REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6205 OF 2011
[Arising out of SLP(C) No. 9147 of 2008]
Bhanu Pratap ....Appellant
VERSUS
State of Haryana & Ors. .... Respondent(s)
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.
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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. 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.
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7. 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
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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
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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
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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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