Hon'ble Prakash Padia,J.
Shri Shailendra, learned Senior Counsel assisted by Shri Shailendra Shrivastava appears on behalf of the appellants and Shri H.P. Dwivedi, learned counsel appears on behalf of respondents no. 2 to 6 in Special Appeal Defective No. 318 of 2021.
Shri H.N. Singh, learned Senior Counsel assisted by Shri Kamal Kumar Kesharwani appears for the appellants and Shri Saurabh Singh and Shri Rajesh Kumar Shrivastava, learned counsel appears on behalf of private respondents in Special Appeal Defective no. 319 of 2021.
Shri Radha Kant Ojha, learned Senior Counsel assisted by Shri Shivendu Ojha appears for the appellants and Shri Saurabh Singh, learned counsel appears on behalf of respondents no. 2 to 6 in Special Appeal Defective no. 320 of 2021.
Shri Anil Bhushan, learned Senior Counsel assisted by Shri N.N. Mishra appears for the appellants and Shri H.P. Dwivedi and Shri Amit Saxena, learned counsel appears on behalf of respondents no. 2 to 6 in Special Appeal Defective no. 321 of 2021.
Shri Ashish Mishra, learned Counsel appears on behalf of the respondent no. 1-Registrar General, High Court in all the appeals.
1. These batch of Special Appeals under Chapter VIII Rule 5 of the High Court Rules, 1952 take exception to order dated 17.03.2021 passed by learned Single Judge in batch of Writ petitions with leading writ petition Writ A No. 29665 of 2015 (Vineet Kumar and 4 others V. The Registrar General, High Court of Judicature At Allahabad). With the consent of learned counsel for the contesting parties the matter is finally heard.
2. The relevant facts briefly are that under The Uttar Pradesh Civil Court Staff Centralised Recruitment Scheme 2014 applications were invited for appointment of Category ''C' clerical cadre and the Stenographer; vide: Advertisement No. 1/Sub.Court/Category ''C'/Clerical Cadre/2014 and Advertisement No. 1/Sub.Court/Stenographer/2014.
3. The relevant Rules which governs recruitment are The Uttar Pradesh District Court Service Rules, 2013. Chapter II whereof laid down the procedure for Recruitment. That Rule 9 provides for the manner of appointment through Direct Recruitment, stipulating therein:
"9. Direct Recruitment:-
(1) The appointing Authority shall intimate the Selecting Authority in the month of July every year the number of vacancies existing and likely to occur during the year of recruitment for direct recruitment in different category of posts. The Selecting Authority shall invite applications by giving vide publicity indicating the total number of vacancies notified for recruitment and the number of vacancies reserved for different reserved categories.
(2) The Selecting Authority may short-list the candidates to be called for the written examination equal to twenty five times the number of vacancies notified on the basis of the marks obtained in the qualifying examination given in Schedule 'B'or by a preliminary objective test.
(3) Notwithstanding anything to the contrary in these Rules, the Appointing Authority and the Selecting Authority with regard to conduct of examination and selection shall act in accordance with general or special orders issued by Hon'ble Chief Justice of the High Court, from time to time.
That Rule 10 of the Rules of 2013 inter alia provided for the eligibility of candidate for the interviews, stipulating therein :
10. Eligibility of candidates for the interview-
(1) For the purpose of selection of the candidates for the interview, the appointing authority shall prepare a list of names of candidates on the basis of percentage of the total marks secured in the written examination in the order of merit and if two or more candidates have secured equal percentage of total marks in the written examination, the order of merit in respect of such candidates shall be fixed on the basis of their age, the person or persons older in age being placed higher in order of merit. From among the candidates whose names are included in such list, as far as may be, such number of candidates as is equal to five times the number of vacancies notified, selected in the order of merit, shall be eligible for the interview:
(2) For the purpose of this rule,-
''Written examination' means the competitive examination held by the Selecting Authority as per syllabus given in Schedule 'C'.
4. That Clause 6 of the Advertisement laid down the procedure for selection :
"6. SELECTION PROCEDURE: The Selection procedure shall include one common offline examination (Written examination on O.M.R. sheet for all the posts. Selection procedure shall consists of following stages:
(1) Off-line examination (objective type written examination on O.M.R. Sheet) for Group ''C 'posts. The selection process for the post of junior Assistant and Paid Apprentices shall be same.
(2) Computer Type Test: Hindi/English Computer type test for Group ''C' Posts shall be held on a later date after declaration of result of the Offline examination (Written Examination on O.M.R. sheet). Five candidates in order of merit against each post category-wise shall be shortlisted for appearing in Computer Type test (3) Interview shall not be part of the selection process (4) A combined merit list for Class-III posts (except the post of Driver and Stenographer) shall be prepared on the basis of marks obtained by the candidates in Offline examination and Hindi/English type test on computer.
Notwithstanding anything to the contrary in these rules the Appointing Authority and the Selecting Authority with regard to conduct of examination and selection shall act in accordance with general or special orders issued by Hon'ble Chief Justice of High Court from time to time.
Syllabus for off-line examination (objective type on OMR sheet) for the post of Class ''C' Clerical Cadre Syllabus for off-line examination shall be as follows:
Test - 1 Offline Examination (Duration 90 Minutes) Examination will carry 100 questions SUBJECTS Marks (A) Hindi 100 Marks (B) English (C) General Studies (D) Mathematics Test-2 Hindi/English Computer Type Test 25/30 words per minute for Hindi/English typewriting on computer 25 Marks (For Hindi Typing 25 Marks for English Typing) Note: There shall be no negative marking on wrong answers in Objective type test Date, Time, Venue and shifts of Examination:- Date, time and venue of examination shall be intimated to the candidates through E-Admit Cards which can be downloaded from the website www.allahabadhighcourt.in.
The Selection Committee has discretion to fix minimum qualifying marks in any or all parts of papers for off-line examination (Test 1) Hindi/English Computer Type test (Test 2)."
5. That Clause 7 of said advertisement made provision for preparation of Select list stipulating therein :
"7. Lists of Selected Candidates- (1) A combined merit list for Class III posts shall be prepared on the basis of marks obtained by the candidates in off-line examination (Test 1), Hindi/English Computer Type test (Test 2). The Selecting Authority on the basis of the aggregate of the percentage of the total marks secured in the off-line examination, the marks secured in the Hindi/English Computer Type test (Test 2) and taking into consideration, the order in force relating to reservation of posts for Scheduled Castes, Scheduled Tribes, Other Backward Classes and other categories prepare in the order of merit, a list of candidate eligible for appointment to the category of the posts and if the aggregate of the percentage of total marks secured in the written examination and of the marks secured in the Hindi/English Computer typing skill test, of two or more candidates is equal, the order of the merit in respect of such candidates shall be fixed on the basis of their age, the person or persons older in age being placed higher in the order of the merit. The number of the names of the candidates to be included in such list shall be equal to the number of the vacancies notified for the recruitment. If the selected candidates could not be offered the judgeships applied for in order of priority in which they wish to be posted, he/she can be recommended against any other post advertised in any District. After the completion of the selection process, the list of the selected candidates shall be forwarded to the District Judgeships against the available vacancies. The District Judge will be at liberty to post the candidates on any of the post mentioned at Serial No. 1 and 2 of the above mentioned table as per the availability of the posts and requirement in the judgeship.
(2) The Selecting Authority shall in accordance with the provisions of sub-rule(1) also prepare an additional list of names of candidates not included in the list prepared under sub-rule (1) in which the number of candidates to be included shall, as far as possible, be 10% of the number of vacancies notified.
(3) Duration of operation of Lists:- The list of the names of the candidates published by the Selecting Authority under Rule 12 in respect of any cadre shall cease to be operating on appointment of the last advertised vacancy or one year whichever is earlier."
6. Apparent it is from the relevant Rules and the stipulations contained in the Advertisement that for Clerical Cadre and Stenographers, two stages/three stages, respectively, were set in for drawing merit list, viz, offline examination and Hindi/English Computer Type Test. There was no negative marking on wrong answers in objective type test i.e. Stage I and that the aggregate of the percentage of the total marks secured in the off-line examination, the marks secured in Hindi/English Computer Type Test was the foundation for preparing merit list. It is also evident from the stipulation in the advertisement that the Selection Committee had the discretion to fix minimum qualifying marks in any or all parts of papers for off-line examination (Test 1) and Hindi/English Computer Type Test (Test 2).
7. That against 2341 posts approximately Twelve Thousand Candidates applied for recruitment. These figures, pertinent it is to mention, were adverted during course of hearing.
8. That after first stage test, i.e. off line examination, certain participants like the respondent petitioners approached this High Court, raising grievance against the nature of test-2. Precise contention raised by them was use of ''Mangal' font. The specific relief sought by them in the petition was that they may be permitted to appear in Hindi Type Test Examination with "Kruti Dev II font" in place of "Mangal font" and to consider their candidature for appointment by judging them by conducting typing test on Kruti Dev II font.
9. That by an interim order dated 21.05.2015, it was directed that "the selection may go on but the result in respect of five petitioners herein shall not be declared till next date of listing. The petitioners are at liberty to appear in the examination without prejudice to their right." Apparently the writ court at the interim stage did not accede to the prayer made by the petitioners to permit them to attempt the Test with ''Kruti Dev II font'.
10. That during pendency of writ petition final select list was published which led the petitioners amend the petition whereby they sought quashment of entire select list, which led the writ court on 6.5.2019, taking note of the fact that the Selectees who may be effected with the order were not made parties, to be apprised of the pendency of the petition through respective District Judge, who is so choose to contest the petition.
11. In these factual background the batch of writ petition came to be heard and decided by the impugned order.
12. Learned Single Judge recorded following facts which were borne out from records and are not disputed before us :
"7. So far as the conduct of first stage examination both in Stenographer and Clerical Cadre is concerned, there are no issues.
8. It is admitted on record that the impugned select list has been drawn on the basis of merit list drawn by adding the marks secured by a candidate in all three stages for Stenographers and the two stages for the Clerical Cadre.
9. From the records it is apparent that no marking/evaluation criteria was specified in the advertisement, nor any such stipulation exists in the rules. No minimum marks were fixed for the type test or the shorthand exam. It is also admitted that prior to conduct of aforesaid examination, the High Court or the Recruitment and Appointment Cell of the High Court had not finalized any marking or evaluation criteria for appointment(s) in question. The marking and evaluation process, therefore, was evolved exclusively by the outsourced agency i.e. TCS. The criteria for evaluation and marking, as determined by TCS has been placed on record by the respondents in their second supplementary counter affidavit as Annexure SCA-1. This document is a communication sent by TCS in response to a letter sent by the Recruitment Cell of the High Court, which is extracted hereinafter:-
"2. Exam Process for Stenographer Grade III - Category C (Response to para no. 8) There was total three stages in examination:
Stage 1: Offline Examination (Maximum Marks: 100) Stage 2: Computer Typing Test (English and Hindi) (Maximum Marks: 50) Stage 3: Hindi/English Shorthand Test (Maximum Marks: 50) Agency has conducted the STAGE 1 offline exam for all the candidates appearing for Stenographer Grade III- Category C. Candidates were evaluated as per evaluation criteria attached as annexure 1. Five candidates in order of Merit against each post category-wise were shortlisted for appearing in stage 2 Computer Typing Test and stage 3 Hindi/English Shorthand Test.
Agency has conducted the STAGE 2 Computer Typing Test (English and Hindi) for candidates selected in stage 1 examination. Hindi/English Typing test was conducted and score was evaluated as per evaluation criteria attached as annexure 2. As no marking/evaluation criteria was mentioned in advertisement neither shared by High Court, so Marking for Hindi/English Typing test was done with provision for negative marking. Cut off marks for this test was not defined in the Advertisement hence score was calculated which may be positive, zero or negative.
Agency has conducted the STAGE 3 Hindi/English Shorthand Test for candidates selected in stage 1 examination. Hindi/English Shorthand Test was conducted and score was evaluated as per evaluation criteria attached as annexure 3. As no marking/evaluation criteria was mentioned in advertisement neither shared by High Court, so Marking for Hindi/English Shorthand test was done with provision for negative marking. Cut off marks for this test was not defined in the Advertisement hence score was calculated which may be positive, zero or negative.
Final score considered for Merit List was prepared after consolidation of marks of all appeared candidate in Stage 1, Stage 2 and Stage 3 Examination hence combined score calculated may be positive, zero or negative. Final Merit List was prepared based on criteria mentioned in advertisement."
10. So far as the examination for the Clerical Cadre is concerned, the communication specifies following process for recruitment:-
"Agency has conducted the STAGE 1 offline exam for all the candidates appearing for Clerical Cadre- Category C. Candidates were evaluated as per evaluation criteria attached as annexure 1. Five candidates in order of Merit against each post category-wise were shortlisted for appearing in stage 2 Computer Typing Test.
Agency has conducted the STAGE 2 Computer Typing Test (English and Hindi) for candidates selected in stage 1 examination. Hindi/English Typing test was conducted and score was evaluated as per evaluation criteria attached as annexure 2. As no marking/evaluation criteria was mentioned in advertisement neither shared by High Court, so Marking for Hindi/English Typing test was done with provision for negative marking. Cut off marks for this test was not defined in the Advertisement hence score was calculated which may be positive, zero or negative.
Final score considered for Merit List was prepared after consolidation of marks of all appeared candidate in Stage 1 and Stage 2 Examination hence combined score calculated may be positive, zero or negative. Final Merit List was prepared based on criteria mentioned in advertisement."
13. The submissions put forth before learned Single Judge on behalf of the petitioners were that the Selection has been made without following any objective criteria for determining the inter se merit and even the candidates who secured ''zero' or ''negative' marks in the shorthand and typing test were selected. It was also contended that the persons who acquired eligibility qualifications after commencement of recruitment were also permitted to participate and that though 2220 candidates appeared in the type test, but 2369 candidates were shown to have qualified.
14. The respondents defended the recruitment contending inter alia that the selection was held as per the procedure laid down in the Rules of 2013 and the stipulations contained in the respective advertisement. It was contended that all the candidates were subjected to uniform process and same font has been used for adjudging the proficiency of all the candidates. As regard to numbers of candidates adverted by the petitioners, it was urged by the respondents that some of the candidates since applied for both Hindi and English stenographer as a result whereof the total number of candidates, which included 149 candidates who applied for both English and Hindi stenographers, was shown on the higher side. It was further contended that the recruitment which took place in 2015, in furtherance therewith appointments were made and the incumbents appointed are satisfactorily performing their duties. It was further contended that the persons who were ineligible on the last date of filing of application due to their eligibility qualifications being of a later date have already been removed.
15. Learned Single Judge while not disputing that there was no minimum marks fixed for passing the typing or short hand test, in other words, the marks obtained in Stage 2 since was to be averaged with the marks obtained in Stage 1, lost its significance as there was no cut off passing marks of Stage 2 examination. However, observing that the skill/proficiency of a candidate is judged by accounting for his positive attributes vis-a-vis negative attributes and if the later outweighs earlier, then the proficiency of a candidate is under cloud. And further observing that "failure to fix minimum marks has allowed entry into service to those who do not meet the minimum bench mark expected of a stenographer/clerk." Furthermore, comparing with the examinations held in subsequent years wherein minimum cut off marks were fixed, learned Single Judge faulted with the Stage-2 examination. While not disputing the preposition that "it is always open for the employer to specify the font for testing the typing skill of a candidate" and without setting aside the criteria fixed by the employer of Type Testing the candidate through Mangal font, yet faulted with the procedure that the candidate did not get fair opportunity to practice on it and compete. With these reasoning learned Single Judge opined that "the ends of Justice would be met if the respondents are directed to conduct Stage II and III of the recruitment process afresh, as applicable, by subjecting all candidates who have qualified Stage I of the two recruitments and have participated in Stage II and III as applicable, to appear in it."
16. Learned Single Judge further directed that the criteria for holding of typing and stenography test would be such as is already approved by the Recruitment Committee in its subsequent minutes dated 02.04.2019 approved by the Chief Justice on 03.04.2019. In other words, the resolution of 02.04.2019 were directed to be made applicable retrospectively for the recruitment of 2014.
17. The correctness of these reasonings and the conclusion are being questioned vide present batch of Appeals at the instance of the Clerks as well as the Stenographers who were appointed and are working for over five years.
18. It is urged that fixing of criteria for recruitment being the prerogative of the employer who having chosen not to fix the cut off passing marks for Stage 2 examination, it was beyond the competence of a court under Article 226 of the Constitution to have adjudged the selection of 2014 on the basis of criteria subsequently laid down in the year 2019.
19. It is further contended that since as per stipulation contained in Clause 6 of the Advertisement that the candidate has to be adjudged eligible for interview on the basis of combined merit list for Class III posts prepared on the basis of marks obtained by the candidate in offline examination i.e. Stage I Test and Hindi/English Type Test on computer i.e. State II Test, in absence of cut off marks were rightly not adjudged ineligible and learned Single Judge erred in assuming such candidate as ineligible on the basis of the criteria laid down in the year 2019. It is urged that since there was no complaint about the procedure adhered as such there was no systemic flaw in the recruitment and that after appointment, respective appointees having satisfactorily worked without any complaint cannot be subjected to re-examination with changed criteria. It is further contended that only 19 of the Selectees were found to have obtained no marks in Stage 2 examination and for that instead of weeding them out learned Single Judge faltered with the entire selection at the instance of few.
20. On these contention, the appellants seek indulgence.
21. Contesting Respondents on their turn besides supporting the impugned judgement raise an objection as to maintainability of the Appeal on the ground of non-joinder of necessary parties.
22. It is urged that with Writ A No. 29665 of 2015 being the lead case, 40 writ petitions were decided by the common order and irrespective of the fact that the challenge is to an order in Writ A No. 29665 of 2015 incumbent it is upon the Appellants to have impleaded the petitioners of respective petition as respondents. Instead, it is urged that, only the petitioners of Writ A No. 29665 of 2015 are impleaded as respondents; therefore, the petition is not maintainable.
23. It be noted that the challenge in the writ petition filed by five persons was the use of ''Mangal font' in the second stage of the recruitment wherein none of the prospective candidates were made respondent. Further during pendency of the said writ petition which was filed in the year 2015 a final list was published whereon through amendment the entire select list was challenged; however, the persons in the select list were impleaded only in a representative capacity through present appellant who were impleaded as respondents No. 2 to 15. Subsequently multiple petition came to be filed and the writ court realising that the remaining selectees who were not impleaded parties were only a proper parties directed on 21.10.2019 to apprise all the selectees through respective District Judges as to pendency of lis. The Writ A 29665 of 2015 was all along treated as main case and the argument were heard therein by connecting other writ petitions subsequently filed. In a litigation as the present one wherein entire selection for appointment of 2341 clerk/stenographer is questioned and a lead petition is heard and decided, the petitioner(s) of such petitions are necessary party(ies) being representative in nature whereas the petitioners of connected petitions are only proper party (ies) which may entitle them to file a caveat; however, their non impleadment in the intra court appeal against the main order, in our considered opinion, will not lead to non maintainability of the Appeal.
24. In view whereof the preliminary objection as to maintainability of Appeal is negatived. The Appeal is held to be maintainable.
As to merit.
25. After considering the submissions of respective parties, the sole issue which crops up for consideration is that in the given facts wherein there is no dispute that there is no systemic flaw and the entire recruitment of Clerks/Stenographers was in accordance with the stipulation contained in the Rules of 2013 and the parameters stipulated in the advertisement, whether learned Single Judge has justified in causing indulgence with the selection on the basis of the criteria subsequently laid down and the fact that only fraction of incumbents, (i.e. 19 in numbers) were found to have received no marks in the second stage Test.
26. By systemic flaw we mean the irregularities in the recruitment process having taken place on a systemic level i.e. where the procedure laid down by the Rules or otherwise, such as the Advertisement, is violated resulting in vitiation of entire process, because of the percolation of such flaw down the process. This principle is recently adverted at to adjudge the challenge to the recruitment process as the present one in Civil Appeal Nos. 639-640 of 2021 (arising out of Special Leave Petition (C) Nos. 5785-5786 of 2020: Sachin Kumar & Ors. Vs Delhi Subordinate Service Selection Board (DSSSB) & Ors. decided on 03.03.2021; wherein their Lordships observed :
" 33. In deciding this batch of SLPs, we need not re-invent the wheel. Over the last five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of mal-practices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrong-doing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrong-doing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrong-doers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrong- doing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field."
Thus unless an infirmities of all pervasive nature is established, the recruitment process cannot be set aside with a direction to hold fresh selection.
27. In the case at hand the Rules applicable are the Rules of 2013 whereunder Rule 9 mandates that the Appointing Authority shall intimate the Selecting Authority in the month of July every year the number of vacancies existing and likely to occur during the year of recruitment for direct recruitment in different category of posts. The Selecting Authority shall invite applications by giving vide publicity indicating the total number of vacancies notified for recruitment and the number of vacancies reserved for different reserved categories. Sub-Rule (3) of Rule 9 of the Rules of 2013 which starts with non obstante clause stipulates that "Notwithstanding anything to the contrary in these Rules, the Appointing Authority and the Selecting Authority with regard to conduct of examination and selection shall act in accordance with general or special orders issued by Hon'ble Chief Justice of the High Court, from time to time." Further, in the advertisement which was issued in the year 2014 the Selection Procedure was carved vide Clause 6 of the advertisement stating therein that the Selection Procedure shall include one common offline examination (written examination on OMR sheet) for all posts and the selection procedure consisted of following stages:
"(1) Off-line examination (objective type written examination on O.M.R. Sheet) for Group ''C' posts. The selection process for the post of junior Assistant and Paid Apprentices shall be same.
(2) Computer Type Test: Hindi/English Computer type test for Group ''C' Posts shall be held on a later date after declaration of result of the Offline examination (Written Examination on O.M.R. sheet). Five candidates in order of merit against each post category-wise shall be shortlisted for appearing in Computer Type test (3) Interview shall not be part of the selection process (4) A combined merit list for Class-III posts (except the post of Driver and Stenographer) shall be prepared on the basis of marks obtained by the candidates in Offline examination and Hindi/English type test on computer.
Notwithstanding anything to the contrary in these rules the Appointing Authority and the Selecting Authority with regard to conduct of examination and selection shall act in accordance with general or special orders issued by Hon'ble Chief Justice of High Court from time to time."
28. It further stipulated that notwithstanding anything contrary in the Rules the Appointing Authority and the Selecting Authority with regard to conduct of examination and selection shall act in accordance with general or special orders issued by the Chief Justice of the High Court from time to time. And that the Selection Committee has discretion to fix minimum qualifying marks in any or all parts of papers for off-line examination (Test 1) Hindi/English computer Type Test (Test-2).
29. Evidently, and its been duly noted by learned Single Judge that no such discretion as vested in the Selection Committee or any direction by the Chief Justice was issued in respect of Selection in question fixing minimum qualifying marks in any or all parts of papers for Test 1 and Test 2.
30. Evidently no irregularity or infirmity of pervasive nature were brought on record as would establish that the entire process of recruitment got vitiated. In Union of India and Others Vs Rajesh P.U., Puthuvalnikathu and Another (2003) 7 SCC 285, it is held:
"6. ....There seems to be no grievance of any malpractices as such in the process of written examination-either by the candidates or by those who actually conducted them." "...In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other of irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go bye to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."
31. In the present case as borne out from the facts unfurled that, only grievance by few participant was against the use of Mangal font who claimed that the Stage 2 test be conducted on Kruti Dev II font. The said claim though has rightly not been acceded to by learned Single Judge observing that it is the prerogative of the employer. Yet an interference is caused observing that "it ought to have been done in a manner such that all candidates get a fair opportunity to practice on it and compete." Evidently learned Single Judge glossed over the fact that the petitioners were already on notice as to the nature of font and that the petitioners were only fraction out of more than two thousand candidates who qualified the Stage 1 examination but did not complain of as to nature of font applied for adjudging their proficiency.
32. Furthermore, even the approach of learned Single Judge to adjudge the efficiency of respective candidates by incursing the resolution of 2019, which laid down the criteria of minimum marks, for the recruitment of 2014, cannot be given the stamp of approval. The record reveals that all appointments were made in the year 2015. There is no complaint from any of the District as to performance of any of the selectees. The incumbents who were otherwise ineligible are already removed from service. Therefore, adjudging the selectees of 2014-15 on the basis of criteria laid down in the year 2019, is totally irrelevant and impermissible.
33. As regard to obtainment of no marks by some candidates (which as stated during the course of hearing were 19) in Stage 2 examination. In our considered opinion since there is no cut off marks, an incumbent therefore, cannot be adjudged as ineligible as the merit list is drawn on the basis of the aggregate of the percentage of the total marks secured in the off-line examination, the marks secured in the Hindi/English Computer Type Test (Test 2).
34. In Shri Durgacharan Misra v. State of Orissa and others, AIR 1987 SC 2267, it is held :
"9. This is the mandate of Rule 18. The Commission shall add the two marks together, no matter what those marks at the viva-voce test. On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit. The list so prepared shall be forwarded to the Government. The Commission has no power to exclude the name of any candidate from the select list merely because he has secured less marks at the viva-voce test.
10. Similar pattern of selection is generally found in all the rules of recruitment which prescribe written examination and also viva-voce test. There are two authorities of this Court in this aspect of the matter. In P.K. Ramchandra Iyer v. Union of India, [1984] 2 SCR 200 : (AIR 1984 SC 541) this Court considered the scope of recruitment rules governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research. There the Agricultural Scientists Recruitment Board (ASRB) was required to select candidates by holding competitive examination and viva-voce test. ASRB prescribed a minimum qualifying marks which a candidate must obtain at the viva-voce test before his name could be included in the merit list. The question that fell for consideration was whether the ASRB was competent to prescribe such a minimum? Accepting the contention, that ASRB has no such power, this Court observed (at p. 244): (at p. 562 of AIR) "Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva-voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva-voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva-voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva-voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power 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."
11. The closest to the fact of this case is the recent decision of this Court in Umesh Chandra Shukla etc. etc. v. Union of India, [1985 Supp. (2) SCR 367 : (AIR 1985 SC 1351). There the scope of Delhi Judicial Service Rules, 1970 came up for consideration. Rules 17 and 18 of the Delhi Judicial Service Rules, 1970 are similar to Rules 16 and 18 of Orissa Judicial Service Rules, 1964. The Selection Committee constituted under these Rules consisted among others of Judges of the High Court of Delhi. The Selection Committee apparently thought that it has got power to exclude candidates securing less than 600 marks in the aggregate as not being suitable for appointment to the Judicial Service. Accordingly it excluded all such candidates from the select list. It was contended before this Court that the Selection Committee would be competent to prescribe a minimum standard to be crossed by candidates at the vive-voce test in order to be suitable for appointment to judicial posts. Repelling that contention this Court observed (at pp. 382-383 of SCR) : (at pp. 1358-1359 of AIR) :
"With regard to the second contention, namely, that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after the viva-voce test, reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva-voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva-voce test. There is no power reserved under Rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list. It is stated in paragraph 7 of the counter affidavit filed in Writ Petition No. 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service. It is not necessary to consider in this case whether any other reason such as character, antecedents, physical fitness which may disqualify a candidate from being appointed to the Delhi Judicial Service may be taken into consideration by the Selection Committee while preparing the final list. But on going through the Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial service. The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by cl. (6) of the Appendix. The question whether a candidate included in the final list prepared and forwarded by the Selection Committee may be appointed or not is a matter to be considered by the appointing authority. In the instant case the decision that a candidate should have secured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee. Moreover, recruitment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court. Art. 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of persons other than District Judges to the judicial service as it has been expressly dealt with in Article 234 of the Constitution. We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. We are, therefore, of the view that the exclusion of the names of certain candidates, who had not secured 600 marks in the aggregate including marks obtained at the viva-voce test from the list prepared under rule 18 of the Rules is not legal."
12. In the light of these decisions the conclusion is inevitable that the Commission in the instant case also has no power to prescribe the minimum standard at viva-voce test for determining the suitability of candidates for appointment as Munsifs.
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15. But the crux of the matter is whether the Judge present at the viva-voce test has the power to add anything to the Rules of recruitment. He may advice the Commission as to the special qualities required for judicial appointments. His advice may be in regard to the range of subjects in respect of which the viva-voce shall be conducted. It may also cover the type and standard of questions to be put to candidates; or the acceptance of the answers given thereof. But his advice cannot run counter to the statutory Rules."
35. For these reasons, we do not approve the decision taken by learned Single Judge directing to conduct Stage II and III of the recruitment process afresh.
36. Consequently the impugned order dated 17.03.2021 passed in Writ A No. 29665 of 2015 is set aside. The writ petitions filed by the petitioners are dismissed.
37. The Appeals are allowed to the extent above. No Costs.
38. All interlocutory applications stand disposed of.
Order Date :- 12.4.2021 Kirti (Prakash Padia, J) (Sanjay Yadav, J)