P.Senthil Kumaran v. The Registrar General High Court, Madras & Ors.

(b) It is his submission that in respect of disclosure ofmarks, there is no confidentiality when the relevant Rulescontemplating that the marks in the written test and viva-voce are tobe put together, thereby impliedly requiring that both the marks shouldbe disclosed. To substantiate his submission in respect ofconfidentiality, he would rely upon the judgment in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722].(c) To drive home the point about the meaning of‘consultation’, he would rely upon the judgment in Mani Subrat Jain andothers vs. State of Haryana and others [(1977) 1 SCC 486] and contendthat it is the constitutional obligation of the Governor to verify asto whether the Full Court was consulted and according to him, aCommittee of Judges is not the High Court and the reasons for rejectionshould be in writing. He would also rely upon the judgment in State of Jammu & Kashmir vs.

A.R.Zakki and others [(1992)Supp. (1) SCC 548], https://hcservices.ecourts.gov.in/hcservices/ apart from the judgments in State of Uttar Pradesh vs. Batuk Deo PatiTripathi and another [(1978) 1 SCC 102] and High Court of Judicaturefor Rajasthan vs. P.P.Singh and another [(2003) 4 SCC 239] in supportof his contention about the meaning of ‘Full Court’ and ‘Committee’. (d) About the scope of judicial review, it is his contention thatthe power of judicial review cannot be taken away because the decisionhas been taken administratively by the Judges. He would rely upon thejudgment in Surat Municipal Corporation vs. Rameshchandra ShantilalParikh and others [AIR 1986 Gujarat 50]. He would also place relianceon the judgments of the Supreme Court in K.Manjusree vs. State of Andhra Pradesh and another [(2008) 3 SCC 512] and Atul Khullar vs. State of J & K and others [(1986) Supp. SCC 225].

He would rely upon the judgment inN.Rajachandrasekaran vs. The Secretary to Government, Public (Special-A) Department, State of Tamil Nadu, Fort St.George, Chennai 9 andothers [(2009) 5 CTC 828] and submit that the failure on the part ofthe respondents in publishing the results of viva-voce would vitiatethe entire selection process. (c) It is his submission that in all other High Courts like, Chhattisgarh and Delhi, when such selection process was made in respectof Judicial Officers, the marks obtained both in the writtenexamination and viva-voce were published. (d) He would also reiterate that he is questioning the short-listing of 103 candidates for undergoing viva-voce test, even though inV.Yamuna Devi vs. The Registrar General, High Court, Madras and others[2011 (1) CTC 469] this Court considered the same, but his contentionis that the short-listing is questioned on the basis of yardstick https://hcservices.ecourts.gov.in/hcservices/ followed which was not correct and the yardstick so followed, accordingto him, is violative of Article 14 of the Constitution of India.

Hewould rely upon the judgments in Hemani Malhotra vs. High Court of Delhi [2008 AIR SCW 3205] and Ashok Kumar Yadav vs. State of Haryana[(1985) 4 SCC 417] to the effect that 1:6 ratio adopted for the purposeof short-listing of candidates who appeared in the written examinationto undergo viva-voce test is in violation of Article 14 of the Constitution of India. (e) For the purpose of supporting his view on the point of‘Full Court’, as found in Articles 233 and 235 of the Constitution of India, he would rely upon the judgments in Chandra Mohan vs. State ofU.P. [AIR 1966 SC 1987] and Prem Nath vs. State of Rajasthan [AIR 1967SC 1599]. (f) It is his submission that the petitioner has specificallystated in the affidavit that viva-voce was not conducted properly andon the last day everything was rushed through within few hours and thesame has not been replied and the petitioner is entitled to know whatwas the qualifying mark in viva-voce.

He would rely upon the judgmentsin M.M.Gupta and others vs. State of J & K and others [(1982) 3 SCC412] and Chandramouleshwar Prasad vs. The Patna High Court and others[(1969) 3 SCC 56] apart from the judgment reported in Hemani Malhotravs. High Court of Delhi [2008 AIR SCW 3205].(g) It is his submission that he is not estopped from raisingabout the validity of short-listing of candidates on the basis ofacquiescence, by relying upon the judgment in Madan Lal and others vs. State of J & K and others [(1995) 3 SCC 486], since, according to him, his claim is factually different. He would also rely upon the judgmentin Ramesh Kumar vs. High Court of Delhi and another [2010 (3) MLJ 332(SC)].

He wouldalso go to the extent of contending that the Central Act may not applyin the present context due to the reason that the High Court will notcome under the expression ‘appropriate Government’ or ‘establishment’under section 2(a) and (k) respectively of the Persons with Disabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act,1995.(b) It is his submission that even otherwise the physicallychallenged persons who are entitled for horizontal reservation cannot, as a matter of right claim till 33rd vacancy arises. It is only 17vacancies which were sought to be filled up by the High Court. It ishis submission that even in the previous selection which was made afterthe Central Act came into existence, 11 vacancies were filled up andhence, totally 28 persons (11 + 17) were selected for appointment tothe posts of District Judge (Entry Level) after the Central Act cameinto effect and still there is scope for appointment of a person fromphysically handicapped category.

It is his submission that these pointshave been raised at the earliest point of time and they were dismissedwhen the question of reservation of 3% was raised in the earlier writproceedings as reported in K.Appadurai vs. The Secretary to Government, Public (Special A) Department, Government of Tamil Nadu, Secretariat, Chennai 9 and another [2010 (5) CTC 1]. It is his submission thatthe non-selection of a person from physically handicapped categorywould not vitiate the selection. II. (a) While dealing with the non-publication of marks in viva-voce, he submitted that the High Court has never said that there were https://hcservices.ecourts.gov.in/hcservices/ no marks given in viva-voce and marks were given by the Committee of Judges during the time of viva-voce and there was interaction betweenthe High Court and the candidates and in fact, the candidates wereassessed on that basis and marks were awarded.

It is his submissionthat the non-disclosure of marks in viva-voce would not vitiate theselection since either the notification or the Rules do not stipulatesuch duty of disclosure and therefore, according to him, the disclosureof marks in viva-voce is not required in law. (b) He would submit that the Rules no where stipulate thatviva-voce marks are to be displayed and there is no mandate for thesame and for oral test, there are no cut-off marks and the performanceof candidates in oral interview cannot be disclosed since it is aninteraction by which senior most Judges of the High Court have assessedthe suitability of candidates for the post of District Judge. He wouldalso rely upon the judgment in V.Yamuna Devi vs. The Registrar General, High Court, Madras and others [(2011) 1 CTC 469]. It is his submissionthat even if the reasons are recorded for non-selection, they need notbe disclosed, by relying upon the judgment in B.C.Mylarappa vs.

Dr.R.Venkatasubbaiah [(2008) 14 SCC 306]. In the absence of any malafide attributed to any of the members of the Selection Committee by anyof the petitioners, it is his submission that the non-disclosure ofviva-voce marks will not vitiate the selection. III. (a) While considering the nature of interview, it is hissubmission that in the absence of any allegation made against any ofthe members of the Committee, including bias or mala fide, when thesenior most Judges of the High Court have decided to select thesuitable candidates, the process of selection cannot be probed into andthere is no scope for judicial review. He would rely upon the judgmentin K.H.Siraj vs. High Court of Kerala and others [2006 (6) SCC 395]. (b) He would also submit that the petitioners havingparticipated in the interview cannot be expected to make any allegationeven otherwise. He would rely upon the judgment in Delhi Bar Assn.

Vs.Union of India [(2002) 10 SCC 159]. It is his submission that thewritten examination was objective in nature and the marks wereascertainable, and therefore, they were disclosed, but in viva-voceexamination there was interaction between the Judges sitting in the Committee and the decision was purely subjective and there is noquestion of explaining the reason for either selection or non-selection. (c) In any event, he would submit that as per the records, themembers of the Selection Committee, who are the Hon’ble Judges, including the Hon’ble the Chief Justice have subjectively selected thecandidates by giving marks on proper assessment, it is not open to thepetitioners to question the manner in which the interview wasconducted. https://hcservices.ecourts.gov.in/hcservices/ IV. (a) While answering the contention raised by Mr.P.N.Prakash, learned counsel regarding short-listing, he would submit that when theentire issue has been decided by the Division Bench in V.Yamuna Devivs.

The Registrar General, High Court, Madras and others [2011 (1) CTC469], it is certainly not open to the said petitioner to raise it onceagain and that would be an abuse of process of law. (b) He would submit that the practice of challenging theselection process continuously in various stages is depreciable andaccording to him, not only at the stage of notification, it waschallenged, but when the short-listing was done that was alsochallenged and now when the selection was completed, the same is beingchallenged on various new grounds. (c) It is his submission that for the purpose of short-listingof candidates, there is no rule and therefore, the High Courtprescribed the rule by itself and inasmuch as the fairness cannot bequestioned, it is not open to the petitioners to once again raise thesaid issue. He would also rely upon the judgment in M.Palanisamy vs. The Tamil Nadu Public Service Commission, rep.

By its Secretary, Government Estate, Anna Salai, Madras-2 [1997 (3) CTC 698]. V. (a) While meeting the submission made by all the learnedcounsel regarding the expression ‘Full Court’, as per Article 233 ofthe Constitution of India, it is his submission that inasmuch as the High Court has authorized the Chief Justice to constitute Committee bygeneral authorization, by virtue of a Full Court resolution, if the Chief Justice constitutes a Committee, the members of the Committee areto be treated as High Court and they cannot be treated as Judges whoare delegated with the powers. (b) The High Court is governed by the Rules framed eitherunder Article 225 of the Constitution of India and in the absence ofany such Rule, it is, by resolution of the Full Court, theadministration is carried on. Therefore, according to him, Article 225is not a sole depository of rule making power and the resolutionauthorizing the Chief Justice to appoint Committees is well within thepowers of the High Court.

As long as the Committee of Judges appointedby the Chief Justice does not contain an outsider, the Committee of Judges is deemed to be the ‘High Court’ and its decision is deemed tobe the decision of the ‘Full Court’.(c) He would distinguish the judgment in Chandra Mohan vs. State of U.P. [AIR 1966 SC 1987], which relates to a case where the Committee consisted of two Judges and the Secretary to Government andin those circumstances, while construing Article 233 of the Constitution of India, the Supreme Court held that the decision cannotbe held to be that of the High Court. He would submit that the Rules https://hcservices.ecourts.gov.in/hcservices/ framed under Article 309 of the Constitution of India cannot be theguiding factor and even under Article 233 of the Constitution of India, the guidelines can be framed by the High Court. (d) He would distinguish the judgment in Prem Nath and othersvs.

State of Rajasthan and others [AIR 1967 SC 1599], where the rulesframed under Article 309 of the Constitution of India came to be setaside by the Supreme Court. He would rely upon the judgment of the Supreme Court which was relied upon by Mr.V.Raghavachari, in State ofU.P. vs. Batuk Deo Pati Tripathi [(1978) 2 SCC 102], wherein the Supreme Court held that Committee of Judges constituted by the HighCourt cannot be said as a delegates. (e) He would also distinguish the judgment in High Court of Judicature for Rajasthan vs. P.P.Singh and another [(2003) 4 SCC 239]to insist the point that the functioning of the Committee is deemed tobe ‘High Court function’ and he would rely upon the judgment in HighCourt of Judicature at Bombay vs. Shirishkumar Rangrao Patil [(1997) 6SCC 339]. VI. (a) While dealing with the role of Governor, it is his submissionthat inasmuch as it is the power of the Government to raise anyobjection in the process of consultation, the non-consideration of anyrepresentation by the Governor is irrelevant.

When the Government whichis entitled in the consultation process to participate has accepted thedecision of the High Court, it is not open to the petitioners todictate that the Government should raise objection. (b) The Governor’s role has already been discussed by the Division Bench in V.Yamuna Devi vs. The Registrar General, High Court, Madras and others [2011 (1) CTC 469]. It is his submission that whenonce the Government filed an affidavit adopting the counter affidavitfiled by the Registrar General, it means that the Government acceptedthe decision of the High Court and there is nothing more for the Government to consult. (c) It is his submission that the scope of judicial review inthis case is limited and regarding the question of eligibility orsuitability, it is for the High Court to decide because, only the HighCourt knows as to the requirements of the judicial system. He wouldrely upon the judgment in Mahesh Chandra Gupta vs. Union of India[(2009) 8 SCC 273]. (d) He has also submitted that after notification was issued, out of 17 selected candidates, 16 have taken charge and in respect ofone candidate, there is some enquiry pending on the basis of somecomplaint.

Whether the selection and appointment of 17candidates should be held invalid on the ground that nophysically handicapped person has been selected among the 17and therefore, there is violation of the Central Act, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 apart fromG.O.Ms.No.87 Social Welfare Department dated 17.7.2008 and Rule 10 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules,2007? 2. Whether non-publication of viva-voce marks obtainedby the candidates vitiates the entire selection process, including the point relating to the transparency and thenature of interview conducted? 3. Whether the petitioners are entitled to re-agitateon the point of short listing of candidates who haveparticipated in the written examinations eligible to appearfor viva-voce in the light of the decision of the DivisionBench of this Court reported in V.Yamuna Devi vs.

TheRegistrar General, High Court, Madras and others (2011 (1)CTC 469)? 4. What is the scope of the term “High Court” inrelation to the appointment of District Judges in the contextof Article 233 of the Constitution of India, which includesthe role of the Governor of the State as per the said Articleto consult with the High Court? 22. I. Relating to the reservation of 3% under the Persons with https://hcservices.ecourts.gov.in/hcservices/ Disabilities (Equal opportunities, protection of rights and Fullparticipation) Act, 1995: (a) The Persons with Disabilities (Equal Opportunities, Protectionof Rights and Full Participation) Act, 1995 (Act 1/96) (hereinaftercalled as, "the Act"), which was enacted as a comprehensive legislationby the Government of India for safeguarding the rights of persons withdisabilities came into existence from 7.2.1996, the date on which the Central Government notified it.

Section 33 of the Act whichcontemplates 3% of reservation to the disabled persons is as follows: "Section 33. Reservation of posts.- Every appropriateGovernment shall appoint in every establishment suchpercentage of vacancies not less than three per cent forpersons or class of persons with disability of which one percent each shall be reserved for persons suffering from-(i)blindness or low vision; (ii)hearing impairment; (iii)locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, havingregard to the type of work carried on in any department orestablishment, by notification subject to such conditions, ifany, as may be specified in such notification, exempt anyestablishment from the provisions of this section. " (b) Under section 32, ‘appropriate Government’ shall identify theposts in the establishment in which the persons with disabilities canbe appointed and the said section is as follows: "Section 32.

Identification of posts which can be reservedfor persons with disabilities.- Appropriate Governmentsshall- (a) identify posts, in the establishments, which can bereserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the listtaking into consideration the developments in technology. "(c) Section 36 of the Act provides to carry forward the vacanciesnot filled up to the succeeding recruitment year and in the succeedingyear, if suitable person with disability is not available, steps mustbe taken first by filling up the disabled candidates by inter-changingamong the three categories mentioned under Section 33 of the Act, andit is only thereafter, the question of filling up of other persons https://hcservices.ecourts.gov.in/hcservices/ would arise. In this regard, it is relevant to extract Section 36 ofthe Act, which is as follows: "Section 36.

Vacancies not filled up to be carriedforward.-Where in any recruitment year any vacancy under section33 cannot be filled up due to non-availability of a suitableperson with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeedingrecruitment year and if in the succeeding recruitment yearalso suitable person with disability is not available, it mayfirst be filled by interchange among the three categories andonly when there is no person with disability available forthe post in that year, the employer shall fill up the vacancyby appointment of a person, other than a person withdisability: Provided that if the nature of vacancies in anestablishment is such that a given category of person cannotbe employed, the vacancies may be interchanged among thethree categories with the prior approval of the appropriateGovernment. " (d) The term ‘appropriate Government’ which is defined in section2(a) of the Act, is as follows: "Section 2(a).

"appropriate Government" means,- in relation to the Central Government or anyestablishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act,1924 (2 of 1924), the Central Government; in relation to a State Government or any establishmentwholly or substantially financed by that Government, or anylocal authority, other than a Cantonment Board, the StateGovernment; in respect of the Central Co.ordination Committee andthe Central Executive Committee, the Central Government; in respect of the State Co.ordination Committee and the State Executive Committee, the State Government; "Therefore, in relation to the State Government, it applies to the establishment, local authority, etc. (e) Section 2(k) of the Act, which defines the term‘establishment’ is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section 2(k) "establishment" means a corporationestablished by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company asdefined in Section 617 of the Companies Act,1956 (1 of 1956)and includes Departments of a Government.

" (f) The contention of Mr.R.Muthukumarasamy, learned seniorcounsel appearing for the Registrar General of the Madras High Court inthis regard is that, the High Court would not be brought well withinthe ambit of any of the definitions in the Act and therefore, in strictsense, the Act may not have application. The said contention, in ourconsidered view, has to be rejected outright. (g) Article 233 of the Constitution of India relating to theappointment of District Judges makes it abundantly clear that it is the Government which is the appointing authority. In this regard, it isrelevant to extract the said Article 233 as follows: "Article 233. Appointment of district judges.-(1)Appointments of persons to be, and the posting andpromotion of, district judges in any State shall be made bythe Governor of the State in consultation with the High Courtexercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union orof the State shall only be eligible to be appointed adistrict judge if he has been for not less than seven yearsan advocate or a pleader and is recommended by the High Courtfor appointment. "It is true that it has been held by established judicial precedentsthat in respect of Articles 233 and 235 regarding selection of DistrictJudges and control of the Subordinate Courts, the High Court is thebest person to know everything and therefore, the views of the HighCourt even in consultation process by the State have to be necessarilytaken into consideration as a mandate, but still, the power ofappointment of District Judges is with the Government. (h) The Government of Tamil Nadu has also admittedly adopted thetenor of the said Act in the State Government Service subject to the Communal Roster System which is being followed. The Communal RosterSystem which was originally 100 point roster, has become 200 pointroster and by G.O.Ms.No.87, Social Welfare Department dated 17.7.2008,the Government divided the said 200 point Communal Roster into sixparts and in respect of allotment to disabled persons, the ratio is https://hcservices.ecourts.gov.in/hcservices/ fixed at 1:1:1 as adumbrated under section 33 of the Central Act bycategorically stating that the allocation must be equally given at therate of 1 out of 33 seats.

That has been made specifically clear inthe said G.O. The portion of the G.O. which is relevant for the purposeof this case is as follows: "(m) ,k;khepyj; jpYs;s muR Jiwfs;. fHf';fs; kw; Wk;thhpa';fspy; 200 g[s;sp fzf; fPL gjpntl; il 6 (MW) fl;l';fshfg; gphpj;J(CdKw;nwhhpd; K:d;W ,d';fspy; mjhtJ ghh; itaw; wth;. fhJnfshnjhh; kw; Wk; iffhy; CdKw;nwhh; MfpnahUf;F Koe;j tiu jyh 1:1:1 tPjk; rkkhf tH';fp) xt; bthU fl; lj; jpYk; cs;s 33 fhyp gzpapl';fSf;Fs; xUCdKw;wtiu njh;t[ bra;J (ck;/1-33. 34-66. 67-100. 101-133. 134-166 kw; Wk;167-200) ,d RHw;rp gl; oaypy; (communal roaster) mth; rhh;e;j ,dj; Jf;F vjpuhf mthpd; njh; it fzf; fpLk; Kiwia filgpof;f muRMizapLfpwJ/"(Translated version :Order has been issued by the Government with regard tothe selection procedure in the Government Department, Corporations and Boards in this State, that the 200 PointRoster shall be classified into six categories (out of 3categories among the physically handicapped person viz.,deaf, dumb and orthopaedically handicapped persons, shall begiven in the equal ratio of 1:1:1 to the extent possible) andone physically handicapped person shall be selected in 33vacancies in each category (Eg.:- 1-33, 34-66, 67-100, 101-133, 134-166 and 167-200) and the selection shall beindicated against his/her community in the Communal Roster.

") (i) The relevant rules applicable to the facts and circumstancesof the present case are the Rules framed in exercise of powersconferred under Articles 233, 233A, 234 and 235 and proviso to Article309 of the Constitution of India, viz., Tamil Nadu State JudicialService (Cadre and Recruitment) Rules, 2007, (in short, "the Rules")published in the Government Gazette on 19.1.2007. Under rule 10,reservation of appointments is explained, which is as follows: " Rule10. Reservation of Appointments.- Rules 21(b) and22 of the General Rules for the Tamil Nadu State and Subordinate Service relating to reservation of appointmentshall apply to the selection for appointment to the posts of District Judge (Entry Level) and Civil Judge (JuniorDivision) by direct recruitment. (2) Candidates with the following disabilities, namely, https://hcservices.ecourts.gov.in/hcservices/ blind deaf/orthopaedically handicapped can seek forrecruitment for the post of Civil Judge (Junior Division).

(i) 3 percent of the vacancies in the post of Civil Judge (Junior Division) in direct recruitment has to befilled by physically handicapped, namely, blinddeaf/orthopaedically handicapped. In the event of only onevacancy the rule of reservation for physically handicappedshall not apply: Provided that the candidate must produce a certificatefrom the Medical Board to the effect that the disability willnot affect the performance of the job, namely, Civil Judge(Junior Division) before appointment. "(j) While 3% reservation to the physically handicapped persons hasbeen expressly ensured in respect of appointment of Civil Judges(Junior Division), it is made clear that rule 22 (aa) of the GeneralRules for Tamil Nadu State and Subordinate Services Rules will apply inrespect of appointment of District Judges (Entry Level) by directrecruitment. The said rule is as follows: “ Rule 22. Reservation of Appointments.- Where the SpecialRules lay down that the Principle of reservation ofappointments shall apply to any service, class or category, selection for appointment thereto shall with effect on andfrom 22.06.1990, be made on the following basis: (a) xxxx(aa) Out of the total number of appointments reserved inthe categories referred to in clause (a), in the case ofappointment made by direct recruitment, one percent in eachsuch category shall be separately reserved for the blind, deaf and orthopaedically handicapped candidates and theappointment shall be made in turn and in the order ofrotation as specified in Schedule III-A to this part: Provided that the appointment of physically handicappedcandidates, against the reserved turns shall be subject toavailability of such candidates: Provided further that if no qualified and suitablecandidate is available from a particular category ofhandicapped, namely the blind, the deaf or theorthopaedically handicapped, the vacancy can be filled up bycandidates belonging to any of the other two categories: @This shall, however, be subject to the third proviso to thisclause.@ Provided also that in the teaching posts of School https://hcservices.ecourts.gov.in/hcservices/ Education Department, Adi Dravidar and Tribal WelfareDepartment, Social Welfare Department and Backward Classesand Most Backward Classes Department, other thanorthopaedically physically handicapped, the reservation forthe blind shall be two percent, and there shall be noreservation for the deaf.

In the non-teaching posts in theabove Departments, other than orthopaedically physicallyhandicapped, the reservation for the deaf shall be twopercent, and there shall be no reservation for the blind:”.@ Inserted vide G.O.Ms.No.169 P&AR(S) Dept. dt.25.9.2006 w.e.f. 25.9.2006Provided also that if no qualified and suitablephysically handicapped candidate belonging to Scheduled Casteor Scheduled Tribe or Most Backward Class/DenotifiedCommunity is available for selection for appointment againstthe reserved turn, such turn shall be filled up by acandidate other than physically handicapped belonging to thatcategory and if no such candidate is available in thatcategory for selection for appointment against the reservedturn, such turn shall be carried forward as provided inclause (d):Provided also that in the case of appointment ofcandidates belonging to Backward Classes (other than MostBackward Classes/Denotified Communities) Backward ClassMuslims or in the case of appointment of candidates on thebasis of merit, if no qualified and suitable physicallyhandicapped candidate is available for selection forappointment against the reserved turn, such turn shall befilled up by a candidate other than physically handicappedbelonging to that category and if no such candidate isavailable in that category for selection for appointmentagainst the reserved turn, such turn shall be allowed tolapse;$Provided also that in so far as the Executive Posts areconcerned, the reservation for physically handicappedcandidates shall be made applicable in respect of suitableposts in Groups ‘A’ and ‘B’ as identified in the listapproved by the State Government and to all posts in Groups‘C’ and ‘D’ , subject to condition that the physicallyhandicapped candidate shall, before appointment, produce acertificate of physical fitness from the Medical Board to theeffect that his handicap will not affect the performance ofthe job to which he has been selected.$Provided also that if the vacancies notified areidentified suitable for only any two of the three categoriesof the physically handicapped, namely; blind and deaf or deaf https://hcservices.ecourts.gov.in/hcservices/ and orthopeadically handicapped or blind and orthopeadicallyhandicapped and if the total number of vacancies meant forthe ineligible category of the physically handicapped iseven, it shall be distributed equally between the other twoeligible categories, or if the said total number of vacanciesis odd, the extra vacancy shall be allotted to either of thetwo eligible category of physically handicapped, which hashigher population as per the latest census.$Provided also that if the vacancies notified oridentified suitable for only one category of physicallyhandicapped then all the 3 per cent vacancies shall beallotted to that particular category of physicallyhandicapped.$Inserted in G.O.Ms No.76, P&AR (S) Department, dated.19.06.09 w.e.f.11.04.2005Provided also that the recruiting or appointing authoritiesare permitted to continue recruitment from the last point atwhich the selection was made prior to the 22nd June 1990 withreference to the then existing 50 point roster.

Whererecruitment has already been made for a few posts only notinvolving the 51st Point (which has been reserved for Scheduled Tribe from the 22nd June 1990) the recruiting orappointing authorities are to continue the 100 point roster. However, where recruitment has been made after the 22nd June1990 in large numbers involving 51st point, the selection hasto be refitted from the 51st Point onwards with reference tothe revised 100 point roster and the backlog of vacancy for Scheduled Tribes be filled up in view of the ban ondereservation of vacancy reserved for ScheduledCastes/Scheduled Tribes with effect from the 1st April 1989.Provided also that nothing contained in this rule shalladversely affect the notifications of the Tamil Nadu PublicService Commission already issued, inviting applications andselections or appointments made following the fifty pointroster on and from the 22nd June 1990 till the 21st January1993.” Therefore, the Government Service Rules ensure the reservation of 3%vacancies for physically handicapped persons.

In fact, there is alsoone proviso to that rule which says,‘Provided also that if the vacancies notified or identifiedsuitable for only one category of physically handicapped, then all the 3% vacancies shall be allotted to thatparticular category of physically handicapped’. https://hcservices.ecourts.gov.in/hcservices/ (k) Even in the notification issued by the Government dated24.6.2010, calling for applications for appointment of 17 posts of District Judges (Entry Level), the Government has made it clear thereinthat the reservation to the differently abled persons will be followedas per G.O.Ms.No.87 dated 17.7.2008 in the following terms: " The reservation in recruitment in respect of differentlyabled persons is governed by the orders issued inG.O.Ms.No.87, SW&NMP(SW-4) Department, Dated 17.7.2008."It is based on the above said express terms only, the recruitmentprocess was commenced and completed and therefore, it is too late forthe respondents now to raise such technical ground.

(l) That apart, in the first batch of writ petitions challengingthe said notification issued by the Government in K.Appadurai vs. Secretary to Government, Public (Special A) Department, Government of Tamil Nadu, Chennai-9 and another [2010 (5) CTC 1], it was the specificstand of the Government as well as the High Court in the counteraffidavit, as explained by the Hon’ble First Bench in the judgment inparagraphs 28 and 29, that" 28. As against that the respondent Government, in itscounter affidavit filed in W.P.No.16383 of 2010, stated thatthe reservation in recruitments in respect of disabled personsis governed by the G.O.Ms.No.87 dated 17.07.2008. As per thesaid G.O., orders were issued to adhere to the system of 200point roster dividing into 6 classifications granting an equalratio of 1:1:1 to the disabled category viz., blind, deaf andorthopaedically challenged. It is stated in the impugnednotification that the reservation roster applicable to 17vacancies are earmarked, and in the notification itself thereis a mention that the reservation in respect of differentlyabled persons is governed by G.O.Ms.No.87 dated 17.7.2008.

Itis further stated that the 3% reservation will be ensured byeach Appointing Authority by appointing one individualbelonging to differently abled category in each of the 6blocks of 200 point communal roster. It is further stated inthe counter that the entire notification is given for the Vertical Reservation i.e., for communities, whereas thedifferently abled persons comes under Horizontal Reservation, hence, the petitioner will be accommodated if he comes onmerit and will be absorbed under his respective communalquota. It is further stated that the State Government is https://hcservices.ecourts.gov.in/hcservices/ giving utmost importance for providing employmentopportunities to the differently abled persons. It is alsosubmitted that the impugned notification is crystal clearabout the reservation meant for differently abled persons andfacilitates them to apply for the same as per the existingrules, and there is no arbitrariness on the part of the StateGovernment, and hence, the impugned notification does notviolate the fundamental rights guaranteed under Articles 14,15 and 21 of the Constitution of India.

The obligation offilling up of the vacancies as per 3% reservation will becarried out by the Appointing Authority at the time ofappointment by appointing one individual belonging todifferently abled category in each of the 6 blocks of 200point Communal Roaster. 29. The Registrar General, High Court, Madras, in hercounter affidavit filed in W.P.(MD)No.9119 of 2010 reiteratedthe stand taken by the State Government. It is stated that the Government of Tamil Nadu in G.O.Ms.No.87 dated 17.07.2008issued orders to adhere to the system of 200 point roasterdividing into 6 classifications granting an equal ratio of1:1:1 to the disabled category i.e., Blind, Deaf and Orthopaedically challenged as far as possible, and to selectdifferently abled persons among the 33 vacant posts in eachdivision, and follow the method of making selection againsttheir respective community in the communal roaster. It isfurther stated that inner rotation for all eligible categoriesincluding the differently abled persons are provided in the200 point roaster, which is going to be adopted for thepresent selection on the basis of G.O.Ms.No.87 dated17.07.2008.

It is further stated that though the nature ofduties and responsibilities attributed to the post of DistrictJudge (Entry Level) required persons free from certaindisabilities like blindness, total deafness, etc., so as todischarge his official duties, every possible steps have beentaken to give equal opportunities to the eligible disabledpersons, and hence, the operation of the relevant GovernmentalOrder viz., G.O.Ms.No.87 dated 17.07.2008 in respect ofdifferently abled persons in the present selection processwas notified in the impugned notification itself. Therefore, it is submitted that the impugned notification is transparentand strictly adhering to the rules of reservation in force.” (m) Based on the said stand of the Government as well as the HighCourt, the Hon’ble First Bench ultimately held in that regard asfollows: https://hcservices.ecourts.gov.in/hcservices/ " 30. After hearing the learned counsel appearing for theparties, we are of the view that the stand taken by therespondents in their respective counter affidavit is fullyjustified inasmuch as the system of 200 point roasterdividing into 6 classifications granting an equal ratio of1:1:1 to the disabled category has been followed.

It has beencategorically stated that the obligation of filling up ofvacancies as per 3% reservation would be carried out by the Appointing Authority at the time of appointment as per theroaster. In that view of the matter, we find that theimpugned notification is transparent and is strictly adheringto the rules of reservation in force. Hence, the contentionmade by the petitioners in these two writ petitions aremisconceived and devoid of any substance. We, therefore, donot find any merit in this writ petition also. "Therefore, the respondents 1 to 3 cannot contend that the Act is notapplicable. (n) The constitutional mandate regarding vertical and horizontalreservation in terms of Article 16 of the Constitution of India wasbest explained by the Supreme Court in Mahesh Gupta vs. Yashwant KumarAhirwar [(2007) 8 SCC 621] to the effect that the handicapped personswhen available, must be filled up on horizontal basis as a specialcategory.

By relying upon the said judgment of the Apex Court, aDivision Bench of this Court in R.Parthiban vs. State of Tamil Nadu andanother [2009 WLR 1065], while observing as follows: " 8. In spite of the Persons with Disabilities Act and the Rules framed by the State, there seems to be some difficultyin implementing the provisions of the Act fully eitherbecause of lack of awareness or perhaps lack of will. TheState is duty bound to implement the Act fully since the Actuses the word "shall" while giving protection to the Disability Rights. It does not give any escape route to theemployer from accommodating the persons with disabilitywhenever a vacancy arises. "and extracted the notification of Government of India issued by the Ministry of Personnel, P.G. and Pensions Department of Personnel &Training dated 29.12.2005, which earmarks reservation for physicallyhandicapped which is as follows: “ 15. EFFECTING RESERVATION MAINTENANCE OF ROSTERS: https://hcservices.ecourts.gov.in/hcservices/ (a) All establishments shall maintain separate 100 pointreservation roster registers in the format given in AnnexureII for determining /effecting reservation for the disabledone each for Group "A" posts filled by direct recruitment, Group "B" posts filled by direct recruitment.

Group "C" postsfilled by direct recruitment, Group "C" posts filed bypromotion, Group "D" posts filled by direct recruitment and Group "D" posts filled by promotion. (b) Each register shall have cycles of 100 points andeach cycle of 100 points shall be divided into three blocks, comprising the following points: 1st Block - Point No.1 to Point No.33 2nd Block - Point No.34 to Point No.66 3rd Block - Point NO.67 to Point No.100(c) Points 1, 34 and 67 of the roster shall be earmarkedreserved for persons with disabilities one point for each ofthe three categories of disabilities. The head of theestablishment shall decide the categories of disabilities forwhich the points 1,34 and 67 will be reserved keeping in viewall relevant facts. (d) All the vacancies in Group C posts falling in directrecruitment quota arising in the establishment shall beentered in the relevant roster register. If the post fallingat point No.1 is not identified for the disabled or the headof the establishment considers it desirable not to fill it upby a disabled person or it is not possible to fill up thatpost by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall betreated as reserved for the disabled and filled as such.

Likewise a vacancy falling at any of the points from 34 to 66or from 67 to 100 shall be filled by the disabled. Thepurpose of keeping points 1, 34 and 67 as reserved is to fillup the first available suitable vacancy from 1 to 33, firstavailable suitable vacancy from 34 to 66 and first availablesuitable vacancy from 67 to 100 by persons withdisabilities.” and ultimately held as follows: "

(p) In Government of India through Secretary and another vs. RaviPrakash Gupta and another [(2010) 7 SCC 626], it was held by the Supreme Court that the non-identification of posts to be filled up withthe physically challenged persons due to bureaucratic inaction cannotmake section 33 of the Act in a suspended animation. In that regardthe Supreme Court has held as follows:

27. It is only logical that, as provided in Section 32of the aforesaid Act, posts have to be identified forreservation for the purposes of Section 33, but suchidentification was meant to be simultaneously undertaken withthe coming into operation of the Act, to give effect to theprovisions of Section 33. The legislature never intended theprovisions of Section 32 of the Act to be used as a tool todeny the benefits of Section 33 to these categories ofdisabled persons indicated therein. Such a submission strikesat the foundation of the provisions relating to the duty castupon the appropriate Government to make appointments in everyestablishment (emphasis added).

28. xxxx“ 29.

While it cannot be denied that unless posts areidentified for the purposes of Section 33 of the aforesaidAct, no appointments from the reserved categories containedtherein can be made, and that to such extent the provisions https://hcservices.ecourts.gov.in/hcservices/ of Section 33 are dependent on Section 32 of the Act, assubmitted by the learned ASG, but the extent of suchdependence would be for the purpose of making appointmentsand not for the purpose of making reservation. In otherwords, reservation under Section 33 of the Act is notdependent on identification, as urged on behalf of the Unionof India, though a duty has been cast upon the appropriateGovernment to make appointments in the number of postsreserved for the three categories mentioned in Section 33 ofthe Act in respect of persons suffering from the disabilitiesspelt out therein. In fact, a situation has also been noticedwhere on account of non-availability of candidates some ofthe reserved posts could remain vacant in a given year.

Formeeting such eventualities, provision was made to carryforward such vacancies for two years after which they wouldlapse. Since in the instant case such a situation did notarise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward ofvacancies or lapse thereof, does not arise.” Therefore, we have to strike a balance of the situation wherein the State Government has not identified the posts meant for reservation tophysically challenged persons. But, at the same time, till the turncomes for physically challenged persons viz., from 1 to 33, simplybecause a person from the said category is not appointed, it cannot besaid that the entire selection should be affected by the same. (q) In the absence of identification of the post to be filled up, even though there is a statutory right on the part of the physicallychallenged person to claim to be appointed as one among 33, that righthas not yet got crystallized.

We are also informed that after the Persons with Disabilities (Equal opportunities, Protection of rightsand Full Participation) Act,1995, has come into existence in 1996, thepresent recruitment is the second one and there were already 11District Judges (Entry Level) appointed earlier and if put together, both would come to 28 posts (11 + 17) of District Judges, out of whomno one has been appointed from and out of the physically challengedpersons. The mandate is that such appointment should be made before33, which means that there should be one appointment between 1 to 33,of course, subject to the availability of candidates. In thissituation, we are not impressed by the contention raised by the learnedcounsel for the petitioners that the selection has to be set aside onthat ground. On the other hand, we are informed that out of 17selected candidates, only 16 have been appointed. If the said onevacancy is going to arise for any reason and by any chance, or in theabsence of such a situation, in the next immediate appointment to thepost of District Judges, the respondents shall preferably appoint aperson under physically challenged category, of course, subject to https://hcservices.ecourts.gov.in/hcservices/ other requirements like, qualifications etc.

(r) As enumerated above, even by applying the yardstick under Section 36 of the Act, this being the succeeding recruitment, if the High Court found no suitable person with disability, it is in the nextrecruitment, the appointment has to be made by interchanging categoryin which case, the person with locomotor disability will have a rightto consider. (s) In view of our above said findings, we are of the view thatthe present instance cannot be taken as changing the rules of the gameduring selection process, as held by the Hon’ble Apex Court in HemaniMalhotra vs. High Court of Delhi [(2008) 7 SCC 11]. We answer the said issue accordingly.II. Regarding viva-voce: (a) The selection process as per the Tamil Nadu State JudicialService (Cadre and Recruitment) Rules, 2007 consist of the marksobtained by the candidates in the written examination and viva-voce. In the instant case, the maximum marks allotted for written examinationwas 75 and for viva-voce it was 25.

It is not in dispute that themarks obtained by the candidates in the written examination and viva-voce were put together for the purpose of completing the selectionprocess. The High Court published the marks obtained by the candidatesin the written examination in its website. The complaint is that themarks obtained in viva-voce by 103 candidates who were called forinterview/viva-voce have not been revealed. The method of appointment, qualifications, etc. are explained in Rule 5 of the Tamil Nadu StateJudicial Service (Cadre and Recruitment) Rules, 2007. As per the saidrule, 50% of District Judges (Entry Level) is filled up by promotionfrom among the Civil Judges (Senior Division) / Chief JudicialMagistrates, etc. on the basis of evaluation of judgments, annualconfidential reports, workdone statements and so on. The next 25% ofposts is filled up by promotion from among Civil Judges (SeniorDivision) / Chief Judicial Magistrates strictly on the basis of meritthrough limited competitive examination and viva-voce test conducted bythe High Court.

The remaining 25% is filled up by direct recruitmentamong the eligible advocates, with which we are concerned in this batchof cases. (b) Annexure-I to the said Rules deal with appointment of District Judges (Entry Level) by direct recruitment, which is asfollows: https://hcservices.ecourts.gov.in/hcservices/ "Annexure I(under Rule 5)DISTRICT JUDGE (ENTRY LEVEL) BY DIRECT RECRUITMENT (1) The Government, in consultation with the Madras HighCourt shall invite applications for filling up the post of District Judge (Entry Level) by Direct Recruitment. The High Court shall conduct the written examination andviva-voce as specified below for selection of District Judge(Entry Level) by Direct Recruitment. (2) A Candidate shall, along with his application-(a) If he/she is an Advocate or pleader, produce from the Presiding Officer of the Court in which he/she is actuallypracticing, a certificate indicating the length of his/herpractice.

(b) If he/she is an Assistant Public Prosecutor, Grade Ior an Assistant Public Prosecutor, Grade II, produce from the Collector of the District concerned a certificate indicatingthe length of his/her service. (c) Produce a certificate of good character from a SeniorAdvocate/counsel and another from a responsible person, notbeing a relative but who is well acquainted with him/her inprivate life. The Selection shall be made based on the results of writtenexamination and viva-voce i.e., the selection will be made onthe basis of the total marks obtained by the candidates inthe written examination and viva-voce taken together subjectto the rule of reservation of appointment. The maximum marksallotted for the written examination and viva-voce shall be75% and 25% respectively. The Notification enlisting the successful candidatesprepared under these rules shall be published in the TamilNadu Government Official Gazette and it shall cease to beoperative as from the date of Publication of the next list ofsuccessful candidates prepared under these rules, in the Tamil Nadu Government Official Gazette.” (c) A reading of the entire rules make it abundantly clearthat there are no obligation imposed by the rules on the respondents topublish the marks obtained by the candidates either in the writtenexamination or in viva-voce.

On the other hand, the rule which ismentioned in Annexure-II in respect of appointment of Civil Judge(Junior Division) by direct recruitment specifically contemplates theminimum marks for pass in the written examination. It also makes it https://hcservices.ecourts.gov.in/hcservices/ clear that no candidate who has secured less than the minimum marks inthe written examination is eligible for viva-voce and to pass in viva-voce a person should necessarily obtain the minimum marks of 18. Infact, the said Annexure-II is in clear terms with regard to the marksto be obtained in the written examination and viva-voce for selectionprocess of Civil Judge (Junior Division) which has been consciouslyomitted to be mentioned in detail in respect of appointment of District Judges (Entry Level) by direct recruitment and in suchcircumstances, it cannot be said that there is any legal duty on thepart of the respondents to reveal marks obtained by the candidates.

Inthe written examination stage, the marks obtained by the candidateswere revealed for the purpose of calling the candidates for viva-vocetest by preparing a mark list and thereafter, when viva-voce wasconducted by six Senior Judges of this Court including the Hon’ble the Chief Justice, it is not as if no assessment was made by the Judges bygiving marks to the candidates. (d) At the same time, the contention raised by the learnedsenior counsel appearing on behalf of the Registrar General, HighCourt, Madras, by claiming exemption from disclosure under Section 8(1)(e) and (j) of the Right to Information Act,2005, as if it is offiduciary relationship or no public activities involved, cannot beaccepted. In fact, a Division Bench of this Court while consideringthe scope of Section 8 of the Right to Information Act,2005 inN.Rajachandrasekaran vs. The Secretary to Government, Public (SpecialA) Department, State of Tamil Nadu, Fort St.George, Chennai 9 andothers (2009 (5) CTC 828) in respect of appointment of District Judges, when a similar point was raised, has observed as follows: "9. ..... Admittedly, the present case in hand do notfall within the purview of any of the exemption clause fromdisclosure of information.10.

The matter relates to appointment in the StateJudicial Service made by the State Government on therecommendation of the High Court. Apart from the fact thatthe State Government is a public authority, administrativeside of the High Court having recommended the name, is alsorequired to promote transparency and accountability. Therefore, the 2nd respondent, instead of asking thepetitioner to move the State Government for information, should have supplied the information to the petitioner asbrought to the notice of the Court. "In any event, now that the entire particulars, including the marksobtained by the candidates in the viva-voce has been furnished, there https://hcservices.ecourts.gov.in/hcservices/ is no necessity to consider the said issue. (e) Even though the publication of such marks in the viva-voceis not a mandatory requirement on the part of the respondents, thelist has been handed over to us by the learned senior counsel appearingfor the Registrar General of Madras High Court.

We have perused theentire list and found that in fact all the Judges who have participatedin the interview have together awarded marks to the candidates andthere is no reason to come to a conclusion that the marks awarded areincorrect. What transpired in the interview by way of viva-voce is notfor this Court to probe into, since the assessment made on the spot issubjective, which cannot have any cut-off marks. It is only inobjective type of test like, the written test, marks can be identifiedsince the subjects are also identified in the form of questions, but inviva-voce test which is predominantly subjective in nature, there canbe no yardstick for the purpose of disclosing as to what has happenedin the interview regarding the performance of the candidates. (f) It is not the case of any of the petitioners imputing malafide or bias against any one of the Members of the Committee, who haveconducted the interview.

Inasmuch as the Members of the Committee of Judges have awarded marks to individual candidates who haveparticipated in the viva-voce test and in the absence of anyrequirement in law to disclose the marks in viva-voce of theparticipants, we are of the view that the same cannot be a ground forsetting aside the selection. (g) In the absence of anything to substantiate theallegations, there is no reason to doubt about the correctness of thedecision taken in the viva-voce. It is also relevant to point out thatfor the purpose of non-selection of a candidate, no reason need to bedisclosed. In this regard, it is relevant to extract some portions ofthe judgment of the Supreme Court in B.C.Mylarappa @ Dr.Chikkamylarappavs. Dr.R.Venkatasubbaiah and others [(2008) 14 SCC 306].“ 26. Admittedly, there is nothing on record to showany mala fides attributed against the members of the expertbody of the University.

The University Authorities had alsobefore the High Court in their objections to the writ petitiontaken a stand that the appellant had fully satisfied therequirement for appointment. In this view of the matter and inthe absence of any mala fides either of the expert body of the University or of the University Authorities and in view of thediscussions made hereinabove, it would be difficult to sustainthe orders of the High Court as the opinion expressed by the https://hcservices.ecourts.gov.in/hcservices/ Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction.27. Again in M.V. Thimmaiah v. Union Public ServiceCommission(2008) 2 SCC 119, this Court clearly held that inthe absence of any mala fides attributed to the expert body, such plea is usually raised by an interested party (in thiscase the unsuccessful candidate) and, therefore, the courtshould not draw any conclusion on the recommendation of theexpert body unless allegations are substantiated beyond doubt.

That apart, the challenge to the selection made by the expertbody and approved by the University Authorities was made by Respondents 1 and 2 who were unsuccessful candidates and werenot selected for appointment to the post of Professor in the Department of Sociology.28. In National Institute of Mental Health and NeuroSciences v. Dr. K. Kalyana Raman 1992 Supp. (2) SCC 481, this Court considered in detail the role of an expert body indeciding the candidature for selection to a particular post. While doing so, this Court at SCC pp. 484-85, para 7 of thesaid decision observed as follows: “7. … In the first place, it must be noted that thefunction of the Selection Committee is neitherjudicial nor adjudicatory. It is purelyadministrative. The High Court seems to be in errorin stating that the Selection Committee ought tohave given some reasons for preferring Dr. GauriDevi as against the other candidate.

The selectionhas been made by the assessment of relative meritsof rival candidates determined in the course of theinterview of candidates possessing the requiredeligibility. There is no rule or regulation broughtto our notice requiring the Selection Committee torecord reasons. In the absence of any such legalrequirement the selection made without recordingreasons cannot be found fault with. The High Courtin support of its reasoning has, however, referredto the decision of this Court in Union of India v.Mohan Lal Capoor (1973) 2 SCC 836. That decisionproceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons forsuperseding a senior member in the State CivilService. The decision in Capoor case (1973) 2 SCC836 was rendered on 26-9-1973. In June 1977,Regulation 5(5) was amended deleting the requirementof recording reasons for the supersession of seniorofficers of the State Civil Services.

Capoor case https://hcservices.ecourts.gov.in/hcservices/ (1973) 2 SCC 836 cannot, therefore, be construed asan authority for the proposition that there shouldbe reason formulation for administrative decision. Administrative authority is under no legalobligation to record reasons in support of itsdecision. Indeed, even the principles of naturaljustice do not require an administrative authorityor a Selection Committee or an examiner to recordreasons for the selection or non-selection of aperson in the absence of statutory requirement. Thisprinciple has been stated by this Court in R.S. Dassv. Union of India 1986 Supp. SCC 617 in which Capoorcase (1973) 2 SCC 836 was also distinguished.” Keeping this observation in our mind and considering the factsand circumstances of the present case, we find that there wasno dispute in this case that the selection was made by theassessment of relative merit of rival candidates determined inthe course of the interview of the candidates and afterthoroughly verifying the experience and service of therespective candidates selected the appellant to the post ofthe Professor in the said Department.29.

It is not in dispute that there is no rule orregulation requiring the Board to record reasons. Therefore, in our view, the High Court was not justified in making theobservation that from the resolution of the Board selectingthe appellant for appointment, no reason was recorded by the Board. In our view, in the absence of any rule or regulationrequiring the Board to record reasons and in the absence ofmala fides attributed against the members of the Board, theselection made by the Board without recording reasons cannotbe faulted with. " (h) The mere fact that the rule contemplates that the selectionshould consists of the marks obtained by the candidates in the writtenexamination and viva-voce does not itself mean that there is animplied duty of disclosure. A reference was made to the judgment in Ajay Hasi and others vs. Khalid Mujib Sehravardi and others [(1981) 1S.C.C. 722], especially where it relates to the marks allotted to oralinterview.

It was in the factual context that while allotting 100 marksfor the written test, 50 marks was allotted for oral interview, andconsidering that 50% of the written test marks has been allotted to theoral interview, it was held by the Supreme Court that allocation ofmore than 15% of marks to oral interview was arbitrary andunreasonable. (i) Moreover, that was relating to admission in EngineeringColleges and the interview was conducted by the authority entitled to https://hcservices.ecourts.gov.in/hcservices/ admit students and selection was challenged on the grounds that thesociety which conducted the examinations had acted arbitrarily byignoring the marks obtained by the candidates at the qualifyingexamination, that the viva-voce examination is a test for determiningthe merit of the candidates that allocating 50 marks for the viva-voceexamination would be arbitrary and liable to be struck down asconstitutionally invalid and lastly by holding superficial interviewwhich lasted for only 2 to 3 minutes on an average by asking questionswhich were not relevant for the assessment and suitability of thecandidates.

While dealing with the allegations made therein thatirrelevant questions were asked, the Apex Court considered granting of15% marks for oral interview and ultimately observed as follows: " 20. ....We may point out that, in our opinion, if the marksallocated for the oral interview do not exceed 15 per cent ofthe total marks and the candidates are properly interviewedand relevant questions are asked with a view to assessingtheir suitability with reference to the factors required tobe taken into consideration, the oral interview test wouldsatisfy the criterion of reasonableness and non-arbitrariness. ..." (j) On the facts of the present case, some of the petitioners havemade self-styled statement that on the third day of the interview ithas been done hurriedly. But in the counter affidavit filed by the Registrar General it is stated that marks were awarded in the viva-voce and the allotment of marks was on evaluation of the candidates.

Even though it is stated in the counter affidavit that it is aconfidential activity, it is also stated that non-publication of themarks in the viva-voce would not amount to any arbitrary action. Eventhough we do not agree with the contention of the learned seniorcounsel for the High Court that the marks obtained by the candidates inthe viva-voce examination is fiduciary in character and thereforecannot be revealed by applying the exemption under Sections 8(1)(e) and(j) of the Right to Information Act,2005, one has to necessarily acceptthe contention that the viva-voce including rescheduling the scheme ofevaluation and the criteria adopted in the viva-voce marks awarded insuch oral interview are all relating to the process of selection toidentify the candidates in terms of technical competence, aptitude, etc., for the post of District Judge. (k) At the risk of repetition, it has to be reiterated that viva-voce interview being subjective in nature, it is for the Committee todecide on the spot about the suitability of the candidates, especiallywhen the High Court is performing its constitutional function inselecting the District Judges.

While the written examination isobjective in nature, there are subjects which are formulated, in theviva-voce, the questions are formulated by the Members of the https://hcservices.ecourts.gov.in/hcservices/ Committee on the spot, which cannot be said to be invalid, unless it ispatently unfair, especially when the Rules do not contemplate suchprocedure. (l) The importance of interview has been very aptly recognized asa method to bring out the quality and talent, as has been made outclearly by the Hon’ble Apex Court while dealing with the KeralaJudicial Service Rules,1991 and appointment of the Munsifs/Magistratesin Kerala. That was in K.H.Siraj vs. High Court of Kerala (2006 (6)SCC 395) and the following observation is relevant:

54. In our opinion, the interview is the best mode ofassessing the suitability of a candidate for a particularposition. While the written examination will testify thecandidate’s academic knowledge, the oral test alone can bringout or disclose his overall intellectual and personalqualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualitiesof leadership, etc. which are also essential for a judicialofficer.

It was in that judgment, while considering the interview conducted bythe Chief Justice along with four Senior Most Judges, and dealing with Rule 7 of the Kerala Judicial Service Rules,1991, it was held asfollows: “7.

Preparation of lists of approved candidates andreservation of appointments.—(1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying theprobable number of vacancies likely to be filled up andprepare a list of candidates considered suitable forappointment to Category 2. The list shall be prepared afterfollowing such procedure as the High Court deems fit and byfollowing the rules relating to reservation of appointmentscontained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958.(2) The list consisting of not more than double thenumber of probable vacancies notified shall be forwarded forthe approval of the Governor. The list approved by the Governor shall come into force from the date of the approvaland shall remain in force for a period of two years or until afresh approved list is prepared, whichever is earlier.” https://hcservices.ecourts.gov.in/hcservices/ While considering the contention raised about the validity of selectionon the basis that the minimum marks for oral examination followed bythe Committee of Judges who had selected the candidates was notauthorized under Rule 7, it was held, by approving the power of the High Court in following the said procedure of awarding marks in thesaid oral examination, as follows: " 49.

So far as the first submission is concerned, we havealready extracted Rule 7 in paragraph supra. Rule 7 has to beread in this background and the High Court’s power conferredunder Rule 7 has to be adjudged on this basis. The said rulerequires the High Court firstly to hold examinations writtenand oral. Secondly, the mandate is to prepare a select listof candidates suitable for appointment as Munsif/Magistrates. The very use of the word “suitable” gives thenature and extent of the power conferred upon the High Courtand the duty that it has to perform in the matter ofselection of candidates. The High Court alone knows what arethe requirements of the subordinate judiciary, what qualitiesthe judicial officer should possess both on the judicial sideand on the administrative side since the performance ofduties as a Munsif or in the higher categories of SubordinateJudge, Chief Judicial Magistrate or District Judge to whichthe candidates may get promoted require administrativeabilities as well.

Since the High Court is the best judge ofwhat should be the proper mode of selection, Rule 7 has leftit to the High Court to follow such procedure as it deemsfit. The High Court has to exercise its powers in the lightof the constitutional scheme so that the best availabletalent, suitable for manning the judiciary may get selected.50. What the High Court has done by the notificationdated 26-3-2011 is to evolve a procedure to choose the bestavailable talent. It cannot for a moment be stated thatprescription of minimum pass marks for the writtenexamination or for the oral examination is in any mannerirrelevant or not having any nexus to the object sought to beachieved. The merit of a candidate and his suitability arealways assessed with reference to his performance at theexamination and it is a well-accepted norm to adjudge themerit and suitability of any candidate for any service, whether it be the Public Service Commission (IAS, IFS, etc.)or any other.

Therefore, the powers conferred by Rule 7 fullyjustified the prescription of the minimum eligibilitycondition in Rule 10 of the notification dated 26-3-2011. Thevery concept of examination envisaged by Rule 7 is a conceptjustifying prescription of a minimum as benchmark for passingthe same. In addition, further requirements are necessary for https://hcservices.ecourts.gov.in/hcservices/ assessment of suitability of the candidate and that is whypower is vested in a high-powered body like the High Court toevolve its own procedure as it is the best judge in thematter. It will not be proper in any other authority toconfine the High Court within any limits and it is, therefore, that the evolution of the procedure has been leftto the High Court itself. When a high-powered constitutionalauthority is left with such power and it has evolved theprocedure which is germane and best suited to achieve theobject, it is not proper to scuttle the same as beyond itspowers.

Reference in this connection may be made to thedecision of this Court in Union of India v. Kali Dass Batish(2006) 1 SCC 779 herein an action of the Chief Justice of India was sought to be questioned before the High Court andit was held to be improper. "Observing that the decision of five experienced Judges of the HighCourt need not be doubted, it was held as follows: " 57. The qualities which a judicial officer would possessare delineated by this Court in Delhi Bar Assn. v. Union of India (2002) 10 SCC 159. A judicial officer must, apart fromacademic knowledge, have the capacity to communicate histhoughts, he must be tactful, he must be diplomatic, he musthave a sense of humor, he must have the ability to defusesituations, to control the examination of witnesses and alsolengthy irrelevant arguments and the like. Existence of suchcapacities can be brought out only in an oral interview. Itis imperative that only persons with a minimum of suchcapacities should be selected for the judiciary as otherwisethe standards would get diluted and substandard stuff may begetting into the judiciary.

Acceptance of the contention ofthe appellant-petitioners can even lead to a postulate that acandidate who scores high in the written examination but istotally inadequate for the job as evident from the oralinterview and gets zero marks may still find a place in thejudiciary. It will spell disaster to the standards to bemaintained by the subordinate judiciary. It is, therefore, the High Court has set a benchmark for the oral interview, abenchmark which is actually low as it requires 30% for apass. The total marks for the interview are only 50 out of atotal of 450. The prescription is, therefore, kept to thebare minimum and if a candidate fails to secure even thisbare minimum, it cannot be postulated that he is suitable forthe job of Munsif Magistrate, as assessed by five experiencedJudges of the High Court. " https://hcservices.ecourts.gov.in/hcservices/ The Supreme Court has also considered the issue that a person who hasparticipated in the interview cannot turn around after failing in theinterview and question the selection process and held as follows: "73.

The appellant-petitioners having participated in theinterview in this background, it is not open to theappellant-petitioners to turn round thereafter when theyfailed at the interview and contend that the provision of aminimum mark for the interview was not proper. It was so heldby this Court in para 9 of Madan Lal v. State of J&K (1995) 3SCC 486 as under: (SCC p.493)“9. Before dealing with this contention, we mustkeep in view the salient fact that the petitionersas well as the contesting successful candidatesbeing respondents concerned herein, were all foundeligible in the light of marks obtained in thewritten test, to be eligible to be called for oralinterview. Up to this stage there is no disputebetween the parties. The petitioners also appearedat the oral interview conducted by the membersconcerned of the Commission who interviewed thepetitioners as well as the contesting respondentsconcerned.

Thus the petitioners took a chance toget themselves selected at the said oral interview. Only because they did not find themselves to haveemerged successful as a result of their combinedperformance both at written test and oralinterview, they have filed this petition. It is nowwell settled that if a candidate takes a calculatedchance and appears at the interview, then, onlybecause the result of the interview is notpalatable to him, he cannot turn round andsubsequently contend that the process of interviewwas unfair or the Selection Committee was notproperly constituted. In Om Prakash Shukla v.Akhilesh Kumar Shukla 1986 Supp SCC 285, it hasbeen clearly laid down by a Bench of three learnedJudges of this Court that when the petitionerappeared at the examination without protest andwhen he found that he would not succeed inexamination he filed a petition challenging thesaid examination, the High Court should not havegranted any relief to such a petitioner.” https://hcservices.ecourts.gov.in/hcservices/ (m) In this regard it is relevant to note that the Apex Court in Delhi Bar Association vs.

Union of India [(2002 (10) SCC 159], heldthat what has to be seen is the attributes of candidate of becoming agood judicial officer, viz., integrity, honesty and basic knowledge oflaw and robust common sense and the candidate need not be academicallyvery brilliant and the relevant portion of the judgment is as under: " While making appointment of judges, what has to be seenis the potentional in the candidate; whether a person isintelligent and will in due course of time become a goodjudge. It may not be necessary for him to be academicallybrilliant or knowing all the law at the time when the processof selection is undertaken. What has to be seen is, whetherthe candidate has the attributes of becoming a good JudicialOfficer, namely, integrity, honesty, basic knowledge of lawand robust common sense. " (n) In a case covered by the Orissa Judicial Service Rules,1964,for appointment of Munsifs, a similar method of written and viva-vocetests were prescribed and in the absence of specific rule prescribingminimum qualifying marks for viva-voce test, Public Service Commissionfixed the minimum qualifying marks for viva-voce in order to excludethe candidates and while holding such prescription by the ServiceCommission as unconstitutional in the light of Article 234 of the Constitution of India, it was held in Shri Durgacharan Misra vs.

Stateof Orissa and others (AIR 1987 SC 2267) that the Commission cannotprescribe minimum standard at viva-voce test for determining thesuitability of candidates for appointment of candidates as Munsif. (o) The legal position has been established in Madan Lal v. Stateof J&K [1995 (3) SCC 486] holding that the candidate having taken achance to appear in an interview and after becoming unsuccessful cannotturn around to challenge the method of selection or he is estopped todo so, as it has been reiterated in K.H.Sirah vs. High Court of Kerala& Others (AIR 2006 SC 2339). Para 73 referred to above in Sirah's casecame to be distinguished by the Supreme Court, on fact, in Raj Kumarand others vs. Shakti Raj and others (1997 (9) SCC 527). That was acase, where the Government had not taken the posts from the purview ofthe Selection Board, but after examinations were concluded and afterthe results were announced, the Government took the same from thepurview of Selection Board and thereafter, the Selection Committee wasconstituted and it was found that the entire procedure became illegal.

In those circumstances it was held that the same cannot be a bar forthe candidate to question the nature of selection. It is relevant toextract the following paragraph: https://hcservices.ecourts.gov.in/hcservices/ " 16. Yet another circumstance is that the Government had nottaken out the posts from the purview of the Board, but afterthe examinations were conducted under the 1955 Rules andafter the results were announced, it exercised the powerunder the proviso to para 6 of 1970 Notification and theposts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of thecandidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K (1995) 3 SCC 486 andother decisions referred therein had held that a candidatehaving taken a chance to appear in an interview and havingremained unsuccessful, cannot turn round and challenge eitherthe constitution of the Selection Board or the method ofselection as being illegal; he is estopped to question thecorrectness of the selection.

But in his case, the Governmenthas committed glaring illegalities in the procedure to getthe candidates for examination under the 1955 Rules, so alsoin the method of selection and exercise of the power intaking out from the purview of the Board and also conduct ofthe selection in accordance with the Rules. Therefore, theprinciple of estoppel by conduct or acquiescence has noapplication to the facts in this case. Thus, we consider thatthe procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken bythe Government is not correct in law. "Therefore, reliance placed on by Mr.P.N.Prakash in the said judgmenthas no relevance to the facts of the present case. (p) Again, in Ramesh Kumar vs. High Court of Delhi and another(2010 (3) MLJ 332 (SC)), the Apex Court has dealt with Delhi HigherJudiciary Service Rules,1970. While explaining about the concept ofwritten examination and interview, it was observed,“ 13.

Thus, law on the issue can be summarised to theeffect that in case the statutory rules prescribe aparticular mode of selection, it has to be given strictadherence accordingly. In case, no procedure is prescribed bythe rules and there is no other impediment in law, thecompetent authority while laying down the norms for selectionmay prescribe for the tests and further specify the minimumBench Marks for written test as well as for viva-voce.” (q) Further it was clarified that in the absence of specific rules https://hcservices.ecourts.gov.in/hcservices/ providing for a particular procedure or criterion for holding thetests, the directions issued by the Court will have a binding effect, and the relevant portion of the judgment is as follows: “ 14. In the instant case, the Rules do not provide forany particular procedure/criteria for holding the testsrather it enables the High Court to prescribe the criteria.

This Court in All India Judges' Association & Ors.v Union of India & Ors. AIR 2002 SC 1752 accepted Justice ShettyCommission's Report in this regard which had prescribed fornot having minimum marks for interview. The Court furtherexplained that to give effect to the said judgment, theexisting statutory rules may be amended. " (r) On the facts of the present case, when the relevant rules aresilent about the method of examinations, the only factor required to beconsidered is, whether the procedure followed is fair. Theconstitutional functionaries are deemed to discharge their dutieswithout bias and independently, as held by a Full Bench of this Courtin High Court of Judicature at Madras vs. T.S.Sankaranayaranan (FB)[1997 (3) CTC 1] and there are catena of judgments in that regard including Hari Datt Kainthla vs. State of Himachal Pradesh (1980 (3)SCC 189) and Chandramouleshwar Prasad vs. The Patna High Court andothers (1969 (3) SCC 56).

We have held in V.Yamuna Devi vs. TheRegistrar General, High Court Madras (2011 (1) CTC 469), thatconducting of written test and viva-voce by the High Court isabsolutely as per the constitutional provisions and based on thesettled legal principles. (s) What was held by the Full Bench of the Apex Court in AshokKumar Yadav and others vs. State of Haryana and others (1985 (4) SCC417), relied upon by Mr.P.N.Prakash, learned counsel was that the viva-voce plays a predominant role in the selection process. While dealingwith the concept of bias, it was held that a Member in the Committeeshould not take part in interviewing their relations but such Memberneed not withdraw from the entire process of interview and selection. That was a case of allegation of nepotism against the Chairman and Members of the Public Service Commission and in that context, the Hon’ble Apex Court has held that, while viva-voce is holding apredominant role in the selection process, any proved bias willcertainly vitiate the selection, and that is not the situation in thepresent case.

(t) While narrating the recommendations of the Hon’ble JusticeShetty Commission, as to how viva-voce test should be a thorough https://hcservices.ecourts.gov.in/hcservices/ process, the Supreme Court in Hemani Malhotra vs. High Court of Delhi(2008 AIR SCW 3205) dealt with a case, where minimum marks wereprescribed for viva-voce after written examination was conducted, andheld that if, before taking of the written examination, such minimummarks were not prescribed for viva-voce, such prescription subsequentto the written examination would amount to additional requirement, which is not permissible. (u) The petitioner in W.P.No.1403 of 2011, Sadiq Basha,M. whostood at Serial No.11, in the list of candidates short listed for viva-voce, has secured 53 marks out of 75 in the written examination, whilethe person selected under the Backward Class Muslim category A.K.A.Rahmaan arrayed as 17th respondent in the said petition, and stood at Serial No.68 in the short listed candidates for viva-voce has secured40.333 marks in the written examination and the said Rahmaan, for hisperformance, was granted 19 marks in the viva-voce, while thepetitioner was granted 4 marks.

As it is unanimously decided by the Hon’ble Judges, there is no reason to come to a conclusion that thesubjective satisfaction of the Committee of Judges in awarding marks inthe viva-voce is either unreasonable or unjust. (v) In respect of the writ petitioner in W.P.No.1480 of 2011,S.Karthikeyan, who belongs to Backward Class Non-Muslim community andsecured 50.500 marks in the written examination he was able to secureonly 6 marks in the unanimous opinion of the Committee of Judges in theviva-voce and if both the marks were put together, he was able to getonly 56.500 marks, which was not sufficient to bring him within thezone of consideration for the selection of 17 posts of District Judges(Entry Level). (w) In W.P.No.3087 of 2011, the petitioner secured 43.5 marks inthe written examination and 6 marks in viva-voce. In W.P.(MD).No.1691of 2011, the petitioner secured 45.75 marks in the written examinationand 6 marks in viva-voce.

In W.P.(MD) No.1135 of 2011, the petitionersecured 48.500 marks in the written examination and 7 marks in viva-voce. (x) On verification of the Master Mark Sheet produced by thelearned Senior Counsel appearing for the Registrar General of the HighCourt with respect to 103 candidates, it is found that the Judges ofthe Committee have unanimously given the viva-voce marks ranging from 3marks to 20 marks based on the performance of each candidate. None ofthe petitioners nor their learned counsel raised allegation of malafide or bias. In the absence of any specific allegation of bias ormala fide, we have no reason to disbelieve the genuineness of the said https://hcservices.ecourts.gov.in/hcservices/ selection process. As we have stated earlier, in the absence ofspecific provision in the Rules, mandating publication of the marksobtained by the candidates in the viva-voce examination, there is nolegal obligation to release the same.

In any event, by exercising thepower of judicial review and on production of the records by thelearned senior counsel appearing for the High Court and on verificationof the same as stated above, we have no hesitation to hold that theselection process in this regard cannot be said to be either doubtfulor unacceptable. Therefore, the non-disclosure of the marks of thecandidates in the viva-voce, does not vitiate the selection process. We answer the said issue accordingly.III. Regarding Short-listing of candidates: (a) This point has been raised only by Mr.P.N.Prakash, learnedcounsel appearing for the petitioner in W.P.No.1480 of 2011. Eventhough the point was raised in the earlier case, reported in V.YamunaDevi vs. The Registrar General, High Court Madras (2011 (1) CTC 469),he wanted to distinguish by saying that he is questioning the validityof short-list on the basis that the yardstick applied is not correct.

At the outset, it has to be held that the petitioner was aware of theshort-listing of the candidates who had appeared in the writtenexamination, since more than 2400 candidates appeared and therefore, short-listing is a necessary concomitant and even otherwise, when theearlier batch of writ petitions were filed on the said ground of short-listing, it cannot be said that the petitioner had no knowledge aboutthat. Therefore, on this ground the said point is to be squarelyrejected. (b) The short-listing, whether it is in the ratio of 1:3 or1:6 etc., is immaterial, especially in the absence of any specificprovision in the Rules under the Tamil Nadu State Judicial Service(Cadre and Recruitment) Rules,2007. When there is no method prescribedspecifically for short-listing, it cannot be said that short-listing inany manner is illegal. It is not only a matter of convenience, but amatter of necessity, especially when large number of candidatesparticipated in the written examination and all of them cannot beexpected to be called for viva-voce examination.

The short-listing canbe at any acceptable ratio, as has been held by a Division Bench ofthis Court in M.Palaniswamy vs. Tamil Nadu Public Service Commission byits Secretary, Government Estate, Anna Salai, Chennai 2 (1997 (3) CTC698), wherein Shivaraj Patil,J. (as His Lordship then was) explainedthe issue as follows: " 14. The rule is silent as to in what ratio candidatesshall be called for viva-voce examination in case selectionis to be made on the basis of written examination/and viva-voce examination, although the same rule expressly provided https://hcservices.ecourts.gov.in/hcservices/ the ratio as 1:6 whenever direct recruitment is resorted toonly on the basis of viva-voce examination. From this, twothings follow, viz., (i) the Rule making authority wasconscious of fixing the ratio, and still advisedly nospecific ratio was fixed in respect of direct recruitment itwas to be made on the basis of written examination as well asviva-voce examination; and (ii) if the Rules are silent or inother words the field is not occupied, it is open to thecompetent authorities to issue executive instructions ororders so as to provide the ratio in which the candidates areto be called for viva-voce examination.15.

Since the petitioner did not qualify himself to becalled for viva-voce examination as he failed in two subjectsas stated above, it would not matter in his case whether theratio was fixed at 1:3 or 1:6. On this short point the writpetition can be dismissed. But we are taking pains to dealwith it in detail as the learned counsel appearing for thepetitioner took pains to argue it at length and submittedthat we may state the position of law, and therefore we areconsidering the submissions in detail.16. The argument of the learned counsel for thepetitioner/that the action of respondent is illegal andarbitrary, in fixing the ratio as 1:3 to call for thecandidates for viva-voce examination on the ground that it iscontrary to the Rules, and that such Government Orders orinstructions could not be sustained; at any rate, respondentwas not competent to fix the ratio as 1:3. We do not findthat the action of the respondent in calling the candidatesfor viva-voce examination in the ratio of 1:3 is contrary tothe rules, inasmuch as Rule 5(4) extracted above has notprescribed any ratio when the recruitment is to be made onthe basis of written and viva-voce examination.

On the otherhand the said rule is silent on that aspect. Hence it wasopen to the authorities to follow some rational basis toshort-list the candidates.17. Short-listing of candidates, in the absence of anyrules to the contrary, is held to be not arbitrary. ADivision Bench of this Court, to which one of us (ShivarajPatil,J.) was a member, had an occasion to deal with thisvery question precisely in W.P.No.13529 of 1997. In the orderdated 3.9.1997, made in the said writ petition, in paragraphs2 and 3, it is stated thus:-" 2. The learned counsel for the petitionercontended that although the petitioner has passedthe written test conducted so as to qualify toappear for viva-voce examination for theappointment to the post of Civil Judge (Junior https://hcservices.ecourts.gov.in/hcservices/ Division) Judicial Magistrate I Class, he was notcalled for interview by the 1st respondent. In thenotification issued calling for the applications orin the Rules, no provision is made to sendinterview cards only in the ratio of 1:3; in theabsence of such Rule or provision made, all thosecandidates including the petitioner, who had passedthe written test, ought to have been called forinterview; failure to do so has seriouslyprejudiced the case of the petitioner.

Under thecircumstances, the learned counsel prays that the Writ Petition be admitted for consideration.3. The learned Additional Government Pleader, who is present in Court, took notice forrespondents 1 and 2 and he submitted that shortlisting of the candidates called for the interviewis permissible. He relied on the decisions of the Supreme Court in the case of Madhya Pradesh PublicService Commission vs. Navint Kumar Potdar andanother AIR 1995 SC 77 and in the case of Union of India and another vs. T.Sundararaman and othersJ.T.1997 (5) S.C. 48. He added that nearly 2774candidates appeared for the written examination, out of them 1956 candidates passed, and the PublicService Commission in order to short list and toselect the best of the candidates, issued interviewcards in the ratio of 1:3, i.e., totally to 296candidates. The short listing by the respondentNo.1 cannot be said to be either arbitrary orunreasonable as it has been done on the basis ofthe marks secured in the written examination.

Hefurther submitted that in the light of the decisionof the Supreme Court aforementioned, the petitionercannot make any grievance. "(c) Therefore, short-listing in any manner, especially on thefacts of the present case cannot be held to be arbitrary. In anyevent, the same point of short-listing was considered by us in V.YamunaDevi vs. The Registrar General, High Court Madras 2011(1) CTC 469, ofcourse, in the context of the argument advanced therein about thelength of practice at Bar to be considered for short-listing and upheldthe process of short-listing effected by the High Court on the basis ofmarks in the written examination. On the specific finding on the saidissue having been given by this Court, we see no reason to take adifferent view in the matter of selection process on the ground ofshort-listing. The said issue is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ IV. The term, “High Court” in relation to the appointment of District Judges: (a) Much has been said about the term “Full Court” by thelearned counsel during the course of their arguments.

The term “HighCourt” in its constituent no doubt consists of the Chief Justice andother Judges, as the President may appoint from time to time asenshrined under Article 216 of the Constitution of India. Theconsultation process, which the Governor of the State is expected tohave with the High Court regarding the appointment of persons orpromotion of persons as District Judges, is under Article 233 asextracted above. There is no controversy that “High Court” means the“Full Court”, even in the context of Article 233 of the Constitution of India. (b) Article 225 of the Constitution which is extracted below," Article 225. Jurisdiction of existing High Courts.-Subjects to the provisions of this Constitution and tothe provisions of any law of the appropriate Legislature madeby virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administeredin, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justicein the Court, including any power to make rules of Court andto regulate the sittings of the Court and of members thereofsitting alone or in Division Courts, shall be the same asimmediately before the commencement of this Constitution:[Provided that any restriction to which the exercise oforiginal jurisdiction by any of the High Courts with respectto any matter concerning the revenue or concerning any actordered or done in the collection thereof was subjectimmediately before the commencement of this Constitutionshall no longer apply to the exercise of such jurisdiction.]"explains about the jurisdiction of the High Courts does not only enablethe Rule making power to the High Court in respect of its functioning, it includes the power to pass resolution in its “Full Court” as aguiding factor.

The authority of such “Full Court” resolution of the“High Court” has been reiterated by the Apex Court in Manmatha NathGhosh v. Baidyanath Mukherjee [(2005) 13 SCC 630], wherein when anissue was raised challenging the “Full Court” resolution of the HighCourt of Calcutta on the ground that the “Full Court” has gone beyondthe scope of the Special Committee constituted, the authority of the“Full Court” resolution has been confirmed by the Supreme Court, in thefollowing words: https://hcservices.ecourts.gov.in/hcservices/ " 18. We are of the view that the challenge to the FullCourt resolution dated 22-8-1973 must fail for more than onereason. The learned counsel contended that the Full Courtresolution had gone much beyond the recommendations made bythe Special Committee on 26-4-1973. The contention has nomerit. The Special Committee was constituted to investigatethe matters and express its views.

Merely because the SpecialCommittee expressed its views, the Full Court of the HighCourt was not obliged to accept its recommendations as made. It was perfectly within the competence of the Full Court ofthe High Court to reject, accept or accept with modificationthe recommendations made by the Special Committee. Theresolution of the Full Court dated 22-8-1973 specifically goeson record to say that the Recording Officers (Court) and Interpreting Officers (Court) shall not be treated on a parwith the Assistant Registrars (Court) on the appellate sideand they be not equated with the Assistant Registrars on theoriginal side and Assistant Registrars (Court) on theappellate side or the Assistant Court Officers on theappellate side in matters of salary, scales of pay, emolumentsand funds. This was a decision arrived at by the High Court onthe basis of its intimate knowledge of the job contents ofthese officers.

Merely because designations are changed, theresponsibility invested in the incumbent or the caliber of theincumbent to discharge certain duties does not change. We havenot been able to appreciate any substantial ground on whichthe resolution concerned of the Full Court of the High Courtcould be impugned. In the face of this Full Court’sresolution, it is not open to the appellants to contend thatthe two categories of the employees concerned of the HighCourt must necessarily be treated as identical for allpurposes including the question of special pay.19. Secondly, the Full Court resolution was passed in theyear 1973. It is not as if the employees concerned were notaware of the Full Court’s resolution or that they did not knowthe benefits or disadvantages flowing therefrom. In fact, thechange of designation of Shorthand Writers on the originalside to “Recording Officers (Court)” and the change ofdesignation of Interpreters to “Interpreting Officers (Court)” came about only because of this Full Court resolution.

Achallenge to this resolution of 1973 in the year 1984 shouldfail on that very ground. "(c) In respect of the power of the “Full Court” to authorize the Chief Justice regarding any matter including the one governed under Article 235, which relates to the control over subordinate courts andalso the matter governed under Article 229, which relates to the https://hcservices.ecourts.gov.in/hcservices/ control of the Officers and servants of the High Court, it was heldthat in respect of control over the Subordinate Courts, the power vestswith the High Court as a whole and in respect of the High Court itvests with the Chief Justice, as found in High Court of Judicature for Rajasthan vs. P.P.Singh (2003 (4) SCC 239) and the relevant portion ofthe judgment of the Supreme Court is as under: “ 19. It is also true that the powers of the Chief Justiceunder Articles 235 and 229 of the Constitution of India aredifferent and distinct.

Whereas control over the subordinatecourts vests in the High Court as a whole, the control overthe High Court vests in the Chief Justices only. (See AllIndia Judges’ Assn. v. Union of India (1992) 1 SCC 119)However, the same does not mean that a Full Court cannotauthorize the Chief Justice in respect of any matterwhatsoever. In relation to certain matters keeping the restof it in itself by the Full Court, authorization to act onits behalf in favour of the Chief Justice on a Committee of Judges is permissible in law. How far and to what extent suchpower has been or can be delegated would be discernible onlyfrom the Rules. Such a power by the Full Court can also beexercised from time to time. (d) It was further held that, when once a resolution has beenpassed by the Full Court authorizing the Chief Justice to constitute aCommittee, the exercise of such power by the Chief Justice isabsolutely valid and it does not require the Chief Justice to appointa Committee of Judges only with the further approval of the “FullCourt” In that regard, the Supreme Court has held as follows: “ 21.

Once such a resolution authorizing the Chief Justiceto constitute a committee has been passed, having regard tothe decision of this Court in High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil (1997) 6 SCC 339 therecannot be doubt whatsoever that the exercise of power by the Chief Justice in that behalf was absolutely valid. It is, therefore, not correct to contend that the Chief Justicecould appoint the two-Judge Committee only with the approvalof the Full Court.”(e) Of course, that was in the context of availability of the Rules of the High Court of Judicature of Rajasthan,1952. By virtue ofsuch power conferred by “Full Court”, any Committee of Judgesconstituted by the Chief Justice and its decision are deemed to be thedecision of the High Court. The Supreme Court in categorical term has https://hcservices.ecourts.gov.in/hcservices/ held as follows: “ 23. The High Court, in our opinion, therefore, clearlyerred in arriving at the aforementioned finding that theconstitution of the Committee was illegal.24.

The submission on behalf of the respondents to theeffect that in the matter relating to fixation of criteriafor the purpose of appointment to the selection grade, thetwo-Judge Committee could not be made without consulting allthe Judges is stated to be rejected. The said submission isbased on a total misconception. Laying down the meritcriteria for appointment to the selection grade also waswithin the domain of the High Court. It could not only laydown such criteria but also amend or modify the same fromtime to time. For the said purpose also the Chief Justicecould appoint a committee, the recommendation whereof was tobe subject to the approval of the Full Court. Rule 15 of the Rules does not say that before an action can be initiated inthat behalf by the Chief Justice all the Judges are to beconsulted. Rule 15 of the Rules postulates a final decisionin the matter specified therein and not initiation of aprocess therefor.25.

It is also incorrect to contend that all the Judgesof the High Court are required to be consulted at a time.”(f) By relying upon an earlier judgment in State of Uttar Pradeshvs. Batuk Deo Pati Tripathi and another (1978 (2) SCC 102) quoating aparagraph with approval, the Supreme Court in High Court of Judicaturefor Rajasthan vs. P.P.Singh and another (2003 (4) SCC 239) citedsupra, has crystalised the proposition that a decision taken by thesaid Committee of Judges is deemed to be the decision of the HighCourt since it is not possible for every Judge to participatepersonally in every decision in the following words: “35. An almost identical question came up for considerationwhether the High Court can delegate its power to a Judge or asmall Committee of the Judges of the Court so as to authorizeit to act on this behalf in State of U.P. v. Batuk Deo PatiTripathi (1978) 2 SCC 102. In no uncertain terms it was held: (SCC pp.113-14, para 16)"The control vested in the High Court by thatarticle comprehends, according to our decisions, alarge variety of matters like transfers, subsequentpostings, leave, promotions other than initialpromotions, imposition of minor penalties which donot fall within Article 311, decisions regarding https://hcservices.ecourts.gov.in/hcservices/ compulsory retirements, recommendations forimposition of major penalties which fall withinArticle 311, entries in character rolls and soforth.

If every Judge is to be associatedpersonally and directly with the decision on everyone of these matters, several important matterspertaining to the High Court’s administrativeaffairs will pile into arrears like court arrears. In fact, it is no exaggeration to say that thecontrol will be better and more effectivelyexercised if a smaller committee of Judges has theauthority of the court to consider the manifoldmatters falling within the purview of Article 235. Bearing in mind therefore the nature of the powerwhich that article confers on the High Court, weare of the opinion that it is wrong to characterizeas ‘delegation’ the process whereby the entire HighCourt authorizes a Judge or some of the Judges ofthe Court to act on behalf of the whole Court. Suchan authorization effectuates the purpose of Article235 and indeed without it the control vested in the High Courts over the subordinate courts will tendgradually to become lax and ineffective.

Administrative functions are only a part, though animportant part, of the High Court’s constitutionalfunctions. Judicial functions ought to occupy anddo in fact consume the best part of a Judge’s time. For balancing these twofold functions it isinevitable that the administrative duties should beleft to be discharged by some on behalf of all the Judges. Judicial functions brook no such sharing ofresponsibilities by any instrumentality.”(g) Therefore, it is clear that when once the High Court as “FullCourt” by resolution authorizes the Chief Justice, the decision takenby the Chief Justice or the Committee constituted by the Chief Justiceis deemed to be the decision of the High Court as a whole and it cannever be said that a smaller Committee constituted by the Chief Justiceis acting as a delegate of the “Full Court”. Therefore, the contentionof Mr.V.Raghavachari, learned counsel appearing for one of thepetitioners that the Committee constituted by the Chief Justice cannotbe deemed to be the “Full Court” unless the “Full Court” confirms thedecision of the Committee of Judges, is not tenable.

(h) The Division Bench of this Court in T.S.Sankaranarayanan vs. The High Court of Judicature at Madras rep. by the Registrar, HighCourt, Madras (1994 (2) MLJ 168) has rendered a factual finding, in the https://hcservices.ecourts.gov.in/hcservices/ light of Article 235 of the Constitution of India, in the followingwords: ".....But on facts we find that by resolution dated20.4.1972, at a meeting of the Hon'ble Judges, theconstitution of different committees was left tothe discretion of the Chief Justice. ...."(i) When such wider power has been given, which has not beenexpressly superseded, there is no reason to hold that after the TamilNadu State Judicial Service (Cadre and Recruitment) Rules,2007 has comeinto existence, when the High Court exercises its power in selectingDistrict Judges under Article 233 of the Constitution of India, a freshFull Court authorization should be obtained by the Chief Justice toconstitute a Committee.

The High Court as an institution created underthe Constitution which is a prominent body, guided by the resolutionsof the “Full Court”, in the absence of any Rules framed by it undervarious provisions of the Constitution of India, until such resolutionsare expressly superseded, whatever may be the subsequent circumstance. (j) The reliance placed on by the learned counsel in Chandra Mohanvs. State of U.P. (AIR 1966 SC 1987) is, in our view, misconceived. That was a case dealt with by Larger Bench (Five Judges) of the Hon’bleSupreme Court, of course relating to the appointment of District Judgesunder Article 233 of the Constitution of India. In that case, U.P.Higher Judicial Service Rules constituted a selection Committeeconsisting of Two Judges of the High Court and the Judicial Secretaryto Government under Rule 13(c), which is as follows: " Rule 13. Recruitment by promotion.- The followingprocedure for selection by promotion under Rule 5(i) shall be observed: (c) The selection shall be made by a Committeeconsisting of two Judges of the High Court and the Judicial Secretary to Government.

"The said Rule was framed by the Governor under Article 309 of the Constitution of India and that was distinguished by the Supreme Courtto the effect that the Committee constituted is illegal, in thefollowing words: " 11. The position in the case of District Judges recruiteddirectly from the Bar is worse. Under Article 233(2) of the Constitution, the Governor can only appoint advocatesrecommended by the High Court to the said service. But under https://hcservices.ecourts.gov.in/hcservices/ the Rules, the High Court can either endorse therecommendations of the Committee or create a deadlock. Therelevant Rules, therefore, clearly contravene theconstitutional mandates of Article 233(1) and (2) of the Constitution and are, therefore, illegal. "(k) The Supreme Court also held that the selection of DistrictJudges was invalid. As held by the Supreme Court, it is true thatwhile exercising the power conferred by the Full Court, the ChiefJustice of the High Court can constitute a Committee in respect ofappointment of District Judges under Article 233 or 235 for effectivecontrol over Subordinate Courts, only from the Judges of the High Courtand not an outsider, who cannot be a member of the constitutedCommittee of High Court as per the constitutional mandate.

(l) Again, the judgment of the Supreme Court in Premnath vs. Stateof Rajasthan (AIR 1967 SC 1599), wherein the Supreme Court dealt withthe Rajasthan Higher Judicial Service Rules,1955 in the context of Article 233 of the Constitution of India. The said Rajasthan HigherJudicial Service Rules, 1955 was promulgated by the Governor inaccordance with the powers conferred under the proviso to Article 309of the Constitution of India, based on which the applications werecalled for appointment of Additional Sessions Judges and theappointment came to be challenged. It is no doubt true that the Selection Committee consisted of Three Judges of the High Court, but onfact, the High Court had nothing to do with the scrutiny ofapplications and the only function of the High Court was to transmitthe list prepared by the Committee to the Governor, without any powerof addition or deletion. It was the said fact, which was elicited inthe said judgment, and the relevant portion is as follows: “ 5. .... The High Court has nothing to do with thescrutiny of applications.

It is again the Selection Committeewhich interview the candidates considered eligible forappointment and not the High Court. It is also the SelectionCommittee which prepares the lists of eligible candidateselected by them. The only function entrusted to the HighCourt under the Rules is, therefore, to transmit the twolists prepared by the Committee under Rules 13 and 22. Asaforesaid, there is no provision in the Rules empowering the High Court before submitting the lists to the Governor tovary those lists even if the High Court were to disagree withthe selections made by the Committee. Obviously, the Committee is not the High Court. The High Court thus is onlya transmitting authority. The consultation as provided in Article 233 is consultation with the High Court and not with https://hcservices.ecourts.gov.in/hcservices/ any other authority such as the Selection Committee appointedunder the Rules.

The Rules, therefore, are clearlyinconsistent with the mandate provided for in Article 33 andare, therefore, invalid. Consequently, the selections made bythe Committee, the lists prepared by them and appointmentsmade thereunder would be invalid.” Therefore, it was held that the consultation provided under Article 233is a consultation with the High Court and not an authority like aSelection Committee constituted under the Rules framed as per Provisoto Article 309 of the Constitution of India. It was in that context, the selection was held invalid. (m) In State of U.P. vs. Batuk Deo Pati Tripathi and another(1978 (2) SCC 102), particularly relied upon by Mr.V.Raghavachari, learned counsel for one of the petitioners, the Supreme Court in nouncertain terms has held that the Committee of Judges authorized by the High Court cannot be said to be the delegate of the High Court and eachJudge of the High Court is an integral limb of the High Court, in thefollowing words: " 17.

The High Court has not by its Rule authorised anyextraneous authority, as in Shamsher Singh, to do what the Constitution enables and empowers it to do. TheAdministrative Judge or the Administrative Committee is amere instrumentality through which the entire Court acts forthe more convenient transaction of its business, the assumedbasis of the arrangement being that such instrumentalitieswill only act in furtherance of the broad policies evolvedfrom time to time by the High Court as a whole. Each Judge ofthe High Court is an integral limb of the Court. He is itsalter ego. It is therefore inappropriate to say that a Judgeor a Committee of Judges of the High Court authorised by the Court to act on its behalf is a delegate of the Court"(n) While construing the control over the Subordinate Courts bythe High Court under Article 235 of the Constitution of India, theimportance of the Full Court decision authorizing the Chief Justice toconstitute various Committees was approved by the Supreme Court in HighCourt of Judicature at Bombay v.

Shirishkumar Rangrao Patil ( 1997 (6)SCC 339) in the following words: " 10. It would thus be settled law that the control of thesubordinate judiciary under Article 235 is vested in the HighCourt. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep https://hcservices.ecourts.gov.in/hcservices/ control over them vests in the High Court. The Chief Justiceof the High Court is first among the Judges of the HighCourt. The action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction ofadministrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolutionauthorising the Chief Justice to constitute variouscommittees including the committee to deal with disciplinarymatters pertaining to the subordinate judiciary or theministerial staff working therein.

Article 235, therefore, relates to the power of taking a decision by the High Courtagainst a member of the subordinate judiciary. Such adecision either to hold an enquiry into the conduct of ajudicial officer, subordinate or higher judiciary, or to havethe enquiry conducted through a District or AdditionalDistrict Judge etc. and to consider the report of the enquiryofficer for taking further action is of the High Court. Equally, the decision to consider the report of the enquiryofficer and to take follow-up action and to make appropriaterecommendation to the Disciplinary Committee or to the Governor, is entirely of the High Court which acts throughthe Committee of the Judges authorised by the Full Court. Once a resolution is passed by the Full Court of the HighCourt, there is no further necessity to refer the matteragain to the Full Court while taking such procedural stepsrelating to control of the subordinate judiciary.

"Therefore, in the context of the above said legal position, we are ofthe view that inasmuch as there is already in existence a Full Courtdecision/resolution of the High Court of Madras authorizing the ChiefJustice to constitute a Committee, especially when the senior mostJudges, including the Hon’ble the Chief Justice, have acted as the Selection Committee in conducting viva-voce test, it has to beconstrued that the decision of the Selection Committee is the decisionof High Court as a whole and there is no infirmity in such decision andin our view, it is also not necessary that every time the Full Court’sapproval has to be obtained in respect of each and every action of the Chief Justice or the Committee constituted by the Chief Justice. Therefore, it cannot be said that non-placing of the selection listbefore the Full Court is fatal to the selection. (o) Now, coming to the last limb of the arguments about theprocess of consultation by the Governor under Article 233 of the Constitution of India, either it is in respect of appointment of District Judges under Article 233 or control over the SubordinateCourts under Article 235, it is well settled that the High Court is the https://hcservices.ecourts.gov.in/hcservices/ best person to have the first hand knowledge about the requirement ofthe District Judges to be appointed and extend of supervisory controlover the Judges working in the Subordinate Courts.

It is also equallywell settled that the Governor as per Article 233 of the Constitutionof India as the Chief Executive Officer of the State has a right ofconsultation with the High Court relating to the appointment of the District Judges. This is the constitutional privilege and power givento the Governor of the State. (p) On the factual matrix, it is not the case of any one of thepetitioners that either the Governor or the State has raised anyobjection regarding the consultation process. It is not as if theconsultation process initiated by the Governor of the State has notbeen heeded to by the High Court. On the other hand, in the counteraffidavit filed by the Government, adopting the counter affidavit ofthe Registrar General of the High Court, it is made explicitly clearthat the Governor of the State or the State has no objection regardingthe selection made in respect of the 17 District Judges.

The veryconduct of the Government in issuing the impugned Government Order onthe recommendations sent by the High Court in appointing the saidDistrict Judges shows that there is no defect in the consultationprocess. (q) The process of consultation is certainly the prerogative ofthe Governor of the State as held by the Supreme Court in Chandramouleshwar Prasad vs. The Patna High Court and Others (1969 (3)SCC 56) in paragraph 7, which is as follows: " 7. The question arises whether the action of the Government in issuing the notification of October 17, 1968was in compliance with Article 233 of the Constitution. Nodoubt the appointment of a person to be a District Judgerests with the Governor but he cannot make the appointment onhis own initiative and must do so in consultation with the High Court. The underlying idea of the article is that the Governor should make up his mind after there has been adeliberation with the High Court.

The High Court is the bodywhich is intimately familiar with the efficiency and qualityof officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits. This does not mean that the Governor must accept whateveradvice is given by the High Court but the Article doesrequire that the Governor should obtain from the High Courtits views on the merits or demerits of persons among whom thechoice of promotion is to be limited. If the High Courtrecommends A while the Governor is of opinion that B’s claim https://hcservices.ecourts.gov.in/hcservices/ is superior to A’s it is incumbent on the Governor to consultthe High Court with regard to its proposal to appoint B andnot A. If the Governor is to appoint B without getting theviews of the High Court about B’s claims vis-a-vis A’s topromotion, B’s appointment cannot be said to be in compliancewith Article 233 of the Constitution.

The correspondencenoted above which passed between the High Court and the Secretariat from 28th September, 1968 to 7th October, 1968shows that whereas the High Court had definitely taken theview that Misra as the senior Additional District and Sessions Judge should be directed to take charge from Chakravarty, the Government was not of the view thataccording to the records in its appointment department Misrawas the senior officer at Shahabad among the AdditionalDistrict and Sessions Judges. Government never suggested tothe High Court that the petitioner was senior to Misra orthat the petitioner had a better claim than Misra’s and assuch was the person fit to be appointed temporarily as District and Sessions Judge. Before the notification of October 17, 1968 Government never attempted to ascertain theviews of the High Court with regard to the petitioner’s claimto the temporary appointment or gave the High Court anyindication of its own views with regard thereto exceptingrecording dissent about Misra’s being the senior officer inthe cadre of Additional District and Sessions Judges at Arrah.

Consultation with the High Court under Article 233 isnot an empty formality. So far as promotion of officers tothe cadre of District Judges is concerned the High Court isbest fitted to adjudge the claims and merits of persons to beconsidered for promotion. The Governor cannot discharge hisfunction under Article 233 if he makes an appointment of aperson without ascertaining the High Court’s views in regardthereto. It was strenuously contended on behalf of the Stateof Bihar that the materials before the Court amplydemonstrate that there had been consultation with the HighCourt before the issue of the notification of October 17,1968. It was said that the High Court had given the Government its views in the matter; the Government was postedwith all the facts and there was consultation sufficient forthe purpose of Article 233. We cannot accept this. Consultation or deliberation is not complete or effectivebefore the parties thereto make their respective points ofview known to the other or others and discuss and examine therelative merits of their views.

If one party makes a proposalto the other who has a counter proposal in his mind which isnot communicated to the proposer the direction to give effectto the counter proposal without anything more, cannot be saidto have been issued after consultation. In our opinion, thenotification of October 17, 1968 was not in compliance with https://hcservices.ecourts.gov.in/hcservices/ Article 233 of the Constitution. In the absence ofconsultation the validity of the notification of October 17,1968 cannot be sustained. "(r) The High Court is the body, which has the power to see theeligibility and suitability of the candidates fit for promotion, whilethe Governor of State has the right of consultation. It is the Governor of the State, who has the privilege of raising objection andgetting doubts relating to some of the persons clarified as explainedin paragraph 7 of the judgment cited supra, and that power, in thebackground of the history of the Constitutional provision, has againbeen traced by the Supreme Court in M.M.Gupta and others Vs.

State of Jammu and Kashmir and others (1982 (3) SCC 412) in paragraph 17, asfollows: " 17. In the case of State of W.B. v. Nripendra Nath BagchiAIR 1966 SC 447, this Court while considering Articles 233 and235 of the Constitution elaborately traced the background andthe history of the constitutional provisions relating to thejudiciary and this Court held at SCR p. 786:"Articles 233 and 235 make a mention of twodistinct powers. The first is power of appointmentsof persons, their postings and promotion and theother is power of control. In the case of the District Judges, appointments of persons to be andposting and promotion are to be made by the Governor but the control over the District Judge isof the High Court....” The view that on proper construction of Articles 233 and 235the appropriate authority to take the appointment of DistrictJudges is the Governor and not the High Court has also beenreiterated by this Court in later decisions of this Court.

Ina recent decision of this Court in the case of Chief Justiceof A.P. v.L.V.A. Dixitulu (1979) 2 SCC 34 a five-Judge Benchof this Court held at SCC p. 46 (para 36): SCC (L&S) p. 110:"Article 233 gives the High Court an effectivevoice in the appointment of District Judges. Clause(1) of the Article peremptorily requires that‘appointments of persons to be, and the posting andpromotion of, District Judges’ shall be made by the Governor ‘in consultation with the High Court’. https://hcservices.ecourts.gov.in/hcservices/ Clause (2) of the Article provides for directappointment of District Judges from advocates orpleaders of not less than seven years’ standing, who are not already in the service of the State orof the Union. In the matter of such directappointments, also, the Governor can act only onthe recommendation of the High Court. Consultationwith the High Court under Article 233 is not anempty formality.

An appointment made in direct orindirect disobedience of this constitutionalmandate, would be invalid…. ‘Service’ which underclause (1) of Article 233 is the first source ofrecruitment of District Judges by promotion, meansthe ‘judicial services’ as defined in Article 236.” In another recent decision of this Court in the case of HariDatt Kainthla v. State of H.P. (1980) 3 SCC 189 this Courtreferred to earlier decision of this Court and observed at SCRp. 372: [SCC p. 195, para 12: SCC (L&S) p. 341]"Article 233 confers power on the Governor of the State to appoint persons either by directrecruitment or by promotion from amongst those inthe judicial service as District Judges....” We have to note that on a proper interpretation of Articles233 and 235 of the Constitution this Court has consistentlyheld that the appointing authority is the Governor and thisview has held the field for over two decades.

In our opinionthis is the correct view on proper interpretation of the saidarticles and requires no reconsideration. The argument of MrVenugopal that this interpretation will lead to thesubservience of the judiciary and the independence of thejudiciary will be undermined is not convincing, as the powerto make the appointment conferred on the Governor has to beexercised by him in consultation with the High Court. Thisprovision regarding exercise of power by the Governor inconsultation with the High Court is incorporated to safeguardthe independence of the judiciary. We have earlier pointed outthat Article 109 and Article 111 of the Constitution of Jammu& Kashmir correspond to Articles 233 and 235 of the Constitution of India. In view of the interpretation of Articles 233 and 235 of the Constitution of India consistentlygiven by this Court, and with which we are in entireagreement, we hold that on a proper interpretation of Articles109 and 111 of the Constitution of Jammu & Kashmir, the https://hcservices.ecourts.gov.in/hcservices/ Governor is the authority competent to appoint the DistrictJudges and the power of appointment of District Judges is notvested in the High Court.

The first contention of Mr Venugopalcannot, therefore, be accepted and is negatived. " (s) In the absence of any materials to show that the Governor ofthe State has been deprived of the power of consultation with the HighCourt, it is not possible to construe that there is any constitutionalviolation in the selection and appointment of the 17 District Judges. This issue is answered accordingly.23. It is also relevant to point out at this stage as submitted bythe learned Special Government Pleader that the objections were sent bythe petitioners nearly after 45 days from the date of selection, viz.,on 31.12.2010, which was received by the Office of the Governor on01.01.2011, forwarded by the Governor to the Government on 06.01..2011,however, in the meantime, the impugned Government Order was passed on05.01.2011 and therefore, the hue and cry made by some of thepetitioners that the representation made to the Governor has not beenconsidered has factually no meaning.

24. In such view of the matter, looking into any angle, we are ofthe firm view that the contentions raised by the petitioners and theirrespective counsel are not tenable and the writ petitions fail and thesame are dismissed. However, we make it clear that inasmuch asproviding appointment to physically challenged person is aconstitutional mandate and all directive principles are in tune withthe fundamental rights, in the event of any vacancy arising out of 17appointments, or otherwise in the immediate next vacancy of the District Judges (Entry Level), the same shall be filled up by a personwith disability by fulfilling the constitutional mandate, of course, subject to the availability of the candidates and the suitabilitytherefor. No costs. Connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrarkh https://hcservices.ecourts.gov.in/hcservices/ To1. The Chief Secretary to the Government, Government of Tamil Nadu, Secretariat, Chennai.

2. The Registrar General High Court, Madras. 3. The Secretary to Government Government of Tamil Nadu Public (Special-A) Department Fort St.George, Chennai 600 009.4.The Principal Secretary to Government Social Welfare and Noon Meal Project (SW4) Department Government of Tamil Nadu Secretariat, Chennai 600 009.5.The District Disabled Rehabilitation Officer Sivagangai District.+1cc to M/s. P.N.Prakash, Advocate Sr 17549+2ccs to Mr.S.Ramesh Kumar, Advocate Sr 17572+2cc to M/s. H.Arumugam, Advocate Sr 17970 & 17971+2ccs to M/s. N.Manokaran, Advocate SR 17890 & 17891+1cc to m/s. V.Raghavachari, Advocate Sr 17886+1cc to M/s. B.Soundarapandian, Advocate Sr 17689+2ccs to Govt. Pleader Sr 17784 17785+1cc to M/s.S.Vadivel Murugan, Advocate Sr 17740KSK(CO)km/15.3.W.P.Nos.3087, 1403 & 1480 of 2011 and W.P.(MD)Nos. 1135 & 1691 of 2011