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Madhya Pradesh High Court · body

2008 DIGILAW 1025 (MP)

ASHOK NARAYAN KALE v. STATE OF M P

2008-08-14

A.K.PATNAIK, AJIT SINGH

body2008
Judgment ( 1. ) THE petitioner, who was a candidate for one of the 34 posts of Civil Judge class II reserved for Scheduled Tribes has filed this writ petition under Article 226 of the Constitution challenging his non-selection for the post of Civil Judge, class II reserved for Scheduled Tribes candidates. ( 2. ) THE relevant facts briefly are that the Madhya Pradesh Public service Commission (for the m. P. P. S. C. ) issued an advertisement for the recruitment of Civil Judges, Class II on 30-8-2001. The advertisement was corrected by a subsequent advertisement dated 24-10-2001 of the M. P. P. S. C. Under the corrected advertisement, out of the total posts of 190,34 posts were reserved for Scheduled Tribes candidates. Pursuant to the advertisement, the petitioner applied and thereafter appeared in the written examination with Roll no. 204970 and, on the basis of results of the written examination declared on 24-11-2002, was called for interview. After the interview, the M. P. P. S. C. selected only six candidates for the 34 posts reserved for Scheduled Tribes candidates for appointment to the posts of Civil Judge, Class II. No recommendation was made by the M. P. P. S. C. for appointment to the remaining 28 posts reserved for Scheduled Tribes candidates. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution praying for a direction to the M. P. P. S. C. to submit the recommendation for the remaining 28 posts for Scheduled Tribes candidates and, in particular, for a direction to the m. P. P. S. C. to recommend the petitioner for appointment on one of the posts reserved for Scheduled Tribes candidates. ( 3. ) MR. Pankaj Dubey, learned Counsel for the petitioner, submitted that in the advertisements issued by the M. P. P. S. C. there was no mention that candidates for the posts reserved for Scheduled Tribes and Scheduled Castes must secure a minimum of 35% marks in the aggregate (written plus interview)for being selected on the post of Civil Judge, Class II, and yet the petitioner has not been selected only because he has not secured a minimum of 35% marks in the aggregate (written plus interview) in the selection conducted by the m. P. P. S. C. He cited the decision in Umesh Chandra Shukla Vs. Union of India and others, (1985) 3 SCC 721 , in which the Supreme Court has taken a view that the Selection Committee could not prescribe a minimum of 600 marks in aggregate as an additional requirement which the Committee has to satisfy for being selected when the Recruitment Rules did not prescribe such requirement. He also cited the decision of the Supreme Court in Madan Mohan Sharma and another Vs. State of Rajasthan and others, AIR 2008 SC 1657 , in which the supreme Court has taken a view that once an advertisement is issued fixing a selection criteria, the selection criteria cannot be altered subsequently. Mr. Dubey finally submitted that the M. P. P. S. C. in its return has taken a stand before the Court that after the result of the main examination of recruitment, the High Court prescribed the minimum qualifying marks for the Civil Judge, class II, as 35% marks for Scheduled Tribes and Scheduled Castes candidates. He submitted that when the Proviso to sub-rule (1) of Rule 5 of the Madhya pradesh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994 is clear that the procedure and curriculum for holding examination for the selection of candidates shall be prescribed by the Public Service Commission in consultation with the High Court and the State Government, the High Court could not have prescribed the minimum of 35% marks in the aggregate (written plus interview) for selection of a candidate belonging to Scheduled Tribes and scheduled Castes community. ( 4. ) MR. Kishore Shrivastava, learned Senior Counsel, appearing for the high Court, Mr. K. S. Wadhwa, learned Counsel, appearing for the M. P. P. S. C. and Mr. Vivekanand Awasthy, learned Government Advocate, appearing for the State of Madhya Pradesh, on the other hand, submitted that there was nothing in the advertisements of the M. P. P. S. C. stipulating that candidates not securing 35% marks in the aggregate would be selected for recruitment to the posts of Civil Judge, Class II. They further submitted that only candidates who are suitable for the appointment on the post of Civil Judge, Class II, could be selected and the advertisement of the M. P. P. S. C. is clear that final selection will be made on the basis of merit on total marks obtained in the written examination and interview. Mr. Shrivastava cited The State of Haryana Vs. Mr. Shrivastava cited The State of Haryana Vs. Subhash Chander marwaha and others, (1974) 3 SCC 220 , where the rules prescribed a minimum of 45% marks for selection in the Judicial Service in the State of Haryana and the public Service Commission made a recommendation including in the select list of candidates who had secured a minimum of 45% marks for appointment, but the State Government, while making the appointments, only considered candidates who had secured a minimum of 55% marks in the aggregate and did not appoint candidates who had secured less than 55% marks in the selection and yet the Supreme Court held that such selection is valid and could not be interfered with by the Court. Mr. Shrivastava also cited the decision of Supreme court in Madhya Pradesh Public Service Commission Vs. Navnit Kumar Potdar and another, AIR 1995 SC 77 , in which for the posts of Presiding Officer of labour Courts, Section 8 (3) (c) of the M. P. Industrial Relations Act, 1960 provided that a person must have practiced as an Advocate or a Pleader in madhya Pradesh for a total period of not less than five years but the Public service Commission took the decision to call for interview only such candidates who have completed only seven and half years and not to call for interview the applicants who have put in five years of practice and the Supreme Court held that such a decision of the Public Service Commission was not arbitrary or irrational and did not amount to changing of any criteria prescribed in the rules but it is only part of a selection process. ( 5. ) WE have considered the submissions of the learned Counsel for the parties and we find on reading of the English translation of the advertisement dated 30-8-2001 furnished by the learned Counsel for the petitioner that it clearly states that the final selection will be made on the basis of merit on total marks obtained in main written examination and interview. Hence the selection, as per the advertisement of the M. P. P. S. C, was to be based on the merit on total marks obtained in main written examination and interview. Hence the selection, as per the advertisement of the M. P. P. S. C, was to be based on the merit on total marks obtained in main written examination and interview. It is true that in the advertisement there is no mention of that would constitute the merit on total marks obtained in main written examination and interview, but we find that in response to a communication dated 3-1-2003 of the Principal Secretary, government of Madhya Pradesh, Law and Legislative Affairs Department, on the subject fixing the criteria of obtaining minimum qualifying marks in Judicial service Examination Prescribed (Civil Judges, Class II), the High Court in its letter dated 13-1-2003 has taken a view that for selection for the post of Civil judge, Class II, General Category candidates should atleast secure 45% marks in aggregate (written plus interview) and Reserved Category candidates, 35% marks in aggregate (written plus interview ). This view of the High Court appears to have been conveyed to the M. P. P. S. C. and the M. P. P. S. C. thereafter has selected only those Reserved Category candidates who have secured 35% marks in aggregate (written plus interview) and as the petitioner did not secure 35% marks in aggregate (written plus interview) his name was not sent to the State government for appointment to the post of Civil Judge, Class II. ( 6. ) THUS, this is not a case where a criteria was prescribed in the advertisement and was altered or changed subsequent to the advertisement. As we have already held, the only criteria prescribed was merit on total marks obtained in main written examination and interview. The total marks obtained in main written examination and interview was later on specified as 45% marks in aggregate (written plus interview) for General Category candidates and 35% marks in aggregate (written plus interview) for Reserved Category candidates. In the case of Madan Mohan Sharma and another Vs. State of Rajasthan and others (supra), the advertisement specified the criteria for selection as marks obtained in Secondary Examination, but subsequently altered to marks obtained in the Higher Secondary Examination and the Supreme Court has taken a view that the criteria of marks obtained in Secondary Examination could not be altered to marks obtained in the Higher Secondary Examination and the 1996 rules making such alterations would apply only to subsequent recruitments. ( 7. ( 7. ) SIMILARLY, the decision of Supreme Court in Umesh Chandra Shukla vs. Union of India and others (supra) does not apply to the facts of the present case because in that case the rules prescribed that the Selection Committee shall call for viva voce test only such candidates who have qualified in the written test as provided in the Appendix and the Selection Committee shall prepare the list of candidates only after merit of viva voce test, but the Selection Committee, in fact, prescribed an additional requirement that only those candidates who secured a minimum 600 marks in the aggregate will be considered for interview in the final selection list and the Supreme Court held that the list prepared by the selection Committee is in clear violation of the rules and quashed the selection list. In the present case, the Madhya Pradesh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994 do not prescribe who would be selected for the post of Civil Judge, Class II, and it only states that the procedure and curriculum for holding examination for the selection of candidates will be prescribed by the Public Service Commission in consultation with the High Court and the State Government, and accordingly a consultation took place between the M. P. P. S. C. , State Government and the High Court and the High Court in its letter dated 13-1-2003 took the view that for selection for the post of Civil Judge, Class II, General Category candidates should secure a minimum of 45% marks in aggregate (written plus interview) and Reserved category candidates should secure a minimum of 35% marks in aggregate (written plus interview ). ( 8. ) ACCORDING to Mr. Dubey, however, when the proviso to sub-rule (1)of Rule 5 is clear that the procedure and curriculum for holding examination for the selection of candidates shall be prescribed by the Public Service Commission in consultation with the High Court and the State Government, the High Court could not have prescribed that only Reserved Category candidates who secured 35% marks in aggregate (written plus interview) could be selected for the post of Civil Judge, Class II, and the decision could have been taken by the m. P. P. S. C. in this regard. What Mr. What Mr. Dubey fails to appreciate is that the proviso to sub-rule (1) to Rule 5 provides that the procedure and curriculum for holding examination for the selection of candidates will be prescribed by the M. P. P. S. C. in consultation with the High Court and the State Government. In the present case, it is true that the High Court has taken a view that the Reserved Category candidates must have secured 35% marks in aggregate (written plus interview)for selection for the post of Civil Judge, Class II, but the State Government and the M. P. P. S. C. have agreed with this view of the High Court and the M. P. P. S. C. has acted accordingly and recommended only those Reserved Category candidates who have secured a minimum of 35% marks in the aggregate (written plus interview ). In other words, the final decision that Reserved Category candidates must secure a minimum of 35% marks in the aggregate was that of the M. P. P. S. C. though that decision was in the consultation with the High Court and the St ate Government. ( 9. ) WE do not, therefore, find any merit in this writ petition and we accordingly dismiss the same. No costs.