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PETITIONER: DURGACHARAN MISRA

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT27/08/1987

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1987 AIR 2267            1987 SCR  (3)1097  1987 SCC  (4) 646        JT 1987 (3)   459  1987 SCALE  (2)417  CITATOR INFO :  D          1988 SC 162  (2)

ACT:     Orissa  Judicial  Service  Rules,   1964:  Rules  16-19: Judicial     Service--Probationary      Munsifs--Recruitment of--Viva-voce    test-Minimum    qualifying    marks     not prescribed--State Public Service Commission--Whether  compe- tent    to    prescribe    additional    requirements    for selection--High  Court  Judge present as an  expert  at  the viva-voce-Advice of--Whether could run counter to the Statu- tory Rules.

HEADNOTE:     The  petitioner had secured 470 marks out of 950 in  the written  examination conducted by the Orissa Public  Service Commission for the post of Probationary Munsifs for the year 1982-83. In the viva-voce test he was given 30 marks out  of 200.  But he did not find a place in the merit  list  though candidates  with  less number of aggregate  marks  had  been selected.     In  the writ petition under Art. 32 of the  Constitution he challenged the validity of selection on the ground, among others, that it was arbitrary and contrary to rules. For the respondents it was submitted that the Commission had taken a decision  on  the  advice of the High Court  Judge  who  was present at the viva-voce test as provided under r. 17 of the Orissa Judicial Service Rules, 1964, that a candidate to  be suitable  for the post of Munsif should secure at  least  30 per cent marks at the viva-voce test, and that the petition- er  did  not  secure the minimum qualifying  marks  so  pre- scribed. Allowing the writ petition,     HELD:  1.  The  decision of the  Orissa  Public  Service Commission  to prescribe the minimum marks to be secured  at the  viva-voce test for the post of Probationary Munsifs  in the State Judicial Service was illegal and without  authori- ty. [1106B]     2.1 The Orissa Judicial Service Rules, 1964 flamed under the  proviso  to Article 309 read with Article  234  of  the Constitution,  have been made by the Governor of  the  State after consultation with the State

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1098 Public  Service  Commission and the State  High  Court.  The Commission, which has been constituted under the Rules must, therefore,  faithfully  follow  the Rules.  It  must  select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibil- ity or as to suitability. [1105G-H; 1106A]     2.2 Rule 16 of the Rules requires a candidate to  secure a minimum of 30 per cent marks in the written examination to qualify.  The  candidates who have secured  more  than  that minimum would alone be called for viva-voce test. The  Rules do not prescribe any such minimum marks to be secured at the viva-voce  test. Rule 18 mandates the Commission to add  the marks obtained at the written examination and the  viva-voce test  together,  no matter what the marks at  the  viva-voce test. On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit.  The list so prepared is then to be forwarded to  the Government under Rule 19. [1101D-E; F]     The  Commission, therefore, had no power to exclude  the name of any candidate from the select list merely because he had secured less marks at the viva-voce test. [1101G]     P.K.  Ramchandra Iyer & Ors. v. Union of India  &  Ors., [1984]  2  SCR 200; and Umesh Chandra Shukla  etc.  etc.  v. Union of India, [1985] Supp. 2 SCR 367, referred to.     3.  Even if the minimum qualifying marks were fixed  for the  viva-voce test by the Commission on the advice  of  the High  Court Judge, present at the viva-voce test in  accord- ance  with  r.  17 of the Rules, that  cannot  validate  the action  of the Commission, for he had no power to  add  any- thing  to the Rules of recruitment. Rule 17 itself  proceeds to  state  that such a Judge shall not  be  responsible  for selection of candidates. He may advise the Commission as  to the  special qualities required for  judicial  appointments. His  advice  may be in regard to the range  of  subjects  in respect  of which the viva-voce shall be conducted.  It  may also  cover the type and standard of questions to be put  to candidates  or the acceptance of the answers given  thereof. But  his advice cannot run counter to the  statutory  Rules. [1104F-H; 1105F]     Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and Ors. etc. etc., [1985] Supp. 1 SCR 657, referred to.     4.  The Orissa Public Service Commission is directed  to re-do  the select list on the basis of the  aggregate  marks obtained by the candidates 1099 in  the written examination and at the viva-voce  test.  The list  so prepared to be forwarded to the Government  as  re- quired under r. 19 of the Rules for appointments as Munsifs. The persons who fall within the revised list, if already  in service  need not be disturbed. Their inter-se seniority  to be  regulated  as  per the rankings  in  the  revised  list. [1106B-D]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 1123 of 1986. (Under Article 32 of the Constitution of India). R.K. Garg and J.R. Das for the petitioner. A.K. Panda and Vinoo Bhagat for the Respondents. The Judgment of the Court was delivered by     JAGANNATHA  SHETTY, J. This is a petition under  Article 32 of the Constitution challenging the validity of the  list of candidates prepared by Orissa Public Service  Commission,

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Cuttack for appointment as Probationary Munsifs in the State Judicial Service.     The  selection  of candidates for  subordinate  judicial service  is governed by the Orissa Judicial  Service  Rules, 1964 (the "Rules"). The Rules were flamed under the  proviso to Article 309 read with Article 234 of the Constitution  of India.   The   State   Public   Service   Commission    (The "Commission") is the selecting authority. The candidates are required  to be selected by written test followed  by  viva- voce test. The written examination carries the maximum marks of 950 and the viva-voce test 200.     In  accordance  with the Rules,  the  Commission  issued advertisement  No. 12 of 1982-83 inviting applications  from eligible  candidates for posts of Probationary Munsifs.  The petitioner was one of the candidates who applied in response thereof. In the written examination conducted by the Commis- sion  the  petitioner secured 470 marks. He was  called  for viva-voce  test  in  which he was given 30  marks.  He  thus secured  in all 500 out of 1150. The Commission  prepared  a list  of candidates which we may term as ’select  list’  and recommended  to the Government altogether 56  candidates  in four  batches as desired by the latter. The  petitioner  did not  find  a place in that list. The  candidates  with  less number of aggregate marks than that of the petitioner  have, however,  been  selected. The petitioner,  therefore,  chal- lenges the validity of selection, on the ground among others that it is arbitrary and contrary to the Rules. 1100     The  reason  for exclusion of the  petitioner  from  the select list is not obscure. It has been at any rate now made explicit.  He  did not secure the minimum  qualifying  marks prescribed  by the Commission in the viva-voce test. In  the counter  affidavit filed on behalf of the Commission it  has been  so stated. It is said that the Commission has taken  a decision  that  a candidate to be suitable for  the-post  of Munsif,  should secure at least 30% at the  viva-voce  test. That  decision  was taken on the advice of  the  High  Court Judge.     The question for our consideration is whether the  mini- mum marks prescribed by the Commission at the viva-voce test is  justified, and whether the select list prepared  by  the Commission is in accordance with the Rules.                   Rules  16, 17, 18 and 19 are the  relevant               rules  which  have a material bearing  on  the               question that falls for determination:               These Rules read as under:               Rule 16: "The Commission shall summon for  the               viva-voce test all candidates who have secured               at  the written examination not less than  the               minimum  qualifying  marks  obtained  in   all               subjects  taken  together which shall  be  the               (30%)  of the total marks in all  the  papers:               Provided  that Government may after  consulta-               tion  with the High Court and  Commission  fix               higher  qualifying marks in any or all of  the               subjects in the written examination in respect               of any particular recruitment.               Rule 17: The Chief Justice or any of the other               Judges  of  the High Court  nominated  by  the               Chief  Justice shall represent the High  Court               and  be  present  at the  viva-voce  test  and               advise the Commission on the fitness of candi-               dates at the viva-voce test from the point  of               view of their possession of the special quali-               ties  required  in the judicial  service,  but

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             shall  not  be responsible  for  selection  of               candidates.               Rule  18: The marks obtained at the  vive-voce               test  shall be added to the marks obtained  in               the  written examination. The names of  candi-               dates will then be arranged by the  Commission               in  order of merit. If two or more  candidates               obtain equal marks in the aggregate, the order               shall  be  determined in accordance  with  the               marks,  secured  at the  written  examination.               Should the marks secured at the written exami-               nation of the                    1101               candidate  concerned be also equal,  then  the               order shall be decided in accordance with  the               total number of marks obtained in the optional               papers.               Rule 19: (1) The Commission shall then forward               to  the Government in the Law  Department  the               list of candidates prepared in accordance with               Rule 18 indicating therein whether a candidate               belongs to Schedule Caste or Scheduled Tribes.               (2)  The list prepared shall be  published  by               the Commission for general information.               (3) The list, unless the Governor in consulta-               tion  with the High Court  otherwise  decides,               shall ordinarily be in force for one year from               the date of its preparation by the Commi-               ssion."     The  Rule making authorities have provided a scheme  for selection  of candidates for appointment to judicial  posts. Rule  16 prescribes the minimum qualifying marks to  be  se- cured by candidates in the written examination. It is 30% of the  total marks in all the papers. The candidates who  have secured  more  than that minimum would alone be  called  for viva-voce test. The Rules do not prescribe any such  minimum marks  to be secured at the viva-voce test. After the  viva- voce  test, the Commission shall add the marks of the  viva- voce  test  to the marks in the written  examination.  There then, Rule 18 states:               "The names of candidates will then be arranged               by the Commission in the order of merit."     This is the mandate of Rule 18. The Commission shall add the  two marks together, no matter what those marks  at  the viva-voce test. On the basis of the aggregate marks in  both the tests, the names of candidates will have to be  arranged in  order of merit. The list so prepared shall be  forwarded to  the Government. The Commission has no power  to  exclude the  name of any candidate from the select list  merely  be- cause he has secured less marks at the viva-voce test.     Similar  pattern of selection is generally found in  all the rules of recruitment which prescribe written examination and  also viva-voce test. There are two authorities of  this Court in this aspect of the matter. In P.K. Ramchandra  Iyer & Ors. v. Union of India & Ors., [1984] 2 SCR 200 this Court considered the scope of recruitment rules 1102 governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research. There the Agricultural  Scientists  Recruitment Board (ASRB)  was  re- quired to select candidates by holding competitive  examina- tion and viva-voce test. ASRB prescribed minimum  qualifying marks  which a candidate must obtain at the  viva-voce  test before  his  name could be included in the merit  list.  The question  that fell for consideration was whether  the  ASRB

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was  competent  to prescribe such a minimum?  Accepting  the contention  that ASRB has no such power, this Court observed (p. 244):               "Neither  Rule  13 nor Rule 14 nor  any  other               rule  enables  the ASRB to  prescribe  minimum               qualifying marks to be obtained by the  candi-               date  at the viva-voce test. On the  contrary,               the language of Rule 14 clearly negatives  any               such  power in the ASRB when it provides  that               after  the written test if the  candidate  has               obtained  minimum  marks, he is  eligible  for               being called for viva-voce test and the  final               merit list would be drawn up according to  the               aggregate  of marks obtained by the  candidate               in  written test plus  viva-voce  examination.               The  additional qualification which ASRB  pre-               scribed  to itself namely, that the  candidate               must have a further qualification of obtaining               minimum  marks in the viva-voce test does  not               find  place  in Rules 13 and  14,  it  amounts               virtually  to a modification of the Rules.  By               necessary  inference, there was no such  power               in the ASRB to add to the required  qualifica-               tions. If such power is claimed, it has to  be               explicit  and  cannot  be  read  by  necessary               implication  for the obvious reason that  such               deviation  from the rules is likely  to  cause               irreparable and irreversible harm."     The  closest  to the facts of this case  is  the  recent decision of this Court in Umesh Chandra Shukla etc. etc.  v. Union  of India, [19851 Supp. 2 SCR 367. There the scope  of Delhi  Judicial Service Rules, 1970 came up  for  considera- tion.  Rules 17 and 18 of the Delhi Judicial Service  Rules, 1970  are  similar  to Rules 16 and 18  of  Orissa  Judicial Service  Rules,  1964. The Selection  Committee  constituted under  these Rules consisted among others of Judges  of  the High  Court  of Delhi. The  Selection  Committee  apparently thought that it has got power to exclude candidates securing less  than 600 marks in the aggregate as not being  suitable for  appointment  to the Judicial  Service.  Accordingly  it excluded  all such candidates from the select list.  It  was contended  before  this Court that the  Selection  Committee would be competent to 1103 prescribe a minimum standard to be crossed by candidates  at the  vive-voce test in order to be suitable for  appointment to judicial posts. Repelling that contention this Court  ob- served (pp. 382-383):               "With regard to the second contention, namely,               that the High Court had no power to  eliminate               the  names of candidates who had secured  less               than  600  marks in the  aggregate  after  the               viva-voce  test, reference has to be  made  to               Rules  17  and 18 of the Rules  which  provide               that  the Selection Committee shall  call  for               viva-voce  test only such candidates  who  are               qualified  at the written test as provided  in               the Appendix and that the Selection  Committee               shall prepare the list of candidates in  order               of merit after the viva-voce test. There is no               power reserved under rule 18 of the Rules  for               the High Court to fix its own minimum marks in               order to include candidates in the final list.               It  is stated in paragraph 7 of  the  counter-               affidavit  filed in Writ Petition No. 4363  of

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             1985 that the Selection Committee has inherent               power to select candidates who according to it               are  suitable for appointment  by  prescribing               the  minimum  marks which a  candidate  should               obtain  in the aggregate in order to get  into               the  Delhi Judicial Service. It is not  neces-               sary  to  consider in this  case  whether  any               other  reason such as character,  antecedents,               physical fitness which may disqualify a candi-               date  from being appointed to the Delhi  Judi-               cial  Service may be taken into  consideration               by the Selection Committee while preparing the               final list. But on going through the Rules, we               are of the view that no fresh disqualification               or bar may be created by the High Court or the               Selection Committee merely on the basis of the               marks  obtained  at  the  examination  because               clause  (6)  of the Appendix itself  has  laid               down  the  minimum  marks  which  a  candidate               should obtain in the written papers or in  the               aggregate  in  order  to  qualify  himself  to               become  a member of the Judicial service.  The               prescription  of the minimum of 600  marks  in               the aggregate by the Selection Committee as an               additional requirement which the candidate has               to satisfy amounts to an amendment of what  is               prescribed by clause (6) of the Appendix.  The               question  whether a candidate included in  the               final  list  prepared  and  forwarded  by  the               Selection Committee may be appointed or not is               a  matter to be considered by  the  appointing               authority.  In the instant case  the  decision               that a candidate should have sec-               1104               ured  a minimum of 600 marks in the  aggregate               in  order to be included in the  final  select               list  is not even taken by the High Court  but               by the Selection Committee. Moreover, recruit-               ment of persons other than District Judges  to               the  Judicial Service is required to  be  made               under  Article  234  of  the  Constitution  in               accordance with the Rules made by the Governor               as provided therein, in consultation with  the               High  Court.  Article 235 which vests  in  the               High  Court  the  control  over  the  District               Courts and Courts subordinate thereto,  cannot               include the power of making rules with  regard               to recruitment of persons other than  District               Judges to the judicial service as it has  been               expressly  dealt  with in Article 234  of  the               Constitution.  We  are of the  view  that  the               Selection Committee has no power to  prescribe               the  minimum  marks which a  candidate  should               obtain  in  the aggregate different  from  the               minimum already prescribed by the Rules in its               Appendix. We are, therefore, of the view  that               the  exclusion of the names of certain  candi-               dates,  who had not secured 600 marks  in  the               aggregate  including  marks  obtained  at  the               viva-voce  test from the list  prepared  under               rule 18 of the Rules is not legal."     In the light of these decisions the conclusion is inevi- table  that the Commission in the instant case also  has  no power  to prescribe the minimum standard at  viva-voce  test for  determining the suitability of candidates for  appoint-

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ment as Munsifs.     It  was, however, urged by counsel for  the  respondents that  the principles enunciated by the aforesaid  two  deci- sions of this Court cannot be extended to the case on  hand. The counsel sought to derive support for their contention on rule  17.  Rule 17 provides that the Chief  Justice  or  any other Judge of the High Court nominated by the Chief Justice shall  represent the High Court and be present at the  viva- voce  test. He shall also advice the Commission on the  fit- ness of the candidates at the viva-voce test. The advice may relate  to the special qualities to be possessed  by  candi- dates  for Judicial Service. The Rule 17, however,  proceeds to  state  that such a Judge shall not  be  responsible  for selection of candidates. The contention for the  respondents was that a Judge of the High Court was present at the  viva- voce  test. He was an expert in the field. He was  primarily concerned with regard to fitness of candidates for  judicial service. He advised the Commission to determine the  minimum marks  to be secured at the viva-voce test.  The  Commission accepted the advice and determined the cut out      1105 marks in the viva-voce. It was also contended that the Judge could  advise as to fitness of candidates for  judicial  ap- pointment  and his advice could also relate to  the  minimum which  a candidate should secure in the viva-voce  test.  If such power is not conceded to the Judge, his presence at the interview as provided under rule 17 would totally be  unnec- essary.     We  are  not persuaded by this argument. That  does  not mean  that we are doubting the purpose of rule 17. The  pur- pose is undoubtedly laudable and indeed, it is in accordance with the observations of this Court in Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and Ors etc. etc., [19851 Supp. 1 SCR 657. There it was observed:-               "It  is therefore essential that  when  selec-               tions to the Judicial Service are being  made,               a sitting Judge of the High Court to be  nomi-               nated by the Chief Justice of the State should               be invited to participate in the interview  as               an  expert and since such sitting Judge  comes               as  an expert who, by reason of the fact  that               he  is  a sitting High Court Judge  knows  the               quality  and character of the  candidates  ap-               pearing for the interview, the advice given by               him  should  ordinarily  be  accepted,  unless               there  are strong and cogent reasons  for  not               accepting  such  advice and  such  strong  and               cogent reasons must be recorded in writing  by               the Chairman and members of the Public Service               Commission."     But the crux of the matter is whether the Judge  present at  the viva-voce test has the power to add anything to  the Rules of recruitment. He may advice the Commission as to the special  qualities required for judicial  appointments.  His advice may be in regard to the range of subjects in  respect of which the viva-voce shall be conducted. It may also cover the type and standard of questions to be put to  candidates; or  the  acceptance of the answers given  thereof.  But  his advice cannot run counter to the statutory Rules.     The Rules have been framed under the proviso to  Article 309  read with the Article 234 of the Constitution.  Article 234  requires  that the appointment of  persons  other  than District  Judge  to the Judicial Service of State  shall  be made by the Governor of the State. It shall be in accordance with  the  rules made by the Governor in that  behalf  after

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consultation with the State Service Commission and with  the State High Court. The Rules in question have been made after consultation  with the Commission and the State High  Court. The Commission 1106 which  has been constituted under the Rules must,  therefore faithfully  follow the Rules. It must select  candidates  in accordance  with the Rules. It cannot  prescribe  additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum  marks  to be secured at the viva-voce  test  would, therefore, be illegal and without authority.     In the result we allow the petition and quash the selec- tion  made  by the Orissa Public Service Commission  with  a direction to redo the select list on the basis of the aggre- gate marks obtained by the candidates in the written  exami- nation  and  at the viva-voce test and in the light  of  the observations  made. The list so prepared shall be  forwarded to the Government as required under rule 19 of the Rules for appointments  as  Munsifs. The persons who fall  within  the revised  list,  if they are already in service need  not  be disturbed.  Their inter-se seniority, may however, be  regu- lated as per the rankings in the revised list. In the circumstances, however, we make no order as to cost. P.S.S.                                              Petition allowed. 1107