High Court
Case Details
WP(C) 99/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR. JUSTICE C.R. SARMA [Katakey, J.] The petitioners, who applied for selection for appointment in Grade-I As sam Judicial Service, by these writ petitions, have challenged the result of the selection notified on 01.12.2011, in so far as their non-selection against the post advertised. Since both the writ petitions relates to the same selection pro cess, those are taken up for hearing and disposal together, as agreed to by the learned counsel for the parties. 2. An advertisement dated 18.01.2011 was issued by the Registrar (Judicial) -cum-In Charge Recruitment Cell of this Court inviting applications to fill up 1 6(sixteen) vacant posts (actual and anticipated) in Grade-I Assam Judicial Servi ce by direct recruitment under the provisions of Assam Judicial Service Rules, 2 003 (in short the 2003 Rules). A number of candidates, including the petitioners submitted their applications, who appeared in the preliminary examination/scree ning test (multiple choice questions) on 12.06.2011. 84 candidates, including th e petitioners were declared as qualified for the Main (Written) Examination sche duled to be held on 30th and 31st July, 2011. The petitioners along with others appeared in the said Main (Written) Examination, result of which was declared on 29.09.2011 declaring altogether 19 candidates, including the petitioners, as qu alified for the interview/viva-voce test, who accordingly appeared in the viva-v oce test. The final result of the selection test was declared on 01.12.2011 sele cting only 5(five) candidates, who are the private respondents in the writ petit ions. Hence the present writ petitions.
Legal Reasoning
3. We have heard Mr. D.K. Mishra, learned Sr. counsel appearing for the pet itioners in WP(C) No.3364/2012; Mr. G.P. Bhowmik, learned counsel appearing for the petitioners in WP(C) No.99/2013; Mr. N. Choudhury, learned standing counsel of the High Court; Mr. K.K. Mahanta, learned Sr. counsel, Mr. A.D. Choudhury, Mr . A.M. Buzarbaruah and Mr. A. Das, learned counsel appearing for the private res pondents and Mr. J. Handique, learned State counsel appearing for the State of A ssam. 4. The learned counsel appearing for the petitioners, referring to the prov isions of 2003 Rules, have submitted that the Rules having not prescribed any be nch mark or cut off mark in the viva-voce test, unlike in the written test, the High Court was not justified in not selecting the petitioners, who having secure d more than 60% marks in the written test were called for viva-voce test, for ap pointment in Grade-I Assam Judicial Service. According to the learned counsel th e petitioners have not been selected for appointment as Selection Committee has put the bench mark or cut off mark in the viva-voce test, which in any case cann ot be done without their being any such prescription in the Rules. It has also b een submitted that neither in the advertisement nor at any stage subsequent ther eto and before conducting the selection test any decision was taken by the High Court to introduce the bench mark or cut off mark in the viva-voce test and the petitioners having secured certain marks in the viva-voce test, they ought to ha ve been selected for appointment. According to the learned counsel, in view of t he recommendation made by Justice Shetty Commission in his report and acceptance of such recommendation by the Apex Court in All India Judges’ Association & ors . Vs. Union of India & ors. reported in (2002)4 SCC 247, in any case, there cann ot be any cut off mark in the viva-voce test and as such the non-selection of th e petitioners despite securing certain marks in the viva-voce test amounts to in troduction of cut off mark in such test, which is contrary to the 2003 Rules as well as the aforesaid decision of the Apex Court. 5. The learned counsel, referring to the decision of the Apex Court in Rame sh Kumar Vs. High Court of Delhi and anr. reported in (2010)3 SCC 104 as well as in Hemani Malhotra Vs. High Court of Delhi reported in (2008)7 SCC 11, have als o submitted that in the absence of the prescription of minimum marks for the viv a-voce test, either in the Rules or in the advertisement issued for recruitment to Grade-I Assam Judicial Service, the High Court was not justified in not prepa ring the select list based on the marks secured in the Main (Written) Examinatio n and viva-voce test, as it appears from the records that though the candidates have secured certain marks in the viva-voce test, their result has not been decl ared, which amounts to introduction of minimum cut-off mark in the viva-voce tes t. According to the learned counsel, the High Court in introducing the cut-off m arks in the viva-voce test has changed the rules of the game, though there was n o prescription of minimum marks to be secured in the viva-voce test either in th e Rules or in the advertisement. 6. The learned counsel drawing the attention of the Court to the marks secu red in the written as well as viva-voce test by the petitioners have, therefore, submitted that since the petitioners have been awarded certain marks in the viv a-voce test and there cannot be any cut off mark in such viva-voce test, the Hig h Court is bound to declare the result of the selection test declaring the petit ioners as selected for appointment in Grade-I Assam Judicial Service, having reg ard to the number of vacancies available. The learned counsel for the petitioner s, however, have submitted that they have no grievance against the selection of private respondents and what the petitioners have prayed for is to declare them as selected for appointment in Grade-I Assam Judicial Service, having regard to the marks secured by them in the written as well as in the viva-voce test. 7. Mr. N. Choudhury, learned standing counsel for the High Court, referring to various provisions of 2003 Rules, has submitted that the object of the viva- voce test being to assess the suitability of the candidate for the cadre by judg ing the mental alertness, knowledge of law, clear and logical exposition, balanc e of judgment, skills, attitude, ethics, power of assimilation, power of communi cation, character and intellectual depth, there has to be objective assessment o f a candidate in such viva-voce test, which was done by the interview board cons isting of the Hon’ble Judges of this Court. It has also been submitted that the Recruitment Committee, based on the parameters prescribed in the 2003 Rules, for assessing the suitability of the candidates in the viva-voce test, have found t he petitioners not suitable for appointment as Grade-I Officer in Assam Judicial Service. The learned counsel referring to the marks secured by the petitioners in the viva-voce test, has submitted that they have even did not secure 30% of m arks in the viva-voce test, which indicates their unsuitability for being appoin ted as Grade-I Officer in Assam Judicial Service. According to the learned couns el there being no allegation of malafide or bias in any of the writ petitions, t he decision of the Recruitment Committee relating to the suitability of the cand idates is not open to judicial review, as this Court cannot sit on appeal over s uch decision. Mr. Choudhury further submits that the Recruitment Committee never introduced any cut-off mark in the viva-voce test and the suitability of the ca ndidates was assessed, based on the parameters prescribed in the Rules. The lear ned counsel further submits that as because a candidate has secured 60% or above marks in the Main (Written) Examination and accordingly he was called for viva- voce test, the 2003 Rules do not envisage preparation of a select list and appoi ntment of a candidate in the Judicial Service, by simply combining the marks sec ured in the written as well as in the viva-voce test, even though such candidate is not found suitable in the viva-voce test. The learned counsel also submits t hat the essential attributes for selection of a candidate for appointment as Jud icial Officer being to assess as to whether the candidate is intelligent, honest , has basic knowledge of law apart from integrity and robust common sense, the R ecruitment Committee, as provided by the 2003 Rules, is within its right in not recommending any candidate for appointment, if they are not found to be suitable for the purpose of recruitment as Judicial Service. 8. The learned counsel appearing for the private respondents as well as the learned State counsel adopting the arguments advanced by the learned standing c ounsel of the High Court, have submitted that no illegality has been committed i n not selecting the petitioners for appointment in Grade-I Assam Judicial Servic e, as they have not been found suitable for that purpose in the viva-voce test, in accordance with the provisions of 2003 Rules. 9. The submissions advanced by the learned counsel for the parties received our due consideration. We have also perused the pleadings of the parties and re cords of selection produced by the learned standing counsel of the High Court. The 2003 Rules, which came into force on 17.02.2006, was framed by the G 10. ovt. of Assam, in consultation with the High Court in exercise of the powers con ferred by proviso to Article 309 read with Article 234 of the Constitution of In dia, regulating the recruitment and conditions of service of persons appointed t o Assam Judicial Service. Rule 7 provides for method of recruitment and also the qualification and age limit prescribed for recruitment in Grade-I, Grade-II and Grade-III Judicial Service. There are three sources of recruitment in Grade-I J udicial Service, namely, by direct recruitment, by promotion from Grade-II servi ce and by promotion through limited departmental competitive examination. The pe rcentage of post earmarked for the said three sources of recruitment is 25%, 50% and 25%, respectively. The present writ petitions relate to the recruitment in Grade-I Assam Judicial Service by direct recruitment against the 25% of the post s to be filled up from amongst the advocates having the requisite qualification, on the basis of the aggregate marks/grade secured in the competitive examinatio n conducted by the High Court as specified in Schedule-B of the Rules. 11. Rule 9 of the 2003 Rules lays down the disqualification for appointment. Rule 10 provides for selection procedure, which, amongst other, provides that t he High Court shall on the basis of cumulative grade value secured by a candidat e, and taking into consideration the orders, if any, in force relating to the re servation of posts for Schedule Castes and Schedule Tribes, prepare in order of merit, as provided in Schedule-B, the list of selected candidates, which shall b e equal to the number of vacancies notified. Schedule-B to the 2003 Rules provid es that there shall be a competitive examination for direct recruitment to the s ervice in Grade-I, to be conducted by the High Court, which shall consists of fo ur papers, namely, Paper-I, Paper-II, Paper-III and Paper-IV. While Paper-I, Pap er-II and Paper-III carries total 100 marks, syllabus for which has also been sp ecified, Paper-IV, by which the proficiency of the candidate in official languag e is tested, carries total 50 marks. The Schedule-B further provides for viva-vo ce test to be conducted on 50 marks. The Rules also require that all candidates who obtain 60% or more or corresponding grade in the written examination, shall be eligible for viva-voce test, which, however, is reduced to 50% or more marks or corresponding grade in case of Schedule Castes and Schedule Tribes candidates . The Schedule-B lays down the object of the viva-voce test and its parameters f or effective assessment of the suitability of the candidate, which is reproduced below:- (cid:28)The object of the viva-voce examination under sub-rule (1) and (2) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, at titude, ethics, power of assimilation, power of communication, character and int ellectual depth and like of the candidate. (cid:29) Schedule-B requires to make ready a final select list by combini ng the cumulative grade value obtained in the written examination and in the viv a-voce test.
Decision
All the writ petitioners, who belong to the general category, having sec 12. ured 60% or more marks in the Main (Written) Examination, were called for viva-v oce test, which was conducted by an Interview Board consisting of senior Judges 06 40 07 07 Marks secured in interview/viva-voce of the High Court, who have awarded individual marks to each of the candidates, out of maximum 50 marks allotted for that purpose. The average marks secured by each of the 19(nineteen) candidates appeared in the viva-voce test are reproduce d below:- Roll No. 0008 0092 0114 0121 0125 0128 0131 0211 0217 0257 0266 0303 0326 0357 0362 0391 0395 0417 0437 Name Abhijit Bhattacharyya Biswajit Prasad 09 Dhruvajyoti Borgohain Dinesh Choudhury Dulal Saha Firdous Islam Choudhury 08 Gautam Baruah Mohd. Inam Uddin Mufida Haque 07 Paramananda Kakoty Pranjal Das Raktim Duarah Reeta Devi Sihota Sanjeev Kumar Sharma Sanjib Kumar Saharia Souman Choudhury Subrata Sharma (Sarmacharjee) Sushanta Sarma Barooah Utpal Prasad 42.25 38 06 30 07 08 Absent 35 04 07 08 08 13. The proceeding of the Interview Board dated 29.10.2011 and 30.10.2011, w as, thereafter, placed before the Recruitment Committee, constituted for recruit ment of Judicial Officers, in its proceeding dated 25.11.2011. The Recruitment C ommittee, having regard to the duties and responsibilities attached to the membe rs of Grade-I service and also the power, apart from the object of the interview /viva-voce test of evaluating the quality and capacity of the candidate, so that the best available candidate is selected for the purpose to maintain the desira ble standard of Subordinate Judiciary, found 5(five) candidates suitable for app ointment to Grade-I Assam Judicial Service. The proceeding of the Recruitment Co mmittee was then placed before the Full Court, which having accepted such recomm endation, the result was published on 01.12.2011 notifying that 5(five) candidat es have been selected for appointment. The records of selection maintained by th e High Court do not reveal introduction of any cut-off mark in the viva-voce tes t. 14. The Apex Court in All India Judges’ Association’s case has approved the recommendations in Justice Shetty Commission’s report, with certain modification s, which also provides that there should not be any cut-off mark for viva-voce t est for appointment to Higher Judicial Service. The 2003 Rules has been framed h aving regard to the direction issued by the Apex Court in All India Judges’ Asso ciation’s case. In Hemani Malhotra (supra), the Apex Court while dealing with th e challenge made to the notice issued by the Registrar (Vigilance) of Delhi High Court intimating that only three candidates were selected for recruitment to De lhi Higher Judicial Service, has held that as at the beginning of the selection process, no minimum cut-off marks for the viva-voce test were prescribed for the Delhi Higher Judicial Service Examination, 2006, introduction of the requiremen t of minimum marks for the interview, after the entire selection process was com pleted, amounts to changing the rules of the game after the game was played. The Apex Court, however has held that the authority making rules regulating the sel ection can prescribe by rules the minimum marks both for the written examination and viva-voce test, but if minimum marks are not prescribed for viva-voce test before commencement of the selection process, the authority concerned cannot, ei ther during the selection process or thereafter, add an additional requirement/ qualification that the candidate should also secure minimum marks in the intervi ew. The Apex Court, having regard to the recommendation of the Justice Shetty Co mmission’s report, which was approved by it in its judgment passed in All India Judges’ Association’s case, relating to the prescription of the cut-off marks at the viva-voce test, has interfered with the decision of the Delhi High Court an d directed preparation of a combined merit list by adding the marks obtained by the petitioners in the written examination to the marks obtained by them in the viva-voce test and declared the petitioners as selected for being recommended fo r appointment to the post in Delhi Higher Judicial Service. 15. As discussed above, neither the Committee constituted for recruitment of Grade-I Officers in Assam Judicial Service nor the Full Court of this High Cour t has introduced any cut-off marks in the viva-voce test. The Committee, however , found only 5(five) candidates suitable for appointment, after assessing their suitability based on the parameters stipulated in the 2003 Rules. 16. The object of any process of selection for entry into public service is to secure the best and the suitable person for the job. The selection based on m erit, tested impartially and objectively, is the essential foundation of any use ful and efficient public service. The Apex Court in Ashok Kumar Yadav & ors. Vs. State of Haryana & ors. reported in (1985)4 SCC 417 has opined that while a wri tten examination assesses the candidate’s knowledge and intellectual ability, a viva-vice test seeks to assess a candidate’s overall intellectual and personal q ualities. It has also been observed that while a written examination has certain distinct advantages over the viva-voce test, there are yet no written test, whi ch can evaluate the candidate’s initiative, alertness, resourcefulness, dependab leness, cooperativeness, capacity for clear and logical presentation, effectiven ess in discussion, effectiveness in meeting and dealing with others, adaptabilit y, judgment, ability to make decision, ability to lead, intellectual and moral i ntegrity, some of which qualities can be evaluated by viva-voce test, much depen ding on the constitution of the interview board. The Apex Court further opined t hat there can, therefore, be no doubt that the viva-voce test performs a very us eful function in assessing personal characteristics and traits and in fact, test s the man himself and is, therefore, regarded as an important tool along with th e written examination. 17. The Apex Court in Ramesh Kumar (supra) has observed that the interview m ay also be the best mode of assessing the suitability of a candidate for a parti cular position as it brings out the overall intellectual qualities of the candid ates. It has also been observed that while the written test will testify the can didate’s academic knowledge, the oral test can bring out or disclose overall int ellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc . which are also essential of a Judicial Officer. The Apex Court, however, havin g regard to the relevant Rules, which do not prescribe any cut-off mark in the v iva-voce test as well as its earlier decision in All India Judges’ Association’s case, and also Justice Shetty Commission’s report stipulating that there cannot be any minimum marks for interview, has interfered with the selection in the sa id case, as the minimum cut-off mark in the viva-voce test was introduced after the selection test was held. The object of having an effective and efficient justice delivery system 18. would not be achieved unless suitable and competent persons are appointed as Jud icial Officers. Justice, which means fair and proper administration of law, as m andated by the Constitution, cannot be ensured to the citizen unless justice is delivered timely, fairly, efficiently, expeditiously and cost effectively. To de liver quality, efficient and timely justice, the justice delivery system is to b e manned by most efficient persons. Speedy, efficient and competent trial is the fundamental right enshrined in Article 21 of the Constitution. The Grade-I Offi cers in the judicial service being in the rank of District & Sessions Judge, the y are, apart from deciding the cases, must also have management and leadership s kills for efficient management of the justice delivery system in the districts, having regard to the huge pendency of cases. A person, having high level of expe rtise, ability to absorb and analyze information, integrity and independence of mind, decisiveness, objectivity, ability and willingness to learn and develop pr ofessionally, ability to work constructively with others, ability to inspire res pect and confidence, ability to maintain authority when challenged, ability to w ork at speed and under pressure, ability to organize time effectively, apart fro m the leadership and management skills, is suitable for appointment in Grade-I j udicial service, having regard to the duties and responsibilities attached to su ch service. The qualities and the abilities of a person for being appointed in G rade-I judicial service cannot be judged only by conducting the written test, as certain qualities and abilities, as noticed above, can be judged only in the vi va-voce test and hence conduct of such test assumes importance in selecting a pe rson for appointment in Grade-I judicial service. Viva-voce test is, therefore, in no stress of imagination, be treated as a mere formality. The 2003 Rules, hav ing regard to the aforesaid object, provides for the assessment of suitability o f a candidate for appointment in Grade-I judicial service, in the parameters sti pulated therein, which has already been noticed above. 19. Grade-I Judicial Service being in the highest echelon of the hierarchy o f Judicial Service apart from the amplitude of power attached to it, the overall suitability of the candidates is of paramount significance. As noticed above, t he suitability of a candidate for appointment in Grade-I Judicial Service, in re lation to the candidate’s mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation , power of communication, character and intellectual depth, has to be assessed i n the viva-voce test, which, therefore, plays a very important role in selecting the best person for being recommended for appointment in Judicial Service that too in Grade-I Judicial Service, which is in highest echelon in the service. The importance of assessment of the suitability of the candidate in the viva-voce t est, therefore, cannot at all be ignored. 20. As discussed above, the Recruitment Committee having regard to the marks secured by each of the candidates in the viva-voce test, which is even less tha n 20%, did not find the petitioners suitable for recruitment in Grade-I Judicial Service. The writ court cannot sit in judgment over the marks awarded by the in terview board, in the absence of any allegation of malafide or arbitrariness. On the other hand, the Recruitment Committee has decided not to recommend the name s of the petitioners for recruitment in Grade-I Assam Judicial Service, having r egard to their suitability as assessed by the interview board in the viva-voce t est, which was done in accordance with the provisions of 2003 Rules and on the p arameter for assessment of the suitability of the candidate in the viva-voce tes t. 21. The argument advanced by the learned counsel for the petitioners that si nce the candidates, who appeared for the viva-voce test, have secured certain ma rks in such test, the High Court, under the Rules, was bound to prepare a select list and publish the same and thereafter to appoint the persons against the pos ts advertised in terms of their position in the merit list, cannot be accepted, in view of the fact that the Recruitment Committee did not find the petitioners suitable for appointment in the Grade-I Service. In the event of acceptance of s uch arguments, as advanced by the learned counsel for the petitioners, there cou ld be occasion where a person who though did well in the written test but did no t secure a single mark in the viva-voce test will have to be appointed, thereby rendering the object of having the viva-voce test otiose, which would also be co ntrary to the 2003 Rules. Such an approach would definitely defeat the very obje ct of having the viva-voce test. Hence such argument of the learned counsel cann ot be accepted. 22. sent writ petitions and hence those are dismissed. No cost. In view of the aforesaid discussion, we do not find any merit in the pre