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2017 DIGILAW 127 (JK)

MANOHAR LAL v. STATE OF JAMMU AND KASHMIR

2017-03-14

ALOK ARADHE, N.PAUL VASANTHAKUMAR

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JUDGMENT : Alok Aradhe, J. In this petition, the petitioner inter alia seeks quashment of decision taken in the meeting held on 11.11.2012 by which recommendation in favour of the petitioner for his appointment to the post of District and Sessions Judge has been reversed, as well as a direction to respondents to appoint the petitioner to the post in question under Scheduled Caste Category and to award him all consequential benefits. 2. The facts leading to filing of instant writ petition briefly stated are that an advertisement notice was issued on 01.08.2011 by which applications were invited for 13 posts in the cadre of District and Sessions Judge by direct recruitment. Out of aforesaid 13 posts, 3 and 1 each were reserved for Residents of Backward Area and Scheduled Caste & Line of Actual Control Categories respectively and remaining 8 posts were to be filled up from Open Merit Category. Rule 8 of the Jammu and Kashmir Higher Judicial Services Rules 2009 deals with criteria for selection. Rule 8(i)(a) envisages two papers comprising 90 marks each whereas viva-voce examination comprises 20 marks. As per advertisement notice the candidates of Scheduled Caste Category who secure 50% or more marks in written examination were entitled for viva voce examination. 3. The petitioner as well as Respondent No. 4 and other candidates responded to aforesaid advertisement notice against the post of District and Sessions Judge under Scheduled Caste Category. The petitioner and Respondent No. 4 qualified for viva-voce examination, which was held on 28.07.2012. The Respondent No. 2 published the select list containing 9 names on 14.08.2012, which did not include the name of the petitioner. In response to the query made by the petitioner under the Right to Information Act, the Registrar General of this Court vide memo dated 07.09.2012 informed the petitioner about the marks awarded to him in the viva-voce and also provided photocopy of answer sheet of the petitioner's Paper-II of written examination and the petitioner was also informed that he may inspect the answer sheet of other candidates belonging to Scheduled Caste Category. 4. The petitioner inspected the answer sheet of other candidates belonging to Scheduled Caste Category. 4. The petitioner inspected the answer sheet of other candidates belonging to Scheduled Caste Category. The petitioner found that Respondent No. 4 has attempted question No. 3 which was to be answered in the alternative and the aforesaid candidate answered both parts of the question for which 10 marks were assigned, but he was granted 17 marks. It is the case of the petitioner that even if maximum marks would have been awarded to such candidate, he would have secured 85 marks and would not have qualified for viva-voce examination. The petitioner thereupon filed a detailed representation on 23.09.2012. However, the representation of the petitioner failed to evoke any response. The petitioner thereupon approached the Supreme Court by filing Writ Petition (Civil) No. 569/2012 in which prayer was made to re-evaluate the selection process and to appoint the petitioner on the post in question. 5. During pendency of writ petition, the petitioner visited the office of Registrar General, High Court of Jammu and Kashmir for obtaining copies of minutes of meeting and the petitioner was supplied copies of minutes of meeting held on 10.11.2012 and 11.11.2012. The petitioner thereupon learnt that in the meeting held on 10.11.2012 the Committee after noticing the fact that 17 marks were wrongly awarded to Respondent No. 4 out of 10, found him to be ineligible for appointment and also found that the petitioner was given extra 2.5 marks in Paper-I of the said examination. Accordingly the petitioner was awarded 91.5 marks in both the Papers and was held eligible for interview. The Committee made a recommendation for withdrawal of appointment of Respondent No. 4 and recommended the case of the petitioner for appointment under the aforesaid Category. However, the next day i.e. 11.11.2012 another meeting was held that in which it was held that petitioner has failed to secure cumulative grade value in written and viva-voce examination as provided under Rule 8(iii) of the Rules and decision was taken to modify the recommendation and recommendation in favour of the petitioner was withdrawn. 6. The writ petition preferred by the petitioner before the Supreme Court was dismissed vide order dated 02.07.2012 with liberty to the petitioner to take action as is permissible in law. In the aforesaid factual background the petitioner has approached this Court. 7. 6. The writ petition preferred by the petitioner before the Supreme Court was dismissed vide order dated 02.07.2012 with liberty to the petitioner to take action as is permissible in law. In the aforesaid factual background the petitioner has approached this Court. 7. Learned senior counsel for the petitioner submitted that the Committee in its meeting held on 10.11.2012 found that Respondent No. 4 has answered both the alternatives in respect of question No. 3 and was awarded 17 marks, whereas maximum marks prescribed for question No. 3 were 10 and therefore, Respondent No. 4 could not have been awarded 17 marks out of 10 marks. Accordingly, the Committee in order to be fair to Respondent No. 4 awarded him 9 marks out of 10 marks, which were the higher marks in respect of first alternative to question No. 3 and recalculated the marks of Respondent No. 4 in written examination Paper-II, as 48 marks. The Committee thereafter added marks obtained by Respondent No. 4 in Paper-I and Paper-II of the written examination and found that he has secured 84 marks out of 180 marks, whereas the minimum marks prescribed in order to qualify for interview are 90 marks out of 180 marks i.e. 50%. Similarly, the Committee also found that the petitioner ought to have been awarded 51.5 marks instead of 54 marks in Paper-I and thereafter added the marks obtained by the petitioner in both the subjects of written examination and found that in fact the petitioner has secured 91.5 marks in the written examination, thereafter added 4 marks awarded to the petitioner in viva-voce and quantified the marks awarded to the petitioner at 95.5. It is further submitted that no minimum qualifying marks for viva-voce were prescribed and the petitioner is the most meritorious candidate and since the Respondent No. 4 was not even eligible to qualify for the viva-voce, therefore, the petitioner is eligible for appointment to the post in question. 8. On the other hand, learned senior counsel for the Respondent Nos. 2 and 3 has invited attention of this Court to Rule 5 of the Jammu and Kashmir Judicial Service Rules, 2009 and has submitted that since after the impugned advertisement another advertisement was issued in which no candidate was found suitable. 8. On the other hand, learned senior counsel for the Respondent Nos. 2 and 3 has invited attention of this Court to Rule 5 of the Jammu and Kashmir Judicial Service Rules, 2009 and has submitted that since after the impugned advertisement another advertisement was issued in which no candidate was found suitable. Therefore, the post has to be filled up by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority. It is also submitted that since the petitioner had obtained less than 100 marks, therefore, he was rightly not recommended for appointment. It is also urged that the Competent Authority can prescribe minimum marks for the written examination as well as viva-voce. However, it is fairly admitted by the learned senior counsel that no Full Court Resolution was passed by which minimum qualifying marks were prescribed for the viva-voce. The Black's Law Dictionary was also referred to show the meaning of expression "Cumulative Grade Value". It is also submitted that principle of 'ejusdem generis' has to be applied while interpreting Rule 8(iii) of the Rules. In support of his submissions, learned senior counsel for Respondent Nos. 2 & 3 has referred to the decision of the Supreme Court in the cases of K.H. Siraj v. High Court of Kerala & Ors., (2006) 6 SCC 395 ; Ramesh Kumar v. High Court of Delhi & Anr., (2010) 3 SCC 104 and the decision of the Supreme Court in the case of Salam Samarjeet Singh v. High Court of Manipur, at Imphal & Anr. 2016 (10) JT 48 . 9. Learned senior counsel for the Respondent No. 4 has invited the attention of this Court to the proviso to Rule 5 as well as Rule 8 of the Rules and has submitted that Rule 5 deals with suitability of the candidate. It is further submitted that if interpretation put forth by the petitioner on Rule 8 is accepted, a candidate need not appear for the interview. It is also argued that since the petitioner did not obtain more than 100 marks, therefore, he was not entitled to be recommended for appointment. It is further submitted that object of the viva-voce examination is to assess the suitability of a candidate on various parameters. It is also argued that since the petitioner did not obtain more than 100 marks, therefore, he was not entitled to be recommended for appointment. It is further submitted that object of the viva-voce examination is to assess the suitability of a candidate on various parameters. It is also pointed out that there is neither any allegation of malafide or arbitrariness in the writ petition and this Court cannot sit in appeal over the decision taken by the Committee with regard to the suitability of the candidature of the petitioner. It is also urged while referring to the decision of the Supreme Court in the case of Salam Samarjeet Singh (Supra) that the matter with regard to the interpretation of expression "Cumulative Grade Value" is pending consideration before the Supreme Court, therefore, the hearing in the instant case be deferred. It is also submitted that the petitioner has no indefeasible right of appointment in his favour and the amendment made in the year 2015 in the Rules by which minimum 50% marks have been prescribed for interview will apply to the case of the petitioner. In support of his submissions, learned senior counsel has referred to the decision of the case of Salam Samarjeet Singh (supra), Utpal Prasad & Ors. v. Gauhati High Court, 2013 STPL 7235 Gauhati as well as decision of the Division Bench of this Court in the passed in bunch of writ appeals headed by LPA No. 29/2017, Rash Pal Singh & Ors. v. Kamal Kishore Verma. 10. We have considered the submissions made by the learned counsel for the parties and have perused the record. We are conscious of the fact that the writ petition filed by Respondent No. 4 is pending adjudication before the Supreme Court. However, in the writ petition namely, WP(s) (Civil) No(s). 223/2016 filed by the petitioner, the Supreme Court on 22.04.2016 has passed by the following order which is reproduced below for the facility of reference: "Heard In the light of pending MP No. 1 of 2015 in SWP No. 1621 of 2013 before the High Court of Jammu and Kashmir, we do not propose to entertain this petition. The writ petition is accordingly dismissed. The writ petition is accordingly dismissed. However, in the light of the difficulties experienced, we request the High Court to ensure that the pending application as well as writ petition is disposed of expeditiously preferably within one month from today." In view of the aforesaid order passed by the Supreme Court, we proceed to deal with the matter on merits. 11. Before proceeding further it is apposite to take note of Rule 5(i) and Rule 8 of the Rules, which read as under: "5. Method of Recruitment, Qualification and Age limit. Recruitment to the cadre of District Judges will be:- (1)(a) 65 percent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and qualifying a prescribed suitability test by securing 50% marks in aggregate; (b) 10 percent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; and (c) 25 percent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva-voce test conducted by the High Court: Provided that in case suitable candidates are not available for direct recruitment under Rule 5(1) (c), posts reserved for the category shall be re-advertised and in case in the next session also no suitable candidate is found available for such direct recruitment, the posts reserved for the category may be filled up by promotion from the category mentioned in sub-rule 5 (1)(a)." "8. Competitive examination for direct recruitment. (i) The competitive examination for appointment of District Judges by direct recruitment shall consist of:- (a) A written examination comprising two papers of two hours' duration each. Each paper shall carry 90 marks. The syllabus for these papers shall be prescribed and notified by the High Court. (b) Viva-voce examination shall carry 20 marks. (ii) Only the, candidates who obtain 60% or more marks in the written examination shall be called for viva-voce test in the ratio of three candidates for one available vacancy; Provided that Scheduled Caste/Scheduled Tribe candidates who obtain 50% or more marks in the written examination shall be eligible for viva-voce examination. (b) Viva-voce examination shall carry 20 marks. (ii) Only the, candidates who obtain 60% or more marks in the written examination shall be called for viva-voce test in the ratio of three candidates for one available vacancy; Provided that Scheduled Caste/Scheduled Tribe candidates who obtain 50% or more marks in the written examination shall be eligible for viva-voce examination. [(iii) Selection of the candidates shall be made on the basis of cumulative grade value obtained in the written and viva-voce examination." From close scrutiny of the proviso to Rule 5 (i) as well as proviso to Rule 8, it is evident that in proviso to Rule 5 the expression "suitable" has been used, whereas Rule 8 deals with eligibility of the candidates. There is a clear distinction between the "suitability" and "eligibility" of a candidate. The eligibility of the candidate has to be prescribed by the Competent Authority under the Rule, whereas his suitability maybe matter of subjective opinion of the Competent Authority. 12. From perusal of Rule 8 of the Rules, it is evident that a candidate is required to acquire 50% or more marks in the written examination in order to be eligible for viva-voce test. However, there is no such minimum prescription of marks in viva-voce test. It has fairly been admitted by the learned senior counsel for Respondent Nos. 2 & 3 that no resolution was passed by which minimum cut-off marks were fixed for viva-voce. We are not oblivious of the fact that a viva-voce test seeks to assess the intellectual depth and personality of a candidate. However, the fact remains in the instant case, no minimum marks for viva-voce were fixed. It is also pertinent to note that a candidate from Open Merit Category, namely, Tahir Khurshid Raina, who has secured 4 marks in the interview has been selected, whereas the petitioner who has secured 4 marks in the interview has been held to be not eligible for appointment. The above fact goes a long way in establishing the fact that no minimum cut-off marks were fixed for interview and a person who has secured 4 marks like that of petitioner is selected for the post of District and Sessions Judge. 13. It is well settled in law that validity of decision has to be adjudged on the ground on which it is taken. See Mohinder Singh Gill & Anr. 13. It is well settled in law that validity of decision has to be adjudged on the ground on which it is taken. See Mohinder Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 . At this stage, we deem it appropriate to reproduce the relevant extract of the minutes of the meeting of the Committee dated 10.11.2012, which read as under: "The Committee, therefore, find merit in Sh. Manohar Lal's Representation, insofar as it questions the evaluation of Paper-II of Sh. Pawan Kumar Kundal. The Committee, accordingly, allows 48 marks to Sh. Pawan Kumar Kundal. In order to be fair to the selected candidate, the Committee examined the evaluation of Sh. Pawan Kumar Kundal in Paper-I also. On evaluation of Paper-I, Sh. Pawan Kumar Kundal was found in order. Adding the marks obtained by Sh. Kundal in Paper-I and Paper-II, he, therefore, secures 84 marks in both the Papers, i.e. Paper-I and Paper-II. Sh. Pawan Kumar Kundal would, therefore, become ineligible for interview in terms of the Rules, in terms whereof minimum marks which a candidate belonging to Scheduled Caste Category is required to secure 50% of total marks in Written Examination, i.e. 90 marks out of 180. The Committee examined the Evaluation of Paper-I and Paper-II of Sh. Manohar Lal too so as to find out as to whether or not there was any arithmetical error in counting of the marks allowed to him by both the Examiners. The marks awarded to Sh. Manohar Lal in Paper-II were found in order but counting of marks insofar as Paper-I is concerned, an error has crept in, in that, he attempted four questions of Part-II of Paper-I, whereas the maximum questions which a candidate was required to attempt in each Part including Part-II were three questions. Therefore, taking maximum marks allowed to him in three questions of Part-II Paper-I, Sh. Manohar Lal is found to have secured 10 marks in Part-1, 21 marks in Part-II and 20.5 marks Part-III of Paper-I. His total number of marks obtained in Paper-I would, therefore, be 51= marks and not 54. Taking into consideration the marks obtained by him in Paper-II, i.e., 40 marks, he secures 91= marks in both the Papers, thus retaining his eligibility under Rules for participation in interview. Taking into consideration the marks obtained by him in Paper-II, i.e., 40 marks, he secures 91= marks in both the Papers, thus retaining his eligibility under Rules for participation in interview. In view of the above, the Committee recommends for withdrawal of the recommendation made to the Government for appointment of Sh. Pawan Kumar Kundal as District Judge against the post reserved for Scheduled Caste category candidates on the ground that he was ineligible for participation in the interview having secured less than 50% marks in the Written Examination and recommends Sh. Manohar Lal for selection against the Scheduled Caste vacancy. The Committee, however, feels that before withdrawal of Sh. Pawan Kumar Kundal's recommendation and making recommendation of Sh. Manohar Lal to the Government, opportunity of hearing needs to be provided to the already recommended candidate for appointment." The Committee thereafter passed following resolution on 11.11.2012: "Perusal of Rule 8(iii) of the Jammu and Kashmir Higher Judicial Service Rules, 2009 indicates that selection of candidates is to be made on the basis of cumulative grade value obtained in the Written Examination and Viva-voce. Sh. Manohar Lal, who, after recounting of the marks obtained by him in Paper-I and Paper-II was found to have obtained 51.5 marks in Paper-I and 40 marks I Paper-II, i.e. 91= in both the papers. Four marks were allowed to him by the Selection Committee in Viva-voce. The total marks secured by him in Written Examination and Viva-voce would, therefore, come to 95.5. Therefore, although he retains his eligibility for participation in the interview yet he may not be entitled for selection and appointment as District Judge because of his having failed to secure the cumulative grade value in Written and Viva-voce examination in terms of Rule 8(iii) of the Rules. The Committee, therefore, modify its earlier recommendations by deleting therefrom the recommendations made for selection and appointment of Sh. Manohar Lal against the vacancy reserved for Scheduled Caste candidates." From the perusal of the resolution dated 11.11.2012, it is evident that the candidature of the petitioner has been rejected merely on the ground that he has failed to secure the "Cumulative Grade Value" in the written and viva-voce examination in terms of Rule 8 (iii) of the Rules. Therefore, the validity of the decision has to be tested on the aforesaid touchstone. 14. Therefore, the validity of the decision has to be tested on the aforesaid touchstone. 14. The aforesaid conclusion of the Committee in our considered opinion is erroneous inasmuch as Rule 8(iii) does not prescribe for any minimum cut-off marks for the viva-voce and the petitioner has obtained 4 marks out of 20 marks in viva-voce i.e. 20% marks and another candidate, namely, Tahir Khurshid Raina, who has also secured 20% marks, has been selected. Thus, the performance of the petitioner in the interview has been assessed by the Committee. The petitioner has admittedly secured 95.5 marks out of 200 and has secured more marks than Respondent No. 4. Thus, in other words, the petitioner has secured the highest marks under the Scheduled Caste Category, therefore, it cannot be said that he has failed to make the "Cumulative Grade Value" in the absence of prescription for any cut-off marks in the viva-voce, for the reasons stated supra. 15. So far as reference to decision made by the learned senior counsel for Respondent No. 4 in the case of Salam Samarjeet Singh (supra) is concerned, in the aforesaid case admittedly the cut-off marks were fixed for the interview which is not the case here. Therefore, we are not inclined to accept the submissions made by learned senior counsel for Respondent No. 4 that this Court should await the decision which may be rendered by the larger Bench in the case of Salam Samarjeet Singh (supra), in the case of Utpal Prasad (supra) the Division Bench of Guahati High Court has laid emphasis for conducting viva-voce test for selection for appointment in Grade-I Judicial Services. We are also of the opinion that the assessment' and suitability of the candidate should also be adjudged through a viva-voce test which has been done in the instance case. Since the petitioner's case for appointment to the post in question has been rejected on the ground that he does not fulfill the "Cumulative Grade Value" obtained in the written and viva-voce, therefore, the question of application of amendment in 2015 Rules in the case of the petitioner does not arise in the fact situation of the case. At this stage it is pertinent to mention that the Supreme Court in the case of All India Judges Association v. Union of India, (2002) 4 8CC 247 has held that there should be no minimum marks in viva-voce test. At this stage it is pertinent to mention that the Supreme Court in the case of All India Judges Association v. Union of India, (2002) 4 8CC 247 has held that there should be no minimum marks in viva-voce test. Therefore, the decision relied by the learned senior counsel in the case of Rash Pal Singh (supra) is of no assistance to Respondent No. 4 in the fact situation of the case. The principle of 'esjudim generis' has no application to the facts of the case as Rule 8 (ii) and (iii) are independent provisions. So far as submission that the post in question ought to have been filled by promotion is concerned, no material has been brought to our notice that the post has been filed up by promotion. Even otherwise, it is well settled in law that any action is taken during the pendency of the writ petition is subject to the result of the writ petition. 16. In view of the preceding analysis, the impugned resolution dated 11.11.2012 is hereby quashed. The Respondent Nos. 2 & 3 are directed to recommend the case of the petitioner for appointment to the post of District and Sessions Judge. Needless to state that the aforesaid appointment of the petitioner shall be subject to out come of the writ petition filed by Respondent No. 4 before the Supreme Court and in case the Respondent No. 4 succeeds in the writ petition, the petitioner will have to make way for Respondent No. 4. With the aforesaid directions, the writ petition is disposed of. Petition allowed.