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Madhya Pradesh High Court · body

2007 DIGILAW 420 (MP)

Pankaj Dixit v. State of M. P.

2007-04-09

A.K.PATNAIK, K.K.LAHOTI

body2007
ORDER Patnaik, CJ. -- 1. The High Court of Madhya Pradesh issued an advertisement (Annexure P-l) inviting applications for 20 posts in the Madhya Pradesh Higher Judicial Service to be filled up by direct recruitment from the Bar. In the advertisement, it was stated that out of these 20 posts, 11 posts are for the candidates belonging to general category, three posts each are reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. In the advertisement, it was also stated that if sufficient number of suitable candidates belonging to Scheduled Castes/ Scheduled Tribes/Other Backward Classes are not available, such posts shall be treated as unreserved. Sub-clause (iv) of clause 9 of the advertisement stipulates that only such candidates will be called for interview as the High Court may decide, on the basis of valuation of their performance in the written examination. Sub-clause (vi) of clause 9 of the advertisement states that candidates shall be selected on the basis of aggregate marks obtained by them in both the written examination and the interview. 2. In response to the advertisement, the petitioner in WP No. 4604/ 2007 (S), who is an Advocate practicing at Bhopal and Jabalpur and who belongs to general category, applied and appeared in the written examination which was held on 17.12.2006. The petitioner in WP No. 4605/2007 (S), who is an Advocate practicing at Sehore and belongs to category of OBC also applied and appeared in the written examination on 17.12.2006. Both the petitioners, however, were not called for interview. They have filed the writ petitions for a declaration that the selection criteria adopted by the High Court is not in accordance with law and the criteria fixed, and for a direction to the respondents to publish a fresh list of candidates and call sufficient number of candidates in each advertised category to face the interview. 3. Mr. Naman Nagrath, learned counsel appearing for the petitioner in both petitions, submitted that sub-clause (vi) of clause 9 of the advertisement issued by the High Court clearly stated that the candidates shall be selected on the basis of aggregate marks obtained by them in both the written examination and the interview. 3. Mr. Naman Nagrath, learned counsel appearing for the petitioner in both petitions, submitted that sub-clause (vi) of clause 9 of the advertisement issued by the High Court clearly stated that the candidates shall be selected on the basis of aggregate marks obtained by them in both the written examination and the interview. He submitted that since the selection was to be on the basis of aggregate marks obtained by the candidates in both the written examination and the interview, the High Court was not right in calling only 15 candidates for interview on the basis of marks obtained in the written examination when as many as 20 posts had been advertised. He cited the judgment of the Supreme Court in the case of U.P Public Service Commission v. Subhash Chandra Dixit [AIR 2004 SC 163] in which it has been held that "aggregate marks" can only be considered to mean as the total marks finally obtained by the candidate after the complete valuation process is over. He vehemently argued that the candidates securing lower marks in the written examination may secure very high marks in interview and in such cases, the aggregate marks secured by the candidates in both the written examination and the interview may lead to their selection on the basis of their position in the final merit list. He submitted that the proper course for the High Court should have been to determine the number of candidates to be called for interview taking into consideration the number of vacancies advertised. He submitted that normally the number of candidates called for interview is twice the number of vacancies. 4. We do not find any merit in the aforesaid submissions of Mr. Nagrath. The selection for direct recruitment from the Bar to the Higher Judicial Services is made under the Madhya Pradesh Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994, (for short 'the Rules'), as amended from time to time. The Rules only provide for appointment to the posts in the cadre of M.P. Higher Judicial Service by direct from the Bar by the Governor in accordance with the recommendations of the High Court, but the Rules do not indicate the exact procedure which the High Court has to follow for making the recommendation for such appointment by direct recruitment from the Bar. Hence, it has been left to the High Court to decide what the procedure for recruitment from the Bar to the posts in the cadre of Higher Judicial Service by way of direct recruitment would be. 5. The High Court in the advertisement in Annexure P-l has indicated in sub-clause (iv) of clause 9 that only such candidates will be called for interview as the High Court will decide on the basis of valuation of their performance in the written examination. Sub-clause (vi) of Clause 9 of the advertisement on which reliance is placed by the learned counsel for the petitioner says that the candidates shall be selected on the basis of aggregate marks obtained by them in both the written examination and the interview. 6. Mr. Nagrath submitted that both sub-clauses (iv) and (vi) of clause 9 of the advertisement have to be harmoniously constructed. We agree with the learned counsel for the petitioner that sub-clauses (iv) and (vi) of clause 9 have to be harmoniously constructed. Harmonious construction would mean such a construction as well ensure that both the sub-clauses (iv) and (vi) of clause 9 are given effect to. If we construe sub-clause (vi) of clause 9 to mean that the number of candidates to be called for interview shall be twice the number of vacancies irrespective of their performance in the written examination as suggested by the learned counsel for the petitioner then sub-clause (iv) of clause 9 which provides that only such candidates will be called for interview as the High Court may decide on the basis of valuation of their performance in the written examination, will be rendered nugatory. On the other hand, if we construe sub-clause (vi) of clause 9 of the advertisement to mean that aggregate marks in the written and interview obtained by only those candidates who are called for interview on the basis of their performance in the written examination are to be taken in to consideration for the selection of the candidates then both the sub-clauses (iv) and (vi) of clause 9 are given effect to. A harmonious construction of sub-clauses (iv) and (vi) of clause 9 of the advertisement would thus mean that only candidates who secure the qualifying marks in the valuation of the written examination, are called for interview and the marks of such candidates called for interview secured by them in both the written examination and the interview are aggregated to find out their position in the merit list for the purpose of selection. 7. In U.P. Public Service Commission v. Subhash Chandra Dixit (supra), cited by Mr. Nagrath, we find that under the relevant Rules in UPPSC (Regulation of Procedure and Conduct of Business ) Act, 1974, the Commission was to decide the number of candidates to be called for interview to appear before the Board or Boards on any day. This Rule is entirely different from sub-clause (iv) of clause 9 of the advertisement (Annexure P-1) in which it is provided that only such candidates will be called for interview as the High Court will decide on the basis of valuation of their performance in the written examination. Hence, the judgment of the Supreme Court in the case of U.P. Public Service Commission v. Subhash Chandra Dixit (supra), does not apply to the facts of the present case. 8. It was next contended by Mr. Nagrath that the petitioner in WP No. 4605/2007 belongs to OBC category and that sufficient number of candidates have not been called for interview for three posts reserved for OBC category as indicated in the advertisement. But we find that in the advertisement, it is stated that if sufficient number of suitable candidates belonging to SC/ST/OBC are not available, the reserved posts shall be treated as unreserved. The words 'suitable candidates' would mean candidates who qualify in the written examination for interview in terms of sub-clause (iv) of clause 9 of the advertisement. Since the petitioner has not been called for interview on the basis of valuation of his performance in the written examination, he is not suitable for the posts reserved for OBC category. 9. We therefore, do not find any merit in both the writ petitions and accordingly dismiss the writ petitions.