Delhi High Court

Rajender Kumar & Another vs The High Court Of Delhi & Another on 21 February, 2011

Author: Badar Durrez Ahmed

                THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 21.02.2011

+               WP (C) 607/2011

RAJENDER KUMAR & ANOTHER                                      ... Petitioners


                                       Versus


THE HIGH COURT OF DELHI & ANOTHER                             ... Respondents

Advocates who appeared in this case:

For the Petitioners : Mr V. Shekhar, Sr Advocate with Ms Abhigya, Mr C.B. Sharma and Ms Deepakshi Jain For the Respondent No.1 : Mr Rajiv Bansal

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE MANMOHAN SINGH

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition has been filed by two candidates, who had

appeared in the Delhi Judicial Service Examination 2010 under the

„Scheduled Castes‟ category, but were unsuccessful because they did not

obtain the minimum prescribed marks of 45% in the viva-voce test,

although they had cleared the preliminary examination as well as they had

qualified for being called for the interview. The petitioners are, inter alia,

seeking a mandamus directing the respondent No.1 (Delhi High Court) to

consider the petitioners as qualified and selected and to subsequently

appoint them to the posts of Civil Judge or Metropolitan Magistrate, as the

case may be. The petitioners also seek a direction that the entire recruitment

procedure adopted during the Delhi Judicial Service Examination 2010 be

declared as null and void and that all the selections made pursuant thereto

be struck down inasmuch as, according to them, the recruitment procedure,

at least insofar as the Scheduled Caste candidates are concerned, suffered

from serious infirmities. Consequently, they seek a writ directing the High

Court to undertake fresh recruitment.

2. On 26.10.2009, a public notice was issued by the respondent

No.1 indicating that the Delhi Judicial Service Examination would be held

in two successive stages. The first was to comprise of a preliminary

examination and, the second stage, of a main written examination for the

purposes of selecting the candidates for calling them for the viva-voce test.

The number of vacancies, which were required to be filled as per the said

notification, were as under:-

"The number of vacancies to be filled is as under:-

          Category      No. of Remarks
                        posts
          General       27


          Physically    05         01 vacancy carried forward and
          handicapped              advertised for the fifth time.
          (Blind / Low             01 vacancy carried forward and
          Vision)                  advertised for the third time.
                                   02 vacancy carried forward and
                                   advertised for the second time.
                                   01 vacancy being advertised for
                                   the first time.

3. It is an admitted position that both the petitioners cleared the

preliminary examination. They also sat in the main written examination, the

result of which was declared on 02.11.2010. The petitioner No.1 (Rajender

Kumar) was shown at S.No.211 and had obtained 437.5 marks out of a total

of 850 marks and was declared as qualified for the purpose of being called

for the viva-voce test. The petitioner No.2 (Rakesh Kumar) was shown at

S.No.216 and it was indicated that he had obtained 415.5 marks out of 850

and was also qualified for the viva-voce test.

4. On 26.11.2010, the respondent No.1 took out a notice indicating

the interview schedule. Both the petitioners were called for interview on

13.12.2010. On 24.12.2010, the respondent No.1 notified the final result of

the candidates in order of merit prepared by the Selection Committee on the

basis of the said competitive examination. The marks obtained by the

candidates in the written examination as well as the viva-voce test were also

mentioned in the said notice. The petitioner No.1‟s name appeared at

S.No.120. He had obtained, as aforesaid, 437.5 marks out of 850 in the

written examination and in the viva-voce test, he obtained 65 marks out of a

maximum of 150 marks. His total came to 502.5 marks out of 1000.

Similarly, the petitioner No.2 (Rakesh Kumar), whose name appeared at

S.No.127, obtained 63 marks out of a maximum of 150 marks in the viva-

voce test and thereby he obtained a total of 478.5 out of a maximum of 1000

marks. However, both of them were declared as not qualified for selection

because they did not clear the minimum percentage marks of 45% in the

viva-voce test. Consequently, the petitioners were not selected. Being

aggrieved by this, the petitioners have filed the present petition for the

reliefs mentioned above.

5. The learned counsel for the petitioners made three submissions.

The first submission was that the viva-voce test could not have any

prescribed minimum marks. He placed reliance on the decision of the

Supreme Court in the case of Ramesh Kumar v. High Court of Delhi &

Another: 2010 (3) SCC 104 as well as on the Shetty Commission report to

submit that no minimum marks can be prescribed in the case of a viva-voce

test.

6. The second submission of the learned counsel for the petitioners

was that the backlog of vacancies of the Scheduled Caste candidates had not

been indicated and, therefore, this was a serious infirmity in the selection

process.

7. The third plea taken by the petitioners was that the constitution

of the Selection Committee, which took the viva-voce test, was not in

accordance with law. He also submitted that the Selection Committee,

which admittedly was in terms of Rule 7 of the Delhi Judicial Service Rules,

1970 (hereinafter referred to as the „DJS Rules‟), was contrary to the Office

Memorandum dated 04.06.2010, wherein it was specifically mentioned that

where the number of vacancies are in excess of 10, there must be at least

one member of the Scheduled Caste / Scheduled Tribe as well as of a

minority community in the Selection Committee. He submitted that it is an

admitted position that the Selection Committee, which took the viva-voce

test in this case, did not comprise of any SC / ST or a minority community

member and, therefore, the selection was bad. The learned counsel placed

reliance on Rule 28 of the DJS Rules to submit that the recruitment was

subject to orders issued by the Central Government from time to time. He,

therefore, submitted that the Office Memorandum dated 04.06.2010 had

been contravened and, therefore, the Selection Committee was not duly

constituted.

8. Mr Bansal, appearing on behalf of the Delhi High Court

(respondent No.1), submitted that the argument with regard to a minimum

percentage mark being prescribed for the viva-voce examination is no

longer available to the petitioners in view of the clear decision of this court

in the case of Kunal Kishor and Another v. Lt. Governor and Another

[WP(C) 10787/2009 decided on 21.05.2010]. Secondly, he submitted that

insofar as the issue of backlog is concerned, 14 SC vacancies and 14 ST

vacancies were advertised on 26.10.2009 for the examination in question.

These included 5 backlog vacancies of the SC category and 10 backlog

vacancies of the ST category. Thirdly, Mr Bansal submitted that the

constitution of the Selection Committee was strictly in accordance with

Rule 7 of the DJS Rules and, therefore, was valid in law. He submitted that

the O.M. dated 04.06.2010 would not have any applicability to the

constitution of the Selection Committee in view of the fact that the rules

specifically provided for the same. He also submitted that Rule 28 operated

in a different field and it dealt with the issue of „special representation‟ and

„other concessions‟ and not in the field of the constitution of the Selection

Committee. Furthermore, he drew our attention to Rule 33 of the DJS Rules

which dealt with residuary matters. On the strength of the said Rule 33, he

submitted that it is only when the rules were silent that the other rules or

orders, which were applicable to Government Servants holding

corresponding posts in connection with the affairs of the Union of India,

would regulate the conditions of such service. In the present case, the DJS

Rules were clear and explicit and, therefore, the said O.M. dated

04.06.2010, in any event, had no application.

9. Having considered the arguments advanced by the counsel for

the parties, we are in agreement with the submissions made by Mr Bansal

that the first issue with regard to minimum marks being prescribed for the

viva-voce examination already stands settled by virtue of the decision of

another Division Bench of this court in the case of Kunal Kishor (supra).

That decision also referred to the Supreme Court decision in the case of

Ramesh Kumar (supra) and came to the conclusion that prescription of

minimum marks in the viva-voce test would be erroneous in the absence of

any statutory rules in that behalf. The Division Bench observed as under:-

"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."

10. It is, therefore, clear that once there are statutory rules which

prescribe minimum marks for viva-voce, it cannot be contended that those

minimum marks would not be applicable. A reference to paragraph 13 of

the Supreme Court decision in the case of Ramesh Kumar (supra) would

also clarify this. The same reads as under:-

"13. In Durgacharan Misra v. State of Orissa and Ors.: 1987 (4) SCC 646, this Court considered the Orissa Judicial Service Rules which did not provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling provision for fixation of minimum marks in interview would amount to amending the rules itself. While deciding the said case, the Court placed reliance upon its earlier judgments in B.S. Yadav and Ors. v. State of Haryana and Ors.: 1980 Supp SCC 524, P.K. Ramachandra Iyer and Ors. v. Union of India and Ors. 1984 (2) SCC 141 and Umesh Chandra Shukla v. Union of India and Ors.: 1985 (3) SCC 721, wherein it had been held that there was no "inherent jurisdiction" of the Selection Committee / Authority to lay down such norms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. "inherent jurisdiction" is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."

(underlining added)

From the above, it is clear that in case the statutory rules prescribe a

particular mode of selection, it has to be given strict adherence accordingly.

11. Rule 15 of the DJS Rules clearly stipulates that syllabus for the

examination and the fee payable shall be as detailed in the Appendix to the

Rules. Rule 17 also stipulates that for the viva-voce test, the Selection

Committee shall call only those candidates who have qualified in the written

test as provided in the Appendix. The Appendix to the said Rules

prescribes the syllabus as well as the other details with regard to the break-

up of marks and the minimum qualifying marks. With regard to the viva-

voce, the Appendix prescribes the following:-

"5) Viva-Voce : Viva-Voce will carry 150 marks. Only such candidates will be called for viva- voce who have obtained 40% marks in each written paper and 50% marks in the aggregate except in the case of candidates belonging to reserved categories i.e. Scheduled Castes, Scheduled Tribes and Physically Handicapped (Blind/Low Vision) (mobility not to be restricted) / Orthopaedically in whose case the qualifying marks shall be 35% in each written paper and 45% in the aggregate.

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.

12. Thus, the DJS Rules clearly stipulate that a candidate of the

General Category must secure in the minimum 50% marks and a candidate

of the reserved category, which includes the Scheduled Castes / Schedule

Tribes, must secure a minimum of 45% marks in viva-voce to be eligible for

being recommended for appointment to the service. Clearly, the stipulation

of minimum marks in the viva-voce is provided for in the statutory rules.

Therefore, the contention of the learned counsel for the petitioners cannot

be accepted in view of the clear decisions of the Supreme Court in the case

of Ramesh Kumar (supra) and of this court in the Kunal Kishor (supra).

The minimum marks for viva-voce have been prescribed by the statutory

rules and have to be strictly adhered to.

13. The grievance with regard to the backlog of vacancies does not,

in any event, survive because the petitioners have not crossed the threshold

of obtaining the minimum marks. In any event, the learned counsel

appearing for the respondent No.1 has clarified the position with regard to

backlog and has stated that there were 5 SC vacancies and 10 ST vacancies

which were in arrears and which were included in the advertised 14 SC and

14 ST vacancies for the Delhi Judicial Service Examination 2010.

14. We now come to the third and last contention made on behalf of

the petitioners and that is with regard to the applicability of the O.M. dated

04.06.2010. Here again, we are in agreement with the submission made by

Mr Bansal appearing on behalf of the respondent No.1 that Rule 28 of the

DJS Rules cannot be pressed into service by the petitioners for applying the

said O.M. dated 04.06.2010. Rule 28 reads as under:-

"28. Recruitment made to the service by competitive examination shall be subject to orders regarding special representation and other concessions for the schedule Castes and Schedule Tribes and ex-servicemen including Emergency Commissioned Officers and Short Service Commissioned Officers issued by the Central Government from time to time."

It is clear from a plain reading of the said Rule that the recruitment made to

the service by competitive examination is subject to orders regarding (a)

"special representation" and; (b) "other concessions" pertaining to

Scheduled Castes and Scheduled Tribes, etc. Insofar as "special

representation" is concerned, that has already been taken care of by

reserving 14 vacancies for the Scheduled Castes and 14 vacancies for the

Scheduled Tribes. As regards the "other concessions", that has also been

taken care of by relaxing the minimum qualifying marks from 50% to 45%.

It is only to the extent of „special representation‟ and „other concessions‟

that the said Rule 28 makes the recruitment to the service subject to orders

of the Central Government. It does not mean that the entire recruitment

process, including the constitution of the Selection Committee, would be