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PETITIONER: STATE OF U . P ., ETC .

       Vs.

RESPONDENT: RAFIQUDDIN & ORS. ETC.

DATE OF JUDGMENT04/11/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR  162            1988 SCR  (1) 794  1987 SCC  Supl.  401     JT 1987 (4)   251  1987 SCALE  (2)947  CITATOR INFO :  R          1988 SC1451  (9)  R          1991 SC 295  (14)

ACT:      Service matters-Questions  of law relating to seniority of Munsifs  in the  Uttar Pradesh Nyayik Seva appointed as a result of  the competitive  Examinations of  1970, 1972  and 1973, held  under the  Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951-Determination of.

HEADNOTE: %      These  appeals   and  writ   petitions  raised   common questions of  law relating to the determination of seniority of Munsif  appointed in  the Uttar  Pradesh Nyayik Seva as a result of  competitive Examinations  of 1970,  1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 (the Rules).      Public Service  Commission issued  a notification dated September 3,  1970, for  recruitment to 85 posts of Munsifs. In the  examination held  for the  purpose, 294  out of  918 candidates qualified in the written test and were called for viva voce  test, and  the Commission  submitted to the State Government a  list of  46 approved  candidates-list of  1970 examination-for appointment  to the  service. The Government requested the  Commission to  recommend some more candidates as there  was a  shortage of  Munsifs, while suggesting that the minimum of 40 per cent marks in the aggregate be reduced to 35  per cent. The Commission forwarded another list of 33 candidates-the IInd  list, comprising the candidates who had secured 35  per cent  marks in the aggregate and 35 percent, in the  Viva Voce..  All the  79 candidates of the two lists above said  were appointed to service between May, 1972, and June, 1973,  and in  July, 1973,  a notification was issued, determining inter  seniority of  the 79 persons appointed on the basis  of the  1970 examination in accordance with their position in  the lists prepared by the Commission under rule 19 of  the Rules.  Meanwhile, the  Public Service Commission held another  competitive examination-the  1972 examination- for appointments  to 150  posts of  Munsifs, and forwarded a list of  150 successful  candidates to  the  Government  for

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appointment under  Rule 19 above-mentioned, and they were so appointed between 1975 and 1977.      The State  Government, in  view of  the shortage of the Munsifs 795 as also the amendment of rule 19 in pursuance whereof it was no longer necessary for a candidate to qualify independently in the viva voce, requested the Commission to reconsider the result of  the examination  of 1967, 1968, 1969 and 1970 and approve all  those candidates for appointment who might have obtained 40  per cent or more marks in the aggregate even if they might  have failed  to secure  the minimum marks in the viva voce  tests. The  Commission refused  to consider  this proposal as  the minimum  marks prescribed  by it  under the then existing  proviso to  Rule 19 could not be ignored. The Government thereupon  constituted  a  high  level  committee comprising the Chief Minister, the Chief Justice of the High Court and  the Chairman  of the Public Service Commission to consider this  question, and  the Committee decided that the Commission be requested to recommend candidates of the 1967, 1968, 1969  and 1970  examinations as  above-mentioned.  The Government wrote  to the  commission again  for the purpose, conveying to  it the  decision of  the High  level committee above-said, and  asking it  to forward  the applications and the marks of the unsuccessful candidates of the Examinations above-mentioned. The  Commission could  forward a list of 37 such candidates of the 1970 Examination only-the IIIrd list- to the  Government. The  IIlrd list  contained the  names of Refiquddin and  36 others,  the "unplaced candidates" of the 1970 Examinations,  unsuccessful due  to failure in the viva voce.  Thereupon,  the  Government  issued  a  notification, appointing  21  of  the  37  candidates  above-mentioned  as Munsifs, the  remaining 16  having already again appeared in the 1972  Examination and  selected  and  appointed  to  the service. Upon  a further  request by  the Government  for 16 more candidates, the Commission forwarded another list of 16 candidates who had appeared in the l 972 Examination.      In  March,  1977,  the  State  Government  published  a seniority list  of the  successful candidates  of  the  1970 examination, whereupon,  the "unplaced  candidates"  of  the IIIrd   list   of   the   1970   Examination   submitted   a representation for  determination of  their seniority  under Rule 22 of the Rules on the footing that they were recruited in pursuance  of the  1970 Examination, and, therefore, they were entitled  to seniority as candidates of the examination held in 1970 irrespective of their appointment being made in 1975, thereby  claiming seniority  over those  who had  been recruited in pursuance of the 1972 Examination and those who had been  recruited earlier to them in pursuance of the 1970 Examination  and   the  Ist  and  IInd  lists  of  the  1970 Examination. The  representation was  rejected by  the  High Court   (administratively)   and   the   Government.   Then, Rafiquddin and  16 other  "unplaced candidates" filed a writ petition in  the High Court. The High Court allowed the writ peti- 796 tion on  the footing  that the  "unplaced  candidates"  were appointed  on   the  basis   of  the   result  of  the  1970 Examination,  quashed   the  seniority   list   and   issued directions for  the preparation of the seniority list of the candidates of the 1970 Examination afresh in accordance with rule 22, read with rule 19 of the rules and for confirmation and promotion  of the  petitioners in  accordance  with  the seniority list  so drawn  up. The  State  of  Uttar  Pradesh appealed to  this Court  against the  decision of  the  High

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Court.      Appellants Sushil  Kumar  Srivastava  and  others  also preferred an  appeal to  this Court  against the  above-said decision of the High Court.      D.P. Shukla  and three other unsuccessful candidates of the 1970  Examination preferred  an  appeal  to  this  Court against the  judgment of  the High Court dismissing the writ petition filed by them, raising the grievance that they were discriminated as  they had  not been appointed, and instead, 37  candidates  "belonging  to  the  lIlrd  list"  had  been appointed although they had obtained lower marks.      Chandra Prakash  Agrawal, an  unsuccessful candidate at the 1970  Examination, Bled  a writ  petition in this Court, challenging the  appointments of  those who had secured less than 40 per cent marks in the aggregate.      Sushil  Chand  Srivastava,  a  member  of  the  service appointed in  pursuance of the 1972 Examination filed a writ petition in  this Court,  challenging the  validity  of  the appointments  of  the  "unplaced  candidates"  of  the  1970 Examination belonging  to  the  IIIrd  list  which  included Kafiquddin and  others, on the ground that their appointment was illegal  and, therefore,  they could  not be  treated as senior to him.      R.P. Lavaniya,  a member  of the  service recruited  in pursuance of  the 1973  Examination filed a writ petition in this Court,  claiming seniority  over respondents 3 to 15 in the writ  petition,  recruited  in  pursuance  of  the  1972 Examination and  appointed in  service after the petitioners appointment.      P.N. Parasher  and 11 others, recruited in pursuance of the 1972  Examination, filed  a writ  petition in  the  High Court, challenging  the seniority list prepared in pursuance of the judgment of the High Court in the writ petition filed by Rafiquddin and others, afore-mentioned on the ground that the "unplaced  candidates" of  the 1970 Examination were not entitled to  seniority  over  the  candidates  of  the  1972 Examina 797 tion, as they had been appointed to service earlier in time, that writ  petition was  transferred to  this Court  as  the Transferred case.      Allowing the  appeal filed by the State of U.P. and the appeal preferred  by Sushil  Kumar Srivastava and others and allowing  in   part  the   writ  petition  of  Sushil  Chand Srivastava and  the Transferred  case of  P.N. Parashar  and others, and dismissing the appeal of D.P. Shukla and others, and the  writ petition  of Chandra  Prakash Agarwal  and the writ petition of R.P. Lavaniya, the Court. ^      HELD:  The   High  Court  completely  misconceived  the relevant Rules,  while rendering  the judgment  in the  writ petition filed  by the  "unplaced candidates" Rafiquddin and 16 others-in  total disregard  of the  facts. It committed a serious error  in applying the principles of natural justice to a competitive examination. [820E]      The Rules  entrust the  Public Service  Commission with the   duty   of   holding   competitive   examinations   and recommending  the  names  of  the  suitable  candidates  for appointment to  the service  on the basis of the proficiency shown by  the candidates.  Rule 19 provided that the list of the selected candidates should be arranged in order of merit on the basis of the aggregate marks of each candidate in the written as  well as  viva voce tests. In pursuance of clause (i) to  the proviso to rule 19, the commission had the power to  fix   minimum  aggregate  marks  in  the  written  test.

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Similarly, clause (ii) of the proviso conferred power on the Commission to  fix the  minimum marks  for the  viva voce to judge the suitability of the candidates for the service. The scheme underlying  rule 19  and the proviso there to made it apparent that  the obtaining  of the minimum aggregate marks in the written test and the viva voce test, was the sine qua non before  the Commission could make its recommendations in favour of  the candidates for appointment to the service. It is manifest that only those candidates could be appointed to the service  who were  included in  the list prepared by the Commission under  rule 19.  Appointments to  the service are made from  the list forwarded by the Commission to the State Government. Seniority  in the  service is  determined on the basis of  the year  of the  examination irrespective  of the date of  the appointment  and the  inter se seniority of the candidates recruited  is determined  on the  basis of  their ranking  in   the  merit  list.  Seniority  of  a  candidate appointed to the service would depend upon the result of the competitive  examination   and  his  position  in  the  list prepared under  rule 19. The claim to seniority on the basis of the  year of  competitive examination  as contemplated by rule 22  is available  only  to  those  candidates  who  are approved by the Commission on the basis of H 798 their  marks  in  the  written  and  viva  voce  tests.  The commission alone  had the  power to  prescribe  the  minimum marks in the viva voce test for judging the suitability of a candidate for  the service. That is the clear meaning of the words in the proviso to rule 19. [814B-H]      In the  instant case,  the. commission had fixed 35 per cent minimum  marks for  the viva  voce test.  The viva voce test is  a well-recognised method of judging the suitability of a  candidate for appointment to public services. There is no constitutional,  legal  infirmity  in  the  provision  of clause (ii)  of the  proviso to rule 19, conferring power on the commission  to fix minimum marks for the viva voce test, as aforesaid,  and so  long as  the clause  (ii) remained in force, the  Commission had  that power.  Even if a candidate had obtained  higher aggregate marks in the written and viva voce test,  his name  could not  be  included  in  the  list prepared by  the Commission  under  rule  19.  None  of  the "unplaced  candidates"   of  the   1970  examination  (those included in  the IIIrd list) had secured minimum marks of 35 per cent  in the  viva voce  test, and  for that reason they were not approved by the Commission. The appointments of the "unplaced candidates"  made in  pursuance of the decision of the high  level committee are not countenanced by the rules. There is  no escape  for the  conclusion that  the "unplaced candidates" were  appointed to  service on  the basis of the result  of   the  competitive  examination  of  1970.  Their appointments were  made in  breach of the rules. It is well- settled that  where recruitment  to service  is regulated by the  statutory  rules,  the  recruitment  must  be  made  in accordance with  those rules,  and any  appointment made  in breach of  the rules,  would be illegal. The appointments of the 21 "unplaced candidates" made out of the third list were illegal as  they were made in violation of the provisions of the rules. The high level committee, even though constituted by highly  placed persons,  had no  authority in law to take the decision  it did  as above-said,  as  the  rules  do  no contemplate any such committee and the decision taken by the committee could  not be  implemented. The  committee had  no authority in  law to  disregard the  rules  and  direct  the Commission,  which   is  a  constitutional  and  independent authority,  not   sub-servient  to  the  directions  of  the

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Government, to make a recommendation to the Government in c; favour of  the unsuccessful  candidates by  disregarding the minimum marks  prescribed for  the viva  voce test. Its view that after  the  amendment  of  the  rule  19,  the  minimum qualifying marks  fixed for  viva voce could be ignored, was wholly wrong.  Rule 19  was amended  in  January  1972,  but before that  the 1970 examination had already been held, and the amendment  was not retrospective. Even if the Commission had  made   recommendations  in   favour  of  the  "unplaced candidates" under 799 the directions  of the  government, the  appointments of the said candidates would have been illegal as made in violation of the  rules.  And  there  was  no  justification  for  the appointments of  the unsuccessful candidates in 1975 because by then,  the  result  of  the  1972  examination  had  been announced  and  duly  selected  candidates  were  available. [816F-H; 822D-H; 823C-DJ      There is  no express  provision in  the rules as to for what period  the list prepared under rule 19 can be utilised for making  appointments to  the service.  In the absence of any provision  in the  rules, a  reasonable period  must  be followed during  which the  appointments on the basis of the result of  a particular examination should be made. The list prepared by  the Commission  on the basis of the competitive examination of  a particular  year could  be utilized by the Government for making appointments before the declaration of the  result  of  the  subsequent  examination.  If  selected candidates are available for appointment on the basis of the competitive examinations  of subsequent  years, it  would be unreasonable and  unjust  to  revise  the  list  of  earlier examination by  changing norms  to fill up the vacancies, as that would  adversely effect the rights of those selected at the subsequent  examination in the matters relating to their seniority under  rule 22.  The 1970 examination could not be utilised as  a perennial  source or an exhaustible reservoir for  making  appointments  indefinitely.  The  result  of  a particular examination  must come to an end at some point of time, like  a  "dead  ball"  in  cricket.  The  practice  of revising the  list prepared  by the Commission under rule 19 at the  behest of  the government  by  lowering  down  fixed standards and  norms, is subversive of the rule of law. This practice is fraught with dangers of favouritism and nepotism and it  would open  back door entry to the service. Once the result of  the subsequent  examination of 1972 was declared, the  Commission  could  not  revise  the  list  of  approved candidates of  1970 examination prepared by it under rule 19 at the  behest  of  the  Government  by  lowering  down  the standard_ fixed  by it.  The procedure adopted in appointing the unplaced candidates of 1970 examination was unauthorised by law  and it  practised  discrimination  in  violation  of Articles 14 and 16 of the Constitution. [824B-H; 826H]      The "unplaced candidates" were appointed to the service in breach  of the rules and they form a separate class. They cannot be  equated with  those appointed  from the first and the  second   lists  of   the  1970   examination  as  their appointments  were   made  on   the  recommendation  of  the Commission.  Similarly,  the  candidates  appointed  to  the service on  the basis  of  the  result  of  the  competitive examination of  1972 before  the "unPlaced  candidates" were appointed, formed a separate 800 class as  they were  also appointed  in accordance  with the rules. The  "unplaced candidates"  could not claim seniority over them  on the  basis of  rule 22,  as their appointments

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were not  made on  the basis  of the  list approved  by  the Commission under rule 19. [827A-C]      Even  though  the  21  "unplaced  candidates"  of  1970 examination have  been found  to have  been appointed to the service illegally  in breach of the rules, yet the judgments and others  passed by  them are  not rendered  invalid; they were appointed  by competent  authority with the concurrence of the  High Court.  They have  been working in the judicial service all  these years and some of them have been promoted also; they  have  performed  their  functions  as  de  facto judicial officers.  The judgments  and orders  of a de facto judge  cannot   be  challenged   on  the   ground   of   his ineligibility for appointment. Keeping in view the period of 12 years  that has  elapsed, the  Court did  not propose  to strike down  the appointments  of the "unplaced candidates". Having regard  to all  the facts and circumstances, it would be just  and proper  to assign  seniority to  the  "unplaced candidates" of  the 1970  examination at  the bottom  of the list of  the 1972  candidates. The  16 "unplaced candidates" out   of the  total of  37, who  were successful in the 1972 examination and were approved and included by the Commission in  the  list  prepared  under  rule  19,  are  entitled  to seniority  of   1972  examination  on  the  basis  of  their positions in  the merit  list of  that examination. [827D-G; 828F-H]      The appeal  of the  State of  U.P. and  the  appeal  of Sushil Kumar  Srivastava and others allowed. Judgment of the High Court  set aside.  The High  Court and State Government shall determine  the seniority of the 21 "upheld candidates" as directed by the Court. [829F-G]      In the Appeal filed by D.P. Shukla and others, directed against another  judgment of the High Court, the view of the High Court  was consistent  with the view of this Court. The appellants had  appeared at  the 1970  examination but  were unsuccessful as  they had  failed  to  secure  35  per  cent minimum marks  at the  viva voce  test,  although  they  had secured higher  marks in  the aggregate  than those selected and appointed.  They had  challenged the  selection made  in pursuance of the 1970 examination. [830A-B]      In the  writ petition  filed in  this Court  by Chandra Prakash Aggarwal, as the petitioner had failed to obtain the minimum marks  prescribed for the viva voce test although he had obtained  more than  40 per cent marks in the aggregate, he could  not be  granted the  relief of  appointment to the service. He was also, 801  disentitled  to any  relief on  the  ground  of  inordinate delay, there being no plausible explanation for the delay in . challenging  the validity of the 1970 examination in 1982. L830C-D]      In the  writ petition  filed in  this Court  by  Sushil Chand  Srivastava  and  in  the  transferred  case  of  P.N. Parasher and  others,  the  petitioners,  recruited  to  the service on the basis of the 1972 examination, were aggrieved by the  decision of  the High  Court in Rafiquddin’s case as their seniority  was  affected  adversely.  This  Court  has already taken the view that the "unplaced candidates" of the 1970 examination  could not  be  senior  to  the  candidates appointed as  a result  of the  1972  examination,  and  the petitioners were  covered by  that decision  of the Court to get relief to that extent. [830G]      In the  writ petition  filed  in  this  Court  by  R.P. Lavania, the  petitioner was  appointed to  the  service  in November, 1976  on the  basis of  the  result  of  the  1973 examination. His  grievance was  that the respondents Nos. 3

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to 15 in the petition had been shown senior to him; although they had  been appointed  later in  time on the basis of the 1972 examination,  and that the selection and appointment of the said  respondents were  against the  rules and they were not entitled  to seniority  over him  as he  was a regularly selected candidate.  There was  no merit in the petitioner’s case. Rule  22 directs that seniority shall be determined on the basis  of the  year of  examination, which  means that a person recruited  to the  service in pursuance of the result of a  particular year  of examination would rank senior to a candidate who  is recruited  in pursuance of the result of a subsequent year  of examination, although he might have been actually appointed  earlier in time, as, after the selection of  the   candidates,  several   formalities,  like  medical examination, character  and antecedents  verification, etc., are followed before the appointments are made under rule 21. Many a time, this process of formalities causes delay in the making of  the actual  appointment,  with  the  result  that sometimes  persons  selected  on  the  basis  of  subsequent examination are  appointed before  the successful candidates of the  earlier examination.  But under  rule 22, the latter shall be  senior to  the former, irrespective of the date of appointment. The  petitioner was appointed in the service on the basis  of the  result of  the 1973 examination while the respondents Nos.  3 to  15 were  recruited to service on the basis of  the result  of the  1972  examination.  Therefore, under  rule   22,  the   validity  of  which  has  not  been challenged, the  respondents Nos. 3 to 15 are entitled to be senior to  the petitioner.  There was  no illegality  in the appointments of the respondents 802 Nos. 3 to 15. Their appointments in the service were made by the A  State Government  on the recommendation of the Public Service Commission  made under Rule 19, as they had obtained the requisite  aggregate marks  in the  written and the viva voce tests. They were appointed in accordance with the rules and were  entitled to seniority in terms of rule 22. [831 A- H]      The Public  Service Commission  has been  changing  the norms fixed  by it at the behest of the Government after the declaration  of   the  results.   The   Commission   is   an independent, expert  body. It  has to  act in an independent manner. It  may consult  the State  Government and  the High Court in  prescribing the  norms for judging the suitability of the  candidates if  no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the  conclusion of  a competitive examination and submits the list  of the  suitable candidates  to the Government, it should not  re-open the selection by lowering down the norms at the  instance of  the  Government.  If  the  practice  of revising the results of competitive examinations by changing the norms is followed there will be confusion and the people will loss  faith in  the institution  of the  Public Service Commission and  the  authenticity  of  the  selections.  The Commission should  take  a  firm  stand  in  these  matters, uninfluenced by  the  directions  of  the  State  Government unsupported by the Rules. [833A-D]      (ii) The  practice of appointing a retired Judge of the High Court  as an  expert to assist the Commission in making selections for  appointments to the judicial service, is not desirable. A  sitting Judge  of the  High  Court  should  be nominated by  the Chief  Justice of the State to participate in the  interviews as  an expert;  he would  be in  a better position to  give advice  to the Commission in the selection of suitable  candidates and  his advice  would be binding on

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the Commission  unless there  are strong  and cogent reasons for not  accepting such  advice, which  must be  recorded in writing by  the Chairman  and Members  of the Commission, as observed by  a Constitution  Bench of  this Court  in A.  K. Yadav  v.  State  of  Haryana,  [1985]  4  S.C.C.  417.  The Constitution Bench  had  issued  directions  to  the  Public Service Commission  of every state to follow this direction, but it  appears that in the State of U.P., this direction is not  being   followed.  In   future,  the   selections   for appointments to  the judicial  service shall  be made by the Commission on  the expert  advice of  a sitting judge of the High Court nominated by the Chief Justice. [833E-H;834A] (iii) It  has  been  noticed  that  generally,  there  is  a considerable 803 interregnum between  the holding  of the examination and the appointments of  the selected  candidates in these cases, no system was  followed in  making the appointments, as some of the candidates  selected in  the subsequent examination were appointed  earlier   than  those  selected  in  the  earlier examination, and  those appointed  later in  time  are  made senior to  those appointed  earlier in  time under  Rule 22. This causes  heart-burning and other complications. To avoid this situation,  it is necessary that every effort should be made to  appoint the  successful candidates  of a particular examination before any candidate of a subsequent examination is appointed. [834B-D]      K.N. Chandrasekhra  & Ors. v. State of Mysore and Ors., A.I.R. 1963  Mysore 292;  T.N.  Manjula  Devi  v.  State  of Karnataka, [1982]  Labour and  Industrial Cases,  759; Durga Charan Misra  v. State of orissa, W.P. 1123 of 1986, decided on 27.8.1987;  Lila Dhar  v. State  of Rajasthan,  [1982]  1 S.C.R. 320;  A.K. Yadav v. State of Haryana, [1985] 4 S.C.C. 417; Umash Chandra Shukla v. Union of India & Ors., [1985] 3 S.C.C. 721;  Shitla Prasad  Shukla v.  State of U.P. & Ors., [1986] Supp. S.C.C. 185 and Achanti Sreenivasa Rao & Ors. v. State of Andhra Pradesh, [1981] 3 S.C.C. 133. referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 4023 of 1982 etc      From the  Judgment and  order dated  31 3.1982  of  the Allahabad High Court in C.M.W.P. No. 1303 of 1979.      G. Vishwanath  Iyer, Satish  Chandra, D.P  Singh, S  P. Gupta, G.L.  Sanghi, Gopal Subramaniam, Shobha Dikshit, H.K. Puri, S  D. Lal,  M.K.D.  Namboodry,  R.N.  Keshwani,  Irfan Ahmad, S  Balakrishnan, A.D.  Sikri,  Pradeep  Misra,  L  R. Singh, Jayanand, Gopal Singh, C.P. Pandey, Mrs. Rani Chhabra and Krishnamani for the appearing parties.      The Judgment of the Court was delivered by      SINGH, J.  These three  civil appeals  directed against the judgment  of the  High Court  of Allahabad and four writ petitions filed  under Article 226 of the Constitution raise common  questions   of  law  relating  to  determination  of seniority of  members appointed  as  Munsifs  in  the  Uttar Pradesh Nyayik  Seva as a result of competitive Examinations of 1970,  1972 and  1973 held  under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 195 1 (hereinafter referred to as 804 the Rules). Since the appeals and the petitions raise common questions of law they have been heard together and are being disposed of by a common judgment.

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    On September  3, 1970  a Notification was issued by the Public  Service   Commission   inviting   applications   for recruitment to  85 posts of Munsifs. In this examination 918 candidates appeared, out of whom 294 candidates on the basis of their  marks in written papers, were called for viva voce test. After  completion of  the written  and viva voce test, the commission  submitted a  list of  approved candidates to the Government on October 25, 1971 recommending the names of 46 candidates  for appointment  to the  service, which shall hereinafter  be   referred  to  as  the  Ist  list  of  1970 examination. On  receipt of  the list  of 46  candidates the State Government  requested the Commission to recommend some more candidates  for appointment to the service as there was shortage of  Munsifs, and  it  further  suggested  that  the minimum of 40 per cent marks in the aggregate may be reduced to  35   per  cent.  The  Commission  agreed  to  the  State Government’s suggestion  and thereafter it forwarded another list of  33 candidates  on April 25, 1972 for appointment to the service  which shall  hereinafter be  referred to as the IInd list.  This list included those who had obtained 35 per cent marks  in the aggregate, as well as 35 percent marks in viva voce..  All the  79 candidates,  as recommended  by the Commission in  the aforesaid  two lists  were  appointed  to service by  different Notifications issued between May, 1972 to 12th  June 1973. On July 17, 1973 Notification was issued determining inter-se  seniority of  all  the  79  candidates appointed on  the basis  of 1970  examination in  accordance with  of   their  position  in  the  list  prepared  by  the Commission under Rule 19 of the Rules. Meanwhile, the Public Service Commission  held another competitive examination for appointment to  the 150  posts of  l-  Munsifs  which  shall hereinafter be  referred to  as the  1972  Examination.  The Written test  was held  in November, 1973 and the result was declared on  26th June  1974. The  Public Service Commission forwarded  a  list  of  150  successful  candidates  to  the Government for  appointment to  the service under Rule 19 of the Rules  and all  those candidates  were appointed  to the service on different dates between (, 1975 to 1977.      Some  of   the  unsuccessful  candidates  of  the  1970 Examination made  representation to the State Government for considering their case for appointment on the basis of their aggregate marks  irrespective of their low marks in the viva voce. The  State Government  by its  letter dated 24th July, 1973 requested the Commission that in view of the 805 shortage of  Munsifs in  the State  and since in view of the amendment of  Rule 19  it was  no  longer  necessary  for  a candidate to  qualify independently in the viva voce, it may reconsider the  result of  the examinations  of 1967,  1968, 1969  and   1970  and   approve  all  those  candidates  for appointment to  the service  who might  have obtained 40 per cent of  marks or  more in  the aggregate even if they might have failed  to secure  the minimum  marks in  the viva voce test. The Commission refused to consider the proposal of the Government,  as   the  minimum   marks  prescribed   by  the Commission under  the then existing proviso to Rule 19 could not be  ignored in  judging the  suitability of a candidate. Inspite of  the Commission’s  refusal the Government pursued the matter  further, and  it convened a meeting of the Chief Minister, Chief  Justice of  the High Court and the Chairman of the  Public Service  Commission on 3rd May, 1974. At that meeting it  was decided  that in  view of the immediate need for  Munsifs   the  Public   Service  Commission  should  be requested to  recommend such  candidates of 1967, 1968, 1969 and 1970  examination who  might have secured 40 per cent or

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more marks  in the  aggregate, but  could not qualify in the viva voce.  The committee  took  the  view  that  after  the amendment of Rule 19 it was not necessary for a candidate to qualify in  the viva  voce test  and therefore  he could  be appointed to  the service  if he had got 40 per cent or more marks in  the aggregate.  In pursuance of the decision taken by the  said high  level Committee  the  Government  by  its letter dated  May  10,  1974  requested  the  Commission  to forward the  application forms and the marks obtained by the unsuccessful candidates  of the Examinations held during the years 1967,  1968, 1969  and 1970  who might have got 40 per cent or  more marks  in the  aggregate but  might  not  have qualified in  the viva  voce. The  letter  enclosed  a  note containing the  decision taken  by the high level committee. The Commission  by its  letter dated  9th June 1974 informed the  Government   that  the   application  forms  and  other particulars of the unsuccessful candidates of 1967, 1968 and 1969 examination  had  been  destroyed,  and  therefore  the Commission was  unable to forward the names of candidates of those examinations  as desired  by the  Government. But  the Commission forwarded  with a  covering letter dated June 19, 1974 a list of 37 candidates of the 1970 Examination who had obtained 40  per cent or more marks in the aggregate but who had failed  to secure  35 per  cent qualifying  marks in the viva voce  which shall  hereinafter be  referred to  as  the lIIrd list.  The Commission’s  letter contained  a note that the candidates mentioned therein had obtained 40 per cent or more marks  in the  aggregate but  they had  not been  found suitable by  the Commission.  This IIIrd  list contained the names of  Rafiquddin and 36 others, who were unsuccessful at the 1970 Examination who will be referred to 806 hereafter  as   the  "unplaced   candidates"  of   the  1970 Examination. On  receipt of  the IIIrd list of the "unplaced candidates" the State Government after obtaining approval of the High  Court issued  a Notification dated August 19, 1975 appointing 21 candidates out of the list of 37 candidates as Munsifs with a note that the appointments were being made on the  basis   of  the   1970  Examination  conducted  by  the Commission  and   the  persons   appointed  were   "unplaced candidates" with  a further  note that their seniority would be determined  later on  out of  the list  of 37  candidates forwarded by  the Commission under its letter dated June 19, 1974 the  State  Government  found  that  the  remaining  16 persons who  had been  unsuccessful at  the 1970 Examination had again appeared in the 1972 Examination and they had been selected  and  appointed  to  the  service.  Therefore,  the Government  requested  the  Commission  to  select  16  more candidates from  the 1972  Examination In  pursuance of  the Government’s request  the Public  Service Commission  by its letter dated  14/ l5th  July, 1976 forwarded another list of 16 candidates  who had  appeared in the 1972 Examination for appointment to the service.      In  March,   1977  the  State  Government  published  a seniority list  of successful  candidates of the competitive examination of  1970. The "unplaced candidates" belonging to the IIIrd  list of  the 1970 Examination made representation to  the  High  Court  for  determining  their  seniority  in accordance with  Rule 22  of the  Rules on  the footing that they were  recruited to  the service  in pursuance  of  1970 Examination  and   therefore  they   were  entitled  to  the seniority as candidates belonging to the examination held in 1970 irrespective  of their  appointment being made in 1975. They claimed  that they  were senior  to those  who had been recruited to  service in  pursuance of  1972 Examination  as

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well as  to those who had been recruited to service, earlier to them  in pursuance  of  the  1970  Examination  who  were appointed in  service in  pursuance of Ist and the IInd list of 1970  Examination but  who had secured lower marks in the aggregate. Their  representation was  rejected by  the  High Court as  well as  by the  State Government as in their view the  "unplaced   candidates"  were   unsuccessful   in   the competitive examination  of 1970,  their appointment was not in accordance  with the  Rules and  as such  they  were  not entitled to  seniority of  1970.  Rafiquddin  and  16  other "unplaced candidates"  filed Writ  Petition No. 1303 of 1979 under Article  226 of the Constitution before the High Court of Allahabad for quashing the decision of the High Court and the State Government rejecting their representation and also for the issue of a writ of mandamus directing the High Court to confirm  the petitioners  and to  grant them seniority of 1970, and to rearrange the 807 seniority of  Munsifs appointed  in service  in pursuance of 1970 Examination  in order  of merit  on the  basis  of  the aggregate marks  obtained by  each of  the candidates at the said  examination.  A  Division  Bench  of  the  High  Court consisting of  M.N. Shukla  and  K.M.  Dayal  JJ.  by  their Judgment dated 31st March, 1982 allowed the writ petition on the finding  that the  unplaced candidates were appointed in service on  the basis of the result of 1970 examination. The Bench quashed  the seniority  list and issued a direction to the State  Government and  the High  Court  to  prepare  the seniority list  of candidates of the 1970 Examination afresh in accordance  with Rule  22 read  with Rule 19 of the Rules and to  confirm and  promote them  in  accordance  with  the seniority list  so drawn.  The State  of Uttar  Pradesh  has preferred Civil Appeal No. 4023 of 1982 against the judgment of the  Division Bench.  Civil Appeal  No. 4024  of 1982 has been preferred by Sushil Kumar Srivastava and others against the aforesaid  judgment of  the Division  Bench It should be stated here  that D.P.  Shukla and  three other unsuccessful candidates at  the 1970  Examination had  filed another writ petition Writ Petition No. 4261 of 1974 in the High Court of Allahabad under  Article 226 of the Constitution raising the grievance that  even though they had secured higher marks in the competitive  examination than  those  appointed  to  the service yet  they were  discriminated, as  they had not been appointed to the service instead 37 candidates "belonging to the IIIrd  list" were  appointed although  they had obtained lower marks.  Another  Division  Bench  of  the  High  Court consisting of  Satish Chandra  CJ. and  A.N. Verma J. by its judgment dated  March  30,  1982  dismissed  the  said  writ petition on  the ground  that since  the petitioners therein had failed  to secure  minimum qualifying  marks in the viva voce they  were not  entitled to selection. Civil Appeal No. 3736  of   1982  has  been  preferred  by  the  unsuccessful petitioners against the aforesaid judgment.      In addition  to the  aforesaid three civil appeals four writ  petitions  have  also  been  filed  raising  the  same controversy. Writ  Petition No.  4636 of 1982 has been filed in this  Court under  Article 32  of  the  Constitution  b(y Chandra Prakash  Agrawal an  unsuccessful candidate  at  the 1970 Examination,  challenging the  appointment of those who had failed  to secure  less than  40 per  cent marks  in the aggregate. Sushil  Chand Srivastava  a member of the service appointed in  pursuance of  the 1972  Examination  has  also filed Writ  Petition No.  12818 of  1984 under Article 32 of the Constitution challenging the validity of the appointment of "unplaced  candidates" of  the 1970 Examination belonging

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to the IIIrd list which include Rafiquddin and others on the ground that  their appointment  was  illegal  and  for  that reason they 808 could not  be treated  senior to him. R.P. Lavaniya a member of the  A service who was recruited in pursuance of the 1973 Examination has  also filed  Writ Petition  No. 1347 of 1984 under Article 32 of the Constitution claiming seniority over Respondents 3  to is  to the  writ  petition  who  had  been recruited in  service in  pursuance of  the 1972 Examination and appointed in service after the petitioner’s appointment. P.N. Parashar  and 11  others who  had been recruited to the service in  pursuance of  the 1972  Examination filed a writ petition under  Article 226  of the  Constitution before the High Court  of Allahabad being writ petition No. 5409 of the 1982 challenging the seniority list prepared in pursuance of the judgment  of the High Court in writ petition No. 1303 of 1979 (Rafiquddin  and others  v. State of Uttar Pradesh), on the ground  that  the  "unplaced  candidates"  of  the  1970 Examination  were   not  entitled   to  seniority  over  the candidates  of   the  1972  Examination  as  they  had  been appointed to service earlier in time. That writ petition was transferred to this Court. Three Civil appeals and four writ petitions including the transferred petition have been heard together at length.      The U.P.  Civil Service  (Judicial Branch)  Rules  1951 that is,  the Rules  have been  framed by the Governor under the proviso  to Article  309 read  with Article  234 of  the Constitution in  consultation with the U . P. Public Service Commission and  the High Court which provide for recruitment to the  service and  lay down  the conditions  of service of personnel appointed  to the  U.P.  Civil  Service  (Judicial Branch). Rule  3 provides  that the  Rules  shall  apply  to Munsifs and Civil Judges. "Member of the service" as defined by Rule 4 means a person appointed in a substantive capacity ’under the  provisions of  these Rules"  or of  the Rules in force previous  to the introduction of these Rules to a post in the  cadre of  the service.  Rule  S  provides  that  the strength of  the service shall be determined by the Governor from time  to time  in consultation  with the  High Court of Judicature at Allahabad. It confers power on the Governor to increase the  cadre by  creation of  additional or temporary posts as  may be necessary. Rule 6 provides that recruitment to the  service shall be made on the result of a competitive examination conducted by the Public Service Commission. Rule 8 lays  down that  the Governor  shall decide  the number of recruits to  be  taken  in  any  particular  year.  Rule  15 provides  for   holding  of   competitive  examination   for recruitment to  the  service  and  it  lays  down  that  the examination may  be conducted  at such time and on such date as may  be notified  by the  Commission and shall consist of written examinations  in  such  legal  and  allied  subjects including procedure  as may  be  included  in  the  syllabus prescribed in Rule 18 and an examina- 809 tion to  test the  knowledge of the candidate in Hindi, Urdu and also  an interview to test the fitness of the candidates for  appointment.   Rule  18  prescribes  syllabus  for  the competitive examination as contained in Appendix E. Appendix provides that  the examination will include written and viva voce test,  it specifies  the subjects  for written test and the marks  allotted to  each subject.  Clause 5  of Appendix relates to  the viva  voce, and  the notes  appended thereto relevant for  the determination  of the  question raised  in these cases, are as under:

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         "5. Viva  Voce: The  suitability of  the candidate           for employment  in the  judicial service  will  be           tested with  reference to  his record  at  school,           college and  in university  and  his  personality,           physique. The  questions which  may be  put to him           may  be   of  a   general  nature   and  will  not           necessarily be on an academic or legal nature.           (I) The  marks obtained in viva voce will be added           to the  marks obtained  in the  written papers and           the candidate’s place will depend on the aggregate           of both.           (II) The  Commission reserves  the right to refuse           to call  for viva  voce and  candidate who has not           obtained such  marks in  the two  Law Papers as to           justify such  refusal or  who does not satisfy the           requirements of Rule 12(2) of the Rules." Rule  19   requires  the   Commission  to  prepare  list  of candidates approved  by it  and to  forward the  same to the Government. Rule 19 is it stood in the year 1970 read thus:           "  19.   List  of   candidates  approved   by  the           Commission-The Commission  shall prepare a list of           candidates who  have  taken  the  examination  for           recruitment to  the  service  in  order  of  their           proficiency as  disclosed by  the aggregate  marks           finally awarded  to each candidate. If two or more           candidates obtain equal marks in the aggregate the           Commission shall  arrange them  in order of merits           on the  basis of their general suitability for the           service:                Provided that in making their recommendations           the Commission  shall satisfy  themselves that the           candidate-                (i) has  obtained such  an aggregate of marks           in the  written test  that he  is qualified by his           ability for appointment to the service; 810                (iii) has obtained in the viva voce test such           sufficiently high  marks that  he is  suitable for           the service.  While  preparing the  list the  Commission had  to  satisfy itself that a candidate had obtained such aggregate marks in the written  test as  to qualify  him for appointment to the service and  further that  he had obtained such sufficiently high marks  in the  viva voce  test that he was suitable for the service.  The position of the candidates in the list was to be  determined on  the  aggregate  marks  obtained  by  a candidate both in written as well as viva voce test. Rule 21 provides that  the Governor  shall on  receipt of  the  list prepared by  the Commission consult the High Court and after taking into consideration the view of the High Court, select candidates for  appointment from  amongst  those  who  stand highest in  order of  merit in  the list  if they  are  duly qualified in  other respects.  Rule  22  provides  that  the seniority of  candidates shall  be determined by the year of competitive examination  on the results of which a candidate is recruited  and his  position in  the list  prepared under Rule lg.  The Rules  were amended  by a  Notification  dated January 31, 1972. After the amendment the Rules are known as the U.P. Nyayik Seva Niyamavali 1951 Under the amended Rules the service  has been  designated as the U.P. Nyayayik Seva. It is  not necessary  to refer to all the amended provisions of the Niyamavali. After the amendment Rule 15 provides that the examination  shall consist  of written  examination  and interview  to   assess  all  round  student  career  of  the candidates  and   their  personality   address  and  general

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suitability. Rule 19 after the amendment reads as under: 19. List of candidates approved by the Commission-           "The Commission shall prepare a list of candidates           who have  taken the examination for recruitment to           the service  in  order  of  their  proficiency  as           disclosed by  the aggregate  marks finally awarded           to each  candidate.  If  two  or  more  candidates           obtain  equal   marks  in   the   aggregate,   the           Commission shall arrange them in order of merit on           the basis  of their  general suitability  for  the           service;                Provided that in making their recommendations           the Commission  shall satisfy  themselves that the           candidate has  obtained such as aggregate of marks           in the  written test  that he  is qualified by his           ability for appointment to the 811 A glance  at the  amended Rule  19 would  show that  the two clauses of  the proviso  have been  omitted. Instead the new provision to  Rule 19 has been inserted which lays down that in  preparing  the  list  of  the  approved  candidates  the Commission shall  satisfy  itself  that  the  candidate  has obtained such aggregate of marks in the written test that he is qualified  by his ability for appointment to the service. Now, after  the amendment  the Commission  has no  power  to prescribe or fix any minimum marks qualifying for viva voce. Now it  is not necessary for a candidate to be successful in the viva  voce. Prior to the amendment a candidate could not be selected unless he had obtained minimum marks as fixed by the Commission  in viva voce. The amended proviso of Rule 19 has dispensed  with that  requirement though  viva voce test has been  retained. It  is not  necessary to  refer to other Rules as these are the only Rules which are relevant for the purposes of  determining the  controversy involved  in these cases.      The "unplaced  candidates" of  1970 examination claimed seniority of  1970 in terms of Rule 22 even though they were appointed in  1975. The State Government as well as the High Court rejected  their claim  as in  their view the "unplaced candidates" formed  a separate class as their recruitment to the service  was made  in special circumstances, even though they had  been unsuccessful  at the  examination.  The  High Court on  its administrative  side rejected  their claim for seniority   whereupon   Rafiquddin   and   other   "unplaced candidates" approached  the High  Court on the judicial side by filing  the  writ  petition  under  Article  226  of  the Constitution   challenging   the   order   rejecting   their representation.  The   Division  Bench  of  the  High  Court constituting of  M.N. Shukla  and K.M.  Dayal, JJ. held that the appointment  of the  "unplaced candidates" had been made in pursuance of the result of the competitive examination of 1970 and  as such they were entitled to seniority of 1970 in accordance to  Rule 22.  The Bench  further held that as the seniority in  the service  is determined on the basis of the year  of   the   competitive   examination   the   "unplaced candidates" belonging to the IIIrd list were entitled to the senior to  those appointed  to service  on the  basis of the result of  the competitive  examination of  1972 even though the "unplaced  candidates" had  been  appointed  to  service later in  time. At  regards the  inter-se-seniority  of  the candidates recruited  to the  service in  pursuance of  1970 examination the  High Court  held that the Commission had no authority to prescribe any minimum qualifying marks for viva voce and  instead  it  should  have  prepared  the  list  of successful  candidates  on  the  basis  of  aggregate  marks

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secured by each candidate irrespective of the marks obtained by a candidate in viva voce. Adverting to proviso to Rule 19 H 812 the Bench  observed "It is true that the Rule authorises the Public A  Service Commission  to lay down such minimum marks but that  it was  so laid  down prior  to the holding of the examination of  the year  1970  does  not  appear  from  the record. If  any minimum  marks were prescribed the candidate should have  had notice of the same and only thereafter they could decide  to appear or not to appear at the examination. The Public  Service Commission  cannot at  its whim  at  any point of  time without  notice to the candidates fix minimum marks." on  these findings  the High Court directed that the merit list  of 1970 recruits, should be drawn afresh, on the basis of  the aggregate  marks  secured  by  each  candidate disregarding  the  qualifying  marks  fixed  by  the  Public Service Commission  for the  viva voce  test.  The  Division Bench  directed   that  the   seniority  of   the  "unplaced candidates" included  in the  third list  be  refixed  after rearranging the  lists of  candidates included  in the first and second  list on  the basis  of the  aggregate marks. The effect of  the judgment of the Bench has been that all those candidates who had been appointed to service in pursuance to the 1972  examination have been made junior to the "unplaced candidates" of 1970 examination although they were appointed much later.  Further the  seniority  of  regularly  selected candidates and  appointed to  the service out of the Ist and IInd lists  of the 1970 examination is adversely affected on account of  the rearrangement  of the  merit list as many of the unsuccessful  candidates have become senior to those who had been  included in  the Ist  and IInd  list. Further  the candidates  who   had  passed   along-with  the   successful candidates  of   1972  examination   also   being   unplaced candidates would  go above  all the  candidates of  the 1972 examination including  the candidates who had stood first in the 1972 examination.      After hearing  the learned  counsel for  the parties at length and  having given  our anxious  consideration to  the controversy raised  in these  cases, we  are of opinion that the Division  Bench completely  misconceived the  Rules  and rendered the  judgment  in  total  disregard  of  the  facts available on record. As discussed earlier the Rules, entrust the Public  Service Commission  with  the  duty  of  holding competitive  examination   and  recommending  the  names  of suitable candidates as approved by it for appointment to the service on  the  basis  of  the  proficiency  shown  by  the candidates at  the examination  adjudged on the basis of the aggregate marks  secured by them. The appointment to service is made  from the  list forwarded  by the  Commission to the State Government.  Seniority in the service is determined on the  basis  of  the  year  of  the  competitive  examination irrespective of  the date  of appointment  and the inter-se- seniority  of   candidates  recruited   to  the  service  is determined on  the basis of their ranking in the merit list. To 813 recapitulate Rules  19, 21  and 22  as they stood during the year 1970  i.e. prior  to their  amendment in  January, 1972 were as under:           "  19.   List  of   candidates  approved   by  the           Commission-The Commission  shall prepare a list of           candidates who  have  taken  the  examination  for           recruitment to  the  service  in  order  of  their           proficiency as  disclosed by  the aggregate  marks

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         finally awarded  to each candidate. If two or more           candidates obtain equal marks in the aggregate the           Commission shall  arrange them  in order of merits           on the  basis of their general suitability for the           service:                Provided that in making their recommendations           the Commission  shall satisfy  themselves that the           candidate-           (i) has obtained such an aggregate of marks in the           written test  that he  is qualified by his ability           for appointment to the           (ii) has  obtained in  the  viva  voce  test  such           sufficiently high  marks that  he is  suitable for           the service.           21. Appointment-(1)  subject to  the provisions of           Rule 20, the Governor shall on receipt of the list           prepared by  the Commission consult the High Court           and shall,  after taking  into  consideration  the           views of  the High  Court, select  candidates  for           appointment from  amongst those  who stand highest           in order of merit in such list provided that he is           satisfied  that   they  duly  qualified  in  other           respects.                (2) The  Governor  may  make  appointment  in           temporary or  officiating vacancies  from  persons           possessing  necessary   qualifications  prescribed           under these Rules.                (3) All  appointments made  under  this  Rule           shall be notified in the official Gazette.           22. Seniority-Subject to the provisions of Rule 31           the seniority  of candidates already in service at           the time when these rules come into force would be           determined  according   to  the   Rules  in  force           previously and  for those  appointed  subsequently           the seniority  shall be  determined by the year of           competitive examination  on the results of which a           candi- 814           date is  recruited and  the position  in the  list           prepared under Rule 19           NOTE:  A  candidate  may  lose  his  seniority  if           without any  reasonable cause he does not join his           service  when   a  vacancy  is  offered  to  him."           (underlining by us) The aforesaid rules show that the Commission was required to prepare a  list of candidates approved by it for appointment to the  service. Rule  19 provided that the list of selected candidates should be arranged in order of merit on the basis of the  aggregate marks finally awarded to each candidate in written as  well as in viva voce test. Clause (1) of proviso to Rule  19 laid  down that  in making their recommendation, the Commission  should satisfy  itself that  a candidate had obtained such  aggregate of  marks in the written test as to indicate  that   he  was   qualified  by   his  ability  for appointment to  the service  and further  he had obtained in the viva  voce test such sufficiently high marks that he was suitable for  the service. In pursuance to clause (1) of the proviso, the  Commission had  power to fix minimum aggregate marks in  written test  for judging  the  suitability  of  a candidate for  appointment to service. Similarly clause (ii) of the  proviso conferred power on the Commission to fix the minimum marks for viva voce test to judge the suitability of a candidate  for the service. One related to the fixation of the minimum in the aggregate marks in the written test while the other  related to  the fixation  of the minimum marks in

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the viva  voce test. The enacting clause of Rule 19 directed the Commission  to prepare  the list  on the  basis  of  the aggregate marks  awarded  to  a  candidate  Aggregate  marks obtained by a candidate determined his position in the list, but the  proviso of  the Rule  required  the  Commission  to satisfy  itself   that  the   candidate  had  obtained  such aggregate marks  in the  written test  as to qualify him for appointment to  service and  further he  had  obtained  such sufficiently high  marks in  viva voce  which would show his suitability for  the service.  The scheme underlying Rule 19 and the  proviso made  it apparent  that  obtaining  of  the minimum aggregate  marks in  the written  test and  also the minimum in  the viva  voce was  the sine  quo non before the Commission could  proceed  to  make  its  recommendation  in favour of  a candidate  for appointment  to the service. The Commission in  view  of  the  clause  (ii)  of  the  proviso Commission had  power to fix the minimum marks for vive voce for judging  the suitability of a candidate for service Thus a candidate  who had  merely  secured  the  minimum  of  the aggregate marks  or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva 815 voce test.  The Commission  was required to include the name of candidates  in the  list prepared  by it under Rule 19 on the basis  of the  aggregate of  marks as  obtained by  each candidate both  in written as well as in the viva voce test. Rule 20 provides that no person shall be appointed as member of the  service unless  he  is  medically  fit.  It  further provides that  a candidate  who has  passed the  competitive examination and  is finally  approved for appointment to the service shall  be required  to  pass  an  examination  by  a Medical Board.  Rule  21  provides  that  the  Governor,  on receipt of the list prepared by the Commission under Rule 19 shall select  candidates for  appointment from amongst those who stand  highest in  order of  merit in  "such list" after taking into  consideration the  views of the High Court. The expression "such  list" in  Rule 2 l obviously refers to the list prepared  by the  Commission  under  Rule  19.  It  is, therefore,  manifest  that  only  those  candidates  can  be appointed to  the service  who  are  included  in  the  list prepared by  the Commission under Rule 19. If the Commission does not  approve and include the name of a candidate in the list prepared by it under Rule 19, he cannot be appointed to the  service  under  Rule  21  Rule  22  provides  that  the seniority in  the service shall be determined by the year of competitive examination  on the results of which a candidate is recruited  and his  position in  the list  prepared under Rule  19.  The  Rule  clearly  postulates  determination  of seniority of members of the service recruited to the service through competitive  examination  with  reference  to  their position in  the list of approved candidates prepared by the Commission under  Rule 19.  The expression  "member  of  the service" as defined by Rule 4(e) means a person appointed in substantive capacity under the provisions of the Rules. Rule 22 read  with Rule 4(e) lays down in unmistakable terms that the seniority  of members  of service is to be determined on the basis  of the  year of  competitive examination  and not otherwise.  In  other  words  only  those  persons  who  are appointed in  accordance with  the Rules  on the result of a competitive examination are entitled to the determination of their seniority  in accordance  with Rule 22. Seniority of a candidate appointed  to the  service would  depend upon  the result of  the competitive  examination and  his position in the list  prepared under  Rule 19.  Claim to seniority under

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Rule 22  cannot be upheld if a candidate is not approved for appointment under  Rule 19  and has  not found  his way into service  on   the  recommendation   of  the  Commission.  We therefore hold  that the  claim to seniority on the basis of the year  of competitive examination as contemplated by Rule 22 is available only to those candidates who are approved by the Commission  on the  basis of  their marks in the written and viva voce test at the examination. 816      Learned   counsel    for   the   respondent   (unplaced candidates) urged  that clause (2) of the proviso to Rule 19 did not confer power on the Commission to fix any qualifying minimum  marks   for  viva   voce.  In  the  alternative  he challenged the constitutional validity of the proviso on the ground of excessive delegation of legislative power. Rule 19 as it  stood in the year 1970 read with Rule 18 and Appendix and the  Note I  of clause (5) of appendix required that the aggregate of  marks obtained  in the  written and  viva voce test, determined a candidate’s rank in the merit list. These provisions  conferred   power  on   the  Commission  to  fix qualifying marks  in the  written test  and if  a  candidate failed to  obtain the  minimum marks in the written test the Com mission might refuse to call him for viva voce test. The enacting  clause   of  Rule  19  provide  guidance  for  the Commission in  preparing the  list of approved candidates on the basis  of the aggregate marks obtained by a candidate in the written  as well as in viva voce test. Clause (2) of the proviso to  Rule 19 did not no doubt expressly lay down that the minimum marks for the viva voce had to be prescribed but the language used therein clearly showed that the Commission alone had  the power to prescribe minimum marks in viva voce test for  judging the  suitability of  a candidate  for  the service. That  is the  clear meaning  of the  words  in  the proviso  to   Rule  19   "provided  that   in  making  their recommendation the  Commission shall satisfy themselves that the candidate  i) ..  ii) has obtained in the viva voce test such sufficiently  high marks  that he  is suitable  for the service." Commission is required to judge the suitability of a candidate on the basis of sufficiently high marks obtained by a  candidate in  the viva  voce test,  it has to fix some percentage of  marks which  in its opinion may be sufficient to assess  the suitability of a candidate. In the absence of a fixed  norm, there  could be  no uniformity  in  assessing suitability  of  candidates  in  the  viva  voce  test.  The Commission had  therefore power  to fix  the norm and in the instant case it had fixed 35 per cent minimum marks for viva voce test. The viva voce test is a well-recognised method of judging the  suitability of  a candidate  for appointment to public services  and this method had almost universally been followed in  making  selection  for  appointment  to  public services. Where selection is made on the basis of written as well as  viva voce  test, the  final result is determined on the basis  of the  aggregate marks.  If  any  minimum  marks either in the written test or in viva voce test are fixed to determine the  suitability of a candidate the same has to be respected. Clause  (ii) of  the proviso  to Rule  19 clearly confers power  on the  Commission to  fix minimum  marks for viva voce  test for  judging the  suitability of a candidate for the  service. We  do not  find any  constitutional legal infirmity in the provision. 817      The learned counsel placed reliance on a Division Bench judgment of  the Mysore  High Court  in K.N. Chandrasekhra & Ors. v.  State A  of Mysore  & Ors., AIR 1963 Mysore 292. In that case  A.R. Somnath  Iyer, J.  speaking  for  the  Bench

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observed that  the power  to fix  minimum marks in viva voce test  for   judging  the  suitability  of  a  candidate  for appointment to  State Judicial  Service was  legislative  in character and  it could  not  be  exercised  by  the  Public Service Commission.  He also  held that under Article 234 of the  Constitution   it  would   be  a   special   duty   and responsibility of  the  Commission  alone  to  make  a  Rule prescribing the  minimum marks for viva voce examination and in the  absence of  such a  rule the  committee  constituted could not prescribe any such minimum standard. No doubt this decision support  the submission  raised on  behalf  of  the unplaced candidates  but a  Full Bench  of the  Mysore  High Court  had   not   approved   the   view   taken   in   K.N. Chandrasekhra’s case  as can  be gathered  from T.N. Manjula Devi v.  State of  Karnataka. [  1982] Labour and Industrial Cases 759.  In the  latter case  the  Court  held  that  the process of selection of suitable candidates to a responsible post involved a minimum standard to be crossed by candidates and that  had to  be fixed  by the  selection commit- tee. I earned counsel  for the respondent referred to a decision of this Court  in Durga  Charan Misra  v. State of Orissa, W.P. 1123 of  1986 decided  on 27.8.1987 for the proposition that the Commission  had no power to fix the qualifying marks for the  viva  voce  test.  We  have  carefully  considered  the decision but  we do not find anything therein to support the respondents’ contention.  In  that  case  the  question  for consideration before  this court  was  whether  the  minimum marks prescribed  by the  Commission for  the viva voce test for appointment  to the State Judicial Service of orissa was justified. The Court on an analysis of the relevant rules of the orissa  Judicial Service  Rules 1964 held that there was no rule  prescribing the  minimum qualifying  marks for  the viva voce  test. The  court found  that the  Commission  had fixed qualifying  marks and  on that  basis it  had excluded candidates securing  higher marks in written test. The Court allowed the  petition and  quashed the selection made by the Commission and directed the Commission to prepare the select list afresh  on the basis of the aggregate marks obtained by the candidates  in the written examination and the viva voce test. This decision does not advance the case of respondents in view  of clause  (ii) of  the proviso to Rule 19. So long clause (ii)  of proviso  to Rule  19 remained  in force  the Commission had power to fix minimum qualifying marks for the viva voce test. Thus even if a candidate had obtained higher aggregate marks  in written and viva voce test but if he had failed to secure the minimum marks in the viva voce test his name could  not be  included in  the list  prepared  by  the Commission H 818 under Rule  19. This  view was taken by another Bench of the High Court  in D.P.  Shukfa’s case, and with which we agree. There is  no dispute that none of the unplaced candidates of 1970 examination  (those included  in the  third  list)  had secured minimum  marks of  35 per cent in the viva voce test and  for   that  reason   they  were  not  approved  by  the Commission, although they had obtained more than 40 per cent marks in the aggregate.      Learned counsel  for the  respondents urged that 35 per cent of  qualifying marks  fixed by  the Commission  for the viva voce  test was unreasonable and excessive. In Lila Dhar v. State  of Rajasthan, [1982]  SCR 320 this Court held that while a written examination assessed a candidate’s knowledge and intellectual  ability an  interview test  is valuable to assess  a   candidate’s  over  all  intellectual  and  other qualities. The  interview permits an assessment of qualities

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of character  which written  papers ignore,  it assesses the man himself  and not  his intellectual  abilities. The Court observed that there could not be any rule of thumb regarding the precise  weight to  be given  to the  viva voce test. It must  vary   from  service   to  service  according  to  the requirement of  service the  minimum qualifications  may  be prescribed, the  age group from which the selection is to be made, the body to which the task of holding the interview is entrusted. There  can  be  no  doubt  that  viva  voce  test performs  a  very  useful  function  of  assessing  personal characteristics and  traits of  a candidate.  The answer  to question as  to what  weight should be attached to viva voce test where  both written  and viva  voce test  are held  for making the  selection, would  depend upon the purpose of the selection.  Chinnappa  Reddy,  J.  speaking  for  the  Court observed           "Thus, the  written examination assesses the man’s           intellect and  the interview  test the man himself           and "the twain shall meet" for a proper selection.           If both written examination and interview test are           to be  essential features  of proper selection the           question may arise as to the weight to be attached           respectively to  them. In the case of admission to           a college,  for instance,  where  the  candidate’s           personality is  yet to develop and it is too early           to  identify  the  personal  qualities  for  which           greater importance  may have  to  be  attached  in           later life,  greater weight  has per  force to  be           given to  performance in  the written examination.           The importance  to be  attached to  the  interview           test must be minimal. That was what was decided by           this  Court   in   Periakaruppan   v.   State   of           Tarlilnadu, Ajay Hasia etc. v. Khalid Mujib 819           Sehravardi &  Ors. etc.  and other  cases. In  the           other hand,  in  the  case  of  service  to  which           recruitment  has   necessarily  to  be  made  from           persons of  mature personality, interview test may           be the  only way,  subject to  basic and essential           academic  a   professional-   requirements   being           satisfied. To  subject such  persons to  a written           examination  may  yield  unfruitful  and  negative           results, apart from its being an act of cruelty to           those persons. There are, of course, many services           to  which   recruitment  is   made  from   younger           candidates  whose   personalities   are   on   the           threshold of  development and  who show  signs  of           great  promise,  and  the  discerning  may  in  an           interview test,  catch a  glimpse  of  the  future           personality. In  the case  of such services, where           sound selection must combine academic ability with           personality promise,  some weight has to be given,           though not much too great weight, to the interview           test. There  cannot be any rule of thumb regarding           the precise  weight to be given. It must vary from           service to service according to the requirement of           the   service,    the    minimum    qualifications           prescribed, the age group from which the selection           is to  be made,  the body  to which  the  task  of           holding the  interview  test  is  proposed  to  be           entrusted and  host of  other  factors.  It  is  a           matter for  determination  by  experts.  It  is  a           matter for  research. It  is  not  for  courts  to           pronounce upon  it unless  exaggerated weight  has           been given with proven or obvious oblique motives.

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         The Kothari  Committee also suggested that in view           of the  obvious importance  of the subject, it may           be examined  in detail by the Research Unit of the           Union of Public Service Commission. In A.K.  Yadav v.  State of  Haryana, [1985]  4  SCC  417  a Constitution Bench of this Court approved the view expressed in Lila  Dhar’s case. The Court observed there cannot be any hard and  fast rule  regarding the  weight to  be  given  as against the  written examination.  It must vary from service to service  according to  the requirement of the service the minimum qualification  prescribed age  group from  which the selection is  to be  made the  body to  which  the  task  of holding the interview test is proposed to be entrusted and a host of  other factors.  It is a matter for determination by experts. The  Court does not possess the necessary equipment and it  would not  be right  for the court to pronounce upon it. In  Lila Dhar’s case 25 per cent of marks flxed for viva voce test was upheld. In A.K. Yadav’s case selection made by the Haryana Public Service Commission for appointment to the post of Haryana Civil 820 Service (Executive  and other  allied  services)  was  under challenge. The A Court held that allocation of 33.3 per cent for viva  voce was  high as it opened door for arbitrariness and in  order to  diminish it  if not eliminate the same the percentage needs  to be reduced. The Constitution Bench made observation that  marks for viva voce test should not exceed 12.2  per   cent.  In   spite  of   these  observations  the Constitution Bench  did not  interfere or  strike  down  the selection instead  it directed  the Commission  to give  one more opportunity  to the  aggrieved candidates  to appear at the competitive  examination. In  the instant case there has been no  allegation of  mala fides  or arbitrariness against the Commission  which  held  the  viva  voce  test.  In  the circumstances we  do not  consider it necessary to set aside selection or  issue any  direction  to  the  Public  Service Commission or  to the  State Government as Rules relating to viva  voce   test  have  already  been  amended.  After  the amendment of  the Rules  on  January  31,  1972  no  minimum qualifying marks  can be  fixed by  the Commission  for viva voce test  and therefore  it is  not necessary  to issue any direction in the matter.      The Division  Bench of the High Court observed that the Com mission  had no  authority to  fix any minimum marks for the viva  voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates.  The   Bench  further   observed  that   if  the Commission had  given notice  to the  candidates before  the steps for holding the competitive examination were taken the candidates may  or may not have appeared at the examination. In our  opinion the  High Court committed a serious error in applying the  principles of natural justice to a competitive examination.  There   is  a   basic  difference  between  an examination held  by a  college or  university or  examining body  to   award  degree  to  candidates  appearing  at  the examination and  a competitive  examination.  The  examining body or  the authority  prescribes minimum  pass marks. If a person obtains  the  minimum  marks  as  prescribed  by  the authority he  is  declared  successful  and  placed  in  the respective grade  according to  the number of marks obtained by him.  In such  a case  it  would  be  obligatory  on  the examining authority  to  prescribe  marks  for  passing  the examination as well as for securing different grades well in advance. A  competitive examination  on the other hand is of different  character.   The  purpose   and  object   of  the

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competitive  examination   is  to   select   most   suitable candidates for  appointment to public services. A person may obtain sufficiently  high  marks  and  yet  he  may  not  be selected on  account of  the limited  number  of  posts  and availability of  persons of higher quality. Having regard to the nature  and characteristics of a competitive examination it is not possible nor necessary to give notice 821 to  the   candidates  about  the  minimum  marks  which  the Commission may  determine for  purposes of  eliminating  the unsuitable candidates.  The rule of natural justice does not apply to a competitive examination.      The  question   arises  as   to  whether  the  unplaced candidates included in the third list" were appointed to the service on  the result  of the  competitive  examination  of 1970. We  have already referred to necessary facts in detail indicating  the   circumstances  under  which  the  unplaced candidates (included  in the third list) of 1970 examination were appointed.  Initially the Public Service Commission had fixed 40  per cent  of aggregate  marks and  35 per  cent as minimum  marks  in  the  viva  voce  test  for  judging  the suitability  of   candidates  and   on  that  basis  it  had recommended 46  candidates for  appointment but subsequently on a  suggestion  made  by  the  Government  the  Commission forwarded another  list of  33 candidates for appointment to service on  the basis  of 35 per cent marks in the aggregate as well  as 35  per cent  minimum marks  in  viva  voce.  In forwarding the first and the second list, the Commission had applied the criteria of minimum marks of 35 per cent in viva voce test.  The Commission had not recommended any candidate in either of the two lists, who had failed to secure minimum marks of  35 per cent in viva voce test. After the amendment of Rule  19 and  deletion  of  the  two  proviso  the  State Government  on   the  representation   of  the  unsuccessful candidates  of  1970  examination  made  suggestion  to  the Commission for approving more candidates of the Examinations held in  1967, 1968,  1969 and  1970 for  appointment to the service on  the basis  of 40  per cent of marks in aggregate disregarding the  minimum marks  fixed for  viva  voce.  The Commission refused to accept the suggestion but subsequently in pursuance  of  the  decision  taken  by  the  high  level committee  it   forwarded  the   list  of   37  unsuccessful candidates of  1970 examination who had obtained 40 per cent or more  marks in the aggregate but had not qualified in the viva voce.  The Commission  by its  letter dated  19th June, 1974 for  varded the  list of  37 candidates  to  the  State Government. The  Commissioner’s letter shows that it had not approved the appointment of those included in the third list as they had failed to secure minimum prescribed marks in the viva voce  test. During  the course  of hearing  before  us, serious dispute  and doubt  was raised on the genuineness of the annexure  to the  letter  on  behalf  of  the  "unplaced candidates." It  was suggested  on  their  behalf  that  the Commission had  approved and recommended the names mentioned in the  third list  for appointment and that it had no where stated that  they were  unsuccessful candidates or that they had not  been found  suitable by the Commission. In order to resolve this 822 controversy, on  our directive,  the State  Counsel produced the original  A of  the letter  before the  Court and  on  a perusal of the same we found that the Commission had neither in the  body of  the letter  nor in  the  annexure  appended thereto  ever   expressed  its  views  that  the  candidates mentioned therein  had been  found suitable  by it.  On  the

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contrary, the note appended to the list which was annexed to the letter   clearly stated that the candidates mentioned in the list had not been found suitable by the Commission. This would clearly  show  that  the  unplaced  candidates  (those included  in  the  third  list)  were  unsuccessful  at  the competitive examination and their names were not included in the list  of approved  candidates as contemplated by Rule 19 as they  had failed  to obtain the minimum marks in the viva voce test.  The Commission had never made any recommendation for their  appointment (  instead under the influence of the Government,  it   had  forwarded   the  list   without   its recommendation. The  appointment of unplaced candidates made in pursuance  of  the  decision  taken  by  the  high  level committee, is  not countenanced  by the  Rules. There  is no escape from the conclusion that the unplaced candidates were not appointed  to the  service on the basis of the result of the competitive  examination of  1970. Their appointment was made in breach of the Rules, in pursuance to the decision of the high  level committee.  It is  well-settled  that  where recruitment to  service is regulated by the statutory rules, recruitment must be made in accordance with those Rules, any appointment made  in breach  of rules  would be illegal. The appointment of  2 1  "unplaced candidates"  made out  of the third list  was illegal  as it  was made in violation of the provisions of the Rules. The high level committee which took decision for recruitment of candidates to the service on the basis of  the 40  per cent  aggregate marks disregarding the minimum marks fixed by the Commission for viva voce test had no authority  in law,  as the  Rules do  not contemplate any such committee  and any  decision taken  by it  could not be implemented.      We are surprised that the Chief Justice, Chief Minister as well  as the  Chairman of  the Commission agreed to adopt this procedure  which was  contrary to  the Rules.  The high level committee  even though  constituted by.  highly placed persons had  no authority  in law to disregard the Rules and to direct the Commission to make recommendation in favour of unsuccessful  candidates   disregarding  the  minimum  marks prescribed  for   the  viva   voce  test.   The  high  level committee’s view  that after  the amendment  of Rule 19, the minimum qualifying  marks  fixed  for  viva  voce  could  be ignored was  wholly wrong.  Rule 19  was amended  in January 1972, but  before that  1970 examination  had  already  been held. Since the amendment was not retrospective the 823 result of any examination held before January 1972 could not be determined  on the  basis of  amended Rules.  The  Public Service  Commission  is  a  constitutional  and  independent authority. It  plays a  pivotal role  in the  selection  and appointment  of  persons  to  public  services.  It  secures efficiency  in   the  public   administration  by  selecting suitable  and  efficient  persons  for  appointment  to  the services. The  Commission has  to perform  its functions and duties in  an independent  and objective manner uninfluenced by the  dictates of  any other  authority. It  is  not  sub- servient to  the directions  of the  Government unless  such directions are  permissible by  law. Rules vest power in the Commission to hold the competitive examination and to select suitable candidates  on the  criteria fixed by it. The State Government or  the high  level committee could not issue any directions to  the Commission  for making  recommendation in favour of those candidates who failed to achieve the minimum prescribed standards  as the  Rules did  not confer any such power on  the State  Government. In  this view  even if  the Commission had made recommendation in favour of the unplaced

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candidates  under  the  directions  of  the  Government  the appointment of  the unplaced  candidates was  illegal as the same was made in violation of the Rules.      On behalf  of the respondents the "unplaced candidates" it  was   contended  that   there  was   acute  shortage  of Munsif/Magistrates in  the State  as a result of which large number of cases were pending in the courts. In order to meet the shortage  of Munsifs State Government and the high level committee,  keeping   in  view  the  amendment  of  Rule  19 suggested to  the Commission to recommend the names of those candidates who  may have  obtained 40 per cent or more marks in the  aggregate disregarding  the minimum qualifying marks fixed for  the viva  voce test  in the  examination of 1967, 1968, 1969 and 1970. It was urged that the suggestion of the committee was  accepted by  the Commission  and therefore it forwarded the  names of 37 candidates for appointment to the service. We  have already  noticed that the Commission never agreed to the proposal. The Chairman of the Commission was a member of  the high level committee but the Commission never took any  decision to accept the proposals of the high level committee. No  material has  been placed before the court to support this  contention. On  the contrary, the Commission’s letter dated  19th June  1974, clearly  indicates  that  the Commission  as  directed  by  the  State  Government  merely forwarded the  list of  37 candidates  of 1970  examination, without  making   any  recommendation   and  yet  they  were appointed in service in breach of the Rules. But even if the Commission had  agreed to the Government’s suggestion, their appointments continued to be 824 illegal, as the same were made in breach of Rules. There was no justification  for the  appointment of  the  unsuccessful candidates in  1975, because  by that  time result  of  1972 examination had  been announced and duly selected candidates were available for appointment.      In this  context, it is necessary to consider as to how long the list of candidates for a particular examination can be utilised  for appointment. There is no express. provision in the  Rules as  to for what period the list prepared under Rule 19  can be  utilised  for  making  appointment  to  the service. In  the absence  of any  provision in  the Rules  a reason  able  period  must  be  followed  during  which  the appointment on  the basis  of the  result  of  a  particular examination should  be made.  The State  Government and  the Commission had  announced 85  vacancies for  being filled up through the  competitive  examination  of  1970.  In  normal course, 85  vacancies could  be filled  on the  basis of the result of the competitive examination of 1970 but if all the vacancies  could  not  be  filled  up  on  account  of  non- availability of  suitable candidates, the appointment to the remaining vacancies could be made on the basis of the result of the  subsequent  competitive  examination.  The  unfilled vacancies of  1970 examination  could not  be filled after 5 years as  subsequent competitive  examinations of  the  year 1972 and  of the  year 1973  had taken place and the results had been  declared. The  list prepared  by the Commission on the basis  of the  competitive examination  of a  particular year  could   be  utilised  by  the  Government  for  making appointment to  the service  before the  declaration of  the result of the subsequent examination. If selected candidates are  available   for  appointment   on  the   basis  of  the competitive examinations  of subsequent  years, it  would be unreasonable and  unjust  to  revise  the  list  of  earlier examination by  changing norms  to fill  up the vacancies as that would  adversely affect  the right of those selected at

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the subsequent  examination in  matters  relating  to  their seniority under  rule 22.  The 1970 examination could not be utilised as  a perennial source or in exhaustiable reservoir for  making  appointments  indefinitely.  The  result  of  a particular examination  must come to an end at some point of time, like  a "dead  ball" in  cricket. It could not be kept alive  for  years  to  come  for  making  appointments.  The practice of  revising the  list prepared  by the  Commission under Rule  19 at  the behest  of the Government by lowering down the  standards and  norms fixed  by the  Commission  to enable appointment of unsuccessful candidates is sub-versive of rule  of law.  This practice  is fraught  with dangers of favourtism and nepotism and it would open back door entry to the service. We are, therefore, of the opinion that once the result of the subsequent examination of 1972 was 825 declared, the  Commission  could  not  revise  the  list  of approved candidates of 1970 examination prepared by it under Rule 19 at the behest of the Government by lowering down the standard fixed by it.      In C.  Channabasavaiah v.  State of  Mysore &  Ors.,  l 1965] I  SCR 360  the Mysore  Public Service Commission made selection and appointment to services in the Mysore State to Class I  and II  posts of Administrative Services. After the viva voce  interviews were  held the  Commission published a list of  98 successful  candidates who were appointed. After the announcement of the results, the State Government sent a list  of   24  candidates   for  the  consideration  of  the Government  and   the  Commission   approved  it.  These  24 candidates also  were appointed.  16 candidates  who had not been selected  filed a  writ petition before the Mysore High Court. During the pendency of the writ petition a compromise was effected,  as a  result of  an undertaking  given by the Government before the High Court and the 16 petitioners were also appointed.  Thereafter, some  other candidates  who had not been  selected, filed  petition under  Article 32 of the Constitution before  this Court challenging the selection of 24 candidates  selected by the Government and the 16 persons who had  filed the  writ petition.  This Court set aside the appointments made  at the  instance of the Government and of the 16 writ petitioners. The Court observed:           "It seems  surprising that  Government should have           recommended as  many a  twenty four  names and the           Commission should have approved of all those names           without a  single exception even though in its own           judgment some  of them  did not  rank as  high  as           others they  had rejected.  Such  a  dealing  with           public appointments  is likely to create a feeling           of distrust  in the  working of the Public Service           Commission, which  is  intended  to  be  fair  and           impartial  and  to  do  its  work  free  from  any           influence from any quarter."      The procedure adopted for selection and the appointment practiced discrimination in violations of Articles 14 and 16 of the  Constitution. While  setting aside the selection and appointment the Court observed:           "It is  very unfortunate that these persons should           be uprooted  after they  had been appointed but if           equality and  equal protection before the law have           any meaning  and if our public institutions are to           inspire that  confidence which is expected of them           we would  be failing  in our  duty if  we did not,           even at the cost of considerable inconvenience to 826           Government and  the selected  candidates to do the

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         right thing." In Umesh  Chandra Shukla v. Union of India & Ors., [ 1985] 3 SCC 72  1 a competitive examination was held for appointment to  the  posts  of  subordinate  Judges  in  Delhi  Judicial Service. Out  of the  candidates who appeared in the written examination only  27 candidates  could qualify for viva voce test. The  High Court  approved the  list  of  27  qualified candidates  but   having  regard   to  the  fact  that  some candidates who had otherwise scored very high marks had been kept out of the zone of consideration for final selection by reason of  their having  secured one  or two marks below the aggregate  or   the  qualifying  marks  prescribed  for  the particular paper, the High Court directed that moderation of two marks  in each  paper to  every candidate  be done. As a result of moderation of two marks a second list was prepared showing  the   names  of  eight  more  candidates  who  also qualified for  viva voce  test. Petitions  were filed by the unsuccessful candidates challenging the procedure adopted by the  High   Court  and   the  selection   committee  in  the preparation of  the final list of the successful candidates. This Court  struck down  the list prepared by the High Court after adding  the moderation  marks. The Court observed that the High  Court  had  no  power  to  include  the  names  of candidates  who   had  not  initially  secured  the  minimum qualifying marks  by resorting  to the device of moderation, particularly when  there was  no complaint  either about the question papers  or about the mode of valuation. In striking out  the  list  prepared  by  the  High  Court,  this  Court observed:           "Exercise of such power of moderation is likely to           create a  feeling of  distrust in  the process  of           selection to public appointments which is intended           to be  fair and  impartial. It  may also result in           the violation of the principle of equality and may           lead to arbitrariness."      We are  in agreement  with the  views expressed  in the aforesaid  decisions.   The  appointment   of  the  unplaced candidates of  1970 examination  at the  behest of  the high level committee  was unwarranted by law and it was likely to create a feeling of distrust in the process of selection for appointment to  public services which is intended to be fair and impartial.  The high  level committee  had no  power  to lower down the standards fixed by the Commission with a view to  accommodate  unsuccessful  candidates  in  the  judicial services. The  procedure adopted  in appointing the unplaced candidates of  1970 examination  was unauthorised by law and it practiced discrimination in violation of 827 Article 14 and Article 16 of the Constitution. A      The unplaced  candidates were  appointed to the service in breach  of the Rules and they form a separate class. They cannot be  equated with  those who  were  appointed  to  the service from  the first  and second list of 1970 examination as their  appointment was  made on the recommendation of the Public  Service   Commission.  They   remain   unchallenged. Similarly, candidates  appointed to the service on the basis of the  result of the competitive examination of 1972 before the unplaced  candidates  were  appointed,  formed  separate class as  they were  also appointed  in accordance  with the Rules. The  "unplaced candidates" of 1970 examination cannot claim seniority  over them  on the basis of Rule 22 as their appointment was  not made  on the basis of the list approved by the  Commission under Rule 19. In Shitla Prasad Shukla v. State of  U.P. &  Ors. [1986] Supp. SCC 1985 this Court held that an  employee must  belong to  the same stream before he

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can  claim   seniority  vis-a-vis  others.  Those  appointed irregularly belong  to a  different stream  and they  cannot claim seniority  vis-a-vis those who may have been regularly and properly appointed.      We have  recorded findings  that 21 unplaced candidates of 1970  examination were appointed to the service illegally in breach  of the Rules. We would, however, like to add that even though their appointment was not in accordance with law but the  judgment and orders passed by them are not rendered invalid. The  unplaced candidates  are not  usurpers  of  of fice, they  were appointed by the competent authority to the posts of  munsifs with  the concurrence  of the  High Court, though they  had not  been found  suitable  for  appointment according  to   the  norms   fixed  by  the  Public  Service Commission. They  have been  working in the judicial service during all  these years  and some of them have been promoted also and  they have  performed their functions and duties as de facto  judicial officers.  "A person who is ineligible to judgeship, but  who has nevertheless been duly appointed and who exercise  the powers  and duties  of the of fice is a de facto judge,  he acts validly until he is properly removed." Judgment and orders of a de facto judge cannot be challenged on the  ground of  his ineligibility  for appointment.  This doctrine in  founded upon  sound principles of public policy and justice.  In Achanti  Sreenivasa Rao  & Ors. v. State of Andhra Pradesh,  [1981] 3  SCC 133  the de facto doctrine in relation to  a judicial  officer was  considered at  length. Chinnappa Reddy, J. speaking for the court observed:           "A judge, de facto, therefore, is one who is not a           mere 828           intruder or  usurper but  one  who  holds  office,           under  colour  of  lawful  authority,  though  his           appointment is defective and may later be found to           be defective.  Whatever be the defect of his title           to the  office, judgments  pronounced by  him  and           acts done  by him  when he  was clothed  with  the           powers  and   functions  of   the  office,  albeit           unlawfully, have  the same  efficacy as  judgments           pronounced and  acts done by a judge de jure. Such           is the  de facto  doctrine, born  of necessity and           public policy  to prevent  needless confusion  and           endless mischief.  There is  yet another rule also           based on  public policy. The defective appointment           of a  de facto judge may be questioned directly in           a proceeding  to which he be a party but it cannot           be permitted  to be  questioned  in  a  litigation           between two  private litigants, a litigation which           is of  no concern  or  consequence  to  the  judge           except as  a judge. Two litigants litigating their           private titles  cannot be  permitted to  bring  in           issue and  litigate upon  the title  of a judge to           his  office.   Otherwise,  so   soon  as  a  judge           pronounces  a   judgment  a   litigation  may   be           commenced for  a declaration  that the judgment is           void because  the judge  is no  judge.  A  judge’s           title  to   his  office  cannot  be  brought  into           jeopardy in  that fashion.  Hence the rule against           collateral  attack   on   validity   of   judicial           appointments. To question a judge’s appointment in           an appeal against his judgment is, of course, such           a collateral attack." We have  adverted to  this aspect  of the  case in  order to avoid any  challenge to the validity of judgments and orders by the  unplaced candidates  of the  1970 examination on the

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ground on  legal infirmity in their appointments. But having regard to the period of 12 years that have elapsed we do not propose to strike down their appointments.      Now the  question arises as to what seniority should be assigned  to   the  unplaced  candidates.  Their  claim  for assigning them  seniority on  the basis  of the  competitive examination of  1970 is  not sustainable in law as discussed above. They  were appointed  to service  after five years of the examination  and before  their  appointment  competitive examination of  1972 had taken place and candidates selected under that  examination had  been appointed to service prior to their  appointment. The  directions issued  by  the  High Court for  rearranging the  merit list  of 1970  examination seriously affect  the seniority  of those who were regularly selected in accordance with the norms prescribed by the 829 Commission. Having  regard to  these facts and circumstances of the case we are of the opinion that the view taken by the High  Court   on  its  administrative  side  and  the  State Government that  the unplaced candidates of 1970 examination should be  assigned seniority  below the  last candidates of 1972 examination  appointed  to  the  service  is  just  and reasonable. In  our opinion  it would  be just and proper to assign  seniority   to  the   unplaced  candidates  of  1970 examination at  the bottom  of the  list of 1972 candidates. There were  37 unplaced  candidates of  1970 examination who were included  in the  third list, out of them 16 candidates appeared in  the 1972  examination and  they were successful and their  names were approved by the Commission in the list prepared under  Rule 19. The State Government appointed them in service.  Under Rule 22 they are entitled to seniority of 1972 examination  but in  view of  the judgment  of the High Court  in   Rafiquddin’s  case   their  seniority  has  been determined on  the basis  of their  recruitment  to  service under  the   1970  examination.  We  have  already  recorded findings that  unplaced candidates  of 1970  examination (as included in  the third  list) have  not  been  recruited  in service according  to the  Rules and  their  recruitment  to service  cannot   be  treated  under  1970  examination  for purposes of  determining their  seniority under  Rule 22. We have further  directed that  21 unplaced  candidates of 1970 examination should  be placed  below the  candidates of 1972 examination But  so  far  as  16  remaining  candidates  are concerned, they  were appointed to the service on the result of 1972  examination and  their appointment  does not suffer from any  legal infirmity.  They are  therefore entitled  to seniority of 1972 examination on the basis of their position in the  merit list of that examination. They are however not entitled to  the seniority  of 1970  on  the  basis  of  the examination of that year as held by the High Court.      We accordingly  set aside  the order  of  the  Division Bench dated  30.3.1982 and  direct the  High Court  and  the State Government  to  determine  the  seniority  of  the  21 unplaced candidates  of 1970  examination by placing them at the bottom of the candidates appointed on the result of 1972 examination. We  accordingly allow  Civil Appeal No. 4023 of 1982 and Civil Appeal No. 4024 of 1982.      Civil Appeal No. 3736 of 1982.      This appeal is directed against the judgment of another Division Bench  of  the  High  Court  consisting  of  Satish Chandra and  A.N. Verma,  JJ. dated  30th March,  1982.  The appellants  appeared   at  the  1970  examination  but  they remained unsuccessful as they had failed to 830 secure 35  per cent  of minimum marks at the viva voce test,

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although they had secured higher marks in the aggregate then those selected  and appointed. They challenged the selection made in  pursuance of  1970 examination.  The Division Bench held that  since the  minimum marks fixed for viva voce test was integral  part of  the examination and as the appellants had failed  to secure  the requisite  minimum marks  in viva voce test,  they. were  not entitled  to selection. The view taken by  the Division  Bench is  consistent with  our view. Accordingly, we dismiss the appeal. Writ Petition 4636 of 1982.      The Petitioner  O.P.. Aggarwal  was unsuccesful  at the 1970 examination  as he  failed to  obtain the minimum marks prescribed for viva voce test, although he had obtained more than 40  per cent  marks in  the aggregate.  For the reasons stated earlier he cannot be granted relief of appointment to the service.  Further he is disentitled to any relief on the ground of  inordinate delay. The validity of the examination of 1970  was challenged  before this Court in 1982. There is no plausible  explanation for  the delay.  The  petition  is liable to be dismissed and we accordingly dismiss it. Writ Petition No. 12818 of 1984.      The petitioner  was recruited  to the  service  on  the basis  of   the  competitive  examination  of  1972.  He  is aggrieved by  the direction  issued by the Division Bench of the High  Court in  Rafiquddin’s case,  as his seniority was affected adversely.  We have already taken the view that the unplaced candidates  of 1970 examination cannot be senior to the candidates  appointed in  the service as a result of the 1972 examination. The writ petition succeeds to that extent.  Transfer Case No. 15 of 1987.      The petitioners  were recruited  to the  U.P.  Nyayayik Seva  on   the  basis  of  the  result  of  the  competitive examination of  1972. They  are aggrieved  by the  direction issued by  the  Division  Bench  in  Rafiquddin’s  case  for rearranging the  seniority. Since  we have already expressed the view  that the  unplaced candidates  of 1970 examination are not  entitled to seniority over the candidates appointed to the  service on  the result  of the 1972 Examination. The petition is to succeed partly. Writ Petition No. 13047 of 1985. 831      The  petitioner   was  appointed  to  service  on  22nd November 1976  on the  basis  of  the  result  of  the  1973 examination. His main grievance is that respondent Nos. 3 to 15 to  the petition  have been  shown senior to him although they were  appointed in service between May 1976 to November 1977 on  the basis  of the result of competitive examination of 1972.  Since the  respondents were  treated senior by the High Court, they were promoted to the post of Chief Judicial Magistrate/Civil Judge  ignoring the  petitioner’s claim. On behalf of  the petitioner,  two submissions  were made:  (i) respondent Nos.  3 to  15  were  appointed  later  in  time, consequently  they   cannot-  be   treated  senior   to  the petitioner; (ii) the selection and appointment of respondent Nos. 3  to 15  was against  rules and  as such  they are not entitled to seniority over the petitioner who is a regularly selected candidate.      We  do  not  find  any  merit  in  either  of  the  two submissions. Rule 22 lays down criteria for determination of the seniority  of members  of service.  It directs  that the seniority shall  be determined  on the  basis of the year of examination which  means that  a  person  recruited  to  the service in  pursuance of  the result of a particular year of examination would  rank  senior  to  the  candidate  who  is recruited to  service in  pursuance of  result of subsequent

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year of  examination although  he  may  have  actually  been appointed  earlier   in  time.   After  the   selection   of candidates,  several   formalities   are   followed   before appointment is  made under Rule 2 1. The selected candidates are required to undergo medical examination, their character and antecedents  are verified and the approval of High Court is obtained  and only  thereafter the Governor appoints them by issuing  notification. Many  a time,  this process causes delay in  making the  actual appointment and in that process sometimes  persons  selected  on  the  basis  of  subsequent examination are  appointed before  the successful candidates of earlier examination are appointed. But in view of Rule 22 the latter  shall be  senior to  the former inrrespective of the date  of appointment.  Since there has been no challenge to Rule  22 and  the appointment  is not shown to be illegal for the  reasons which we presently give, it must be applied in its  plain terms  in determining  the seniority  of those recruited  to   service  in   accordance  with   Rules.  The petitioner was  appointed in  service on  the basis  of  the result of the 1973 examination while respondent Nos. 3 to 15 were recruited  to service on the basis of the result of the 1972 examination.  Therefore,  according  to  Rule  22,  the respondent Nos.  3 to  15 are  entitled to  be senior to the petitioner. The  mere fact that the petitioner was appointed few  months   before  the  respondent  Nos.  3  to  15  were appointed, cannot override the express provision of Rule 22. 832      As regards,  the second  submission raised on behalf of the petitioner,  we  do  not  find  any  illegality  in  the appointment of  respondent Nos.  3 to  15.  The  competitive examination of  1972 was held for recruiting 150 candidates, the examination  was held  in 1973  and 1974.  16 successful candidates of  1972 examination were included in the list of 37  unplaced   candidates  of   1970  examination   and  the Government 13 had appointed them in service treating them as unplaced candidates  of 1970  examination. On the request of the State  Government, the  Public Service  Commission  made recommendation in  favour of 16 more candidates on the basis of result  of 1972  examination which  included the  name of respondent Nos.  3 to  15 and  they were  appointed  to  the service between May 1976 to November 1977. Their appointment in  service   was  made  by  the  State  Government  on  the recommendation  of   Public  Service   Commission  made   in accordance with  Rule 19  as they had obtained the requisite aggregate marks  in the  written and  viva voce test. Unlike the 21 unplaced candidates of 1970 examination respondents 3 to 15  were appointed in accordance with the Rules, they are therefore entitled  to their  seniority in terms Rule 22. We find no merit in the petition.      Before we  close we would like to refer certain aspects which came  to our  notice during  the hearing  of the  case relating  to   the  functioning   of  the   Public   Service Commission, selection of candidates and their appointment to the Judicial  Service. We  were distressed  to find that the Public Service  Commission has been changing the norms fixed by it  for considering  the suitability of candidates at the behest of  the State  Government after  the  declaration  of results. We  have noticed  that while  making selection  for appointment to the U.P. Judicial’ Service the Commission had initially fixed  40 per  cent aggregate marks and minimum 35 per cent  marks for  viva voce test and on that basis it had recommended list  of 46  candidates only.  Later on  at  the instance of  the State Government it reduced the standard of 40 per  cent marks  in aggregate  to 35 per cent and on that basis it forwarded a list of 33 candidates to the Government

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for appointment  to the  service. Again at the behest of the State Government  and with  a view to implement the decision of the  high level  committee consisting  of Chief  Justice, Chief Minister  and the Chairman of the Commission forwarded name of 37 candidates in 1974 ignoring the norms fixed by it for judging the suitability of candidates. The Commission is an independent  expert body. It has to act in an independent manner in  making the  selection on the prescribed norms. It may consult  the State  Government and  the  High  Court  in prescribing  the   norms  for  judging  the  suitability  of candidates if no norms are prescribed in the Rules. Once the Commis 833 sion  determines  the  norms  and  makes  selection  on  the conclusion of  the competitive  examination and submits list of the  suitable candidates  to the Government it should not reopen the  selection by  lowering down  the  norms  at  the instance of  the Government. If the practice of revising the result of  competitive  examination  by  changing  norms  is followed there  will be  confusion and  the people will lose faith in  the institution  of Public  Service Commission and the authenticity of selection. The State Government had made a   preposterous   suggestion   to   the   Commission   that unsuccessful  candidates  of  1967,  1968,  1969  should  be selected and  recommended for  appointment by  ignoring  the marks obtained  by them in viva voce test. If the Commission had accepted  the Government’s  suggestion and forwarded the list and  appointments had  been made in 1975 as was done in the case  of unplaced  candidates of  1970  examination,  it would have  made a  mockery of  the entire system. We are of opinion that  the Commission should take firm stand in these matters in making the selection in accordance with the norms fixed  by  law  or  fixed  by  it  in  accordance  with  law uninfluenced by  the  directions  of  the  State  Government unsupported by the Rules.      We have  noticed that a retired Judge of the High Court is appointed as an expert to assist the Commission in making the selection  for appointment to the Judicial Service. This practice is  not  desirable  .  In  A.  K.  Yadav’s  case  a Constitution  Bench   of  this   Court  observed  that  when selection for  judicial service  of the  State is made it is necessary to  exercise the utmost care to see that competent and able  persons possessing  a  high  degree  are  selected because if we do not have good competent and honest judicial officers the  democratic quality of the State itself will be in serious  peril.  It  is  therefore  essential  that  when selections to  the judicial service are being made a sitting Judge of  the High  Court should  be nominated  by the Chief Justice of  the State  to participate in the interview as an expert. The  Constitution  Bench  further  observed  that  a sitting High  Court Judge  would be  in a better position to give advice  to the  Commission in  the matter  relating  to selection of  suitable candidates  and his  advice would  be binding on the Commission unless there are strong and cogent reasons for  not accepting  such advice  and such strong and cogent reasons  must be  recorded in writing by the Chairman and members  of the  Commission. The  Constitution Bench had issued directions  to the Public Service Commission of every State to  follow this  direction but  it appears that in the State of  U.P. this  direction is  not  being  followed.  We therefore direct that in future selection for appointment to the Judicial  Service shall be made by the Commission on the expert advice of a sitting 834 Judge of the High Court nominated by the Chief Justice.

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    There is  another aspect  which requires consideration. Seniority of officers recruited to the service is determined on the  basis of  the year  of the  competitive  examination under  which  they  are  recruited.  We  have  noticed  that generally  there   is  a  considerable  interreguum  between holding of  the  examination  and  the  appointment  of  the selected candidates.  Those selected  under 1970 examination were appointed  in 1973, 1974, and 1975 while those selected under the  1972 examination  were appointed in 1975 and 1976 and also  in 1977.  Similarly the  successful candidates  of 1973 examination  were appointed in 1976 and 1977. No system was  followed   in  making   appointments  as  some  of  the candidates selected in subsequent examination were appointed earlier to  those selected  under the  earlier  examination, with the result those appointed to the service later in time are made  senior to  those appointed  in service  earlier in time in  accordance with  Rule 22. This causes heart burning and  other   complications.  In   order   to   avoid   these complications it  is necessary  that every  effort should be made to  appoint the  successful candidates  of a particular examination before  any candidate  of subsequent examination is appointed.  If for  some reason  this is not possible the State Government and the High Court both should consider the desirability of  amending the  Rule 22  to ensure  that  the length of service rendered by an officer is respected.      In the  result, Civil Appeal No. 4023 of 1982 and Civil Appeal No.  4024 of 1982 and allowed. Civil No. 3736 of 1982 is dismissed.  Writ Petition  No.  4636  of  1982  and  Writ Petition No.  13047 of  1985 are dismissed Writ Petition No. 128 10 of 1985 and Transfer Case No. 15 of 1987 (transferred petition) are  allowed partly.  There will be no order as to costs in these cases. S.L 835