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PETITIONER: NEELIMA SHANGLA Ph.D. CANDIDATE

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT17/09/1986

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) DUTT, M.M. (J)

CITATION:  1987 AIR  169            1986 SCR  (3) 785  1986 SCC  (4) 268        JT 1986   445  1986 SCALE  (2)435  CITATOR INFO :  APL        1989 SC1637  (11)  D          1991 SC1612  (1,7,8)

ACT:      Haryana Civil  Services (Judicial Branch) - Subordinate Judges-Appointment to-Parts & D/Rules 7 & 8 - Public Service Commission-Whether it  can withhold  the name of some of the qualified  candidates-Duty   of  the   Commission  to   make available  to   government  complete   list   of   qualified candidates.

HEADNOTE:      Out of  390 candidates who appeared at the test held in 1983-84 for selection to the Haryana Civil Service (Judicial Branch), 54  candidates   belonging to the general category, four candidates  belonging to  the  backward  classes,  four candidates belonging  to scheduled castes and two candidates belonging to  the category  of ex-servicemen,  qualified for appointment by  securing the  prescribed minimum  of 55  per cent. The  petitioner was  ranked  No.  24.  There  were  54 vacancies  altogether  but  the  Public  Service  Commission recommended 26 candidates only and they included 17 from the general category.      In a  writ petition  under Art. 32 of the Constitution, the petitioner  contended (i)  that if the rules relating to the appointment  of Subordinate  Judges in  Haryana had been adhered to,  she would  have been  selected for appointment; and (ii)  that 32  candidates in  order of  merit  from  the general category  should have  been selected for appointment and that the Service Commission illegally withheld the names of all the successful candidates from the Government and the High Court.      Allowing the writ petition, ^      HELD: 1.1  The scheme  of the  rules  relating  to  the appointment of  Subordinate Judges  in Haryana appears to be that the  Public Service  Commission  should  hold  first  a written test in subjects chosen by the High Court and next a Viva-voce test. The result of the examination is required to be published  in the  Haryana Gazette  and the selection for appointment is to be made strictly in the order in which the

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candidates 786 have been  placed by  the Service  Commission in the list of candidates qualified under rule 8 of Part-C. [790 B-D]      1.2 Under  the "Rules  relating to  the appointment  of Subordinate  Judges   in  Haryana",   the   Public   Service Commission is  not concerned with the number of vacancies at all. Nor  is it  expected  to  withhold  the  full  list  of successful candidates  on the  ground that  only  a  limited number of  vacancies are  available. The  duty of the Public Service  Commission  is  confined  to  holding  the  written examination, holding  the Viva-voce  test and  arranging the order of  merit according to marks among that candidates who have qualified  as a result of the written and the Viva-voce tests. Thereafter  the Public Service Commission is required to publish the result in the Gazette and, apparently to make the result  available to  the Government. The Public Service Commission is  not required  to make  any further  selection from  the   qualified  candidates  and  is,  therefore,  not expected to  withhold the names of any qualified candidates. The duty  of  the  Public  Service  Commission  is  to  make available to  the Government  a complete  list of  qualified candidates  arranged  in  order  of  merit.  Thereafter  the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination.  The names  of the  selected candidates are then to  be entered  in the  Register maintained by the High Court strictly  in that order and appointments made from the names entered  in that  Register also  strictly in  the same order. It  is, of course, open to the Government not to fill up all the vacancies for a valid reason. [790 E-H; 791 A]      2. The  selection cannot arbitrarily be restricted to a few candidates,  notwithstanding the number of vacancies and the availability  of qualified  candidates. There  must be a conscious application  of the mind of the Government and the High  Court  before  the  number  of  persons  selected  for appointment is  restricted. Any  other interpretation  would make rule 8 of Part of the Rules relating to the appointment of Subordinate Judges in Haryana meaningless. [791 D-E]      In the  instant case,  the reason  given by  the Public Service Commission  for not communicating the entire list of qualified candidates  to the  Government is  that they  were originally informed  that there were only 28 vacancies. That is not  a sound  reason at  all.  The  net  result  is  that qualified candidates,  though available,  were not  selected and were  not appointed.  The petitioner  is  one  of  them. Therefore, she is entitled to be selected for appointment as Subordinate Judge  in the  Haryana Civil  Service  (Judicial Branch). [791 F; 792 B-C] 787

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Civil) No. 292 of 1986.      Under Article 32 of the Constitution of India.      Petitioner-in-person.      C.M. Nayar,  C.V. Subba  Rao, Pankaj  Kalra,  Ms.  Abha Jain, A.K.  Goel, T.V.S.N.  Chari and  S.M.  Ashri  for  the Respondents      The Judgment of the Court was delivered by      O. CHINNAPPA  REDDY, J. Miss Neelima Shangla desires to be .  appointed to  the  Haryana  Civil  Service  (Judicial) Branch.  She   has  a   brilliant   academic   record.   The

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certificates produced by her show that from Matriculation to LL.B. she  has passed  every one  of her  examinations m the first division. She was ranked No. 2 in the LL.B. examina- tion of  the Punjab University. She was awarded the national merit scholarship  and the  UGC’s scholarship.  She was also awarded the  medal for the best all round student of the Law Department  in   the  year   1980-81.  Her  extra-curricular activities also  appear to  be of a very high order. She was President  of   the  College  Young  Speakers’  Club,  Vice- President of  the College Students’ Council, the best camper and debater  and represented  the Punjab  University in  the All-India Rock Climbing and Mountaineering Camp. She was the student Editor  of the  College Magazine, the Law Review and the Punjab  University Magazine. She has also some published works to  her credit.  She appeared  at the competitive test held in  1983-84 for  selection to the Haryana Civil Service (Judicial) Branch.  She secured  60.8 per  cent marks in the written test and 50.5 per cent marks in the viva voce test. She was  ranked No.  24. It may be mentioned here that there were altogether  774 applicants,  while 390 only appeared at the test. Out of the candidates who appeared at the test, 54 candidates  belonging   to  the   general   category,   four candidates belonging  to backward  classes, four  candidates belonging to  scheduled castes  and two candidates belonging to the  category of ex-servicemen, qualified for appointment by securing the prescribed minimum of 55 per cent. According to  the   petitioner,  though   there  were   54   vacancies altogether,  the  Public  Service  Commission  purported  to recommend 26  candidates only  and they included 17 from the general category.  The petitioner  claims that 32 candidates in order of merit from the general category should have been selected for appointment and that the Service. Commission 788 illegally  withheld   the  names   of  all   the  successful candidates from  the Government  and  the  High  Court.  She contents that  if the  rules had  been adhered to, she would have  been  selected  for  appointment.  To  appreciate  her submission, it is necessary to refer to the relevant rules. The rules  relating to the appointment of Subordinate Judges in Haryana  are in  six parts-A,  B, C, D, & F. Part A deals with qualifications.  Part deals  with submission  of rolls. Part deals  with examination  of candidates.  Rule 1 of Part provides that  an examination  will be held at a place to be determined by  the Haryana Public Service Commission. Rule S provides that the Judges of the High Court may, from time to time, declare  the subjects in which the examination will be held. Rule  7 prescribes  that no  candidate shall be called for the  viva-voce test  unless he  obtains at  least 45 per cent marks in the aggregate in all the written papers and 33 per cent  marks in  the language  paper, Hindi (in Devanagri script). Rule 8 is important and it is as follows.           "No  candidate   shall  be   considered  to   have           qualified in  the examination unless he obtains at           least 55  per cent  in the aggregate of all papers           including Viva-Voce test.                The merit  of the  qualified candidates shall           be determined  strictly  according  to  the  marks           obtained by them.                Provided that  in case two or more candidates           obtain  equal   marks,  their   merit   shall   be           determined according  to the marks secured by them           in the Viva-Voce and if the marks in the Viva-Voce           of the candidates are also equal, the older in age           shall be placed higher in order of merit," Rule 10 is also important and it is as follows:

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         "(i) The  result of  the examination  will Haryana           Government Gazette.           (ii) Candidates  will be  selected for appointment           strictly in  the order  in which  they  have  been           placed by the Haryana Public Service Commission in           the list of those who have qualified under rule 8:                Provided  that  in  the  case  of  candidates           belonging to 789           the Scheduled  Castes/Tribes  and  other  Backward           Classes, Government will have a right to select in           order  of   merit  a   candidate  who  has  merely           qualified  under   rule  8,  irrespective  of  the           position obtained by him in the examination:                Provided  further   that  the   selection  of           candidates  belonging  to  the  Scheduled  Castes/           Tribes and  other Backward Classes in the order of           merit inter se shall be made against the vacancies           reserved for  them and in the manner prescribed by           Government from time to time." Part of  the rules  deals with "Appointment". Rule 1 of Part is as follows:           "The names  of candidates,  selected by Government           for appointment  as Subordinate Judges under rules           10 and  11 of Part C, shall be entered on the High           Court Register in the order of their selection." Rule 7(1) may also be extracted and it is as follows:           "Whenever it  shall appear  to the  Judges that  a           vacancy or  vacancies in the cadre of the Judicial           Branch  of  the  Haryana  Civil  Service,  whether           permanent, temporary  or  officiating,  should  be           filled, they  will make  a selection from the High           Court Register  in the  order in  which the  names           have been  entered in the register under rule 1 of           this Part.  The name  or  names  of  the  selected           candidate  or  candidates  will  be  forwarded  to           Government for  appointment as  Subordinate Judges           under Article  234 of  the Constitution  of India.           Every  Subordinate   Judge  shall,  in  the  first           instance, be  appointed on probation for two years           but this  period may be extended from time to time           expressly or impliedly so that the total period of           probation including  extension, if  any, does  not           exceed three years.                Explanation-The period  of probation shall be           deemed  to  have  been  extended  impliedly  if  a           Subordinate Judge  is not  confirmed on the expiry           of his period of probation. ’ Rule 8 is again important and it is as follows: 790           "There is no limit to the number of names borne on           the High  Court Register  but ordinarily  no  more           names will  be included  than are  estimated to be           sufficient for  the filling of vacancies which are           anticipated to be likely to occur within two years           from the  date of  selection of  candidates  as  a           result of an examination."      The scheme  of the  rules appears to be that the Public Service Commission  should hold  first  a  written  test  in subjects chosen by the High Court and next a Viva-Voce test. Unless a  candidate secures  45 per cent of the marks in the written papers  and 33  per cent  in the  language paper, he will not  be called  for the  Viva-Voce test. All candidates securing 55  per cent  of the  marks in the aggregate in the written and  Viva-Voce tests are considered as qualified for

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appointment,  their   merit  being  determined  strictly  in accordance with  the marks  obtained by  them. The result of the examination  is required  to be published in the Haryana Gazette and  the selection  for appointment  is to  be  made strictly in  the order in which they have been placed by the Service Commission in the list of candidates qualified under rule 8  of Part-C.  The names of the selected candidates are to be  entered in a Register maintained by the High Court in the order of their selection and appointments are to be made from the  names entered  in the  Register in that order. The number of  names to be entered in the Register maintained by the  High   Court  may   be  sufficient  to  fill  vacancies anticipated to  occur within  two years  from  the  date  of selection of  candidates as  a result  of  the  examination. Therefore, it  appears that  the duty  of the Public Service Commission is  confined to  holding the written examination, holding the  Viva-Voce test and arranging the order of merit according to  marks among  the candidates who have qualified as  a  result  of  the  written  and  the  Viva-Voce  tests. Thereafter the  Public Service  Commission  is  required  to publish the  result in  the Gazette  and, apparently to make the result  available to  the Government. The Public Service Commission is  not required  to make  any further  selection from  the   qualified  candidates  and  is,  therefore,  not expected to  withheld the names of any qualified candidates. The duty  of  the  Public  Service  Commission  is  to  make available to  the Government  a complete  list of  qualified candidates  arranged  in  order  of  merit.  Thereafter  the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination.  The names  of the  selected candidates are then to  be entered  in the  Register maintained by the High Court strictly  in that order and appointments made from the names 791 entered in that Register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for  a valid  reason. The  Government and the High Court may,  for example,  decide that, though 55 per cent is the minimum  qualifying mark,  in the  interests  of  higher standards, they  would not  appoint anyone  who has obtained less than 60 per cent of the marks. Something of that nature happened in State of Haryana v. Subash Chander Marwah & Ors. In that  case, though  the rules prescribed a minimum 45 per cent of  the aggregate marks to be qualified for appointment as a  Subordinate Judge,  the High  Court and the Government decided not  to appoint candidates who had secured less than 55 per cent marks. The result was that although there were a large number  of  vacancies,  only  a  few  candidates  were selected for  appointment. The  selection was  challenged on the ground that it could not be so restricted when qualified candidates  were   available.  This   court   rejected   the submission and  upheld the  selection. However,  as we said, the selection  cannot arbitrarily  be restricted  to  a  few candidates, notwithstanding  the number of vacancies and the availability  of  qualified  candidates.  There  must  be  a conscious application  of the mind of the Government and the High  Court  before  the  number  of  persons  selected  for appointment is  restricted. Any  other interpretation  would make rule 8 of Part meaningless. In the present case, though the rules  required the Public Service Commission to publish the result  of the  examination  and,  apparently,  also  to communicate the result to the Government, the Public Service Commission did  not publish the result in the first instance and sent  only the  names  of  17  candidates  belonging  to

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general category  to the  Government, though  many more  had qualified. That  was wrong.  The names  of all the qualified candidates had  to be  sent to  the Government.  The  reason given by the Public Service Commission for not communicating the entire  list of  qualified candidates  to Government  is that they  were originally  informed that there were only 28 vacancies. That  is not  a sound  reason at  all. Under  the "Rules relating  to the appointment of Subordinate Judges in Haryana", the  Public Service  Commission is  not  concerned with the  number of  vacancies at all. Nor is it expected to withhold the  full list  of  successful  candidates  on  the ground  that   only  a   limited  number  of  vacancies  are available. The  Government of  Haryana has  taken the  stand that they  were unable to select and appoint more candidates as the  names of  only a few candidates were sent to them by the Public  Service Commission.  It now transpires that even before the Public Service Commission sent its truncated list to the  Government, the  High Court had already informed the Government that there were more vacancies 792 which required to be filled. The Government not knowing that the names  of several candidates who were qualified had been withheld from  the Government  by  the  Service  Commission, wrote to  the Service Commission to held a fresh competitive examination. If  the Government  had been  aware that  there were qualified  candidates available, they would have surely applied rule  8 of  Part and made the necessary selection to be communicated  to the  High Court.  The net result is that qualified candidates,  though available,  were not  selected and were not appointed. Miss Neelima Shangla is one of them. In the  view that  we have  taken of the rules, Miss Neelima Shangla is  entitled  to  be  selected  for  appointment  as Subordinate Judge  in the  Haryana Civil  Service (Judicial) Branch. By  an interim  order of  this Court,  one  post  of Subordinate Judge has been kept vacant for her.      We direct  the first respondent (Government of Haryana) to include the name of the petitioner (Miss Neelima Shangla) in the  1984 List  of candidates selected for appointment as subordinate judges in the Haryana Judicial Service (Judicial Branch) and forward the same to the High Court of Punjab and Haryana for  inclusion in the High Court Register maintained under Rule  1 of  Part of the Rules. She will be entitled to her due  place in  the Seniority List of the 1984 batch. The petitioner will  be entitled  to her costs which we quantify at Rs. 5000.      As a  result of our finding a few more candidates would also be  entitled to  be included  in the  Select  List  and ordinarily we  would have  directed their  inclusion in  the list. But  having regard to the fact that most of the others have  not   chosen  to   question  the   selection  and  the circumstance that  two years  have elapsed we do not propose to make  any such  general order  as that  would  completely upset the  subsequent selection  and  create  confusion  and multiplicity of  problems. The  cases of any other candidate who may  have already  filed a  writ petition; this Court or the High  Court will  be disposed  of in  the light  of the, judgment. These  who have  not so far chosen to question the selection will not be allowed to do so in the future because of their laches. M.L.A.                                      Petition allowed 793