U.P Public Service Commission vs Sangeeta And 81 Others
2019 Latest Caselaw 409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					    RESERVED/AFR
 
Court No. - 29
 
Case :- SPECIAL APPEAL No. - 142 of 2019
 
Appellant :- U.P Public Service Commission
 
Respondent :- Sangeeta And 81 Others
 
Counsel for Appellant :- M.N. Singh, Shri G. K. Singh
 
Counsel for Respondent :- C.S.C., Jitendra Prasad Kushwaha, Munna Yadav, Shailendra Kumar Tiwari, Siddharth Khare
 
Hon'ble Pankaj Mithal, J.

Hon'ble Saumitra Dayal Singh, J.

(Per Saumitra Dayal Singh, J)

1. Heard Shri G.K. Singh, learned Senior Counsel assisted by Shri M.N. Singh, learned counsel for the Uttar Pradesh Public Service Commission (hereinafter referred to as the 'appellant-Commission'), Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel appearing for the private respondents in this special appeal as also Shri Munna Yadav, Advocate, appearing on behalf of the applicants in the impledment application, who stand on the same footing as the private respondents (these private respondents and applicant in the impleadment application are hereinafter collectively referred to as petitioner-respondents).

2. The present intra-court appeal is directed against the judgment and order of the learned Single Judge dated 11.12.2018 in Writ-A No. 20016 of 2018 and connected petitions. By the impugned judgment and order, the learned Single Judge has allowed the writ petitions and quashed (in part) the notification issued by the appellant Commission dated 01.09.2018, to the extent it excluded (from the select list), such candidates who may not have obtained minimum qualifying marks thus notified. A further direction has been issued to the appellant Commission to re-draw the final result declared by it, in accordance with Rule 15 of the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service Rules, 1979 (hereinafter referred to as the 'Rules').

3. For purposes of clarity and convenience, certain facts giving rise to the present intra-court appeal may first be noted. The appellant Commission is a body constituted under the Uttar Pradesh Public Service Commission Act.

4. It appears, earlier upon the suggestion made by the State Government, the appellant-Commission issued an administrative order on 24.12.1966 whereby it sought to introduce minimum standard of efficiency for Scheduled Caste candidates, similar to that required from the General category candidates. Generally speaking, that minimum standard was specified at 40 percent of aggregate marks secured in interview and written papers, in all future recruitments.

5. Then on 05.02.2011, another decision was made by the appellant- Commission whereby with respect to Scheduled Castes and Scheduled Tribes, the pre-existing न्यूनतम दक्षता प्राप्तांक (minimum proficiency marks) pegged at 35 percent, was reduced to 30 percent, with respect to all future advertisements.

6. At the same time, in exercise of powers vested under Article 309 of the Constitution and in supercession of existing Rules and orders on the subject, the Governor of Uttar Pradesh enforced the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service Rules, 1979. These were published in the Uttar Pradesh gazette on 26.01.1980. Amongst others, Rule 15 of the Rules prescribed procedure for direct recruitment. It read as under:

"15. Procedure for direct recruitment. - (1) For the purpose of recruitment, there shall be constituted a Selection Committee comprising -

(i) Additional Director, or an officer not below the rank of Joint Director of Medical and Health Services (Women), U.P. nominated by him.

(ii) Deputy Director of Medical and Health Services (Nursing), U.P.

(iii) Deputy Superintendent of Nursing Services, U.P.

(2) The Selection Committee shall scrutinize applications and require eligible candidates to appear in an interview.

(3) The Selection Committee shall prepare a list of candidates in order of merit, as disclosed by the marks obtained by them in the interview. If two or more candidates obtain equal marks the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) of number of vacancies."

7. The Governor of Uttar Pradesh then notified the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service (Fourth Amendment) Rules, 2016 (hereinafter referred to as the 'Fourth Amendment Rules') in the notification published in the gazette on 11.02.2016. By that amendment, amongst others, Rule 15 of the Rules was substituted by the following Rule:-

"Procedure for direct recruitment - 15. (1) Applications for permission to appear in the Competitive Examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.

(2) No Candidate shall be admitted to the Examination unless he holds a certificate of admission issued by the Commission.

(3) Selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-

(a) Written Examination shall carry eighty five marks.

(b) Marks to a person who is working as Staff Nurse on contract basis in the Medical and Health Services Department, Uttar Pradesh shall be awarded in the following manner subject to the maximum of fifteen marks:-

(i) For the first completed year of service on contract basis ---------- Three marks.

(ii) For the next and every completed year of service on contract basis ---- Three marks for each year.

(c) The marks obtained by each candidate under clause (a) shall, where applicable, be added to the marks obtained under clause (b).

(4) The Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 6, prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by them under clause (c) of sub-rule (3) and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks, the name of the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority."

8. In the above pre-existing provisions of law, the appellant-Commission published Advertisement No. A-1/E-1/2017 dated 12.01.2017 and advertised 448 Staff Nurse (Male) and 3390 Staff Nurse (Female) vacancies at the Medical Education and Training Department, Uttar Pradesh and Medical and Health Services Department, Uttar Pradesh. Relevant to our purpose the selection procedure as laid out in the aforesaid advertisement, was as below:

"1. Selection shall carry one hundred marks. The merit list of the candidates shall be prepared on the following manner:-(a) Written Examination shall carry .......... Eighty Five marks.

(b) Marks to a person who is working as Staff Nurse on contract basis in the Medical and Health Services Department, Uttar Pradesh shall be awarded in the following manner subject to the maximum of fifteen marks:-

i) For the first completed year of service on contract basis ------ Three marks.

ii) For the next an every completed year of service on contract basis ------- Three marks for each year. In regard the certificate issued by the Appointing Authority only shall be treated Valid. A Proforma for the purpose is available in Appendix-6 of this advertisement;

(c)The marks obtained by each candidate under clause (a) shall, where applicable, be added to the marks obtained under clause (b).

Note: The candidates must possess all the requisite qualifications upto the last date for submitting applications."

9. Thereafter, notification dated 01.09.2018 was issued by the appellant- Commission, specific to the recruitment being made by it under the aforesaid advertisement dated 12.01.2017. After giving details of the recruitment proposed to be made, the न्यूनतम दक्षता मानक (minimum proficiency standard) was specified at 40% and 30% of the aggregate marks awarded to the eligible candidates under the general category and the reserved category, respectively.

10. In response to the above advertisement, 23394 applications had been received by the appellant Commission of which only 20408 were found eligible after scrutiny. The eligible applicants had appeared in the written examination. However, after preparation of the merit list, the appellant-Commission applied notification dated 01.09.2018 and it did not recommend for appointment sufficient names against total vacancies existing. Thus, against total 3628 posts in the Medical and Health Services Department only 1830 candidates were declared provisionally selected. Similarly, against 753 posts in the Medical Education and Training Department only 558 candidates were declared provisionally selected.

11. It is in such circumstances, numerous writ petitions came to be filed before this Court giving rise to the impugned judgment and order. The learned Single Judge has taken note of the fact that in these writ petitions, challenge was laid to the notification dated 01.09.2018 issued by the appellant-Commission in so far as minimum marks were prescribed by that notification. Also, upon amendment, challenge was laid to the decision of the Commission dated 24.12.1966 and 05.02.2011.

12. Before the learned Single Judge, the petitioner-respondents contended: the decision of the Commission to enforce minimum percentage marks or qualifying marks was contrary to the Rules and the terms and conditions of the advertisement dated 12.01.2017 and therefore, unenforceable; statutory Rules as amended by the Fourth Amendment Rules did not envisage any minimum/qualifying marks to be considered by the appellant Commission; also, specific challenge was raised to the decision/resolution of the appellant Commission dated 24.12.1966 being contrary to the Rules framed under Article 309 of the Constitution and; in any case, being wholly vague and never adapted after enforcement of the Rules.

13. Reliance had also been placed on various decisions of the Supreme Court including Dr. Krushna Chandra Sahu & Ors. Vs. State of Orissa & Ors., (1995) 6 SCC 1, to submit, a recruitment body could not itself adopt a procedure to determine suitability of eligible candidates. Such a body was denuded of any jurisdiction to lay down the criteria for selection. That being the function of the Rule making body, no inherent power existed with the appellant-Commission to lay down or create a new standard, in addition to that as had been prescribed by the Rules.

14. On behalf of the appellant-Commission, reliance was placed on Clause-6 of the advertisement dated 12.01.2017 obliging the appellant-Commission to select "suitable candidates". Thus, relying upon its decision of 24.12.1966, the appellant Commission claimed legality of its decision to adjudge suitability for appointment amongst the eligible candidates on the basis of marks obtained by them. Reliance was also placed on the language of Rule 15(4) of the Rules and the terms and conditions of the advertisement. In support of its submission, the appellant Commission relied on the following decisions of the Supreme Court:-

(1) Sushil Kumar Srivastava & Anr. Vs. U.P. Public Service Commission & Anr., (2002) 3 UPLBEC 2488.

(2) State of U.P. Vs. Rafiquddin & Ors., AIR (1988) SC 162.

(3) Union of India & Ors. Vs. S. Vinodh Kumar & Ors., (2007) 8 SCC 100.

(4) K.H. Siraj Vs. High Court of Kerala & Ors., (2006) 6 SCC 395.

15. The learned Single Judge has reasoned, though Constitutional eminence of the appellant-Commission (constituted under Article 320 of the Constitution of India) may never be doubted, yet, the appellant-Commission must function within the limits of its powers and that it was bound by the provisions applicable to it, by virtue of the relevant enactments and Rules.

16. Referring to Rule 15 of the Rules, the learned Single Judge has concluded, the said Rule neither contemplated nor prescribed any minimum qualifying marks to be obtained by any candidate so as to be included in the list to be prepared under sub-rule (4). In view of the specific stipulation of Rule 15 noted by the learned Single Judge, it was further concluded, there remained no room to exercise any "inherent power" by the appellant-Commission as was suggested on its behalf.

17. Then, applying the ratio laid down by the Supreme Court in Dr. Krushna Chandra Sahu & Ors. Vs. State of Orissa & Ors. (supra) and Durgacharan Misra Vs. State of Orissa & Ors., (1987) 4 SCC 646, wherein it was held, such Commission/body may not prescribe any additional requirements for selection, either as to the eligibility or suitability, it was concluded Rule 15 of the Rules neither explicitly nor by necessary intendment conferred any authority upon the appellant-Commission to impose any additional condition for the purpose of preparing and issuing a select list in pursuance of the advertisement dated 12.01.2017. The decisions cited by learned counsel for the appellant-Commission were found to be distinguishable, upon the clear language of Rule 15 of the Rules.

18. As to the decision of the Commission dated 24.12.1966, it was found to be incompatible to Rule 15 of the Rules. Alternatively, the said decision was also held to have been superseded upon notification of the Rules, by clear intendment contained in the Preface to the said Rules. Notice was also made to the fact, even upon the Fourth Amendment Rules being promulgated, the criteria of suitability contained in the own earlier decisions of the appellant-Commission were never incorporated in the Rules. Even otherwise, in absence of the resolution of the appellant-Commission to adapt its earlier resolutions dated 24.12.1966 and 05.02.2011 with reference to Rule 15 of the Rules, the same were held wholly unenforceable, being contrary to the statutory Rules.

19. In the present intra-Court appeal, learned Senior Counsel appearing for the appellant- Commission has submitted, since the essential function of the appellant-Commission was to recommend for appointment only suitable candidates from amongst all those who may be otherwise eligible, the very purpose of conducting a recruitment test is to identify the meritorious and suitable candidates. Unless a reasonable test is allowed to exist and applied, to adjudge the suitability of the candidates against posts advertised (besides determination of their inter-se merits), the whole object and purpose for conducting a recruitment test may be rendered meaningless or an empty formality. He would therefore submit, in a case where less number of applicants apply for recruitment to a larger number of vacant posts, then, despite conduct of a recruitment test and despite the fact that all or many of the eligible candidates may not have scored a single mark yet, all would be entitled to be recommended for recruitment, though they be clearly unsuitable/unfit for the post. In such a situation, the test of suitability that the appellant-Commission was obliged to conduct and that had been conducted, would be rendered redundant.

20. Therefore, in the context of the present recruitment process, it has been submitted, once the suitability was required to be adjudged by the appellant-Commission, both under the Rules as also under the advertisement, no fetters existed or may be attached to the reasonable conditions imposed by the appellant-Commission to adjudge suitability. Merit (both absolute relative), in any open examination is the most reasonable, objective, obvious and transparent criteria to adjudge suitability. More so for recruitment on technical and/or skilled posts, the suitability from amongst the eligible candidates would necessarily require a test of merit to be satisfied.

21. As to the minimum proficiency requirement of 40% marks for general category candidates and 30% marks for reserved category candidates it is claimed to be wholly justified in view of the fact that 40% marks are generally treated to be the pass marks in most examinations, beginning from school level examination itself. Therefore, it has been submitted, no unreasonable condition had been placed by the appellant-Commission, by enforcing such condition.

22. As a matter of practice, the appellant-Commission had been enforcing and applying that consideration for very long, since 1966. Therefore, it has been submitted, the practice and criteria were well settled and accepted even for the purpose of recruitment exams conducted by the appellant-Commission. Then, it has been submitted Rule 15, as amended by the Fourth Amendment Rules, specifically enabled the appellant-Commission to adopt such a criteria inasmuch as it specifically provided, the appellant-Commission may recommend such number of candidates as it considers 'fit' for appointment. Therefore, it has been submitted, Rule 15(4) of the amended Rules clearly permitted the appellant- Commission to adjudge fitness of the candidates and to recommend only those it found fit for appointment. Therefore, applying the consideration of 40% and 30% marks for general category and reserved category candidates respectively, the appellant-Commission had not acted without jurisdiction or authority or in an arbitrary manner.

23. In that context, it has also been submitted, the wholly rationale objective and transparent criteria (of 40% and 30% marks for general and reserved category candidates respectively), had been applied by the appellant-Commission only to exclude the unfit from amongst the fit candidates. No additional qualification had been prescribed by the appellant-Commission.

24. Responding to the above, Sri Ashok Khare, learned Senior Counsel and Sri Munna Yadav, learned counsel appearing for the petitioner-respondents would submit, the resolution of the appellant-Commission dated 24.12.1966 was never adopted by the Commission upon enforcement of the Rules. Also, they would submit, in any case, the 1979 Rules completely superseded the pre-existing orders including the orders and resolutions issued by the appellant-Commission. In this context, it has also been submitted, after the enforcement of the Rules, the power of the appellant-Commission to issue similar or other orders including the order dated 01.09.2018, stood denuded. It has also been emphasized, the power of the appellant-Commission was confined to issuing a select list being a list of all eligible candidates in order of their relative merit, without making any further distinction between them as to those who may be considered and those who may not be considered for grant of appointment. According to them, it would remain a matter with the appointing authority to choose from that list such candidates as it may consider fit for appointment, in order of their merit.

25. Having heard learned counsel for the parties and having gone through the record of the writ petition as also the elaborately reasoned decision of the learned Single Judge, there can be no two opinions on the issue that the appellant-Commission, though constitutionally supreme in its realm, yet, it may function only within the limits of powers vested in it. Also, in the face of statutory Rules, executive decisions, if found to be in conflict with those Rules, would remain unenforceable. Also, we do not intend to adjudicate the issue whether the appellant-Commission had any surviving or inherent power to create any stipulation to adjudge either suitability or fitness of eligible candidates who participated in the open examination conducted by the appellant-Commission. That issue does not arise for consideration in the present case, in view of the reasoning we propose to adopt.

26. Also, for the purpose of the decision of the present appeal, we proceed on the assumption that the decision taken by the Commission dated 24.12.1966, 05.02.2011 and 01.09.2018 could not have provided for any additional qualification/eligibility and the same could not override or be enforced contrary to the subsequently notified Rules. It is also accepted that the Rules themselves do not prescribe any minimum qualifying marks to be attained by eligible candidates for being considered fit for appointment.

27. Coming directly to the Rules, it may be noted the advertisement having been issued on 12.01.2017 when Rule 15 (as it stood amended by the Fourth Amendment), was in force. Relevant to the present case, Rule 15(3) required the selection to be carried out, based on the merit list to be prepared on consideration of the aggregate marks awarded out of a maximum of 100 marks (85 marks for the written examination and 15 marks for work experience), that being the stipulation contained in Rule 15(3) of the amended Rules. However, the matter does not rest here.

28. Rule 15(4) of the Rules prescribed preparation of list of candidates in order of merit of their 'proficiency' determined by marks obtained by them under Clause (c) of sub-rule 3. The list to be prepared had to conform to the relative merit of 'proficiency' assessed by the appellant-Commission and also have regard to the requirement to provide reservations for the Schedule Caste, Schedule Tribes and other categories. As far as recommendation for appointment is to be made, the said sub-Rule further authorized the appellant-Commission to recommend 'such number' of candidates as it may consider 'fit' for appointment. The Rule therefore contemplated consideration to be made by the appellant-Commission as to fitness for appointment, from amongst the eligible candidates who may find mention in the overall merit list of 'proficiency'.

29. It is here, we are unable to persuade ourselves to the reasoning that found favour with the learned Single Judge. The learned Single Judge has reasoned, there did not exist any jurisdiction or authority with the appellant-Commission to introduce any additional condition or stipulation to recommend only those candidates (for selection) who may have obtained certain minimum marks in the examination conducted by the appellant-Commission. The criteria adopted by it of 40% and 30% marks as the minimum marks required for the eligible candidates to be considered fit for appointment, has been held to be contrary to the Rule 15(4).

30. As we read sub-rule (4) of Rule 15(4), we find, in the first place, the appellant-Commission was obliged to draw merit list of all eligible candidates based on the aggregate of marks obtained by them in the written examination conducted by it and the marks awarded to them based on their work experience. Thus, no eligible candidate who may have appeared in the written examination and no candidate who may have had work experience, could be excluded from such merit list. However, while drawing such merit list, the appellant-Commission was also bound to have regard to the need to provide due representation to the members of Schedule Castes, Schedule Tribes and other categories in accordance with Rule 6 of the Rules. Rule 6 of the Rules reads thus:

"6. Reservation for Scheduled Castes etc.- Reservations for the candidate belonging to Scheduled Castes, Scheduled Tribes, Backward Classes and other categories shall be in accordance with the orders of the Government in force at the time of the recruitment."

31. Therefore, for the purpose of giving effect to Rule 6 of the Rules, as noted above, it would be mandatory or necessary for the appellant-Commission to prepare a list which may disclose the inter-se merit position of each candidate. Unless such an exercise would be carried out by the appellant-Commission, it may not be able to give effect to Rule 15 (4) read with Rule 6 of the Rules so as to ensure due representation of candidates belonging to Scheduled Castes, Scheduled Tribes and other categories for whose benefit reservation may be found existing.

32. In view of the fact that the sub-Rule 4 itself does not simply provide that the appellant-Commission may prepare and send the entire list of candidates in order of their relative merit as may have been assessed by the appellant-Commission but, it further obligated it to make a recommendation from amongst that list of candidates, those it considered 'fit' for appointment, that exercise did involve assessment of such candidates as may warrant a recommendation to be made in their favour. A question therefore does arise as to powers, if any, conferred on the appellant-Commission to make such assessment and also as to the basis for making that recommendation in discharge of it's statutory function, under Rule 15(4) of the Rules.

33. In other words, the obligation placed on the appellant-Commission by Rule 15 was two-fold. First, it had to prepare separate merit list of eligible candidates, including therein all eligible candidates under different categories, on the basis of their inter-se merit position. Second, the appellant-Commission had to further adjudge the fitness of such of those candidates appearing in the merit list who may, in the opinion of the appellant-Commission, be recommended for appointment to the posts advertised.

34. This second aspect of Rule 15(4) has remained from being considered by the learned Single Judge. Once the statutory Rule itself obliged the appellant- Commission to recommend only such eligible candidates as it considered 'fit' for appointment, there survived no question of any lack of jurisdiction or authority on part of the appellant-Commission in engaging in that exercise and recommending only some but not all eligible candidates for appointment. Once the Rule had specifically conferred this function on the appellant-Commission, it did not arise for consideration, whether the appellant-Commission had abrogated to itself any powers in that regard. The appellant-Commission was legally obliged to engage in that exercise and it could not have absolved itself, leave alone been restrained from determining who amongst the eligible candidates, were 'fit' for appointment.

35. In the facts of the present case, the principle enunciated by the Supreme Court in the cases of Dr. Krushna Chandra Sahu & Ors. Vs. State of Orissa & Ors. (supra) and Durgacharan Misra Vs. State of Orissa & Ors. (supra) is in apposite, for the reason, Rule 15(4) of the (amended) Rules, as discussed above, clearly obliged the appellant-Commission to recommend only such number of candidates as it considered fit for appointment. That obligation made Rule 15(4) of the (amended) Rules, stand on a completely different footing to the Rules/law discussed by the Supreme Court in the aforesaid two decisions.

36. In Dr. Krushna Chandra Sahu & Ors. Vs. State of Orissa & Ors. (supra) itself, the complete principle laid down was that the Selection Board or the Selection Committee did not have any inherent jurisdiction to lay down the criteria for selection. However, it was made clear, such criteria may be laid down if such selecting body was specifically authorised in that regard by the Rules made under Article 309 of the Constitution of India. As a fact (in that case), it was found there was no such authorisation given to the Selection Board. Consequently, the action of the Selection Board to have considered the confidential character rolls of the eligible candidates, for the purpose of determining their suitability, was found to be without jurisdiction.

37. The Supreme Court found that the Selection Board had adopted a completely new criteria to determine suitability of eligible candidates by looking into their confidential character rolls, though the same was not permissible under the governing rules. In the instant case, no new or fresh material has been looked into and no new criteria had been created by the appellant-Commission to determine the suitability of eligible candidates.

38. As discussed above, under Rule 15(4) of the Amended Rules, the Commission was obliged to prepare merit list based on the aggregate marks obtained by each eligible candidate in the written examination as also on work experience basis. Further, in the event of two or more candidates obtaining equal marks, their inter-se seniority was to be determined by giving preference to the candidate older in age. That criteria alone had been applied by the appellant-Commission to determine who amongst the eligible candidates were fit for recommendation for appointment. No challenge has been raised that in making that recommendation, the inter-se seniority or suitability determined by the appellant-Commission had been disturbed or changed in violation of the aforesaid Rules contained in (amended) Rule 15(4) of the Rules.

39. In the case of Durgacharan Misra Vs. State of Orissa & Ors. (supra), the Commission/the selection body was held obliged to offer faithful compliance of the Rules. It was prohibited from prescribing any additional requirement either as to eligibility or as to suitability. In that case, the Orissa Judicial Service Rules did not prescribe any minimum qualifying marks to be secured at the viva voce test for selection on posts of Munsif. The Rule only provided the marks obtained in the viva voce to be added to the marks obtained in the written examination. In such statutory context, it was held that the Commission did not have the power to prescribe any qualifying or pass marks for the viva voce examination, for the purpose of determining the suitability of individual candidates.

40. The ratio in the case of Durgacharan Misra Vs. State of Orissa (supra) may also not be invoked to doubt the action of the appellant-Commission. Neither the appellant-Commission prescribed any pass marks for either part of the selection process i.e. for the written test or the marks to be awarded on the basis of work experience nor it excluded any candidate from the zone of consideration by adopting a new criteria or varied procedure of test. None of the petitioner-respondents has complained of any arbitrariness in the award of marks to an individual candidate. Thus, none has been excluded from the zone of consideration in the merit list/s prepared in compliance of first part of Rule 15(4) of the Amended Rules, though only the more meritorious had been found fit for appointment.

41. Those marks and merit position being undisputed, the principle contained in the case of Durgacharan Misra Vs. State of Orissa (supra) is wholly inapplicable inasmuch in that case the criteria had been set by the Commission to create a pass percentage for viva-voce examination. Thereby certain candidates stood excluded from the zone of consideration, though the aggregate marks obtained by them in the written examination and viva-voce examination may have entitled them to be considered for selection. Such are not the facts in the present case. Here, no separate pass or cut-off percentage had been set, either for the written examination or for the marks obtained on work experience basis. On the contrary, all marks obtained in the aforesaid two parts had been totaled for each candidate and their inter-se merit position had been set thereafter, on the basis of their individual aggregate marks and not on the basis of marks obtained either in the written examination alone or on the basis of marks obtained on work experience basis alone. Also, no eligible candidate has been shown excluded in the merit list/s prepared under first part of Rule 15(4) of the Amended Rules.

42. On the contrary in K.H. Siraj Vs. High Court of Kerala and Others, (2006) 6 SCC 395, the word 'suitable' used in Rule 7 of Kerala Judicial Services Rules, 1991 (hereinafter referred to as the 'Rules') invited an interpretation. Rule 7 of the Rules required the High Court of Kerala to hold examination (written and oral), and to prepare a list of candidates considered 'suitable' for appointment. For ready reference Rule 7 of the Kerala Judicial Services Rules, 1991 (as extracted in the report) is quoted below:

"7. Preparation of lists of approved candidates and reservation of appointments.--(1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to Category 2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained 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 the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier."

43. Though the Rule was silent, the High Court of Kerala evolved a procedure prescribing pass marks (in the examination conducted by it), as a criteria to adjudge the 'suitability' for grant of appointment. The same had been challenged as violative of the statute. The Supreme Court in paragraph nos. 49 and 50 held as below:

"49. .......The very use of the word "suitable" gives the nature and extent of the power conferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the judicial officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or in the higher categories of Subordinate Judge, Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected.

50. ........The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well-accepted norm to adjudge the merit 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 fully justified the prescription of the minimum eligibility condition in Rule 10 of the notification dated 26-3-2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as benchmark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high-powered body like the High Court to evolve its own procedure as it is the best judge in the matter. It will not be proper in any other authority to confine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high-powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. Reference in this connection may be made to the decision of this Court in Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC (L&S) 225] wherein an action of the Chief Justice of India was sought to be questioned before the High Court and it was held to be improper."

(emphasis supplied)

44. A question therefore arises as to the legality of the basis adopted by the appellant-Commission while making that recommendation. Even in that regard, Rule 15(4) offered a clear guiding principle to the appellant-Commission to make its recommendations based on merit. As a fact, the appellant-Commission had considered only the absolute merit of individual candidates in aggregate marks obtained by them out of a maximum of 100 marks (being 85 marks in the written examination and 15 marks for work experience). Therefore, in view of the stipulation contained in Rule 15(4) of the Rules requiring the appellant-Commission to recommend those considered fit for appointment, it was wholly competent for the appellant-Commission to set a bench mark based on the same stipulation of merit determined on aggregate marks scored in the selection process.

45. The appellant-Commission also did not examine any other or further material. The test of merit as contained in Rule 15(4) of the Rules itself, was applied. It was was wholly objective and in no part subjective. The appellant-Commission adopted an objective, reasonable, fair and transparent bench-mark. It neither chose to give weightage to marks obtained in the written examination nor it, preferred the marks obtained on the basis of work experience, to judge fitness or preference for grant of appointment. The appellant-Commission chose a wholly neutral, reasonable, fair and objective criteria of 40 marks (for general category candidates) and 30 marks (for reserved category candidates) of aggregate of marks awarded in the written examination and for work experience.

46. Therefore, in our opinion, there is no warrant to infer that an additional condition had been introduced by the appellant-Commission in adopting a merit based bench mark to make it's recommendation for appointment. There is no illegality in the same. There is no conflict in the action of the appellant-Commission and the Rules in that regard.

47. What therefore remains for consideration is the reasonableness or otherwise of the decisions of the Commission dated 24.12.1966, 05.02.2011 and 01.09.2018 i.e. whether they provide a reasonable and fair bench mark or guiding principle for the purpose of preparation of the list of candidates considered 'fit' for appointment. First, it is clear, those decisions/resolution/notification did not deprive or vary the absolute or relative merit position of any of the petitioner-respondents or any eligible candidate from his merit position, to which he may claim entitled. Second, since the list of candidates recommended for appointment was required to be prepared on the basis of merit based on aggregate marks alone, the measure adopted by the appellant Commission to consider only such candidates as fit for appointment who may have attained a minimum of 40% and 30% marks as a general category or reserved category candidate as the case may be, is wholly consistent with that stipulation contained in Rule 15(4) of the Rules.

48. As noted above, by creating the bench mark or cut-off at 40 percent of the aggregate marks, to determine the fitness for selection, the appellant-Commission also acted consistent with the well accepted norm in academics. It did not seek to put the bar any higher than the commonly accepted pass percentage. To accept anything lower than the pass percentage by way of a test of fitness may have called for a deeper scrutiny as to its reasonabilty. A person who may not have 'passed' an examination may not be generally considered fit or suitable for further progress either in academics (at any level) or for appointment.

49. Any examination, in the first place seeks to test the retention, understanding and application of studies or knowledge that may have been imparted or acquired by those taking that examination. The proficiency that the appellate-Commission was obliged to test to make its recommendation as to fitness for appointment, had to be amongst those meeting some minimum standards. If that minimum requirement were to be ignored, the criteria of fitness would remain largely untested or meaningless. Any candidate who may who may have been asked to secure a minimum 40 percent marks in such examination to establish his fitness for appointment cannot be heard to complain of any unreasonableness in selection of that bench mark or cut-off mark.

50. To put it in other words, a candidate who may have failed in an examination may never claim to be considered for further promotion in any academic course. So also, a candidate seeking selection to a post who may have failed to obtain a certain minimum pass marks may never be heard to complain that he had not been found fit for selection or recommendation for appointment. In short, the bench mark or the cut-off mark of 40 percent and 30 percent as chosen by the appellant-Commission, and which was duly notified and applied across the board to all candidates, cannot be doubted or questioned as arbitrary or unreasonable.

51. Seen in that light, irrespective of the fact that the decision of the appellant Commission dated 24.12.1966 or 05.02.2011 may never have been adapted by it after the enforcement of the Rules, the same did not fell foul with the Rules inasmuch as they never sought to lay a new or different eligibility condition contrary to the Rules. In fact, the notification dated 01.09.2018 is plainly consistent and it complements the Rules.

52. Unless that criteria had been adopted, it may not have been possible for the appellant-Commission to recommend any eligible candidate as 'fit for appointment', in an objective, transparent and/or fair manner. Also, by adopting such merit consideration, that too at a minimal level of 40% and 30% of the aggregate marks, the appellant-Commission applied a well recognized prevalent norm in academics being the commonly accepted minimum pass percentage. Any student, at any levels of school and higher education would be aware and conscious of existence of such a norm and practice. In any case, it is not the case of petitioner-respondents that the measure so adopted was in any way arbitrary or unreasonable so as to exclude the otherwise meritorious candidates. Therefore, that issue does not arise in the present case.

53. We are further of the considered opinion the said notification was necessary to declare and make known to all concerned the objective criteria adopted by the appellant-Commission to make its recommendation from amongst the eligible candidates, for grant of appointment. Such fair conduct of the appellant Commission did not and it cannot be doubted either as a fresh eligibility condition enforced by it, of its own or as an unreasonable condition.

54. Consequently, the present intra-Court appeal must succeed and it is allowed. The writ petition giving rise to the present special appeal is accordingly dismissed. No order as to costs.

Order Date: March 5, 2019

S. Chaurasia/Abhilash/Prakhar