IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6055 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= VAISHNAV HARSHENDU MUKUNDRAI -ADVOCATE & 1 - Petitioner(s) Versus HIGH COURT OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MR INDRAVADAN PARMAR for Petitioner(s) : 1 - 2. MR GM JOSHI for Respondent(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 2, NOTICE SERVED BY DS for Respondent(s) : 2 - 3.
========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI
Date : 23/07/2012
ORAL JUDGMENT
1. By way of this petition, the petitioners have prayed for following reliefs :
(a) Issue an appropriate writ, order or direction, to quash and set aside Rule 8(3) of the Gujarat Judicial Service Rules 2005 (as amended in 2011) that requires minimum qualifying marks of 40 % of the Viva-voce conducted for direct recruitment to the cadre of District Judges.
(b) Issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the Select list dated 15.02.2012 for direct recruitment to the cadre of District Judge from amongst Advocates issued by Hon'ble Gujarat High Court, and to direct the Respondent No. 1 to prepare a fresh Select List filing all notified vacancies declared vide Advertisement dated 24.06.2011 of Respondent no.1 without requirement of any minimum cut- off marks obtained by the candidates in the Written Test and the Viva-voce as per the recommendations of Justice Shetty Commission and as approved by Hon'ble Supreme Court.
(c) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent no.1 to consider the petitioners herein for selection in the impugned selection process on the basis of merit of aggregate marks obtained by the candidates in the Written Test and the Viva-voce without requirement of any minimum cut-off marks in the Viva-voce test.
(d) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Respondent No.1 to declare the marks of all candidates in the Written Test and Viva-voce conducted during the selection process to appoint District Judges by direct recruitment as notified vide Advertisement dated 24.06.2011 of Respondent no.1.
(e) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent no.
1 to consider Petitioner no. 2 herein on merit in the Scheduled Caste category on the aforesaid criterion of aggregate marks without requirement of any minimum cut-off marks in the Viva-voce test.
(f) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to provide relaxation in the percentage of cut-off marks for the candidates belonging to reserved categories such as SC/ST as per the rules of Government of Gujarat and High Courts of other States, and also to make provision for further relaxation in the age limit from the current 3 years to 5 years asper the Rules of the Government of Gujarat and High Courts of other States.
(g) Pending admission, hearing and final disposal of this petition, the Respondents No. 1 and 2 may kindly be directed not to proceed further with the selection, recruitment, and/or appointment of District Judges on the basis of aforesaid direct recruitment vide Advertisement dated 24.06.2011 of Respondent no.1.
(h) Grant ex-parte ad-interim relief in terms of prayer (g) above.
(I) Pass such other and further order as this Hon'ble Court may deem fit and proper.
2. The petitioners herein have challenged the selection process of Civil Judges in State of Gujarat. The case of the petitioner is that on 24.06.2011, this Court had invited applications from eligible Advocates for filling up, by competitive examination, 12 vacancies on regular basis and other ad-hoc vacancies that may be required to be filled in the cadre of District Judges by direct recruitment. A total of 774 candidates applied for the said examination, including the petitioners herein. A total of 149 candidates passed the Elimination Test, including the present petitioners. Out of them, a total of 28 candidates (including both petitioners) passed the Written Test, and appeared in the interview. However, after the interview, only 5 candidates were selected as against 12 vacancies notified.
3. It is contended on behalf of the petitioners that just before the aforesaid notification for the said selection process, the relevant statutory rules, Gujarat State Judicial Service Rules, 2005, were changed and a new requirement of minimum cut-off marks in the Interview was inserted, which was against the recommendation of Justice Shetty Commission (that was accepted by Hon'ble High Court) and also against the judgment of this Court. The marks for interview accounted to 20% of the total marks as against the maximum limit of 15% as laid down by the Hon'ble Supreme Court in the case of Ajay Hasia vs. Khalid Mujib Sehravardi reported in (1981) 1 SCC 722. It is also contended that examination has been conducted in a non-transparent, unjust and unfair manner. Candidates are not even informed about the marks obtained by them in the said examination, in violation of the right to information under Articles 21 of the Constitution. Likewise, Constitutional provisions relating to reservations to Scheduled Castes and Scheduled Tribes have not been implemented thereby putting the reserved candidates at disadvantage and treating them unequally.
4. It is contended on behalf of the petitioner that though the petitioner was eligible for the post of Civil Judge, notification for 40% marks in the viva-voce proved to be a ground for rejection of the candidate. It is contended that condition of obtaining minimum 40% marks in the viva-voce is contrary to recommendations made by Justice Shetty Commission.
5. The above mentioned chronology gives out that the petitioners have participated in the selection process, after having applied for the post in question, until the conclusion of the selection process without raising any objection against the selection process and/or applicable rules. Only after declaration of final results and publication of select list the petitioners have now chosen to challenge the selection process and the applicable rules. The select list was published on 15th February 2012 and present petition came to be circulated on 26th April 2012. During the process of selection the petitioners were aware about the applicable and relevant rules. With the said knowledge they participated in the selection process including viva-voce/interview. Now, when their names are not included in the select list i.e. when they have not succeeded in the selection process, the challenge is raised by the petitioners.
6. The petitioners seek to rely on the recommendations by Hon'ble Justice Shetty Commission's Report, particularly the recommendations under the title “DIRECT RECRUITMENT TO THE CADRE OF DISTRICT JUDGES”, (contained under sub-clause (iv) of paragraph No.10.97), which reads thus:
“(iv) The viva-voce Test should be in a thorough and Scientific Manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva-voce shall carry 50 marks. There shall be no cut off marks in viva-voce Test.”
7. In this context, the observations by the Apex Court in paragraph Nos. 11, 15 and 18 of the judgment in case of Ramesh Kumar v/s. High Court of Delhi & Anr. [(2010) 3 SCC 104] are relevant, which read thus:
“11. In State of U.P. v. Rafiquddin, Krushna Chandra Sahu & Ors. v. State of Orissa, Majeet Singh, UDC & Ors. v. Employees’ State Insurance Corporation and K.H. Siraj v. High Court of Kerala, this Court held that Commission/Board has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained “sufficient marks in viva voce” which would show his suitability for service. Such a course is permissible for adjudging the qualities/capacities of the candidates. It may be necessary in view of the fact that it is imperative that only persons with a prescribed minimum of said qualities/capacities should be selected as otherwise the standard of judiciary would get diluted and sub-standard stuff may get selected. Interview may also be the best mode of assessing the suitability of a candidate for a particular position as it brings out overall intellectual qualities of the candidates. While the written test will testify the candidate’s academic knowledge, the oral test can bring out or disclose 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.
15. Thus, law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum Bench Marks for written test as well as for viva- voce.
18. These cases are squarely covered by the judgment of this Court in Hemani Malhotra v. High Court of Delhi AIR 2008 SC 2103, wherein it has been held that it was not permissible for the High Court to change the criteria of selection in the midst of selection process. This Court in All India Judges’ case (supra) had accepted Justice Shetty Commission’s Report in this respect i.e. that there should be no requirement of securing the minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer the appointment to candidates who had secured the requisite marks in aggregate in the written examination as well as in interview, ignoring the requirement of securing minimum marks in interview. In pursuance of those directions, the Delhi High Court offered the appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle. In such a fact-situation, the question of acquiescence would not arise.”
8. In present case, it is not in dispute that the notification prescribed viva-voce (50 marks were allowed with cut off at 40%). As mentioned above, the petitioners participated in the elimination test, in written test and also in viva-voce and now the petitioners seek to challenge the said provision.
9. The petition has been filed by the petitioners after having participated in the selection process and maintainability of petition by the candidates who have participated in the selection process without objection is required to be considered in present petition.
10. Furthermore, the petitioners have not impleaded, as respondents, the successful candidates whose names are included in the select list and the learned counsel has submitted that in the facts of the case petition can be maintained without impleading the successful candidates.
11. After taking part in the process of selection knowing fully well that more than 40% marks have been earmarked for viva voce test, the petitioners are not entitled to challenge the criteria or process of selection. Surely, if the petitioners name had appeared in the merit list, they would not have challenged the selection process. The petitioners invoked jurisdiction of this court under Article 226 of the Constitution of India only after they found that their names do not figure in the merit list prepared by the Selection Committee. This conduct of the petitioners clearly disentitle them from questioning the selection. Reference in this connection may be made to the judgments in Madan Lal Vs. State of J & K (1995) 3 SCC 486; Marripati Nagaraja Vs. Govt. of A.P., (2007) 11 SCC 522; Dhananjay Malik Vs. State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah Vs. State of Assam, (2009) 3 SCC 227; K.A. Nagamani Vs. Indian Airlines (2009) 5 SCC 515 and Manish Kumar Shahi Vs. State of Bihar, (2010) 12 SCC 576.
12. In the result Special Civil Application is dismissed.
(K.S. Jhaveri, J.) Amar