
\nwas effected,  as a  result of\tan undertaking\tgiven by the
\nGovernment before the High Court and the 16 petitioners were
\nalso appointed.\t Thereafter, some  other candidates  who had
\nnot been  selected, filed  petition under  Article 32<\/a> of the
\nConstitution before  this Court challenging the selection of
\n24 candidates  selected by the Government and the 16 persons
\nwho had\t filed the  writ petition.  This Court set aside the
\nappointments made  at the  instance of the Government and of
\nthe 16 writ petitioners. The Court observed:\n<\/p>\n
\t  “It seems  surprising that  Government should have
\n\t  recommended as  many a  twenty four  names and the
\n\t  Commission should have approved of all those names
\n\t  without a  single exception even though in its own
\n\t  judgment some\t of them  did not  rank as  high  as
\n\t  others they  had rejected.  Such  a  dealing\twith
\n\t  public appointments  is likely to create a feeling
\n\t  of distrust  in the  working of the Public Service
\n\t  Commission, which  is\t intended  to  be  fair\t and
\n\t  impartial  and  to  do  its  work  free  from\t any
\n\t  influence from any quarter.”<\/p><\/blockquote>\n
     The procedure adopted for selection and the appointment
\npracticed discrimination in violations of Articles 14 and 16
\nof the\tConstitution. While  setting aside the selection and
\nappointment the Court observed:\n<\/p>\n
\t  “It is  very unfortunate that these persons should
\n\t  be uprooted  after they  had been appointed but if
\n\t  equality and\tequal protection before the law have
\n\t  any meaning  and if our public institutions are to
\n\t  inspire that\tconfidence which is expected of them
\n\t  we would  be failing\tin our\tduty if\t we did not,
\n\t  even at the cost of considerable inconvenience to
\n826<\/span>
\n\t  Government and  the selected\tcandidates to do the
\n\t  right thing.”\n<\/p><\/blockquote>\n
In Umesh  Chandra Shukla v. Union of India & Ors<\/a>., [ 1985] 3
\nSCC 72\t1 a competitive examination was held for appointment
\nto  the\t posts\tof  subordinate\t Judges\t in  Delhi  Judicial
\nService. Out  of the  candidates who appeared in the written
\nexamination only  27 candidates\t could qualify for viva voce
\ntest. The  High Court  approved the  list  of  27  qualified
\ncandidates  but\t  having  regard   to  the  fact  that\tsome
\ncandidates who had otherwise scored very high marks had been
\nkept out of the zone of consideration for final selection by
\nreason of  their having\t secured one  or two marks below the
\naggregate  or\tthe  qualifying\t marks\tprescribed  for\t the
\nparticular paper, the High Court directed that moderation of
\ntwo marks  in each  paper to  every candidate  be done. As a
\nresult of moderation of two marks a second list was prepared
\nshowing\t the   names  of  eight\t more  candidates  who\talso
\nqualified for  viva voce  test. Petitions  were filed by the
\nunsuccessful candidates challenging the procedure adopted by
\nthe  High   Court  and\t the  selection\t  committee  in\t the
\npreparation of\tthe final list of the successful candidates.
\nThis Court  struck down\t the list prepared by the High Court
\nafter adding  the moderation  marks. The Court observed that
\nthe High  Court\t had  no  power\t to  include  the  names  of
\ncandidates  who\t  had  not  initially  secured\tthe  minimum
\nqualifying marks  by resorting\tto the device of moderation,
\nparticularly when  there was  no complaint  either about the
\nquestion papers\t or about the mode of valuation. In striking
\nout  the  list\tprepared  by  the  High\t Court,\t this  Court
\nobserved:\n<\/p>\n
\t  “Exercise of such power of moderation is likely to
\n\t  create a  feeling of\tdistrust in  the process  of
\n\t  selection to public appointments which is intended
\n\t  to be\t fair and  impartial. It  may also result in
\n\t  the violation of the principle of equality and may
\n\t  lead to arbitrariness.”<\/p><\/blockquote>\n
     We are  in agreement  with the  views expressed  in the
\naforesaid  decisions.\tThe  appointment   of  the  unplaced
\ncandidates of  1970 examination\t at the\t behest of  the high
\nlevel committee\t was unwarranted by law and it was likely to
\ncreate a feeling of distrust in the process of selection for
\nappointment to\tpublic services which is intended to be fair
\nand impartial.\tThe high  level committee  had no  power  to
\nlower down the standards fixed by the Commission with a view
\nto  accommodate\t unsuccessful  candidates  in  the  judicial
\nservices. The  procedure adopted  in appointing the unplaced
\ncandidates of  1970 examination\t was unauthorised by law and
\nit practiced discrimination in violation of
\n827<\/span>
\nArticle 14<\/a> and Article 16<\/a> of the Constitution. A
\n     The unplaced  candidates were  appointed to the service
\nin breach  of the Rules and they form a separate class. They
\ncannot be  equated with\t those who  were  appointed  to\t the
\nservice from  the first\t and second list of 1970 examination
\nas their  appointment was  made on the recommendation of the
\nPublic\tService\t  Commission.  They   remain   unchallenged.
\nSimilarly, candidates  appointed to the service on the basis
\nof the\tresult of the competitive examination of 1972 before
\nthe unplaced  candidates  were\tappointed,  formed  separate
\nclass as  they were  also appointed  in accordance  with the
\nRules. The  “unplaced candidates” of 1970 examination cannot
\nclaim seniority\t over them  on the basis of Rule 22 as their
\nappointment was\t not made  on the basis of the list approved
\nby the\tCommission under Rule 19. In Shitla Prasad Shukla v.
\nState of  U.P. &  Ors<\/a>. [1986] Supp. SCC 1985 this Court held
\nthat an\t employee must\tbelong to  the same stream before he
\ncan  claim   seniority\tvis-a-vis  others.  Those  appointed
\nirregularly belong  to a  different stream  and they  cannot
\nclaim seniority\t vis-a-vis those who may have been regularly
\nand properly appointed.\n<\/p>\n
     We have  recorded findings\t that 21 unplaced candidates
\nof 1970\t examination were appointed to the service illegally
\nin breach  of the Rules. We would, however, like to add that
\neven though their appointment was not in accordance with law
\nbut the\t judgment and orders passed by them are not rendered
\ninvalid. The  unplaced candidates  are not  usurpers  of  of
\nfice, they  were appointed by the competent authority to the
\nposts of  munsifs with\tthe concurrence\t of the\t High Court,
\nthough they  had not  been found  suitable  for\t appointment
\naccording  to\tthe  norms   fixed  by\tthe  Public  Service
\nCommission. They  have been  working in the judicial service
\nduring all  these years\t and some of them have been promoted
\nalso and  they have  performed their functions and duties as
\nde facto  judicial officers.  “A person who is ineligible to
\njudgeship, but\twho has nevertheless been duly appointed and
\nwho exercise  the powers  and duties  of the of fice is a de
\nfacto judge,  he acts validly until he is properly removed.”
\nJudgment and orders of a de facto judge cannot be challenged
\non the\tground of  his ineligibility  for appointment.\tThis
\ndoctrine in  founded upon  sound principles of public policy
\nand justice.  In Achanti  Sreenivasa Rao  & Ors. v. State of
\nAndhra Pradesh<\/a>,\t [1981] 3  SCC 133  the de facto doctrine in
\nrelation to  a judicial\t officer was  considered at  length.
\nChinnappa Reddy, J. speaking for the court observed:\n<\/p>\n
\t  “A judge, de facto, therefore, is one who is not a
\n\t  mere
\n828<\/span>
\n\t  intruder or  usurper but  one\t who  holds  office,
\n\t  under\t colour\t of  lawful  authority,\t though\t his
\n\t  appointment is defective and may later be found to
\n\t  be defective.\t Whatever be the defect of his title
\n\t  to the  office, judgments  pronounced by  him\t and
\n\t  acts done  by him  when he  was clothed  with\t the
\n\t  powers  and\tfunctions  of\tthe  office,  albeit
\n\t  unlawfully, have  the same  efficacy as  judgments
\n\t  pronounced and  acts done by a judge de jure. Such
\n\t  is the  de facto  doctrine, born  of necessity and
\n\t  public policy\t to prevent  needless confusion\t and
\n\t  endless mischief.  There is  yet another rule also
\n\t  based on  public policy. The defective appointment
\n\t  of a\tde facto judge may be questioned directly in
\n\t  a proceeding\tto which he be a party but it cannot
\n\t  be permitted\tto be  questioned  in  a  litigation
\n\t  between two  private litigants, a litigation which
\n\t  is of\t no concern  or\t consequence  to  the  judge
\n\t  except as  a judge. Two litigants litigating their
\n\t  private titles  cannot be  permitted to  bring  in
\n\t  issue and  litigate upon  the title  of a judge to
\n\t  his  office.\t Otherwise,  so\t  soon\tas  a  judge
\n\t  pronounces  a\t  judgment  a\tlitigation  may\t  be
\n\t  commenced for\t a declaration\tthat the judgment is
\n\t  void because\tthe judge  is no  judge.  A  judge’s
\n\t  title\t to   his  office  cannot  be  brought\tinto
\n\t  jeopardy in  that fashion.  Hence the rule against
\n\t  collateral  attack   on   validity   of   judicial
\n\t  appointments. To question a judge’s appointment in
\n\t  an appeal against his judgment is, of course, such
\n\t  a collateral attack.”\n<\/p><\/blockquote>\n
We have\t adverted to  this aspect  of the  case in  order to
\navoid any  challenge to the validity of judgments and orders
\nby the\tunplaced candidates  of the  1970 examination on the
\nground on  legal infirmity in their appointments. But having
\nregard to the period of 12 years that have elapsed we do not
\npropose to strike down their appointments.\n<\/p>\n
     Now the  question arises as to what seniority should be
\nassigned  to   the  unplaced  candidates.  Their  claim\t for
\nassigning them\tseniority on  the basis\t of the\t competitive
\nexamination of\t1970 is\t not sustainable in law as discussed
\nabove. They  were appointed  to service\t after five years of
\nthe examination\t and before  their  appointment\t competitive
\nexamination of\t1972 had taken place and candidates selected
\nunder that  examination had  been appointed to service prior
\nto their  appointment. The  directions issued  by  the\tHigh
\nCourt for  rearranging the  merit list\tof 1970\t examination
\nseriously affect  the seniority\t of those who were regularly
\nselected in accordance with the norms prescribed by the
\n829<\/span>
\nCommission. Having  regard to  these facts and circumstances
\nof the case we are of the opinion that the view taken by the
\nHigh  Court   on  its  administrative  side  and  the  State
\nGovernment that\t the unplaced candidates of 1970 examination
\nshould be  assigned seniority  below the  last candidates of
\n1972 examination  appointed  to\t the  service  is  just\t and
\nreasonable. In\tour opinion  it would  be just and proper to
\nassign\tseniority   to\tthe   unplaced\tcandidates  of\t1970
\nexamination at\tthe bottom  of the  list of 1972 candidates.
\nThere were  37 unplaced\t candidates of\t1970 examination who
\nwere included  in the  third list, out of them 16 candidates
\nappeared in  the 1972  examination and\tthey were successful
\nand their  names were approved by the Commission in the list
\nprepared under\tRule 19. The State Government appointed them
\nin service.  Under Rule 22 they are entitled to seniority of
\n1972 examination  but in  view of  the judgment\t of the High
\nCourt  in   Rafiquddin’s  case\t their\tseniority  has\tbeen
\ndetermined on  the basis  of their  recruitment\t to  service
\nunder  the   1970  examination.\t We  have  already  recorded
\nfindings that  unplaced candidates  of 1970  examination (as
\nincluded in  the third\tlist) have  not\t been  recruited  in
\nservice according  to the  Rules and  their  recruitment  to
\nservice\t cannot\t  be  treated  under  1970  examination\t for
\npurposes of  determining their\tseniority under\t Rule 22. We
\nhave further  directed that  21 unplaced  candidates of 1970
\nexamination should  be placed  below the  candidates of 1972
\nexamination But\t so  far  as  16  remaining  candidates\t are
\nconcerned, they\t were appointed to the service on the result
\nof 1972\t examination and  their appointment  does not suffer
\nfrom any  legal infirmity.  They are  therefore entitled  to
\nseniority of 1972 examination on the basis of their position
\nin the\tmerit list of that examination. They are however not
\nentitled to  the seniority  of 1970  on\t the  basis  of\t the
\nexamination of that year as held by the High Court.\n<\/p>\n
     We accordingly  set aside\tthe order  of  the  Division
\nBench dated  30.3.1982 and  direct the\tHigh Court  and\t the
\nState Government  to  determine\t the  seniority\t of  the  21
\nunplaced candidates  of 1970  examination by placing them at
\nthe bottom of the candidates appointed on the result of 1972
\nexamination. We\t accordingly allow  Civil Appeal No. 4023 of
\n1982 and Civil Appeal No. 4024 of 1982.\n<\/p>\n
     Civil Appeal No. 3736 of 1982.\n<\/p>\n
     This appeal is directed against the judgment of another
\nDivision Bench\tof  the\t High  Court  consisting  of  Satish
\nChandra and  A.N. Verma,  JJ. dated  30th March,  1982.\t The
\nappellants  appeared   at  the\t1970  examination  but\tthey
\nremained unsuccessful as they had failed to
\n830<\/span>
\nsecure 35  per cent  of minimum marks at the viva voce test,
\nalthough they had secured higher marks in the aggregate then
\nthose selected\tand appointed. They challenged the selection
\nmade in\t pursuance of  1970 examination.  The Division Bench
\nheld that  since the  minimum marks fixed for viva voce test
\nwas integral  part of  the examination and as the appellants
\nhad failed  to secure  the requisite  minimum marks  in viva
\nvoce test,  they. were\tnot entitled  to selection. The view
\ntaken by  the Division\tBench is  consistent with  our view.
\nAccordingly, we dismiss the appeal.\n<\/p>\n
Writ Petition 4636 of 1982.\n<\/p>\n
     The Petitioner  O.P.. Aggarwal  was unsuccesful  at the
\n1970 examination  as he\t failed to  obtain the minimum marks
\nprescribed for viva voce test, although he had obtained more
\nthan 40\t per cent  marks in  the aggregate.  For the reasons
\nstated earlier he cannot be granted relief of appointment to
\nthe service.  Further he is disentitled to any relief on the
\nground of  inordinate delay. The validity of the examination
\nof 1970\t was challenged\t before this Court in 1982. There is
\nno plausible  explanation for  the delay.  The\tpetition  is
\nliable to be dismissed and we accordingly dismiss it.
\nWrit Petition No. 12818 of 1984.\n<\/p>\n
     The petitioner  was recruited  to the  service  on\t the
\nbasis  of   the\t competitive  examination  of  1972.  He  is
\naggrieved by  the direction  issued by the Division Bench of
\nthe High  Court in  Rafiquddin’s case,\tas his seniority was
\naffected adversely.  We have already taken the view that the
\nunplaced candidates  of 1970 examination cannot be senior to
\nthe candidates\tappointed in  the service as a result of the
\n1972 examination. The writ petition succeeds to that extent.
\n Transfer Case No. 15 of 1987.\n<\/p>\n
     The petitioners  were recruited  to the  U.P.  Nyayayik
\nSeva  on   the\tbasis  of  the\tresult\tof  the\t competitive
\nexamination of\t1972. They  are aggrieved  by the  direction
\nissued by  the\tDivision  Bench\t in  Rafiquddin’s  case\t for
\nrearranging the\t seniority. Since  we have already expressed
\nthe view  that the  unplaced candidates\t of 1970 examination
\nare not\t entitled to seniority over the candidates appointed
\nto the\tservice on  the result\tof the 1972 Examination. The
\npetition is to succeed partly.\n<\/p>\n
Writ Petition No. 13047 of 1985.\n<\/p>\n
831<\/span><\/p>\n
     The  petitioner   was  appointed  to  service  on\t22nd
\nNovember 1976  on the  basis  of  the  result  of  the\t1973
\nexamination. His main grievance is that respondent Nos. 3 to
\n15 to  the petition  have been\tshown senior to him although
\nthey were  appointed in service between May 1976 to November
\n1977 on\t the basis  of the result of competitive examination
\nof 1972.  Since the  respondents were  treated senior by the
\nHigh Court, they were promoted to the post of Chief Judicial
\nMagistrate\/Civil Judge\tignoring the  petitioner’s claim. On
\nbehalf of  the petitioner,  two submissions  were made:\t (i)
\nrespondent Nos.\t 3 to  15  were\t appointed  later  in  time,
\nconsequently  they   cannot-  be   treated  senior   to\t the
\npetitioner; (ii) the selection and appointment of respondent
\nNos. 3\tto 15  was against  rules and  as such\tthey are not
\nentitled to seniority over the petitioner who is a regularly
\nselected candidate.\n<\/p>\n
     We\t do  not  find\tany  merit  in\teither\tof  the\t two
\nsubmissions. Rule 22 lays down criteria for determination of
\nthe seniority  of members  of service.\tIt directs  that the
\nseniority shall\t be determined\ton the\tbasis of the year of
\nexamination which  means that  a  person  recruited  to\t the
\nservice in  pursuance of  the result of a particular year of
\nexamination would  rank\t senior\t to  the  candidate  who  is
\nrecruited to  service in  pursuance of\tresult of subsequent
\nyear of\t examination although  he  may\thave  actually\tbeen
\nappointed  earlier   in\t time.\t After\tthe   selection\t  of
\ncandidates,  several   formalities   are   followed   before
\nappointment is\tmade under Rule 2 1. The selected candidates
\nare required to undergo medical examination, their character
\nand antecedents\t are verified and the approval of High Court
\nis obtained  and only  thereafter the Governor appoints them
\nby issuing  notification. Many\ta time,\t this process causes
\ndelay in  making the  actual appointment and in that process
\nsometimes  persons  selected  on  the  basis  of  subsequent
\nexamination are\t appointed before  the successful candidates
\nof earlier examination are appointed. But in view of Rule 22
\nthe latter  shall be  senior to\t the former inrrespective of
\nthe date  of appointment.  Since there has been no challenge
\nto Rule\t 22 and\t the appointment  is not shown to be illegal
\nfor the\t reasons which we presently give, it must be applied
\nin its\tplain terms  in determining  the seniority  of those
\nrecruited  to\tservice\t in   accordance  with\t Rules.\t The
\npetitioner was\tappointed in  service on  the basis  of\t the
\nresult of the 1973 examination while respondent Nos. 3 to 15
\nwere recruited\tto service on the basis of the result of the
\n1972 examination.  Therefore,  according  to  Rule  22,\t the
\nrespondent Nos.\t 3 to  15 are  entitled to  be senior to the
\npetitioner. The\t mere fact that the petitioner was appointed
\nfew  months   before  the  respondent  Nos.  3\tto  15\twere
\nappointed, cannot override the express provision of Rule 22.\n<\/p>\n
832<\/span><\/p>\n
     As regards,  the second  submission raised on behalf of
\nthe petitioner,\t we  do\t not  find  any\t illegality  in\t the
\nappointment of\trespondent Nos.\t 3 to  15.  The\t competitive
\nexamination of\t1972 was held for recruiting 150 candidates,
\nthe examination\t was held  in 1973  and 1974.  16 successful
\ncandidates of  1972 examination were included in the list of
\n37  unplaced   candidates  of\t1970  examination   and\t the
\nGovernment 13 had appointed them in service treating them as
\nunplaced candidates  of 1970  examination. On the request of
\nthe State  Government, the  Public Service  Commission\tmade
\nrecommendation in  favour of 16 more candidates on the basis
\nof result  of 1972  examination which  included the  name of
\nrespondent Nos.\t 3 to  15 and  they were  appointed  to\t the
\nservice between May 1976 to November 1977. Their appointment
\nin  service   was  made\t by  the  State\t Government  on\t the
\nrecommendation\tof   Public  Service   Commission  made\t  in
\naccordance with\t Rule 19  as they had obtained the requisite
\naggregate marks\t in the\t written and  viva voce test. Unlike
\nthe 21 unplaced candidates of 1970 examination respondents 3
\nto 15  were appointed in accordance with the Rules, they are
\ntherefore entitled  to their  seniority in terms Rule 22. We
\nfind no merit in the petition.\n<\/p>\n
     Before we\tclose we would like to refer certain aspects
\nwhich came  to our  notice during  the hearing\tof the\tcase
\nrelating  to   the  functioning\t  of  the   Public   Service
\nCommission, selection of candidates and their appointment to
\nthe Judicial  Service. We  were distressed  to find that the
\nPublic Service\tCommission has been changing the norms fixed
\nby it  for considering\tthe suitability of candidates at the
\nbehest of  the State  Government after\tthe  declaration  of
\nresults. We  have noticed  that while  making selection\t for
\nappointment to the U.P. Judicial’ Service the Commission had
\ninitially fixed\t 40 per\t cent aggregate marks and minimum 35
\nper cent  marks for  viva voce test and on that basis it had
\nrecommended list  of 46\t candidates only.  Later on  at\t the
\ninstance of  the State Government it reduced the standard of
\n40 per\tcent marks  in aggregate  to 35 per cent and on that
\nbasis it forwarded a list of 33 candidates to the Government
\nfor appointment\t to the\t service. Again at the behest of the
\nState Government  and with  a view to implement the decision
\nof the\thigh level  committee consisting  of Chief  Justice,
\nChief Minister\tand the Chairman of the Commission forwarded
\nname of 37 candidates in 1974 ignoring the norms fixed by it
\nfor judging the suitability of candidates. The Commission is
\nan independent\texpert body. It has to act in an independent
\nmanner in  making the  selection on the prescribed norms. It
\nmay consult  the State\tGovernment and\tthe  High  Court  in
\nprescribing  the   norms  for  judging\tthe  suitability  of
\ncandidates if no norms are prescribed in the Rules. Once the
\nCommis
\n833<\/span>
\nsion  determines  the  norms  and  makes  selection  on\t the
\nconclusion of  the competitive\texamination and submits list
\nof the\tsuitable candidates  to the Government it should not
\nreopen the  selection by  lowering down\t the  norms  at\t the
\ninstance of  the Government. If the practice of revising the
\nresult of  competitive\texamination  by\t changing  norms  is
\nfollowed there\twill be\t confusion and\tthe people will lose
\nfaith in  the institution  of Public  Service Commission and
\nthe authenticity of selection. The State Government had made
\na   preposterous   suggestion\tto   the   Commission\tthat
\nunsuccessful  candidates  of  1967,  1968,  1969  should  be
\nselected and  recommended for  appointment by  ignoring\t the
\nmarks obtained\tby them in viva voce test. If the Commission
\nhad accepted  the Government’s\tsuggestion and forwarded the
\nlist and  appointments had  been made in 1975 as was done in
\nthe case  of unplaced  candidates of  1970  examination,  it
\nwould have  made a  mockery of\tthe entire system. We are of
\nopinion that  the Commission should take firm stand in these
\nmatters in making the selection in accordance with the norms
\nfixed  by  law\tor  fixed  by  it  in  accordance  with\t law
\nuninfluenced by\t the  directions  of  the  State  Government
\nunsupported by the Rules.\n<\/p>\n
     We have  noticed that a retired Judge of the High Court
\nis appointed as an expert to assist the Commission in making
\nthe selection  for appointment to the Judicial Service. This
\npractice is  not  desirable  .\tIn  A.\tK.  Yadav’s  case  a
\nConstitution  Bench   of  this\t Court\tobserved  that\twhen
\nselection for  judicial service\t of the\t State is made it is
\nnecessary to  exercise the utmost care to see that competent
\nand able  persons possessing  a\t high  degree  are  selected
\nbecause if we do not have good competent and honest judicial
\nofficers the  democratic quality of the State itself will be
\nin serious  peril.  It\tis  therefore  essential  that\twhen
\nselections to  the judicial service are being made a sitting
\nJudge of  the High  Court should  be nominated\tby the Chief
\nJustice of  the State  to participate in the interview as an
\nexpert. The  Constitution  Bench  further  observed  that  a
\nsitting High  Court Judge  would be  in a better position to
\ngive advice  to the  Commission in  the matter\trelating  to
\nselection of  suitable candidates  and his  advice would  be
\nbinding on the Commission unless there are strong and cogent
\nreasons for  not accepting  such advice\t and such strong and
\ncogent reasons\tmust be\t recorded in writing by the Chairman
\nand members  of the  Commission. The  Constitution Bench had
\nissued directions  to the Public Service Commission of every
\nState to  follow this  direction but  it appears that in the
\nState of  U.P. this  direction is  not\tbeing  followed.  We
\ntherefore direct that in future selection for appointment to
\nthe Judicial  Service shall be made by the Commission on the
\nexpert advice of a sitting
\n834<\/span>
\nJudge of the High Court nominated by the Chief Justice.\n<\/p>\n
     There is  another aspect  which requires consideration.
\nSeniority of officers recruited to the service is determined
\non the\tbasis of  the year  of the  competitive\t examination
\nunder  which  they  are\t recruited.  We\t have  noticed\tthat
\ngenerally  there   is  a  considerable\tinterreguum  between
\nholding of  the\t examination  and  the\tappointment  of\t the
\nselected candidates.  Those selected  under 1970 examination
\nwere appointed\tin 1973, 1974, and 1975 while those selected
\nunder the  1972 examination  were appointed in 1975 and 1976
\nand also  in 1977.  Similarly the  successful candidates  of
\n1973 examination  were appointed in 1976 and 1977. No system
\nwas  followed\tin  making   appointments  as  some  of\t the
\ncandidates selected in subsequent examination were appointed
\nearlier to  those selected  under the  earlier\texamination,
\nwith the result those appointed to the service later in time
\nare made  senior to  those appointed  in service  earlier in
\ntime in\t accordance with  Rule 22. This causes heart burning
\nand  other   complications.  In\t  order\t  to   avoid   these
\ncomplications it  is necessary\tthat every  effort should be
\nmade to\t appoint the  successful candidates  of a particular
\nexamination before  any candidate  of subsequent examination
\nis appointed.  If for  some reason  this is not possible the
\nState Government and the High Court both should consider the
\ndesirability of\t amending the  Rule 22\tto ensure  that\t the
\nlength of service rendered by an officer is respected.\n<\/p>\n
     In the  result, Civil Appeal No. 4023 of 1982 and Civil
\nAppeal No.  4024 of 1982 and allowed. Civil No. 3736 of 1982
\nis dismissed.  Writ Petition  No.  4636\t of  1982  and\tWrit
\nPetition No.  13047 of\t1985 are dismissed Writ Petition No.
\n128 10 of 1985 and Transfer Case No. 15 of 1987 (transferred
\npetition) are  allowed partly.\tThere will be no order as to
\ncosts in these cases.\n<\/p>\n
S.L
\n835<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U . P ., Etc vs Rafiquddin & Ors. Etc on 4 November, 1987 Equivalent citations: 1988 AIR 162, 1988 SCR (1) 794 Author: K Singh Bench: Singh, K.N. (J) PETITIONER: STATE OF U . P ., ETC . Vs. RESPONDENT: RAFIQUDDIN & ORS. ETC. DATE OF JUDGMENT04\/11\/1987 BENCH: […]<\/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-249440","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U . P ., Etc vs Rafiquddin & Ors. 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