{"id":251841,"date":"2006-05-23T00:00:00","date_gmt":"2006-05-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-h-siraj-vs-high-court-of-kerala-ors-on-23-may-2006"},"modified":"2017-08-16T20:31:51","modified_gmt":"2017-08-16T15:01:51","slug":"k-h-siraj-vs-high-court-of-kerala-ors-on-23-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-h-siraj-vs-high-court-of-kerala-ors-on-23-may-2006","title":{"rendered":"K.H. Siraj vs High Court Of Kerala & Ors on 23 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K.H. Siraj vs High Court Of Kerala & Ors on 23 May, 2006<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: Dr. Ar. Lakshmanan, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  2539-2540 of 2005\n\nPETITIONER:\nK.H. Siraj\t\t\t\t               \t\t\n\nRESPONDENT:\nHigh Court of Kerala & Ors.\t\t    \t\n\nDATE OF JUDGMENT: 23\/05\/2006\n\nBENCH:\nDr. AR. Lakshmanan & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH<\/p>\n
CIVIL APPEAL NOS. 3377-3378 OF 2005
\n&
\nSPECIAL LEAVE PETITION (C) NOS. 14140-14141 OF 2005<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
Mr. K.H. Siraj is the appellant in Civil appeal Nos. 2539-
\n2540 of 2005.  Aggrieved against the judgment and final order
\ndated 1.3.2005 passed by the High Court of Kerala in Writ
\nAppeal Nos. 1496 & 1584 of 2004 whereby the Division Bench
\nby its judgment and order allowed the appeals filed by the
\nrespondent-High Court of Kerala, set aside the judgment of the
\nlearned single Judge and held that the selections and
\nappointments made were regular in all respects.
\nMr. C.T. Sivanandan and Mr. Shahjahan M. are the
\nappellants in Civil appeal Nos. 3377-3378 of 2005.  Aggrieved
\nagainst the judgment dated 1.3.2005 in Writ appeal No. 1584 of
\n2004 and O.P. No. 6784 of 2002 of the High Court of Keraka,
\nthey filed the above appeals by which the Division Bench set
\naside the judgment of the learned single Judge.
\nSpecial Leave Petition(c) Nos. 14140-14141 of 2005 were
\nfiled by Mr. V.R. Manu Manaswini against the common
\nimpugned judgment dated 1.3.2005 passed in W.A.No.1497 of
\n2004 and W.A.No.1719 of 2004 whereby the Division Bench by
\nits final order allowed Writ Appeal No. 1497 of 2004 filed by the
\nHigh Court of Keralal and dismissed Writ Appeal No. 1719 of
\n2004 filed by the appellant herein  Mr. V.R. Manu Manaswini.
\nThe short facts are as follows:\n<\/p>\n
The High Court of Kerala by its Notification dated
\n26.3.2001 invited applications for the appointment to the post
\nof Munsiff-Magistrate in the Kerala Judicial Services in the pay
\nscale of Rs.2500-4000.  The relevant part of the Notification
\nreads as under:<\/p>\n
\nTHE HIGH COURT OF KERALA\nNo. B4-14037\/2001\t\t\t            Kochi 682 031\n\t\t\t\t\t\t\t    Dated:26.3.2001\nNOTIFICATION\n<\/pre>\n
Applications are invited in the prescribed form from
\nqualified candidates for appointment to the post of Munsif-
\nMagistrate in the Kerala Judicial Service.\n<\/p>\n
1.\tScale of pay of the post  Rs.2500-4000 (under
\nrevision)\n<\/p>\n
2.\tProbable number of  vacancies  70
\n(53 candidates to be selected by direct recruitment
\nfrom the Bar and 17 by recruited by transfer)\n<\/p>\n
3.\tMethods of  recruitment:\n<\/p>\n
(i)\tDirect recruitment from the Bar\n<\/p>\n
(ii)\tRecruitment by transfer.\n<\/p>\n
Selection shall be after holding examinations, written and
\noral.  The written examination shall be held on 11th and
\n12th August, 2001.\n<\/p>\n
4.\tQualifications:\n<\/p>\n
(i)\tDirect recruitment.\n<\/p>\n
(ii)\tRecruitment by transfer.
\nNote:-..\n<\/p>\n
Feeder categories of offers for recruitment by
\ntransfer:\n<\/p>\n
..\n<\/p>\n
(i)\n<\/p>\n
(ii)..\n<\/p>\n
(iii)..\n<\/p>\n
(iv)..\n<\/p>\n
(v)\n<\/p>\n
(vi)..\n<\/p>\n
(vii)..\n<\/p>\n
(viii).\n<\/p>\n
5.\tAge limit  (i) Direct recruitment –
\n.\n<\/p>\n
Note.\n<\/p>\n
(1)
\n(2).\n<\/p>\n
(ii)<\/p>\n
6.\tReservation of appointment  The Rules relating to
\nreservation of appointment for Backward Classes,
\nScheduled Castes and Scheduled Tribes contained in
\nPart II of the Kerala State and Subordinate Services
\nRules, 1958 (Rules 14 to 17) shall apply to
\nappointment by direct recruitment.\n<\/p>\n
7.\tTraining..\n<\/p>\n
8.\tProbation..\n<\/p>\n
9.\tTests.\n<\/p>\n
10.\tScheme of written and oral examinations
\n(1)\tWritten examination  The written
\nexamination shall consist of the following
\nfour papers carrying a maximum of 100
\nmarks each.  The time for each paper shall
\nbe two and a half hours.\n<\/p>\n
Paper I – .\n<\/p>\n
Paper II –\n<\/p>\n
.\n<\/p>\n
Paper III..\n<\/p>\n
Paper IV.\n<\/p>\n
(2)\tOral Examination : – There shall be an oral
\nexamination carrying a maximum of 50
\nmarks for deciding the candidate’s general
\nknowledge, grasp of general principles of
\nlaw, analytical ability and suitability for
\nappointment as Munsif-Magistrate.\n<\/p>\n
(3)\tOnly candidates who secure not less than
\n35 per cent marks in each of the papers of
\nthe written examination with an overall
\nminimum of 45 per cent of the total marks
\nof written examination and 30 per cent of
\nthe marks for the oral examination shall
\nbe eligible for appointment provided that
\nthe minimum marks required for pass in
\neach paper of the written examination
\nshall be 30 per cent with an overall
\nminimum of 35 per cent of the total marks
\nfor candidates belonging to Scheduled
\nCastes\/Scheduled Tribes.  Fraction of half
\nor more than half shall be regarded as full
\nmark and less than half shall be ignored.\n<\/p>\n
(4)\tNo candidate who has not secured the
\nminimum marks prescribed above in the
\nwritten examination shall be called for oral
\nexamination.\n<\/p>\n
(5)\tThe marks secured by the candidates at
\nthe oral examination shall be added to the
\ntotal marks secured by them at the written
\nexamination and the names of all those
\ncandidates shall be arranged in the
\nrespective lists on the basis of the total
\nmarks secured by them.\n<\/p>\n
11.\tApplication form and application fee – <\/p>\n
.\n<\/p>\n
12.\tCertificates\/Documents –\n<\/p>\n
..\n<\/p>\n
(i)..\n<\/p>\n
(ii).\n<\/p>\n
“Certified that Shri\/Smt. ..has been
\nactually practising an an Court since and that his\/her
\ncharacter and conduct are\/were<\/p>\n
Station:\t\t\t\tSignature,Name & Designation
\nDate:\t\t\t\tof the presiding Officer”\n<\/p>\n
Pursuant to the above Notification, the
\nappellants\/petitioners herein submitted their applications.
\nWritten test was held in the month of August, 2001.  Thereafter
\nthey were called for an interview to appear before the Board
\nconsisting of five Hon’ble Judges including Hon’ble the Chief
\nJustice on 17.12.2001.  The select list was issued by the High
\nCourt on 7.2.2002.  The appellants filed writ petition praying
\nfor quashing the select list insofar as it is contrary to the
\nprinciples and Rules relating to reservations.  They also moved
\nan application for stay to stay the training and appointment of
\ncandidates from the select list till the disposal of the writ
\npetition.  The learned single Judge passed an order on
\n16.1.2004 in I.A.No. 425 of 2004 to the effect that the
\nappointments, if any, will be subject to the result of the original
\npetition.  On 23.2.2004, the High Court commences the
\ntraining of the last 20 candidates in the select list.  The learned
\nsingle Judge, by his order dated 6.8.2004, disposed of the
\noriginal petition declaring that the decision to fill up the
\ncandidates appearing in S.Nos. 60,62,64,66,68 and 70 in the
\nselect list from open merit candidates as illegal and
\nconsequently restrained respondent Nos. 1 & 2 (High Court of
\nKerala and State of Kerala) from filling up the above posts from
\nthe select list.\n<\/p>\n
The High Court preferred the appeal being W.A.No.1496 of
\n2004 on 9.8.2004 against the judgment of the learned single
\nJudge.  The Division Bench by its interim order dated
\n12.8.2004 admitted the appeal and stayed the order of the
\nlearned single Judge.  The appellant preferred Special Leave
\nPetition(c) No.17535 of 2004 before this Court against the
\ninterim order dated 12.8.2004.  This Court on 25.8.2004 issued
\nnotice and stayed the operation of the impugned order.  This
\nCourt disposed of the above special leave petition on 1.11.2004
\nafter recording the statement of the counsel for the
\nrespondents.  The order reads thus:\n<\/p>\n
 “Delay condoned.\n<\/p>\n
The petitioner herein has agreed that by the refusal to
\ngrant interim order by the appellate Bench of the Kerala
\nHigh Court, he has filed this SLP after issuance of notice.
\nRespondents are represented herein.  We find that the
\nlearned counsel appearing for the contesting respondents
\nMr. C.S. Vaidyanathan, learned senior counsel and Mr.
\nKrishnana Venugopal, learned counsel have stated before
\nthis Court that in the event of writ appeal being allowed,
\ntheir appointment being quashed and they will not claim
\nequity on the ground that they have jointed the service
\nearlier.\n<\/p>\n
\tRecording the above statement, we think
\nit is not necessary to entertain this petition
\nhence this special leave petition is disposed of.\n<\/p>\n
\tSd\/-\t\t\t\t\t\tSd\/-\n(Ganga Thakur)\t\t\t    (Prem Prakash)\nPS to Registrar\t\t\t     Court Master\n\n\n<\/pre>\n
The Division Bench of the High Court by its final
\njudgment dated 1.3.2005 allowed the appeal filed by the High
\ncourt, set aside the judgment of the learned single Judge and
\nheld that the selections and appointments made were regular in
\nall respects.\n<\/p>\n
We heard Mr. L. Nageswara Rao, learned senior counsel
\nably assisted by Mr. Haris Beeran, Mr. Radha Shyam Jena, Mr.
\nE.M.S. Anam and Mr. C.K. Sasi, learned counsel appearing for
\nthe appellants.  We also heard  Mr. T.L.V. Iyer, learned senior
\ncounsel ably assisted by Mr. Vipin Nair, Mr. P.B. Sursh, Mr.
\nV.K. Biju, learned counsel and Mr. K.R. Sasiprabhu, learned
\ncounsel, Mr. P.V. Dinesh, learned counsel  and Mr. U.U. Lalit,
\nlearned senior counsel ably assisted by Mr. Roy Abraham for
\nthe respondents.\n<\/p>\n
The arguments of Mr. L.N. Rao, learned senior counsel,
\nwas adopted by counsel appearing for the other appellants and
\nthe arguments of Mr. T.L.V. Iyer, learned senior counsel, was
\nadopted by the other counsel appearing for the respondents.
\nMr. Siraj, appellant in C.A.Nos. 2539-2540 of 2005
\nbelongs to Muslim Community (OBC), the first appellant in
\nC.A.Nos. 3377-3378 of 2005 is Scheduled Caste candidate
\nand the second appellant belongs to Muslim
\nCommunity(OBC) and the third appellant belongs to Hindu
\nNadar Community (OBC).  The petitioner in S.L.P.)Nos.
\n14140-14141 of 2005 is a Scheduled Caste candidate.
\nKerala Judicial Service Rules, 1991 (hereinafter referred
\nto as “the Rules”)  were made in exercise of the powers
\nconferred by Articles 234 and 235 of the Constitution of India
\nand sub-section(1) of Section 2 of the Kerala Public Services
\nAct, 1968 (19 of 1968).  Rule 7 of the Rules reads thus:
\n“7.  Preparation of lists of approved candidates
\nand reservation of appointments
\n(1) The High Court of Kerala shall, from
\ntime to time, hold examinations, written
\nand oral, after notifying the probable
\nnumber of vacancies likely to be filled up
\nand prepare a list of candidates
\nconsidered suitable for appointment to
\ncategory 2.  The list shall be prepared
\nafter following such procedure as the High
\nCourt deems fit and by following the rules
\nrelating to reservation of appointments
\ncontained in rules 14 to 17 of Part II of the
\nKerala State and Subordinate Services
\nRules, 1958.”\n<\/p>\n
(2)\tThe list consisting of not more than
\ndouble the number of probable
\nvacancies notified shall be forwarded
\nfor the approval of the Governor.  The
\nlist approved by the Governor shall
\ncome into force from the date of the
\napproval and shall remain in force for a
\nperiod of two years or until a fresh
\napproved list is prepared, whichever is
\nearlier.”\n<\/p>\n
Sub-clause (1) of Rule 10 of the Rules reads as
\nunder:\n<\/p>\n
Qualifications  <\/p>\n
(1)\tNo Advocate shall be eligible for
\nappointment to category 2 unless he is
\nhaving practice at the Bar for a period
\nof not less than five years and has not
\ncompleted 35 years of age on the first
\nday of January of the year in which
\napplications for appointment are
\ninvited.\n<\/p>\n
Rules 14 to 17 of the Kerala State and
\nSubordinate Services Rules, 1958 read as
\nunder:\n<\/p>\n
“(14) Scheduled Castes and Scheduled Tribes
\nmean the Castes and Tribes declared as such
\nby the President of India under Article 341(1)<\/a>
\nand 342(1)<\/a> of the Constitution of India and
\nother Backward Classes mean the classes
\ndeclared as such by the State Government
\nunder Article 16(4)<\/a> of the Constitution of India.
\nLists of such castes, tribes and classes, so
\ndeclared are included as Lists I, II and III
\nrespectively in the Schedule to this part.\n<\/p>\n
(15)\t“Service” means a group of persons
\nclassified by the State Government as a
\nState or a Subordinate service as the
\ncase may be.\n<\/p>\n
Note :  Where the context so requires, ‘service’
\nmeans the period during which a person holds
\na post or a lien on a post or is member of a
\nservice as above defined.\n<\/p>\n
(16)\t“Special Rules” shall mean the rules in
\nPart III applicable to each service or
\nclass of service.\n<\/p>\n
(17)\tThe Kerala Civil Services (Classification,
\nControl and Appeal) Rules, the rules
\nregulating the pay of the services issued
\nfrom time to time, the Government
\nservants’ Conduct Rules, the
\nTravancore Service Regulations, the
\nCochin Service Regulations, the
\nFundamental Rules, the Madras leave
\nRules, 1933, Kerala Service Rules and
\nthe pension rules for the time being in
\nforce shall, in so far as they may be
\napplicable and except to the extent
\nexpressly provided in those rules govern
\nmembers of every service in the matter
\nof their pay, allowances, leave, leave
\nsalary, pension and other conditions of
\nservice:\n<\/p>\n
               Provided that the said rules and
\nregulations shall in their applications to
\nthe members of the Secretariat Staff of
\nthe Governor be construed as if the
\nfunctions of the State Government under
\nthose rules and regulations were the
\nfunctions of the Governor.”\n<\/p>\n
INTERPRETATION OF THE RULES<\/p>\n
According to Mr. L.N. Rao, Rule 7 of the Rules have
\nto be interpreted in the following manner:
\nHigh Court of Kerala shall hold examination written
\nand oral and prepare a list of suitable candidates for
\nappointment to category 2.  The wording written and oral
\nmeans the suitability of a candidate eligible for
\nappointment has to be considered by the aggregate marks
\nof written examination and oral examination.  The
\nlegislative intention is to take the aggregate marks of both
\nwritten examination and oral examination to decide the
\nsuitability of the candidate.  List has to be prepared after
\nfollowing such a procedure as the High Court deems fit.
\nProcedure means the manner of doing things and not
\nsubstantive.  Fixing a separate minimum cut off marks is
\nnot procedural which is an additional eligibility for the
\npost which is contrary to rule 7.  Rule 7 is silent as to the
\nfixation of cut off marks which is for relaxation from time
\nto time for the purpose of reservation.  The wording
\nprocedure deems fit does not confer any power on the
\nselection Authority so as to take away a right provided
\nelsewhere, reported in Raja Ram Mahadev Parjapee’s
\ncase, 1962 Supp (1)SCR 739 at 749  followed in Babau
\nNagar & Ors. Vs. Sree Synthetic reported in 1984 Supp
\nSCC 128.   The selection authority cannot follow any
\nprocedure not in violations of the Rule of reservation.
\nClause 10 of the Notification deals with the Scheme
\nof written and oral examination.  The marks prescribed
\nfor written examination is 400 and 50 for oral
\nexamination.  The written examination consists of four
\npapers of 100 marks each.  For each paper two and a half
\nhours duration was prescribed.\n<\/p>\n
As per clause 10(3) of the Notification, the
\ncandidates who secure not less than 35% marks of each
\nof the papers of the written examination with an overall
\nminimum of 45% of the written examination and 30% of
\nthe marks for the oral examination shall be eligible for
\nappointment provided that the minimum marks required
\nfor pass in each paper of the written examination shall be
\n35% with an overall minimum of 35% of the total marks
\nfor candidates belonging to SCs\/STs.  Fraction of half or
\nmore than half shall be regarded as full marks and less
\nthan half shall be ignored.\n<\/p>\n
Clause 10(4) of the Notification stipulates that no
\ncandidate who has not secured the minimum marks
\nprescribed above in the written examination shall be
\ncalled for oral examination.  Clause 10(5) of the
\nNotification states that the marks secured by the
\ncandidates at the oral examination shall be added to the
\ntotal marks secured by them at the written examination
\nand the names of all those candidates shall be arranged
\nin the respective lists on the basis of the total marks
\nsecured by them.\n<\/p>\n
The appellant in C.A.Nos. 2539-2540 of 2005 had
\nobtained a total of 213 marks out of which 200 marks in
\nwritten examination and 13 marks in oral examination.
\nThe first appellant in C.A.Nos. 3377-3378 of 2005 who
\nhad secured a total of 162 marks out of which 150 marks
\nin written examination and 12 marks in oral examination.
\nThe second appellant who had secured a total of 208
\nmarks out of which 195 marks in written examination
\nand 13 marks in oral examination.  The third appellant
\nwho had secured a total of 259 marks out of which 245
\nmarks in written examination and 14 marks in oral
\nexamination.\n<\/p>\n
The petitioner in S.L.P.) Nos. 14140-14141 of 2005
\nhad obtained a total of 321.5 marks out of which 217.5
\nmarks in written examination and 14 marks in oral
\nexamination.\n<\/p>\n
Besides the fact that the appellants are reserved
\ncategory candidates they were thrown out from the zone
\nof consideration on the ground that they had not secured
\n30% marks in interview.  The respondents and other
\ncandidates who had been selected only because they had
\ngot 30% marks in interview irrespective of the facts that
\nthe total marks of those candidates are less than the
\nmarks obtained by the appellants.\n<\/p>\n
The preparation of the Select List was challenged on
\nthe ground that Rules 14 to 17 of KSSSR Part II had not
\nbeen complied since the selection was against the Rules of
\nreservation and on the ground of illegal prescription of cut
\noff marks in oral examination made by the first
\nrespondent, the selection agency without statutory
\nsanction.\n<\/p>\n
More than 1800 candidates have applied of which
\n1292 applicants were found valid.  118 candidates have
\npassed in written examination of which 88 were passed in
\nthe interview and select list was prepared among these 88
\ncandidates.\n<\/p>\n
No supplementary list was prepared by the first
\nrespondent with respect to the reserved category
\ncandidates.  The reserved category candidates who scored
\nsufficient marks to be considered in the merit list were
\nplaced in the reserved quota.  They have to be placed in
\nthe merit list.  The reserved vacancies are filled up from
\nthe open merit candidates.\n<\/p>\n
According to Mr. L.N. Rao, the following questions
\nwhich are posed for the consideration of this Court in
\nthese appeals\/petitions are as under:\n<\/p>\n
1.\tIn the absence of specific legislative
\nmandate under rule 7(i) of the Kerala
\nJudicial Service Rules, 1991 prescribing
\ncut off marks in oral examination whether
\nthe fixing of separate minimum cut off
\nmarks in the interview of further
\nelimination of candidates after a
\ncomprehensive written test touching the
\nrequired subjects in detail in violating of
\nthe statute.\n<\/p>\n
2.\tWhether the select list (Annexure P-2) is
\nprepared  in violation of the principles of
\nreservation as provided under Rules 14 to
\n17 of the Kerala State Subordinate Service
\nRules, 1958?\n<\/p>\n
3.\tWhether the first respondent-High Court
\nhas the power to decide the reserved post
\nare to be de-reserved to carry forwarded in
\nthe absence of a decision taken by the
\ngovernment in this regard?\n<\/p>\n
4.\tWhether Annexure P-2 List is liable to be
\nstrike off at its entirely?\n<\/p>\n
Adverting to the first question, Mr. Rao submitted as
\nfollows:\n<\/p>\n
1.\tAnnexure P-1 is the Notification dated 26.3.2001
\nin which Rule 10(3) provides that only candidates
\nwho secure not less than 35% marks in each of
\nthe papers of the written examination with an
\noverall minimum of 45 % of the total marks of
\nwritten examination and 30% of the marks for
\nthe oral examination shall be eligible for
\nappointment provided that the minimum marks
\nrequired for pass in each paper of the written
\nexamination shall be 30% with an overall
\nminimum of 35% of the total marks for
\ncandidates belonging to scheduled
\ncastes\/scheduled tribes.  Fraction of half or more
\nthan half shall be regarded as full mark and less
\nthan half shall be ignored.\n<\/p>\n
2.\tMethod of conducting written test is a well
\nknown method for screening the candidates for
\nthe purpose of interview.  Interview was
\nconducted for 118 candidates who had passed in
\nthe written examination out of which 9 Muslim
\ncandidates and 4 SC\/ST candidates and one
\nNadar Community candidate participated.
\nFor the above proposition, learned senior counsel placed
\nreliance on the following judgments of this Court:\n<\/p>\n
1.\tP.K. Ramachandra Iyer & Ors. Vs. Union of India &
\nOrs., (1984) 2 SCC 141\n<\/p>\n
2.\tUmesh Chandra Shukla vs. Union of India<\/a>, (1985) 3
\nSCC 72\n<\/p>\n
3.\tDurga Charan Misra vs. State of Orissa<\/a>,  (1987) 4 SCC\n<\/p>\n
469.\n<\/p>\n
4.\tDr. Krishna Chandra Sahu & Ors. vs. State of Orissa &
\nOrs<\/a>. , (1995) 6 SCC 1\n<\/p>\n
5.\tPraveen Singh vs. State of Punjab<\/a>, (2000) 8 SCC 633\n<\/p>\n
6.\tState of Punjab vs. Manjith Singh<\/a>,  (2003) 2 SCC 559\n<\/p>\n
7.\tInder Prakash Gupta vs. State of J & K & Ors<\/a>., (2004)
\n6 SCC 786
\nIn P.K. Ramachandra Iyer & Ors. Vs. Union of India &
\nOrs. (supra),  this Court held as under:
\n“Once an additional qualification of obtaining
\nminimum marks at the viva voce test is
\nadhered to, a candidate who may figure high
\nup in the merit list was likely to be rejected on
\nthe ground that he has not obtained minimum
\nqualifying marks at the viva voce test..This
\nwas impermissible and contrary to the Rules
\nand the merit list prepared in contravention of
\nthe Rules cannot be sustained.”\n<\/p>\n
In Umesh Chanda Shukla vs. Union of India<\/a> (supra), it has
\nbeen held that the Selection Committee had no power to
\nprescribe the minimum marks which a candidate should
\nobtain in the aggregate different from the minimum already
\nprescribed by the Rules in its Appendix.  In the instant case,
\nthe Rule is silent as to the fixation of cut off marks in oral
\nexamination.  Prescription of cut off marks in oral examination
\nfor the purpose of elimination following a comprehensive
\nwritten examination is bad so far it adversely affects
\nmeritorious candidates irrespective of the fact of reservation.
\nDurga Charan Misra vs. State of Orissa<\/a> (supra) was a
\ncase relating to the selection and appointment of Munsiffs in
\nthe State of Orissa, where this Court held that prescribing of
\nminimum marks for viva voce test could not be justified as the
\nRules do not prescribe minimum marks for viva voce test.  It
\nwas also observed by this Court in paragraph 12 of the said
\njudgment that,
\n“in the light of these discussions, the
\nconclusion is inevitable that the commission in the
\ninstant case also has no power to prescribe the
\nminimum standard at viva voce test for
\ndetermining the suitability of candidate.”
\nIn Dr. Krishna Chandra Sahu & Ors. Vs. State of Orissa
\n& Ors., (supra), this Court observed as under:
\n“The members of the Selection Board or for that
\nmatter any other Selection Committee, do not have
\nthe jurisdiction to lay down the criteria for selection
\nunless they are authorised specifically in that
\nregard by the rules made under Art. 309.<\/a>  It is
\nbasically the function of the rule making authority
\nto provide for the basis for selection.”\n<\/p>\n
  So in the instant case, Rule 7 of the Kerala Judicial
\nService Rules did not provide selection criteria for elimination
\nof the candidate by oral examination after a comprehensive
\nwritten examination.  The first respondent has no inherent
\npower to prescribe such a criteria for selection since the same
\nis arbitrary and illegal.\n<\/p>\n
In this context, the decision of this Court in Praveen
\nSingh vs. State of Punjab<\/a>, (supra) is very relevant.  In that
\ncase, the Public Service Commission invited applications for
\nappointment to the post of Block Development Officer and
\nPanchayat Officer.  The Public Service Commission conducted
\na qualifying written examination for 400 marks of 4 papers
\nand thereafter the persons who qualified in the written test
\nwas called for an interview of 50 marks and the merit list was
\nprepared on account of the viva voce test only.  The qualifying
\ntest becomes meaningless and the propriety of selection only
\non the basis of the interview was challenged.  This Court held
\nthat viva voce test as sole basis for selection is not proper.  In
\nthe instant case, only 118 candidates were got qualified out of
\n1292 candidates appeared in the written examination.  The
\nwritten examination consists of 24 legal subjects divided into
\nfour papers of 100 marks each.  For each paper, two and a
\nhalf hours examination was conducted.  A comprehensive
\nwritten examination touching the required subjects in detail
\nwhich assess the candidate’s general knowledge, intellectual
\ncapacity, legal learning and legal grasping.  Thereafter
\nconducted an oral examination fixing cut off marks for further
\nelimination of the candidates including backward classes,
\nscheduled castes and scheduled tribes.  So the mode of
\nselection procedure is unfair and illegal so far it considers the
\ninterview which figure up 11.1% of the total marks is the sole
\ndecisive factor.  Such consideration makes the written test
\nmeaningless.\n<\/p>\n
Mr. L.N. Rao illustrated the gravity of the situation as
\nfollows:\n<\/p>\n
A candidate who secures 350 marks in the written
\nexamination and obtains 14 marks in the oral examination
\ntaken out from the zone of the consideration where as the
\ncandidate secures 180 marks in the written examination and
\n15 marks in the oral examination find a place in the merit list.
\nIn the present system, the latter having 43% of marks will
\noutweigh the former having 65% of  marks on account of the
\nillegal fixation of separate minimum cut off marks in the oral
\nexamination.  So, the arbitrary approach of the first
\nrespondent prescribed additional qualification with regard to
\nthe scheme of selection made the written test meaningless and
\nthereby vitiated the whole process unfair and illegal.
\nIn Praveen Singh vs. State of Punjab & Ors<\/a>., (supra),
\nthis Court held that for appointments viva voce test as sole
\nbasis not proper.  In paragraph 9, this Court observed that the
\n“interview should not” be the only method of assessment of the
\nmerits of candidates.  The vice of manipulation cannot be
\nrules out in viva voce test.  Though interview undoubtedly is a
\nsignificant factor in the matter of appointments.  It plays a
\nstrategic role but it also allows creeping in of a lacuna
\nrendering the appointments illegitimate.  Obviously, it is an
\nimportant  factor but ought not to be the sole guiding factor
\nsince reliance thereon only may lead to a “sabotage of the
\npurity of the proceedings”.\n<\/p>\n
 It was also observed that the freedom for appointing
\nauthorities to adopt any procedure for selection cannot be at
\nthe cost of fair play, god conscience and equity.
\nIn the case of State of Punjab vs. Manjith Singh<\/a>
\n(supra), Public Service Commission’s power to shortlist
\ncandidates for appointment has been considered.  It has been
\ndecided that commission can shortlist candidates.  But not by
\nfixing minimum qualifying marks.  Commission cannot impose
\nany extra qualification\/standard for maintaining efficient in
\nservices.\n<\/p>\n
In Indre Prakash Gupta vs. State of J & K & Ors<\/a>.
\n(supra), this Court while dealing with the J & K Public Service
\nCommission (Conduct of Business and Procedure) Rules, 1980
\nvis-`-vis J & K Medical Education (Gazetted) Services
\nRecruitment Rules, 1979 held as follows:
\n“The Public Service Commission is a body
\ncreated under the Constitution.  Each State
\nconstitutes its own Public Commission to meet the
\nconstitutional requirement for the purpose of
\ndischarging its duties under the Constitution.
\nAppointment to service in a State must be in
\nconsonance with the constitutional provisions and
\nin conformity with the autonomy and freedom of
\nexecutive action.  Section 133<\/a> of the Constitution
\nimposes duty upon the State to conduct
\nexamination for appointment to the services of the
\nState.  The Public Service Commission is also
\nrequired to be consulted on the matters enumerated
\nunder Section 133<\/a>.  While going through the
\nselection process the Commission, however, must
\nscrupulously follow the statutory Rules operating in
\nthe field.  It may be that for certain purposes, for
\nexample, for the purpose of shortlisting; it can lay
\ndown its own procedure.  The Commission,
\nhowever, must lay down the procedure strictly in
\nconsonance with the statutory Rules.  It cannot take
\nany action which per se would be violative of the
\nstatutory Rules or makes the same inoperative for
\nall intent and purport.  Even for the purpose of
\nshortlisting, the Commission cannot fix any kind of
\ncut off marks.”\n<\/p>\n
whether the fixing of separate minimum cut off marks in
\nthe interview of further elimination of candidates after a
\ncomprehensive written test touching the required subjects
\nin detail is violating of the statute.\n<\/p>\n
Mr. L.N. Rao submitted that in the present case, apart
\nfrom the candidates belonging to backward classes, SC\/ST
\ncandidates are also disqualified for selection by fixing 30%
\nminimum cut off marks for the oral examination which is
\narbitrary because unequal are treated alike.  Clause 10(3) of
\nthe Notification did not contemplate 30% cut off marks in
\ninterview for SC\/ST candidates.  Moreover, the selection
\nagency has no inherent power to prescribe selection criteria.
\nThe first respondent has no authority to override the legislative
\nintention.  The Legislature did not provide criteria for selection
\nby exclusion of candidates by oral examination.  Rule 7 of the
\nKerala Judicial Service Rules did not provide a selection
\ncriteria based on the exclusion of candidates on account of not
\nsecuring a separate minimum cut off marks in the oral
\nexamination.  Hence, the system followed by the High Court is
\nin clear violation of the   Rules and the principles laid down by
\nthis Court in catena of decisions and also against the norms
\nsuggested by Shetty Commission with regard to the Judicial
\nService appointments.\n<\/p>\n
Whether there is violation of Rules of reservation as
\ncontemplated under Rules 14 to 17 of the KSSSR 1958
\nFor this proposition, the following aspects are to be
\nconsidered:\n<\/p>\n
1.\tClause 6 of the Notification clearly states that
\n“the Rules relating to reservation for
\nappointment for backward classes, scheduled
\ncastes and scheduled tribes contained in Part II
\nof the KSSSR, 1958 (Rules 14-17) shall apply to
\nappointment by direct recruitment.”  It is in
\nclear terms the first respondent admitted that
\nthe Rules of reservation shall be followed.
\nThereby the first respondent is estopped from
\ndenying the fact that the Rules of reservation is
\nnot necessarily be followed in the event of
\nsufficient number of reservation, candidates
\nwere got qualified in the selection process.
\nWhere a statute requires a particular formality
\nto be complied with there is no estoppel where
\nsuch statutory requirement is violated.  In the
\npresent system, there is every chance of illegal
\nelimination.  In order to give effect to the Rules
\nor reservation, there should be some relaxation
\nin selection criteria.  This aspect has been
\naccepted by this Court in a number of decisions.\n<\/p>\n
2.\tThe SC\/ST community is entitled to 10%
\nreservation and Muslim community is entitled to
\n12% reservation under the provisions of KSSSR
\nand Rules 14 to 17 of the same are applicable in
\nthe instant case.  According to the Select List
\n(Annexure P-2), only five Muslim candidates and
\n1 SC\/ST candidate were appointed.  The
\nremaining candidates in the list can be
\nappointed in merit or reservation if followed the
\nRules in strict sense.  The reservation roster
\nprovided in KSSSR for Muslim candidates are
\n6,16,26,30,46,56,66,76,80,86 and 96.\n<\/p>\n
3.\t“Backward classes a rational classification
\nrecognized by our Constitution, therefore,
\ndifferential treatment in standards of selection
\nare within the concept of equality.” (Para 44 in
\nState of Kerala vs. N.M. Thomas<\/a>, AIR 1976 SC\n<\/p>\n
490).  The reservation rosters are to be filled up
\nfrom the reservation candidates alone, that is
\nreserved for their community (R.K.Sabharwal
\nvs. State of Punjab & Ors<\/a>., (1995) 2 SCC 745).
\nThe reservation rosters are to be strictly followed
\nas per the Rules.  No deviation is permissible
\n(Union of India vs. Virpal Singh<\/a>,  AIR 1996 SC\n<\/p>\n
448).  This Court held that candidates of
\nreserved category selected on their own merit are
\nnot to be counted as reserved category
\ncandidates.  A reserved candidate comes in the
\nmerit list is to be considered in merit rather than
\nreservation.\n<\/p>\n
4.\t82nd Constitution Amendment (2000) provides
\nthat nothing in Article 335<\/a> shall prevent the
\nState from making any provision in favour of the
\nmembers of the Scheduled Castes and
\nScheduled Tribes for relaxation in qualifying
\nmarks with respect to
\nexamination\/job\/promotion.  So there should be
\nrelaxation in selection criteria with respect to
\nreserved candidates.  The non-creamy layer
\nsection of the Muslim community is socially and
\neducationally most backward.  They cannot be
\nequated with a high pedestal than the scheduled
\ncastes and scheduled tribes.  Backward class is
\na caste within the ambit of Article 15(4)<\/a> and
\nArticle 16(4).<\/a>  So, the non-creamy layer section
\nof the Muslim community is allotted 12%
\nreservation by the State of Kerala.\n<\/p>\n
5.\tIn order to fill up reserved quota, the inter se
\nmerit of the reserved candidates has to be taken
\ninto account.   In State of Andhra Pradesh vs.
\nVijaya Kumar<\/a>, AIR 1995 SC 1648, this Court
\nheld that the reservation is permissible under
\nthe Constitution and that cannot be whittled
\ndown in any manner.  So, the reservation is the
\npolicy of the State and for which Rules 14-17 of
\nKSSSR  are provided for protecting the
\nconstitutional mandate under Art.15.<\/a>\n<\/p>\n
6.\tWhat is meant by reservation and the effect of
\nreservation is much discussed in Ajith Singh &
\nOrs. Vs. State of Punjab & Ors., AIR 1999 SC
\n2471.  In paragraph 38, this Court held as
\nunder:\n<\/p>\n
“It must be noted that whenever a
\nreserved candidate goes for selection at
\nthe initial level (say level 1) he is not going
\nthrough the normal process but gets
\nappointment to a post reserved for his
\ngroup.  That is what is meant by
\nreservation.” That is the effect of
\nreservation.”\n<\/p>\n
                       So, the reservation is a legally
\naccepted aspect.  Therefore, in the case of
\nreservation of candidates, there should be
\nrelaxation in the selection procedure.  In the
\npresent case, the first respondent did not prepare
\na supplementary list consisting the names of the
\ncandidates in reservation quota.  For the
\ncompliance of Rules 14 to 17 of KSSSR, there
\nshould be a supplementary list as per Kerala
\nPublic Service Commission Rules of  Procedure
\nRules 4(iv) and 12.  So supplementary list of
\ncandidates coming under the reserved categories
\nhas to be prepared and the same is to be
\nconsidered as part of the rank list for the purpose
\nof filling up of reserved candidates.  Articles 15(4)
\nand 16(4) mandate maximum possible reservation
\nshall be given to socially educationally backward
\nclasses including Scheduled castes and scheduled
\ntribes in order to bring them in the main stream.
\n(7) The Division Bench without any factual
\nfoundation relied on the decision of this Court in
\nState of Bihar vs. Bal Mukund Shah<\/a>, (2004) 4
\nSCC 640.  In that case, this Court discussed the
\nlegislative competence of the State Government
\nunder Art.309.<\/a>  It was held that legislation for
\nreservation in Judicial appointments can only be
\nmade after consultation with the High Court.  In
\nthat case, Bihar Government made a legislation
\nprescribing 50% posts of District Judges under
\nreservation quota without consulting the High
\nCourt.  In the instant case, the High Court has no
\ncase that the reservation is not applicable.
\nJudicial Service Rules of 1991 is made in
\nconsultation with the High Court under Art. 234<\/a> of
\nthe Constitution of India.\n<\/p>\n
 (8) The learned single Judge is of the view that the
\nSelect List (Ann. P-2) can be interfered with only to
\nthe extent that the decision to fill up S.Nos. 60,62,
\n64, 66, 70 which are reserved posts from the open
\nmerit candidates.  The learned single Judge has
\nobserved in paragraph 10 of his judgment that ,
\n“But under the pretext of shortlisting many
\nqualified candidates were irregularly and illegally
\ntaken out from the zone of consideration for the
\nreason that they had not obtained qualifying
\nmarks in the total examination.  Annexure P-2
\n(Select List) published by the High Court is in clear
\nviolation of the provisions of the Rules. So, it is
\nvery clear that the procedure adopted by the first
\nrespondent  High Court made the written test
\nmeaningless.  It can be seen that the Annexure P-2
\nlist is prepared not as per the merit and rules of
\nreservation since the open merit candidates are
\narranged in the reservation quota.  The reservation
\ncandidates who come out in merit also placed in
\nthe reserved quota instead of placing them in the
\nmerit list.  That is against the dictum laid down in
\nR.K. Sabharwal’s case(supra).  The  illegality
\nstrikes at the root of appointment cannot be
\nvalidated.  So, it is for the interest of justice, equity
\nand good conscience the entire list is to be
\nquashed and the same is to be re-arranged in the
\norder of merit considering the aggregate marks
\nsecured by the candidate in the written as well as
\noral examination  strictly following Rules 14 to 17
\nof the KSSSR to secure reservation under Art.
\n15(4)<\/a> of the Constitution of India.  The procedure
\nadopted by the first respondent is not legally valid
\nsince statutory requirements have been violated.
\nESTOPPEL
\nIt is submitted by Mr. L.N. Rao that estoppel is not
\navailable to the respondents inasmuch as the Division
\nBench itself while allowing the appeal of the respondent,
\nspecially rejecting the contentions of plea of estoppel in
\nparas 47 and 48 of the impugned judgment.  According to
\nMr. Rao, none of the respondents before this Court has
\nneither challenged the said findings nor filed any cros-
\nappeal in this regard.  He would, therefore, submit that it
\nis impermissible to the respondent to take the plea of
\nestoppel where they themselves have waived of their right
\nto file cross appeal challenging the said findings in para
\n48 of the impugned judgment.  He would further submit
\nthat there is no plea of estoppel against the violation of
\nstatutory rules.  Similarly there cannot be any plea of
\nestoppel against the Constitution.  It is submitted that the
\nappellants\/petitioners have approached this Court
\nagainst the violation of their fundamental right also being
\nunequal or treated alike by fixing equal cut off marks for
\nall candidates thereby violating Arts. 14 & 16 of the
\nConstitution of India.  For this proposition, Mr. Rao relied
\non a Constitution Bench decision of this  Court in Olga
\nTellis & Ors. Vs. Bombay Municipal Corporation, AIR
\n1986 SC 180 in which this Court held that there can be
\nno estoppel against Constitution and that the
\nConstitution is not only the paramount law of the land
\nbut it is the source and sustenance of all laws.  In this
\nregard, he invited our attention to paragraphs 28 and 29
\nof the above decision.\n<\/p>\n
Concluding his elaborate submissions, Mr. Rao
\nsubmitted that the prayer of the appellants\/petitioners is
\nnot to quash the select list published by the High Court in
\nits entirety and that the select list may be redone on the
\nbasis of the aggregate marks obtained by the candidates
\nin the written and oral examination as envisaged in Rule
\n7(i).  It is submitted that by doing this only 5 or 6
\ncandidates will be affected.\n<\/p>\n
Elaborating, Mr. Rao submitted that if this Court is
\nnot inclined to redo the list as aforesaid, the case of the
\nappellants\/petitioners before this Court be considered on
\nindividual basis.  The appellants\/petitioners are age
\nbarred and will not be able to attempt another
\nexamination.  It is stated that there are 50 vacancies
\nexisting and so the interest of the appellants\/petitioners
\ncan be protected if this Court issues a direction to
\naccommodate the 5 appellants\/petitioners before this
\nCourt which will not cause any prejudice to any of the
\nrespondents.\n<\/p>\n
Per contra, Mr. T.L.Vishwanatha Iyer, learned senior
\ncounsel, appearing for the respondents made elaborate
\nsubmissions by way of reply to the arguments advanced
\nby Mr. Rao.  In regard to his main submissions made on
\nbehalf of the appellants in challenge of the decision of the
\nDivision Bench accepting the High Court’s appeal and
\nreversing the judgment of the learned single Judge, Mr.
\nT.L.Vishwanatha Iyer submitted that the selection in
\nquestion was pursuant to the Notification issued by the
\nHigh Court of Kerala on 26.3.2001 notifying 70 vacancies
\nof Munsif Magistrates to be filled up.  We have already
\nreproduced the Notification in paragraphs supra.  He
\ninvited our attention to clause 10 of the Notification which
\nprescribed a scheme of written and oral examination to be
\ntaken by the candidate.  The written examination was to
\nconsist of four papers carrying 100 marks each, the
\nsubjects for which the examinations were to be held being
\nspecified in the Notification.  There was also to be an oral
\nexamination carrying 50 marks for deciding the
\ncandidate’s general knowledge, grasp of general principles
\nof law, analytical ability and suitability for appointment as
\nMunsif Magistrate.  Sub-clause 3 provides that only
\ncandidates securing not less than 35% marks in each of
\nthe four papers of the written examination with an overall
\nminimum of 45% of the total marks of the written
\nexamination and 30% of the marks for the oral
\nexamination shall be eligible for appointment.  There was
\na relaxation of the marks in the written examination in
\nfavour of candidates belonging to Scheduled castes and
\nScheduled Tribes.  The rank list is to be prepared of the
\neligible candidates, i.e. those who secure the minimum in
\nthe written and oral examinations, as stated above,
\nadding together the marks of the written and oral
\nexaminations.  The Notification itself stated that the
\ncandidates belonging to the Scheduled Castes and
\nScheduled Tribes will be given a pre-examination training.
\nThis was done with a view to equip them for the
\nexamination.\n<\/p>\n
It is pertinent to notice that Rules of 1991 were
\nformulated after the integration of the Civil and Criminal
\nwings of the Judiciary and formation of the cadre of
\nMunsif Magistrate at the entry point.  Two earlier
\nselections had been made in 1991 and 1998 in
\naccordance with the same procedure as laid down in the
\nNotification dated 26.3.2001 by prescribing the securing
\nof minimum marks in the written and oral examinations
\nas a condition of eligibility.  The same procedure was
\nfollowed in the impugned selection also.
\nIt is also pertinent to notice that the prescription of a
\nminimum mark for the oral examination as a condition of
\neligibility for appointment was questioned in the High
\nCourt by an aspirant by name Remani, by filing a writ
\npetition.  That writ petition was dismissed by a learned
\nsingle Judge in  1996(2) KLT 439, wherein the learned
\nsingle Judge upheld the prescription of a minimum mark
\nfor the oral examination as valid and in accordance with
\nRule 7 of the Rules.  This decision made on the judicial
\nside was binding on the administrative side of the High
\nCourt and was followed in the subsequent selection in
\n1998 and in the impugned selection.\n<\/p>\n
The oral examination in this case was conducted by
\nthe Chief Justice and four seniormost Judges, to whom
\nthe marks in the written test were not available at the
\ntime of the interview.  The Judges had to assess the
\nsuitability of the candidates for selection as Munsif
\nMagistrate, keeping in mind various factors.  The Judges
\nhave awarded marks and found that the appellants have
\nnot been able to secure even 30% marks which has been
\nprescribed as the minimum for eligibility.
\nMr. T.L.V. Iyer also pointed out that over 1200
\ncandidates had taken the written examination and out of
\nthem, a total of 118 secured the minimum marks
\nprescribed for the written examination.  These 118 were
\ninterviewed by the five Judges including the Chief Justice.
\nOf these, 88 secured over 30% marks of the 50 marks
\nprescribed for the oral examination.  88 candidates who
\nwere thus successful and eligible to be considered were
\narranged in the order of merit following the rules of
\nreservation prescribed in Rules 14 to 17 of the KSSSR.
\nThe list so prepared was forwarded to the Government for
\nappointment to 70 vacancies notified.
\nIt was also stated that 88 eligible candidates  as
\naforesaid contained 37 persons belonging to reserved
\ncategories like other backward classes, Scheduled
\nCastes\/Scheduled Tribes.  Of these, 8 persons got
\nappointed in the open  merit quota and the rest 29 got
\nappointed in the reservation quota.  70 persons
\nrecommended to be appointed contained all these 37
\ncandidates including  29 who got selected and ranked in
\nthe reservation quota.  It may be mentioned that none of
\nthe eligible candidates belonging to the reserved
\ncategories failed to secure appointment and all of them
\nfound a place in the list of 70 persons selected for the
\nappointment.\n<\/p>\n
The select list so prepared in accordance with the
\nreservation Rules was forwarded to the Government for
\napproval under Rule 7(2) of the Rules.  Government
\napproved the same, after due scrutiny of all aspects and
\nall the 70 persons have been appointed as Munsif
\nMagistrates after undergoing the statutory training and
\nare now functioning as Munsif Magistrates.
\nIn this background, two questions raise by Mr. L.N.
\nRao have to be considered.\n<\/p>\n
1.\tThe prescription of minimum mark for the
\noral examination as a condition of eligibility
\nfor selection as Munsif Magistrate is not
\nauthorized by Rule 7 of the Kerala Judicial
\nService Rules, 1991;\n<\/p>\n
2.\tThe select list has not been prepared in
\naccordance with Rules 14 to 17 of KSSR
\n1958.\n<\/p>\n
So far as the first submission is concerned, we have
\nalready extracted Rule 7 in paragraph supra.  Rule 7 has
\nto be read in this background and High Court’s power
\nconferred under Rule 7 has to be adjudged in this basis.
\nThe said Rule requires the High Court firstly to hold
\nexaminations written and oral.  Secondly the mandate is
\nto prepare a select list of candidates suitable for
\nappointment as Munsif Magistrates.  The very use of the
\nword ‘suitable’ gives the nature and extent of the power
\nconferred upon the High Court and the duty that it has to
\nperform in the matter of selection of candidates.  The High
\nCourt alone knows what are the requirements of the
\nsubordinate judiciary, what qualities the Judicial Officer
\nshould possess both on the judicial side and on the
\nadministrative side since the performance of duties as a
\nMunsif or in the higher categories of subordinate Judge.
\nChief Judicial Magistrate or District Judge to which the
\ncandidates may get promoted require administrative
\nabilities as well.  Since the High Court is the best Judge of
\nwhat should be the proper mode of selection, Rule 7 has
\nleft it to the High Court to follow such procedure as it
\ndeems fit.  The High Court has to exercise its powers in
\nthe light of the constitutional scheme so that the best
\navailable talent, suitable for manning the judiciary may
\nget selected.\n<\/p>\n
What the High Court has done by the Notification
\ndated 26.3.2001 is to evolve a procedure to choose the
\nbest available talent.  It cannot for a moment be stated
\nthat prescription of minimum pass marks for the written
\nexamination or for the oral examination is in any manner
\nirrelevant or not having any nexus to the object sought to
\nbe achieved.  The merit of a candidate and his suitability
\nare always assessed with reference to his performance at
\nthe  examination and it is a well accepted norm to
\nadjudge the merit and suitability of any candidate for any
\nservice, whether it be the Public Service Commission
\n(I.A.S., I.A.F. etc.) or any other. Therefore,  the powers
\nconferred by Rule 7 fully justified the prescription of the
\nminimum eligibility condition in Rule 10 of the
\nNotification dated 26.3.2001.  The very concept of
\nexamination envisaged by Rule 7 is a concept justifying
\nprescription of a minimum as bench mark for passing the
\nsame.  In addition, further requirements are necessary for
\nassessment of suitability of the candidate and that is why
\npower is vested in a high powered body like High Court to
\nevolve its own procedure as it is the best Judge in the
\nmatter.  It will not be proper in any other authority to
\nconfine the High Court within any limits and it is,
\ntherefore, that the evolution of the procedure has been left
\nto the High Court itself.  When a high powered
\nconstitutional authority is left with such power and it has
\nevolved the procedure which is germane and best suited
\nto achieve the object, it is not proper to scuttle the same
\nas beyond its powers.  Reference in this connection may
\nbe made to the decision of this Court in 2006(1) SCC 779
\nwherein an action of the Chief Justice of India was sought
\nto be questioned before the High Court and it was held to
\nbe improper.\n<\/p>\n
The very scheme and amplitude of Rule 7 under
\nwhich the selection is made is sufficient answer to the
\ncontention of the appellants.  Under the scheme of the
\nIndian Constitution, the High Court is vested with the
\nentire administration of the subordinate judiciary under
\nArts. 233, 234 and 235 of the Constitution of India.  The
\nHigh Court is vested with the power to see that the high
\ntraditions and standards of the judiciary are maintained
\nby the selection of proper persons to man the subordinate
\njudiciary.\n<\/p>\n
The place of the High Court in the matter of
\nadministration of justice was very elaborately and
\npoignantly delineated by S.B.Majmudar,J., speaking for
\nthe Constitution Bench in (2000) 4 SCC 640, said that
\nthe very responsible and onerous duty is cast on the High
\nCourt under the Constitutional scheme and it has been
\ngiven a prime and paramount position in this mater, with
\nthe necessity of choosing the best available talent for
\nmanning the subordinate judiciary.  The repercussions of
\nwrongful choice is also pointed out in the said judgment.
\nIt is significant to note that the
\nappellants\/petitioners themselves have not challenged the
\nprescription of minimum cut off marks for the written
\nexamination though if their contention is to be accepted,
\nthe prescription of such minimum cut off will also be
\nequally invalid.  Their contention, in our view, is without
\nany substance and merit.\n<\/p>\n
In our opinion, the interview is the best mode of
\nassessing the suitability of a candidate for a particular
\nposition.  While the written examination will testify the
\ncandidates’ academic knowledge, the oral test alone can
\nbring out or disclose his overall intellectual and personal
\nqualities like alertness, resourcefulness, dependability,
\ncapacity for discussion, ability to take decisions, qualities
\nof leadership etc. which are also essential for a judicial
\nofficer.\n<\/p>\n
We may usefully refer to a decision of this Court  in
\nSahkari Ganna Vikas Samiti Ltd. Vs. Mahabir Sugar
\nMills (P) Ltd.,  (1981) 4 SCC 149 in which this Court
\nobserved as under:\n<\/p>\n
“The object of any process of selection for
\nentry into a public service is to secure the best
\nand the most suitable person for the job,
\navoiding patronage and favouritism.  Selection
\nbased on merit, tested impartially and
\nobjectively, is the essential foundation of any
\nuseful and efficient public service.  So, open
\ncompetitive examination has come to be
\naccepted almost universally as the gateway to
\npublic services.\n<\/p>\n
The ideal in recruitment is to do away
\nwith unfairness.”\n<\/p>\n
\n.\n<\/p>\n
A system of recruitment almost totally
\ndependent on assessment of a person’s
\nacademic knowledge and skills, as distinct
\nfrom ability to deal with pressing problems of
\neconomic and social development, with people,
\nand with novel situations cannot serve the
\nneeds of today, much less of tomorrow.We
\nventure to suggest that out recruitment
\nprocedures should be such that we can select
\ncandidates who cannot only assimilate
\nknowledge and sift material to understand the
\nramifications of a situation or a problem but
\nhave the potential to develop an original or
\ninnovative approach to the solution of
\nproblems.\n<\/p>\n
It is now well recognised that while a
\nwritten examination assesses a candidate’s
\nknowledge and intellectual ability, an interview
\ntest is valuable to assess a candidate’s overall
\nintellectual and personal qualities.  While a
\nwritten examination has certain distinct
\nadvantage over the interview-test there are yet
\nno written tests which can evaluate a
\ncandidate’s initiative, alertness,
\nresourcefulness, dependableness,
\ncooperativeness, capacity for clear and logical
\npresentation, effectiveness in discussion,
\neffectiveness in meeting and dealing with
\nothers, adaptability, judgment, ability to make
\ndecision, ability to lead, intellectual and moral
\nintegrity
\n… ”\n<\/p>\n
“While we do feel that the marks allotted
\nfor interview are on the high side and it may be
\nappropriate for the Government to re-examine
\nthe question, we are unable to uphold the
\ncontention that it was not within the power of
\nthe Government to provide such high marks
\nfor interview or that there was any arbitrary
\nexercise of power.”\n<\/p>\n
In  Mohan Kumar Singhania & Ors. Vs. Union of
\nIndia & Ors.,   (1992) suppl. 1 SCC 594 , S.Ratnavel
\nPandian, J. speaking for the Bench, observed as under:
\n“Hermer Finer in his textbook under the
\ncaption The Theory and Practice of Modern
\ngovernment states:\n<\/p>\n
“The problem of selection for character is
\nstill the pons asinorum of recruitment to the
\npublic services everywhere.  The British Civil
\nService experiments with the interview.”\n<\/p>\n
The purpose of viva voce test for the ICS
\nExamination in 1935 could be best understood
\nfrom the following extract of the Civil Service
\nCommission’s pamphlet:\n<\/p>\n
“Viva Voce  the examination will be in
\nmatters of general interest : it is intended to
\ntest the candidate’s alertness, intelligence and
\nintellectual outlook.  The candidate will be
\naccorded an opportunity of furnishing the
\nrecord of his life and education.”\n<\/p>\n
“It is apposite, in this connection, to have
\nreference to an excerpt from the United Nations
\nHandbook on Civil Service Laws and Practice,
\nwhich reads thus:\n<\/p>\n
“the written papers permit an
\nassessment of culture and intellectual
\ncompetence.  This interview permits an
\nassessment of qualities of character which
\nwritten papers ignore; it attempts to assess the
\nman himself and not his intellectual abilities.”\n<\/p>\n
“This Court in Lila Dhar vs. State of
\nRajasthan<\/a>,  (1984) 2 SCC 159 while
\nexpressing the view about the importance and
\nsignificance of the two tests, namely, the
\nwritten and interview has observed thus:\n<\/p>\n
“the written examination  assess
\nthe man’s intellect and the interview test the
\nman himself and the ‘the twain shall meet’ for
\na proper selection.”\n<\/p>\n
   The qualities which a Judicial Officer would
\npossess are delineated by this Court in Delhi Bar
\nAssociation vs. Union of India & Ors<\/a>., (2002) 10 SCC\n<\/p>\n
159.  A Judicial Officer must, apart from academic
\nknowledge, have the capacity to communicate his
\nthoughts, he must be tactful, he must be diplomatic, he
\nmust have a sense of humour, he must have the ability to
\ndefuse situations, to control the examination of witnesses
\nand also lengthy irrelevant arguments and the like.
\nExistence of such capacities can be brought out only in
\nan oral interview.  It is imperative that only persons with
\na minimum of such capacities should be selected for the
\njudiciary as otherwise the standards would get diluted
\nand substandard stuff may be getting into the judiciary.
\nAcceptance of the contention of the appellants\/petitioners
\ncan even lead to a postulate that a candidate who scores
\nhigh in the written examination   but is totally inadequate
\nfor the job as evident from the oral interview and gets 0
\nmarks may still find it a place in the judiciary.  It will spell
\ndisaster to the standards to be maintained by the
\nsubordinate judiciary.  It is, therefore, the High Court has
\nset a bench mark for the oral interview, a bench mark
\nwhich is actually low as it requires 30% for a pass.  The
\ntotal marks for the interview are only 50 out of a total of\n<\/p>\n
450.  The prescription is, therefore, kept to the bare
\nminimum and if a candidate fails to secure even this bare
\nminimum, it cannot be postulated that he is suitable for
\nthe job of Munsif Magistrate, as assessed by five
\nexperienced Judges of the High Court.
\nIn this connection, reference may be made to the
\ndecision in Manjeet Singh, UDC & Ors. Vs. Employees
\nState Insurance Corporation & Anr., (1990) 2 SCC 367
\nat 371 wherein the Rules did not prescribe any minimum
\nmarks for the interview.  The advertisement for the job set
\na minimum of 40% to the written test and without a
\nminimum for the interview.  However, candidates with
\nless than 40% at the interview were not selected.  The
\nselection was upheld by this Court relying on a judgment
\nof Punchhi,J in Rajesh Sood vs. Director-General,
\nEmployees State Insurance Corporation, 1985 (2)
\nService Law 699.  In Union of India & Anr. Vs. Amrik
\nSingh & Ors.,   (1994) 1 SCC 269, though there was no
\nspecification in the statutory Rules regarding the
\nminimum length of service for promotion, such
\nprescription was laid by administrative instructions.  In
\npara 7, this Court said that the instructions so issued
\nwere not inconsistent with the Rules.  Reference may also
\nbe made to a decision of this Court in Jasbir Singh &
\nOrs. Vs. State of Punjab & Anr., (2002) 1 SCC 124, in
\nwhich the relevant Rules did not specify as to the relevant
\ndate for considering the age qualification.  The
\nadvertisement, however, fixed a cut off date, which was
\ncontended to be illegal.  This Court held that the said
\nprescription was for the purpose of implementation of the
\nRules regarding age.\n<\/p>\n
We may now refer to few decisions cited by Mr.
\nT.L.V. Iyer, learned senior counsel appearing for the
\nrespondents, in support of his contentions.
\nIn State of Haryana vs. Subash Chander Marwaha
\n& Ors<\/a>. , 1974 (3) SCC 220, the Rules specified that a
\ncandidate obtaining 45% marks was eligible for
\nappointment. However, the Government restricted the
\nappointments to candidates getting over 55%. Candidates
\nwho had obtained less than 55% but over 45% challenged
\nthe non-appointment despite existence of vacancies, on
\nthe ground that all those got over 45% should have been
\nappointed. This was not accepted by this Court.
\nIt has been held  by this Court in Madhya Pradesh
\nPublic Service Commission vs. Navnit Kumar Potdar &
\nAnr<\/a>., 1994 (6) SCC 293 that in a selection based
\ninterview, it was open to the Selecting Board to insist on a
\nhigher qualification than that prescribed by the Rules. In
\nthat case, five years’ experience was the prescribed
\nqualification. But this Court held that there was nothing
\nwrong in confining the selection to candidates with
\nexperience of 7 = years.\n<\/p>\n
Thus it is seen that apart from the amplitude of the
\npower under Rule 7 it is clearly open for the High Court to
\nprescribe bench marks for the written test and oral test in
\norder to achieve the purpose of getting the best available
\ntalent.  There is nothing in the Rules barring such a
\nprocedure from being adopted.  It may also be mentioned
\nthat executive instructions can always supplement the
\nRules which may not deal with every aspect of a matter.
\nEven assuming that Rule 7 did not prescribe any
\nparticular minimum, it was open to the High Court to
\nsupplement the Rule with a view to implement them by
\nprescribing relevant standards in the advertisement for
\nselection.  Reference may be made to the decision of this
\nCourt in  State of Gujarat vs. Akhilesh C. Bhargav &
\nOrs<\/a>. , (1987) 4 SCC 482.\n<\/p>\n
We shall now advert to the decisions relied on by Mr.
\nL.N. Rao :\n<\/p>\n
1.\t P.K. Ramachandra Iyer & Ors. Vs. Union of
\nIndia & Ors., (supra)\n<\/p>\n
2.\tUmesh Chandra Shukla vs. Union of India<\/a>,
\n(supra)\n<\/p>\n
      3. Durga Charan Misra vs. State of Orissa<\/a>,(supra)
\nThese decisions do not deal with a situation like
\nRule 7.  Even otherwise, these decisions are totally
\ndistinguishable as was virtually conceded by the
\nappellants\/petitioners’ learned counsel as recorded by the
\nHigh Court in paragraph 27 of the judgment which reads
\nas under:\n<\/p>\n
“Before we examine the rest of the issues,
\nthis could be a resting point, so as to take
\nnotice of the reply made.  It has to be observed
\nthat these points highlighted practically go
\nunanswered.  Of course, valiant effort had
\nbeen mad by Mr. Sudhkara Prasad, learned
\ncounsel appearing for the respondent, to
\nsalvage the situation.  He had to agree that the
\ndecisions relied on by the learned Judge,
\nreferred to earlier, may not apply on all fours.
\nBut the submission is that substantial rights
\ncannot at all be circumscribed by a
\nprescription for adopting a procedure.  When
\nthe Rule does not give power to the authority
\nto prescribe minimum cut off marks, the
\ndiscretion has to be understood as
\ncircumscribed”\n<\/p>\n
This apart, those cases deal with particular
\nsituations based on interpretation of the Rules concerned
\nin those cases.  In Ramachandra Iyer’s case(supra), Rule
\n14 (paragraph 43 of the judgment) mandated that the
\nmarks at the written test and the oral examination have
\nto be aggregated and the merit list prepared on the basis
\nof such aggregation of marks.  Therefore, the marks
\nobtained at the written test and the oral test were both
\nrelevant whatever be the percentage, in the preparation of
\nthe merit list.  Nevertheless, the examining Board
\nprescribed minimum for viva voce test and eliminated
\nthose who failed to get the minimum.  Resultantly,
\ncandidates who would have found a place in the rank list
\nbased on the aggregate of the marks for the two tests
\nstood eliminated because they did not get the minimum in
\nthe viva voce test.  This was contrary to Rule 14 and that
\nwas the reason why the prescription of minimum marks
\nfor viva voce test was held invalid in Ramachandra Iyer’s
\ncase(supra).  That this is the reason evident from a
\nreading of paragraph 44 of the judgment where, inter alia,
\nthis Court observed as under:\n<\/p>\n
“Neither Rule 13 nor Rule 14 nor any
\nother Rule enables the ASRB to prescribe
\nminimum qualifying marks to be obtained by
\nthe candidates at the viva voce test.  On the
\ncontrary, the language of rule 14 clearly
\nnegatives any such power in the ASRB when it
\nprovides that after the written test if the
\ncandidate has obtained the minimum marks,
\nhe is eligible for being called for viva voce test
\nand final merit list would be drawn up
\naccording to the aggregation of marks obtained
\nby the candidates in the written test plus viva
\nvoce examination.”\n<\/p>\n
“This prescription of impermissible
\nadditional qualification has a direct impact on
\nthe merit list because the merit list has to be
\nprepared according to the aggregate marks
\nobtained by the candidates at the written test
\nplus  viva voce test.  Once an additional
\nqualification of obtaining minimum marks at
\nthe viva voce test is adhered to, a candidate
\nwho may figure high in the merit list was likely
\nto be rejected on the ground that he has not
\nobtained qualifying marks at the viva voce
\ntest.”\n<\/p>\n
The decision is, therefore, based on Rule 14 and the
\nnecessity to aggregate the marks at the written test and
\nthe oral test.\n<\/p>\n
Similar is the question in Durga Charan Misra vs.
\nState of Orissa<\/a>,(supra) where the decision turned on
\nRule 18 of the Orissa Judicial Service Rules.  The said
\nRule is quoted in para 6 of that judgment and it requires
\nthe marks obtained at the viva voce test to be added to
\nthe marks obtained in the written examination and merit
\nlist to be prepared in accordance with the aggregate of
\nthese two marks.  It was, therefore, held that the
\nprescription of a minimum of 30% at the viva voce test
\nand elimination of candidates accordingly a counter to
\nthis express provision in Rule 18.  This case is analogous
\nto the decision in P.K. Ramachandra Iyer’s case (supra)
\nand what is stated earlier as the distinguishing feature of
\nP.K.Ramachandra Iyer’s case applies equally to this
\ndecision as well.\n<\/p>\n
  The third case is Umesh Chandra Shukla vs.
\nUnion of India<\/a>, (supra).  In that case, the Delhi High
\nCourt had made a list of 27 candidates after eliminating
\nthose who had not obtained the requisite minimum at the
\ntest conducted for the purpose.  However, the High Court
\nmodified the select list prepared in accordance with the
\nRules by awarding moderation marks to those who did
\nnot obtain the prescribed minimum marks at the written
\ntest and the viva voce.  This was held to be bad because
\nawarding marks by moderation amounted to amendment
\nof the Rules which could not be done by the High Court or
\nthe Selection Committee.  This decision, therefore, turned
\non the interpretation of the Rules involved in that case
\nand violation thereof by the High Court by adding
\nmoderation marks is contrary to the Rules.  This case is
\nalso, therefore, distinguishable and has no application to
\nthe case on hand.  The learned single Judge relied on
\nthese three decisions to decide against the High Court.
\nApart from the fact that these decisions are
\ndistinguishable and pertain to the Rules involved in those
\ncases, the learned Judge did not correctly appreciate the
\namplitude of Rule 7 and the wide powers conferred on the
\nHigh Court to evolve its own procedure under the said
\nRule.\n<\/p>\n
Rule of Reservation
\nContention No. 2 relates to correctness of the
\napplication of the Rule of reservation.  This point, in our
\nopinion, will arise for consideration only if the first
\ncontention of the appellants\/petitioners is accepted.  If
\nthat contention is rejected, the question of considering
\nthis point will not arise.  In fact, in that event, the
\nappellants\/petitioners are not even entitled to question
\nthe correctness of the list, as laid down by this Court in
\nDr. Umakant Saran vs. State of Bihar & Ors<\/a>.,  (1973) 1
\nSCC 485 and only those who are eligible or in the  zone of
\nconsideration can question the legality or otherwise of a
\nselect list.  It is the submission of Mr. T.L.V. Iyer that the
\nSelect  List has been prepared fully in accordance with
\nRules 14-17 of the Rules.  The appellants\/petitioners’
\nchallenge is the filling up of slot Nos. 60, 62, 64, 66, 68
\nand 70 which come within the reservation slots by
\ncandidates in the merit list. This is misconceived and
\nincorrect.  Rule 15(a) & (b)  of  KSSSR specially mandates
\nthat if candidate belonging to a particular community
\nOBC, SC\/ST is not available to fill up any particular slot,
\nthen it should be passed over and filled up by a candidate
\navailable from the next reserved community and so on. If
\nno member of a reserved community is ultimately
\navailable for filling up that slot, that slot should be filled
\nup by an open merit candidate.  That is the position here.
\nThere were no eligible reserved candidates available for
\nfilling up the aforesaid slots 60 etc.  As mentioned earlier,
\nfrom all the reserved candidates, 37 of them available
\namong the 88 eligible candidates had already been given
\nplace above Slot No. 60 and there was not a single
\nreserved candidate available to fill up slots 60 etc.
\nTherefore, under Rule 15, the aforesaid slots had
\nmandatorily to be filled up by open merit candidates.  It is
\nnot possible for the Government to keep those vacancies
\nunfilled particularly, when there was a total of 70
\nvacancies to be filled up and open merit candidates were
\nalso available.  Non-filling up of those vacancies by open
\nmerit candidates would have resulted in violation of Rule\n<\/p>\n
15.  In fact, the Division Bench had gone into this aspect
\nand examined this matter with reference to Rules and
\nfound that there was no departure from Rules 14 to 17 in
\nthe preparation of the list.\n<\/p>\n
The list so prepared in accordance with the
\nreservation Rules was forwarded to the Government and
\nthe Government, in its turn, examined the matter again in
\nall its aspects and approved the same.
\nMr. L.N. Rao cited the decision in the case of
\nRajasthan Public Service Commission & Anr. Vs.
\nHarish Kumar Purohit & Ors., (2003) 5 SCC 480.  He
\nraised the contention that the so called de-reservation
\nhad to be done only by the Government and not by the
\nSelecting authority viz. the High Court.  This question is
\nnot relevant in this context.  There is no question of de-
\nreservation so far as the case on hand is concerned for
\nthe reason that it was an application of Rule 15 and the
\nfilling up of the posts by open merit candidates as
\nrequired therein.  There is no de-reservation involved at
\nall.  The High Court has only followed the mandate of
\nRule15.\n<\/p>\n
Mr. L.N. Rao made a further contention based on the
\nabove decision that the de-reservation of any post has to
\nbe done by the Government.  This contention, in our view,
\nhas also no force.  Assuming that this is a case of de-
\nreservation, the High Court only forwarded the list to the
\nGovernment and it is the Government who approved the
\nsame.  De-reservation, if any, of the posts was, therefore,
\ndone only by the Government and not by the High Court.
\nBut as stated earlier, the question of de-reservation does
\nnot arise, as this is a case of application of the mandate of
\nRule 15.  In the circumstances, the second contentions
\nraised by Mr. L.N. Rao is also incorrect and untenable,
\napart from the fact that the appellants\/petitioners who
\nare not eligible candidates are not entitled to contest the
\nvalidity of the select list on this ground.  Since they are
\nineligible for appointment, no relief, in any case, be
\nafforded to them in any event.\n<\/p>\n
The appellants\/petitioners, in any event, are not
\nentitled to any relief under Art. 226<\/a> of the Constitution of
\nIndia for more reasons than one.  They had participated
\nin the written test and in the oral test without raising any
\nobjection.  They knew well from the High Court’s
\nNotification that a minimum marks had  to be secured
\nboth at the written test and in the oral test.  They were
\nalso aware of the High Court decision on the judicial side
\nreported in Remany vs. High Court of Kerala,  1996 (2)
\nKLT 439.  This case deals with prescription of minimum
\nqualifying marks of 30% for viva voce test.  C.S. Rajan, J.,
\nin the above judgment, observed as under:
\n“..On the basis of the aggregate
\nmarks in both the tests, the selection has to be
\nmade.  In I.C.A.R’s case, AIR 1984 SC 541 also
\nthe relevant rules did not enable the selection
\nBoard to prescribe minimum qualifying marks
\nto be obtained by the candidate at the viva
\nvoce test.  In the Delhi Judicial Service’s case
\nalso (AIR 1985 SC 1351, the rules did not
\nempower the committee to exclude candidates
\nsecuring less than 600 marks in the aggregate.
\nTherefore, in all these cases, the Supreme
\nCourt came to the conclusion that prescription
\nof separate minimum marks for viva voce test
\nis bad in law because under the rules, no
\nminimum qualifying marks were prescribed.”\n<\/p>\n
The High Court also relied on P.K. Ramachandra
\nIyer’s case (supra)  and  Umesh Chandra’s case (Supra).
\nThe appellants\/petitioners having participated in the
\ninterview in this background, it is not open to the
\nappellants\/petitioners to turn round thereafter when they
\nfailed  at the interview and contend that the provision of a
\nminimum mark for the interview was not proper. It was so
\nheld by this Court in  paragraph 9 of Madan Lal & Ors.
\nVs. State of J & K & Ors. , (1995) 3 SCC 486 as under:
\n“Before dealing with this contention, we
\nmust keep in view the salient fact that the
\npetitioners as well as the contesting
\nsuccessful candidates being respondents
\nconcerned herein, were all found eligible in
\nthe light of marks obtained in the written test,
\nto be eligible to be called for oral interview.
\nUp to this stage there is no dispute between
\nthe parties.  The Petitioners also appeared at
\nthe oral interview conducted by the Members
\nconcerned of the Commission who interviewed
\nthe petitions as well as the contesting
\nrespondents concerned.  Thus the petitioners
\ntook a chance to get themselves selected at
\nthe said oral interview.  Only because they did
\nnot find themselves to have emerged
\nsuccessful as a result of their combined
\nperformance both at written test and oral
\ninterview, they have filed this petition.  It is
\nnow well settled that if a candidate takes a
\ncalculated chance and appears at the
\ninterview, then, only because the result of the
\ninterview is not palatable to him, he cannot
\nturn round and subsequently contend that
\nthe process of interview  was unfair or the
\nSelection Committee was not properly
\nconstituted.  In the case of Om Prakash
\nShukla vs. Akhilesh Kumar Shukla<\/a>,  1986
\nsuppl SCC 283, it has been clearly laid down
\nby a Bench of three learned Judges of this
\nCourt that when the petitioner appeared at
\nthe examination without protect and when he
\nfound that he would not succeed in
\nexamination he filed a petition challenging the
\nsaid examination, the High Court should not
\nhave granted any relief to such a petitioner.”\n<\/p>\n
Therefore, the writ petition filed by the
\nappellants\/petitioners should be dismissed on the ground
\nof estoppel is correct in view of the above ruling of this
\nCourt.  The decision of the High Court holding to the
\ncontrary is in per curiam without reference to the
\naforesaid decisions.\n<\/p>\n
The writ petitions have also to fall on the ground of
\nabsence of necessary parties in the party array.  Though
\nthe appellants\/petitioners contend that they are only
\nchallenging the list to a limited extent, acceptance of their
\ncontention will result in a total re-arrangement of the
\nselect list.  The candidates will be displaced from their
\npresent ranks, besides some of them may also be out of
\nthe select list of 70.  It was, therefore, imperative that all
\nthe candidates in the select list should have been
\nimpleaded as parties to the writ petitions as otherwise
\nthey will be affected without being heard.  Publication in
\nthe newspaper does not cure this defect.  There are only a
\nspecified definite number of candidates who had to be
\nimpleaded namely, 70.  It is not as if there are a large
\nunspecified number of people to be affected.  In such
\ncases, resort cannot be made to Rule 148 of the Kerala
\nHigh Court Rules.  That Rule can be applied only when
\nvery large number of candidates are involved and it may
\nbe not able to pin point those candidates with details.  In
\nour view, the writ petitions have to fail for non-joinder of
\nnecessary parties also.\n<\/p>\n
One more factor has also to be noticed in regard to
\nthe civil appeals filed by Mr. K.H. Siraj which, in our
\nopinion, is also hit by res judicata.  His writ petition in the
\nHigh Court was O.P. No. 5219 of 2002.  That was partly
\nallowed without giving him any relief for a direction for
\nappointment.  On the other hand, the High Court set
\naside the selection of candidates occupying Rank Nos. 60,
\n62, 64, 66, 68, and 70.  The High Court filed Writ Appeal
\nNo. 1496 of 2004 before the Division Bench.  Mr. K.H.
\nSiraj himself filed W.A. No.1584 of 2004 against that part
\nof the impugned judgment which was against him.
\nCandidates occupying Rank Nos. 60 etc. who are affected
\nby the judgment had themselves filed W.A.Nos. 1498,
\n1510, 1526, 1527, 1541, 1588 and 1574 of 2004.  All
\nthese appeals filed by the High Court and by these parties
\nwere allowed setting aside the judgment of the learned
\nsingle Judge.  Mr. K.H. Siraj’s appeal (W.A. 1584\/2004)
\nwas dismissed.  However, Mr. Siraj has chosen to file
\nappeals only against the decision in W.A.No. 1496\/2004
\nfiled by the High Court and  W.A. No. 1584 of 2004 filed
\nby himself and has not chosen to file any appeal against
\nthe decision in the other appeals, W.A.No. 1498 of 2004
\netc. filed by the affected parties.  The decision therein has
\nbecome final and, therefore, operates as res judicata and
\nMr. K.H. Siraj’s appeal is to be dismissed as such.
\nMr. L.N. Rao, concluding his arguments, sought to
\nthe argument of sympathy.  The flimsy plea was made by
\nhim in this regard.  We are unable to countenance the
\nplea of sympathy.  The appellants\/petitioners could not
\nsecure even the minimum of 30% marks prescribed by the
\nHigh Court.  The five learned Judges including the Chief
\nJustice who had interviewed the candidates in an
\nobjective way, have found these appellants\/petitioners as
\nnot suitable for the job and, therefore, not awarded them
\neven the minimum marks required in the oral test.  As
\npointed out earlier, there is no mala fide or bias attributed
\nto the selection committee.  It is irrelevant to say that they
\nfailed to make only one or two marks when it is evident
\nthat they were not able to score even the very low
\nminimum of 30% marks prescribed for the oral test.
\nLikewise, the request of Mr. L.N. Rao for relaxation
\nof the age qualification in future selection in so far as the
\nappellants\/petitioners are concerned is again not a valid
\nrequest.  This is a case where the High Court has gone
\nstrictly by the Rules and found the appellants\/petitioners
\nas unsuitable.  When the Constitutional mandate is that
\nthe High Court should perform its duty in having the best
\navailable talent chosen for the subordinate judiciary, it is
\nnot possible to dilute the standards by any process.  It is
\nonly this mala fide of the Constitution, that the select
\ncommittee in this case has performed and found the
\nappellants\/petitioners unsuitable.  There is no case for
\nany relaxation of age in future recruitment to be given so
\nfar as the appellants\/petitioners are concerned.
\nMr. Uday U. Lalit, learned senior counsel appearing
\nfor respondent Nos. 6, 7, 8 & 9 in C.A. Nos. 2539-2540 of
\n2005.  He also advanced the similar arguments as that of
\nMr. T.L.V. Iyer.  He also submitted that since mala fides is
\nnot alleged, the selection made by five Hon’ble Judges of
\nthe High Court should not be interfered with.  He also
\nadvanced the argument on Rule 7.  On the question of
\nequality, Mr. Uday U. Lalit submitted that the list was
\npublished  in the year 2002 and that is more than four
\nyears after and that the respondents were selected and
\nonce they selected, they seized to be advocates and that
\nsince then they are working and, therefore, to put the
\nclock back completely at this distance of time is not
\nproper.  Mr Lalit also placed reliance on the decision of
\nthis Court in Manjeet Singh, UDC & Ors. Vs. Employees
\nState Insurance Corporation & Anr.,(supra) which in
\nturn refers to the views expressed by Punchhi,J (as he
\nthen was) in decision Rajesh Sood vs. Director-General,
\nEmployees State Insurance Corporation (supra).
\nThe Division Bench summoned the original files and
\nverified as to whether proper procedure has been followed
\nin the pattern of awarding of marks and prepared of the
\nlists.  The learned Judges in paragraph 50 of their
\njudgment observed as under:\n<\/p>\n
“.The compilation of records are
\nimmediately done, and at every stage, the
\nsenior Judges including the Chief Justice, who
\nwere in office, had been closely monitoring the
\nselection process.  The details of marks
\nawarded in the written and oral examinations
\nwere available, as arising from the selection
\nprocess.  Details of candidates with
\npermissible amount of secrecy and the marks
\nrespectively secured by them were available,
\nunder the signature of the Chief Justice and
\nhis companion Judges.  The records reveal
\nthat principles of rotation have been borne in
\nmind.”\n<\/p>\n
For the foregoing reasons, we are of the opinion that
\nthe appellants in the civil appeals and petitioners in the
\nspecial leave petitions are not entitled to any of the reliefs
\nprayed for as they have not made out any valid or
\nsustainable ground.  We, therefore, set aside the
\njudgment passed by the learned single Judge and affirm
\nthe judgment passed by the Division Bench which,  in our
\nopinion, does not warrant interference.
\nAccordingly, the civil appeals and the special leave
\npetitions are dismissed.  There shall be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India K.H. Siraj vs High Court Of Kerala & Ors on 23 May, 2006 Author: . A Lakshmanan Bench: Dr. Ar. Lakshmanan, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 2539-2540 of 2005 PETITIONER: K.H. Siraj RESPONDENT: High Court of Kerala & Ors. DATE OF JUDGMENT: 23\/05\/2006 BENCH: Dr. AR. Lakshmanan & Lokeshwar […]<\/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-251841","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK.H. 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