Madhya Pradesh High Court
Anil Kumar Namdev vs The High Court Of Madhya Pradesh on 5 September, 2022
Author: Sheel Nagu
IN THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
WRIT PETITION No. 17195 of 2022
Between:-
1. RICHI VERMA D/O SHRI GOPALSHARAN
VERMA, AGED ABOUT 29 YEARS, 116 HUDKO
COLONY NEEMUCH (MADHYA PRADESH)
2. DIMPAL CHOUDHARY D/O SHEKHAR
CHOUDHARY, AGED ABOUT 29 YEARS,
BEHIND RANJIT HANUMAN 1365 SCHEME
NO. 71 SECTIOR -B VTC SUDAMA NAAR
INDORE (MADHYA PRADESH)
3. SHARUKH KHAN S/O RIYAZ KHAN 55
BEGAMBAG COLONY HONBATAK ROAD
DISTRICT UJJAIN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJMANI SINGROUL, ADVOCATE)
AND
1. THE HIGH COURT OF MADHYA PRADESH
THROUGH ITS REGISTRAR GENERAL
JABALPUR (MADHYA PRADESH)
2. THE STATE OF M.P. THROUGH ITS
SECRETARY LAW AND LEGISLATIVE
AFFAIRS DEPARTMENT FIRST FLOOR
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VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI ADITYA ADHIKARI,
SENIOR ADVOCATE WITH SHRI EIZAZ SIDDIQUI
RESPONDENT NO.2 BY SHRI PIYUSH DHARMADHIKARI,
GOVERNMENT ADVOCATE)
WRIT PETITION No. 16374 OF 2022
Between:-
ANIL KUMAR NAMDEV S/O SHRI
JAGDISH NAMDEV, AGED ABOUT 32
YEARS, WARD NO.5 CHHOTA BAZAR
SHAHGARH BANDA SAGAR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI RAJMANI SINGROUL, ADVOCATE)
AND
1. THE HIGH COURT OF MADHYA PRADESH
THROUGH ITS REGISTRAR GENERAL
JABALPUR (MADHYA PRADESH)
2. THE STATE OF MADHYA PRADESH
THROUGH ITS SECRETARY, LAW AND
LEGISLATIVE AFFAIRS DEPARTMENT
FIRST FLOOR, VALLABH BHAVAN,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI ADITYA ADHIKARI,
SENIOR ADVOCATE WITH SHRI EIZAZ SIDDIQUI
RESPONDENT NO.2 BY SHRI PIYUSH DHARMADHIKARI,
GOVERNMENT ADVOCATE)
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Reserved on : 03.08.2022
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Passed on : 05.09.2022
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Per : Justice Sheel Nagu :
ORDER
Aforesaid two petitions involving similar factual matrix and raising
similar grievance and grounds praying for similar reliefs, are heard
analogously and are being decided by this common order.
2. The common grievance of petitioners in both the petitions arise out
of prescription of minimum passing marks of 40% (20 out of 50) in the
interview conducted as part of the selection process for appointment to
the post of Civil Judge, Entry Level conducted by respondent No.1 vide
advertisement No.325/Examination/CT/2019 (phase II) dated 05.09.2020.
3. Learned counsel for the rival parties are heard on the question of
admission so also on final disposal.
4. The undisputed facts of the case are that petitioners having
qualified in the Preliminary as well as Main Examination were invited
and participated in the interview held in 2022, but could not secure the
minimum passing marks of 40% (20 out of 50) in the viva voce, and
therefore, their names did not find place in the final select list for
appointment to the said post.
4.1 It is the contention of learned counsel for petitioners that in absence
of any enabling provision in the relevant Recruitment Rule, the recruiting
agency has no authority to fix minimum qualifying marks in the
interview, for which reliance is placed on the decision of Apex Court in
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All India Judges' Association and others Vs. Union of India and others,
(2002) 4 SCC 247.
4.2 Learned senior counsel, Shri Aditya Adhikari alongwith Shri Eizaz
Siddiqui, on behalf of respondent No.1 (Recruiting Agency) submits that
issue raised herein is no more res integra in view of the decision of
Coordinate Bench of this Court rendered on 21.07.2022 in the case of
Anand Kumar Lowanshi Vs. Hon'ble High Court and another in W.P.
No.16180 of 2022, whereby identical challenge to the minimum passing
marks in interview has been repelled and petition has been dismissed.
Relevant extracts of the said judgment are reproduced below for ready
reference and convenience:-
"6. Having considered the said judgment, we are of the
view that the same would not apply to the facts of this
case. The facts involved therein were to the extent that
after the written exam was conducted for recruitment to
the Delhi Higher Judicial Service, the marks obtained in
the written test were not disclosed. At that stage, the
selection committee met and resolved that it was desirable
to prescribe minimum marks for viva voce. Therefore, the
matter was placed before the Full Court. The Full Court
resolved that the minimum qualifying marks in viva voce
will be 55% for General candidates and 50% for
Scheduled Castes and Scheduled Tribes. Thereafter, the
candidates were called for an interview even though such
an interview was not postulated in the advertisement. The
Hon'ble Supreme Court in the case of Hemani Malhotra
(supra), in para-14, held as follows:-
"14. It is an admitted position that at the beginning of
the selection process, no minimum cut-off marks for
vive voce were prescribed for Delhi Higher Judicial
Service Examination, 2006. The question, therefore,
which arises for consideration of the Court is
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whether introduction of the requirement of minimum
marks for interview, after the entire selection process
was completed would amount to changing the rules of
the game after the game was played................."
Therefore, what the Hon'ble Supreme Court was
considering was as to whether the introduction of a
requirement for obtaining minimum marks for interview
after the selection process was completed would amount to
changing the rules of the game after the game was played.
The same is not the position herein. There is no change of
the rules of the game at a subsequent date. The
requirement was published even in the advertisement
calling for the posts. Therefore, all were aware of the
same. Hence, the question of changing the rules of the
game is not a point involved in this case.
7. The Hon'ble Supreme Court in Hemani Malhotra's case
(supra) further held in para-15 as follows:-
"15. There is no manner of doubt that the authority
making rules regulating the selection can prescribe
by rules the minimum marks both for written
examination and viva voce, but if minimum marks are
not prescribed for viva voce before the
commencement of selection process, the authority
concerned, cannot either during the selection process
or after the selection process add an additional
requirement/qualification that the candidate should
also secure minimum marks in the interview.
Therefore, this Court is of the opinion that
prescription of minimum marks by the respondent at
viva voce test was illegal."
Therefore, in the facts of the aforesaid case, the
prescription of having the minimum marks for the viva
voce was introduced after the selection process had
commenced. However, the facts in the instant case are that
the marks for the viva voce were already prescribed at the
stage of calling for the advertisement. The advertisement
clearly indicated that 50 marks would be allotted for the
interview, out of which the candidate has to procure a
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minimum of 40%, namely, 20 marks out of 50 marks. Thus,
in the instant case, much before the commencement,
namely, even at the stage of advertisement, the fixing of
the minimum marks for viva voce was already prescribed.
Hence, we are of the view that based on the facts and
circumstances involved, the said judgment would not be
applicable to the case on hand.
8. In the judgment of the Hon'ble Supreme Court in the
case of K. Manjusree vs. State of Andhra Pradesh and
Another reported in (2008) 3 SCC 512 it was held that the
prescription of minimum marks for an interview is not
illegal. It was held in para-33 as follows:-
"33. The Resolution dated 30.11.2004 merely adopted
the procedure prescribed earlier. The previous
procedure was not to have any minimum marks for
interview. Therefore, extending the minimum marks
prescribed for written examination, to interviews, in
the selection process is impermissible. We may clarify
that prescription of minimum marks for any interview
is not illegal. We have no doubt that the authority
making rules regulating the selection, can prescribe
by rules, the minimum marks both for written
examination and interviews, or prescribe minimum
marks for written examination but not for interview,
or may not prescribe any minimum marks for either
written examination or interview. Where the rules do
not prescribe any procedure, the Selection Committee
may also prescribe the minimum marks, as stated
above. But if the Selection Committee wants to
prescribe minimum marks for interview, it should do
so before the commencement of selection process. If
the Selection Committee prescribed minimum marks
only for the written examination, before the
commencement of selection process, it cannot either
during the selection process or after the selection
process, add an additional requirement that the
candidates should also secure minimum marks in the
interview. What we have found to be illegal, is
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changing the criteria after completion of the selection
process, when the entire selection proceeded on the
basis that there will be no minimum marks for the
interview."
9. In the case of Ramesh Kumar vs. High Court of Delhi
and Another reported in (2010) 3 SCC 104, the Hon'ble
Supreme Court held that the authority may prescribe a
minimum benchmark not only for the written test but also
for the viva voce. It was held in para-15 as follows:-
"15. Thus, the 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
benchmarks for written test as well as for viva voce."
Therefore, the position in law is quite clear that
minimum marks for the interview can be prescribed by the
authority provided the same is made known much before
the start of the selection process and not during the
selection process.
11. Hence, we find no good ground to interfere. The writ
petition is dismissed."
5. After hearing learned counsel for rival parties, this Court sees no
reason to take a different view than the one taken by the Coordinate
Bench of this Court as aforesaid.
5.1 However, before parting, this Court would deem it appropriate to
dwell upon the issue raised by petitioners that High Court in absence of
any enabling provision in the Recruitment Rules was not authorized in
law to prescribe minimum passing marks in interview. In support of the
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aforesaid contention, learned counsel for petitioners has relied upon the
decision of Apex Court in All India Judges' Association (supra).
6. The relevant Rule 5 of the Madhya Pradesh Judicial Service
(Recruitment and Conditions of Service) Rules, 1994 (for brevity "Rules
of 1994"), providing for method of appointment is as such:-
"5. Method of appointment and the appointing authority-
[(1) All Appointment to category (i) of Rule 3(1) shall be
made by the Governor by direct recruitment in accordance
with the recommendations of the High Court on selection.
Candidates shall be selected on the basis of Written
Examination conducted by the High Court and Viva-voice
thereafter and the procedure and curriculum for holding
examination for the selection of the candidates shall be
prescribed by the High Court.
(2) Examination shall be conducted by the High Court every
year as for as possible on the basis of availability of
vacancies for selection of candidates.]
(3) Appointment to the cadre of Senior Civil Judge shall be
made by the High Court by selection on the basis if merit-
cum-seniority from amongst the civil Judges who have
completed 5 years of continuous service.
(4) Appointment to the post of Chief Judicial
Magistrate/Additional Chief Judicial Magistrate under
Section 12 of the Code of Criminal Procedure, 1973, shall be
made from amongst the senior Civil Judges, by the High
Court, on the basis of merit-cum-Seniority.
(5) ACP scales as provided in categories (ii), (iii), (v) and (vi)
under sub-rule (1) of rule 3, shall be granted by the High
court to the members of the service on appraisal of their work
and performance and on completion of requisite continues
continuous period of service as indicated in that sub-rule."
6.1 Rules of 1994 have been framed by invoking powers conferred by
Article 234 r/w proviso to Article 309 of Constitution of India to govern
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and regulate the process of recruitment and conditions of service of
members of Lower Judicial Service which includes posts of Civil Judge
Entry Level, Civil Judge Senior Division and Chief Judicial Magistrate.
6.2 The fountainhead of powers behind the Rules of 1994 is Article 234
of Constitution which is reproduced below for ready reference and
convenience:-
"234. Recruitment of persons other than district judges
to the judicial service- Appointment of persons other than
district judges to the judicial service of a State shall be made
by the Governor of the State in accordance with rules made
by him in that behalf after consultation with the State Public
Service Commission and with the High Court exercising
jurisdiction in relation to such State."
6.3 Article 234 vests power upon Governor of the State to make make
appointment of persons to the judicial service other than district judges in
accordance of rules framed by the State Government in consultation with
the concerned High Court. Expression "consultation" employed in Article
234 of Constitution has been interpreted by the Apex Court in the case of
A.C. Thalwal Vs. High Court of H.P. and others, (2000) 7 SCC 1 to mean
effective and meaningful consultation with element of primacy and
binding nature with object to sub-serve principle of independence of
judiciary recognized as one of the basic features of the Constitution.
Meaning thereby that Article 234 gives primacy to the opinion and advice
tendered by the High Court by way of consultation.
6.4 The Rules of 1994 framed in exercise of power under Article 234
bestow upon the High Court the onerous responsibility of ensuring that
the stream of judiciary remains pure which is possible only when
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meritorious persons of prescribed qualifications and sterling character, are
allowed to enter the judicial service.
6.5 It is to achieve the aforesaid object that Rule 5 entrusts the High
Court with selection process by way of written examinations and viva-
voce, the curriculum and procedure in regard to which are vested
exclusively with the High Court.
6.6 The best and most suitable mode of ensuring induction of high
merit and character is by prescription only passing marks in written
examination and interview.
6.7 Written examination are held in two phases which are Preliminary
Examination and Main Examination. Preliminary Examinations are
primarily meant to shortlist the candidates to a manageable quantum to
bring them in proportion to the appropriate ratio of candidates-vacancy of
1;10 for appearing in Main Examination subject to securing passing
marks prescribed. As regards Main Examinations, the same are held to
assess the academic merit of the candidate concerned. This is followed by
an interview.
6.8 The next and the last stage in the selection process is interview
where candidates, three-times the number of vacancies, are invited.
6.9 The interview is held to assess as to whether the candidate
possesses judge-like temperament. This objective is achieved by ensuring
the most meritorious among the candidates appearing in interview, get
selected and appointed. This in turn is ensured by prescribing minimum
passing marks of 40% (20 out of 50).
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6.10 By the aforesaid method of Preliminary Examination, Main
Examination and Interview, the most meritorious among eligible
candidates are selected to be appointed as members of lower judiciary
under Rules of 1994.
6.11 Admittedly, Rule 5 of the Rules of 1994 does not prescribe in
express terms any passing marks in interview, but the very fact that the
High Court is constitutionally obliged under Article 234 of Constitution
and Rules of 1994 to lay down the procedure and curriculum for holding
selection process, it goes without saying that the High Court has ample
powers to prescribe minimum passing marks so as to achieve the ultimate
object of inducting the most meritorious among the eligible candidates.
7. This Court is bolstered in its aforesaid view by the decision of
Apex Court in a case emanating from the judicial service in K.H. Siraj v.
High Court of Kerala, (2006) 6 SCC 395, where the Apex Court repelled
a similar argument, as made herein by petitioners and held thus:-
"54. In our opinion, the interview is the best mode of
assessing the suitability of a candidate for a particular
position. While the written examination will testify the
candidate's academic knowledge, the oral test alone can
bring out or disclose his overall intellectual and personal
qualities like alertness, resourcefulness, dependability,
capacity for discussion, ability to take decisions, qualities of
leadership, etc. which are also essential for a judicial officer.
57. The qualities which a judicial officer would possess
are delineated by this Court in Delhi Bar Assn. v. Union of
India (2002) 10 SCC 159. A judicial officer must, apart from
academic knowledge, have the capacity to communicate his
thoughts, he must be tactful, he must be diplomatic, he must
have a sense of humour, he must have the ability to defuse
situations, to control the examination of witnesses and also
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lengthy irrelevant arguments and the like. Existence of such
capacities can be brought out only in an oral interview. It is
imperative that only persons with a minimum of such
capacities should be selected for the judiciary as otherwise
the standards would get diluted and substandard stuff may be
getting into the judiciary. Acceptance of the contention of the
appellant-petitioners can even lead to a postulate that a
candidate who scores high in the written examination but is
totally inadequate for the job as evident from the oral
interview and gets zero marks may still find a place in the
judiciary. It will spell disaster to the standards to be
maintained by the subordinate judiciary. It is, therefore, the
High Court has set a benchmark for the oral interview, a
benchmark which is actually low as it requires 30% for a
pass. The total marks for the interview are only 50 out of a
total of 450. The prescription is, therefore, kept to the bare
minimum and if a candidate fails to secure even this bare
minimum, it cannot be postulated that he is suitable for the
job of Munsif Magistrate, as assessed by five experienced
Judges of the High Court.
62. Thus it is seen that apart from the amplitude of the power
under Rule 7 it is clearly open for the High Court to prescribe
benchmarks for the written test and oral test in order to
achieve the purpose of getting the best available talent. There
is nothing in the Rules barring such a procedure from being
adopted. It may also be mentioned that executive instructions
can always supplement the Rules which may not deal with
every aspect of a matter. Even assuming that Rule 7 did not
prescribe any particular minimum, it was open to the High
Court to supplement the rule with a view to implement them
by prescribing relevant standards in the advertisement for
selection. Reference may be made to the decision of this
Court in State of Gujarat v. Akhilesh C. Bhargav, (1987) 4
SCC 482."
8. What comes out loud and clear from the above discussion is that
the High Court is not only empowered to ensure prescribing of minimum
passing marks in interview, but is also constitutionally and statutorily
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obliged to ensure the stream of justice to remain pure. This can happen
only when persons of high merit and unimpeachable character are
inducted into the judicial service, which can be inter alia ensured by
prescribing of minimum passing marks in the interview.
9. In view of above discussion, this Court has no manner of doubt that
the grounds raised by petitioners in support of the challenge to the
prescribing of minimum passing marks in interview cannot be
countenanced in law, and therefore, the challenge is repelled.
10. Consequently, both the petitions bearing W.P. No.17195/2022 and
W.P. No.16374/2022 stand dismissed sans cost.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
Sateesh
Digitally signed by SATEESH KUMAR SEN
Date: 2022.09.05 18:08:55 +05'30'
