1. The two petitioners have taken out present petition seeking below mentioned relief, declaration and directions:
"38(a) Issue an appropriate writ, order or direction, to quash and set aside Rule 8(3) of the Gujarat State Judicial Service Rules, 2005 (as amended in 2011) that requires minimum qualifying marks of forty percent (40%) in 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 (annexed hereto as Annexure F) for direct recruitment to the cadre of District Judges from amongst Advocates issued by Hon'ble Gujarat High Court, and to direct the Respondent No.1 to prepare a fresh Select List filling all notified vacancies declared vide Advertisement dated 24.06.2011 of Respondent No.1 (annexed hereto as Annexure B) without requirement of any minimum cut-off marks in the Viva-voce test and on the basis of aggregate 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 the 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 (annexed hereto as Annexure B).
(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 the Government of Gujarat and High Courts of other States, and also to make provision for further relaxation in age limit from the current 3 years to 5 years as per 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 the aforesaid direct recruitment vide Advertisement dated 24.06.2011 of Respondent No.1 (annexed hereto as Annexure B)."
2. It emerges from the record and from submissions by learned counsel appearing for the petitioners that two petitioners had tendered applications in response to the advertisement issued by High Court inviting applications from eligible advocates for filling up 12 vacancies on regular basis and certain other ad-hoc vacancies that may be required to be filled up in the cadre of District Judges by direct recruitment through process of competitive examination.
3. It also emerges from the record and submissions by learned counsel appearing for the petitioners that the petitioners participated in the entire selection process. It also emerges that when the petitioners did not find their names in the final select list, the petitioners initiated proceedings challenging the selection process and even the rules in light of which the selection process has been undertaken. Differently put, after not succeeding in the selection process, the petitioners have come forward challenging the selection process and the relevant and applicable rules.
4. After hearing the learned counsel for the petitioners, this Court directed that notice to be issued to the respondents and the process may be made returnable within a week i.e. on 9th May 2012. The order was passed on 3rd May 2012. Today, when the matter is taken up (being the returnable date), learned counsel appearing for respondent Registrar, Gujarat High Court, requested for time to file reply affidavit and to place relevant record related to the selection process, for consideration by the Court (on judicial side) in view of the challenge to the selection process raised by the petitioners.
5. Learned counsel for the petitioners opposed the request and submitted that in the alternative, interim relief as prayed for may be granted.
6. It is noticed from the diverse relief prayed for by the petitioners that the petitioners have prayed that by interim relief the respondents may be restrained from proceeding with recruitment and appointment pursuant to the advertisement dated 24.06.2011.
7. In view of the objections by learned counsel for the petitioners as regards the request made by learned advocate for respondent Registrar General, High Court of Gujarat, present order is passed.
8. It is necessary to take into account some relevant dates.
8.1. The advertisement inviting applications for recruitment on the post in question was issued on 24th June 2011.
8.2. The preliminary / elimination test was conducted on 4th September 2011.
8.3. The written test was conducted on 9th October 2011.
9. Until this stage, the petitioners did not challenge the rules in question (which were now brought under challenge in present petition).
10. Thereafter the results of the written test were declared on 29th December 2011 and after second week of January 2012 the interview / viva-voce was conducted.
11. The petitioners participated in the entire selection process up to this stage i.e. up to the stage of interview/viva-voce.
12. Until this stage also i.e. also even after appearing in the interview/viva-voce the petitioners did not challenge the selection process, much less the relevant and applicable rules including the requirement of interview/viva-voce or the provisions prescribing marks (as well as cut off marks) allotted to viva-voce.
13. The result, i.e. select list after completion of interview/viva-voce was declared on 15th February 2012.
14. The names of petitioners did not appear in the select list.
15. The petitioners, therefore, felt aggrieved.
16. After the publication of select list, the petitioners preferred petition before the Hon'ble Apex Court. Learned counsel for the petitioners has submitted that the petition before the Apex Court was filed on or around 23rd March 2012 (i.e. about a month after the select list was published). The Hon'ble Apex Court permitted the petitioners, by order dated 13th April 2012, to withdraw the writ petition with a liberty to approach High Court under Article 226 of Constitution of India.
17. Thereafter, present petition came to be filed on or around 25th April 2012 and was circulated for admission hearing, for first time, on 26th April 2012. The Division Bench passed below mentioned order on 26th April 2012.
"Both the petitioners are not the judicial officers. They are advocates and they have challenged the procedure of the higher judicial service examination and direct recruitment to the cadre of District Judge. We are having jurisdiction in the matter of judicial matters and other jurisdictions we do not have. Office shall verify the same and list this matter tomorrow i.e on 27th April, 2012, before the appropriate bench having the jurisdiction."
18. In view of the said order, the petition was placed before this Court on 27th April 2012. After couple of adjournments, the Court passed order dated 3rd May 2012 directing issuance of notice. The process of notice was made returnable on 9th May 2012, i.e. today.
19. As mentioned above, today, the learned counsel for Registrar General, High Court of Gujarat requested for time to file affidavit.
20. In the facts and circumstances of the case and considering the nature and scope of challenge raised by the petitioners and relief prayed for in present petition (the provision in relevant and applicable rules is also challenged), the Court is inclined to accept and grant request made by learned counsel for respondent - Registrar General, High Court of Gujarat. However, since after two days i.e. w.e.f. 12th May 2012 the Court would be closed for summer vacation, until 10th June 2012 and would re-open from 11th June 2012, the proceedings will have to be adjourned to any date after 10th June 2012.
21. Having regard to the aforesaid aspects and considering the request made by learned counsel appearing for respondent - Registrar General, the further hearing of present petition is deferred until 11th June 2012, i.e. the day of re-opening after summer vacation.
22. The petitioners have vehemently submitted that interim relief as prayed for may be granted when the hearing is being adjourned.
23. 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.
24. 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."
25. 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."
26. In present case, it is not in dispute that the relevant and applicable rules 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 provision under the relevant rules is challenged.
27. 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.
28. 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. The said submission is also required to be considered.
29. Besides this, the request made by the learned counsel for respondent - Registrar General, cannot, in the facts of the case, be considered unreasonable, the Court, as aforesaid, is inclined to grant the request. However, in light of the above facts, the relief in nature of direction to not to effect appointment on the posts in question on the basis of the selection process which is concluded on 15th February 2012, does not deserve to be granted at this stage.
30. At the end of the matter or at any subsequent stage after reply is entered, appropriate relief can be molded and granted if facts and circumstances so require and justify, however, in view of this Court, the relief as prayed for in para 38(g) does not deserve to be granted at this stage. The posts which are to be filled up cannot be directed to be kept vacant, as prayed for by the petitioners. The diverse aspects mentioned hereinabove e.g. (i) the two petitioners have participated in selection process right from beginning until the end,
(ii) only after being declared unsuccessful the petitioners have preferred the petition and challenged the selection process as well as the relevant rules, (iii) petition is filed on or around 25th April 2012 i.e. almost 2 months after the select list was published,
(iv) the 12 candidates whose names have been included in the select list have not been impleaded as party respondents in the petition, have arisen and are required to be considered before any relief, including any appropriate interim relief can be granted. The respondent - Registrar General has requested for time to file affidavit so as to place all relevant material on record. Above all, as mentioned hereinabove, any direction to keep the posts vacant, will not be and is not justified. Therefore, at this stage the said relief is not granted and hearing is adjourned to 11th June 2012.
(K.M.THAKER, J.) jani Top