advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, October 12, 2016

Service Matter - A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.”= 2013 advertisement was issued only for one ‘unreserved’ post. Had somebody else been appointed, the grievance of the petitioner might have had substance. Admittedly, nobody was appointed for the said post and the post remains vacant. Subsequent developments are also relevant and noteworthy. For filling up of three ‘unreserved’ posts of MJS Grade-I, fresh advertisement was issued on 12th August, 2015 by the High Court. The petitioner also applied for the said post. Because of litigation and certain directions thereon, selection process pursuant to the said advertisement was cancelled. In supersession of the said earlier advertisement, a fresh advertisement was issued by the High Court on 4th August, 2016 seeking applications for three ‘unreserved’ and one ‘reserved’ post of MJS Grade-I. The last date for the receipt of applications was 26th August, 2016 and the petitioner also applied for the said post. The learned senior counsel appearing for the High Court submitted that the examinations are likely to be conducted in October, 2016. When the said post of 2013 examination has now been clubbed with other vacant posts and advertised seeking applications from the eligible candidates, the petitioner cannot seek mandamus seeking for appointment for the said post with retrospective effect. The petitioner has no indefeasible right to seek appointment as District Judge (Entry Level) in the Manipur Judicial Services Grade-I. In the facts and circumstances of the case, the petitioner is not entitled to the relief sought for. 32. For the foregoing discussions, the petitioner is not entitled to the relief sought for. In the result, the Writ Petition is dismissed.

                                                   REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                       WRIT PETITION(C)No.294 of 2015
Salam Samarjeet Singh                        …..Petitioner
      Versus
High Court of Manipur at Imphal & Anr.       …..Respondents

                               J U D G M E N T

Shiva Kirti Singh, J.
I have perused the judgment written by Banumathi, J.  Since I am  unable  to
agree with the same, I hereby record my views on the  main  issues  involved
in the case.

As most of the  relevant  facts  including  the  submissions  of  the  rival
parties  as  well  as  relevant  provisions  of  rules  have  already   been
extracted, I will borrow and refer from such facts and statutory  provisions
where ever necessary.  Only to recapitulate the seminal facts, it  is  noted
that the relevant advertisement for filling up a single vacancy in the  post
of District Judge  (Entry  Level)  by  way  of  direct  recruitment  through
examination  of  2013  was  published  on  15.5.2013.    The   advertisement
disclosed that the recruitment shall be governed  by  the  Manipur  Judicial
Service (Recruitment and Conditions of Service) Rules,  2005  (for  brevity,
‘the Rules’).  The duly filled applications were to be  sent  to  Registrar,
High Court of Manipur at Imphal.  Inter alia, it was also indicated,  as  is
the position in the Rules, that for  being  called  for  viva  voce  test  a
candidate must secure in the written examination 60% marks  if  he  is  from
unreserved category and 50% if he is of reserved category.   The  viva  voce
was to carry 50 marks.  The examination was  held  in  July  2013.   As  per
initial notification dated 17.10.2013, the  Joint  Registrar  notified  that
none of the candidates was successful in  their  written  examination.   The
mark  sheet  was  published  on  29.01.2014  in  which  petitioner  being  a
scheduled caste  category  candidate  had  secured  more  than  the  minimum
qualifying marks of 50%.   In  fact  he  had  secured  52.8%  marks.   Hence
petitioner filed a representation on 04.02.2014 for reconsideration  of  his
result. On 07.02.2014 the High Court issued a corrigendum and  declared  the
petitioner as successful in the written examination.  Be it noted  that  the
petitioner was the only successful candidate for the unreserved single  post
under contest.   For almost a year the recruitment  process  remained  at  a
standstill.  Through a letter dated 29.01.2015 the petitioner  was  informed
that viva voce will be held on 12.02.2015.   The  petitioner  undertook  the
said test.   On  19.02.2015  the  petitioner  learnt  from  a  notice  dated
16.02.2015 issued by the Joint Registrar of the High  Court  and  placed  on
the Notice Board of the  High  Court  that  the  petitioner  had  failed  to
qualify in the interview.

The petitioner made a request for certain informations  under  the  RTI  Act
from the concerned officer of High Court  of  Manipur  on  21.02.2015.   The
informations sought for included queries as to whether there  was  any  pass
mark/cut-off mark out of the total 50  marks  for  the  interview  and  also
details of the particular rule under which he had failed in  the  interview.
The information was supplied on 19.03.2015 disclosing that he  had  obtained
18.8% marks in the viva voce test and the cut-off mark/pass mark is 40%  out
of total 50 marks for  the  interview.   The  High  Court  did  not  provide
reference to any particular rule under which petitioner had been  found  not
qualified in the interview.

It is not in dispute and it was subsequently discovered that the Full  Court
of the Manipur High Court had  resolved  on  12.01.2015,  only  a  few  days
before interviewing the lone candidate- the petitioner, to fix  40%  as  the
pass mark for viva-voce.  Since the petitioner was interviewed  by  all  the
three Judges of the High Court in the viva voce and  was  declared  to  have
failed on account of pass marks prescribed for viva voce examination by  the
Full Court on 12.01.2015, he did not have much  option  but  to  prefer  the
present writ petition in this Court mainly to seek the relief  for  quashing
of his viva voce result dated 16.02.2015 and for declaration of  his  result
for appointment to MJS Grade I with retrospective effect from  a  reasonable
date and/or to grant  any  just  and  equitable  relief  in  the  facts  and
circumstances of the case.

A  perusal  of  relevant  informations  given  to  the  candidates  in   the
advertisement, particularly the general instructions contained  in  Appendix
‘A’ of the Scheme of Examination  clearly  discloses  that  scheduled  caste
candidates shall be eligible for the viva voce examination on obtaining  50%
or more marks in the written examination.  It  is  also  clearly  spelt  out
that selection of candidates shall be made on the basis of cumulative  grade
value obtained in the written and viva voce examination.  In  my  considered
view the statutory mandate for selection on the basis  of  cumulative  grade
required the authorities to add the marks of both the examinations,  prepare
the merit list as per total marks for the  cumulative  grade  and  make  the
selection from such merit list.

 This mandate was violated for a  reason  that  does  not  muster  scrutiny.
Although the object of viva voce examination has been given in  some  detail
but that is only for the guidance of members of  the  Board  conducting  the
viva voce test.  The mode of evaluating the performance of  grading  in  the
written and  viva  voce  examination  has  been  indicated  in  the  general
instructions and the  same  has  already  been  noted  in  the  judgment  of
Banumathi, J.  The grade ‘F’ which provides for percentage  of  marks  below
40% corresponds to numerical grade ‘0’ but beyond that there is  nothing  to
support the submission on behalf of the High Court that ‘F’ is indicator  of
failure in the written examination or in the viva voce.   The  cut-off  mark
for the written examination is separately provided under the Rules,  to  the
effect that written examination will carry 200 marks and the  cut-off  marks
should be 60% or corresponding grade  for  general  candidates  and  50%  or
corresponding grade for SC/ST candidates.  So 40%  to  49%  denoted  by  ‘C’
also stand for fail marks for the written examination  and  therefore  there
is no basis to infer that ‘F’ standing for below 40% is  a  symbol  of  fail
marks.  Further when the Rules explicitly specify the  pass  marks  for  the
written examination and conspicuously make no such provision in  respect  of
viva voce examination,  rather  provide  to  the  contrary  that  the  final
selection list will be by combining the cumulative grade value  obtained  in
the written and the viva voce examination, nothing can be  gainsaid  on  the
basis of evaluating procedure alone. For the purpose of deciphering  cut-off
marks or pass marks for the viva  voce  examination  there  ought  to  be  a
similar specific provision in the Rules.   But  it  was  not  there  at  the
relevant time.  It has been introduced much later in 2016.

In my considered view the Rules and  the  instructions  clearly  demonstrate
that there was no cut-off mark or pass mark for the  viva  voce  examination
in the past and therefore the High  Court  on  12.01.2015  made  a  specific
Resolution  that  no  one  shall  be  declared  passed  and   selected   for
appointment unless he secures minimum 40%  in  the  interview  (viva  voce).
This power to add to the Rules is claimed from the  provisions  of  sub-rule
(3) of Rule 1 of Schedule  ‘B’  of  the  Rules  empowering  the  recruitment
authority to take “all necessary steps not provided for in these  Rules  for
recruitment under these Rules......”.  In my  view  the  Resolution  of  the
High Court on 12.01.2015 ran counter to express provision in  the  Rules  as
to how the final merit list was to be prepared by  combining  the  marks  of
both the examinations.  Not providing any pass mark for the viva voce  while
so providing for the written examination clearly indicates  that  the  Rules
deliberately chose not to prescribe any cut-off  for  the  viva  voce.   The
explanation for the same lies in the recommendations made in this regard  by
the Shetty Commission.  The Rules are almost verbatim copy of  most  of  the
recommendations in respect of such examination  for  recruitment.   Clearly,
they also followed the recommendation of the Shetty  Commission  that  there
should not be any cut off or fail  marks  for  the  viva  voce  examination.
Such omission  was  thus  clearly  deliberate  to  facilitate  the  intended
result.  There was no gap or vacuum here and therefore Clause  1(3)  of  the
Rules is not attracted.  Hence, the Rules could not have been altered  by  a
Resolution taken by the Full Court.  We have been informed  that  ultimately
the Rules have been formally  amended  vide  notification  dated  09.03.2016
issued in exercise of powers under Article 309 read with Article 234 of  the
Constitution of India whereby, inter alia,  it  has  been  included  in  the
general instructions under Schedule ‘B’  that  candidates  securing  minimum
40% marks in the interview shall only be eligible  to  be  included  in  the
select list.  Apparently this amended rule is to come  into  force  only  in
future from a date to be specified.  But in any case it has  not  been  made
retrospective  and  rightly  so  because  such  Rules  governing   selection
procedure for recruitment cannot be amended to affect the results after  the
game has been played.

In the aforesaid facts and circumstances, the contention advanced on  behalf
of the petitioner that the impugned act of  bringing  about  change  in  the
selection procedure by providing minimum marks for interview  or  viva  voce
test in midst of the selection process  which  has  already  been  initiated
amounts to changing the rules of the game and hence impermissible,  is  well
supported by judgment in the  case  of  K.  Manjusree  v.  State  of  Andhra
Pradesh & Anr.[1] as well as in the case of Hemani  Malhotra  Etc.  v.  High
Court of Delhi[2].  In my view once petitioner  was  declared  as  the  lone
candidate having passed  in  the  written  examination,  it  matters  little
whether minimum marks for interview were introduced before or after  calling
him for interview.  The  petitioner  or  any  other  person  in  his  place,
knowing fully well that there was no separate cut-off or pass mark  for  the
viva voce, would not feel any pressure to be extra ready for the  interview.
 In order to ensure fairness, after the Full Court  decision  on  12.01.2015
to fix 40% as pass marks for viva voce, the petitioner ought  to  have  been
informed of this development, at least when intimation of date of  interview
was communicated to him through letter dated  29.01.2015.   Since  the  viva
voce was held on 12.02.2015, he would have got  some  time  to  improve  his
preparations to meet the 40% cut-off newly introduced.  That was  not  done.
In such circumstances, I do not find any material,  reason  or  circumstance
to distinguish the case of K. Manjusree as well as of Hemani  Malhotra.   In
my considered view the High Court did not  have  the  power  to  change  the
scheme of the rules  which  prescribed  pass  marks  only  for  the  written
examination, deliberately omitted the same for  viva  voce  examination  and
warranted final results after adding both the marks.  If  for  the  sake  of
arguments, such power is conceded even then the power could  not  have  been
exercised to change the rules of the game when petitioner alone was left  in
the arena and could not have been disqualified except by changing the  rules
midway.  Para 15 in the case of Hemani Malhotra  extracted  earlier  in  the
preceding judgment applies on all force like the judgment in the case of  K.
Manjusree.  Learned counsel for the petitioner has rightly  placed  reliance
on those judgments.  The judgment in the case of Ramesh Kumar v. High  Court
of Delhi & Anr.[3]  draws  some  inspiration  from  the  recommendations  of
Justice Shetty Commission’s Report in para 16 but the  general  law  already
settled  and  stated  in  para  15  also  clearly  helps  the  case  of  the
petitioner.  In my view the statutory rules did prescribe a particular  mode
of selection which  did  not  require  any  pass  mark  for  the  viva  voce
examination and it had to be given strict adherence  accordingly,  at  least
till the ongoing recruitment process got  concluded.   Since  the  procedure
was already prescribed by the Rules, in the present  case  there  was  clear
impediment in law in the way of the High Court in  proceeding  to  lay  down
minimum pass mark for the viva voce  test  which  was  meant  only  for  the
petitioner  as  he  was  the  lone  candidate  successful  in  the   written
examination.  In my view the petitioner was clearly prejudiced and  although
no case of bias has been pleaded, the impugned action would validly  attract
the criticism of malice in law.

For the aforesaid reasons alone, in  my  view,  there  is  no  need  in  the
present case to go into recommendations of the Shetty  Commission,  even  if
it be conceded for the sake of arguments that State  Government  may  decide
not to fill up posts if it  has  reasons  to  believe  that  appointing  the
selected  candidate  would  adversely  affect  the  required  standards   of
competence. That stage was never arrived at in this case.   Hence  reference
to an issue of aforesaid nature to a larger Bench by the order in  the  case
of Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.[4]  rendered  by
a Bench of three Judges will not have any effect  on  the  outcome  of  this
case.  The law laid down in the case of State of Haryana v.  Subash  Chander
Marwaha & Ors.[5] is  applicable  only  at  the  stage  when  the  selection
process is complete and  then  if  appointment  is  refused  to  a  selected
candidate for good reasons, the  candidate  may  not  have  an  indefeasible
right to claim a right of appointment.   This  course  of  action  would  be
valid, subject to satisfactory answer by the  authority  to  any  charge  of
arbitrariness.  But as noted earlier that stage has not been reached in  the
case of the petitioner.  He has been disqualified by the High Court  on  the
basis of its Full Bench Resolution taken in  the  course  of  the  selection
procedure.  That process in my view must be continued and completed  fairly,
disregarding the subsequent changes brought  about  by  the  High  Court  or
subsequent amendment of the Rules.

Hence while not delving into effect of judgment in the  case  of  All  India
Judges’ Association v. Union of India & Ors.[6] and leaving the  issue  open
for decision in an appropriate case as to what is the  effect  of  aforesaid
judgment sub silentio accepting the recommendations of  Shetty  Commission’s
Report that there shall  be  no  cut-off  marks  in  viva  voce  test.   The
Judicial Service Rules of various High Courts in my view cannot  affect  the
rights of the petitioner which have to be governed by the Rules on  which  I
have already expressed my view that it deliberately did not provide any cut-
off marks for the viva voce test and  instead  provide  for  preparation  of
final result by adding the marks of written examination and viva voce test.

The law laid down in the case of Madan Lal & Ors.  v.  State  of  J  &  K  &
Ors.[7] in my considered view does not stand in the way of  the  petitioner.
The High Court Resolution was not communicated to the  petitioner.   It  was
neither a part of the Rules nor of the advertisement and  hence  the  theory
that if a candidate takes  a  calculated  chance  and  faces  the  selection
procedure then on the result being unfavourable, he cannot be  permitted  to
turn around and challenge the process of selection is not at all  attracted.
The theory rests on the hypothesis that the impugned procedure  or  rule  is
already in public domain and the candidate must, therefore, be aware  of  it
when he participates.  So far as the judgment in the case of  Kulwinder  Pal
Singh & Anr. v. State of Punjab & Ors.[8] is concerned, I am  in  respectful
agreement with the same and with the view expressed by  Banumathi,  J.  that
only being in the selected panel does not give  the  petitioner  or  anybody
else an indefeasible right to get an appointment.   But  the  vacancies,  as
highlighted in paragraph 11, have to be filled up  as  per  statutory  rules
and in conformity with the constitutional mandate.  I do  not  see  anything
in  that  judgment  against  the  consideration  of  petitioner’s  case   in
accordance with law after declaring his results by ignoring  the  pass  mark
criteria for the viva voce examination introduced  by  the  High  Court  and
then proceed as per Rules by adding the marks of  written  examination  with
that of viva voce test.  All actions of authorities must meet  the  test  of
reasonableness and in case petitioner  is  not  offered  appointment  though
being the only successful  candidate,  then  the  respondents  may  have  to
justify their action, if challenged, on the basis of case of  Kulwinder  Pal
Singh and similar other  judgments.   As  already  indicated  earlier,  that
stage is yet to arrive.

In the result, in my view the petitioner is entitled to  the  relief  sought
for in the writ petition which is allowed in the light of  discussions  made
above.  The viva voce result of the petitioner dated 16.02.2015 showing  him
as ‘unsuccessful’ shall stand quashed.  The respondents  shall  declare  the
result of the petitioner for appointment to MJS Grade I  as  per  discussion
made in this judgment forthwith and in any case within four weeks.   In  the
peculiar facts of the case, in  my  view,  a  decision  for  appointment  of
petitioner to MJS Grade I  with  retrospective  effect  after  a  reasonable
period from date of the viva voce result which was 16.02.2015 or say  w.e.f.
01.04.2015 should be communicated to the  petitioner  within  the  aforesaid
period of four weeks.  In case petitioner is  offered  the  appointment  and
joins the service, he would get wages by way of salary etc.  only  from  the
date he starts working on the  post.   For  the  past  period  he  would  be
entitled only for notional benefits of increment and length of  service  for
pensionary benefits, as and  when  occasion  arises  in  future.   The  writ
petition of the petitioner succeeds accordingly.   The  petitioner  is  held
entitled to a cost of Rs.50,000/-.



                                        ……………………………….J.

                                        [SHIVA KIRTI SINGH]

New Delhi.

October 07, 2016.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                      WRIT PETITION (C) NO. 294 OF 2015



SALAM SAMARJEET SINGH                                          PETITIONER

                                   VERSUS

HIGH COURT OF MANIPUR AT IMPHAL & ANR.    RESPONDENTS



                               J U D G M E N T


R. BANUMATHI J.

In this Writ Petition filed under Article 32 of the Constitution  of  India,
the petitioner prays for issuance of  a  writ  of  certiorari  quashing  the
Notification dated 16th February, 2015 issued by the High Court of  Manipur,
whereby the petitioner was declared unsuccessful in viva-voce  conducted  by
the High Court of Manipur for appointment to  the  post  of  District  Judge
(Entry  Level)  in  Manipur  Judicial  Services  Grade-I.  Petitioner  seeks
further direction to declare his appointment to  Manipur  Judicial  Services
Grade-I with retrospective effect.
2.     An  advertisement  was  issued  by  the  Manipur  High   Court   vide
Notification No. HCL/A-1/2013-A&E(J)/288  dated  15th  May,  2013,  inviting
applications for recruitment to one vacant  (unreserved)  post  of  District
Judge (Entry Level)  in  Higher  Judicial  Service  through  District  Judge
(Entry Level) Direct Recruitment Examination, 2013.  As per  the  conditions
prescribed in the aforesaid advertisement,  the  petitioner  being  eligible
applied  for  the  said  post  under  the  category  of  ‘Scheduled  Caste’.
Examination was held on 21st, 22nd & 23rd  July,  2013  and  the  petitioner
also appeared in the same.  The High Court of Manipur issued a  Notification
dated 17th October, 2013 stating therein that none  of  the  candidates  had
secured the minimum qualifying marks in  the  said  Examination.  The  marks
obtained by all the candidates who appeared in  the  said  examination  were
uploaded on the website of the High Court of Manipur on 29th January,  2014.
 From the result made available on  the  website  of  the  High  Court,  the
petitioner learnt that he had scored 52.8% and that he was eligible for  the
interview/viva-voce as per  the  advertisement  dated  15th  May,  2013  and
Schedule “B” of the Manipur Judicial Service Rules, 2005,  (for  short  ‘the
MJS Rules’) as he belongs to the Scheduled Caste community of the  State  of
Manipur.  The petitioner had given a representation on  4th  February,  2014
to the High Court for reviewing the Notification dated  17th  October,  2013
issued  by  the  High  Court  of  Manipur.  In  response   to   petitioner’s
representation, the High Court issued  a  corrigendum  dated  7th  February,
2014, modifying the said Notification by stating  that  only  one  candidate
namely Shri Salam Samarjeet Singh (SC), petitioner herein  had  secured  the
minimum qualifying marks in the written examination held on 21st,  22nd  and
23rd July, 2013 for recruitment to MJS  Grade-I,  under  direct  recruitment
quota and had been found qualified for appearing in the  viva-voce.  It  was
also stated therein that the date and time for interview would  be  notified
in due course. Before conducting the viva-voce, the  respondent  High  Court
held a Full Court meeting on 12th January, 2015 wherein one  of  the  agenda
was  to  prescribe  “qualifying  marks  for  interview  (viva-voce)”.  After
discussion on this agenda, the Full Court  took  a  decision  that  “no  one
shall be declared pass  and  selected  for  appointment  unless  he  secures
minimum 40% from the interview”.
3.    The petitioner appeared before the Interview Committee  comprising  of
the Chief Justice and two other Judges of the High Court of Manipur on  12th
February, 2015. In the interview, the petitioner obtained 18.8 marks out  of
50 marks i.e. 37.6%.  Since the petitioner  failed  to  secure  the  minimum
marks of 40% vide Notification dated 16th February, 2015 issued by the  High
Court, the  petitioner  was  declared  “not  selected”.   Aggrieved  by  the
aforesaid  Notification,  the  petitioner  has  filed  this  Writ  Petition,
seeking a writ of certiorari  to  quash  the  Notification  and  another  of
mandamus directing the High Court to declare him appointed  to  MJS  Grade-I
with retrospective effect.
4.    In the Writ Petition, petitioner has stated that  the  marks  obtained
in the viva-voce should be  merely  added  to  the  marks  obtained  in  the
written examination to finalize the merit list and it  was  not  permissible
to have fixed a minimum bench mark  for  the  viva-voce.  According  to  the
petitioner,  his  non-qualification  in  the  interview  and  the   impugned
Notification dated 16th February, 2015 pursuant thereto are in violation  of
the law laid down by this Court in P.K. Ramachandra Iyer & Ors. v. Union  of
India & Ors. (1984) 2 SCC 141and Umesh Chandra Shukla v. Union  of  India  &
Ors. (1985) 3 SCC 721. It is further averred that  before  the  commencement
of selection process, the Selection Committee prescribed minimum marks  only
for written  examination  and  that  during  the  course  of  the  selection
process, it cannot change the criteria by adding an  additional  eligibility
condition/requirement that the candidates shall secure minimum marks in  the
interview.
5.    On notice, the respondents entered appearance and filed their  counter
affidavit.
6.    Case of  the  respondent-High  Court  is  that  the  entire  selection
process of the 2013 Examination has  been  conducted  in  a  just  and  fair
manner following the Rules prescribed under the MJS Rules and the action  of
the respondents is not violative of Articles 14 and 16 of  the  Constitution
of India.  Schedule ‘B’ of the MJS Rules prescribes the  minimum  qualifying
marks for viva-voce as 40%.  It is the case  of  the  respondent-High  Court
that the minimum qualifying marks prescribed have been further clarified  in
its Full Court Resolution dated 12th January, 2015 before the viva-voce  was
conducted by the Interview Committee, so as to avoid any discrepancies.
7.    In its  counter  affidavit,  the  respondent-High  Court  has  further
stated that the Recruitment Committee during the course of the interview  of
the petitioner, which lasted for half an hour, did individual assessment  of
the candidate in nine disciplines (each  discipline  carrying  5.55  marks).
The total marks obtained by the petitioner from each member were 19.5,  19.0
and 18.0 totalling to 37.6%. The petitioner failed  to  secure  the  minimum
qualifying marks of 40% in viva-voce as prescribed under the MJS  Rules  and
hence he failed to qualify in the interview  and  is  not  entitled  to  the
relief sought for in the Writ Petition.
8.    We have heard learned counsel for the parties at length.
9.    Learned Senior Counsel for the writ petitioner, Mr.  Sanjay  R.  Hegde
submitted that the Full Court Resolution dated  12th  January,  2015  fixing
cut-off marks – minimum 40% in the interview is an erroneous  interpretation
of Evaluation of Performance given in Schedule B of the 2005 Rules.  It  was
further submitted that the action of the respondents to apply  the  criteria
of minimum qualifying marks in the interview would amount to change  in  the
criteria for selection after the selection process started. It  was  further
submitted that the petitioner was never informed about the Resolution  dated
12th  January,  2015  prescribing  minimum  marks  to  be  secured  in   the
interview, and the same  amounts  to  violation  of  principles  of  natural
justice. In support of the contention that changing the ‘rules of the  game’
during the course of selection process would vitiate the  entire  selection,
reliance was placed upon Hemani Malhotra v. High Court  of  Delhi  (2008)  7
SCC 11 and K. Manjusree v. State of Andhra Pradesh & Anr. (2008) 3 SCC 512.
10.   Per contra, learned counsel for  the  respondent  has  submitted  that
Schedule  B  of  the  MJS  Rules   stipulates   minimum   qualifying   marks
cumulatively for both  written  examination  and  viva-voce;  and  the  said
minimum qualifying marks so prescribed by the Rules were  further  clarified
in the Full Court meeting dated 12th  January,  2015  so  as  to  avoid  any
discrepancies during the viva-voce conducted  by  the  Interview  Committee.
It was submitted that the MJS Rules clearly stipulate  “that  all  necessary
steps not provided for in the Rules for recruitment shall be decided by  the
Recruiting Authority” and while so, the Full  Court  Resolution  dated  12th
January, 2015, fixing minimum cut-off marks as 40% cannot amount  to  change
in the rules of the game.  It was contended  that  the  respondent  has  not
deviated from the Rules nor has it adopted any different  criteria  for  the
aforesaid selection process.
11.   For filling up one “unreserved” post of District Judge  (Entry  Level)
Grade-I in Manipur Judicial Service, by direct  recruitment  from  the  Bar,
admittedly, recruitment process was set in  motion  by  advertisement  dated
15th May,  2013.   General  Instructions  with  respect  to  the  scheme  of
recruitment were appended to the said advertisement. The  said  instructions
in the advertisement  were  incorporated  from  Schedule  ‘B’  ?  Competitive
Examination of Manipur Judicial Services Rules, 2005.   As  per  MJS  Rules,
the competitive examination  comprises  of  two  parts  viz.,  —(i)  written
examination comprising of three papers each carrying  100  marks  total  300
marks; (ii) interview (viva voce) carrying 50 marks.   General  Instructions
in Schedule ‘B’ Clause 1(3) read as under:-
3. GENERAL INSTRUCTIONS:-

All candidates who obtain sixty  percent  or  more  marks  or  corresponding
grade  in  the  written  examination  shall  be   eligible   for   viva-voce
examination.
Provided that Scheduled Caste/Scheduled Tribe candidates  who  obtain  fifty
per cent or more marks or corresponding grade  in  the  written  examination
shall be eligible for the viva-voce examination.
Selection of candidates shall be made  on  the  basis  of  cumulative  grade
value obtained in the written and viva-voce examination.
The object of the viva-voce examination under sub-rule (1)  and  (2)  is  to
assess the suitability of the candidate for the cadre by judging the  mental
alertness, knowledge of  law,  clear  and  logical  exposition,  balance  of
judgment,  skills,  attitude,  ethics,  power  of  assimilation,  power   of
communication,  character  and  intellectual  depth  and  the  like  of  the
candidate.
All necessary steps not provided for in these rules  for  recruitment  under
these Rules shall be decided by the recruiting authority.
The mode of evaluating the performance of Grading in the written  and  viva-
voce examination shall be as specified below:

EVALUATING PERFORMANCE IN COMPETITIVE EXAMINATION FOR JUDICIAL SELECTION

The system Operates as follows:-
The questions in the question paper  may  carry  numerical  marks  for  each
question.
The examiner may assign numerical marks for each sub-question which  may  be
totaled up and shown against each full question in numbers.
The tabulator will then convert the numerical marks into grades in  a  seven
point scale with corresponding grade values as follows:

|Percentage of marks  |Grade      |Grade Value |
|Grade value          |           |            |
|70% and above        |O          |7           |
|65& to 69%           |A+         |6           |
|60% to 64%           |A          |5           |
|55% to 59%           |B+         |4           |
|50% to 54%           |B          |3           |
|45% to 49%           |C+         |2           |
|40% to 44%           |C          |1           |
|Below 40%            |F          |0           |

4.  After  converting  the  numerical  marks  of  each  question  into   the
appropriate grade according to the formula given in first column  above  the
tabulator will re-convert to Grades obtained for each question to the  Grade
value according to the value given in the third column above.
…..
6. What happens if there are several  successful  candidates  obtaining  the
same grade and the available positions are fewer in number? How do you  rank
them to determine who is to be given the job? Of course, this situation  can
develop with numerical marking also where persons with one mark  of  half  a
mark difference are given advantage. This is unfair given the fact  that  in
actual practice this may happen because of the play of  subjective  elements
on the part of the individual examiners. What is therefore recommended is  a
similar vigorous and  objective  grade  value  exercise  for  the  viva-voce
examination as well.
7.    At the end of each day’s interview  the  tabulator  will  convert  the
numerical marks assigned to each category  into  grade  and  then  to  grade
values.  This will then be  totalled  up  and  the  cumulative  grade  value
average of each candidate interviewed will be obtained.
……
9.    The final selection list will be readied by combining  the  cumulative
grade  value  obtained  in  the  written  examination  and   the   viva-voce
examination. [Emphasis added]

12.    The  above  instructions  for  Competitive  Examination  For   Direct
Recruitment of Grade–I Judicial Officer were inter alia incorporated in  the
2013 advertisement.  On a reading of Clause 1(3) – General  Instructions  in
Schedule ‘B’,  it  is  clear  that  the  first  respondent  has  reserved  a
residuary right in  its  favour  to  take  necessary  steps  which  are  not
expressly included in the Rules. Before conducting  the  interview/viva-voce
of the petitioner, the  High  Court  held  a  Full  Court  Meeting  on  12th
January, 2015 wherein Agenda No.2 – “qualifying marks for  interview  (viva-
voce)”   was   taken   up   for   discussion.   After   referring   to   the
Rules–“Evaluating  Performance  in  Competitive  Examination  for   Judicial
Selection” and also the table for converting numerical  marks  into  grades,
the Full Court resolved that 40%  marks  would  be  the  minimum  qualifying
marks for the interview/viva-voce.  The resolution of the Full  Court  reads
as under:-
       MINUTES OF THE FULL COURT HELD ON 12.01.2015 IN THE CHAMBER OF
                          HON’BLE THE CHIEF JUSTICE

Agenda No.2:     Qualifying mark for interview (viva-voce)
Resolution:  A  question  as  to  what  percentage  would  be  the   minimum
qualifying marks  for  passing  interview  (viva-voce)  is  discussed.   The
following provisions of sub-rule  (3)  of  Schedule-B  of  Manipur  Judicial
Service (MJS) Rules were taken into consideration:
“All necessary steps not provided for in these Rules for  recruitment  under
these Rules shall be decided by the  recruitment  authority.   The  mode  of
evaluating  the  performance  of  Grading  in  the  written  and   viva-voce
examination shall be as specified below:
                                  ………………..
The Full Court after considering the  power  conferred  on  the  Recruitment
Authority in the above states Rules  and  percentage  of  marks  with  Grade
Value given above  resolved  that  no  one  shall  be  declared  passed  and
selected for appointment unless he secures minimum 40%  from  the  interview
(viva-voce).

13.    Having  regard  to  the  submissions  of  the  petitioner   and   the
respondent, the question falling for consideration  is  whether  prescribing
40% marks as the minimum qualifying marks for the  interview  after  holding
the written examination and before conducting the viva-voce was  within  the
power of the respondents; or whether it amounts to change  in  the  criteria
of selection in the midst of the selection process.
14.   As seen from the MJS Rules - under the head - “EVALUATING  PERFORMANCE
IN COMPETITIVE EXAMINATION FOR JUDICIAL SELECTION”, a scheme  of  converting
the numerical marks of each question into an  appropriate  grade,  according
to the formula  given  in  the  table  and  re-converting  into  grades,  is
stipulated.  In the table, the percentage of marks and Grade prescribe  that
marks below 40% is Grade ‘F’ which means ‘Fail’ and its Grade Value is  ‘0’.
 The High Court has maintained that  the  Full  Court  decision  prescribing
minimum  40%  marks  in  the  interview/viva-voce  was  taken  in  order  to
introduce  consistency  in  the  criteria  of  evaluating   performance   of
candidates in written examination and interview/viva-voce.   Since  the  MJS
Rules already stipulate that less than 40% marks is  Grade  ‘F’  with  Grade
Value  ‘0’,  it  is  implicit  in  the  Rules  that  for  a  ‘pass’  in  the
examination, 40% minimum marks need to be obtained, though of course as  per
MJS Rules, this is for the cumulative Grade Value obtained  in  the  written
examination and the interview/viva-voce examination.  Keeping  in  view  the
MJS Rules, in particular, the table converting numerical marks  into  Grades
and the final Select List that is prepared by adding cumulative grade  value
obtained in the written examination and the interview/viva-voce,  it  is  my
considered view that fixing 40% for interview/viva-voce out of  total  marks
of 50 is in consonance with MJS Rules and it will not amount  to  change  in
the criteria of selection in the midst of selection process.
15.   Clause 1(3), General Instructions of the MJS Rules  reserves  a  right
in favour of the High Court which enables the High Court to  resort  to  the
procedures, in addition to, what has been  specifically  laid  down  in  the
Rules.  It provides that “all necessary steps  not  provided  for  in  these
Rules for recruitment under these Rules shall be decided by  the  Recruiting
Authority”. Having regard to the aforesaid provision, the High Court  cannot
be faulted with, in prescribing cut-off marks for  the  interview/viva-voce.
The object of conducting interview/viva-voce examination  has  been  rightly
stated in the Rules to assess suitability of the candidate  by  judging  the
mental  alertness,  knowledge  of  law,  clear  and   original   exposition,
intellectual depth and the like. The Rules further stipulate a vigorous  and
objective grade value exercise for the  interview/viva-voce  examination  as
well.  Keeping in view the Rules and having regard to the seniority  of  the
post which is District  Judge  (Entry  Level),  the  High  Court  cannot  be
faulted with for exercising its residuary right reserved in  its  favour  by
prescribing cut-off marks for the interview.
16.   Contending that change in the norms for selection by  introducing  the
minimum marks for interview during the selection  process  would  amount  to
change in the rules of the game, reliance was placed upon  K.  Manjusree  v.
State of A.P. (2008) 3 SCC  512  wherein  this  Court  held  that  selection
criteria has to be adopted and declared at the time of commencement  of  the
recruitment process. The rules of the  game  cannot  be  changed  after  the
commencement of the game. It was held that the competent authority,  if  not
restrained by the statutory rules,  is  fully  competent  to  prescribe  the
minimum qualifying marks for written examination as well as  for  interview.
But such prescription must be done at the time of  initiation  of  selection
process. Change of criteria of selection in the midst of  selection  process
is not permissible.
17.   Counsel for the Petitioner has also relied on Hemani Malhotra v.  High
Court of Delhi (2008) 7 SCC 11. In Hemani Malhotra’s  case,  the  result  of
the written examination  of  the  Delhi  Higher  Judicial  Service  was  not
announced by the High Court of Delhi, and individual communication was  sent
to the petitioners therein,  informing  them  of  their  selection  for  the
interview.  Five candidates were called for interview on  various  occasions
and were informed of its postponement, i.e. the  interview  first  scheduled
for 20.09.2006 was later deferred  to  29.11.2006,  07.12.2006,  23.01.2007,
05.02.2007  and  was  finally  conducted   on   27.02.2007.   Meanwhile   on
13.12.2006, by a Full Court Resolution, minimum  qualifying  marks  for  the
viva-voce was prescribed (55% for General Candidates and 50% for SC  and  ST
candidates). In such facts and circumstances, prescribing minimum marks  for
the interview was struck down along  the  same  lines  as  in  the  case  of
Manjushree.
18.   Observing that prescribing minimum marks for  the  interview  was  not
permissible after the written test was  conducted,  in  Hemani  Malhotra  v.
High Court of Delhi (2008) 7 SCC 11, it was held as under:
“15. 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 viva-voce, but if minimum marks are not prescribed for viva-
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  viva-voce
test was illegal.”

19.   In Hemani Malhotra, candidates were called for  interview  on  various
dates but no interview was held  and  it  was  deferred.  In  the  meanwhile
minimum qualifying marks were prescribed for  interview.  This  is  not  the
case before us. In this case, prior to the interview which was conducted  on
12th February, 2015, a Full Court meeting was held  on  12th  January,  2015
and a decision was taken prescribing minimum qualifying marks for the  viva-
voce.  Thus, it would be incorrect to contend that prejudice was  caused  to
the petitioner, especially when no bias is alleged.
20.   After referring to the cases of  Manjusree  and  Hemani  Malhotra,  in
Ramesh Kumar v. High Court of Delhi & Anr. (2010) 3 SCC  104,  it  was  also
held as under:-
15. Thus, the law on the issue can be summarised to the effect that in  case
the statutory rules prescribe a particular mode of selection, it has  to  be
given strict adherence accordingly. In case, no procedure is  prescribed  by
the rules and there is no other impediment in law, the  competent  authority
while laying down the norms for selection may prescribe for  the  tests  and
further specify the minimum benchmarks for written test as well as for viva-
voce.
16. In the instant case,  the  Rules  do  not  provide  for  any  particular
procedure/criteria for holding the tests rather it enables  the  High  Court
to prescribe the criteria. This Court in All  India  Judges’  Assn.  (3)  v.
Union of India (2002) 4 SCC 247 accepted Justice Shetty Commission’s  Report
in this regard which  had  prescribed  for  not  having  minimum  marks  for
interview. The Court further explained that  to  give  effect  to  the  said
judgment, the existing statutory rules may be  amended.  However,  till  the
amendment is carried out, the vacancies shall be filled as per the  existing
statutory rules. A similar view has been  reiterated  by  this  Court  while
dealing with the appointment of Judicial Officers in  Syed  T.A.  Naqshbandi
v. State of J&K (2003) 9 SCC 592 and Malik Mazhar Sultan (3) v. U.P.  Public
Service Commission (2008) 17  SCC  703.  We  have  also  accepted  the  said
settled legal proposition while deciding the connected cases i.e. Rakhi  Ray
v. High Court of Delhi (2010) 2 SCC 637 vide  judgment  and  order  of  this
date. It has been clarified in Rakhi Ray v. High Court  of  Delhi  (2010)  2
SCC  637  that  where  statutory  rules  do  not  deal  with  a   particular
subject/issue, so far  as  the  appointment  of  the  Judicial  Officers  is
concerned, directions issued by this Court would have binding effect.

21.   Both Hemani Malhotra and Ramesh Kumar relied upon  Manjusree  to  hold
that prescription of minimum marks in  the  interview  was  not  permissible
after the written test was conducted.  After referring to State  of  Haryana
v. Subash Chander Marwaha and Ors. (1974) 3 SCC 220 and observing  that  the
principles laid down in Manjusree without any further scrutiny would not  be
in the larger public interest or  the  goal  of  establishing  an  efficient
administrative machinery, in Tej Prakash Pathak &  Ors.  v.  Rajasthan  High
Court & Ors.(2013) 4 SCC 540 (three Judges), this Court  observed  that  the
matter deserves consideration by a larger Bench.  In paras (12) to (15),  it
was held as under:-
12. If the principle of Manjusree case (2008) 3 SCC 512 is applied  strictly
to the present case, the respondent High Court is bound  to  recruit  13  of
the “best” candidates out of  the  21  who  applied  irrespective  of  their
performance in the examination held. In  such  cases,  theoretically  it  is
possible that candidates securing very low marks but higher than some  other
competing candidates may have to be appointed. In our  opinion,  application
of the principle as laid down in Manjusree case (2008)  3  SCC  512  without
any further scrutiny would not be in the larger public interest or the  goal
of establishing an efficient administrative machinery.

13. This Court in State of Haryana v. Subash Chander Marwaha  (1974)  3  SCC
220 while dealing with the recruitment of Subordinate Judges of  the  Punjab
Civil Services (Judicial Branch) had to deal with the  situation  where  the
relevant rule prescribed minimum qualifying marks. The recruitment  was  for
filling up of 15 vacancies. 40 candidates  secured  the  minimum  qualifying
marks (45%). Only  7  candidates  who  secured  55%  and  above  marks  were
appointed and the remaining vacancies were kept unfilled.  The  decision  of
the State Government not to fill up the remaining vacancies in spite of  the
availability of candidates who secured  the  minimum  qualifying  marks  was
challenged. The State Government defended its decision not to fill up  posts
on the ground that the decision was taken to maintain the high standards  of
competence in judicial service. The High  Court  upheld  the  challenge  and
issued a mandamus. In appeal,  this  Court  reversed  and  opined  that  the
candidates securing minimum qualifying marks at an examination held for  the
purpose of recruitment into the service of the State have no legal right  to
be appointed. In the context, it was held:  (Subash  Chander  Marwaha  case,
(1974) 3 SCC 220 p. 227, para 12)
“12. … In a case where appointments are made by selection from a  number  of
eligible candidates it is open to the Government with  a  view  to  maintain
high standards of competence to fix a score which is much  higher  than  the
one required for more (sic mere) eligibility.”

14. Unfortunately, the decision in Subash Chander Marwaha (1974) 3  SCC  220
does not appear to have been brought to the notice  of  Their  Lordships  in
Manjusree (2008) 3 SCC 512. This Court in Manjusree (2008) 3 SCC 512  relied
upon P.K. Ramachandra Iyer v.  Union  of  India  (1984)  2  SCC  141,  Umesh
Chandra Shukla v. Union of India (1985) 3 SCC 721 and Durgacharan  Misra  v.
State of Orissa(1987) 4 SCC 646. In none of the cases, was the  decision  in
Subash Chander Marwaha (1974) 3 SCC 220 considered.

15. No doubt it is a salutary principle not  to  permit  the  State  or  its
instrumentalities to tinker with the “rules of  the  game”  insofar  as  the
prescription of  eligibility  criteria  is  concerned  as  was  done  in  C.
Channabasavaih v. State of Mysore, AIR  1965  SC  1293  in  order  to  avoid
manipulation of the recruitment process and  its  results.  Whether  such  a
principle should be applied in the  context  of  the  “rules  of  the  game”
stipulating the procedure for selection more particularly  when  the  change
sought is to impose a more  rigorous  scrutiny  for  selection  requires  an
authoritative pronouncement of a larger Bench of this Court. We,  therefore,
order that the matter be placed before the Hon’ble Chief  Justice  of  India
for appropriate orders in this regard.


Since the decision laid down in the Manjusree’s  case  is  doubted  and  the
matter is pending for consideration by a larger Bench, and in the facts  and
circumstances of this case, it is my  view  that  the  ratio  laid  down  in
Manjusree and Hemani Malhotra is not applicable to the present case.
22.   This Court has laid much emphasis on interview/viva-voce in  a  catena
of decisions.  In the recruitment for judicial services, the  importance  of
interview/viva-voce cannot be underestimated.  Viva-voce is  the  best  mode
of assessing the suitability of a candidate as it  brings  out  the  overall
intellectual qualities of the candidates.  In Ramesh Kumar v. High Court  of
Delhi & Anr. (2010) 3 SCC 104, this Court held as under:-
“11. In State of U.P. v. Rafiquddin (1987) Supp  SCC  401;  Krushna  Chandra
Sahu (Dr.) v. State of Orissa (1995) 6 SCC 1; Manjeet Singh  v.  ESI  Corpn.
(1990) 2 SCC 367 and K.H. Siraj v. High Court of Kerala  (2006)  6  SCC  395
this Court held that the Commission/Board  has  to  satisfy  itself  that  a
candidate had obtained such aggregate  marks  in  the  written  test  as  to
qualify for interview and obtained “sufficient  marks  in  viva-voce”  which
would show his suitability for service. Such a  course  is  permissible  for
adjudging the qualities/capacities of the candidates. It  may  be  necessary
in view of the  fact  that  it  is  imperative  that  only  persons  with  a
prescribed minimum  of  said  qualities/capacities  should  be  selected  as
otherwise the standard of judiciary would get diluted and substandard  stuff
may get selected. Interview may also be  the  best  mode  of  assessing  the
suitability of a candidate for a particular position as it  brings  out  the
overall intellectual qualities of the candidates.  While  the  written  test
will testify the candidate’s academic knowledge, the  oral  test  can  bring
out or disclose overall intellectual and personal qualities like  alertness,
resourcefulness, dependability, capacity for  discussion,  ability  to  take
decisions, qualities of leadership, etc. which  are  also  essential  for  a
Judicial Officer.
12. Reiterating similar  views,  this  Court  has  given  much  emphasis  on
interview in Lila Dhar v. State of Rajasthan (1981)  4  SCC  159  and  Ashok
Kumar Yadav v. State of Haryana (1985) 4 SCC 417 stating that interview
“can  evaluate  a  candidate’s   initiative,   alertness,   resourcefulness,
dependableness,   cooperativeness,   capacity   for   clear   and    logical
presentation, effectiveness in  discussion,  effectiveness  in  meeting  and
dealing with others,  adaptability,  judgment,  ability  to  make  decision,
ability to lead, intellectual  and  moral  integrity  with  some  degree  of
error.”

23.   Full Court decision  dated  12th  January,  2015  prescribing  minimum
qualifying marks for viva-voce is a  decision  taken  towards  ensuring  the
fair and meritorious appointment on the post advertised  and  no  mala  fide
can be attributed to the respondents for  such  a  decision.  Had  the  High
Court convened the Full Court Meeting after  conducting  the  viva-voce  and
had then prescribed the minimum qualifying  marks,  the  contention  of  the
petitioner would have been justified.  When the decision of the  Full  Court
was to ensure selection of meritorious candidate, it  cannot  be  said  that
the decision of the High  Court  amounted  to  change  in  the  criteria  of
selection after the selection process has started.
24.   Petitioner contends that the decision of the High Court  to  prescribe
minimum qualification marks is against the  recommendations  of  the  Shetty
Commission and is violative of the judgment  of  this  Court  in  All  India
Judges’ Association and Ors. v. Union of India and Ors. (2002)  4  SCC  247.
It is further argued that in  the  said  case,  the  Court  accepted  Shetty
Commission’s Report which  has  recommended  not  having  cut-off  marks  in
interview for the recruitment of the judicial officers.
25.   No doubt, Shetty Commission has recommended in its Report  that  there
should be no cut-off marks in the viva-voce  test.  Relevant  recommendation
of Shetty Commission reads as under:-
“The viva-voce test should be in a thorough and  scientific  manner  and  it
should take anything between 25 to 30 minutes for each  candidate.  What  is
recommended by the Commission is that the  via  voce  test  shall  carry  50
marks and there shall be no cut-off marks in viva-voce test.”

26.   Admittedly, the Shetty Commission has recommended that  the  viva-voce
test shall carry fifty marks and there shall be  no  cut-off  marks  in  the
viva-voce test.  In All India  Judges’  Association  case  para  (37),  this
Court subject to various modifications in the judgment, accepted  all  other
recommendations of  the  Shetty  Commission.  While  there  was  a  detailed
discussion on the perks, mode of recruitment to the Higher Judicial  Service
and the proportionate  percentage  for  promotion  as  District  Judges  for
judicial officers, limited competitive examination for Civil Judges  (Junior
Division) and percentage  of  direct  recruitment,  there  was  no  detailed
discussion regarding the other recommendations  of  Shetty  Commission.   As
rightly contended by the learned Senior  Counsel  for  the  respondent,  All
India Judges’ Association case is sub  silentio  on  the  recommendation  of
Shetty Commission as to “no cut-off marks for  the  viva-voce”.   Contention
of the petitioner  that  fixing  cut-off  marks  for  the  viva-voce  is  in
violation of the decision of this Court is not tenable.
27.   Learned senior counsel for the respondents has  also  drawn  attention
to the  Judicial  Service  Rules  of  various  High  Courts  namely,  Delhi,
Maharashtra, Odisha, West Bengal and Himachal Pradesh which have  prescribed
minimum  cut-off  marks  for  the  interview.   Insofar  as  MJS  Rules  are
concerned, such fixing of cut-off marks in  the  interview/viva-voce  cannot
be said to be arbitrary or in violation of the decision of this Court.
28.   Yet another aspect of the matter is that the  petitioner  participated
in  the  selection  process  and  only  because  in  the  final  result  the
petitioner being unsuccessful, he cannot turn around and  contend  that  the
criteria for selection was changed.  It  is  fairly  well-settled  that  the
candidate having participated in the selection process without  any  protest
cannot be allowed to turn  around  and  question  the  very  process  having
failed to qualify.  In Madan Lal & Ors. v. State of J&K & Ors. (1995) 3  SCC
486, this Court observed:-
“9. … It is now well settled that if a candidate takes a  calculated  chance
and appears  at  the  interview,  then,  only  because  the  result  of  the
interview is not palatable to him, he cannot  turn  round  and  subsequently
contend that the process of interview was unfair….
10. Therefore, the  result  of  the  interview  test  on  merits  cannot  be
successfully challenged by a candidate who takes a chance  to  get  selected
at the said interview and who ultimately finds himself to be unsuccessful.”

29.   In the written examination, the petitioner has secured 158.50  out  of
300; in the interview/viva-voce 18.80 out of 50 totalling 177.30 out of  350
i.e. 50.65%. Learned senior counsel for the  petitioner  submitted  that  as
per the existing Rules, the final selection is to  be  made  by  adding  the
cumulative  grade  value   obtained   in   the   written   examination   and
interview/viva-voce examination. The petitioner having  obtained  cumulative
percentage of 50.65 which is equivalent to Grade ‘B’; it is contended  that,
had the High Court  followed  the  Rules,  the  petitioner  must  have  been
declared to have been selected and the High Court  has  deliberately  denied
the appointment to the petitioner.
30.   For the sake of  argument,  even  assuming  that  the  petitioner  was
successful in the selection, in my view, it would not  give  the  petitioner
an indefeasible right to get an appointment as well.  Referring  to  various
judgments, in Kulwinder Pal Singh and Another v. State of Punjab and  Others
(2016) 6 SCC 532, this Court held as under:
10. It is fairly well settled that merely because the name  of  a  candidate
finds place in the select list, it would not give him indefeasible right  to
get an appointment as well. The name of a candidate may appear in the  merit
list but  he  has  no  indefeasible  right  to  an  appointment  (vide  Food
Corporation of India v. Bhanu Lodh (2005) 3 SCC  618,  All  India  SC  &  ST
Employees’ Assn. v. A. Arthur Jeen (2001) 6  SCC  380  and  UPSC  v.  Gaurav
Dwivedi (1999) 5 SCC 180.
11. This Court again in State of Orissa v. Rajkishore  Nanda  (2010)  6  SCC
777 held as under: (SCC p. 783, paras 14 & 16)
“14. A person whose name appears in the select list  does  not  acquire  any
indefeasible right of appointment. Empanelment at best  is  a  condition  of
eligibility for the purpose of appointment and by itself does not amount  to
selection or create a vested right to be appointed. The  vacancies  have  to
be filled up  as  per  the  statutory  rules  and  in  conformity  with  the
constitutional mandate.”

31.   No mandamus can be issued in favour of the petitioner as no  prejudice
was caused to him.  I say so because the 2013 advertisement was issued  only
for one ‘unreserved’ post. Had somebody else been appointed,  the  grievance
of  the  petitioner  might  have  had  substance.   Admittedly,  nobody  was
appointed for  the  said  post  and  the  post  remains  vacant.  Subsequent
developments are also relevant and noteworthy.   For  filling  up  of  three
‘unreserved’ posts of MJS Grade-I, fresh advertisement was  issued  on  12th
August, 2015 by the High Court.  The petitioner also applied  for  the  said
post.  Because of  litigation  and  certain  directions  thereon,  selection
process pursuant to the said advertisement was  cancelled.  In  supersession
of the said earlier advertisement, a fresh advertisement was issued  by  the
High Court on 4th August, 2016 seeking applications for  three  ‘unreserved’
and one ‘reserved’ post of MJS Grade-I. The last date  for  the  receipt  of
applications was 26th August, 2016 and the petitioner also applied  for  the
said post.   The  learned  senior  counsel  appearing  for  the  High  Court
submitted that the examinations are  likely  to  be  conducted  in  October,
2016.  When the said post of 2013 examination  has  now  been  clubbed  with
other vacant posts and advertised seeking  applications  from  the  eligible
candidates, the petitioner cannot seek mandamus seeking for appointment  for
the  said  post  with  retrospective  effect.    The   petitioner   has   no
indefeasible right to seek appointment as District Judge  (Entry  Level)  in
the Manipur Judicial Services Grade-I.  In the facts  and  circumstances  of
the case, the petitioner is not entitled to the relief sought for.
32.   For the foregoing discussions, the petitioner is not entitled  to  the
relief sought for. In the result, the Writ Petition is dismissed.


                                                               ………………………..J.
 [R. BANUMATHI]
New Delhi;
October 07, 2016
                        IN THE SPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                       WRIT PETITION(C)No.294 of 2015
Salam Samarjeet Singh                        …..Petitioner
      Versus
High Court of Manipur at Imphal & Anr.       …..Respondents


                                  O R D E R

      Since there is a difference of opinion  between  us  in  view  of  the
dissenting judgments pronounced by us,  the  matter  may  be  placed  before
appropriate Bench for  final  adjudication  after  obtaining  permission  of
Hon’ble the Chief Justice of India.



                                                ……………………………….J.

                                                [SHIVA KIRTI SINGH]



                                                ..…………………………….J.

                                                [R. BANUMATHI]



New Delhi.

October 07, 2016.

-----------------------
[1]







      [2]  (2008) 3 SCC 512
[3]

      [4]  (2008) 7 SCC 11
[5]

      [6] (2010) 3 SCC 104
[7]

      [8] (2013) 4 SCC 540
[9]

      [10]  (1974) 3 SCC 220
[11]

      [12]  (2002) 4 SCC 247
[13]

      [14]  (1995) 3 SCC 486
[15]

      [16]  (2016) 6 SCC 532


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.