High Court
Case Details
WP(C) 1583/2013 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO HON’BLE MR. JUSTICE B. D. AGARWAL Judgment and Order [ ORAL } (K Sreedhar Rao, J)
Legal Reasoning
The Gauhati High Court issued an advertisement on 17-07-2012 for filling up the posts of Judicial Officer in Grade-III of the Assam Judicial Service. In the not ification, it is stated that the appointments would be for 51 vacancies. The adv ertisement further mentions that the number of posts advertised include anticipa ted vacancies also and, therefore, the actual vacancy position may vary. The adv ertisement clearly mentions, (cid:28)Mere selection would not per se entitle a candidat e to claim appointment (cid:29). The advertisement further declares that in viva voce, o ut of 50 marks, the candidate will have to secure minimum 60% marks to qualify f or selection. The petitioner applied to the post, he participated in the written test 2. as well in the interview. The petitioner did not secure the minimum 60% of marks in the interview; as such he was not selected. The High Court selected total 71 persons to fill up the 71 vacant posts. The select list further consists of 29 The petitioner being aggrieved by his non-selection has filed this petit candidates in the waiting list. 3. ion and challenged the procedure of selection on the following grounds: (i) The Assam Judicial Services Rules, 2003 prescribe minimum marks in the w ritten test to qualify for the interview. The Rules do not prescribe any minimum marks for the interview; therefore, the prescription of minimum marks for inter view is illegal and, thus, vitiates the selection process. (ii) The number of vacancies notified is only 51; whereas 71 candidates have been selected to fill up the 71 vacant posts. The selection of candidates and fi lling up of 20 more posts is illegal, since, had for the said 20 vacancies fresh notification been issued, the petitioner would have had another chance to apply for the appointment. Section 7 of the Assam Fiscal Responsibility and Budget Management Act, (iii) 2005 declares that the appointing authority can appoint only against the sanctio ned posts, which are vacant, in accordance with the laid down Rules, procedure a nd orders. In the present case, no proper approval has been obtained from the Go vernment to fill up the additional 20 vacancies. 4. With reference to the first question, the Standing Counsel, Gauhati High Court relied upon the decision of the Supreme Court in Ramesh Kumar -vs- High C ourt of Delhi and another, reported in (2010) 3 SCC 104. The counsel for the pet itioner also relies upon the said decision to prove his point that when the Rule s do not provide for fixing of minimum cut off mark for the interview, it is not permissible for the Selection Committee to prescribe the minimum mark and disqu alify the candidate on such basis. 5. We have carefully gone through the decision cited. The facts in the cite d case disclose that there were two petitioners, who were not selected. The Delh i Higher Judicial Service Rules, 1970, did not prescribe any procedure for selec tion and recommendation. In the notification issued calling for application, it was stated that minimum marks were fixed for written as well for the interview. It was the contention of the petitioners that when the Rules do not prescribe an y procedure for fixing of any qualifying marks for written test and interview fo r selection, it was impermissible for the Delhi High Court to have adopted the s aid procedure. In the cited case, the Supreme Court observed in paragraphs 14, 1 5, 18 and 19 as follows: (cid:28)14. Similarly, in K Manjusree v. State of Andhra Pradesh & Anr. AIR 2008 SC 1470, this Court held that selection criteria has to be adopted and declared at the time of commencement of the recruitment process. The rules of the game cann ot be changed after the game is over. The competent authority, if the statutory rules do not restrain, is fully competent to prescribe the minimum qualifying ma rks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of s ****** ****** ****** ****** ****** ****** ******* ******* election in the midst of selection process is not permissible. 15. Thus, law on the issue can be summarised to the effect that in case the stat utory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and ther e is no other impediment in law, the competent authority while laying down the n orms for selection may prescribe for the tests and further specify the minimum B ench Marks for written test as well as for viva-voce. ****** ****** 18. These cases are squarely covered by the judgment of this Court in Hemani Mal hotra v. High Court of Delhi AIR <http://www.indiankanoon.org/doc/1357349/> 2008 SC 2103, wherein it has been held that it was not permissible for the High Cour t to change the criteria of selection in the midst of selection process. This Co urt in All India Judges’ case (supra) had accepted Justice Shetty Commission’s R eport in this respect i.e. that there should be no requirement of securing the m inimum marks in interview, thus, this ought to have been given effect to. The Co urt had issued directions to offer the appointment to candidates who had secured the requisite marks in aggregate in the written examination as well as in inter view, ignoring the requirement of securing minimum marks in interview. In pursua nce of those directions, the Delhi High Court offered the appointment to such ca ndidates. Selection to the post involved herein has not been completed in any su bsequent years to the selection process under challenge. Therefore, in the insta nt case, in absence of any statutory requirement of securing minimum marks in in terview, the High Court ought to have followed the same principle. In such a fac t-situation, the question of acquiescence would not arise. 19. In view of the above, as it remains admitted position that petitioner Ramesh Kumar had secured 46.25% marks in aggregate and as he was required only to have 45% marks for appointment, writ petition No.57 of 2008 stands allowed. The conn ected writ petition filed by Desh Raj Chalia as he failed to secure the required marks in aggregate, stands dismissed. The respondents are requested to offer ap pointment to petitioner Ramesh Kumar, at the earliest, preferably within a perio d of two months from the date of submitting the certified copy of this order bef ore the Delhi High Court. It is, however, clarified that he shall not be entitle d to get any seniority or any other perquisite on the basis of his notional enti tlement. Service benefits shall be given to him from the date of his appointment . No costs. (cid:29) 6. It is pertinent to note that the observations made in paragraphs 18 and 19 relates to the facts of the cited case. The Supreme Court found that it is no t permissible for the High Court to change the criteria of selection in the mids t of selection process. The Supreme Court in All India Judges’ Assn. (3) v. Unio n of India, reported in (2002) 4 SCC 247, has accepted the Justice Shetty Commis sion’s Report and in the said Report, there is no requirement for securing minim um marks in the interview. 7. Keeping in view the peculiar facts found in the cited case and in view o f the decision of the Supreme Court in All India Judges’ Assn. (3) case (supra), it is held that one of the candidates, who has secured marks in the written tes t and interview on the aggregate, has to be appointed and the other candidate, w ho has not secured the marks in the written test and interview on the aggregate, should not be selected and accordingly dismissed his petition. 8. It is pertinent to note that the relief given to one of the petitioners in paragraph 18 is based upon the peculiar facts and circumstances involved in t he cited case. In paragraph 15, however, the Supreme Court has summed up the rat io and the proposition of law. The paragraph 15 makes it very clear that the sta tutory rules prescribe a particular mode of selection, it has to be given strict adherence and if there is no procedure prescribed by the rules and there is no other impediment in law, the competent authority may prescribe the minimum bench marks for the written test as well as for viva voce. 9. The Supreme Court, in Hemani Malhotra v. High Court of Delhi, reported i n (2008) 7 SCC 11, held that it was not permissible for the High Court to change the criteria of selection in the midst of selection process. 10. In the instant case, the minimum marks for selection in the interview ha d been fixed and mentioned in the notification, calling for the applications. Th erefore, in view of the ratio laid down, as stated in paragraph 15 of the judgme nt in Ramesh Kumar (supra), it is to be held that there does not appear to be an y illegality in prescribing the minimum marks for the interview. The petitioner having participated in the process of selection cannot, after his non-selection, challenge the validity of the selection process, which obviously in accordance with law, in view of the observations of the Supreme Court in paragraph 15 of th e cited case.
Legal Reasoning
11. With regard to the variation in number of posts for selection, the couns el for the petitioner has relied upon the case of State of Orissa and another v. Rajkishore Nanda and others, reported in (2010) 6 SCC 777. The facts in the cit ed case disclose that there were only 15 posts notified for filling up the post of Junior Clark. In the aforesaid notification, it was made clear that the numbe r of vacancies could be increased and, as on that date there were 33 vacancies. The Orissa Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985, declares that the selection of candidate s hould be twice the number of vacancies. Accordingly, the competent authority not ified the names of 66 candidates in the selection list, but only 33 persons were appointed to the vacant posts. It was the contention of the petitioners in the cited case that since their names were found in the selection list, they should also be appointed. The Supreme Court, negatived their contention and in para 20, following observations are made: (cid:28)20. It appears from the judgment of the Tribunal that Rule 11(1) of the 1985 Ru les did not provide originally to prepare the list double the number of determin ed vacancies and it was only for preparing the list containing the names equal t o the number of vacancies advertised/determined. In such a fact situation, the s elect list could have been prepared only containing 33 names i.e., equivalent to the number of vacancies determined. In such a fact situation, selection process would come to an end automatically whenever 33 candidates are appointed. Howeve r, if the appellant had prepared a list double the number of vacancies determine d, that would not create any vested right in favour of the respondents. Thus, th e Tribunal committed grave error in issuing direction to offer appointments to a ll the leftover candidates. (cid:29) The observations clearly imply variation of number of posts as against t 12. he notified 15 posts as being legal and filling of 33 posts by appointing 33 can didates in the selection list as per seniority was also held to be correct. The 33 candidates, who have been selected, were only formally to be selected accordi ng to Rules and unless there is vacancy, it is held that they are not entitled t o appointment. In that view of the matter, the contention that the High Court co uld not have filled up 71 posts as against 51 posts notified, is untenable. 13. The contention of the petitioner that had the selection been only for 51 posts notified and for the rest 20 posts if there be a fresh advertisement, he could have had an opportunity of applying to the said post, is an untenable cont ention, since in the notification itself, it was stated that the post are likely to vary and selection are being made on the basis of number of vacancies availa ble at the time of interview. 14. The contention of the petitioner that the selection of 71 posts of Judic ial Officers, as against 51 notified posts would be illegal to the extent that 2 0 appointments, in view of the provisions contained in Section 7 of the Assam Fi scal Responsibility and Budget Management Act, 2005 is legal. Section 7 of the s aid Act reads as follows: (cid:28)7. Measures to ensure Fiscal Discipline.- (1) With a view to ensuring timely di scharge of current liabilities, especially payment of salaries to the employees, (a) the State Government or the appointing authorities under it shall give appoi ntments only against a sanctioned post which is vacant and in accordance with th e laid down Rules, procedures and orders; Explanation: The appointing authorities under this clause shall include the appo inting authorities of the autonomous bodies including Public Sector Undertakings , Companies, Statutory Bodies, Trusts, Societies and Cooperatives Societies unde r the State Government. (b) notwithstanding any other provision contained in any Act or Rules, no new po st shall be created in any department of the State Government or in Autonomous b odies including Public Sector Undertakings, Companies, Statutory Bodies, Trusts, Societies and Cooperatives Societies, which are under the State Government, wit hout the prior concurrence of the Finance Department; (c) no appointment shall be made by the State Government or the appointing autho rities under it in the vacancies arising out of transfer and leave of the incumb ents in these posts; (d) no appointment shall be made by the State Government or the appointing autho rities under it, in a post in anticipation of it’s falling vacant in future; (e) the State Government or the appointing authorities under it shall not make m ore than one appointment against one vacant post; (f) any letter of appointment to any vacant sanctioned post shall clearly indica te the identity of the post in the manner as may be prescribed;(g) notwithstandi ng any other provision contained in any Act or Rules, the select list prepared f or the fresh appointments to vacant sanctioned posts shall contain names equal t o the number of vacant posts notified at the time of calling for applications fo r filling up the posts. (2) Before awarding any work or starting a construction work or awarding an orde r of supply of goods and services which create liability on the Consolidated Fun d of the State, the State Government or the authorities exercising delegated fin ancial powers shall first issue administrative approval or financial sanction, f or the work or the order of supply as the case may be, in compliance with the ex isting Rules, procedures and guidelines and further Rules, procedures and guidel ines that may be prescribed from time to time. (3) Each Department shall maintain a register of works and order of supplies of goods and services, liabilities incurred against these works and orders of suppl ies, liabilities cleared and liabilities awaiting clearance, in a format as may be prescribed: Provided that the Government may make Rules not to sanction new work if the outs tanding liabilities in a Department exceed a limit as may be prescribed. (cid:29) 15. The Section states that the State Government or the Appointing Authoriti es under it shall give appointments only against a sanctioned post, which is vac ant and in accordance with the laid down Rules, procedures and orders. Here, in this case, the High Court has made selection and it is against the sanctioned va cant posts, the selections are made not against any approved cadre strength. The candidate selected and undergoing training, the selection has to be sent to Gov ernment for approval. Therefore, it cannot be contended that the selection contr avenes the provisions of the Act. 16. 17.
Decision
Accordingly the writ petition is dismissed. No order as to costs.