Hemani
Malhotra Vs. High Court of
Delhi [2008]
INSC570 (3 April 2008)
CJI K.G. BALAKRISHNAN & J.M. PANCHAL WITH
WRIT PETITION (CIVIL) NO.491 OF 2007 Vineeta Goyal Petitioner Versus High
Court of Delhi Respondent J.M. PANCHAL, J.
1. These petitions are filed under Article 32 of the Constitution wherein
the common prayer made, is to issue a writ of mandamus or any other appropriate
writ or order to direct the respondent i.e. the High Court of Delhi at New
Delhi to amend notice dated April 10, 2007 issued by Registrar (Vig.), High
Court of Delhi to the effect that the petitioner of each petition, is also
declared as selected for being recommended for appointment to the vacant post
in Delhi Higher Judicial Service and prepare a combined merit list on the basis
of total marks obtained in written examination as well as proportionate marks
of the interview, as if, the vive- voce test was of 75 marks instead of 750
marks or by adding marks obtained in written examination and the marks given to
the petitioner in the interview out of 750 marks without cut off.
2. In order to resolve the controversy raised by the petitioners in the
petitions it would be advantageous to refer to certain basic facts.
3. The respondent i.e. the High Court of Delhi at New Delhi through
Registrar General issued an advertisement inviting applications from eligible
candidates for 16 vacant posts to be filled up by direct recruitment to Delhi
Higher Judicial Service. Detailed information was given in the instructions
annexed with the Application Form. The relevant particulars stated in the
advertisement were as under:- Delhi Higher Judicial Service Examination
shall be a two stage selection process comprising the following:
(a) There shall be a written examination comprising of one paper only of 250
marks. It shall have two parts.
Part I shall be objective and Part II shall be descriptive.
Syllabus for written examination shall comprise General Knowledge, Current
Affairs, English Language and topics on Constitution of India, Evidence Act, Limitation
Act, Code of Civil Procedure, Criminal Procedure Code, Indian Penal Code,
Contract Act, Partnership Act, Principles governing Arbitration Law, Specific
Relief Act, Hindu Marriage Act, Hindu Succession Act, Transfer or Property Act
and Negotiable Instrument Act.
(b) Interview/Viva-Voce.
Minimum qualifying marks in the written examination shall be 55% for General
Candidates and 50% for Scheduled Castes and Scheduled Tribes candidates.
4. The petitioner of each petition submitted application in the prescribed
form. They were allotted relevant Roll Nos.
A written examination was conducted on March 12, 2006 wherein the
petitioners appeared. The written examination was of three hours duration
and comprised both multiple questions as well as questions with descriptive
answers. The respondent High Court did not declare the result of the written
examination at all. However, the petitioners received letter dated June 14,
2006 from the respondent asking them to appear for interview on July 12, 2006.
Since the result of the written examination conducted by the respondent was not
declared, no merit list of the successful candidates who passed the written
test was displayed and therefore it is the case of the petitioners that they
were not in a position to find out details about the number of candidates who
were declared successful in the written examination or for that matter, the
number of candidates who had qualified for viva- voce test.
According to the petitioners, the Registrar General of Delhi High Court
verified testimonials and other documents submitted by them and informed them
that the interview had been deferred and that the next date would be intimated
in due course. What is averred by the petitioners is that the respondent issued
letter dated September 4, 2006 directing the petitioners to appear for
interview on September 20, 2006 at 2.30 P.M., but on September 19, 2006 another
letter was issued intimating the petitioners that the interview fixed on
September 20, 2006 was deferred. It may be mentioned that no next date of
interview was intimated to the petitioners. The respondent High Court issued
letter dated November 9, 2006 intimating the petitioners that the interview was
fixed on November 29, 2006, but again on November 28, 2006, another letter was
issued intimating the petitioners that the interview fixed November 29, 2006
was deferred. This last letter of November 28, 2006 specified that the
interviews were to take place on December 7, 2006. According to the petitioners
on December 7, 2006 five candidates who had cleared written test gathered in
the Office of Registrar General of Delhi High Court for appearing at viva- voce
test and all the five candidates were collectively called in a Chamber by the
Selection Committee comprising five Honble Judges of Delhi High Court to
be informed that the interview had been postponed.
Meanwhile, the Selection Commettee met and resolved that as it was desirable
to prescribe minimum marks for the viva-voce the matter be placed before the
Full Court. Accordingly, the matter was placed before the Full Court for
considering the question whether minimum marks should be prescribed for
vive-voce test. The Full Court, in its meeting held on December 13, 2006,
resolved as under:- Considered. It was resolved that for recruitment to
Delhi Higher Judicial Service from Bar, the minimum qualifying marks in
viva-voce will be 55% for General candidates and 50% for Scheduled Castes and
Scheduled Tribes Candidates.
The respondent High Court thereafter issued letter dated January 17, 2007
intimating the petitioners that the vive-voce was fixed on January 23, 2007,
but on January 22, 2007 another letter was issued intimating that the interview
fixed on January 23, 2007 was postponed. Again by letter dated February 2, 2007
the petitioners were intimated that they were required to appear for interview
on February 5, 2007, but even on that day also, no interview could be held.
5. The respondent High Court issued letter dated February 23, 2007 fixing
the oral interview on February 27, 2007 and on that day viva- voce test was
finally conducted by the Selection Committee. Thereafter, the Registrar (Vig.)
issued a notice dated April 10, 2007 mentioning that only three candidates were
selected and the petitioners had not been selected. This notice was posted on
the web-site of Delhi High Court. What is claimed by the petitioners is that
the Selection Committee had not drawn final merit list on the basis of combined
result of written examination and interview because if the merit list had been
drawn on this basis, the petitioners would have obtained fourth or fifth
position in the final merit list as only five candidates had qualified for the
viva- voce test, and no cut-off marks were prescribed for viva- voce test. The
petitioners claim that they filed an application under Right to Information Act
before the Public Information Officer of High Court of Delhi on April 28, 2007
seeking information about the result etc. of Delhi Higher Judicial Service
Examination 2006. According to the petitioners the Public Information Officer
of the High Court did not supply most of the information demanded by them on
the pretext of confidentiality, but in reply dated June 20, 2007 only a part of
the information was given to the petitioner in Writ Petition No.
490 if 2007 that out of 250 marks for which written test was conducted, she
had secured 141 marks and 363 marks out of 750 marks for which viva- voce test,
was conducted. The petitioner in Writ Petition Civil No. 491 of 2007 was
informed by intimation dated June 20, 2007 that she had obtained 153.50 marks
out of 250 marks for which written test was conducted and 316 marks out of 750
marks for which viva- voce test was conducted. What is maintained by the
petitioners is that the petitioners have been excluded from being considered
for appointment to the post of Higher Judicial Services exclusively on the
basis of cut off marks prescribed at the stage of viva- voce test, which is
illegal and contrary to the principle laid down by the Supreme Court in Lila Dhar
vs. State of Rajasthan AIR 1981 SC 1777.
According to the petitioners what weightage should be attached to written
test and interview depends upon the requirement of service for which selection
is being made, but minimum cut off marks could not have been prescribed for
viva- voce test, after process for selection had commenced. It is stressed that
the oral interview was the only criteria adopted by the respondent for
selection to the posts in question which is illegal and therefore the notice
dated April 10, 2007 issued by the Registrar (Vig.), High Court of Delhi should
be directed to be amended to include names of the petitioners also as selected
candidates for appointment to the posts in question.
Under the circumstances the petitioners have invoked extra ordinary
jurisdiction of this Court under Article 32 of the Constitution and claimed the
reliefs to which reference is made earlier.
6. On service of notice, Mr. Ramesh Chand, Deputy Registrar, Delhi High
Court has filed reply affidavit controverting the averments made in the
petition. In the reply it is stated that the writ petitions filed against
prescription of minimum percentage of marks for qualifying at the viva- voce
test, is not maintainable and therefore should be dismissed. It is mentioned in
the reply that as far as selection made in the year 2000 was concerned, a
candidate was required to get minimum of 55% marks if he belonged to the
General Category and 50% marks if he belonged to the Scheduled Castes and
Scheduled Tribes category for passing the vive-voce test and as the petitioners
who belong to the General Category did not secure the minimum marks stipulated
for the vive-voce, but failed, their names were not recommended for
appointment. It is mentioned in the reply that another advertisement dated May
19, 2007 was issued for recruitment to the vacant posts in the Delhi Higher
Judicial Service wherein the petitioners had appeared but failed and therefore
also they are not entitled to the reliefs claimed in the petitions. What is
pointed out in the reply is that a candidate is required to secure the
stipulated minimum marks in the written examination in order to qualify for the
next stage i.e. vive-voce test and therefore the respondent was justified in
prescribing cut off marks at the vive-voce test. By filing the reply the
respondent has demanded dismissal of the petitions.
7. This Court has heard the learned Counsel for the parties at length and in
great detail. This Court has also considered the documents forming part of the
petitions.
8. From the record of the case it is evident that the public advertisement
was issued by the respondent for direct recruitment to Delhi Higher Judicial
Services. As per the said advertisement written examination was to be held on
March 12, 2006. The selection process was of two stages: stage one was written
examination comprising one paper only of 250 marks, whereas stage two included
interview/vive-voce. As per the advertisement minimum qualifying marks in the
written examination were specified to be 55% for General candidates and 50% for
Scheduled Castes and Scheduled Tribes candidates but no cut off marks were
prescribed for vive-voce test at all. The averments made in the petitions which
are not effectively controverted by the respondent would indicate that oral
interview was postponed by the respondent on six occasions and was finally
conducted by the Selection Committee only on February 27, 2007. However, before
that date criteria of cut off marks for vive-voce test was introduced by the
respondent. It is an admitted position that at the beginning of the selection
process, no minimum cut off marks for vive-voce were prescribed for Delhi
Higher Judicial Service Examination, 2006. The question, therefore, which
arises for consideration of the Court is whether introduction of the
requirement of minimum marks for interview, after the entire selection process
was completed would amount to changing the rules of the game after the game was
played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K.Manjusree
against the State of A.P. & Anr. decided on February 15, 2008, the question
posed for consideration of this Court in the instant petitions was considered
and answered in the following terms:- The resolution dated 30.11.2004
merely adopted the procedure prescribed earlier. The previous procedure was not
to have any minimum marks for interview.
Therefore, extending the minimum marks prescribed for written examination,
to interviews, in the selection process is impermissible. We may clarify that
prescription of minimum marks for any interview is not illegal. We have no
doubt that the authority making rules regulating the selection, can prescribe
by rules, the minimum marks both for written examination and interviews, or
prescribe minimum marks for written examination but not for interview, or may
not prescribe any minimum marks for either written examination or interview.
Where the rules do not prescribe any procedure, the Selection Committee may
also prescribe the minimum marks, as stated above. But if the Selection
Committee want to prescribe minimum marks for interview, it should do so before
the commencement of selection process. If the selection committee prescribed
minimum marks only for the written examination, before the commencement of selection
process, it cannot either during the selection process or after the selection
process, add an additional requirement that the candidates should also secure
minimum marks in the interview. What we have found to be illegal, is changing
the criteria after completion of the selection process, when the entire
selection proceeded on the basis that there will be no minimum marks for the
interview.
9. From the proposition of law laid down by this Court in the above
mentioned case it is evident that previous procedure was not to have any
minimum marks for vive-voce.
Therefore, prescribing minimum marks for vive-voce was not permissible at
all after written test was conducted. There is no manner of doubt that the
authority making rules regulating the selection can prescribe by rules the
minimum marks both for written examination and vive-voce, but if minimum marks
are not prescribed for vive-voce before the commencement of selection process,
the authority concerned, cannot either during the selection process or after
the selection process add an additional requirement/qualification that the
candidate should also secure minimum marks in the interview.
Therefore, this Court is of the opinion that prescription of minimum marks
by the respondent at vive-voce, test was illegal.
10. The contention raised by the learned Counsel for the respondent that the
decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v.
High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be
regarded either as decision per incuriam or should be referred to Larger Bench
for reconsideration, cannot be accepted. What is laid down in the decisions
relied upon by the learned Counsel for the respondent is that it is always open
to the authority making the rules regulating the selection to prescribe the
minimum marks both for written examination and interview. The question whether
introduction of the requirement of minimum marks for interview after the entire
selection process was completed was valid or nor, never fell for consideration
of this Court in the decisions referred to by the learned Counsel for the
respondent. While deciding the case of K.Manjusree (Supra) the Court noticed
the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141;
(2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3)
Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid
down the proposition of law which is quoted above. On the facts and in the
circumstances of the case this Court is of the opinion that the decision
rendered by this Court in K.Manjusree (Supra) can neither be regarded as
Judgment per incuriam nor good case is made out by the respondent for referring
the matter to the Larger Bench for reconsidering the said decision.
11. At this stage this Court notices that as per the information supplied by
the respondent to the petitioners under the provisions of Right to Information
Act, the petitioner in Writ Petition Civil No. 490/2007 had secured 142 marks
out of 250 prescribed for the written test and 363 marks out of 750 marks in
vive-voce test, whereas the petitioner in Writ Petition No. 491/2007 had
secured 153.50 marks out of 250 marks in the written test and 316 marks out of
750 marks in vive-voce test. There is no manner of doubt that the prescription
of 750 marks for vive-voce test is on higher side.
This Court further notices that Honble Justice Shetty Commission has
recommended in its Report that The vive- voce test should be in a thorough
and scientific manner and it should be taken anything between 25 to 30 minutes
for each candidate. What is recommended by the Commission is that the vive-voce
test shall carry 50 marks and there shall be no cut off marks in vive-voce
test. This Court notices that in All- India Judges Association and ors. V.
Union of India and Ors. (2002) 4 SCC 247, subject to the various modifications
indicated in the said decision, the other recommendations of the Shetty Commission
(supra) were accepted by this Court.
It means that prescription of cut off marks at vive-voce test by the
respondent was not in accordance with the decision of this Court. It is an
admitted position that both the petitioners had cleared written examination and
therefore after adding marks obtained by them in the written examination to the
marks obtained in the vive-voce test, the result of the petitioners should have
been declared. As noticed earlier 16 vacant posts were notified to be filled up
and only five candidates had cleared the written test. Therefore, if the marks
obtained by the petitioners at vive-voce test had been added to the marks
obtained by them in the written test then the names of the petitioners would
have found place in the merit list prepared by the respondent. Under the
circumstances, this Court is of the opinion that the petitions filed by the
petitioners will have to be accepted in part.
12. For the foregoing reasons both the petitions succeed. The respondent is
directed to add the marks obtained by the petitioners in the written
examination to the marks obtained by them in the vive-voce test and prepare a
combined merit list along with the other selected candidates.
The respondent is directed to amend the notice dated April 10, 2007 issued by the Registrar (Vig.), High Court of Delhi, New Delhi and declare the
petitioners as selected for being recommended for appointment to the post in
Delhi Higher Judicial Service. It is clarified that the petitioners would
neither be entitled to, seniority or salary with retrospective effect. Their
seniority shall be reckoned from the date of their appointment and salary as
allowable be paid from that date only. Rule is made absolute accordingly in
each petition.
There shall be no order as to cost.
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