Kunal Kishor & Anr. vs Lt.Governor & Anr.
2010 Latest Caselaw 2711 Del

        *                IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                    Reserved on      : 12.05.2010
        %                                           Date of decision :21.05.2010


        +                             WP (C) No.10787/2009


        KUNAL KISHOR & ANR.                     ......      ...       ...       ...PETITIONERS

                             Through :          Mr.Nagendra Rai, Sr.Adv. with
                                                Mr.Praveen Kumar, Advocate

                                         -VERSUS-


        LT.GOVERNOR & ANR. ...                    ...       ...       ...       RESPONDENTS

                             Through :          Mr.Mirza Aslam Beg, Advocate
                                                for Ms.Sonia Sharma, Advocate
                                                for R-1.

                                                Mr.Viraj R.Datar and Mr.Chetan
                                                Lokur, Advocates for R-2.

        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON‟BLE MS. JUSTICE VALMIKI J. MEHTA


        Whether the Reporters of local papers
        may be allowed to see the judgment?                     YES

        To be referred to Reporter or not?                      YES

        Whether the judgment should be                          YES
        reported in the Digest?


        SANJAY KISHAN KAUL, J.

1. The petitioners, who were desirous of joining the Delhi

Judicial Service, are aggrieved by the application of the

rule of minimum qualifying marks in the viva voce of

Delhi Judicial Service Examination, 2008 („DJS

Examination, 2008‟ for short).

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2. The Registrar of Delhi High Court issued an

advertisement on 25.08.2008 for holding the Delhi

Judicial Service Examination. The number of vacancies

was set out as 36 with the provision for possible filling-

up of 50 more posts in case there are additional seats

which were created.

3. The examination was in a three-part format with a

preliminary examination, main examination and a viva

voce. The minimum qualifying marks were prescribed

for the preliminary examination as 60 per cent for the

General Category and 55 per cent for the Reserved

Categories subject to a ceiling limit of 10 times the total

number of vacancies of each category advertised. Such

of the persons who would qualify the preliminary

examination would be invited to take the main

examination and such of the candidates who in the main

examination would obtain 40 per cent marks in each

written paper and 50 per cent marks in the aggregate

for the General Category candidates and 35 per cent in

each written paper and 45 per cent marks in the

aggregate for the Reserved Category Candidates would

be eligible to be called for viva voce. The viva voce

marks were to be added to the marks obtained in the

main examination to compute the merit list.

4. The controversy in the present matter revolves around

the second norm specified in Part IV of the Instructions

to DJS Examination, 2008 dealing with viva voce which

reads as under:

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"A candidate of general category must secure minimum 50% marks and a candidate of reserved category i.e. Scheduled Castes, Scheduled Tribes and Physically Handicapped (Blind/Low Vision) (mobility not to be restricted)/ Orthopaedically must secure minimum 45% marks in viva voce to be eligible for being recommended for appointment to the service."

5. The effect of the aforesaid thus is that a minimum

benchmark has been separately provided in viva voce

for a candidate to be able to figure in the merit list

irrespective of the marks obtained in the main

examination.

6. The preliminary examination in respect of DJS

Examination, 2008 was held on 02.11.2008 and a list of

255 candidates, who had qualified to appear for the

main examination, was declared. The main examination

was conducted on 21/22.12.2008 in which petitioner

No.1 and petitioner No.2 obtained 476 and 478.5 marks

respectively out of a total of 850 marks & 150 marks

were separately provided for viva voce. The viva voce

was conducted on 24.04.2009 and 25.04.2009. The

final list of 81 candidates was published on 21.05.2009

who were recommended for appointment to the Delhi

Judicial Service.

7. The grievance of the petitioners is that the last

candidate in the merit list had secured a total of 508

marks with 425 marks in the main examination and 83

marks in the viva voce while the petitioners had secured

more marks than that candidate but still did not figure in

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the merit list. The petitioner No.1 and petitioner No.2

had secured a total of 548 and 540.5 marks respectively

in the DJS Examination, 2008. The reason for the same

was that the petitioners failed to secure the minimum 50

per cent marks in the viva voce as per the

advertisement dated 15.12.2008. This has given rise to

the present writ petition under Article 226 of the

Constitution of India.

8. The grievance of the petitioners is that the Delhi Judicial

Service Rules, 1970 („the DJS Rules‟ for short) were

amended by the Delhi Judicial Service (Amendment)

Rules, 2008 („the said Rules‟ for short) only on

15.12.2008. The requirement of a minimum of 50 per

cent marks in the viva voce for the General Category

and 45 per cent marks for the Reserved Category was

provided in terms of the said Rules. The examination

process had already begun in August, 2008 with the

preliminary examination being held prior to the

amendment to the DJS Rules and thus such an

amendment would have no application to the

examination conducted for the year 2008.

9. In order to appreciate this controversy, it is necessary to

look to certain pronouncements dealing with this aspect

as the endeavour to introduce minimum marks for viva

voce by the Delhi High Court has had a chequered

history.

10. At the stage of recruitment of officers to the Delhi

Higher Judicial Service Examination, 2006, there was no _____________________________________________________________________________________________

provision made for minimum marks separately for viva

voce and the prescribed minimum marks were only for

written test. However, at the stage of viva voce,

minimum marks were prescribed for viva voce. As a

consequence thereof, two candidates who did not obtain

the minimum marks in the viva voce challenged the

prescription of such minimum marks mid-stream for viva

voce by filing a writ petition under Article 32 of the

Constitution of India before the Supreme Court. The

decision came to be rendered in Hemani Malhotra v.

High Court of Delhi and connected matters; (2008) 7

SCC 11. The Supreme Court came to the conclusion that

it was not permissible to change the rule of the game

midway through the selection process or when it is over.

It was further held that even otherwise this course of

action was not permissible for appointment to Delhi

Higher Judicial Service as it was contrary to the

recommendations of Justice Shetty Commission Report,

as approved with certain modifications in All India Judges

Association v.Union of India; (2002) 4 SCC 247 where it

is expressly provided that there should be no cut off

marks for viva voce.

11. The second important pronouncement in this

regard was in the recent judgment of Ramesh Kumar

v.High Court of Delhi & Anr.; 2010 (2) SCALE 86 (=2010

3 SCC 104). This case deals with an advertisement

issued in 2007 in respect of Delhi Higher Judicial Service.

The prescription of minimum marks for the viva voce _____________________________________________________________________________________________

was this time prescribed in the advertisement itself.

This was again sought to be challenged by the two

petitioners by filing a writ petition under Article 32 of the

Constitution of India. The High Court sought to defend

the decision this time by contending that the decision for

fixing the cut off marks in the written test and for further

securing the minimum benchmark in the viva voce had

been taken prior to initiation of the selection process and

was made public at the same time. This selection

process at that stage was never challenged and the

petitioners cannot be permitted to challenge the

selection process after having appeared in the

examination. The minimum benchmark was stated to

have been fixed under the provisions of Rule 10 of the

DJS Rules which reads as under:

"The High Court shall before making recommendations to the Administrator invite applications by advertisement and may require the applicants to give such particulars as it may prescribe and may further hold such tests as may be considered necessary."

(Emphasis supplied)

12. The Supreme Court analyzed the legal position by

considering various judgments. The legal principle as

set out in para 13 reads as under:

"13. Thus, law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum Bench Marks for written test as well as for viva-voce."

_____________________________________________________________________________________________

13. The Supreme Court thereafter proceeded to

analyze the effect of acceptance of the Justice Shetty

Commission Report, as approved with certain

modifications in All India Judges Association v.Union of

India‟s case (supra) for not having minimum marks for

viva voce. It has also been observed that where

statutory rules had not dealt with a particular

subject/issue insofar as the appointment of judicial

officers is concerned, directions issued by the Supreme

Court would have binding effect in view of Article 141 of

the Constitution of India. Thus, the prescription of

minimum marks in the viva voce was held to be

erroneous in the absence of any statutory rule in that

behalf. The defence based on the petitioners having

participated in the examination was dealt with in para 17

of said judgment, which reads as under:

"17. In pursuance of those directions, the Delhi High Court offered the appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle. In such a fact- situation, the question of acquiescence would not arise."

14. The upshot of the aforesaid judgment thus is that

unless there are statutorily specific rules providing for

minimum marks for viva voce, the existing rules would

not permit such minimum marks for viva voce to be

prescribed.

_____________________________________________________________________________________________

15. We may notice at this stage that undisputedly the

amendment to the DJS Rules was notified on 15.12.2008.

There was no challenge laid to the amendment. It can

thus be safely assumed that after 15.12.2008 there is no

prohibition in prescribing the minimum marks for viva

voce. The question, however, remains as to whether

such an amendment (which has no retrospective effect)

would apply to the DJS Examination, 2008 where the

advertisement prescribed such minimum marks for viva

voce and where the preliminary examination was held

prior to the notification, but the main examination and

viva voce have been conducted after the notification of

the said Rules.

16. It is the case of the petitioners that the

amendment to the DJS Rules being prospective in

nature, application of the same to the DJS Examination,

2008 would not be permissible and the DJS Examination,

2008 has to be governed by the rules existing prior to

the amendment. On the other hand, learned counsel for

the respondents have contended that all the candidates

were put to notice of the proposed amendment by

incorporating the relevant condition in the

advertisement itself and the issuance of the notification

was a ministerial act. It has been further pleaded that

the main examination and viva voce have been

conducted after the notification.

17. Learned counsel for R-1 also sought to explain the

historical process of such amendment to the rules. The _____________________________________________________________________________________________

amendment in the appendix to the DJS Rules was

recommended by the relevant committee of the High

Court on 22.07.2008 and the recommendations were

approved on 01.08.2008. A letter was sent to the Govt.

of NCT of Delhi for notifying the amended appendix on

12.08.2008. The advertisement was issued on

25.08.2008 after completion of the aforesaid process.

The preliminary examination was held on 02.11.2008

and the notification for amendment was issued on

15.12.2008. The remaining process of examination has

been completed after that date.

18. In order to canvass their respective pleas in the

aforesaid short compass, learned counsel for the parties

referred to certain pronouncements.

19. Learned counsel for the petitioners relied upon the

judgment in P.Mahendran and Ors. v. State of Karnataka

and Ors; AIR 1990 SC 405 in respect of appointment of

motor vehicle inspectors where it was observed that the

selection process is to be complete in accordance with

law as it stood at the commencement of the process of

selection and the amended rule would not invalidate the

selection already made. The amendment to the rules

had been made changing the eligibility criteria during

the process of selection and the rules had no

retrospective effect. The selection of candidates already

made was thus held as not effected. In Malik Mazhar

Sultan and Anr.v. UP Public Service Commission & Ors.;

(2006) 9 SCC 507, in para 21, it has been observed that _____________________________________________________________________________________________

where excluded candidates were of eligible age as per

the advertisement, the recruitment to the service could

only be made in accordance with the rules and the error

if any in the advertisement could not override the rules

and create right in favour of a candidate otherwise not

eligible in accordance with the rules.

20. Learned counsel for the respondents on the other

hand referred to the observations made in paras 18 and

19 in Union of India & Ors. v. S.Vinodh Kumar & Ors.;

(2007) 8 SCC 100 to canvass the proposition that the

candidates who had taken part in the selection process

knowing fully well the procedure laid down therein were

not entitled to the question the same. This judgment in

turn had relied upon the observations in Chandra

Prakash Tiwari and Ors. v.Shakuntala Shukla & Ors;

(2002) 6 SCC 127 to the effect where it was held that

only because the result of the interview is not 'palatable'

to a candidate, he cannot turn round and subsequently

contend that the process of interview was unfair or there

was some lacuna in the process.

21. Learned counsel for the respondents also referred

to the judgment in Union of India & Anr. v.

N.Chandrasekharan & Ors. ; AIR 1998 SC 795 to contend

that the weightage given to an interview cannot be

termed as arbitrary or violative of Articles 14 and 16 of

the Constitution of India and where a candidate is made

aware of the procedure before he appears for the written

test and before DPC, subsequently a plea cannot be _____________________________________________________________________________________________

permitted to be raised that the marks allotted to

interview and ACR was unduly disproportionate or that

authorities cannot fix minimum marks to be secured in

an interview or in ACR. In Madan Lal & Ors. v. The State

of Jammu & Kashmir and Ors.; JT 1995(2) SC 291, once

again it was observed that only because the result of an

interview is not palatable to a candidate, he cannot turn

around and subsequently contend that the process of

interview as unfair and that the result of an interview

test on merits cannot be successfully challenged by a

candidate who takes a chance to get selected at the

interview and who ultimately finds himself to be

unsuccessful.

22. The second set of judgments cited by learned

counsel for the respondents are on the issue of

applicability of the said Rules. In High Court of Gujarat

& Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors;

AIR 2003 SC 1201, the proposed recruitment rules were

framed by the High Court were pending approval with

the Government. The appointment offered to a

candidate in accordance with the draft rules was held

not to be violative of Articles 14 and 16 of the

Constitution of India. In that context, the observations of

S.B.Sinha, J. in para 27 are as under:

"27. It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the _____________________________________________________________________________________________

near future (See Vimal Kumari v. State of Haryana and others reported in (1998) 4 SCC

114)."

23. In Delhi Judicial Services Association and Ors. v.

Delhi High Court and Ors.; (2001) 5 SCC 145 the

selection to Delhi Higher Judicial Service in the light of

draft rules and in anticipation of sanction of the draft

rules was held to be valid and the screening of

applications received in response to an advertisement

issued in anticipation of sanction of draft rules was

directed to save time.

24. In Vimal Kumari v. State of Haryana & Ors.; (1998)

4 SCC 114, it was held that draft rules cannot be

enforced for recruitment observing that it was open to

the Government to regulate the service conditions of the

employees for whom the rules are made by those rules

which are even in their draft stage provided there is

clear intention on the part of the Government to enforce

those rules in the near future. Recourse to such draft

rules is permissible in the interregnum period to meet

the emergent situations. Similarly in Abraham Jacob

and Ors. v. Union of India; (1998) 4 SCC 65 since

statutory rules had not come into force, promotions

given on the basis of provisions contained in the draft

rules by virtue of an administrative order of the

Government was found permissible.

25. We have given our deep thought to the matter

especially as the issue relates to the selection of persons

to the judicial service. The endeavour is to get the best _____________________________________________________________________________________________

persons eligible as its impact is felt over a long period of

time during which a judicial officer performs his duties.

The citizens look to the judiciary for redressal of their

grievances and the best talent available only must thus

be recruited. In this context, the importance of a viva

voce can hardly be not emphasized. The knowledge of

law is essential but certain other parameters including

the ability to appreciate law and finer points as

compared to mere bookish knowledge can often emerge

only during a viva voce. It is in this background that not

only a certain percentage of marks prescribed for viva

voce but a minimum benchmark to be achieved in viva

voce is also sought to be prescribed by way of

amendment to the DJS Rules.

26. There is no doubt that however salutary be the

objective, it must be done in accordance with law. Thus,

an endeavour to mid-stream change the rules of the

game was frowned upon by the Supreme Court in

Hemani Malhotra v. High Court of Delhi and connected

matters‟ case (supra). Thereafter, the High Court

mistakenly thought that the powers vested under Rule

10 of the DJS Rules sufficiently empower it to prescribe

the minimum marks in the viva voce for the year 2007.

27. In any case, insofar as the examination for the DJS

Examination, 2008 is concerned, steps were taken to

incorporate the intention by amendment to the DJS

Rules. After due deliberations, the recommendation to

amend the DJS Rules was made on 22.07.2008 and the _____________________________________________________________________________________________

Full Court approved the same on 01.08.2008.

Thereafter, the said Rules were forwarded for being

notified. The fact that the Govt. of NCT of Delhi had no

objection is apparent from the notification of the

amended appendix/Rules on 15.12.2008. However, in

anticipation of the notification, in order to not delay the

recruitment and in an endeavour to meet the mandates

of various pronouncements of the Supreme Court for

yearly recruitment, the process for DJS Examination,

2008 was put in motion by issuing the advertisement.

The advertisement clearly provided for such minimum

marks to be prescribed in the interview. Thus, not only

were all prospective candidates put to notice of the

prescription of minimum marks to be obtained in viva

voce, but the amendment to the DJS Rules also came

into place soon after the process of recruitment was put

into motion and admittedly prior to the written

examination and the viva voce.

28. It is also no doubt true that normally any

amendment to the rules would have prospective effect.

The rules do not provide for any retrospective

application. It is in this context that learned counsel for

the petitioners had referred to the judgment in

P.Mahendran and Ors. v. State of Karnataka and Ors‟s

case (supra). However, in Malik Mazhar Sultan and

Anr.v. UP Public Service Commission & Ors.‟s case

(supra) certain observations were made that only a

mistake in advertisement would not make a candidate _____________________________________________________________________________________________

eligible if rules do not provide so. It would not have any

application in the present case as there was no mistake.

29. It is in the aforesaid context that the judgment

cited by learned counsel for the respondents in respect

of the draft rules being sent for issuance of notification

and the same being acted upon by the Govt. of NCT of

Delhi become material. As noticed in High Court of

Gujarat & Anr. v. Gujarat Kishan Mazdoor Panchayat and

Ors‟s case (supra), the appointments made in

pursuance to the draft rules was upheld. The

observations of S.B.Sinha, J. in the said case that rules

even at their draft stage can be acted upon provided

there is a clear intention on the part of the Government

to enforce those rules in the near future, become

material in the present case. The relevant dates given

aforesaid shows that the recommendation to the Govt.

of NCT of Delhi had already been sent and the same was

acted upon by the Govt. of NCT of Delhi by issuing a

notification within a period of about three months. It is

not as if the draft rules were at a nascent stage and

were sought to be acted upon. (Re: observations of

S.B.Sinha, J.). The other judgments in Delhi Judicial

Services Association and Ors. v. Delhi High Court and

Ors.‟s case (supra), Vimal Kumari v. State of Haryana &

Ors.‟s case (supra) and Abraham Jacob and Ors. v. Union

of India‟s case (supra) also set forth the same principle

that where the intention of all the parties is clear and

draft rules are in the process of being brought into force, _____________________________________________________________________________________________

the mere fact that on the relevant date the draft rules

were not in force, would not negate the process of

recruitment based on the same. The intent in the

present case was clear to bring the amendment into

force as the process of consultation and discussion in the

High Court was over prior to the issuance of notification

of DJS Examination, 2008 on 25.08.2008 and the matter

was already with the Govt. of NCT of Delhi for issuance

of a notification well before the date of the main

examination and the viva voce.

30. The High Court did not wait for the pronouncement

in Ramesh Kumar v.High Court of Delhi & Anr‟s case

(supra) but the process of amendment had started much

earlier. The judgment was pronounced on 01.02.2010

while the process of amendment was complete and

recommendations made prior to even the issuance of

advertisement in August, 2008.

31. No doubt in Ramesh Kumar v.High Court of Delhi &

Anr.‟s case (supra), the factum of the candidates having

participated in the selection process did not come in the

way of their being granted the relief. This was,

however, so because the norms sought to be applied

were found to have no sanction under the rules.

However, the observations made in Union of India & Ors.

v. S.Vinodh Kumar & Ors.‟s case (supra) relying upon the

observations in Chandra Prakash Tiwari and Ors.

v.Shakuntala Shukla & Ors‟s case (supra) as also the

observations in Madan Lal & Ors. v. The State of Jammu _____________________________________________________________________________________________

& Kashmir and Ors.‟s case (supra) emphasizing the

importance of participation in an examination to negate

a relief cannot be ignored. The petitioners in the present

case knew that the existing rules did not provide for

such minimum marks in viva voce though the

advertisement sought to provide for the same. They

were also aware that in December, 2008, the

amendment came into force and thus the intention was

to apply the amendment to the examination of 2008.

The petitioners participated in the examination and the

viva voce but on their non-selection on account of not

having obtained minimum marks in the viva voce,

sought to rake up this issue in the present petition. The

petitioners were thus fully conscious that the rules now

mandate obtainment of minimum marks in viva voce,

appeared for the viva voce but on being unsuccessful

seek to raise the issue of cut off date for application of

viva voce.

32. We find that the conduct of the petitioners in

continuing to participate in the main examination and

viva voce without challenging the same would also stand

in their way.

33. We are thus of the considered view that the said

Rules for which the process was completed prior to the

issuance of the advertisement but the formal notification

was issued post advertisement and preliminary

examination but pre the main examination and viva

voce, would apply to the selection process of 2008 for _____________________________________________________________________________________________

which results were declared in May, 2009. We may also

notice that the subsequent examination of 2009 has also

been held for which the preliminary examination is over

and the main examination is due in June, 2010.

34. We thus dismiss the writ petition leaving the

parties to bear their own costs.

SANJAY KISHAN KAUL, J.

        MAY 21, 2010                                    VALMIKI J.MEHTA, J.
        dm

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