Bhanu Pratap Vs. State
of Haryana & Ors.
JUDGMENT
Dr. MUKUNDAKAM
SHARMA, J.
1.
Leave
granted.
2.
In
this appeal we are called upon to decide an issue pertaining to an appointment to
the Post of Subordinate Judge under the Haryana Civil Services [Judicial Branch]
Examination which was advertised in 2003 and for which the selection process was
completed in 2004. Thereafter two candidates who alone were selected have been appointed
and joined their services on 18.03.2005 and 07.07.2005, respectively.
3.
Even
subsequent thereto advertisements have been issued for filling up similar
vacancies in 2008 and 2010 which process was also long completed and persons selected
have also been appointed pursuant to the said selection process. We are also informed
that in 2011, further 111 posts have been advertised for which selection
process has been initiated.
4.
The
appellant herein submitted his application as against the aforesaid advertisement
issued by the respondents in 2003 for filling up 73 posts of Subordinate Judges
under Haryana Civil Services [Judicial Branch] Examination. The appellant appeared
in the written tests and was declared successful and thereafter he was called
for interview. Incidentally out of 3,471 candidates who appeared for the written
examination, only 3 persons obtained more than 50% marks in the written examination
and were eligible under the extant Rules for being called for interview/viva- voce.
All the 3 candidates called for interview duly appeared before the interview board
constituted by the Haryana Public Service Commission [for short "the
Commission"] in which one of the then Judges of the Punjab and Haryana High
Court was called as an Expert Advisor who was present during the process of the
interview.
5.
It
transpires from the records that in the interview conducted by the Commission
total marks allocated for the interview/viva-voce test were 120 and one Shri
Vivek Nasir obtained 72 marks out of 120, whereas, Shri Anubhav Sharma was
awarded 60 marks out of 120. However, the present appellant could get only 20 marks
out of the total marks of 120 for the interview. Since he failed to qualify in
terms of Rule 8 of the Haryana Civil Services (Judicial Branch) Rules [for
short "the Rules"] he was not appointed to the said post.
6.
Feeling
aggrieved the appellant filed a Writ Petition before the Punjab and Haryana High
Court at Chandigarh which was registered as CWP No. 12205 of 2005 in which he sought
for a writ of mandamus directing his appointment to the post of Judicial
Officer. In the Writ Petition his contention was that since he received total
aggregate marks of 508 out of 1020 total marks, i.e., 49.8% and since the marks
obtained by him was short of 50% by just two marks the same should be rounded off
to the qualifying marks of 50% in aggregate in terms of Rule 8 of the Rules.
7.
It
was contended that shortage of the percentage of half or less was to be rounded
off and when the petitioner had obtained 49.8% in the whole aggregate after
viva voce test, he should have been treated to have obtained 50% and should
have been deemed to have qualified. The aforesaid contention of the appellant, however,
was rejected by the Single Judge of the High Court and the Writ Petition filed by
the appellant was dismissed, which order was further upheld by the Division
Bench on appeal. Being aggrieved by the dismissal of his Writ Petition and
Letters Patent Appeal, the appellant filed the present appeal in this Court, on
which we heard the learned counsel appearing for the parties who had also taken
us through the entire records.
8.
Appointment
to the post of Subordinate Judge (HCS Judicial Branch) is guided by Haryana Civil
Services [Judicial Branch] Rules, which are statutory in nature. Rule 7(1), 7 (2)
and 8(1) specifically deal with the minimum marks that a candidate has to obtain
to qualify in the written test and also for selection. The said provisions are
extracted hereinbelow for ready reference: - "7(1) No candidate shall be credited
with any marks in any paper unless he obtains at least thirty three per cent
marks in it. (2) No candidate shall be called for the viva-voce test unless he obtains
at least fifty per cent qualifying marks in the aggregate of all the written papers
and thirty three per cent marks in the language paper, Hindi in (Devnagri
Script). ........................................................ ........................................................
8(1) No candidates shall be considered to have qualified in the examination unless
he obtains at least 50% marks in the aggregate papers including viva-voce test."
9.
In
the advertisement issued by the respondents for filling up the said post along
with instructions and information for candidates it was specifically mentioned that
the syllabus of the examination would be as contained in Schedule under Rule 9
of para `C' of the Rules relating to the appointment of Subordinate Judges in Haryana.
The said syllabus was set out in detail showing the compulsory papers, description
of subjects, maximum marks for each subject. It was also communicated that for viva-voce
test there will be 120 marks. The rules with regard to the conduct of the
written examination were also set out therein. In clause (g)(i) thereof it was
indicated that no candidate shall be considered to have qualified in the
examination unless he obtains at least 50% marks in the aggregate of all papers
including viva-voce test. It was also stated thereafter in the advertisement that
the merit of the qualified candidates shall be determined by the Haryana Public
Service Commission strictly according to the aggregate marks obtained in the
written papers and viva-voce. For the viva- voce test it was provided in the
advertisement that it will be a test relating to the matters of general interest
and is intended to test the candidate's alertness, intelligence and general
outlook. It was Page 5 of 11 reiterated thereunder also that the merit of the qualified
candidates would be determined by the Haryana Public Service Commission
strictly according to the aggregate marks obtained in the written papers and
viva-voce.
10.
As
stated hereinbefore, a sitting Judge of the Punjab and Haryana High Court was associated
as an Expert Advisor at the time of viva-voce test which consisted of 120
marks. The total 120 marks of viva-voce test were divided under four heads evaluating
the personal quality of the candidates as follows: - "a) Awareness,
outlook, Subject knowledge 30 marks and general interest b) Articulation and
expression 30 marks c) Intelligence and alertness 30 marks d) Poise, bearing
and other qualities 30 marks"The Judge of the High Court was to classify a
candidate as Expert Advisor under the following categories: - "Class Marks
Range Excellent (E) 26-30 V. Good (G+) 21-25 Good (G) 16-20 Above average (A+) 11-15
Average (A) 06-10 Poor (P) 01-05"
11.
It
is brought out on records that the Judge present in the interview graded Anubhav
sharma as `G', i.e., `Good' placing him within the mark range of 16-20, whereas
Bhanu Partap was graded as "P", i.e., `Poor' placing him within the
mark range of 01- 05 and Vivek Nasir was graded as "A+", i.e., `Above
Average' placing him within the mark range of 11-15. The aforesaid grading criteria
to be awarded by the Judge for evaluating the personal quality of the candidates
were circulated to the members of the Selection Committee for viva-voce examination
as a guideline before the viva-voce examination. Therefore, the minimum marks which
could be given to the appellant in each of the heads, was only one and in this
case, the Chairman, and the members of the Commission had given him the maximum
marks, i.e., 5 marks, under each of above-mentioned four heads and consequently
he got 20 marks out of 120 ascribed to the viva-voce examination.
12.
Counsel
appearing for the appellant submitted before us that since the appellant had received
49.8% in aggregate in all the tests including viva-voce, the same could and should
have been rounded off to 50% in aggregate which would have entitled the appellant
to be selected for appointment to the aforesaid post. Counsel also submitted that
during the earlier selection immediately preceding the selection in question there
was the requirement of grading under three factors/categories only and the same
came to be varied/increased in the selection in question from three to six. He contended
that this increasing of grading factors/categories from three to six envisages
much wider criteria in the selection process in question which amounted to arbitrariness.
13.
The
aforesaid submissions of the counsel appearing for the appellant were however refuted
by counsel appearing for the respondents by submitting that the respondents
have strictly and minutely followed and complied with the Rules which are statutory
in nature and, therefore, the present appeal has no merit at all. He also submitted
that there cannot be addition of any marks unless the same is specifically
permitted and provided either under the Rules or in the advertisement and, therefore,
there was no illegality or arbitrariness in the selection in question.
14.
In
the light of the records placed before us we have considered the aforesaid
submissions of the counsel appearing for the parties. The relevant Rules have already
been extracted above. A bare reading of the aforesaid rules would make it
crystal clear that in order to qualify in the written examination a candidate has
to obtain at least 33% marks in each of the papers and at least 50% qualifying marks
in the aggregate in all the written papers. The further mandate of the rules is
that a candidate would not be considered as qualified in the examination unless
he obtains at least 50% marks in the aggregate including viva-voce test. When emphasis
is given in the Rules itself to the minimum marks to be obtained making it clear
that at least the said minimum marks have to be obtained by the concerned
candidate there cannot be a question of relaxation or rounding off as sought to
be submitted by the counsel appearing for the appellant.
15.
There
is no power provided in the statute nor any such stipulation was made in the advertisement
and also in the statutory Rules permitting any such rounding off or giving grace
marks so as to bring up a candidate to the minimum requirement. In our
considered opinion, no such rounding off or relaxation was permissible. The
Rules are statutory in nature and no dilution or amendment to such Rules is permissible
or possible by adding some words to the said statutory rules for providing or
giving the benefit of rounding off or relaxation.
16.
We
may also draw support in this connection from a decision of this Court in District
Collector & Chairman, Vizianagaram Social Welfare Residential School Society,
Vizianagaram and Another. v. M. Tripura Sundari Devi reported in (1990) 3 SCC 655.
In the said judgment this Court has laid down that when an advertisement mentions
a particular qualification and an appointment is made in disregard of the same then
it is not a matter only between the appointing authority and the appointee concerned.
The aggrieved are all those who had similar or even better qualifications than the
appointee or appointees but who had not applied for the post because they did not
possess the qualifications mentioned in the advertisement.
17.
In
the case of Umrao Singh Vs. Punjabi University, Patiala and Ors. reported in (2005)
13 SCC 365 this Court while dealing with the power of Selection Committee for relaxation
of norms held thus: - "Another aspect which this Court has highlighted is scope
for relaxation of norms. Although Court must look with respect upon the
performance of duties by experts in the respective fields, it cannot abdicate
its functions of ushering in a society based on rule of law. Once it is most
satisfactorily established that the Selection Committee did not have the power
to relax essential qualification, the entire process of selection so far as the
selected candidate is concerned gets vitiated. In P.K. Ramchandra Iyer and Ors.
v. Union of India and Ors. (1984)ILLJ314SC this Court held that once it is
established that there is no power to relax essential qualification, the entire
process of selection of the candidate was in contravention of the established norms
prescribed by advertisement. The power to relax must be clearly spelt out and
cannot otherwise be exercised."
18.
Let
us also examine the issue from another angle. If rounding off is given to the appellant
as sought for by him there has to be similar rounding off for a person who has missed
33% in one of the papers just by a whisker. To him and to such a person who could
not get 50% in aggregate in the written test, if this rule of rounding off is
offered then they would also get qualified. In that event, there would be no meaning
of having a rule wherein it is provided that a person must at least have the
minimum marks as provided for thereunder. Somewhere a line has to be drawn and that
line has to be strictly observed which is like a Lakshman Rekha and no variation
of the same is possible unless it is so provided under the Rules itself. Both
the Selection Committee as also the appointing authority are bound to act within
the parameters of the Rules which are statutory in nature and any violation or
any relaxation thereof whether by way of giving grace marks or rounding off would
be acting beyond the parameters prescribed which would be illegal.
19.
In
that view of the matter, we find no merit in this appeal, which is dismissed
but leaving the parties to bear their own costs.
................................................J
(Dr. MUKUNDAKAM SHARMA)
................................................J
(ANIL R. DAVE)
NEW
DELHI,
AUGUST
2, 2011.
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