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2015 DIGILAW 367 (HP)

Baljinder Singh Sra v. State of H. P.

2015-04-18

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge By medium of this writ petition, the petitioner has prayed for the following substantive reliefs: “(i). Issue of a writ in the nature of certiorari quashing the notice of result (Annexure P-6) for the appointment to the post of Additional & District Sessions Judge by direct recruitment for the year 2013 whereby the candidature of the petitioner was rejected; and further quashing the action of respondent No.3 rejecting the representation dated 19.02.2014 vide letter dated 13.03.2014 for consideration of the claim of the petitioner for the appointment to the post of Addl. District & Sessions Judge by direct recruitment for the year 2013 on account of the fact that the petitioner had obtained aggregate 55% marks (written examination and viva voce), being in contravention of the Himachal Pradesh Judicial Services Rules, 2004 supplemented by Regulations applicable thereto; (ii) issue a writ, order or direction quashing the condition of securing minimum 50% marks in interview for being qualified for final selection and direct the respondent No.3 to recommend the name of the petitioner for appointment to H.P.Higher Judicial Service to respondent No.1 alongwith all consequential benefits; (iii) Issue a writ, order or direction quashing the action of the respondent making the separate assessment of the candidates including the petitioner dehors the rules and further without adopting any criteria, basis or method to do so and further without disclosing any material on the basis of which the said assessment has been made; (iv) Issuance of the writ of mandamus directing the respondents to appoint the petitioner to the post of Addl. District & Sessions Judge by direct recruitment alongwith all consequential and incidental benefits applicable thereto; (v) Further directing the respondents to stay the notice dated 31.03.2014 (Annexure P-12) re-advertising the post of Addl. District & Sessions Judges by direct recruitment and prohibiting them from filling the vacancies to the aforesaid post as it tends to seriously prejudice the claim of the petitioner; (vi) Further directing the respondents to reserve one seat of general quota for the petitioner in order to protect the rights and interest of the petitioner during the pendency of the writ petition as the fresh process of selection had already commence in pursuance to notice dated 31.03.2014.” 2. The case of the petitioner in nutshell is that he being fully eligible applied for the post of Additional District & Sessions Judge on 8.8.2013 in pursuance to the notification issued by respondent No.3 advertising two vacancies for the post of Additional District & Sessions Judge. After scrutiny on 31.10.2013, he was allotted Roll No. 209. Since there were only two posts, only six candidates, who had successfully qualified as per merit, were called for interview in the ratio of 1:3 in accordance with the Rules and Regulations. On 5.1.2014 the petitioner reached the venue but was informed that the interview had been postponed for 6.1.2014. On 6.1.2014, the petitioner appeared before the interview committee, but was not successful. The petitioner has challenged his non-selection on the ground that there was no stipulation in the regulation that the candidates would be required to obtain minimum 50% marks in the viva voce and the only condition stipulated in the regulation was that no candidate would be considered to be qualified unless he obtained 55% marks in aggregate (written examination and viva voce) and, therefore, the action of the respondents in not selecting the petitioner only on account of having not secured minimum 50% marks in viva voce was illegal. 3. The respondents No. 1 and 2 in their reply have stated that it is on the recommendations made by respondent No.3 that it offers appointment to the recommended candidates and in the instant case since there is no recommendation for offering appointment to the post in question, therefore, no action on behalf of the respondents was called for. 4. The High Court in its reply has averred that after conducting the written examination, meeting of Rule 2-A Committee was held on 2.1.2014 wherein it was decided to prescribe certain minimum standards for qualifying in the viva voce for adjudging the qualities/capacities of the candidates so that the standard of the judiciary is not diluted and to further ensure that sub-standard stuff does not get selected. It was further averred that a high powered body like the High Court is free to evolve its own procedure in the matter of selection as it was the best judge. It was further averred that a high powered body like the High Court is free to evolve its own procedure in the matter of selection as it was the best judge. It is further averred that the Selection Committee while conducting the viva voce on 6th and 7th January, 2014 had also observed that all the six candidates were not found suitable and had failed to make a grade for selection and appointment as Additional District and Sessions Judge. 5. The petitioner in rejoinder to the reply of respondent No.3 has averred that the selection committee had not adopted any objective criteria and the selection was based only on the personal whims, caprice and fancies and was wholly arbitrary, illegal and thus liable to be set-aside. 6. We have heard learned counsel for the parties and have carefully and meticulously gone through the records of the case. 7. Mr.Surinder Saklani, learned counsel for the petitioner has vehemently argued that once no cut off marks were prescribed for viva voce, then the same could not have been introduced lateron, more particularly, after the entire selection process was completed as the same would amount to changing the ‘rules of the game’ after the game was played. He in support of his submission, has placed reliance upon the judgment of the Hon’ble Supreme Court in Hemani Malhotra vs. High court of Delhi, (2008) 7 SCC 11, more particularly the observations contained in paragraphs 14 to 16: “14. It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vive-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in K. Manjusree vs. State of A.P. (2008) 3 SCC 512 , the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms: (SCC pp. 526-27, para 33) “33.The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. 526-27, para 33) “33.The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.” From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. 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 vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection ::: Downloaded on - 04/05/2015 10:25:29 :::HCHP High Court of H.P. 6 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 vive-voce, test was illegal. 16. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal. 16. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141 ; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721 ; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646 , and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.” 8. On the other hand, the learned counsel for respondent No.3 has contended that the respondent was well within its right to have prescribed certain minimum standard for qualifying in the viva voce for adjudging the qualities/capacities of the candidates so that the standard of judiciary was not diluted and it was further required to ensure that sub-standard stuff does not get selected and such exercise was in tune with the judgment of the Hon’ble Supreme Court in K.H. Siraj vs. High Court of Kerala and others (2006) 6 Supreme Court Cases, 395, Ramesh Kumar vs. High Court of Delhi and Anr. (2010) 3 SCC 104 , Mahinder Kumar and others vs. High Court of Madhya Pradesh, (2013) 11 SCC 87 . 9. It cannot be disputed that a very responsible and onerous duty is cast on the High Court under the Constitutional scheme to ensure independence of judiciary. It has been given a prime and paramount position in this matter, with the necessity of choosing the best available talent for manning the subordinate judiciary. (See: State of Bihar vs. Bal Mukund Shah (2000) 4 SCC 640 ). 10. In State of Haryana vs. Subash Chander Marwaha & Others 1974 (3) SCC 220 , the Haryana Public Service Commission had drawn up a list of 40 candidates who had secured 45% or more marks in the examination in connection with the process for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). The State Government however, made seven appointments serially in order of merit limiting to the candidates securing 55% marks. The other vacancies were left unfilled. In response to challenge to this action, their Lordships of the Hon’ble Apex Court held that mere entry of the name of a candidate in a select list does not give him/her the right to be appointed and the existence of vacancies does not give a legal right to him/her to be selected for appointment, and that it was open to the Government to decide how many appointments are to be made. The impugned action was left un-interfered. 11. In K.H. Siraj vs. High Court of Kerala (2006 ) 6 SCC 395, the process involved related to the appointment to the post of Munsiff Magistrate in the Kerala Judicial Service. The relevant Rules provided for minimum marks in the written examination as well as in the oral examination and the candidates were to be appointed on the basis of the sum total of the marks in these segments. Their Lordships observed that the High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may be selected and to evolve a procedure to ensure the same. Their Lordships observed that the High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may be selected and to evolve a procedure to ensure the same. While approving the prescription of minimum pass marks in the written examination and the oral examination, it was held further that when a high powered constitutional authority is left with such power and it evolves the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same. 12. In Ramesh Kumar vs. High Court of Delhi and another (2010) 3 SCC 104 , the Hon’ble Supreme Court held that the Commission/Board while making selection of Judicial Officers, 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. Justification for such a course obviously was with a view to ensure that only persons with a prescribed minimum of said qualities/capacities should be selected or else the standard of judiciary would be diluted and substandard stuff may get selected. It was further observed that while the written test would 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. 13. In Barot Vijay Kumar Balakrishna and others vs. Modh. Vinay Kumar Dasrathlal & others (2011) 7 SCC 308 , the rules framed under Article 309 of the Constitution, governing the selection process, for the posts of Assistant Public Prosecutor in the State of Gujarat mandated that there would be minimum qualifying marks each for the written test and the oral interview. In this case, cut off marks for viva voce were not specified in the advertisement. It was observed by the Hon’ble Apex Court that in view of this omission, there were only two courses open. In this case, cut off marks for viva voce were not specified in the advertisement. It was observed by the Hon’ble Apex Court that in view of this omission, there were only two courses open. One, to carry on with the selection process, and to complete it without fixing any cut off marks for the viva voce, and to prepare the select list on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce. That would have been clearly wrong, and in violation of the statutory rules governing the selection. The other course was to fix the cut off marks for the viva voce, and to notify the candidates called for interview. This course was adopted by the Commission just two or three days before the interview/viva voce. Having observed that it did not cause any prejudice to the candidates, the Court did not interfere in the selection process. 14. In Mahinder Kumar and Others vs. High Court of Madhya Pradesh through Registrar General and others (2013) 11 SCC 87 , a three Judges Bench of the Hon’ble Supreme Court has clearly held that the High Court is fully empowered to evolve its own procedure of selection for direct recruitment and promotion in respect of entry level District Judge and can also specify such procedure depending on exigencies from time to time. 15. In Yogesh Yadav vs. Union of India and others (2013) 14 SCC 623, the matter pertained to appointment to the post of Deputy Director (Law), under the OBC category, in the office of Competition Commission of India. The appellants therein applied in pursuance of the notification and clause 7 of the said notification reads as follows: “7. Mode of Selection- All the applications received by the due date will be screened with reference to the minimum qualification criteria. From amongst the eligible candidates, suitable candidates will be short listed through a transparent mechanism and the short listed candidates will be called for interview before final selection. Mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview. Thereafter alongwith the admit cards issued to the appellants for appearing in the written test, detailed instructions, including the scheme of the examination, were enclosed and the relevant instructions reads as follows: 4. Mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview. Thereafter alongwith the admit cards issued to the appellants for appearing in the written test, detailed instructions, including the scheme of the examination, were enclosed and the relevant instructions reads as follows: 4. The selection to all the positions advertised will be based on a written test followed by an interview. The written test will carry 80% of the marks and interview will have 20% of the marks. The written test will be in two parts. The first part will be based on multiple choice questions for 50 marks. There is no negative marking in this multiple choice questions. The second part carrying 30 marks will be distributed to the descriptive questions on the subject of your specialization within the broad outline of the subject of specialization as indicated in the advertisement. Xxxx xxxxxxxx xxxxxxxxxxxx 9. Candidates who do not secure 50% of the marks in the test will not be called for the interview. However, for candidates belonging to the reserved categories, the cut off marks will be 40% of the total marks”. The appellants therein after qualifying the written test faced the interview but their names did not appear in the list of candidates finally selected. The appellants challenged the said action by stating that their non-selection was the result of altering the prescribed mode of selection mid-way, i.e. after the initiation of the recruitment process, which was impermissible. The precise contention was that the bench mark which was fixed by way of issuing instructions was not mentioned earlier. i.e., before the start of selection process, either in the advertisement or otherwise. The Hon’ble Apex Court after considering the judgments in Hemani Malhotra and Manjushree case (supra) while upholding the view of the High Court that the aforesaid judgments were not applicable in the said case as the fact scenario was altogether different, by following the judgments in State of Haryana vs. Subhash Chander Marwaha and others (supra) and M.P.Public Service Commission vs. Navneet Kumar Potdar and another (1994) 6 SCC 293 , held that short listing which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis, is legal and valid. 16. 16. Notably, the judgment in Hemani Malhotra’s case (supra) (which in turn is based upon Manjushree’s case) upon which much reliance has been placed by the petitioner has not found favour with the larger Bench of the Hon’ble Supreme Court and has been referred to the Constitutional Bench in Tej Prakash Pathak and others vs. Rajasthan High Court and others (2013) 4 SCC 540 and it has been held as under: “7. The question whether the ‘rules of the game’ could be changed was considered by this Court on a number of occasions in different circumstances. Such question arose in the context of employment under State which under the scheme of our Constitution is required to be regulated by “law” made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or subordinate legislation. In either case the ‘law’ dealing with the recruitment is subject to the discipline of Article 14. 8. Legal relationship between employer and employee is essentially contractual. Though in the context of employment under State the contract of employment is generally regulated by statutory provisions or subordinate legislation which restricts the freedom of the employer i.e. the ‘State’ in certain respects. 9. In the context of the employment covered by the regime of Article 309, the ‘law’ – the recruitment rules in theory could be either prospective or retrospective subject of course to the rule of nonarbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate legislation, such rules cannot be made retrospectively unless specifically authorised by some constitutionally valid statute. 10. Under the Scheme of our Constitution an absolute and nonnegotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the ‘rules of game’ either midstream or after the game is played is an aspect of retrospective law making power. 11. However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the ‘rules of game’ either midstream or after the game is played is an aspect of retrospective law making power. 11. Those various cases[3] deal with situations where the State sought to alter 1) the eligibility criteria of the candidates seeking employment or 2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut off marks to be secured by the candidates either in the written examination or viva-voce as was done in the case of Manjusree (supra) or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment [such as driving test as was the case in Maharashtra State Road Transport Corporation (supra)]. 12. If the principle of Manjusree’s case (supra) 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 (supra) 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 the case of the State of Haryana v. Subash Chander Marwaha and Others [ (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 a 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. 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: (Subhash Chander Marwaha case) SCC 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 (supra) does not appear to have been brought to the notice of their Lordships in the case of Manjusree (supra). This Court in the case of Manjusree (supra) relied upon P.K. Ramachandra Iyer and Others v. Union of India and Others [ (1984) 2 SCC 141 ], Umesh Chandra Shukla v. Union of India and Others [ (1985) 3 SCC 721 ] and Durgacharan Misra v. State of Orissa and Others [ (1987) 4 SCC 646 ]. In none of the cases, the decision in Subash Chander Marwaha (supra) was 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 the case of C. Channabasavaiah v. State of Mysore [ AIR 1965 SC 1293 ] etc. in order to avoid manipulation of the recruitment process and its results. 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.” A perusal of the aforesaid judgment, particularly paragraphs 11 and 12 would clearly go to show that the Hon’ble Supreme Court itself was not in agreement with the principles laid down in Manjushree’s case and, therefore, it referred the matter to the Larger Bench. 17. The importance of viva voce has been highlighted by the Hon’ble Supreme Court in K.H. Siraj’s case (supra) in the following manner: “54. In our opinion, the interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidates' academic knowledge, the oral test alone can bring out or disclose his 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. 55. We may usefully refer to a decision of this Court in Lila Dhar vs. State of Rajasthan (1981) 4 SCC 159 in which this Court observed as under: “The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services. ‘The ideal in recruitment is to do away with unfairness.’(SCC pp. 162-63, para 4) **** **** **** ‘A system of recruitment almost totally dependent on assessment of a person's academic knowledge and skills, as distinct from ability to deal with pressing problems of economic and social development, with people, and with novel situations cannot serve the needs of today, much less of tomorrow. 162-63, para 4) **** **** **** ‘A system of recruitment almost totally dependent on assessment of a person's academic knowledge and skills, as distinct from ability to deal with pressing problems of economic and social development, with people, and with novel situations cannot serve the needs of today, much less of tomorrow. We venture to suggest that out recruitment procedures should be such that we can select candidates who cannot only assimilate knowledge and sift material to understand the ramifications of a situation or a problem but have the potential to develop an original or innovative approach to the solution of problems.’ It is now well recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview-test there are yet no written tests which 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. (SCC p. 163, para 5) **** **** **** ‘“While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power.’ (SCC p. 166, para 9). 56. In Mohan Kumar Singhania & Ors. Vs. Union of India & Ors., (1992) suppl. 1 SCC 594 , S.Ratnavel Pandian, J. speaking for the Bench, observed as under: (SCC P. 608, paras 18-21) “18. Hermer Finer in his textbook under the caption The Theory and Practice of Modern government states: “The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere. The British Civil Service experiments with the interview.” 19. The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission's pamphlet: “Viva Voce - the examination will be in matters of general interest : it is intended to test the candidate's alertness, intelligence and intellectual outlook. The British Civil Service experiments with the interview.” 19. The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission's pamphlet: “Viva Voce - the examination will be in matters of general interest : it is intended to test the candidate's alertness, intelligence and intellectual outlook. The candidate will be accorded an opportunity of furnishing the record of his life and education.” 20. It is apposite, in this connection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus: “…..the written papers permit an assessment of culture and intellectual competence. This interview permits an assessment of qualities of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities.” 21. This Court in Lila Dhar vs. State of Rajasthan, (1981) 4 SCC 159 while expressing the view about the importance and significance of the two tests, namely, the written and interview has observed thus: (SCC p. 164, para 6) “…the written examination assess the man's intellect and the interview test the man himself and the 'the twain shall meet' for a proper selection.” 57. The qualities which a Judicial Officer would possess are delineated by this Court in Delhi Bar Association vs. Union of India & Ors., (2002) 10 SCC 159. A Judicial Officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. Acceptance of the contention of the appellants/petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets 0 marks may still find it a place in the judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It is, therefore, the High Court has set a bench mark for the oral interview, a bench mark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court. 58. In this connection, reference may be made to the decision in Manjeet Singh,, UDC & Ors. Vs. Employees State Insurance Corporation & Anr., (1990) 2 SCC 367 (SCC at p. 371) wherein the Rules did not prescribe any minimum marks for the interview. The advertisement for the job set a minimum of 40% to the written test and without a minimum for the interview. However, candidates with less than 40% at the interview were not selected. The selection was upheld by this Court relying on a judgment of Punchhi,J in Rajesh Sood vs. Director-General, Employees State Insurance Corporation, 1985 (2) Service Law 699. In Union of India & Anr. Vs. Amrik Singh & Ors., (1994) 1 SCC 269 , though there was no specification in the statutory Rules regarding the minimum length of service for promotion, such prescription was laid by administrative instructions. In para 7, this Court said that the instructions so issued were not inconsistent with the Rules. Reference may also be made to a decision of this Court in Jasbir Singh & Ors. Vs. State of Punjab & Anr., (2002) 1 SCC 124 , in which the relevant Rules did not specify as to the relevant date for considering the age qualification. The advertisement, however, fixed a cut off date, which was contended to be illegal. This Court held that the said prescription was for the purpose of implementation of the Rules regarding age. 62. Thus it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe bench marks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. 62. Thus it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe bench marks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the Rule with a view to implement them by prescribing relevant standards in the advertisement for selection. Reference may be made to the decision of this Court in State of Gujarat vs. Akhilesh C. Bhargav & Ors., (1987) 4 SCC 482 .” 18. In Ramesh Kumar’s case (supra) the importance of interview was restated in the following terms: “11. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162 ; Dr.Krushna Chandra Sahu & Ors. v. State of Orissa & Ors. AIR 1996 SC 352 ; Majeet Singh, UDC & Ors. v. Employees' State Insurance Corporation & Anr. AIR 1990 SC 1104 ; and K.H. Siraj v. High Court of Kerala & Ors. AIR 2006 SC 2339 , this Court held that 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 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. 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. Re-iterating similar views, this Court has given much emphasis on interview in Lila Dhar v. State of Rajasthan & Ors., AIR 1981 SC 1777 ; and Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. AIR 1987 SC 454 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.” 19. The object of prescribing minimum marks in viva voce is to have the best hands in the field of law especially when it is well recognised that the viva voce plays a predominant role in the selection process. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer i.e. High Court. It has to be borne in mind that the requirement of the job in a competition demands a well structured process. Such a selection would advance the cause of efficiency. The law is consistent in this regard that higher marks than the eligibility conditions can always be introduced by the competent authority for the purpose of maintenance of higher standards in service and in furtherance to its decision taken in the interest of administrative excellence. Thus scrutinized, we do not perceive any error in fixation of minimum marks in viva voce which have otherwise been uniformly applied. The said action cannot be treated to be illegal, irrational or illegitimate. Therefore, fixation of qualifying marks for the viva voce, by no means, can be imputed to be an act resulting in altering the “rules of the game” after the initiation of the selection process. After all, the High Court should be able to get the candidates of the desired level of excellence in service in the institutional exigencies. 20. Though we have gone into the question regarding validity of the decision taken by the Rule 2-A Committee, but the same was hardly required to be gone into because the matter largely, if not, entirely is only academic. 20. Though we have gone into the question regarding validity of the decision taken by the Rule 2-A Committee, but the same was hardly required to be gone into because the matter largely, if not, entirely is only academic. Reason being that the candidature of the petitioner was not rejected on the sole ground of his having failed to obtain minimum qualifying marks in viva voce, but has been rejected even on the ground of suitability which has not been seriously questioned by the petitioner except by raising a vague plea. 21. The further question, therefore, arises as to whether this Court while exercising its writ jurisdiction can venture to go behind the assessment, more particularly, with regard to suitability made by an expert Committee consisting of high level members of the Judiciary. The complete answer to this question is found in K.H. Siraj’s case (supra) wherein the Hon’ble Supreme Court held that it was the High Court which is the best judge in the matter of selection and is required to exercise its powers in light of the constitutional scheme so that the best available talent suitable for manning the judiciary may get selected and this action cannot be questioned. The Hon’ble Supreme Court observed as under: “49. So far as the first submission is concerned, we have already extracted Rule 7 in paragraph supra. Rule 7 has to be read in this background and High Court's power conferred under Rule 7 has to be adjudged in this basis. The said Rule requires the High Court firstly to hold examinations written and oral. Secondly the mandate is to prepare a select list of candidates suitable for appointment as Munsif Magistrates. The very use of the word 'suitable' gives the nature and extent of the power conferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the Judicial Officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or in the higher categories of subordinate Judge. Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best Judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected. 50. What the High Court has done by the Notification dated 26.3.2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission (I.A.S., I.A.F. etc.) or any other. Therefore, the powers conferred by Rule 7 fully justified the prescription of the minimum eligibility condition in Rule 10 of the Notification dated 26.3.2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as bench mark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high powered body like High Court to evolve its own procedure as it is the best Judge in the matter. It will not be proper in any other authority to confine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. When a high powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. Reference in this connection may be made to the decision of this Court in 2006(1) SCC 779 wherein an action of the Chief Justice of India was sought to be questioned before the High Court and it was held to be improper.” 22. At this stage, we may also make a reference to a decision rendered by the Hon’ble three Judges of the Hon’ble Supreme Court in Mahinder Kumar and others vs. High Court of Madhya Pradesh, through its Registrar General and others (2013) 11 SCC 87 wherein the Hon’ble Supreme Court held that no Court including the Hon’ble Supreme Court can venture to go behind the assessment made by an expert committee consisting of high-level members of the judiciary of the State in making selections to the post of higher judiciary and it was held : “63………It is by now well settled that no Court, including this Court can venture to go behind the said assessment made by an expert committee consisting of high-level members of the judiciary of the State and state that the said decision should be varied by holding that the other candidates whose performance was also apprised by the said expert committee should be held to be suitable on a par with the selected candidate and that they should also be selected and appointed. This Court should never make even an attempt to go behind the ultimate decision of the Selection Committee in order to set at naught the final decision arrived at by it, which was approved by the Full Court or vary its decision by adding some more candidates in the list by laying down a different criterion by altering or by fixing any benchmark for being appointed to the higher judiciary of the State….” Therefore, once the candidature of the petitioner has been rejected on the ground of suitability, all other questions are only rendered academic. 23. Before parting, it may be relevant to note here that during the pendency of this writ petition, appointments in the higher judiciary to the posts of Additional District and Sessions Judge have already been made which have not been questioned by the petitioner. 23. Before parting, it may be relevant to note here that during the pendency of this writ petition, appointments in the higher judiciary to the posts of Additional District and Sessions Judge have already been made which have not been questioned by the petitioner. It was incumbent upon the petitioner to have questioned those appointments and in absence thereof, the present petition can conveniently be held to be not maintainable. 24. Lastly, as already observed, apart from judicial review not being available in such a matter, even if it was to be assumed that the petitioner’s name was there in the selection list, the same would otherwise afford him no right and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a nonexisting right as observed by the Hon’ble Supreme Court in Union of India and others vs. Kali Dass Batish and another AIR 2006 SC 789 wherein it was held as under: “15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate’s name in the selection list gave him no right and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.” 25. In view of the aforesaid discussion, we find no merit in this petition and accordingly the same is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.