Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1766 (PAT)

Deelip Kumar v. State Of Bihar

2007-11-13

CHANDRAMAULI KR.PRASAD, MIHIR KUMAR JHA

body2007
Judgment Chandramauli Kr.Pd. and Mihir Kr.Jha JJ. 1. Petitioner, an unsuccessful candidate seeking appointment to the post of Civil Judge (Junior Division) has preferred this writ application. He offered his candidature for appointment in pursuance of an advertisement published by the Bihar Public Service Commission (hereinafter referred to as the Commission). He appeared in the written test but was not called for viva voce. His grievance is that had the Commission called candidates, three times the total vacancies, he had the chance to be considered for appointment. 2. Accordingly, his prayer in the present writ application filed under Articles 226 and 227 of the Constitution of India is to quash the select list and direct for preparation of fresh list so that petitioner gets opportunity to be selected for appointment. 3. It is not in dispute that for appointment to the post of Civil Judge (Junior Division), the candidates 2.5 times the vacancies have been called for interview by the Commission in consultation with the High Court and further nobody who had secured less marks than petitioner had been called for interview. 4. Mr.Bindhyachal Singh, appearing on behalf of the petitioner submits that calling only candidates 2.5 times the vacancies is in the teeth of the direction of the Supreme Court in the case of Malik Mazhar Sultan and Anr. V/s. U.P. Public Service Commission & Ors., 2007 2 SCALE 159. This itself vitiates the entire selection contends Mr.Singh. 5. The problem faced by the judicial system in dispensation of justice came to be noticed in the aforesaid case and one of the major cause of delay in dispensation of justice was found to be insufficient number of Judges. Accordingly, the Supreme Court in the case of Malik Mazhar Sultan and Anr. (supra) gave directions for filling up the post at various levels including the post of Civil Judge (Junior Division) by direct recruitment. The direction of the Supreme Court so far as the Civil Judges are concerned are contained in paragraph 7(D) of the judgment, which reads as follows: D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment: S.No. Description Date 1. Number of vacancies to be notified by the High Court. V acancies to be calculated including (a) existing vacancies (b)future vacancies that may arise within one year due to retirement. Number of vacancies to be notified by the High Court. V acancies to be calculated including (a) existing vacancies (b)future vacancies that may arise within one year due to retirement. (c)future vacancies that may arise due to promotion, death or otherwise, say ten per cent of the number of posts. 15th January 2. Advertisement inviting applications from eligible candidates 1st February 3. Last date for receipt of application 1st March 4. Publication of list of eligible applicants The list may be put on the website 2nd April 5. Despatch/issue of admit cards to the eligible applicants 2nd to 30th April 6. Preliminary written examination Objective questions with multiple choice which can be scrutinized by computer 15th May 7. Declaration of result of preliminary written examination (a) Result may be put on the website and also published in the Newspaper (b) The ratio of 1 : 10 of the available vacancies to the successful candidates be maintained 15th June 8. Final written examination Subjective/narrative 15th July 9. Declaration of result of final written examination 30th August (a) Result may be put on the website and also published in the Newspaper (b) The ratio of 1 :3 of the available vacancies to the successful candidates be maintained (c) Dates of interview of the successful candidates may be put on the internet which can be printed by the candidates and no separate intimation of the date of interview need be sent. 10. Viva Voce 1st to 15th October 11. Declaration of final select list and communicated to the Appointing authority (a) Result may be put on the website and also published in the newspaper (b)Select list be published in order of merit and should be double the number of vacancies notified. 1st November 12. Issue of appointment letter by the competent authority for all existing vacant posts as on date 1st December 13. Last date for joining 2nd January of the following year 6. Aforesaid direction was handed over 2007. Serial No. 9(b) of the direction provides for maintenance of ratio of 1:3 of the available vacancies to the successful candidates. 7. As stated earlier in the present exercise for appointment to the post of Civil Judge (Junior Division) candidates, 2.5 times the vacancies have been called for interview. Aforesaid direction was handed over 2007. Serial No. 9(b) of the direction provides for maintenance of ratio of 1:3 of the available vacancies to the successful candidates. 7. As stated earlier in the present exercise for appointment to the post of Civil Judge (Junior Division) candidates, 2.5 times the vacancies have been called for interview. This according to Mr.Singh clearly is in the teeth of the judgment of the Supreme Court and, as such, the entire selection process has vitiated. 8. Mr.Sanjay Pandey, appearing on behalf of the Commission, however, con- by the Supreme Court on 4th of January, tends that the process of selection had started much before the judgment of the Supreme Court in the case of Malik Mazhar Sultan (supra) and, as such, the failure on part of the Commission to call for interview candidates 2.5 times the number of vacancies itself shall not vitiate the entire selection process. 9. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Singh. In a composite test consisting of written examination followed by viva voce test, the number of candidates to be called for interview is primarily within the discretion of Commission and that decision shall be subject to judicial review only when it is shown that the same are arbitrary. The Constitution Bench of the Supreme Court had the occasion to consider this question in some detail in the case of Ashok Kumar Yadav and Others V/s. State of Haryana and Others, AIR 1987 SC 454 and observed that the number of candidates to be called for interview on the basis of the marks obtained in the written test should not exceed twice or at the hightest, thrice the number of vacancies to be filled. The underlying object behind the said decision is that the written examination is definitely more objective in its assessment than the viva voce test, otherwise the result of the written examination shall lose meaning and credibility if viva voce test which is to some extent subjective and discretionary in its evaluation will become the decisive factor in the process of selection. 10. 10. Relevant portion of the judgment of the Supreme Court reads as follows: "We are therefore of the view that where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled." 11. A Division Bench of this Court had the occasion to consider this question in Letters Patent Appeal No. 56 of 2001 Achint Sinha & Ors. V/s. The State of Bihar & Ors. in which it has been held as follows: "8. There is nothing on the record to suggest that there was no effective consultation. As indicated above, before approving the suggestion of the BPSC, correspondence had taken place between the BPSC and the High Court. Nothing prevented the High Court from disagreeing with the suggestion of the BPSC. It may be mentioned to call candidates in the ratio of 2.5 times the number of vacancies for the viva voce test is in accordance with the decision of the Supreme Court in the case of Ashok Kumar Yadav & Ors. V/s. State of Haryana & Ors, AIR 1987 SC 454 . Once it is found that the decision or practice of the BPSC to call candidates 2.5 times the number of vacancies for viva voce is in accordance with law, it would appear that fixing qualifying marks would be a concomitant of the number of candidates to be called for viva voce test." 12. Thus, in our opinion, the decision of Commission to call candidates 2.5 times the vacancies cannot be said to be illegal. 13. Now the question which falls for consideration is as to whether the failure to call candidates 3 times the number of vacancies as envisaged by the Supreme Court in the case of Malik Mazhar Sultan (supra) shall vitiate the selection process. 14. As stated earlier the judgment of the Supreme Court in the aforesaid case was handed over on 4th of July, 2007 and it is common ground that the selection process in the present case had commenced much earlier. To put the record straight it is relevant here to state that the dates of the interview were later than the date of the judgment of the Supreme Court. To put the record straight it is relevant here to state that the dates of the interview were later than the date of the judgment of the Supreme Court. In our opinion, this shall have no bearing so far as the present selection is concerned. It is well settled that the selection process is to be completed on the basis of the existing rules and change of rule later on shall have no application with retrospective effect unless it is specifically provided. 15. The Supreme Court while handing over the judgment in Malik Mazhar Sultan (supra) has not stated that the said judgment shall operate in those cases also where the selection process has already commenced. The judgment is not declaration of law on a particular point but directions in order to provide efficient judicial system which cannot be applied retrospectively. 16. In the result, we do find any merit in the application and it is dismissed accordingly.