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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 Singh Panta

JUDGMENT: J U D G M E N T WITH

CIVIL APPEAL NOS. 3377-3378 OF 2005 & SPECIAL LEAVE PETITION (C) NOS. 14140-14141 OF 2005

Dr. AR. Lakshmanan, J.

Mr. K.H. Siraj is the appellant in Civil appeal Nos. 2539- 2540 of 2005.  Aggrieved against the judgment and final order  dated 1.3.2005 passed by the High Court of Kerala in Writ  Appeal Nos. 1496 & 1584 of 2004 whereby the Division Bench  by its judgment and order allowed the appeals filed by the  respondent-High Court of Kerala, set aside the judgment of the  learned single Judge and held that the selections and  appointments made were regular in all respects. Mr. C.T. Sivanandan and Mr. Shahjahan M. are the  appellants in Civil appeal Nos. 3377-3378 of 2005.  Aggrieved  against the judgment dated 1.3.2005 in Writ appeal No. 1584 of  2004 and O.P. No. 6784 of 2002 of the High Court of Keraka,  they filed the above appeals by which the Division Bench set  aside the judgment of the learned single Judge. Special Leave Petition(c) Nos. 14140-14141 of 2005 were  filed by Mr. V.R. Manu Manaswini against the common  impugned judgment dated 1.3.2005 passed in W.A.No.1497 of  2004 and W.A.No.1719 of 2004 whereby the Division Bench by  its final order allowed Writ Appeal No. 1497 of 2004 filed by the  High Court of Keralal and dismissed Writ Appeal No. 1719 of  2004 filed by the appellant herein \026 Mr. V.R. Manu Manaswini.  The short facts are as follows: The High Court of Kerala by its Notification dated  26.3.2001 invited applications for the appointment to the post  of Munsiff-Magistrate in the Kerala Judicial Services in the pay  scale of Rs.2500-4000.  The relevant part of the Notification  reads as under: THE HIGH COURT OF KERALA No. B4-14037/2001                                   Kochi 682 031                                                             Dated:26.3.2001 NOTIFICATION Applications are invited in the prescribed form from  qualified candidates for appointment to the post of Munsif- Magistrate in the Kerala Judicial Service.

1.      Scale of pay of the post \026 Rs.2500-4000 (under  revision) 2.      Probable number of  vacancies \026 70

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(53 candidates to be selected by direct recruitment  from the Bar and 17 by recruited by transfer) 3.      Methods of  recruitment: (i)     Direct recruitment from the Bar (ii)    Recruitment by transfer. Selection shall be after holding examinations, written and  oral.  The written examination shall be held on 11th and  12th August, 2001.

4.      Qualifications: (i)     Direct recruitment\005\005\005\005\005\005\005\005\005\005\005\005. (ii)    Recruitment by transfer\005\005\005\005\005\005\005\005\005. Note:-\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.. Feeder categories of offers for recruitment by  transfer: \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005.. (i)\005\005\005\005\005 (ii)\005\005\005\005.. (iii)\005\005\005\005.. (iv)\005\005\005\005.. (v)\005\005\005\005\005 (vi)\005\005\005\005.. (vii)\005\005\005\005.. (viii)\005\005\005\005.

5.      Age limit \026 (i) Direct recruitment - \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. Note.  (1)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005 (2)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005. (ii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005 \005

6.      Reservation of appointment \026 The Rules relating to  reservation of appointment for Backward Classes,  Scheduled Castes and Scheduled Tribes contained in  Part II of the Kerala State and Subordinate Services  Rules, 1958 (Rules 14 to 17) shall apply to  appointment by direct recruitment.

7.      Training\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005.. 8.      Probation\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005.. 9.      Tests\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005. 10.     Scheme of written and oral examinations \026 (1)     Written examination \026 The written  examination shall consist of the following  four papers carrying a maximum of 100  marks each.  The time for each paper shall  be two and a half hours. Paper I - \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. Paper II -  \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. Paper III\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.. Paper IV\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005. (2)     Oral Examination : - There shall be an oral  examination carrying a maximum of 50  marks for deciding the candidate’s general  knowledge, grasp of general principles of

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law, analytical ability and suitability for  appointment as Munsif-Magistrate.

(3)     Only candidates who secure not less than  35 per cent marks in each of the papers of  the written examination with an overall  minimum of 45 per cent of the total marks  of written examination and 30 per cent of  the marks for the oral examination shall  be eligible for appointment provided that  the minimum marks required for pass in  each paper of the written examination  shall be 30 per cent with an overall  minimum of 35 per cent of the total marks  for candidates belonging to Scheduled  Castes/Scheduled Tribes.  Fraction of half  or more than half shall be regarded as full  mark and less than half shall be ignored.

(4)     No candidate who has not secured the  minimum marks prescribed above in the  written examination shall be called for oral  examination. (5)     The marks secured by the candidates at  the oral examination shall be added to the  total marks secured by them at the written  examination and the names of all those  candidates shall be arranged in the  respective lists on the basis of the total  marks secured by them.

11.     Application form and application fee -  \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005 .   12.     Certificates/Documents -  \005\005\005\005\005\005\005\005\005\005\005\005\005\005.. (i)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005.. (ii)\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005.

"Certified that Shri/Smt. \005\005\005\005\005\005\005\005\005\005\005..has been  actually practising an an \005\005Court since and that his/her  character and conduct are/were

Station:                                Signature,Name & Designation Date:                           of the presiding Officer"

Pursuant to the above Notification, the  appellants/petitioners herein submitted their applications.   Written test was held in the month of August, 2001.  Thereafter  they were called for an interview to appear before the Board  consisting of five Hon’ble Judges including Hon’ble the Chief  Justice on 17.12.2001.  The select list was issued by the High  Court on 7.2.2002.  The appellants filed writ petition praying  for quashing the select list insofar as it is contrary to the  principles and Rules relating to reservations.  They also moved  an application for stay to stay the training and appointment of  candidates from the select list till the disposal of the writ  petition.  The learned single Judge passed an order on  16.1.2004 in I.A.No. 425 of 2004 to the effect that the  appointments, if any, will be subject to the result of the original

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petition.  On 23.2.2004, the High Court commences the  training of the last 20 candidates in the select list.  The learned  single Judge, by his order dated 6.8.2004, disposed of the  original petition declaring that the decision to fill up the  candidates appearing in S.Nos. 60,62,64,66,68 and 70 in the  select list from open merit candidates as illegal and  consequently restrained respondent Nos. 1 & 2 (High Court of  Kerala and State of Kerala) from filling up the above posts from  the select list. The High Court preferred the appeal being W.A.No.1496 of  2004 on 9.8.2004 against the judgment of the learned single  Judge.  The Division Bench by its interim order dated  12.8.2004 admitted the appeal and stayed the order of the  learned single Judge.  The appellant preferred Special Leave  Petition(c) No.17535 of 2004 before this Court against the  interim order dated 12.8.2004.  This Court on 25.8.2004 issued  notice and stayed the operation of the impugned order.  This  Court disposed of the above special leave petition on 1.11.2004  after recording the statement of the counsel for the  respondents.  The order reads thus:

"Delay condoned.

The petitioner herein has agreed that by the refusal to  grant interim order by the appellate Bench of the Kerala  High Court, he has filed this SLP after issuance of notice.   Respondents are represented herein.  We find that the  learned counsel appearing for the contesting respondents  Mr. C.S. Vaidyanathan, learned senior counsel and Mr.  Krishnana Venugopal, learned counsel have stated before  this Court that in the event of writ appeal being allowed,  their appointment being quashed and they will not claim  equity on the ground that they have jointed the service  earlier.

       Recording the above statement, we think  it is not necessary to entertain this petition  hence this special leave petition is disposed of.

       Sd/-                                            Sd/- (Ganga Thakur)                      (Prem Prakash) PS to Registrar                      Court Master

The Division Bench of the High Court by its final  judgment dated 1.3.2005 allowed the appeal filed by the High  court, set aside the judgment of the learned single Judge and  held that the selections and appointments made were regular in  all respects.

We heard Mr. L. Nageswara Rao, learned senior counsel  ably assisted by Mr. Haris Beeran, Mr. Radha Shyam Jena, Mr.  E.M.S. Anam and Mr. C.K. Sasi, learned counsel appearing for  the appellants.  We also heard  Mr. T.L.V. Iyer, learned senior  counsel ably assisted by Mr. Vipin Nair, Mr. P.B. Sursh, Mr.  V.K. Biju, learned counsel and Mr. K.R. Sasiprabhu, learned  counsel, Mr. P.V. Dinesh, learned counsel  and Mr. U.U. Lalit,  learned senior counsel ably assisted by Mr. Roy Abraham for  the respondents. The arguments of Mr. L.N. Rao, learned senior counsel,  was adopted by counsel appearing for the other appellants and  the arguments of Mr. T.L.V. Iyer, learned senior counsel, was  adopted by the other counsel appearing for the respondents. Mr. Siraj, appellant in C.A.Nos. 2539-2540 of 2005

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belongs to Muslim Community (OBC), the first appellant in  C.A.Nos. 3377-3378 of 2005 is Scheduled Caste candidate  and the second appellant belongs to Muslim  Community(OBC) and the third appellant belongs to Hindu  Nadar Community (OBC).  The petitioner in S.L.P.)Nos.  14140-14141 of 2005 is a Scheduled Caste candidate.   Kerala Judicial Service Rules, 1991 (hereinafter referred  to as "the Rules")  were made in exercise of the powers  conferred by Articles 234 and 235 of the Constitution of India  and sub-section(1) of Section 2 of the Kerala Public Services  Act, 1968 (19 of 1968).  Rule 7 of the Rules reads thus: "7.  Preparation of lists of approved candidates  and reservation of appointments \026  (1) The High Court of Kerala shall, from  time to time, hold examinations, written  and oral, after notifying the probable  number of vacancies likely to be filled up  and prepare a list of candidates  considered suitable for appointment to  category 2.  The list shall be prepared  after following such procedure as the High  Court deems fit and by following the rules  relating to reservation of appointments  contained in rules 14 to 17 of Part II of the  Kerala State and Subordinate Services  Rules, 1958."

(2)     The list consisting of not more than  double the number of probable  vacancies notified shall be forwarded  for the approval of the Governor.  The  list approved by the Governor shall  come into force from the date of the  approval and shall remain in force for a  period of two years or until a fresh  approved list is prepared, whichever is  earlier."

Sub-clause (1) of Rule 10 of the Rules reads as  under:   Qualifications \026    (1)     No Advocate shall be eligible for  appointment to category 2 unless he is  having practice at the Bar for a period  of not less than five years and has not  completed 35 years of age on the first  day of January of the year in which  applications for appointment are  invited.

Rules 14 to 17 of the Kerala State and  Subordinate Services Rules, 1958 read as  under: "(14) Scheduled Castes and Scheduled Tribes  mean the Castes and Tribes declared as such  by the President of India under Article 341(1)  and 342(1) of the Constitution of India and  other Backward Classes mean the classes  declared as such by the State Government  under Article 16(4) of the Constitution of India.   Lists of such castes, tribes and classes, so  declared are included as Lists I, II and III  respectively in the Schedule to this part.

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(15)    "Service" means a group of persons  classified by the State Government as a  State or a Subordinate service as the  case may be.

Note :  Where the context so requires, ’service’  means the period during which a person holds  a post or a lien on a post or is member of a  service as above defined.

(16)    "Special Rules" shall mean the rules in  Part III applicable to each service or  class of service.

(17)    The Kerala Civil Services (Classification,  Control and Appeal) Rules, the rules  regulating the pay of the services issued  from time to time, the Government  servants’ Conduct Rules, the  Travancore Service Regulations, the  Cochin Service Regulations, the  Fundamental Rules, the Madras leave  Rules, 1933, Kerala Service Rules and  the pension rules for the time being in  force shall, in so far as they may be  applicable and except to the extent  expressly provided in those rules govern  members of every service in the matter  of their pay, allowances, leave, leave  salary, pension and other conditions of  service:

              Provided that the said rules and  regulations shall in their applications to  the members of the Secretariat Staff of  the Governor be construed as if the  functions of the State Government under  those rules and regulations were the  functions of the Governor."

INTERPRETATION OF THE RULES

According to Mr. L.N. Rao, Rule 7 of the Rules have  to be interpreted in the following manner: High Court of Kerala shall hold examination written  and oral and prepare a list of suitable candidates for  appointment to category 2.  The wording written and oral  means the suitability of a candidate eligible for  appointment has to be considered by the aggregate marks  of written examination and oral examination.  The  legislative intention is to take the aggregate marks of both  written examination and oral examination to decide the  suitability of the candidate.  List has to be prepared after  following such a procedure as the High Court deems fit.   Procedure means the manner of doing things and not  substantive.  Fixing a separate minimum cut off marks is  not procedural which is an additional eligibility for the  post which is contrary to rule 7.  Rule 7 is silent as to the  fixation of cut off marks which is for relaxation from time  to time for the purpose of reservation.  The wording  procedure deems fit does not confer any power on the  selection Authority so as to take away a right provided  elsewhere, reported in Raja Ram Mahadev Parjapee’s

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case, 1962 Supp (1)SCR 739 at 749  followed in Babau  Nagar & Ors. Vs. Sree Synthetic reported in 1984 Supp  SCC 128.   The selection authority cannot follow any  procedure not in violations of the Rule of reservation.       Clause 10 of the Notification deals with the Scheme  of written and oral examination.  The marks prescribed  for written examination is 400 and 50 for oral  examination.  The written examination consists of four  papers of 100 marks each.  For each paper two and a half  hours duration was prescribed. As per clause 10(3) of the Notification, the  candidates who secure not less than 35% marks of each  of the papers of the written examination with an overall  minimum of 45% of the written examination and 30% of  the marks for the oral examination shall be eligible for  appointment provided that the minimum marks required  for pass in each paper of the written examination shall be  35% with an overall minimum of 35% of the total marks  for candidates belonging to SCs/STs.  Fraction of half or  more than half shall be regarded as full marks and less  than half shall be ignored. Clause 10(4) of the Notification stipulates that no  candidate who has not secured the minimum marks  prescribed above in the written examination shall be  called for oral examination.  Clause 10(5) of the  Notification states that the marks secured by the  candidates at the oral examination shall be added to the  total marks secured by them at the written examination  and the names of all those candidates shall be arranged  in the respective lists on the basis of the total marks  secured by them. The appellant in C.A.Nos. 2539-2540 of 2005 had  obtained a total of 213 marks out of which 200 marks in  written examination and 13 marks in oral examination.   The first appellant in C.A.Nos. 3377-3378 of 2005 who  had secured a total of 162 marks out of which 150 marks  in written examination and 12 marks in oral examination.   The second appellant who had secured a total of 208  marks out of which 195 marks in written examination  and 13 marks in oral examination.  The third appellant  who had secured a total of 259 marks out of which 245  marks in written examination and 14 marks in oral  examination. The petitioner in S.L.P.) Nos. 14140-14141 of 2005  had obtained a total of 321.5 marks out of which 217.5  marks in written examination and 14 marks in oral  examination. Besides the fact that the appellants are reserved  category candidates they were thrown out from the zone  of consideration on the ground that they had not secured  30% marks in interview.  The respondents and other  candidates who had been selected only because they had  got 30% marks in interview irrespective of the facts that  the total marks of those candidates are less than the  marks obtained by the appellants. The preparation of the Select List was challenged on  the ground that Rules 14 to 17 of KSSSR Part II had not  been complied since the selection was against the Rules of  reservation and on the ground of illegal prescription of cut  off marks in oral examination made by the first  respondent, the selection agency without statutory  sanction. More than 1800 candidates have applied of which  1292 applicants were found valid.  118 candidates have  passed in written examination of which 88 were passed in

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the interview and select list was prepared among these 88  candidates.    No supplementary list was prepared by the first  respondent with respect to the reserved category  candidates.  The reserved category candidates who scored  sufficient marks to be considered in the merit list were  placed in the reserved quota.  They have to be placed in  the merit list.  The reserved vacancies are filled up from  the open merit candidates. According to Mr. L.N. Rao, the following questions  which are posed for the consideration of this Court in  these appeals/petitions are as under: 1.      In the absence of specific legislative  mandate under rule 7(i) of the Kerala  Judicial Service Rules, 1991 prescribing  cut off marks in oral examination whether  the fixing of separate minimum cut off  marks in the interview of further  elimination of candidates after a  comprehensive written test touching the  required subjects in detail in violating of  the statute. 2.      Whether the select list (Annexure P-2) is  prepared  in violation of the principles of  reservation as provided under Rules 14 to  17 of the Kerala State Subordinate Service  Rules, 1958? 3.      Whether the first respondent-High Court  has the power to decide the reserved post  are to be de-reserved to carry forwarded in  the absence of a decision taken by the  government in this regard? 4.      Whether Annexure P-2 List is liable to be  strike off at its entirely?

Adverting to the first question, Mr. Rao submitted as  follows: 1.      Annexure P-1 is the Notification dated 26.3.2001  in which Rule 10(3) provides that only candidates  who secure not less than 35% marks in each of  the papers of the written examination with an  overall minimum of 45 % of the total marks of  written examination and 30% of the marks for  the oral examination shall be eligible for  appointment provided that the minimum marks  required for pass in each paper of the written  examination shall be 30% with an overall  minimum of 35% of the total marks for  candidates belonging to scheduled  castes/scheduled tribes.  Fraction of half or more  than half shall be regarded as full mark and less  than half shall be ignored. 2.      Method of conducting written test is a well  known method for screening the candidates for  the purpose of interview.  Interview was  conducted for 118 candidates who had passed in  the written examination out of which 9 Muslim  candidates and 4 SC/ST candidates and one  Nadar Community candidate participated. For the above proposition, learned senior counsel placed  reliance on the following judgments of this Court: 1.      P.K. Ramachandra Iyer & Ors. Vs. Union of India &  Ors., (1984) 2 SCC 141                           2.      Umesh Chandra Shukla vs. Union of India, (1985) 3  SCC 72

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3.      Durga Charan Misra vs. State of Orissa,  (1987) 4 SCC  469. 4.      Dr. Krishna Chandra Sahu & Ors. vs. State of Orissa &  Ors. , (1995) 6 SCC 1 5.      Praveen Singh vs. State of Punjab, (2000) 8 SCC 633 6.      State of Punjab vs. Manjith Singh,  (2003) 2 SCC 559 7.      Inder Prakash Gupta vs. State of J & K & Ors., (2004)  6 SCC 786 In P.K. Ramachandra Iyer & Ors. Vs. Union of India &  Ors. (supra),  this Court held as under: "Once an additional qualification of obtaining  minimum marks at the viva voce test is  adhered to, a candidate who may figure high  up in the merit list was likely to be rejected on  the ground that he has not obtained minimum  qualifying marks at the viva voce test\005..This  was impermissible and contrary to the Rules  and the merit list prepared in contravention of  the Rules cannot be sustained."

In Umesh Chanda Shukla vs. Union of India (supra), it has  been held that the Selection Committee had 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.  In the instant case,  the Rule is silent as to the fixation of cut off marks in oral  examination.  Prescription of cut off marks in oral examination  for the purpose of elimination following a comprehensive  written examination is bad so far it adversely affects  meritorious candidates irrespective of the fact of reservation. Durga Charan Misra vs. State of Orissa (supra) was a  case relating to the selection and appointment of Munsiffs in  the State of Orissa, where this Court held that prescribing of  minimum marks for viva voce test could not be justified as the  Rules do not prescribe minimum marks for viva voce test.  It  was also observed by this Court in paragraph 12 of the said  judgment that, "in the light of these discussions, the  conclusion is inevitable 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 candidate." In Dr. Krishna Chandra Sahu & Ors. Vs. State of Orissa  & Ors., (supra), this Court observed as under: "The members of the Selection Board or for that  matter any other Selection Committee, do not have  the jurisdiction to lay down the criteria for selection  unless they are authorised specifically in that  regard by the rules made under Art. 309.  It is  basically the function of the rule making authority  to provide for the basis for selection."

 So in the instant case, Rule 7 of the Kerala Judicial  Service Rules did not provide selection criteria for elimination  of the candidate by oral examination after a comprehensive  written examination.  The first respondent has no inherent  power to prescribe such a criteria for selection since the same  is arbitrary and illegal.  In this context, the decision of this Court in Praveen  Singh vs. State of Punjab, (supra) is very relevant.  In that  case, the Public Service Commission invited applications for  appointment to the post of Block Development Officer and  Panchayat Officer.  The Public Service Commission conducted  a qualifying written examination for 400 marks of 4 papers  and thereafter the persons who qualified in the written test

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was called for an interview of 50 marks and the merit list was  prepared on account of the viva voce test only.  The qualifying  test becomes meaningless and the propriety of selection only  on the basis of the interview was challenged.  This Court held  that viva voce test as sole basis for selection is not proper.  In  the instant case, only 118 candidates were got qualified out of  1292 candidates appeared in the written examination.  The  written examination consists of 24 legal subjects divided into  four papers of 100 marks each.  For each paper, two and a  half hours examination was conducted.  A comprehensive  written examination touching the required subjects in detail  which assess the candidate’s general knowledge, intellectual  capacity, legal learning and legal grasping.  Thereafter  conducted an oral examination fixing cut off marks for further  elimination of the candidates including backward classes,  scheduled castes and scheduled tribes.  So the mode of  selection procedure is unfair and illegal so far it considers the  interview which figure up 11.1% of the total marks is the sole  decisive factor.  Such consideration makes the written test  meaningless. Mr. L.N. Rao illustrated the gravity of the situation as  follows: A candidate who secures 350 marks in the written  examination and obtains 14 marks in the oral examination  taken out from the zone of the consideration where as the  candidate secures 180 marks in the written examination and  15 marks in the oral examination find a place in the merit list.   In the present system, the latter having 43% of marks will  outweigh the former having 65% of  marks on account of the  illegal fixation of separate minimum cut off marks in the oral  examination.  So, the arbitrary approach of the first  respondent prescribed additional qualification with regard to  the scheme of selection made the written test meaningless and  thereby vitiated the whole process unfair and illegal. In Praveen Singh vs. State of Punjab & Ors., (supra),  this Court held that for appointments viva voce test as sole  basis not proper.  In paragraph 9, this Court observed that the  "interview should not" be the only method of assessment of the  merits of candidates.  The vice of manipulation cannot be  rules out in viva voce test.  Though interview undoubtedly is a  significant factor in the matter of appointments.  It plays a  strategic role but it also allows creeping in of a lacuna  rendering the appointments illegitimate.  Obviously, it is an  important  factor but ought not to be the sole guiding factor  since reliance thereon only may lead to a "sabotage of the  purity of the proceedings".   It was also observed that the freedom for appointing  authorities to adopt any procedure for selection cannot be at  the cost of fair play, god conscience and equity. In the case of State of Punjab vs. Manjith Singh  (supra), Public Service Commission’s power to shortlist  candidates for appointment has been considered.  It has been  decided that commission can shortlist candidates.  But not by  fixing minimum qualifying marks.  Commission cannot impose  any extra qualification/standard for maintaining efficient in  services. In Indre Prakash Gupta vs. State of J & K & Ors.  (supra), this Court while dealing with the J & K Public Service  Commission (Conduct of Business and Procedure) Rules, 1980  vis-‘-vis J & K Medical Education (Gazetted) Services  Recruitment Rules, 1979 held as follows: "The Public Service Commission is a body  created under the Constitution.  Each State  constitutes its own Public Commission to meet the  constitutional requirement for the purpose of

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discharging its duties under the Constitution.   Appointment to service in a State must be in  consonance with the constitutional provisions and  in conformity with the autonomy and freedom of  executive action.  Section 133 of the Constitution  imposes duty upon the State to conduct  examination for appointment to the services of the  State.  The Public Service Commission is also  required to be consulted on the matters enumerated  under Section 133.  While going through the  selection process the Commission, however, must  scrupulously follow the statutory Rules operating in  the field.  It may be that for certain purposes, for  example, for the purpose of shortlisting; it can lay  down its own procedure.  The Commission,  however, must lay down the procedure strictly in  consonance with the statutory Rules.  It cannot take  any action which per se would be violative of the  statutory Rules or makes the same inoperative for  all intent and purport.  Even for the purpose of  shortlisting, the Commission cannot fix any kind of  cut off marks."

whether the fixing of separate minimum cut off marks in  the interview of further elimination of candidates after a  comprehensive written test touching the required subjects  in detail is violating of the statute.

Mr. L.N. Rao submitted that in the present case, apart  from the candidates belonging to backward classes, SC/ST  candidates are also disqualified for selection by fixing 30%  minimum cut off marks for the oral examination which is  arbitrary because unequal are treated alike.  Clause 10(3) of  the Notification did not contemplate 30% cut off marks in  interview for SC/ST candidates.  Moreover, the selection  agency has no inherent power to prescribe selection criteria.   The first respondent has no authority to override the legislative  intention.  The Legislature did not provide criteria for selection  by exclusion of candidates by oral examination.  Rule 7 of the  Kerala Judicial Service Rules did not provide a selection  criteria based on the exclusion of candidates on account of not  securing a separate minimum cut off marks in the oral  examination.  Hence, the system followed by the High Court is  in clear violation of the   Rules and the principles laid down by  this Court in catena of decisions and also against the norms  suggested by Shetty Commission with regard to the Judicial  Service appointments.  Whether there is violation of Rules of reservation as  contemplated under Rules 14 to 17 of the KSSSR 1958 For this proposition, the following aspects are to be  considered: 1.      Clause 6 of the Notification clearly states that  "the Rules relating to reservation for  appointment for backward classes, scheduled  castes and scheduled tribes contained in Part II  of the KSSSR, 1958 (Rules 14-17) shall apply to  appointment by direct recruitment."  It is in  clear terms the first respondent admitted that  the Rules of reservation shall be followed.   Thereby the first respondent is estopped from  denying the fact that the Rules of reservation is  not necessarily be followed in the event of  sufficient number of reservation, candidates  were got qualified in the selection process.   Where a statute requires a particular formality

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to be complied with there is no estoppel where  such statutory requirement is violated.  In the  present system, there is every chance of illegal  elimination.  In order to give effect to the Rules  or reservation, there should be some relaxation  in selection criteria.  This aspect has been  accepted by this Court in a number of decisions. 2.      The SC/ST community is entitled to 10%  reservation and Muslim community is entitled to  12% reservation under the provisions of KSSSR  and Rules 14 to 17 of the same are applicable in  the instant case.  According to the Select List  (Annexure P-2), only five Muslim candidates and  1 SC/ST candidate were appointed.  The  remaining candidates in the list can be  appointed in merit or reservation if followed the  Rules in strict sense.  The reservation roster  provided in KSSSR for Muslim candidates are  6,16,26,30,46,56,66,76,80,86 and 96. 3.      "Backward classes a rational classification  recognized by our Constitution, therefore,  differential treatment in standards of selection  are within the concept of equality." (Para 44 in  State of Kerala vs. N.M. Thomas, AIR 1976 SC  490).  The reservation rosters are to be filled up  from the reservation candidates alone, that is  reserved for their community (R.K.Sabharwal  vs. State of Punjab & Ors., (1995) 2 SCC 745).   The reservation rosters are to be strictly followed  as per the Rules.  No deviation is permissible  (Union of India vs. Virpal Singh,  AIR 1996 SC  448).  This Court held that candidates of  reserved category selected on their own merit are  not to be counted as reserved category  candidates.  A reserved candidate comes in the  merit list is to be considered in merit rather than  reservation. 4.      82nd Constitution Amendment (2000) provides  that nothing in Article 335 shall prevent the  State from making any provision in favour of the  members of the Scheduled Castes and  Scheduled Tribes for relaxation in qualifying  marks with respect to  examination/job/promotion.  So there should be  relaxation in selection criteria with respect to  reserved candidates.  The non-creamy layer  section of the Muslim community is socially and  educationally most backward.  They cannot be  equated with a high pedestal than the scheduled  castes and scheduled tribes.  Backward class is  a caste within the ambit of Article 15(4) and  Article 16(4).  So, the non-creamy layer section  of the Muslim community is allotted 12%  reservation by the State of Kerala. 5.      In order to fill up reserved quota, the inter se  merit of the reserved candidates has to be taken  into account.   In State of Andhra Pradesh vs.  Vijaya Kumar, AIR 1995 SC 1648, this Court  held that the reservation is permissible under  the Constitution and that cannot be whittled  down in any manner.  So, the reservation is the  policy of the State and for which Rules 14-17 of   KSSSR  are provided for protecting the  constitutional mandate under Art.15. 6.      What is meant by reservation and the effect of

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reservation is much discussed in Ajith Singh &  Ors. Vs. State of Punjab & Ors., AIR 1999 SC  2471.  In paragraph 38, this Court held as  under: "It must be noted that whenever a  reserved candidate goes for selection at  the initial level (say level 1) he is not going  through the normal process but gets  appointment to a post reserved for his  group.  That is what is meant by  reservation." That is the effect of  reservation."

                      So, the reservation is a legally  accepted aspect.  Therefore, in the case of  reservation of candidates, there should be  relaxation in the selection procedure.  In the  present case, the first respondent did not prepare  a supplementary list consisting the names of the  candidates in reservation quota.  For the  compliance of Rules 14 to 17 of KSSSR, there  should be a supplementary list as per Kerala  Public Service Commission Rules of  Procedure  Rules 4(iv) and 12.  So supplementary list of  candidates coming under the reserved categories  has to be prepared and the same is to be  considered as part of the rank list for the purpose  of filling up of reserved candidates.  Articles 15(4)  and 16(4) mandate maximum possible reservation  shall be given to socially educationally backward  classes including Scheduled castes and scheduled  tribes in order to bring them in the main stream.            (7) The Division Bench without any factual  foundation relied on the decision of this Court in  State of Bihar vs. Bal Mukund Shah, (2004) 4  SCC 640.  In that case, this Court discussed the  legislative competence of the State Government  under Art.309.  It was held that legislation for  reservation in Judicial appointments can only be  made after consultation with the High Court.  In  that case, Bihar Government made a legislation  prescribing 50% posts of District Judges under  reservation quota without consulting the High  Court.  In the instant case, the High Court has no  case that the reservation is not applicable.   Judicial Service Rules of 1991 is made in  consultation with the High Court under Art. 234 of  the Constitution of India.  (8) The learned single Judge is of the view that the  Select List (Ann. P-2) can be interfered with only to  the extent that the decision to fill up S.Nos. 60,62,  64, 66, 70 which are reserved posts from the open  merit candidates.  The learned single Judge has  observed in paragraph 10 of his judgment that ,  "But under the pretext of shortlisting many  qualified candidates were irregularly and illegally  taken out from the zone of consideration for the  reason that they had not obtained qualifying  marks in the total examination.  Annexure P-2  (Select List) published by the High Court is in clear  violation of the provisions of the Rules. So, it is  very clear that the procedure adopted by the first  respondent \026 High Court made the written test  meaningless.  It can be seen that the Annexure P-2  list is prepared not as per the merit and rules of

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reservation since the open merit candidates are  arranged in the reservation quota.  The reservation  candidates who come out in merit also placed in  the reserved quota instead of placing them in the  merit list.  That is against the dictum laid down in  R.K. Sabharwal’s case(supra).  The  illegality  strikes at the root of appointment cannot be  validated.  So, it is for the interest of justice, equity  and good conscience the entire list is to be  quashed and the same is to be re-arranged in the  order of merit considering the aggregate marks  secured by the candidate in the written as well as  oral examination  strictly following Rules 14 to 17  of the KSSSR to secure reservation under Art.  15(4) of the Constitution of India.  The procedure  adopted by the first respondent is not legally valid  since statutory requirements have been violated. ESTOPPEL It is submitted by Mr. L.N. Rao that estoppel is not  available to the respondents inasmuch as the Division  Bench itself while allowing the appeal of the respondent,  specially rejecting the contentions of plea of estoppel in  paras 47 and 48 of the impugned judgment.  According to  Mr. Rao, none of the respondents before this Court has  neither challenged the said findings nor filed any cros- appeal in this regard.  He would, therefore, submit that it  is impermissible to the respondent to take the plea of  estoppel where they themselves have waived of their right  to file cross appeal challenging the said findings in para  48 of the impugned judgment.  He would further submit  that there is no plea of estoppel against the violation of  statutory rules.  Similarly there cannot be any plea of  estoppel against the Constitution.  It is submitted that the  appellants/petitioners have approached this Court  against the violation of their fundamental right also being  unequal or treated alike by fixing equal cut off marks for  all candidates thereby violating Arts. 14 & 16 of the  Constitution of India.  For this proposition, Mr. Rao relied  on a Constitution Bench decision of this  Court in Olga  Tellis & Ors. Vs. Bombay Municipal Corporation, AIR  1986 SC 180 in which this Court held that there can be  no estoppel against Constitution and that the  Constitution is not only the paramount law of the land  but it is the source and sustenance of all laws.  In this  regard, he invited our attention to paragraphs 28 and 29  of the above decision. Concluding his elaborate submissions, Mr. Rao  submitted that the prayer of the appellants/petitioners is  not to quash the select list published by the High Court in  its entirety and that the select list may be redone on the  basis of the aggregate marks obtained by the candidates  in the written and oral examination as envisaged in Rule  7(i).  It is submitted that by doing this only 5 or 6  candidates will be affected. Elaborating, Mr. Rao submitted that if this Court is  not inclined to redo the list as aforesaid, the case of the  appellants/petitioners before this Court be considered on  individual basis.  The appellants/petitioners are age  barred and will not be able to attempt another  examination.  It is stated that there are 50 vacancies  existing and so the interest of the appellants/petitioners  can be protected if this Court issues a direction to  accommodate the 5 appellants/petitioners before this  Court which will not cause any prejudice to any of the  respondents.

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Per contra, Mr. T.L.Vishwanatha Iyer, learned senior  counsel, appearing for the respondents made elaborate  submissions by way of reply to the arguments advanced  by Mr. Rao.  In regard to his main submissions made on  behalf of the appellants in challenge of the decision of the  Division Bench accepting the High Court’s appeal and  reversing the judgment of the learned single Judge, Mr.  T.L.Vishwanatha Iyer submitted that the selection in  question was pursuant to the Notification issued by the  High Court of Kerala on 26.3.2001 notifying 70 vacancies  of Munsif Magistrates to be filled up.  We have already  reproduced the Notification in paragraphs supra.  He  invited our attention to clause 10 of the Notification which  prescribed a scheme of written and oral examination to be  taken by the candidate.  The written examination was to  consist of four papers carrying 100 marks each, the  subjects for which the examinations were to be held being  specified in the Notification.  There was also to be an oral  examination carrying 50 marks for deciding the  candidate’s general knowledge, grasp of general principles  of law, analytical ability and suitability for appointment as  Munsif Magistrate.  Sub-clause 3 provides that only  candidates securing not less than 35% marks in each of  the four papers of the written examination with an overall  minimum of 45% of the total marks of the written  examination and 30% of the marks for the oral  examination shall be eligible for appointment.  There was  a relaxation of the marks in the written examination in  favour of candidates belonging to Scheduled castes and  Scheduled Tribes.  The rank list is to be prepared of the  eligible candidates, i.e. those who secure the minimum in  the written and oral examinations, as stated above,  adding together the marks of the written and oral  examinations.  The Notification itself stated that the  candidates belonging to the Scheduled Castes and  Scheduled Tribes will be given a pre-examination training.   This was done with a view to equip them for the  examination. It is pertinent to notice that Rules of 1991 were  formulated after the integration of the Civil and Criminal  wings of the Judiciary and formation of the cadre of  Munsif Magistrate at the entry point.  Two earlier  selections had been made in 1991 and 1998 in  accordance with the same procedure as laid down in the  Notification dated 26.3.2001 by prescribing the securing  of minimum marks in the written and oral examinations  as a condition of eligibility.  The same procedure was  followed in the impugned selection also. It is also pertinent to notice that the prescription of a  minimum mark for the oral examination as a condition of  eligibility for appointment was questioned in the High  Court by an aspirant by name Remani, by filing a writ  petition.  That writ petition was dismissed by a learned  single Judge in  1996(2) KLT 439, wherein the learned  single Judge upheld the prescription of a minimum mark  for the oral examination as valid and in accordance with  Rule 7 of the Rules.  This decision made on the judicial  side was binding on the administrative side of the High  Court and was followed in the subsequent selection in  1998 and in the impugned selection. The oral examination in this case was conducted by  the Chief Justice and four seniormost Judges, to whom  the marks in the written test were not available at the  time of the interview.  The Judges had to assess the  suitability of the candidates for selection as Munsif

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Magistrate, keeping in mind various factors.  The Judges  have awarded marks and found that the appellants have  not been able to secure even 30% marks which has been  prescribed as the minimum for eligibility. Mr. T.L.V. Iyer also pointed out that over 1200  candidates had taken the written examination and out of  them, a total of 118 secured the minimum marks  prescribed for the written examination.  These 118 were  interviewed by the five Judges including the Chief Justice.   Of these, 88 secured over 30% marks of the 50 marks  prescribed for the oral examination.  88 candidates who  were thus successful and eligible to be considered were  arranged in the order of merit following the rules of  reservation prescribed in Rules 14 to 17 of the KSSSR.   The list so prepared was forwarded to the Government for  appointment to 70 vacancies notified.   It was also stated that 88 eligible candidates  as  aforesaid contained 37 persons belonging to reserved  categories like other backward classes, Scheduled  Castes/Scheduled Tribes.  Of these, 8 persons got  appointed in the open  merit quota and the rest 29 got  appointed in the reservation quota.  70 persons  recommended to be appointed contained all these 37  candidates including  29 who got selected and ranked in  the reservation quota.  It may be mentioned that none of  the eligible candidates belonging to the reserved  categories failed to secure appointment and all of them  found a place in the list of 70 persons selected for the  appointment.   The select list so prepared in accordance with the  reservation Rules was forwarded to the Government for  approval under Rule 7(2) of the Rules.  Government  approved the same, after due scrutiny of all aspects and  all the 70 persons have been appointed as Munsif  Magistrates after undergoing the statutory training and  are now functioning as Munsif Magistrates. In this background, two questions raise by Mr. L.N.  Rao have to be considered.   1.      The prescription of minimum mark for the  oral examination as a condition of eligibility  for selection as Munsif Magistrate is not  authorized by Rule 7 of the Kerala Judicial  Service Rules, 1991; 2.      The select list has not been prepared in  accordance with Rules 14 to 17 of KSSR  1958. So far as the first submission is concerned, we have  already extracted Rule 7 in paragraph supra.  Rule 7 has  to be read in this background and High Court’s power  conferred under Rule 7 has to be adjudged in this basis.   The said Rule requires the High Court firstly to hold  examinations written and oral.  Secondly the mandate is  to prepare a select list of candidates suitable for  appointment as Munsif Magistrates.  The very use of the  word ’suitable’ gives the nature and extent of the power  conferred upon the High Court and the duty that it has to  perform in the matter of selection of candidates.  The High  Court alone knows what are the requirements of the  subordinate judiciary, what qualities the Judicial Officer  should possess both on the judicial side and on the  administrative side since the performance of duties as a  Munsif or in the higher categories of subordinate Judge.  Chief Judicial Magistrate or District Judge to which the  candidates may get promoted require administrative  abilities as well.  Since the High Court is the best Judge of

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what should be the proper mode of selection, Rule 7 has  left it to the High Court to follow such procedure as it  deems fit.  The High Court has to exercise its powers in  the light of the constitutional scheme so that the best  available talent, suitable for manning the judiciary may  get selected. What the High Court has done by the Notification  dated 26.3.2001 is to evolve a procedure to choose the  best available talent.  It cannot for a moment be stated  that prescription of minimum pass marks for the written  examination or for the oral examination is in any manner  irrelevant or not having any nexus to the object sought to  be achieved.  The merit of a candidate and his suitability  are always assessed with reference to his performance at  the  examination and it is a well accepted norm to  adjudge the merit and suitability of any candidate for any  service, whether it be the Public Service Commission  (I.A.S., I.A.F. etc.) or any other. Therefore,  the powers  conferred by Rule 7 fully justified the prescription of the  minimum eligibility condition in Rule 10 of the  Notification dated 26.3.2001.  The very concept of  examination envisaged by Rule 7 is a concept justifying  prescription of a minimum as bench mark for passing the  same.  In addition, further requirements are necessary for  assessment of suitability of the candidate and that is why  power is vested in a high powered body like High Court to  evolve its own procedure as it is the best Judge in the  matter.  It will not be proper in any other authority to  confine the High Court within any limits and it is,  therefore, that the evolution of the procedure has been left  to the High Court itself.  When a high powered  constitutional authority is left with such power and it has  evolved the procedure which is germane and best suited  to achieve the object, it is not proper to scuttle the same  as beyond its powers.  Reference in this connection may  be made to the decision of this Court in 2006(1) SCC 779  wherein an action of the Chief Justice of India was sought  to be questioned before the High Court and it was held to  be improper. The very scheme and amplitude of Rule 7 under  which the selection is made is sufficient answer to the  contention of the appellants.  Under the scheme of the  Indian Constitution, the High Court is vested with the  entire administration of the subordinate judiciary under  Arts. 233, 234 and 235 of the Constitution of India.  The  High Court is vested with the power to see that the high  traditions and standards of the judiciary are maintained  by the selection of proper persons to man the subordinate  judiciary. The place of the High Court in the matter of  administration of justice was very elaborately and  poignantly delineated by S.B.Majmudar,J., speaking for  the Constitution Bench in (2000) 4 SCC 640, said that  the very responsible and onerous duty is cast on the High  Court under the Constitutional scheme and it has been  given a prime and paramount position in this mater, with  the necessity of choosing the best available talent for  manning the subordinate judiciary.  The repercussions of  wrongful choice is also pointed out in the said judgment. It is significant to note that the  appellants/petitioners themselves have not challenged the  prescription of minimum cut off marks for the written  examination though if their contention is to be accepted,  the prescription of such minimum cut off will also be  equally invalid.  Their contention, in our view, is without

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any substance and merit.      In our opinion, the interview is the best mode of  assessing the suitability of a candidate for a particular  position.  While the written examination will testify the  candidates’ academic knowledge, the oral test alone can  bring out or disclose his overall intellectual and personal  qualities like alertness, resourcefulness, dependability,  capacity for discussion, ability to take decisions, qualities  of leadership etc. which are also essential for a judicial  officer. We may usefully refer to a decision of this Court  in  Sahkari Ganna Vikas Samiti Ltd. Vs. Mahabir Sugar  Mills (P) Ltd.,  (1981) 4 SCC 149 in which this Court  observed as under: "The object of any process of selection for  entry into a public service is to secure the best  and the most suitable person for the job,  avoiding patronage and favouritism.  Selection  based on merit, tested impartially and  objectively, is the essential foundation of any  useful and efficient public service.  So, open  competitive examination has come to be  accepted almost universally as the gateway to  public services.

The ideal in recruitment is to do away  with unfairness."

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.

A system of recruitment almost totally  dependent on assessment of a person’s  academic knowledge and skills, as distinct  from ability to deal with pressing problems of  economic and social development, with people,  and with novel situations cannot serve the  needs of today, much less of tomorrow\005\005.We  venture to suggest that out recruitment  procedures should be such that we can select  candidates who cannot only assimilate  knowledge and sift material to understand the  ramifications of a situation or a problem but  have the potential to develop an original or  innovative approach to the solution of  problems.

It is now well recognised that while a  written examination assesses a candidate’s  knowledge and intellectual ability, an interview  test is valuable to assess a candidate’s overall  intellectual and personal qualities.  While a  written examination has certain distinct  advantage over the interview-test there are yet  no written tests which can evaluate a  candidate’s initiative, alertness,  resourcefulness, dependableness,  cooperativeness, capacity for clear and logical  presentation, effectiveness in discussion,  effectiveness in meeting and dealing with  others, adaptability, judgment, ability to make  decision, ability to lead, intellectual and moral  integrity\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005\005\005\005\005\005\005\005\005.\005\005\005.. "

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"While we do feel that the marks allotted  for interview are on the high side and it may be  appropriate for the Government to re-examine  the question, we are unable to uphold the  contention that it was not within the power of  the Government to provide such high marks  for interview or that there was any arbitrary  exercise of power."

In  Mohan Kumar Singhania & Ors. Vs. Union of  India & Ors.,   (1992) suppl. 1 SCC 594 , S.Ratnavel  Pandian, J. speaking for the Bench, observed as under: "Hermer Finer in his textbook under the  caption The Theory and Practice of Modern  government states:

"The problem of selection for character is  still the pons asinorum of recruitment to the  public services everywhere.  The British Civil  Service experiments with the interview."

The purpose of viva voce test for the ICS  Examination in 1935 could be best understood  from the following extract of the Civil Service  Commission’s pamphlet:

"Viva Voce \026 the examination will be in  matters of general interest : it is intended to  test the candidate’s alertness, intelligence and  intellectual outlook.  The candidate will be  accorded an opportunity of furnishing the  record of his life and education."

"It is apposite, in this connection, to have  reference to an excerpt from the United Nations  Handbook on Civil Service Laws and Practice,  which reads thus:

"\005\005the written papers permit an  assessment of culture and intellectual  competence.  This interview permits an  assessment of qualities of character which  written papers ignore; it attempts to assess the  man himself and not his intellectual abilities."

"This Court in Lila Dhar vs. State of  Rajasthan,  (1984) 2 SCC 159 while  expressing the view about the importance and  significance of the two tests, namely, the  written and interview has observed thus:

"\005\005\005the written examination  assess  the man’s intellect and the interview test the  man himself and the ’the twain shall meet’ for  a proper selection."

       The qualities which a Judicial Officer would  possess are delineated by this Court in Delhi Bar  Association vs. Union of India & Ors., (2002) 10 SCC  159.  A Judicial Officer must, apart from academic  knowledge, have the capacity to communicate his  thoughts, he must be tactful, he must be diplomatic, he  must have a sense of humour, he must have the ability to  defuse situations, to control the examination of witnesses

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and also lengthy irrelevant arguments and the like.   Existence of such capacities can be brought out only in  an oral interview.  It is imperative that only persons with  a minimum of such capacities should be selected for the  judiciary as otherwise the standards would get diluted  and substandard stuff may be getting into the judiciary.   Acceptance of the contention of the appellants/petitioners  can even lead to a postulate that a candidate who scores  high in the written examination   but is totally inadequate  for the job as evident from the oral interview and gets 0  marks may still find it a place in the judiciary.  It will spell  disaster to the standards to be maintained by the  subordinate judiciary.  It is, therefore, the High Court has  set a bench mark for the oral interview, a bench mark  which is actually low as it requires 30% for a pass.  The  total marks for the interview are only 50 out of a total of  450.  The prescription is, therefore, kept to the bare  minimum and if a candidate fails to secure even this bare  minimum, it cannot be postulated that he is suitable for  the job of Munsif Magistrate, as assessed by five  experienced Judges of the High Court.   In this connection, reference may be made to the  decision in Manjeet Singh, UDC & Ors. Vs. Employees  State Insurance Corporation & Anr., (1990) 2 SCC 367  at 371 wherein the Rules did not prescribe any minimum  marks for the interview.  The advertisement for the job set  a minimum of 40% to the written test and without a  minimum for the interview.  However, candidates with  less than 40% at the interview were not selected.  The  selection was upheld by this Court relying on a judgment  of Punchhi,J in Rajesh Sood vs. Director-General,  Employees State Insurance Corporation, 1985 (2)  Service Law 699.  In Union of India & Anr. Vs. Amrik  Singh & Ors.,   (1994) 1 SCC 269, though there was no  specification in the statutory Rules regarding the  minimum length of service for promotion, such  prescription was laid by administrative instructions.  In  para 7, this Court said that the instructions so issued  were not inconsistent with the Rules.  Reference may also  be made to a decision of this Court in Jasbir Singh &  Ors. Vs. State of Punjab & Anr., (2002) 1 SCC 124, in  which the relevant Rules did not specify as to the relevant  date for considering the age qualification.  The  advertisement, however, fixed a cut off date, which was  contended to be illegal.  This Court held that the said  prescription was for the purpose of implementation of the  Rules regarding age.   We may now refer to few decisions cited by Mr.  T.L.V. Iyer, learned senior counsel appearing for the  respondents, in support of his contentions. In State of Haryana vs. Subash Chander Marwaha  & Ors. , 1974 (3) SCC 220, the Rules specified that a  candidate obtaining 45% marks was eligible for  appointment. However, the Government restricted the  appointments to candidates getting over 55%. Candidates  who had obtained less than 55% but over 45% challenged  the non-appointment despite existence of vacancies, on  the ground that all those got over 45% should have been  appointed. This was not accepted by this Court. It has been held  by this Court in Madhya Pradesh  Public Service Commission vs. Navnit Kumar Potdar &  Anr., 1994 (6) SCC 293 that in a selection based  interview, it was open to the Selecting Board to insist on a  higher qualification than that prescribed by the Rules. In  that case, five years’ experience was the prescribed

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qualification. But this Court held that there was nothing  wrong in confining the selection to candidates with  experience of 7 = years. Thus it is seen that apart from the amplitude of the  power under Rule 7 it is clearly open for the High Court to  prescribe bench marks for the written test and oral test in  order to achieve the purpose of getting the best available  talent.  There is nothing in the Rules barring such a  procedure from being adopted.  It may also be mentioned  that executive instructions can always supplement the  Rules which may not deal with every aspect of a matter.   Even assuming that Rule 7 did not prescribe any  particular minimum, it was open to the High Court to  supplement the Rule with a view to implement them by  prescribing relevant standards in the advertisement for  selection.  Reference may be made to the decision of this  Court in  State of Gujarat vs. Akhilesh C. Bhargav &  Ors. , (1987) 4 SCC 482.   We shall now advert to the decisions relied on by Mr.  L.N. Rao : 1.       P.K. Ramachandra Iyer & Ors. Vs. Union of  India & Ors., (supra)                    2.      Umesh Chandra Shukla vs. Union of India,  (supra)       3. Durga Charan Misra vs. State of Orissa,(supra) These decisions do not deal with a situation like  Rule 7.  Even otherwise, these decisions are totally  distinguishable as was virtually conceded by the  appellants/petitioners’ learned counsel as recorded by the  High Court in paragraph 27 of the judgment which reads  as under: "Before we examine the rest of the issues,  this could be a resting point, so as to take  notice of the reply made.  It has to be observed  that these points highlighted practically go  unanswered.  Of course, valiant effort had  been mad by Mr. Sudhkara Prasad, learned  counsel appearing for the respondent, to  salvage the situation.  He had to agree that the  decisions relied on by the learned Judge,  referred to earlier, may not apply on all fours.   But the submission is that substantial rights  cannot at all be circumscribed by a  prescription for adopting a procedure.  When  the Rule does not give power to the authority  to prescribe minimum cut off marks, the  discretion has to be understood as  circumscribed\005\005\005\005\005"

This apart, those cases deal with particular  situations based on interpretation of the Rules concerned  in those cases.  In Ramachandra Iyer’s case(supra), Rule  14 (paragraph 43 of the judgment) mandated that the  marks at the written test and the oral examination have  to be aggregated and the merit list prepared on the basis  of such aggregation of marks.  Therefore, the marks  obtained at the written test and the oral test were both  relevant whatever be the percentage, in the preparation of  the merit list.  Nevertheless, the examining Board  prescribed minimum for viva voce test and eliminated  those who failed to get the minimum.  Resultantly,  candidates who would have found a place in the rank list  based on the aggregate of the marks for the two tests  stood eliminated because they did not get the minimum in  the viva voce test.  This was contrary to Rule 14 and that

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was the reason why the prescription of minimum marks  for viva voce test was held invalid in Ramachandra Iyer’s  case(supra).  That this is the reason evident from a  reading of paragraph 44 of the judgment where, inter alia,  this Court observed as under: "Neither Rule 13 nor Rule 14 nor any  other Rule enables the ASRB to prescribe  minimum qualifying marks to be obtained by  the candidates 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 the minimum marks,  he is eligible for being called for viva voce test  and final merit list would be drawn up  according to the aggregation of marks obtained  by the candidates in the written test plus viva  voce examination."

"\005\005This prescription of impermissible  additional qualification has a direct impact on  the merit list because the merit list has to be  prepared according to the aggregate marks  obtained by the candidates at the written test  plus  viva voce test.  Once an additional  qualification of obtaining minimum marks at  the viva voce test is adhered to, a candidate  who may figure high in the merit list was likely  to be rejected on the ground that he has not  obtained qualifying marks at the viva voce  test."

The decision is, therefore, based on Rule 14 and the  necessity to aggregate the marks at the written test and  the oral test. Similar is the question in Durga Charan Misra vs.  State of Orissa,(supra) where the decision turned on  Rule 18 of the Orissa Judicial Service Rules.  The said  Rule is quoted in para 6 of that judgment and it requires  the marks obtained at the viva voce test to be added to  the marks obtained in the written examination and merit  list to be prepared in accordance with the aggregate of  these two marks.  It was, therefore, held that the  prescription of a minimum of 30% at the viva voce test  and elimination of candidates accordingly a counter to  this express provision in Rule 18.  This case is analogous  to the decision in P.K. Ramachandra Iyer’s case (supra)   and what is stated earlier as the distinguishing feature of  P.K.Ramachandra Iyer’s case applies equally to this  decision as well.   The third case is Umesh Chandra Shukla vs.  Union of India, (supra).  In that case, the Delhi High  Court had made a list of 27 candidates after eliminating  those who had not obtained the requisite minimum at the  test conducted for the purpose.  However, the High Court  modified the select list prepared in accordance with the  Rules by awarding moderation marks to those who did  not obtain the prescribed minimum marks at the written  test and the viva voce.  This was held to be bad because  awarding marks by moderation amounted to amendment  of the Rules which could not be done by the High Court or  the Selection Committee.  This decision, therefore, turned  on the interpretation of the Rules involved in that case  and violation thereof by the High Court by adding  moderation marks is contrary to the Rules.  This case is

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also, therefore, distinguishable and has no application to  the case on hand.  The learned single Judge relied on  these three decisions to decide against the High Court.   Apart from the fact that these decisions are  distinguishable and pertain to the Rules involved in those  cases, the learned Judge did not correctly appreciate the  amplitude of Rule 7 and the wide powers conferred on the  High Court to evolve its own procedure under the said  Rule. Rule of Reservation Contention No. 2 relates to correctness of the  application of the Rule of reservation.  This point, in our  opinion, will arise for consideration only if the first  contention of the appellants/petitioners is accepted.  If  that contention is rejected, the question of considering  this point will not arise.  In fact, in that event, the  appellants/petitioners are not even entitled to question  the correctness of the list, as laid down by this Court in  Dr. Umakant Saran vs. State of Bihar & Ors.,  (1973) 1  SCC 485 and only those who are eligible or in the  zone of  consideration can question the legality or otherwise of a  select list.  It is the submission of Mr. T.L.V. Iyer that the  Select  List has been prepared fully in accordance with  Rules 14-17 of the Rules.  The appellants/petitioners’  challenge is the filling up of slot Nos. 60, 62, 64, 66, 68  and 70 which come within the reservation slots by  candidates in the merit list. This is misconceived and  incorrect.  Rule 15(a) & (b)  of  KSSSR specially mandates  that if candidate belonging to a particular community \026  OBC, SC/ST is not available to fill up any particular slot,  then it should be passed over and filled up by a candidate  available from the next reserved community and so on. If  no member of a reserved community is ultimately  available for filling up that slot, that slot should be filled  up by an open merit candidate.  That is the position here.   There were no eligible reserved candidates available for  filling up the aforesaid slots 60 etc.  As mentioned earlier,  from all the reserved candidates, 37 of them available  among the 88 eligible candidates had already been given  place above Slot No. 60 and there was not a single  reserved candidate available to fill up slots 60 etc.   Therefore, under Rule 15, the aforesaid slots had  mandatorily to be filled up by open merit candidates.  It is  not possible for the Government to keep those vacancies  unfilled particularly, when there was a total of 70  vacancies to be filled up and open merit candidates were  also available.  Non-filling up of those vacancies by open  merit candidates would have resulted in violation of Rule  15.  In fact, the Division Bench had gone into this aspect  and examined this matter with reference to Rules and  found that there was no departure from Rules 14 to 17 in  the preparation of the list. The list so prepared in accordance with the  reservation Rules was forwarded to the Government and  the Government, in its turn, examined the matter again in  all its aspects and approved the same. Mr. L.N. Rao cited the decision in the case of    Rajasthan Public Service Commission & Anr. Vs.  Harish Kumar Purohit & Ors., (2003) 5 SCC 480.  He  raised the contention that the so called de-reservation  had to be done only by the Government and not by the  Selecting authority viz. the High Court.  This question is  not relevant in this context.  There is no question of de- reservation so far as the case on hand is concerned for  the reason that it was an application of Rule 15 and the

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filling up of the posts by open merit candidates as  required therein.  There is no de-reservation involved at  all.  The High Court has only followed the mandate of  Rule15. Mr. L.N. Rao made a further contention based on the  above decision that the de-reservation of any post has to  be done by the Government.  This contention, in our view,  has also no force.  Assuming that this is a case of de- reservation, the High Court only forwarded the list to the  Government and it is the Government who approved the  same.  De-reservation, if any, of the posts was, therefore,  done only by the Government and not by the High Court.   But as stated earlier, the question of de-reservation does  not arise, as this is a case of application of the mandate of  Rule 15.  In the circumstances, the second contentions  raised by Mr. L.N. Rao is also incorrect and untenable,  apart from the fact that the appellants/petitioners who  are not eligible candidates are not entitled to contest the  validity of the select list on this ground.  Since they are  ineligible for appointment, no relief, in any case, be  afforded to them in any event. The appellants/petitioners, in any event, are not  entitled to any relief under Art. 226 of the Constitution of  India for more reasons than one.  They had participated  in the written test and in the oral test without raising any  objection.  They knew well from the High Court’s  Notification that a minimum marks had  to be secured  both at the written test and in the oral test.  They were  also aware of the High Court decision on the judicial side  reported in Remany vs. High Court of Kerala,  1996 (2)  KLT 439.  This case deals with prescription of minimum  qualifying marks of 30% for viva voce test.  C.S. Rajan, J.,  in the above judgment, observed as under: "\005\005..On the basis of the aggregate  marks in both the tests, the selection has to be  made.  In I.C.A.R’s case, AIR 1984 SC 541 also  the relevant rules did not enable the selection  Board to prescribe minimum qualifying marks  to be obtained by the candidate at the viva  voce test.  In the Delhi Judicial Service’s case  also (AIR 1985 SC 1351, the rules did not  empower the committee to exclude candidates  securing less than 600 marks in the aggregate.   Therefore, in all these cases, the Supreme  Court came to the conclusion that prescription  of separate minimum marks for viva voce test  is bad in law because under the rules, no  minimum qualifying marks were prescribed."

The High Court also relied on P.K. Ramachandra  Iyer’s case (supra)  and  Umesh Chandra’s case (Supra). The appellants/petitioners having participated in the  interview in this background, it is not open to the  appellants/petitioners to turn round thereafter when they  failed  at the interview and contend that the provision of a  minimum mark for the interview was not proper. It was so  held by this Court in  paragraph 9 of Madan Lal & Ors.  Vs. State of J & K & Ors. , (1995) 3 SCC 486 as under: "Before dealing with this contention, we  must keep in view the salient fact that the  petitioners as well as the contesting  successful candidates being respondents  concerned herein, were all found eligible in  the light of marks obtained in the written test,

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to be eligible to be called for oral interview.   Up to this stage there is no dispute between  the parties.  The Petitioners also appeared at  the oral interview conducted by the Members  concerned of the Commission who interviewed  the petitions as well as the contesting  respondents concerned.  Thus the petitioners  took a chance to get themselves selected at  the said oral interview.  Only because they did  not find themselves to have emerged  successful as a result of their combined  performance both at written test and oral  interview, they have filed this petition.  It is  now well settled that if a candidate takes a  calculated chance and appears at the  interview, then, only because the result of the  interview is not palatable to him, he cannot  turn round and subsequently contend that  the process of interview  was unfair or the  Selection Committee was not properly  constituted.  In the case of Om Prakash  Shukla vs. Akhilesh Kumar Shukla,  1986  suppl SCC 283, it has been clearly laid down  by a Bench of three learned Judges of this  Court that when the petitioner appeared at  the examination without protect and when he  found that he would not succeed in  examination he filed a petition challenging the  said examination, the High Court should not  have granted any relief to such a petitioner."

Therefore, the writ petition filed by the  appellants/petitioners should be dismissed on the ground  of estoppel is correct in view of the above ruling of this  Court.  The decision of the High Court holding to the  contrary is in per curiam without reference to the  aforesaid decisions. The writ petitions have also to fall on the ground of  absence of necessary parties in the party array.  Though  the appellants/petitioners contend that they are only  challenging the list to a limited extent, acceptance of their  contention will result in a total re-arrangement of the  select list.  The candidates will be displaced from their  present ranks, besides some of them may also be out of  the select list of 70.  It was, therefore, imperative that all  the candidates in the select list should have been  impleaded as parties to the writ petitions as otherwise  they will be affected without being heard.  Publication in  the newspaper does not cure this defect.  There are only a  specified definite number of candidates who had to be  impleaded namely, 70.  It is not as if there are a large  unspecified number of people to be affected.  In such  cases, resort cannot be made to Rule 148 of the Kerala  High Court Rules.  That Rule can be applied only when  very large number of candidates are involved and it may  be not able to pin point those candidates with details.  In  our view, the writ petitions have to fail for non-joinder of  necessary parties also. One more factor has also to be noticed in regard to  the civil appeals filed by Mr. K.H. Siraj which, in our  opinion, is also hit by res judicata.  His writ petition in the  High Court was O.P. No. 5219 of 2002.  That was partly  allowed without giving him any relief for a direction for  appointment.  On the other hand, the High Court set  aside the selection of candidates occupying Rank Nos. 60,

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62, 64, 66, 68, and 70.  The High Court filed Writ Appeal  No. 1496 of 2004 before the Division Bench.  Mr. K.H.  Siraj himself filed W.A. No.1584 of 2004 against that part  of the impugned judgment which was against him.   Candidates occupying Rank Nos. 60 etc. who are affected  by the judgment had themselves filed W.A.Nos. 1498,  1510, 1526, 1527, 1541, 1588 and 1574 of 2004.  All  these appeals filed by the High Court and by these parties  were allowed setting aside the judgment of the learned  single Judge.  Mr. K.H. Siraj’s appeal (W.A. 1584/2004)  was dismissed.  However, Mr. Siraj has chosen to file  appeals only against the decision in W.A.No. 1496/2004  filed by the High Court and  W.A. No. 1584 of 2004 filed  by himself and has not chosen to file any appeal against  the decision in the other appeals, W.A.No. 1498 of 2004  etc. filed by the affected parties.  The decision therein has  become final and, therefore, operates as res judicata and  Mr. K.H. Siraj’s appeal is to be dismissed as such. Mr. L.N. Rao, concluding his arguments, sought to  the argument of sympathy.  The flimsy plea was made by  him in this regard.  We are unable to countenance the  plea of sympathy.  The appellants/petitioners could not  secure even the minimum of 30% marks prescribed by the  High Court.  The five learned Judges including the Chief  Justice who had interviewed the candidates in an  objective way, have found these appellants/petitioners as  not suitable for the job and, therefore, not awarded them  even the minimum marks required in the oral test.  As  pointed out earlier, there is no mala fide or bias attributed  to the selection committee.  It is irrelevant to say that they  failed to make only one or two marks when it is evident  that they were not able to score even the very low  minimum of 30% marks prescribed for the oral test. Likewise, the request of Mr. L.N. Rao for relaxation  of the age qualification in future selection in so far as the  appellants/petitioners are concerned is again not a valid  request.  This is a case where the High Court has gone  strictly by the Rules and found the appellants/petitioners  as unsuitable.  When the Constitutional mandate is that  the High Court should perform its duty in having the best  available talent chosen for the subordinate judiciary, it is  not possible to dilute the standards by any process.  It is  only this mala fide of the Constitution, that the select  committee in this case has performed and found the  appellants/petitioners unsuitable.  There is no case for  any relaxation of age in future recruitment to be given so  far as the appellants/petitioners are concerned. Mr. Uday U. Lalit, learned senior counsel appearing  for respondent Nos. 6, 7, 8 & 9 in C.A. Nos. 2539-2540 of  2005.  He also advanced the similar arguments as that of  Mr. T.L.V. Iyer.  He also submitted that since mala fides is  not alleged, the selection made by five Hon’ble Judges of  the High Court should not be interfered with.  He also  advanced the argument on Rule 7.  On the question of  equality, Mr. Uday U. Lalit submitted that the list was  published  in the year 2002 and that is more than four  years after and that the respondents were selected and  once they selected, they seized to be advocates and that  since then they are working and, therefore, to put the  clock back completely at this distance of time is not  proper.  Mr Lalit also placed reliance on the decision of  this Court in Manjeet Singh, UDC & Ors. Vs. Employees  State Insurance Corporation & Anr.,(supra) which in  turn refers to the views expressed by Punchhi,J (as he  then was) in decision Rajesh Sood vs. Director-General,

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Employees State Insurance Corporation (supra).   The Division Bench summoned the original files and  verified as to whether proper procedure has been followed  in the pattern of awarding of marks and prepared of the  lists.  The learned Judges in paragraph 50 of their  judgment observed as under: "\005.The compilation of records are  immediately done, and at every stage, the  senior Judges including the Chief Justice, who  were in office, had been closely monitoring the  selection process.  The details of marks  awarded in the written and oral examinations  were available, as arising from the selection  process.  Details of candidates with  permissible amount of secrecy and the marks  respectively secured by them were available,  under the signature of the Chief Justice and  his companion Judges.  The records reveal  that principles of rotation have been borne in  mind."

For the foregoing reasons, we are of the opinion that  the appellants in the civil appeals and petitioners in the  special leave petitions are not entitled to any of the reliefs  prayed for as they have not made out any valid or  sustainable ground.  We, therefore, set aside the  judgment passed by the learned single Judge and affirm  the judgment passed by the Division Bench which,  in our  opinion, does not warrant interference.   Accordingly, the civil appeals and the special leave  petitions are dismissed.  There shall be no order as to  costs.