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Birendra Singh vs State Of U.P. Thru. Prin.Secy., ...

High Court Of Judicature at Allahabad|30 June, 2016


Hon'ble Raghvendra Kumar,J.
This petition has been filed by a practicing Lawyer intending to appear as a candidate in the forthcoming Uttar Pradesh Higher Judicial Service - 2016 who has made several prayers including a declaration that Appendix - G to Rule 18 of the Uttar Pradesh Higher Judicial Service Rules be read as ultra vires to Rule 11 of the said Rules on the ground that the respondent-High Court has failed to make a provision for question papers to be also in Hindi in spite of the fact that the option to write answers is available to the candidates in Hindi Devnagri Script. A prayer has been made that the question papers for the said direct recruitment examination should be prepared bilingually in Hindi and English languages both or else this would violate the constitutional provisions of Article 348 (2) of the Constitution of India read with Article 351. For this, reliance has been placed on several judgments including the Division Bench judgment of this Court reported in AIR 1977 All 164, Prabhandhak Samiti and another v. Zila Vidyalaya Nirikshak and others. The order passed by a learned Single Judge allowing the writ petition on the issue of Court Language in the State of U.P. dated 17.10.2012 in Writ Petition No.54824 of 2012, Committee of Management Kanya Vidyalaya Kisrauli and others v. State of U.P. and others has also been placed before the Court.
The grievance therefore in short is that the question paper for the examination for the said recruitment in Higher Judicial Service should be in Hindi as well as in English. Learned counsel for the petitioner submits that the aforesaid constitutional provisions as well as the decisions that have been relied upon together with the U.P. Higher Judicial Service Rules therefore clearly substantiate the stand of the petitioner and an appropriate writ be issued so that the same may be implemented in the preliminary examinations that are scheduled to commence on 31.7.2016.
Sri Upendra Nath Mishra, learned Counsel for the High Court and the learned Standing Counsel have both relied on the Division Bench judgment in the case of Rakesh Kumar Sharma v. The Registrar General, High Court of Judicature at Allahabad and another, Writ Petition No.57216 of 2007 dismissed on 21.11.2007. The said judgment is extracted hereunder:-
"Heard learned counsel for the petitioner and Sri Amit Sthalekar, learned counsel for the respondents.
In the instant writ petition, the petitioner has come up for issuance of a writ of mandamus commanding respondent to supply the question papers of General Knowledge and Law of HJS Exams-2007, which are scheduled to be held from 23.12.2007 in Hindi also.
Learned counsel for the petitioner submits that the petitioner has applied for selection and appointment in the U.P. Higher Judicial Services and has been issued admit-card to appear in the examination with roll no. 2254. It is submitted that since in the aforesaid examination, the candidates have choice to answer General Knowledge and Law papers either in Hindi or in English, therefore, the candidates intending to give answer in Hindi may bear confusion regarding questions if the questions are not given in Hindi also and, as such, a mandamus may be issued commanding the respondents to give Hindi version also of the aforesaid question papers.
On the other hand, Sri Amit Sthalekar has produced the application form of the petitioner in which in clause 18(B) the petitioner has stated that he is proficient in English. He, therefore, submits that once the petitioner has admitted that he is proficient in English, there appears to be no reason to insist for providing Hindi version also of the question papers.
Learned counsel for the petitioner does not dispute the fact that the petitioner is proficient in English. In the writ petition also, in para-4, he has stated that if the question papers are given in English only and Hindi version is not provided, the other persons participating in the examination may bear confusion regarding questions. He, thus, has not claimed any difficulty for himself. We are, therefore, of the view that the petition is misconceived and no relief can be granted to the petitioner.
Before parting, we may also observe that here is a case where the petitioner, admittedly, is a candidate for recruitment and appointment in U.P. Higher Judicial Service. Once appointed, he will be a member of the cadre of Higher Judicial Service where he will have to discharge judicial functions, which includes appellate and revisional jurisdiction over the judgements of the Civil Judges (Junior & Senior Divisions) besides the original jurisdiction. Most of the Statutes are in English. The Judgements cited by the learned counsels, if that of Supreme Court, they are all in English and mostly the judgements of the High Court are also in English. If a person does not understand a question in English correctly or properly, we fail to understand as to how he will be able to effectively understand the statutory provisions and the authorities of High Court and Supreme Court, which are in English, in order to correctly adjudicate the complicated civil, criminal and other disputes. In U.P., since the documents, which come as pleadings and evidence in the Subordinate Courts, are normally in Hindi and even the witnesses etc. depose their statements in Hindi, therefore, a provision has been made requiring a member of Higher Judicial Service to be proficient in Hindi, but that does not mean that he should not be proficient in English. If one is not proficient in English and is not able to understand English version of questions correctly, such a person cannot be said to be fit for selection and appointment in Higher Judicial Service.
Moreover, the attempt of the petitioner at this stage to approach this Court and file this writ petition does not appear to be bonafide inasmuch examination is going to be commenced from 23.11.2007 and it is understandable that the entire arrangement for the said examination must have already been made. Any request, like the present one, at this stage, if accepted, would result in postponement of the aforesaid examination, which would not be in the interest of either litigant public at large or for dispensation and administration of justice inasmuch a very large number of Courts are lying vacant due to non availability of Judicial Officers. Recruitment of Judicial Officers at the earliest is the need of time and there should not be any attempt to delay the said recruitment, particularly on the basis of such frivolous litigation.
The writ petition is, accordingly, dismissed in limine."
The argument therefore is Appendix - G read with Rule 18 of the Rules are not ultra vires to Rule 11 as urged by the petitioner merely because the question papers are not being offered in Hindi Devnagri Script.
The process of direct recruitment and selection provides for holding of a written examination which includes the holding of a preliminary examination as well. Rule 18 of the 1975 Rules is extracted hereunder:-
"18. Procedure of Selection - (1) The selection Committee referred to in Rule 16 shall scrutinize the applications received and shall thereafter hold a written examination as prescribed in Appendix (G) for judging the suitability of the candidates. The Committee shall call for interview such of the applicants who in its opinion have qualified for interview after scrutiny and written examination.
(1 A) The Selection Committee may hold a preliminary examination for judging the suitability of the candidates to be admitted in the written examination as referred in sub-rule (1). The preliminary examination shall consist of one paper consisting of 100 marks of two hours duration from the syllabus prescribed for the written examination in Appendix "G" of the Rules.
Provided that only those candidates shall be treated to be eligible for the main written examination who secure minimum 45% marks in the preliminary examination subject to 20 times of the number of vacancies category-wise i.e. General, Scheduled Castes, Scheduled Tribes and Other Backwards Classes.
(2) In assessing the merits of a candidate the Selection Committee shall have due regard to his professional ability, character, personality and health.
(3) The Selection Committee shall make a preliminary selection and submit the record of all candidates to the Chief Justice and recommend the names of the candidates in order of merit who, in its opinion, are suitable for appointment to the Service.
(4) The Court shall examine the recommendations of the Selection Committee and having regard to the number of direct recruits to be taken, prepare a list of selected candidates in order of merit and forward the same to the Governor."
The syllabus prescribed for the said examination is contained in Appendix - G. What is important is the clarification contained in the said Appendix as follows:-
"Clarification - The candidates will have a choice to answer General Knowledge and Law papers either in Hindi or in English."
It will be apt to mention that the examination syllabus is composed of the written papers in five parts followed by an interview of 200 marks. The said papers are General Knowledge, Language, Law - I, Law - II, Law - III and Interview.
For the purpose of recruitment to the service, Rule - 11 prescribes that the candidate must possess a thorough knowledge of Hindi in Devnagri Script. Rule 11 is extracted hereunder:-
"11. Knowledge in Hindi - A candidate for recruitment to the service must possess a thorough knowledge in Hindi in Devnagri Script."
By a notification dated 5.9.1969 issued under Article 348 (2) of the Constitution of India, Hindi was notified as a language to be officially used in subordinate courts. This was followed by a notification dated 28.10.1970 in exercise of the powers under Section 7 of the Official Languages Act, 1963 for the use of Hindi as a language in the High Court. It is not necessary to delve into the details of the aforesaid position which has already been mentioned in detail in the judgment of the Division Bench in the case of Prabhandhak Samiti (supra) and also referred to in detail in the judgment of the Committee of Management Kanya Vidyalaya Kisrauli (supra).
The fundamental argument of the petitioner therefore is that if a candidate has been given the option to answer his question papers in Hindi, there is no occasion as to why the question paper should also not be in Hindi Devnagri Script together with English. It is therefore this lapse in the past that is now sought to be corrected and got enforced through the reliefs prayed for in the present writ petition.
Sri Upendra Nath Mishra for the High Court submits that the petitioner has not described himself as a candidate who is not proficient in English and he submits that the very nature of the drafting of the writ petition and his experience as a Lawyer does not indicate any deficiency in the petitioner so as to incapacitate him from attempting the questions if they are asked in English. In the absence of any such shortcoming, relying on the Division Bench judgment in the case of Rakesh Kumar Sharma (supra) he submits that the petition does not deserve to be entertained on the same grounds.
Sri Mishra also contends that none of the candidates would be put to any prejudice inasmuch as they are permitted to answer the questions in Hindi and no instance has been pointed out which may indicate that any such problem may arise, the rectification whereof is required through this apprehensive writ petition. He submits that the argument of the petitioner is speculative on some probable cause which does not give rise to any constitutional issue to be determined by this Court in the exercise of jurisdiction under Article 226 of the Constitution of India. He therefore, on instructions, has advanced his submissions contending that neither the constitutional provisions have been violated nor any personal rights of the petitioner are affected so as to warrant interference at this stage when the preliminary examinations are scheduled for 31.7.2016. He also submits that any interference would also impede the mandate of the Supreme Court issued time and again in Malik Mazhar Sultan and another v. Uttar Pradesh Public Service Commission and others [(2010) 15 SCC 47] wherein the Apex Court has been repeatedly issuing directions to adhere to the time schedule for holding of examinations for recruitment to the Higher Judicial Services of the State.
Upon hearing the learned Counsel for the parties and the aforesaid facts emerging, we find that the legal issue pertaining to the question papers being also in Hindi was raised in the case of Rakesh Kumar Sharma (supra) but was not answered keeping in view the constitutional provisions of Article 348 (2) and Article 351 as discussed and interpreted in its applicability within the State of U.P. in the judgment of the Division Bench in the case of Prabhandhak Samiti (supra) or any of the provisions of the 1975 Rules as extracted here-in-above. The judgment proceeded to decline relief on the ground that the petitioner himself was proficient in English and if a candidate is not proficient in English and not able to understand the English version of the question paper correctly, then according to the Division Bench such candidate cannot be said to be fit for selection and appointment in the Higher Judicial Service. The third ground taken for declining relief was that since the examinations were on the anvil, and the writ petition had been filed on the eve of the examinations, the same would jeopardize and postpone the selection and recruitment process hence the litigation was treated to be frivolous.
In our opinion, since the legal issue that was posed about the obligation of the respondents to offer question papers both in Hindi and English was neither discussed in the light of the provisions here-in-above nor the issue was answered, we are of the opinion that there was no ratio expressed on this issue hence the same would not be a binding precedent on the question of law and would not attract the principles of either stare decisis, res judicata or binding precedents. The said judgment at the best was a judgment refusing to exercise discretion under the extraordinary jurisdiction of Article 226 of the Constitution of India on the fats of that case without deciding the question of law as presently raised. We are therefore proceeding on the issue that was left to be answered and we do not find any conflict of opinion so as to dismiss the writ petition on the strength of the judgment in the case of Rakesh Kumar Sharma (supra).
On a consideration of the provisions referred to here-in-above, we find that undisputably, the Court Language in subordinate courts has been officially prescribed as Hindi with additional powers conferred on the High Court to opt for translation either in Hindi or in English as per the convenience of the Court to decide a case under the Allahabad High Court Rules, 1952. This issue has been dealt with by the learned Single Judge in the judgment of Committee of Management Kanya Vidyalaya Kisrauli (supra) and is therefore not being detailed as that is not the real issue involved in.
The question of the use of Hindi Language being made official for all intents and purposes from the provisions and the judicial pronouncements referred to here-in-above, there is no doubt that this official status of Hindi as a Language is by now well acknowledged and undisputed within the State of U.P. A candidate appearing for the recruitment therefore has been mandated to possess a proficient knowledge of Hindi Devnagri Script which finds manifested in Rule 11 of the 1975 Rules. The compulsion therefore has been imposed on a person aspiring to be a candidate for the Higher Judicial Service Examinations in the background above. Acknowledging the official status of the said language, the syllabus categorically provides by way of a clarification that has been extracted here-in-above that a candidate can answer the question papers of General Knowledge and Law in Hindi as well. We therefore find no reason as to why the question paper cannot also be in Hindi Devnagri Script. The arguments of the respondents do not satisfy us as they are not incapacitated on any count from framing questions in Hindi as well. Sri Upendra Nath Mishra has urged that the exact words of legal terms, particularly in relation to judgments that are rendered in English and related Laws which may include citations from Foreign Laws and decisions, do require a clear expression in English while framing the question, and therefore it cannot be possible to find exact translations in Hindi. He therefore submits that there are practical difficulties that are likely to occur and hence this insistence of the petitioner should not be entertained and any direction given may create a confusion in its implementation which may give rise to unnecessary litigation for interpreting the real purport of questions.
The job of framing a question in our opinion is of experts and law is being taught all over the State in English as well as in Hindi. There is nothing to presume that the subject of Law including International Law or decisions of Foreign Nations which are in English Language or other Languages are not being made part of teaching programmes within the State of U.P. Not only this even for practicing Lawyers there is nothing to indicate that such laws are beyond the pale of understanding of such Lawyers who are prospective candidates for the Higher Judicial Services. Thus, a question on a legal issue, theory, jurisprudence or illustration can be conveniently framed in Hindi Language as well, and wherever any word or phrase may require an exact understanding, the same can be projected in Roman so as to match with the exact English word or phrase used in the question in English. Thus, any such confusion can be easily avoided and overcome if an attempt is made to resolve it, but merely because this may require an extra effort of correct translation the same may not be a ground, in defiance of logic, to refuse framing of a question in Hindi. The petitioner's argument therefore cannot be rejected as being either frivolous or unfounded. The argument of the petitioner stands magnified with the fact that the candidates have been given option to answer the question in Hindi under the Rules. Consequently, the said argument of Sri Mishra on behalf of the respondent-High Court cannot be countenanced.
At the same time, this being a matter of expert advice and expertise for framing questions in Hindi, we leave it open to the respondent-High Court to deal with this issue on the administrative side for an appropriate decision that deserves to be taken for examinations in future, as the present examinations are going to be held shortly, and to keep this petition pending for a decision would obviously impede the examination process which has already commenced. Consequently, we are not issuing any Mandamus in relation to the 2016 examinations, but we request the High Court to take up this matter and resolve it for the purpose of future implementation in the examinations that may be held after the conclusion of the present examinations and the entire recruitment process. We are clarifying that the High Court will not be required to take any decision for the present recruitment examinations either preliminary or final.
Before parting, we may observe that the observations made by the Division Bench in the case of Rakesh Kumar Sharma (supra) that the litigation was frivolous or a candidate pressing for questions to be supplied in Hindi would be inferred as a fact of his being not fit for selection and appointment, is not an agreeable proposition but the said observations in our opinion were otherwise orbiter.
The writ petition stands disposed off with the aforesaid observations.
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Birendra Singh vs State Of U.P. Thru. Prin.Secy., ...


High Court Of Judicature at Allahabad

30 June, 2016
  • Amreshwar Pratap Sahi
  • Raghvendra Kumar