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PETITIONER: MADAN LAL & ORS.

       Vs.

RESPONDENT: THE STATE OF JAMMU & KASHMIR AND ORS.

DATE OF JUDGMENT06/02/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1995 AIR 1088            1995 SCC  (3) 486  JT 1995 (2)   291        1995 SCALE  (1)494

ACT:

HEADNOTE:

JUDGMENT: 1.   This   petition  by  to  petitioners  has  brought   in challenge the process of selection of Munsiffs in the  State of Jammu and Kashmir undertaken by Jammu and Kashmir  Public Service Commission (hereinafter referred to as  Commission), pursuant  to an advertisement notice, inviting  applications in the months of July and August, 1993.  The said  selection of the concerned successful respondents has been  challenged on  diverse  grounds  to which we will make  a  reference  a little later. 2.   Now   a  glance  at  a  few  introductory  facts.    An advertisement  notice issued by 1993,  invited  applications from eligible candidates for filling up posts of Munsiffs in the  State  of  Jammu and Kashmir.   The  petitioners  being eligible  for  competing  for  the  said  advertised   posts submitted  their applications to the Secretary of  the  Com- mission.   Similarly,  the  concerned  respondents  who  are selected   for   the  said  posts   also   submitted   their applications.   The Commission conducted the written  exami- nation  in  July  and  August,  1993  and  thereafter   vide notification dated 27th April, 1994 candidates mentioned  in the  notification were declared to have qualified  for  viva voce  test.  In all 79 candidates were found  qualified  for the  viva voce test.  ’Mat included the petitioners and  the contesting  respondents.  Under the Jammu and Kashmir  Civil Service  (Judicial) Recruitment Rules of  1967  (hereinafter referred to as rules’) examination for selection of Munsiffs consists  of  written examination and viva voce  test.   The Commission, respondent no. 2 accordingly conducted the  said viva voce test under rule 10 of the aforesaid rules.  On the request  of  the Commission the Chief Justice  of  the  High Court  is  to nominate a Judge to act as an  expert  on  the Commission for the purpose of conducting the viva voce test. In pursuance of this rule a viva voce test was conducted  by four Members of the Commission and an expert (sitting  Judge of  the High Court) Mr. Justice B.A. Khan.  The Chairman  of

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the  Commission  respondent no. 3 and  one  member,  namely, respondent  no. 4 did not participate in the viva voce  test on the ground that one of the candidates selected as per the result  of written test, namely, respondent no. 13  -  Zaneb Shams is a daughter of respondent no. 3 and  daughter-in-law of respondent no. 4. 3.   According  to the petitioners in the they  were  called for oral interview.  According to them they also fared  well in the viva voce test but they were kept guessing as to  the result  of  this  test.  They came to  know  that  concerned respondent nos. 618 and some others who had appeared at  the test  were given confidential information to  appear  before Medical Board for medical test while no such intimation  was sent  to  the  petitioners.   ’Mat gave  them  a  cause  for apprehension  that they may have been illegally left out  of selection  for  the said posts and that is why  the  present petition is filed.  The main prayers in the petition read as under:-               a)  Call  for the records of  the  examination               conducted  by Respondent No.2 for scrutiny  by               this Hon’ble Court;               b)    Issue an appropriate writ order or               296               direction in the nature of certiorari quashing               the viva voce test of the said examination  as               being  invalid,  arbitrary  and  against   the               principles of natural justice and quashing the               candidature of the respondents IO & 13.               c)    Issue  an  appropriate  writ  order   or               direction in the nature of Mandamus commanding               the Respondent No. 2 to declare the result  of               the  written  test of the candidates  and  may               give  selections on the basis of  the  written               test  alone and in the alternative to  conduct               fresh viva voce test after removing defects in               it  and  for  assessing  the  merits  of   the               candidates objectively.               d)    To  issue an appropriate Writ  Order  or               direction   in  the  nature   of   prohibition               restraining  the Respondents No, 1 & 2  and  5               from  issuing the appointment letters  to  the               Selected  Candidates whose list has  not  been               published as yet till the filing of this  Writ               Petition, but are required to undergo  medical               test vide Annexure- 4.   A  mere  look at the prayers makes it  clear  that  the attack  of  the  petitioner  on the  manner  and  method  of conducting’ viva voce test and result thereof So far as  the result of written test is concerned not only the petitioners have no grievance the same but they rely on the same.  Their main  contention is that viva voce test was  so  manipulated that only preferred candidates, by inflating their marks  in the  viva  voce test, were permitted to get  in  the  select list.   It may be mentioned at this stage as  revealed  from the record of this case, that the second respondent prepared a  select list of twenty successful candidates in the  order of merit on the basis of the aggregate of marks obtained  by them  in written as well as viva voce test.  The said  merit list  of  candidates  recommended by respondent  no.  2  for appointment  as Munsiffs consists of two parts.   The  first part  at  annexure-C  collectively deals  with  the  general category  candidates.   Sixteen such  candidates  have  been included  in the general category merit list while there  is also a waiting list of five such candidates.  At  annexure-C collectively  is also found merit list of  Scheduled  Castes

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and  Scheduled Tribes candidates who have  been  recommended for appointment as Munsiffs pursuant to aforesaid selection. Two   candidates  belonging  to  Scheduled  Caste  and   two candidates  belonging to Scheduled Tribe are found  to  have been  listed  in  reserved category as seen  from  the  said annexure.   It  thus becomes clear that  sixteen  candidates from general category and two candidates each from  reserved categories  of Scheduled Caste and Scheduled Tribe,  in  all twenty candidates are so recommended. 5.   After petitioners moved this petition, it was  admitted to  final  hearing  and  the stay  of  the  appointments  of concerned selected candidates was also granted. 6. At the final hearing of this petition the learned  senior counsel for the petitioners raised the following contentions in support of the petition. 1)   The impugned viva voce test conducted   by          the respondent no. 2, Commission is patently illegal as there is nothing to show that the Members who conducted the test  had assigned  separate  marks  faculty-wise  for  assessing  the performance  of the concerned candidates as per rule  10  of the rules. 2)   The expert, namely, the sitting 297 Judge of the High Court was entitled to award only 60  marks for  viva voce test while the remaining 80 marks  were  per- mitted  to be given by other members of the  Commission  and that  affected the overall assessment of the  candidates  in the viva voce test which as a whole comprised of 140 marks. 3)   There  is nothing to show that any  tape-recording  was done  regarding  the  questions put to  candidates  and  the answers  given  by them at the viva voce test and  that  has vitiated the said test. 4)   The petitioners fared very well in the written test  as compared to the selected candidates, respondents herein  and still  at  the  viva  voce test they  were  pushed  down  by assigning   very  low  marks  as  compared   to   contesting respondents and thus they were treated unfairly at the  said viva voce test. 5)   The  viva voce test was conducted in an  unfair  manner only  with  a  view  to select  candidates  belonging  to  a particular  community as the list of candidates  recommended shows.  Therefore, the entire test is vitiated being totally arbitrary and lopsided. 6)   Respondent  No.  IO and respondent no. 13  whose  names were included in the impugned list of recommended candidates were not eligible to be appointed as Munsiffs as they failed to  satisfy  the eligibility requirement of rule  9  of  the rules  in as much as they had not put in 2 years  of  actual practice at the bar by the date on Which he or she submitted his or her application for such recruitment and hence  their names  should  be  eliminated from the merit  list  of  open category candidates. 7)   In  any  case respondent no. 13 being daughter  of  the Chairman  of the Commission and daughter-in-law  of  another Member  thereof was given a special favourable treatment  by unduly inflating her marks in the viva voce test so that any how she would get selected for the advertised post and hence her selection is bad in law. 8)   That  preparation  of the merit list of  16  candidates from  general  category  and  4  candidates  from   reserved category, in all 20 is in any case bad and violative of rule 41 of the rules as the vacancies for which the advertisement was  issued by the Commission were only 11  and  requisition was  sent by the Govt. for selection of suitable  candidates through the Commission for those vacancies.

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7.   The  learned  counsel for  the  contesting  respondents comprising  of selected candidates as well as the  State  of Jammu  &  Kashmir  and the Commission  have  resisted  these contentions and have submitted that there was nothing  wrong with  the  selection process so far as viva  voce  test  was concerned  and that the petition is devoid of merits and  is required to be dismissed. 8.   It  is  now time for us to deal  with  the  contentions canvassed  by the learned senior counsel in support  of  the petition.  We shall deal with these contentions seriatim. Contention No. 1 9.   Before  dealing with this contention, we must  keep  in view  the salient fact that the petitioners as well  as  the contesting successful candidates being concerned 298 respondents herein, were all found eligible in the light  of marks  obtained  in the written test, to be eligible  to  be called for oral interview.  Upto this stage there is no dis- pute between the parties.  The petitioners also appeared  at the oral interview conducted by the concerned Members of the Commission  who interviewed the petitioners as well  as  the concerned contesting respondents.  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,  that 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 Selection  Committee was not properly constituted.   In  the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), 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 protest  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. 10.  Therefore, ’the result of the interview test on  merits cannot be successfully challenged by a candidate who takes a chance  to  get  selected  at the  said  interview  and  who ultimately finds himself to be unsuccessful.  It is also  to be  kept  in view that in this petition we cannot sit  as  a Court of appeal and try to reassess  the relevant merits  of the  concerned candidates who had been assessed at the  oral interview  nor can the petitioners successfully urge  before us that they were given less marks though their  performance was better.  It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge  the relative   merits   of  the  candidates  who   were   orally interviewed in the light of the guidelines laid down by  the relevant  rules governing such interviews.   Therefore,  the assessment  on  merits as made by such an  expert  committee cannot  be brought in challenge only on the ground that  the assessment was not proper or justified as that would be  the function  of  an  appellate body and we  are  certainly  not acting as a court of appeal over the assessment made by such an expert committee. 11.In the light of the aforesaid settled legal. position let us  see  whether there is any substance in  the  contentions canvassed  before  us  by the  learned  senior  counsel  for unsuccessful candidates at the oral interview. 12.So  far  as  the first contention  is  concerned  learned

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senior counsel for petitioners submitted that rule 10 of the rules  lays  down  that the  examination  for  selection  of candidates  shall consist of written examination as well  as viva voce test.  So far as written examination is  concerned it is not challenged before us as noted earlier.  So far  as viva  voce  test is concerned rule  10(1)(b)  lays  down  as under:-               "’The  object of viva-voce examination  is  to               assess  the candidates’ intelligence,  general               knowledge,    personality,    aptitude     and               suitability." The  learned senior counsel for petitioners  submitted  that when a candidates is orally 299 interviewed,  the  members of the  committee  should  assign separate marks for the different faculties of the  concerned candidate  namely, intelligence, general knowledge, etc,  as laid down in the rule and that does not appear to have  been done by the interviewing committee and hence the entire viva voce  test  is vitiated.  In this connection,  reliance  was placed   on  the  decision  of  this  Court  in   Minor   A. Peeriakaruppan  &  Sobha Joseph v. State of Tamil  Nadu  and Ors. (1971 (1) SCC 38). 13.It is not possible to agree with this contention.  So far as  rule 10(1)(b) is concerned it does not provide  for  any separate  assessment  of marks for candidates at  viva  voce examination  faculty-wise, that is on intelligence,  general knowledge,  etc. listed in the said rule.  On the  contrary, it appears that as per the said rule, while conducting  viva voce examination the Committee has to keep in view the  main object  of  assessing such candidates in the  light  of  the guidelines given therein.  In other words, the  interviewing committee has to keep in view the overall performance of the candidates  at the oral inter-view and while doing so  their intelligence,  general knowledge, personality, aptitude  and suitability have to be kept in the centre.  The rule  merely lays  down  the object of assessing such candidates  in  the viva  voce examination.  It is a general guideline given  to the  interviewing committee members.  Therefore,.it  is  not possible to agree with the submission of the senior  counsel for petitioners that the members of the interview  committee must  separately assess and give marks on  different  listed topics  faculty-wise  as per the said rule.  So far  as  the decision  of this Court in Minor A. Peeriakaruppan v.  State of  Tamil  Nadu and Ors. is concerned it has to be  kept  in view that this Court was dealing with admissions to M.B.B.S. course in the State of Tamil Nadu.  The selection  committee was  constituted for assessing the merits of  the  concerned applicants  for  such  admissions at  oral  interview  after written  test.  75 marks were assigned for  oral  interview. The  selection committee was. asked to award these marks  on the basis of following five tests               1.    Sports  of  National  Cadet  Corps   ac-               tivities;               2.    Extra curricular special services;               3.    General    physical    condition     and               endurance;               4.    General ability; and               5.    Aptitude. 14.Now  it becomes at once clear that when 75 marks were  to be assigned to a candidate called for oral interview on  the basis  of  the aforesaid five types of performances  by  the candidate, the assessment on first three tests would  depend upon documentary evidence regarding his career record  which the candidates can furnish to the interview committee  while

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the  last two tests will depend upon his performance at  the interview.   In view of this hybrid type of tests for  which assessment  was to be made at the oral intervire,  75  marks assigned  for  all these five tests necessarily  had  to  be split  up  and  from the carrier record  of  the  candidate, separate marks had to be assigned for first three tests  and that  necessarily required separate assessment of  marks  on the  remaining  two heads of tests.  It is in the  light  of this  requirement  of peculiar type of marking at  the  oral inter- 300 view that it has been observed in para 16 & 17 of the report that  it was clearly illegal to give marks in a lumpsum  and that  the committee had not divided the marks under  various heads nor on the basis of item-wise.  It is also to be  kept in  view  that while selecting a student  for  admission  in M.B.B.S.  course, what is more important is his  performance in the written test and even at the oral interview his  past record  of performance has its own weight.  A student  while undertaking  study is not required to perform any duty of  a public office.  But in the case of recruitment to the  posts of  Munsiffs he is required to work at the grass-root  level of State Judiciary.  For candidates aspiring to be appointed in such a judicial office, apart from the written test,  his overall performance at oral interview is more important  and consequently  split up of the marks on various sub-heads  at oral  interview  of  such a candidate may  not  be  strictly necessary  unless the concerned rule regulating such a  viva voce  test expressly provides to that effect.  As  we  have, seen  earlier rule 10(1)(b) does not so prescribe and  hence it  was  open  to the members of the committee  to  make  an overall assessment of the interviewed candidates keeping  in view the various factors for such assessment as laid down by the said rule.  ’Mat is precisely what has been done in  the present  case as stated by Dr. Girija Dhar a member  of  the interview committee in para 3 of her affidavit in reply.  It is  stated  by her that the only  considerations  which  the Members of the Interview Board had during the viva voce test were  to  judge  the  candidates  on  the  basis  of   their intelligence,  general knowledge, personality, aptitude  and suitability as required by rule 10(1)(b) of the  recruitment rules, that all the question directed at the viva voce  test to  the  candidates were with this object in  view  and  the assessment had been made of the candidates at the viva  voce test  accordingly.   As a matter of  fact,  the  particulars furnished  by  the  candidates  in  their  applications   in pursuance  of the advertisement only had been placed  before the  Members  of the Interview Board.  The  results  of  the candidates at the written examination were not placed before the  Members  of  the Interview  Board.   Nothing  has  been pointed  out  by  the learned  counsel  for  petitioners  to disbelieve  this version.  No bias is also  alleged  against her  or any other member who made the selection.  It  cannot therefore  be  said that rule 10(1)(b) was violated  by  the interview committee while conducting viva voce test.  It may also be mentioned at this stage that decision of this  Court in  Minor A. Peeriakaruppan v. State of Tamil Nadu and  Ors. (supra) (1971 (1) SCC 38) was later considered by this Court in the case of Lila Dhar v. State of Rajasthan (1981 (4) SCC 159).  in  Lila Dhar’s case this  Court  distinguishing  the ratio in Peeriakaruppan’s case (supra) observed as under:-               "It  is true that in Peeriakanippan case  (AIR               1971  SC  2303) the Court held that  the  non-               allocation of marks under various heads in the               interview  test  was  illegal  but  that   was

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             because  the  instructions  to  the  Selection               Committee  provided  that  marks  were  to  be               awarded at the interview on the basis of  five               distinct  tests.   It  was  thought  that  the               failure  to allocate marks under each head  or               distinct  test was an illegality.  But in  the               case before us, the rule merely and  generally               indicates the criteria to be considered in the               interview test without dividing the  interview               test  into distinct, if we may so  call  them,               sub-tests........ The aforesaid decision in Lila Dhar’s case 301 was approved by a Constitution Bench of this Court  speaking through Bhagwati, J. as he then was in Ashok Kumar Yadav  v. State  of Haryana (1985 (4) SCC 417).  This aspect was  also considered later by a Division Bench of this Court  speaking through  Chinnappa  Reddy, J. in Dr. Keshav Ram Pal  v.  UP. Higher Education Services Commission, Allahabad & Ors.  (AIR 1986 SC 597).  An identical contention concerning viva  voce test  conducted  by the interview board which had  not  sub- divided the total marks into sub-heads was rejected in  that case.   Chinnappa Reddy, J. speaking for the Division  Bench observed  that interview board was not under any  obligation to  sub-divide  the marks under various  heads.   The  Court noted that the basis of selection in that case was to assess the  candidates academic attainments, technical  experience, administrative  experience and suitability for the -post  of Principal.   In the light of that-rule it was held  by  this Court in the aforesaid decision that the interview board was not under any obligation to sub-divide the marks under vari- ous  heads.   Almost an identical position  obtains  in  the present case.  Consequently, it must be held that there  was no  obligation  for the members of the  Commission  to  give separate marks under various heads faculty-wise as mentioned in rule 10(1)(b).  The first contention therefore fails  and is rejected. Contention No. 2 15.  So far as contention no. 2 is concerned it is difficult to appreciate how it can be   urged that expert was allotted only 60 marks for assessment while the remaining  assessment was done by the other members.  There is no factual basis on the record of this case for supporting this contention.   On the other hand, the averments made by Dr. Girija Dhar in the reply  affidavit clearly shows that all the members  of  the interview committee participated in the process of selection of candidates at the oral interview keeping in view the  re- quirement of rule 10(1)(b).  The second contention therefore also, being devoid of any factual basis, stands rejected. Contention No. 3 16.It  is  difficult to appreciate  this  contention.   Rule 10(1)(b) to which we made reference earlier nowhere provides that  tape-recording should be kept of questions put by  the members  of  the  committee and the  answers  given  by  the concerned  candidates at the oral interview and that in  the absence  of such tape-recording the interview process  would fail.   The  learned senior counsel for the  petitioners  in this  connection  invited. our attention to  a  Constitution Bench  decision  of this Court in the case of Ajay  Hasia  & Ors.  v. Khalid Mujib Sehravardi & Ors. (1981 (1) SCC  722). That  was a case in which the Constitution Bench dealt  with the claim of petitioners for admission in B.E. course.   The candidates  had appeared in written test and then they  were called for oral interview.  Rejecting the contention of  the petitioner that the oral test was defective, it was observed

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that  oral interview is undoubtedly not a very  satisfactory test  for assessing and evaluating the capacity and  caliber of  candidates,  but in the absence of any better  test  for measuring  personal  characteristics and  traits,  the  oral interview  test must, at the present stage, be  regarded  as not  irrational  or irrelevant though it is  subjective  and based on first impression, its result is influenced by  many uncertain  factors and it is capable of abuse.  However,  in the 302 matter  of  admission to college or even  in  the  matter-of public employment, the oral interview test as presently held should  not be relied upon as an exclusive test, but it  may be  resorted to only as an additional or supplementary  test and, moreover, great care must be taken to see that  persons who are appointed to conduct the oral interview test are men of  high integrity, calibre and qualification.  It is to  be kept in view that Bhagwati, J. as he then was, speaking  for the  Court in that case ultimately dismissed  the  petitions subject to certain general observations and directions.   So far   as  tape-recording  is  concerned,  as  one   of   the contentions  of the petitioners was that the oral  interview was   held  in  an  arbitrary  and  slip  sort  manner,   an observation was made in para 20 of the report to the  effect that  it  would also be desirable if the  interview  of  the candidates is tape-recorded, for in that event there will be contemporaneous  evidence  to show what were  the  questions asked  to the candidates by the interviewing  committee  and what were the answers given and that will eliminate a lot of unnecessary  controversy  besides acting as a check  on  the possible arbitrariness of the interviewing committee.  These observations  cannot be read to mean that in the absence  of tape-recording  of  questions  and  answers  the   interview process would fail or the result of the interview would  get vitiated.   In  the  very  writ  petitions  decided  by  the Constitution  Bench, even though were was no  tape-recording of  questions  and answers, interview test was  upheld.   It appears  that  the  aforesaid observation  only  suggests  a better   method  for  insulating  oral  interviews   against possible  future attacks of arbitrariness and nothing  more. Consequently, it cannot be said that merely because there is nothing  on  the record to show that any  tape-recording  of questions  and answers at the interview was done,  the  viva voce  test  should  on that  score  fail.   Therefore,  this contention also stands rejected. Contention No. 4 17.In the light of what is stated above, while dealing  with contention  no.  1,  this contention also  must  fail.   The petitioners subjectively feel that as they had fared  better in  the  written  test and had  got  more  marks-therein  as compared to concerned selected respondents, they should have been given more marks also at the oral interview.  But  that is  in  the  realm  of  assessment  of  relative  merits  of concerned  candidates  by the expert committee  before  whom these candidates appeared for the viva voce test.  Merely on the basis of petitioners apprehension or suspicion that they were deliberately given less marks at the oral interview  as compared to the rival candidates, it cannot be said that the process  of assessment was vitiated.  This contention is  in the realm of mere suspicion having no factual basis.  It has to  be kept in view that there is not even a whisper in  the petition  about  any  personal bias of the  members  of  the interview committee against the petitioner.  They have  also not  alleged  any mala fides on the part  of  the  interview committee  in this connection.  Consequently, the attack  on

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assessment  of  the  merits of  the  petitioners  cannot  be countenanced.   It  remains in the exclusive domain  of  the expert  committee  to decide whether more  marks  should  be assigned to the petitioners or to the concerned respondents. It cannot be the subject matter of an attack before us as we are  not  sitting as a court of appeal over  the  assessment made  by the committee so far as the candidates  interviewed by them are concerned. 303 In  the light of the affidavit in reply filed by Dr.  Girija Dhar  to which we have made reference earlier, it cannot  be said  that  the  expert committee  had  given  a  deliberate unfavorable  treatment  to the  petitioners.   Consequently, this contention also is found to be devoid of any merit  and is rejected. Contention No. 5 18.This  contention  is equally devoid of  any  merit.   The submission of the learned senior counsel for the petitioners is  that a mere look at annexure-C will show that the  merit list of open category candidates recommended for appointment comprises  of  majority  of  candidates  belonging  to   one community only and therefore the committee has shown special liking  for such candidates who are preferred  by  inflating their marks in the oral interview.  To say the least, it  is a mere conjecture on the part of the petitioners.  The  very first  candidate in the order of merits is roll no. 100  who does  not  belong  to the other community.  He  is  one  Sh. Vinod Chatterji.  Similarly, there are also other candidates in the said merit list of 16 candidates who do not belong to the other community’ Once the interview process is found  to be  proper and justified and not being vitiated by any  mala fides,  the  result  of the viva voce  test  may  project  a picture in which more candidates from one community may  get selected on merits but that is neither here nor there.   The validity  of viva voce test cannot be judged simply  on  the basis of the result thereof unless there is anything to show that the entire selection process was vitiated on account of mala fides or bias or that the interview committee,  members had  acted with an ulterior motive from the  very  beginning and  the whole selection process was a camouflage.  No  such allegations  have been made by the petitioners  against  the selectors who sat in the interview committee.   Consequently even  this contention is found to be devoid of  any  factual basis and stands rejected. Contention No. 6 19.  So far as this contention is concerned  the  submission of learned senior counsel     for the petitioners is that as per  rule 9 of the rules a candidate for recruitment to  the service must have put in at least two years actual  practice at  the bar by the date on which he submits his  application for such recruitment and must produce a certificate to  this effect  from the District Judge within the local  limits  of whose  jurisdiction  he  has practiced at the  Bar.   It  is submitted that neither respondent no.  IO nor respondent no. 13 had Out in two years of actual practice at the bar.  This contention  is  sought to be repelled  by  the  respondents. They  submitted that the District Judge of Jammu has  issued requisite certificates to both these candidates showing that they  had put in at least 2 years of actual practice at  the bar.   It  may be noted that learned counsel for  the  peti- tioners  submitted that so far as the certificate issued  by District  Judge  to respondent no. 10 is  concerned  he  had nothing  more to say but according to him, there is  nothing on  record to show that such a certificate was available  to respondent  no. 13.  During the course of arguments  learned

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counsel for respondents showed to us a certificate issued to respondent  no. 13 by the District Judge, Jammu.   That  was shown  to  the  learned  counsel  for  the  petitioners  who thereafter did not pursue this objection further.   However, he submitted that according to him this certificate may  not be correct as atleast respondent no. 13 304 was stationed in Leh where her husband was a police officer. This  contention is controverted by the  respondents.   Even apart from that the rule requires production of  certificate by District Judge within whose local limits of  jurisdiction the  concerned  advocate should have practiced at  the  bar. The  Commission would be justified in not going  behind  the certificate  issued by the concerned District Judge  and  in not  holding any further enquiry into the extent  of  actual practice  put  in  by such candidate at the  bar  for  being permitted  to appear at the written and viva voce test.   As both  these  candidates are armed  with  certificates  which clearly  indicated that before 28th December ’92, being  the last   date   for  submitting  applications   by   concerned candidates  for  such  recruitment,  these  candidates   had completed  atleast 2 years of actual practice at the bar  as certified  by their District Judge, it cannot be urged  with any emphasis that still they are not eligible to compete for the said posts. 20.It was next vehemently contended by the petitioners  that actual  practice  would mean that the  concerned  candidates should  have  appeared  before courts  and  conducted  cases during  these  two years.  It is difficult  to  accept  this contention.  A member of the bar can be said to be in actual practice  for  2  years and more if he  is  enrolled  as  an Advocate by the concerned Bar Council since 2 years and more and  has attended law courts during that period.   Once  the Presiding Officer of the District Court has given him such a certificate,  it cannot be said that only because as an  ad- vocate  he has put in less number of appearances  in  courts and  has  kept  himself  busy  while  attending  the  courts regularly by being in the law library or in the bar room, he is  not  a  member of the profession or  is  not  in  actual practice  for that period.  The words ’actual  practice’  as employed in rule 9 indicate that the concerned advocate must be  whole time available as a professional attached  to  the concerned court and must not be pursuing any other full time avocation.   To  insist  that the  terms  ’actual  practice’ should mean continuous appearances in the court would amount to  rewriting the rule when such is not the  requirement  of the  rule.   There is no substance even in  this  additional aspect of the matter canvassed by the learned senior counsel for  the  petitioners.   It  must  therefore  be  held  that respondent  no. 10 & 13 were eligible for competing for  the said posts of Munsiffs. 21.It is difficult to appreciate how only because respondent no. 13 was the daughter of the Chairman and  daughter-in-law of   another  Member  of  the  Commission,  both   of   whom disassociated  themselves from the selection process as  she was  competing,  can be said to be disqualified  from  being considered   for  selection  only  on  the  ground  of   her relationship  with the concerned Members of the  Commission. The  learned  senior  counsel  for  the  petitioners  fairly submitted  that  relatives of Members  simpliciter  are  not disqualified  but his contention was that other  Members  of the  Commission  are also bureaucrats and  would  be  having liking  and soft comer for each other.  They  may  therefore try  to push up the relative- of the Chairman  by  inflating her  marks at the oral test.  Such a contention, to say  the

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least,   is  totally  outside  the  scope  of  the   present proceedings.  As we have noted earlier, it is not alleged by the petitioners that the Members of the Interview  Committee were  biased either against the petitioners or in favour  of any given candidate.  In the absence of such 305 pleading  of  bias  and  mala  fides  such  a   hypothetical contention,  only based on the result of the oral  interview cannot  be  sustained.  It is also to be kept in  view  that there  is  one  salient feature of the  case  which  contra- indicates  this contention.  As noted earlier there were  11 vacancies  of Munsiffs for which the selection  process  was started  by  the Commission as recommended by the  State  of Jammu and Kashmir.  So far as respondent No. 13 is concerned her rank on merits of open category candidates is at sl. no. 14, in the light of the marks obtained by her.  There are 13 candidates above her who have got more marks.  Therefore, if 11 vacancies were to be filled in, respondent no.13 would be left out.  If what the petitioners contended was true and if the Members of the Commission were interested in seeing that anyhow she walks in an for that purpose they were to inflate her  marks, they would have resorted to inflating her  marks to such an extent that she would clearly walk in the list of first  11  selected candidates.  Consequently  there  is  no substance  in  this contention of learned  counsel  for  the petitioners.   In  this connection, we may  also  profitably recapitulate  what is stated in para 2 of the  affidavit  in reply of Dr. Girija Dhar.  She has clearly stated that as  a matter  of fact the particulars furnished by the  candidates in their applications in pursuance of the advertisement only had  been placed before the Members of the Interview  Board. The  results  of the candidates at the  written  examination were  not placed before the Members of the Interview  Board. These averments could not be successfully challenged by  the learned counsel for the petitioners.  Consequently, it  must be held that the Members of the Interview Committee were not knowing as to what marks were obtained by the candidates  at the written test.  Therefore, there would be no occasion for them  to manipulate the marks of any candidate at  the  oral interview  so  as to bring them in the light  of  the  marks obtained  by him in the written test to a total which  would make him eligible to be included in the select list of first II  candidates  as  there  were  only  11  clear  vacancies. Consequently,  there is no substance even in this  grievance of the petitioners. Contention No.8 22.This  takes  us  to the  last  contention.   The  learned counsel  for  the  petitioners submitted  that  as  per  the requisition  forward  by  the State  of  Jammu  and  Kashmir through  the  Secretary to the Law  Department,  the  second respondent  was required to hold the selection  process  for recruiting  candidates  from open market for filling  up  11 vacancies.   The  said  letter  of  the  Secretary  to   the Government, Law Department is at annexure-A to the petition. It reads as under: -               GOVERNMENT   OF JAMMU AND KASHMIR CIVIL  SECTT               :LAW DEPARTMENT               TO               The Secretary,               J & K State Public Service               Commission, Srinagar               No.                                 LD(A)92/78               Dated: 22.7.1992               Subject:   Selection  of  Candidates  for  ap-               pointment   as   Munsiffs  in   the   Judicial

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             Department.               Sir,.               I  am directed to say that the Public  Service               Commission  may  kindly  start  a  process  in               accordance with the Jammu                                    306               and  Kashmir  Civil  Service  (Judicial)   Re-               cruitment  Rules, 1967 for selection  of  can-               didates  for  appointment as Munsiffs  in  the               K.C.S.    (Judicial)    Service.      However,               considering  the fact that only  11  vacancies               are presently available, only a select list of               twenty   candidates  inclusive  of   Scheduled               Castes/Scheduled  Tribes  candidates  as   per               their reservation quota may kindly be prepared               and  furnished to the Government.  No  waiting               list of candidates is ’required.                          Yours faithfully,                                Sd/-                             G.A Lone,                             Secretary  to  Government   Laws               Department" A  mere  look  at  the  letter  shows  that  the  Government requested the Commission to hold selection for filling up II clear  vacancies only.  The letter nowhere showed that  more vacancies  were likely to arise in future and selection  may be  held  also for such anticipated vacancies.  It  is  true that  the  letter  mentioned  that  a  select  list  of   20 candidates  may be prepared and furnished to the  Government but  these  9 additional candidates would serve  as  waiting list candidates from which eligible candidates can be  drawn in  order  or  merits  if any of  the  first  11  candidates selected  did  not join or for any reason  could  not  join. ’Mat  is the precise reason why no separate list of  waiting list candidates was directed to be prepared.  Learned senior counsel for the petitioners was right when he submitted that the  recruitment  process in the present case was  only  for filling  up II existing clear vacancies of Munsiffs.  It  is not  possible to agree with the respondents that  this  req- uisition also took note of anticipated vacancies during  the course  of  one year and therefore it can be said  to  be  a requisition  for  recruiting  20  candidates  on  clear  and anticipated vacancies.  If that was so, the contents of  the letter would have been different.  We agree with the learned counsel   for  the  respondents  that  while   sending   the requisition for recruitment to posts the Government can keep in view not only actual vacancies then existing but also an- ticipated  vacancies  during one more year or  for  a  given period of time and in that case the requisition would  cover actual  vacancies and anticipated ones.  But one  the  clear wordings  of  the aforesaid letter, it is  not  possible  to agree  with  this  submission.  It must  be  held  that  the requisition  in the present case by the Government  was  for holding  selection tests by the Commission  for fillings  up 11  clear  vacancies  and  nothing  more.   No   anticipated vacancies were contemplated to be filled in.  The process of recruitment  was  got  initiated by the  State  through  the Commission, for only eleven clear vacancies. 23.  It is no doubt true that even if requisition is made by the  Government for II Dosts the public  Service  Commission may ’send merit list of suitable candidates which may exceed 11. That by itself may not be bad but at the time of  giving actual  appointments  the merit list has to be  so  operated that  only  11    vacancies  are  filled  up,  because   the requisition   being  for  11     vacancies,  the   consequent

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advertisement and recruitment could also be for 11 vacancies and  no more.  It easy to visualise that if  requisition  is for  11   vacancies and that results in  the  initiation  of recruitment  process  by way of advertisement,  whether  the advertisement mentions filling up of 11   vacancies or  not, the  prospective  candidates can easily find  out  from  the Office  of  the  Commission that  the  requisition  for  the proposed  recruitment  is for filling up 11  vacancies.   In such a case a given can- 307 didate  may not like to compete for diverse reasons  but  if requisition  is  for larger number of  vacancies  for  which recruitment  is  initiated he may like to  compete.   Conse- quently  the  actual appointments to the posts  have  to  be confined  to the posts for recruitment to which  requisition is  sent  by  the  Government.   In  such  an   eventuality, candidates  in excess of 11 who are lower in the merit  list of candidates can only be treated as wait listed  candidates in  order  of merit to fill only the  eleven  vacancies  for which recruitment has been made, in the event of any  higher candidate not being available to fill the 11 vacancies,  for any  reason.   Once 11 Vacancies are  filled  by  candidates taken in order of merit from the select list that list  will get exhausted, having served its purpose. 24.It is now time to refer to rule 41 as pointed out by  the learned counsel for the petitioners.  The said rule reads as under:-               "Security  of  the  list.  The  list  and  the               waiting list of the selected candidates  shall               remain  in operation for a period of one  year               from  the  date  of  its  publication  in  the               Government Gazette or till it is exhausted  by               appointment  of  the candidates  whichever  is               earlier,  provided that nothing in  this  rule               shall  apply to the list and the waiting  list               prepared  as a result of the examination  held               in  1981 which will remain in  operation  till               the list or the waiting fist is exhausted. A  mere  look  at  the  rule  shows  that  Pursuant  to  the requisition to be forwarded by Government to the  Commission for  initiating the recruitment process, if  the  Commission has  prepared  merit  list  and  waiting  list  of  selected candidates  such list will have a life of one year from  the date  of  publication in Government Gazette or  till  it  is exhausted  by  the appointment of candidates,  whichever  is earlier.   This means that if requisition is for filling  up of  II  vacancies and it does not  include  any  anticipated vacancies, the recruitment to be initiated by the Commission could  be for selecting 11 suitable candidates.   ’The  Com- mission  may by abundant caution prepare a merit list of  20 or  even  30  candidates as per their inter  se  ranking  on merits.   But such a merit list will have a maximum life  of one  year  from  the date of publication  or  till  all  the required  appointments  are  made  whichever  even  happened earlier.   It means that if requisition for  recruitment  is for  11  vacancies  and the merit list prepared  is  for  20 candidates, the moment 11  vacancies are filled in from  the merit list the gets exhausted, or if during the span of  one year  from  the date of obligation of such list all  the  11 vacancies are not filled in, the moment the year is over the list  gets  exhausted.   In  either  event,  thereafter,  if further vacancies are to be filled in or remaining vacancies are to be filled in, after one year, a fresh opportunity  to all  the  open market candidates to compete.   This  is  the thrust  of  rule 41.  It is in consonance with  the  settled

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legal  position as we will presently see.  We  cannot  agree with  the  learned counsel for respondents that  during  the period of one year even if all the 11  vacancies are  filled in  for which requisition is initiated by the State  in  the present case and if some more vacancies arise during the one year,  the present list can still be operated  upon  because the Commission has sent the list of 20 selected  candidates. As  discussed above, the candidates standing at serial  nos. 12  to 20 in the list can be considered only in case  within one  year of its publication, all the 11  vacancies  do  not get  filled  up for any reason.  In such a  case  only  this additional list of 308 selected  candidates would serve as a reservoir  from  which meritorious  suitable  candidates can be drawn in  order  of merit to fill up the remaining requisitioned and  advertised vacancies, out of the total 11 vacancies.  If that cannot be done  for any reason within one year of the  publication  of the  list,  even this reservoir will dry up and  the  entire list  will  get  exhausted.  We asked  learned  counsel  for respondents  State to point out whether after the letter  at page 87, there was any further communication by the State to the  Commission  to  initiate  process  for  recruitment  to additional anticipated vacancies.  He -fairly stated that no further  request  was sent.  That letter at page 87  is  the only  material for this purpose since that is the basis  for the recruitment made by the Commission in the present  case. In  this connection, we may usefully refer to a decision  of this  Court  in the Case of State of Bihar  v.  Madan  Mohan Singh  & Ors. (AIR 1994 SC 765).  In that case  appointments to the posts of Additional District and Sessions Judges were being  questioned.   The question was  whether  appointments could be made to more than 32 posts when the selection  pro- cess  was initiated for filling up 32 vacancies and  whether the  merit list of larger number of candidates would  remain in Operation after 32 vacancies were filled in.   Negativing the  contention  the such merit list for  larger  number  of candidates could remain in operation after 32 advertised va- cancies  were filled in, K. Jayachandra Reddy, J.  made  the following pertinent observations:-               "Where  the particular advertisement  and  the               consequent  selection process were meant  only               to fill up 32 vacancies and not to fill up the               other   vacancies,  the  merit  list  of   129               candidates prepared in the ratio of 1:4 on the               basis of the written test as well as viva voce               will  hold  good  only  ’for  the  purpose  of               filling  up those 32 vacancies and no  further               because said process of selection for those 32               vacancies  got exhausted and came to  an  end.               If the same list has to be kept subsisting for               the purpose of filling up other vacancies also               that would naturally amount to deprivation  of               rights  of  other candidates  who  would  have               become   eligible  subsequent  to   the   said               advertisement and selection process. Reliance  placed by the learned counsel for  respondents  in the  case of Asha Kaul (Mrs) and Anr.  Vs.  State  of  Jammu and Kashmir and Ors. (1993 (2) SCC 573), is of no avail.  In that  case  the very same Jammu and Kashmir  Government  had sent  a  requisition  to the Public  Service  Commission  to select 20 candidates for the posts of Munsiffs in accordance with the High Court requirement.  Therefore, the  Commission advertised  for  recruitment  to the  said  posts  and  held written  test  and oral interview.   The  Commission  having

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selected  20  candidates  in the order of  merits  and  also having  prepared a waiting list of candidates, the State  of Jammu   and  Kashmir  did  not  appoint  even  selected   20 candidates  on  these  advertised  posts.   The  High  Court rejected  the writ petition praying for a  suitable writ  of mandamus to the State to fill up the remaining vacancies out of  20  for  which recruitment was  made.   The  petitioners approached  this  court in appeal by way of  special  leave. This  court speaking through Jeevan Reddy, J took  the  view that though inclusion in the select list does not confer any indefeasible  right to appointment, there was an  obligation for  the  Government  to fill up all  the  posts  for  which requisition  and advertisement were given.  However  on  the peculiar  facts of the case, the court did not think it  fit to interfere.  This court in para 10 of the 309 report clearly observed that by merely approving the list of 20 there was no obligation on the Government to appoint them forthwith.  The appointment depends upon the availability of the vacancies.  The list remains valid for one year from the date  of its approval and date of publication and if  within such  one  year  any  of  the  candidates  therein  is   not appointed,  the  list  lapses and a fresh  list  has  to  be prepared.   Though a number of complaints had been  received by  the  Government  about the  selection  process,  if  the Government wanted to disapprove or reject the list, it ought to  have done so within a reasonable time of the receipt  of the select list and for reasons to be recorded.  Not  having done that and having approved the list partly (13 out of  20 names), they cannot put forward any ground for not approving the remaining list.  It is difficult to appreciate how  this judgment  can  be of any avail to the respondents.   In  the case   aforesaid  before  this  court  there  was  a   clear requisition  and  recruitment for 20 posts.  The  State  had however chosen to appoint only 13 out of 20. The list had  a life  of one year till all the 20 posts were fill up.   This was  in  consonance with rule 41.  In the present  case  the facts  are  different.   The  requisition  is  not  for   20 vacancies as in Asha Kaul’s case but for 11 posts.  There is no  requisition to fill up any anticipated  more  vacancies. Once the list is approved eventhough it may contain names of 20  candidates,  the  list  in the  present  case  will  get exhausted once 11 vacancies for which advertisement had been issued and recruitment is made are filled up. 25.At  this  stage  we  may profitably  refer  to  one  more decision  of  this  court in Hoshiar  Singh  Vs.   State  of Haryana  and Ors. (1993 supp (4) SCC 377).  In that case  of requisition for recruitment as sent by the Director  General of  Police  to the Haryana  Subordinate  Services  Selection Board was for appointment of 8 posts of Inspector of Police. The  Board however sent the list of 19 selected  candidates, out  of  them  18  persons  were  given  appointments.   The appointments   on  posts  beyond  the  8  posts  for   which requisition was made by the Director General of Police  were brought in challenge before the High Court.  The High  Court accepted  the challenge and held that appointments beyond  8 posts were illegal.  This Court while upholding the decision of High Court speaking through Agrawal, J. observed in  para 10 of the report as under:-               "The learned counsel for these appellants have               not  been able to show that after the  revised               requisition dated January 24, 1991 whereby the               Board was requested to send its recommendation               for 8 posts, any further requisition was  sent               by the Director General of Police for a larger

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             number  of posts.  Since the  requisition  was               for  eight posts of Inspector of  Police,  the               ’Board    was    required    to    sent    its               recommendations  for  eight posts  only.   The               Board,  on its own, could not recommend  names               of 19 persons for appointment even though  the               requisition  was for eight posts only  because               the  selection  and recommendation  of  larger               number  of  persons than the posts  for  which               requisition  is sent.  The appointment on  the               additional   posts  on  the  basis   of   such               selection  and  recommendation  would  deprive               candidates   who   were   not   eligible   for               appointment to the posts on the last date  for               submission  of applications mentioned  in  the               advertise   and   who  became   eligible   for               appointment thereafter, of the opportunity  of               being   considered  for  appointment  on   the               additional   posts   because   if   the   said               additional  posts are advertised  subsequently               those  who  become  eligible  for  appointment               would be               310               entitled  to  apply for the  same.   The  High               Court  was, therefore, right in  holding  that               the selection of 19 persons by the Board  even               though  the requisition was for 8 posts  only,               was not legally sustainable.  " In  the present case as the requisition is for 11 posts  and even  though  the  Commission might have  sent  list  of  20 selected candidates, appointments to be effected out of  the said  list would be on 11 posts and not beyond 11 posts,  as discussed  by  us  earlier.   This  contention  will   stand accepted to the extent indicated hereinabove. 26.  As per annexure-C so far as open category    candidates are concerned, they are shown in   the order of merits  upto sl.  no.  16.  There  arc also  2  Scheduled  Castes  and  2 Scheduled Tribes candidates in all making 20. The extend  of selected  Scheduled Caste and Scheduled Tribe candidates  on reservation  quota  works  out to be 1/5  of  the  total  20 selected  candidates.   If this list has to operate,  as  we have  held, only till vacancies are filled up, then  on  the ratio  of  115 of the total vacancies to be filled  up,  the posts  to  be reserved for Scheduled  Castes  and  Scheduled Tribes  out  of  total  1 1 posts  could  be  one  each  for Scheduled Caste and Scheduled Tribe candidates, as 1/5 of 11 would be 2.5 which would yield either 2 reserved  candidates or maximum 3 candidates but as maximum 3 candidates may tilt the  inter  se  balance between  the  Scheduled  Castes  and Scheduled Tribes, if either of these two categories is given 2 posts out of 3, interest of justice would be served if  we direct  the respondents to reserve 2 posts in all out of  II for being filled up by 1 Scheduled Caste and Scheduled Tribe candidate each, in the order of inter se merits of Scheduled Caste  and Scheduled Tribe selected candidates as  mentioned in  the list at annexure-C.  The remaining 9 posts  will  be available to general category candidates as listed in  order of  merits in the list at annexure-C.  The moment  these  11 posts are filled up within 1 year of the publication of list at  annexureC  this list will get exhausted or  if  for  any reason these II vacancies could not be filled up by the time one  year from the date of publication of the list is  over, even then the list would get exhausted and fresh recruitment will have to be made in the light of fresh requisition  from the  State.  For computing one year’s currency  of  impugned

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select  list  as  per  rule  41,  the  period  during  which appointments  were stayed during pendency of these  proceed- ings  would  naturally got excluded.   The  contention  no.8 therefore  will stand accepted to the aforesaid extent.   In the  result  this writ petition fails subject  only  to  the directions  issued  by  us to  the  State  Government  while accepting  contention  no. 8 aforesaid.  In  the  facts  and circumstances  of  the case, there will be no  order  as  to costs. 312