State of U . P ., Etc. Vs. Rafiquddin & Ors [1987] INSC 315 (4 November 1987)

SINGH, K.N. (J) SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION: 1988 AIR 162 1988 SCR (1) 794 1987 SCC Supl. 401 JT 1987 (4) 251 1987 SCALE (2)947

CITATOR INFO : R 1988 SC1451 (9) R 1991 SC 295 (14)

ACT:

Service matters-Questions of law relating to seniority of Munsifs in the Uttar Pradesh Nyayik Seva appointed as a result of the competitive Examinations of 1970, 1972 and 1973, held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951-Determination of.

HEADNOTE:

% These appeals and writ petitions raised common questions of law relating to the determination of seniority of Munsif appointed in the Uttar Pradesh Nyayik Seva as a result of competitive Examinations of 1970, 1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 (the Rules).

Public Service Commission issued a notification dated September 3, 1970, for recruitment to 85 posts of Munsifs.

In the examination held for the purpose, 294 out of 918 candidates qualified in the written test and were called for viva voce test, and the Commission submitted to the State Government a list of 46 approved candidates-list of 1970 examination-for appointment to the service. The Government requested the Commission to recommend some more candidates as there was a shortage of Munsifs, while suggesting that the minimum of 40 per cent marks in the aggregate be reduced to 35 per cent. The Commission forwarded another list of 33 candidates-the IInd list, comprising the candidates who had secured 35 per cent marks in the aggregate and 35 percent, in the Viva Voce.. All the 79 candidates of the two lists above said were appointed to service between May, 1972, and June, 1973, and in July, 1973, a notification was issued, determining inter seniority of the 79 persons appointed on the basis of the 1970 examination in accordance with their position in the lists prepared by the Commission under rule 19 of the Rules. Meanwhile, the Public Service Commission held another competitive examination-the 1972 examination- for appointments to 150 posts of Munsifs, and forwarded a list of 150 successful candidates to the Government for appointment under Rule 19 above-mentioned, and they were so appointed between 1975 and 1977.

The State Government, in view of the shortage of the Munsifs 795 as also the amendment of rule 19 in pursuance whereof it was no longer necessary for a candidate to qualify independently in the viva voce, requested the Commission to reconsider the result of the examination of 1967, 1968, 1969 and 1970 and approve all those candidates for appointment who might have obtained 40 per cent or more marks in the aggregate even if they might have failed to secure the minimum marks in the viva voce tests. The Commission refused to consider this proposal as the minimum marks prescribed by it under the then existing proviso to Rule 19 could not be ignored. The Government thereupon constituted a high level committee comprising the Chief Minister, the Chief Justice of the High Court and the Chairman of the Public Service Commission to consider this question, and the Committee decided that the Commission be requested to recommend candidates of the 1967, 1968, 1969 and 1970 examinations as above-mentioned. The Government wrote to the commission again for the purpose, conveying to it the decision of the High level committee above-said, and asking it to forward the applications and the marks of the unsuccessful candidates of the Examinations above-mentioned. The Commission could forward a list of 37 such candidates of the 1970 Examination only-the IIIrd list- to the Government. The IIlrd list contained the names of Refiquddin and 36 others, the "unplaced candidates" of the 1970 Examinations, unsuccessful due to failure in the viva voce. Thereupon, the Government issued a notification, appointing 21 of the 37 candidates above-mentioned as Munsifs, the remaining 16 having already again appeared in the 1972 Examination and selected and appointed to the service. Upon a further request by the Government for 16 more candidates, the Commission forwarded another list of 16 candidates who had appeared in the l 972 Examination.

In March, 1977, the State Government published a seniority list of the successful candidates of the 1970 examination, whereupon, the "unplaced candidates" of the IIIrd list of the 1970 Examination submitted a representation for determination of their seniority under Rule 22 of the Rules on the footing that they were recruited in pursuance of the 1970 Examination, and, therefore, they were entitled to seniority as candidates of the examination held in 1970 irrespective of their appointment being made in 1975, thereby claiming seniority over those who had been recruited in pursuance of the 1972 Examination and those who had been recruited earlier to them in pursuance of the 1970 Examination and the Ist and IInd lists of the 1970 Examination. The representation was rejected by the High Court (administratively) and the Government. Then, Rafiquddin and 16 other "unplaced candidates" filed a writ petition in the High Court. The High Court allowed the writ petition on the footing that the "unplaced candidates" were appointed on the basis of the result of the 1970 Examination, quashed the seniority list and issued directions for the preparation of the seniority list of the candidates of the 1970 Examination afresh in accordance with rule 22, read with rule 19 of the rules and for confirmation and promotion of the petitioners in accordance with the seniority list so drawn up. The State of Uttar Pradesh appealed to this Court against the decision of the High Court.

Appellants Sushil Kumar Srivastava and others also preferred an appeal to this Court against the above-said decision of the High Court.

D.P. Shukla and three other unsuccessful candidates of the 1970 Examination preferred an appeal to this Court against the judgment of the High Court dismissing the writ petition filed by them, raising the grievance that they were discriminated as they had not been appointed, and instead, 37 candidates "belonging to the lIlrd list" had been appointed although they had obtained lower marks.

Chandra Prakash Agrawal, an unsuccessful candidate at the 1970 Examination, Bled a writ petition in this Court, challenging the appointments of those who had secured less than 40 per cent marks in the aggregate.

Sushil Chand Srivastava, a member of the service appointed in pursuance of the 1972 Examination filed a writ petition in this Court, challenging the validity of the appointments of the "unplaced candidates" of the 1970 Examination belonging to the IIIrd list which included Kafiquddin and others, on the ground that their appointment was illegal and, therefore, they could not be treated as senior to him.

R.P. Lavaniya, a member of the service recruited in pursuance of the 1973 Examination filed a writ petition in this Court, claiming seniority over respondents 3 to 15 in the writ petition, recruited in pursuance of the 1972 Examination and appointed in service after the petitioners appointment.

P.N. Parasher and 11 others, recruited in pursuance of the 1972 Examination, filed a writ petition in the High Court, challenging the seniority list prepared in pursuance of the judgment of the High Court in the writ petition filed by Rafiquddin and others, afore-mentioned on the ground that the "unplaced candidates" of the 1970 Examination were not entitled to seniority over the candidates of the 1972 Examination, as they had been appointed to service earlier in time, that writ petition was transferred to this Court as the Transferred case.

Allowing the appeal filed by the State of U.P. and the appeal preferred by Sushil Kumar Srivastava and others and allowing in part the writ petition of Sushil Chand Srivastava and the Transferred case of P.N. Parashar and others, and dismissing the appeal of D.P. Shukla and others, and the writ petition of Chandra Prakash Agarwal and the writ petition of R.P. Lavaniya, the Court.

HELD: The High Court completely misconceived the relevant Rules, while rendering the judgment in the writ petition filed by the "unplaced candidates" Rafiquddin and 16 others-in total disregard of the facts. It committed a serious error in applying the principles of natural justice to a competitive examination. [820E] The Rules entrust the Public Service Commission with the duty of holding competitive examinations and recommending the names of the suitable candidates for appointment to the service on the basis of the proficiency shown by the candidates. Rule 19 provided that the list of the selected candidates should be arranged in order of merit on the basis of the aggregate marks of each candidate in the written as well as viva voce tests. In pursuance of clause (i) to the proviso to rule 19, the commission had the power to fix minimum aggregate marks in the written test.

Similarly, clause (ii) of the proviso conferred power on the Commission to fix the minimum marks for the viva voce to judge the suitability of the candidates for the service. The scheme underlying rule 19 and the proviso there to made it apparent that the obtaining of the minimum aggregate marks in the written test and the viva voce test, was the sine qua non before the Commission could make its recommendations in favour of the candidates for appointment to the service. It is manifest that only those candidates could be appointed to the service who were included in the list prepared by the Commission under rule 19. Appointments to the service are made from the list forwarded by the Commission to the State Government. Seniority in the service is determined on the basis of the year of the examination irrespective of the date of the appointment and the inter se seniority of the candidates recruited is determined on the basis of their ranking in the merit list. Seniority of a candidate appointed to the service would depend upon the result of the competitive examination and his position in the list prepared under rule 19. The claim to seniority on the basis of the year of competitive examination as contemplated by rule 22 is available only to those candidates who are approved by the Commission on the basis of H 798 their marks in the written and viva voce tests. The commission alone had the power to prescribe the minimum marks in the viva voce test for judging the suitability of a candidate for the service. That is the clear meaning of the words in the proviso to rule 19. [814B-H] In the instant case, the. commission had fixed 35 per cent minimum marks for the viva voce test. The viva voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services. There is no constitutional, legal infirmity in the provision of clause (ii) of the proviso to rule 19, conferring power on the commission to fix minimum marks for the viva voce test, as aforesaid, and so long as the clause (ii) remained in force, the Commission had that power. Even if a candidate had obtained higher aggregate marks in the written and viva voce test, his name could not be included in the list prepared by the Commission under rule 19. None of the "unplaced candidates" of the 1970 examination (those included in the IIIrd list) had secured minimum marks of 35 per cent in the viva voce test, and for that reason they were not approved by the Commission. The appointments of the "unplaced candidates" made in pursuance of the decision of the high level committee are not countenanced by the rules.

There is no escape for the conclusion that the "unplaced candidates" were appointed to service on the basis of the result of the competitive examination of 1970. Their appointments were made in breach of the rules. It is well- settled that where recruitment to service is regulated by the statutory rules, the recruitment must be made in accordance with those rules, and any appointment made in breach of the rules, would be illegal. The appointments of the 21 "unplaced candidates" made out of the third list were illegal as they were made in violation of the provisions of the rules. The high level committee, even though constituted by highly placed persons, had no authority in law to take the decision it did as above-said, as the rules do no contemplate any such committee and the decision taken by the committee could not be implemented. The committee had no authority in law to disregard the rules and direct the Commission, which is a constitutional and independent authority, not sub-servient to the directions of the Government, to make a recommendation to the Government in c; favour of the unsuccessful candidates by disregarding the minimum marks prescribed for the viva voce test. Its view that after the amendment of the rule 19, the minimum qualifying marks fixed for viva voce could be ignored, was wholly wrong. Rule 19 was amended in January 1972, but before that the 1970 examination had already been held, and the amendment was not retrospective. Even if the Commission had made recommendations in favour of the "unplaced candidates" under 799 the directions of the government, the appointments of the said candidates would have been illegal as made in violation of the rules. And there was no justification for the appointments of the unsuccessful candidates in 1975 because by then, the result of the 1972 examination had been announced and duly selected candidates were available.

[816F-H; 822D-H; 823C-DJ There is no express provision in the rules as to for what period the list prepared under rule 19 can be utilised for making appointments to the service. In the absence of any provision in the rules, a reasonable period must be followed during which the appointments on the basis of the result of a particular examination should be made. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilized by the Government for making appointments before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies, as that would adversely effect the rights of those selected at the subsequent examination in the matters relating to their seniority under rule 22. The 1970 examination could not be utilised as a perennial source or an exhaustible reservoir for making appointments indefinitely. The result of a particular examination must come to an end at some point of time, like a "dead ball" in cricket. The practice of revising the list prepared by the Commission under rule 19 at the behest of the government by lowering down fixed standards and norms, is subversive of the rule of law. This practice is fraught with dangers of favouritism and nepotism and it would open back door entry to the service. Once the result of the subsequent examination of 1972 was declared, the Commission could not revise the list of approved candidates of 1970 examination prepared by it under rule 19 at the behest of the Government by lowering down the standard_ fixed by it. The procedure adopted in appointing the unplaced candidates of 1970 examination was unauthorised by law and it practised discrimination in violation of Articles 14 and 16 of the Constitution. [824B-H; 826H] The "unplaced candidates" were appointed to the service in breach of the rules and they form a separate class. They cannot be equated with those appointed from the first and the second lists of the 1970 examination as their appointments were made on the recommendation of the Commission. Similarly, the candidates appointed to the service on the basis of the result of the competitive examination of 1972 before the "unplaced candidates" were appointed, formed a separate 800 class as they were also appointed in accordance with the rules. The "unplaced candidates" could not claim seniority over them on the basis of rule 22, as their appointments were not made on the basis of the list approved by the Commission under rule 19. [827A-C] Even though the 21 "unplaced candidates" of 1970 examination have been found to have been appointed to the service illegally in breach of the rules, yet the judgments and others passed by them are not rendered invalid; they were appointed by competent authority with the concurrence of the High Court. They have been working in the judicial service all these years and some of them have been promoted also; they have performed their functions as de facto judicial officers. The judgments and orders of a de facto judge cannot be challenged on the ground of his ineligibility for appointment. Keeping in view the period of 12 years that has elapsed, the Court did not propose to strike down the appointments of the "unplaced candidates".

Having regard to all the facts and circumstances, it would be just and proper to assign seniority to the "unplaced candidates" of the 1970 examination at the bottom of the list of the 1972 candidates. The 16 "unplaced candidates" out of the total of 37, who were successful in the 1972 examination and were approved and included by the Commission in the list prepared under rule 19, are entitled to seniority of 1972 examination on the basis of their positions in the merit list of that examination. [827D-G; 828F-H] The appeal of the State of U.P. and the appeal of Sushil Kumar Srivastava and others allowed. Judgment of the High Court set aside. The High Court and State Government shall determine the seniority of the 21 "upheld candidates" as directed by the Court. [829F-G] In the Appeal filed by D.P. Shukla and others, directed against another judgment of the High Court, the view of the High Court was consistent with the view of this Court. The appellants had appeared at the 1970 examination but were unsuccessful as they had failed to secure 35 per cent minimum marks at the viva voce test, although they had secured higher marks in the aggregate than those selected and appointed. They had challenged the selection made in pursuance of the 1970 examination. [830A-B] In the writ petition filed in this Court by Chandra Prakash Aggarwal, as the petitioner had failed to obtain the minimum marks prescribed for the viva voce test although he had obtained more than 40 per cent marks in the aggregate, he could not be granted the relief of appointment to the service. He was also, 801 disentitled to any relief on the ground of inordinate delay, there being no plausible explanation for the delay in . Challenging the validity of the 1970 examination in 1982.

L830C-D] In the writ petition filed in this Court by Sushil Chand Srivastava and in the transferred case of P.N. Parasher and others, the petitioners, recruited to the service on the basis of the 1972 examination, were aggrieved by the decision of the High Court in Rafiquddin's case as their seniority was affected adversely. This Court has already taken the view that the "unplaced candidates" of the 1970 examination could not be senior to the candidates appointed as a result of the 1972 examination, and the petitioners were covered by that decision of the Court to get relief to that extent. [830G] In the writ petition filed in this Court by R.P. Lavania, the petitioner was appointed to the service in November, 1976 on the basis of the result of the 1973 examination. His grievance was that the respondents Nos. 3 to 15 in the petition had been shown senior to him; although they had been appointed later in time on the basis of the 1972 examination, and that the selection and appointment of the said respondents were against the rules and they were not entitled to seniority over him as he was a regularly selected candidate. There was no merit in the petitioner's case. Rule 22 directs that seniority shall be determined on the basis of the year of examination, which means that a person recruited to the service in pursuance of the result of a particular year of examination would rank senior to a candidate who is recruited in pursuance of the result of a subsequent year of examination, although he might have been actually appointed earlier in time, as, after the selection of the candidates, several formalities, like medical examination, character and antecedents verification, etc., are followed before the appointments are made under rule 21.

Many a time, this process of formalities causes delay in the making of the actual appointment, with the result that sometimes persons selected on the basis of subsequent examination are appointed before the successful candidates of the earlier examination. But under rule 22, the latter shall be senior to the former, irrespective of the date of appointment. The petitioner was appointed in the service on the basis of the result of the 1973 examination while the respondents Nos. 3 to 15 were recruited to service on the basis of the result of the 1972 examination. Therefore, under rule 22, the validity of which has not been challenged, the respondents Nos. 3 to 15 are entitled to be senior to the petitioner. There was no illegality in the appointments of the respondents 802 Nos. 3 to 15. Their appointments in the service were made by the A State Government on the recommendation of the Public Service Commission made under Rule 19, as they had obtained the requisite aggregate marks in the written and the viva voce tests. They were appointed in accordance with the rules and were entitled to seniority in terms of rule 22. [831 A- H] The Public Service Commission has been changing the norms fixed by it at the behest of the Government after the declaration of the results. The Commission is an independent, expert body. It has to act in an independent manner. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of the candidates if no norms are prescribed in the Rules.

Once the Commission determines the norms and makes selection on the conclusion of a competitive examination and submits the list of the suitable candidates to the Government, it should not re-open the selection by lowering down the norms at the instance of the Government. If the practice of revising the results of competitive examinations by changing the norms is followed there will be confusion and the people will loss faith in the institution of the Public Service Commission and the authenticity of the selections. The Commission should take a firm stand in these matters, uninfluenced by the directions of the State Government unsupported by the Rules. [833A-D] (ii) The practice of appointing a retired Judge of the High Court as an expert to assist the Commission in making selections for appointments to the judicial service, is not desirable. A sitting Judge of the High Court should be nominated by the Chief Justice of the State to participate in the interviews as an expert; he would be in a better position to give advice to the Commission in the selection of suitable candidates and his advice would be binding on the Commission unless there are strong and cogent reasons for not accepting such advice, which must be recorded in writing by the Chairman and Members of the Commission, as observed by a Constitution Bench of this Court in A. K. Yadav v. State of Haryana, [1985] 4 S.C.C. 417. The Constitution Bench had issued directions to the Public Service Commission of every state to follow this direction, but it appears that in the State of U.P., this direction is not being followed. In future, the selections for appointments to the judicial service shall be made by the Commission on the expert advice of a sitting judge of the High Court nominated by the Chief Justice. [833E-H;834A] (iii) It has been noticed that generally, there is a considerable 803 interregnum between the holding of the examination and the appointments of the selected candidates in these cases, no system was followed in making the appointments, as some of the candidates selected in the subsequent examination were appointed earlier than those selected in the earlier examination, and those appointed later in time are made senior to those appointed earlier in time under Rule 22.

This causes heart-burning and other complications. To avoid this situation, it is necessary that every effort should be made to appoint the successful candidates of a particular examination before any candidate of a subsequent examination is appointed. [834B-D] K.N. Chandrasekhra & Ors. v. State of Mysore and Ors., A.I.R. 1963 Mysore 292; T.N. Manjula Devi v. State of Karnataka, [1982] Labour and Industrial Cases, 759; Durga Charan Misra v. State of orissa, W.P. 1123 of 1986, decided on 27.8.1987; Lila Dhar v. State of Rajasthan, [1982] 1 S.C.R. 320; A.K. Yadav v. State of Haryana, [1985] 4 S.C.C. 417; Umash Chandra Shukla v. Union of India & Ors., [1985] 3 S.C.C. 721; Shitla Prasad Shukla v. State of U.P. & Ors., [1986] Supp. S.C.C. 185 and Achanti Sreenivasa Rao & Ors. v. State of Andhra Pradesh, [1981] 3 S.C.C. 133. referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4023 of 1982 etc From the Judgment and order dated 31 3.1982 of the Allahabad High Court in C.M.W.P. No. 1303 of 1979.

G. Vishwanath Iyer, Satish Chandra, D.P Singh, S P. Gupta, G.L. Sanghi, Gopal Subramaniam, Shobha Dikshit, H.K. Puri, S D. Lal, M.K.D. Namboodry, R.N. Keshwani, Irfan Ahmad, S Balakrishnan, A.D. Sikri, Pradeep Misra, L R.

Singh, Jayanand, Gopal Singh, C.P. Pandey, Mrs. Rani Chhabra and Krishnamani for the appearing parties.

The Judgment of the Court was delivered by SINGH, J. These three civil appeals directed against the judgment of the High Court of Allahabad and four writ petitions filed under Article 226 of the Constitution raise common questions of law relating to determination of seniority of members appointed as Munsifs in the Uttar Pradesh Nyayik Seva as a result of competitive Examinations of 1970, 1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 195 1 (hereinafter referred to as 804 the Rules). Since the appeals and the petitions raise common questions of law they have been heard together and are being disposed of by a common judgment.

On September 3, 1970 a Notification was issued by the Public Service Commission inviting applications for recruitment to 85 posts of Munsifs. In this examination 918 candidates appeared, out of whom 294 candidates on the basis of their marks in written papers, were called for viva voce test. After completion of the written and viva voce test, the commission submitted a list of approved candidates to the Government on October 25, 1971 recommending the names of 46 candidates for appointment to the service, which shall hereinafter be referred to as the Ist list of 1970 examination. On receipt of the list of 46 candidates the State Government requested the Commission to recommend some more candidates for appointment to the service as there was shortage of Munsifs, and it further suggested that the minimum of 40 per cent marks in the aggregate may be reduced to 35 per cent. The Commission agreed to the State Government's suggestion and thereafter it forwarded another list of 33 candidates on April 25, 1972 for appointment to the service which shall hereinafter be referred to as the IInd list. This list included those who had obtained 35 per cent marks in the aggregate, as well as 35 percent marks in viva voce.. All the 79 candidates, as recommended by the Commission in the aforesaid two lists were appointed to service by different Notifications issued between May, 1972 to 12th June 1973. On July 17, 1973 Notification was issued determining inter-se seniority of all the 79 candidates appointed on the basis of 1970 examination in accordance with of their position in the list prepared by the Commission under Rule 19 of the Rules. Meanwhile, the Public Service Commission held another competitive examination for appointment to the 150 posts of l- Munsifs which shall hereinafter be referred to as the 1972 Examination. The Written test was held in November, 1973 and the result was declared on 26th June 1974. The Public Service Commission forwarded a list of 150 successful candidates to the Government for appointment to the service under Rule 19 of the Rules and all those candidates were appointed to the service on different dates between (, 1975 to 1977.

Some of the unsuccessful candidates of the 1970 Examination made representation to the State Government for considering their case for appointment on the basis of their aggregate marks irrespective of their low marks in the viva voce. The State Government by its letter dated 24th July, 1973 requested the Commission that in view of the 805 shortage of Munsifs in the State and since in view of the amendment of Rule 19 it was no longer necessary for a candidate to qualify independently in the viva voce, it may reconsider the result of the examinations of 1967, 1968, 1969 and 1970 and approve all those candidates for appointment to the service who might have obtained 40 per cent of marks or more in the aggregate even if they might have failed to secure the minimum marks in the viva voce test. The Commission refused to consider the proposal of the Government, as the minimum marks prescribed by the Commission under the then existing proviso to Rule 19 could not be ignored in judging the suitability of a candidate.

Inspite of the Commission's refusal the Government pursued the matter further, and it convened a meeting of the Chief Minister, Chief Justice of the High Court and the Chairman of the Public Service Commission on 3rd May, 1974. At that meeting it was decided that in view of the immediate need for Munsifs the Public Service Commission should be requested to recommend such candidates of 1967, 1968, 1969 and 1970 examination who might have secured 40 per cent or more marks in the aggregate, but could not qualify in the viva voce. The committee took the view that after the amendment of Rule 19 it was not necessary for a candidate to qualify in the viva voce test and therefore he could be appointed to the service if he had got 40 per cent or more marks in the aggregate. In pursuance of the decision taken by the said high level Committee the Government by its letter dated May 10, 1974 requested the Commission to forward the application forms and the marks obtained by the unsuccessful candidates of the Examinations held during the years 1967, 1968, 1969 and 1970 who might have got 40 per cent or more marks in the aggregate but might not have qualified in the viva voce. The letter enclosed a note containing the decision taken by the high level committee.

The Commission by its letter dated 9th June 1974 informed the Government that the application forms and other particulars of the unsuccessful candidates of 1967, 1968 and 1969 examination had been destroyed, and therefore the Commission was unable to forward the names of candidates of those examinations as desired by the Government. But the Commission forwarded with a covering letter dated June 19, 1974 a list of 37 candidates of the 1970 Examination who had obtained 40 per cent or more marks in the aggregate but who had failed to secure 35 per cent qualifying marks in the viva voce which shall hereinafter be referred to as the 3rd list. The Commission's letter contained a note that the candidates mentioned therein had obtained 40 per cent or more marks in the aggregate but they had not been found suitable by the Commission. This 3rd list contained the names of Rafiquddin and 36 others, who were unsuccessful at the 1970 Examination who will be referred to 806 hereafter as the "unplaced candidates" of the 1970 Examination. On receipt of the 3rd list of the "unplaced candidates" the State Government after obtaining approval of the High Court issued a Notification dated August 19, 1975 appointing 21 candidates out of the list of 37 candidates as Munsifs with a note that the appointments were being made on the basis of the 1970 Examination conducted by the Commission and the persons appointed were "unplaced candidates" with a further note that their seniority would be determined later on out of the list of 37 candidates forwarded by the Commission under its letter dated June 19, 1974 the State Government found that the remaining 16 persons who had been unsuccessful at the 1970 Examination had again appeared in the 1972 Examination and they had been selected and appointed to the service. Therefore, the Government requested the Commission to select 16 more candidates from the 1972 Examination In pursuance of the Government's request the Public Service Commission by its letter dated 14/ l5th July, 1976 forwarded another list of 16 candidates who had appeared in the 1972 Examination for appointment to the service.

In March, 1977 the State Government published a seniority list of successful candidates of the competitive examination of 1970. The "unplaced candidates" belonging to the 3rd list of the 1970 Examination made representation to the High Court for determining their seniority in accordance with Rule 22 of the Rules on the footing that they were recruited to the service in pursuance of 1970 Examination and therefore they were entitled to the seniority as candidates belonging to the examination held in 1970 irrespective of their appointment being made in 1975.

They claimed that they were senior to those who had been recruited to service in pursuance of 1972 Examination as well as to those who had been recruited to service, earlier to them in pursuance of the 1970 Examination who were appointed in service in pursuance of 1st and the 2nd list of 1970 Examination but who had secured lower marks in the aggregate. Their representation was rejected by the High Court as well as by the State Government as in their view the "unplaced candidates" were unsuccessful in the competitive examination of 1970, their appointment was not in accordance with the Rules and as such they were not entitled to seniority of 1970. Rafiquddin and 16 other "unplaced candidates" filed Writ Petition No. 1303 of 1979 under Article 226 of the Constitution before the High Court of Allahabad for quashing the decision of the High Court and the State Government rejecting their representation and also for the issue of a writ of mandamus directing the High Court to confirm the petitioners and to grant them seniority of 1970, and to rearrange the 807 seniority of Munsifs appointed in service in pursuance of 1970 Examination in order of merit on the basis of the aggregate marks obtained by each of the candidates at the said examination. A Division Bench of the High Court consisting of M.N. Shukla and K.M. Dayal JJ. by their Judgment dated 31st March, 1982 allowed the writ petition on the finding that the unplaced candidates were appointed in service on the basis of the result of 1970 examination. The Bench quashed the seniority list and issued a direction to the State Government and the High Court to prepare the seniority list of candidates of the 1970 Examination afresh in accordance with Rule 22 read with Rule 19 of the Rules and to confirm and promote them in accordance with the seniority list so drawn. The State of Uttar Pradesh has preferred Civil Appeal No. 4023 of 1982 against the judgment of the Division Bench. Civil Appeal No. 4024 of 1982 has been preferred by Sushil Kumar Srivastava and others against the aforesaid judgment of the Division Bench It should be stated here that D.P. Shukla and three other unsuccessful candidates at the 1970 Examination had filed another writ petition Writ Petition No. 4261 of 1974 in the High Court of Allahabad under Article 226 of the Constitution raising the grievance that even though they had secured higher marks in the competitive examination than those appointed to the service yet they were discriminated, as they had not been appointed to the service instead 37 candidates "belonging to the IIIrd list" were appointed although they had obtained lower marks. Another Division Bench of the High Court consisting of Satish Chandra CJ. and A.N. Verma J. by its judgment dated March 30, 1982 dismissed the said writ petition on the ground that since the petitioners therein had failed to secure minimum qualifying marks in the viva voce they were not entitled to selection. Civil Appeal No.3736 of 1982 has been preferred by the unsuccessful petitioners against the aforesaid judgment.

In addition to the aforesaid three civil appeals four writ petitions have also been filed raising the same controversy. Writ Petition No. 4636 of 1982 has been filed in this Court under Article 32 of the Constitution b(y Chandra Prakash Agrawal an unsuccessful candidate at the 1970 Examination, challenging the appointment of those who had failed to secure less than 40 per cent marks in the aggregate. Sushil Chand Srivastava a member of the service appointed in pursuance of the 1972 Examination has also filed Writ Petition No. 12818 of 1984 under Article 32 of the Constitution challenging the validity of the appointment of "unplaced candidates" of the 1970 Examination belonging to the 3rd list which include Rafiquddin and others on the ground that their appointment was illegal and for that reason they 808 could not be treated senior to him. R.P. Lavaniya a member of the A service who was recruited in pursuance of the 1973 Examination has also filed Writ Petition No. 1347 of 1984 under Article 32 of the Constitution claiming seniority over Respondents 3 to is to the writ petition who had been recruited in service in pursuance of the 1972 Examination and appointed in service after the petitioner's appointment.

P.N. Parashar and 11 others who had been recruited to the service in pursuance of the 1972 Examination filed a writ petition under Article 226 of the Constitution before the High Court of Allahabad being writ petition No. 5409 of the 1982 challenging the seniority list prepared in pursuance of the judgment of the High Court in writ petition No. 1303 of 1979 (Rafiquddin and others v. State of Uttar Pradesh), on the ground that the "unplaced candidates" of the 1970 Examination were not entitled to seniority over the candidates of the 1972 Examination as they had been appointed to service earlier in time. That writ petition was transferred to this Court. Three Civil appeals and four writ petitions including the transferred petition have been heard together at length.

The U.P. Civil Service (Judicial Branch) Rules 1951 that is, the Rules have been framed by the Governor under the proviso to Article 309 read with Article 234 of the Constitution in consultation with the U . P. Public Service Commission and the High Court which provide for recruitment to the service and lay down the conditions of service of personnel appointed to the U.P. Civil Service (Judicial Branch). Rule 3 provides that the Rules shall apply to Munsifs and Civil Judges. "Member of the service" as defined by Rule 4 means a person appointed in a substantive capacity 'under the provisions of these Rules" or of the Rules in force previous to the introduction of these Rules to a post in the cadre of the service. Rule S provides that the strength of the service shall be determined by the Governor from time to time in consultation with the High Court of Judicature at Allahabad. It confers power on the Governor to increase the cadre by creation of additional or temporary posts as may be necessary. Rule 6 provides that recruitment to the service shall be made on the result of a competitive examination conducted by the Public Service Commission. Rule 8 lays down that the Governor shall decide the number of recruits to be taken in any particular year. Rule 15 provides for holding of competitive examination for recruitment to the service and it lays down that the examination may be conducted at such time and on such date as may be notified by the Commission and shall consist of written examinations in such legal and allied subjects including procedure as may be included in the syllabus prescribed in Rule 18 and an examination to test the knowledge of the candidate in Hindi, Urdu and also an interview to test the fitness of the candidates for appointment. Rule 18 prescribes syllabus for the competitive examination as contained in Appendix E. Appendix provides that the examination will include written and viva voce test, it specifies the subjects for written test and the marks allotted to each subject. Clause 5 of Appendix relates to the viva voce, and the notes appended thereto relevant for the determination of the question raised in these cases, are as under:

"5. Viva Voce: The suitability of the candidate for employment in the judicial service will be tested with reference to his record at school, college and in university and his personality, physique. The questions which may be put to him may be of a general nature and will not necessarily be on an academic or legal nature.

(I) The marks obtained in viva voce will be added to the marks obtained in the written papers and the candidate's place will depend on the aggregate of both.

(II) The Commission reserves the right to refuse to call for viva voce and candidate who has not obtained such marks in the two Law Papers as to justify such refusal or who does not satisfy the requirements of Rule 12(2) of the Rules." Rule 19 requires the Commission to prepare list of candidates approved by it and to forward the same to the Government. Rule 19 is it stood in the year 1970 read thus:

" 19. List of candidates approved by the Commission-The Commission shall prepare a list of candidates who have taken the examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merits on the basis of their general suitability for the service:

Provided that in making their recommendations the Commission shall satisfy themselves that the candidate- (i) has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service;

810 (iii) has obtained in the viva voce test such sufficiently high marks that he is suitable for the service.

While preparing the list the Commission had to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify him for appointment to the service and further that he had obtained such sufficiently high marks in the viva voce test that he was suitable for the service. The position of the candidates in the list was to be determined on the aggregate marks obtained by a candidate both in written as well as viva voce test. Rule 21 provides that the Governor shall on receipt of the list prepared by the Commission consult the High Court and after taking into consideration the view of the High Court, select candidates for appointment from amongst those who stand highest in order of merit in the list if they are duly qualified in other respects. Rule 22 provides that the seniority of candidates shall be determined by the year of competitive examination on the results of which a candidate is recruited and his position in the list prepared under Rule lg. The Rules were amended by a Notification dated January 31, 1972. After the amendment the Rules are known as the U.P. Nyayik Seva Niyamavali 1951 Under the amended Rules the service has been designated as the U.P. Nyayayik Seva.

It is not necessary to refer to all the amended provisions of the Niyamavali. After the amendment Rule 15 provides that the examination shall consist of written examination and interview to assess all round student career of the candidates and their personality address and general suitability. Rule 19 after the amendment reads as under:

19. List of candidates approved by the Commission- "The Commission shall prepare a list of candidates who have taken the examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for the service;

Provided that in making their recommendations the Commission shall satisfy themselves that the candidate has obtained such as aggregate of marks in the written test that he is qualified by his ability for appointment to the 811 A glance at the amended Rule 19 would show that the two clauses of the proviso have been omitted. Instead the new provision to Rule 19 has been inserted which lays down that in preparing the list of the approved candidates the Commission shall satisfy itself that the candidate has obtained such aggregate of marks in the written test that he is qualified by his ability for appointment to the service.

Now, after the amendment the Commission has no power to prescribe or fix any minimum marks qualifying for viva voce.

Now it is not necessary for a candidate to be successful in the viva voce. Prior to the amendment a candidate could not be selected unless he had obtained minimum marks as fixed by the Commission in viva voce. The amended proviso of Rule 19 has dispensed with that requirement though viva voce test has been retained. It is not necessary to refer to other Rules as these are the only Rules which are relevant for the purposes of determining the controversy involved in these cases.

The "unplaced candidates" of 1970 examination claimed seniority of 1970 in terms of Rule 22 even though they were appointed in 1975. The State Government as well as the High Court rejected their claim as in their view the "unplaced candidates" formed a separate class as their recruitment to the service was made in special circumstances, even though they had been unsuccessful at the examination. The High Court on its administrative side rejected their claim for seniority whereupon Rafiquddin and other "unplaced candidates" approached the High Court on the judicial side by filing the writ petition under Article 226 of the Constitution challenging the order rejecting their representation. The Division Bench of the High Court constituting of M.N. Shukla and K.M. Dayal, JJ. held that the appointment of the "unplaced candidates" had been made in pursuance of the result of the competitive examination of 1970 and as such they were entitled to seniority of 1970 in accordance to Rule 22. The Bench further held that as the seniority in the service is determined on the basis of the year of the competitive examination the "unplaced candidates" belonging to the 3rd list were entitled to the senior to those appointed to service on the basis of the result of the competitive examination of 1972 even though the "unplaced candidates" had been appointed to service later in time. At regards the inter-se-seniority of the candidates recruited to the service in pursuance of 1970 examination the High Court held that the Commission had no authority to prescribe any minimum qualifying marks for viva voce and instead it should have prepared the list of successful candidates on the basis of aggregate marks secured by each candidate irrespective of the marks obtained by a candidate in viva voce. Adverting to proviso to Rule 19 H 812 the Bench observed "It is true that the Rule authorises the Public A Service Commission to lay down such minimum marks but that it was so laid down prior to the holding of the examination of the year 1970 does not appear from the record. If any minimum marks were prescribed the candidate should have had notice of the same and only thereafter they could decide to appear or not to appear at the examination.

The Public Service Commission cannot at its whim at any point of time without notice to the candidates fix minimum marks." on these findings the High Court directed that the merit list of 1970 recruits, should be drawn afresh, on the basis of the aggregate marks secured by each candidate disregarding the qualifying marks fixed by the Public Service Commission for the viva voce test. The Division Bench directed that the seniority of the "unplaced candidates" included in the third list be refixed after rearranging the lists of candidates included in the first and second list on the basis of the aggregate marks. The effect of the judgment of the Bench has been that all those candidates who had been appointed to service in pursuance to the 1972 examination have been made junior to the "unplaced candidates" of 1970 examination although they were appointed much later. Further the seniority of regularly selected candidates and appointed to the service out of the 1st and 2nd lists of the 1970 examination is adversely affected on account of the rearrangement of the merit list as many of the unsuccessful candidates have become senior to those who had been included in the 1st and 2nd list. Further the candidates who had passed along-with the successful candidates of 1972 examination also being unplaced candidates would go above all the candidates of the 1972 examination including the candidates who had stood first in the 1972 examination.

After hearing the learned counsel for the parties at length and having given our anxious consideration to the controversy raised in these cases, we are of opinion that the Division Bench completely misconceived the Rules and rendered the judgment in total disregard of the facts available on record. As discussed earlier the Rules, entrust the Public Service Commission with the duty of holding competitive examination and recommending the names of suitable candidates as approved by it for appointment to the service on the basis of the proficiency shown by the candidates at the examination adjudged on the basis of the aggregate marks secured by them. The appointment to service is made from the list forwarded by the Commission to the State Government. Seniority in the service is determined on the basis of the year of the competitive examination irrespective of the date of appointment and the inter-se- seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list.

To 813 recapitulate Rules 19, 21 and 22 as they stood during the year 1970 i.e. prior to their amendment in January, 1972 were as under:

21. Appointment-(1) subject to the provisions of Rule 20, the Governor shall on receipt of the list prepared by the Commission consult the High Court and shall, after taking into consideration the views of the High Court, select candidates for appointment from amongst those who stand highest in order of merit in such list provided that he is satisfied that they duly qualified in other respects.

(2) The Governor may make appointment in temporary or officiating vacancies from persons possessing necessary qualifications prescribed under these Rules.

(3) All appointments made under this Rule shall be notified in the official Gazette.

22. Seniority-Subject to the provisions of Rule 31 the seniority of candidates already in service at the time when these rules come into force would be determined according to the Rules in force previously and for those appointed subsequently the seniority shall be determined by the year of competitive examination on the results of which a candidate is recruited and the position in the list prepared under Rule 19 NOTE: A candidate may lose his seniority if without any reasonable cause he does not join his service when a vacancy is offered to him." (underlining by us) The aforesaid rules show that the Commission was required to prepare a list of candidates approved by it for appointment to the service. Rule 19 provided that the list of selected candidates should be arranged in order of merit on the basis of the aggregate marks finally awarded to each candidate in written as well as in viva voce test. Clause (1) of proviso to Rule 19 laid down that in making their recommendation, the Commission should satisfy itself that a candidate had obtained such aggregate of marks in the written test as to indicate that he was qualified by his ability for appointment to the service and further he had obtained in the viva voce test such sufficiently high marks that he was suitable for the service. In pursuance to clause (1) of the proviso, the Commission had power to fix minimum aggregate marks in written test for judging the suitability of a candidate for appointment to service. Similarly clause (ii) of the proviso conferred power on the Commission to fix the minimum marks for viva voce test to judge the suitability of a candidate for the service. One related to the fixation of the minimum in the aggregate marks in the written test while the other related to the fixation of the minimum marks in the viva voce test. The enacting clause of Rule 19 directed the Commission to prepare the list on the basis of the aggregate marks awarded to a candidate Aggregate marks obtained by a candidate determined his position in the list, but the proviso of the Rule required the Commission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva voce which would show his suitability for the service. The scheme underlying Rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva voce was the sine quo non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to the service. The Commission in view of the clause (ii) of the proviso Commission had power to fix the minimum marks for vive voce for judging the suitability of a candidate for service Thus a candidate who had merely secured the minimum of the aggregate marks or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva 815 voce test. The Commission was required to include the name of candidates in the list prepared by it under Rule 19 on the basis of the aggregate of marks as obtained by each candidate both in written as well as in the viva voce test.

Rule 20 provides that no person shall be appointed as member of the service unless he is medically fit. It further provides that a candidate who has passed the competitive examination and is finally approved for appointment to the service shall be required to pass an examination by a Medical Board. Rule 21 provides that the Governor, on receipt of the list prepared by the Commission under Rule 19 shall select candidates for appointment from amongst those who stand highest in order of merit in "such list" after taking into consideration the views of the High Court. The expression "such list" in Rule 2 l obviously refers to the list prepared by the Commission under Rule 19. It is, therefore, manifest that only those candidates can be appointed to the service who are included in the list prepared by the Commission under Rule 19. If the Commission does not approve and include the name of a candidate in the list prepared by it under Rule 19, he cannot be appointed to the service under Rule 21 Rule 22 provides that the seniority in the service shall be determined by the year of competitive examination on the results of which a candidate is recruited and his position in the list prepared under Rule 19. The Rule clearly postulates determination of seniority of members of the service recruited to the service through competitive examination with reference to their position in the list of approved candidates prepared by the Commission under Rule 19. The expression "member of the service" as defined by Rule 4(e) means a person appointed in substantive capacity under the provisions of the Rules. Rule 22 read with Rule 4(e) lays down in unmistakable terms that the seniority of members of service is to be determined on the basis of the year of competitive examination and not otherwise. In other words only those persons who are appointed in accordance with the Rules on the result of a competitive examination are entitled to the determination of their seniority in accordance with Rule 22. Seniority of a candidate appointed to the service would depend upon the result of the competitive examination and his position in the list prepared under Rule 19. Claim to seniority under Rule 22 cannot be upheld if a candidate is not approved for appointment under Rule 19 and has not found his way into service on the recommendation of the Commission. We therefore hold that the claim to seniority on the basis of the year of competitive examination as contemplated by Rule 22 is available only to those candidates who are approved by the Commission on the basis of their marks in the written and viva voce test at the examination.

816 Learned counsel for the respondent (unplaced candidates) urged that clause (2) of the proviso to Rule 19 did not confer power on the Commission to fix any qualifying minimum marks for viva voce. In the alternative he challenged the constitutional validity of the proviso on the ground of excessive delegation of legislative power. Rule 19 as it stood in the year 1970 read with Rule 18 and Appendix and the Note I of clause (5) of appendix required that the aggregate of marks obtained in the written and viva voce test, determined a candidate's rank in the merit list. These provisions conferred power on the Commission to fix qualifying marks in the written test and if a candidate failed to obtain the minimum marks in the written test the Com mission might refuse to call him for viva voce test. The enacting clause of Rule 19 provide guidance for the Commission in preparing the list of approved candidates on the basis of the aggregate marks obtained by a candidate in the written as well as in viva voce test. Clause (2) of the proviso to Rule 19 did not no doubt expressly lay down that the minimum marks for the viva voce had to be prescribed but the language used therein clearly showed that the Commission alone had the power to prescribe minimum marks in viva voce test for judging the suitability of a candidate for the service. That is the clear meaning of the words in the proviso to Rule 19 "provided that in making their recommendation the Commission shall satisfy themselves that the candidate i) .. ii) has obtained in the viva voce test such sufficiently high marks that he is suitable for the service." Commission is required to judge the suitability of a candidate on the basis of sufficiently high marks obtained by a candidate in the viva voce test, it has to fix some percentage of marks which in its opinion may be sufficient to assess the suitability of a candidate. In the absence of a fixed norm, there could be no uniformity in assessing suitability of candidates in the viva voce test. The Commission had therefore power to fix the norm and in the instant case it had fixed 35 per cent minimum marks for viva voce test. The viva voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected. Clause (ii) of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service. We do not find any constitutional legal infirmity in the provision.

817 The learned counsel placed reliance on a Division Bench judgment of the Mysore High Court in K.N. Chandrasekhra & Ors. v. State A of Mysore & Ors., AIR 1963 Mysore 292. In that case A.R. Somnath Iyer, J. speaking for the Bench observed that the power to fix minimum marks in viva voce test for judging the suitability of a candidate for appointment to State Judicial Service was legislative in character and it could not be exercised by the Public Service Commission. He also held that under Article 234 of the Constitution it would be a special duty and responsibility of the Commission alone to make a Rule prescribing the minimum marks for viva voce examination and in the absence of such a rule the committee constituted could not prescribe any such minimum standard. No doubt this decision support the submission raised on behalf of the unplaced candidates but a Full Bench of the Mysore High Court had not approved the view taken in K.N. Chandrasekhra's case as can be gathered from T.N. Manjula Devi v. State of Karnataka. [ 1982] Labour and Industrial Cases 759. In the latter case the Court held that the process of selection of suitable candidates to a responsible post involved a minimum standard to be crossed by candidates and that had to be fixed by the selection commit- tee. I earned counsel for the respondent referred to a decision of this Court in Durga Charan Misra v. State of Orissa, W.P. 1123 of 1986 decided on 27.8.1987 for the proposition that the Commission had no power to fix the qualifying marks for the viva voce test. We have carefully considered the decision but we do not find anything therein to support the respondents' contention. In that case the question for consideration before this court was whether the minimum marks prescribed by the Commission for the viva voce test for appointment to the State Judicial Service of Orissa was justified. The Court on an analysis of the relevant rules of the Orissa Judicial Service Rules 1964 held that there was no rule prescribing the minimum qualifying marks for the viva voce test. The court found that the Commission had fixed qualifying marks and on that basis it had excluded candidates securing higher marks in written test. The Court allowed the petition and quashed the selection made by the Commission and directed the Commission to prepare the