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PETITIONER:

MADAN LAL & ORS.

Vs.

RESPONDENT:

THE STATE OF JAMMU & KASHMIR AND ORS.

DATE OF JUDGMENT06/02/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

VERMA, JAGDISH SARAN (J)

CITATION:

1995 AIR 1088 1995 SCC (3) 486

JT 1995 (2) 291 1995 SCALE (1)494

ACT:

HEADNOTE:

JUDGMENT:

1. This petition by to petitioners has brought in

challenge the process of selection of Munsiffs in the State

of Jammu and Kashmir undertaken by Jammu and Kashmir Public

Service Commission (hereinafter referred to as Commission),

pursuant to an advertisement notice, inviting applications

in the months of July and August, 1993. The said selection

of the concerned successful respondents has been challenged

on diverse grounds to which we will make a reference a

little later.

2. Now a glance at a few introductory facts. An

advertisement notice issued by 1993, invited applications

from eligible candidates for filling up posts of Munsiffs in

the State of Jammu and Kashmir. The petitioners being

eligible for competing for the said advertised posts

submitted their applications to the Secretary of the Com-

mission. Similarly, the concerned respondents who are

selected for the said posts also submitted their

applications. The Commission conducted the written exami-

nation in July and August, 1993 and thereafter vide

notification dated 27th April, 1994 candidates mentioned in

the notification were declared to have qualified for viva

voce test. In all 79 candidates were found qualified for

the viva voce test. 'Mat included the petitioners and the

contesting respondents. Under the Jammu and Kashmir Civil

Service (Judicial) Recruitment Rules of 1967 (hereinafter

referred to as rules') examination for selection of Munsiffs

consists of written examination and viva voce test. The

Commission, respondent no. 2 accordingly conducted the said

viva voce test under rule 10 of the aforesaid rules. On the

request of the Commission the Chief Justice of the High

Court is to nominate a Judge to act as an expert on the

Commission for the purpose of conducting the viva voce test.

In pursuance of this rule a viva voce test was conducted by

four Members of the Commission and an expert (sitting Judge

of the High Court) Mr. Justice B.A. Khan. The Chairman of

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the Commission respondent no. 3 and one member, namely,

respondent no. 4 did not participate in the viva voce test

on the ground that one of the candidates selected as per the

result of written test, namely, respondent no. 13 - Zaneb

Shams is a daughter of respondent no. 3 and daughter-in-law

of respondent no. 4.

3. According to the petitioners in the they were called

for oral interview. According to them they also fared well

in the viva voce test but they were kept guessing as to the

result of this test. They came to know that concerned

respondent nos. 618 and some others who had appeared at the

test were given confidential information to appear before

Medical Board for medical test while no such intimation was

sent to the petitioners. 'Mat gave them a cause for

apprehension that they may have been illegally left out of

selection for the said posts and that is why the present

petition is filed. The main prayers in the petition read as

under:-

a) Call for the records of the examination

conducted by Respondent No.2 for scrutiny by

this Hon'ble Court;

b) Issue an appropriate writ order or

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direction in the nature of certiorari quashing

the viva voce test of the said examination as

being invalid, arbitrary and against the

principles of natural justice and quashing the

candidature of the respondents IO & 13.

c) Issue an appropriate writ order or

direction in the nature of Mandamus commanding

the Respondent No. 2 to declare the result of

the written test of the candidates and may

give selections on the basis of the written

test alone and in the alternative to conduct

fresh viva voce test after removing defects in

it and for assessing the merits of the

candidates objectively.

d) To issue an appropriate Writ Order or

direction in the nature of prohibition

restraining the Respondents No, 1 & 2 and 5

from issuing the appointment letters to the

Selected Candidates whose list has not been

published as yet till the filing of this Writ

Petition, but are required to undergo medical

test vide Annexure-

4. A mere look at the prayers makes it clear that the

attack of the petitioner on the manner and method of

conducting' viva voce test and result thereof So far as the

result of written test is concerned not only the petitioners

have no grievance the same but they rely on the same. Their

main contention is that viva voce test was so manipulated

that only preferred candidates, by inflating their marks in

the viva voce test, were permitted to get in the select

list. It may be mentioned at this stage as revealed from

the record of this case, that the second respondent prepared

a select list of twenty successful candidates in the order

of merit on the basis of the aggregate of marks obtained by

them in written as well as viva voce test. The said merit

list of candidates recommended by respondent no. 2 for

appointment as Munsiffs consists of two parts. The first

part at annexure-C collectively deals with the general

category candidates. Sixteen such candidates have been

included in the general category merit list while there is

also a waiting list of five such candidates. At annexure-C

collectively is also found merit list of Scheduled Castes

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and Scheduled Tribes candidates who have been recommended

for appointment as Munsiffs pursuant to aforesaid selection.

Two candidates belonging to Scheduled Caste and two

candidates belonging to Scheduled Tribe are found to have

been listed in reserved category as seen from the said

annexure. It thus becomes clear that sixteen candidates

from general category and two candidates each from reserved

categories of Scheduled Caste and Scheduled Tribe, in all

twenty candidates are so recommended.

5. After petitioners moved this petition, it was admitted

to final hearing and the stay of the appointments of

concerned selected candidates was also granted.

6. At the final hearing of this petition the learned senior

counsel for the petitioners raised the following contentions

in support of the petition.

1) The impugned viva voce test conducted by the

respondent no. 2, Commission is patently illegal as there is

nothing to show that the Members who conducted the test had

assigned separate marks faculty-wise for assessing the

performance of the concerned candidates as per rule 10 of

the rules.

2) The expert, namely, the sitting

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Judge of the High Court was entitled to award only 60 marks

for viva voce test while the remaining 80 marks were per-

mitted to be given by other members of the Commission and

that affected the overall assessment of the candidates in

the viva voce test which as a whole comprised of 140 marks.

3) There is nothing to show that any tape-recording was

done regarding the questions put to candidates and the

answers given by them at the viva voce test and that has

vitiated the said test.

4) The petitioners fared very well in the written test as

compared to the selected candidates, respondents herein and

still at the viva voce test they were pushed down by

assigning very low marks as compared to contesting

respondents and thus they were treated unfairly at the said

viva voce test.

5) The viva voce test was conducted in an unfair manner

only with a view to select candidates belonging to a

particular community as the list of candidates recommended

shows. Therefore, the entire test is vitiated being totally

arbitrary and lopsided.

6) Respondent No. IO and respondent no. 13 whose names

were included in the impugned list of recommended candidates

were not eligible to be appointed as Munsiffs as they failed

to satisfy the eligibility requirement of rule 9 of the

rules in as much as they had not put in 2 years of actual

practice at the bar by the date on Which he or she submitted

his or her application for such recruitment and hence their

names should be eliminated from the merit list of open

category candidates.

7) In any case respondent no. 13 being daughter of the

Chairman of the Commission and daughter-in-law of another

Member thereof was given a special favourable treatment by

unduly inflating her marks in the viva voce test so that any

how she would get selected for the advertised post and hence

her selection is bad in law.

8) That preparation of the merit list of 16 candidates

from general category and 4 candidates from reserved

category, in all 20 is in any case bad and violative of rule

41 of the rules as the vacancies for which the advertisement

was issued by the Commission were only 11 and requisition

was sent by the Govt. for selection of suitable candidates

through the Commission for those vacancies.

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7. The learned counsel for the contesting respondents

comprising of selected candidates as well as the State of

Jammu & Kashmir and the Commission have resisted these

contentions and have submitted that there was nothing wrong

with the selection process so far as viva voce test was

concerned and that the petition is devoid of merits and is

required to be dismissed.

8. It is now time for us to deal with the contentions

canvassed by the learned senior counsel in support of the

petition. We shall deal with these contentions seriatim.

Contention No. 1

9. Before dealing with this contention, we must keep in

view the salient fact that the petitioners as well as the

contesting successful candidates being concerned

298

respondents herein, were all found eligible in the light of

marks obtained in the written test, to be eligible to be

called for oral interview. Upto this stage there is no dis-

pute between the parties. The petitioners also appeared at

the oral interview conducted by the concerned Members of the

Commission who interviewed the petitioners as well as the

concerned contesting respondents. Thus the petitioners took

a chance to get themselves selected at the said oral

interview. Only because they did not find themselves to

have emerged successful as a result of their combined

performance both at written test and oral interview, that

they have filed this petition. It is now well settled that

if a candidate takes a calculated chance and appears at the

interview then, only because the result of the interview is

not palatable to him he cannot turn round and subsequently

contend that the process of interview was unfair or

Selection Committee was not properly constituted. In the

case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors.,

(AIR 1986 SC 1043), it has been clearly laid down by a Bench

of three learned Judges of this Court that when the

petitioner appeared at the examination without protest and

when he found that he would not succeed in examination he

filed a petition challenging the said examination, the High

Court should not have granted any relief to such a

petitioner.

10. Therefore, 'the result of the interview test on merits

cannot be successfully challenged by a candidate who takes a

chance to get selected at the said interview and who

ultimately finds himself to be unsuccessful. It is also to

be kept in view that in this petition we cannot sit as a

Court of appeal and try to reassess the relevant merits of

the concerned candidates who had been assessed at the oral

interview nor can the petitioners successfully urge before

us that they were given less marks though their performance

was better. It is for the Interview Committee which amongst

others consisted of a sitting High Court Judge to judge the

relative merits of the candidates who were orally

interviewed in the light of the guidelines laid down by the

relevant rules governing such interviews. Therefore, the

assessment on merits as made by such an expert committee

cannot be brought in challenge only on the ground that the

assessment was not proper or justified as that would be the

function of an appellate body and we are certainly not

acting as a court of appeal over the assessment made by such

an expert committee.

11.In the light of the aforesaid settled legal. position let

us see whether there is any substance in the contentions

canvassed before us by the learned senior counsel for

unsuccessful candidates at the oral interview.

12.So far as the first contention is concerned learned

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senior counsel for petitioners submitted that rule 10 of the

rules lays down that the examination for selection of

candidates shall consist of written examination as well as

viva voce test. So far as written examination is concerned

it is not challenged before us as noted earlier. So far as

viva voce test is concerned rule 10(1)(b) lays down as

under:-

"'The object of viva-voce examination is to

assess the candidates' intelligence, general

knowledge, personality, aptitude and

suitability."

The learned senior counsel for petitioners submitted that

when a candidates is orally

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interviewed, the members of the committee should assign

separate marks for the different faculties of the concerned

candidate namely, intelligence, general knowledge, etc, as

laid down in the rule and that does not appear to have been

done by the interviewing committee and hence the entire viva

voce test is vitiated. In this connection, reliance was

placed on the decision of this Court in Minor A.

Peeriakaruppan & Sobha Joseph v. State of Tamil Nadu and

Ors. (1971 (1) SCC 38).

13.It is not possible to agree with this contention. So far

as rule 10(1)(b) is concerned it does not provide for any

separate assessment of marks for candidates at viva voce

examination faculty-wise, that is on intelligence, general

knowledge, etc. listed in the said rule. On the contrary,

it appears that as per the said rule, while conducting viva

voce examination the Committee has to keep in view the main

object of assessing such candidates in the light of the

guidelines given therein. In other words, the interviewing

committee has to keep in view the overall performance of the

candidates at the oral inter-view and while doing so their

intelligence, general knowledge, personality, aptitude and

suitability have to be kept in the centre. The rule merely

lays down the object of assessing such candidates in the

viva voce examination. It is a general guideline given to

the interviewing committee members. Therefore,.it is not

possible to agree with the submission of the senior counsel

for petitioners that the members of the interview committee

must separately assess and give marks on different listed

topics faculty-wise as per the said rule. So far as the

decision of this Court in Minor A. Peeriakaruppan v. State

of Tamil Nadu and Ors. is concerned it has to be kept in

view that this Court was dealing with admissions to M.B.B.S.

course in the State of Tamil Nadu. The selection committee

was constituted for assessing the merits of the concerned

applicants for such admissions at oral interview after

written test. 75 marks were assigned for oral interview.

The selection committee was. asked to award these marks on

the basis of following five tests

1. Sports of National Cadet Corps ac-

tivities;

2. Extra curricular special services;

3. General physical condition and

endurance;

4. General ability; and

5. Aptitude.

14.Now it becomes at once clear that when 75 marks were to

be assigned to a candidate called for oral interview on the

basis of the aforesaid five types of performances by the

candidate, the assessment on first three tests would depend

upon documentary evidence regarding his career record which

the candidates can furnish to the interview committee while

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the last two tests will depend upon his performance at the

interview. In view of this hybrid type of tests for which

assessment was to be made at the oral intervire, 75 marks

assigned for all these five tests necessarily had to be

split up and from the carrier record of the candidate,

separate marks had to be assigned for first three tests and

that necessarily required separate assessment of marks on

the remaining two heads of tests. It is in the light of

this requirement of peculiar type of marking at the oral

inter-

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view that it has been observed in para 16 & 17 of the report

that it was clearly illegal to give marks in a lumpsum and

that the committee had not divided the marks under various

heads nor on the basis of item-wise. It is also to be kept

in view that while selecting a student for admission in

M.B.B.S. course, what is more important is his performance

in the written test and even at the oral interview his past

record of performance has its own weight. A student while

undertaking study is not required to perform any duty of a

public office. But in the case of recruitment to the posts

of Munsiffs he is required to work at the grass-root level

of State Judiciary. For candidates aspiring to be appointed

in such a judicial office, apart from the written test, his

overall performance at oral interview is more important and

consequently split up of the marks on various sub-heads at

oral interview of such a candidate may not be strictly

necessary unless the concerned rule regulating such a viva

voce test expressly provides to that effect. As we have,

seen earlier rule 10(1)(b) does not so prescribe and hence

it was open to the members of the committee to make an

overall assessment of the interviewed candidates keeping in

view the various factors for such assessment as laid down by

the said rule. 'Mat is precisely what has been done in the

present case as stated by Dr. Girija Dhar a member of the

interview committee in para 3 of her affidavit in reply. It

is stated by her that the only considerations which the

Members of the Interview Board had during the viva voce test

were to judge the candidates on the basis of their

intelligence, general knowledge, personality, aptitude and

suitability as required by rule 10(1)(b) of the recruitment

rules, that all the question directed at the viva voce test

to the candidates were with this object in view and the

assessment had been made of the candidates at the viva voce

test accordingly. As a matter of fact, the particulars

furnished by the candidates in their applications in

pursuance of the advertisement only had been placed before

the Members of the Interview Board. The results of the

candidates at the written examination were not placed before

the Members of the Interview Board. Nothing has been

pointed out by the learned counsel for petitioners to

disbelieve this version. No bias is also alleged against

her or any other member who made the selection. It cannot

therefore be said that rule 10(1)(b) was violated by the

interview committee while conducting viva voce test. It may

also be mentioned at this stage that decision of this Court

in Minor A. Peeriakaruppan v. State of Tamil Nadu and Ors.

(supra) (1971 (1) SCC 38) was later considered by this Court

in the case of Lila Dhar v. State of Rajasthan (1981 (4) SCC

159). in Lila Dhar's case this Court distinguishing the

ratio in Peeriakaruppan's case (supra) observed as under:-

"It is true that in Peeriakanippan case (AIR

1971 SC 2303) the Court held that the non-

allocation of marks under various heads in the

interview test was illegal but that was

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because the instructions to the Selection

Committee provided that marks were to be

awarded at the interview on the basis of five

distinct tests. It was thought that the

failure to allocate marks under each head or

distinct test was an illegality. But in the

case before us, the rule merely and generally

indicates the criteria to be considered in the

interview test without dividing the interview

test into distinct, if we may so call them,

sub-tests........

The aforesaid decision in Lila Dhar's case

301

was approved by a Constitution Bench of this Court speaking

through Bhagwati, J. as he then was in Ashok Kumar Yadav v.

State of Haryana (1985 (4) SCC 417). This aspect was also

considered later by a Division Bench of this Court speaking

through Chinnappa Reddy, J. in Dr. Keshav Ram Pal v. UP.

Higher Education Services Commission, Allahabad & Ors. (AIR

1986 SC 597). An identical contention concerning viva voce

test conducted by the interview board which had not sub-

divided the total marks into sub-heads was rejected in that

case. Chinnappa Reddy, J. speaking for the Division Bench

observed that interview board was not under any obligation

to sub-divide the marks under various heads. The Court

noted that the basis of selection in that case was to assess

the candidates academic attainments, technical experience,

administrative experience and suitability for the -post of

Principal. In the light of that-rule it was held by this

Court in the aforesaid decision that the interview board was

not under any obligation to sub-divide the marks under vari-

ous heads. Almost an identical position obtains in the

present case. Consequently, it must be held that there was

no obligation for the members of the Commission to give

separate marks under various heads faculty-wise as mentioned

in rule 10(1)(b). The first contention therefore fails and

is rejected.

Contention No. 2

15. So far as contention no. 2 is concerned it is difficult

to appreciate how it can be urged that expert was allotted

only 60 marks for assessment while the remaining assessment

was done by the other members. There is no factual basis on

the record of this case for supporting this contention. On

the other hand, the averments made by Dr. Girija Dhar in the

reply affidavit clearly shows that all the members of the

interview committee participated in the process of selection

of candidates at the oral interview keeping in view the re-

quirement of rule 10(1)(b). The second contention therefore

also, being devoid of any factual basis, stands rejected.

Contention No. 3

16.It is difficult to appreciate this contention. Rule

10(1)(b) to which we made reference earlier nowhere provides

that tape-recording should be kept of questions put by the

members of the committee and the answers given by the

concerned candidates at the oral interview and that in the

absence of such tape-recording the interview process would

fail. The learned senior counsel for the petitioners in

this connection invited. our attention to a Constitution

Bench decision of this Court in the case of Ajay Hasia &

Ors. v. Khalid Mujib Sehravardi & Ors. (1981 (1) SCC 722).

That was a case in which the Constitution Bench dealt with

the claim of petitioners for admission in B.E. course. The

candidates had appeared in written test and then they were

called for oral interview. Rejecting the contention of the

petitioner that the oral test was defective, it was observed

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that oral interview is undoubtedly not a very satisfactory

test for assessing and evaluating the capacity and caliber

of candidates, but in the absence of any better test for

measuring personal characteristics and traits, the oral

interview test must, at the present stage, be regarded as

not irrational or irrelevant though it is subjective and

based on first impression, its result is influenced by many

uncertain factors and it is capable of abuse. However, in

the

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matter of admission to college or even in the matter-of

public employment, the oral interview test as presently held

should not be relied upon as an exclusive test, but it may

be resorted to only as an additional or supplementary test

and, moreover, great care must be taken to see that persons

who are appointed to conduct the oral interview test are men

of high integrity, calibre and qualification. It is to be

kept in view that Bhagwati, J. as he then was, speaking for

the Court in that case ultimately dismissed the petitions

subject to certain general observations and directions. So

far as tape-recording is concerned, as one of the

contentions of the petitioners was that the oral interview

was held in an arbitrary and slip sort manner, an

observation was made in para 20 of the report to the effect

that it would also be desirable if the interview of the

candidates is tape-recorded, for in that event there will be

contemporaneous evidence to show what were the questions

asked to the candidates by the interviewing committee and

what were the answers given and that will eliminate a lot of

unnecessary controversy besides acting as a check on the

possible arbitrariness of the interviewing committee. These

observations cannot be read to mean that in the absence of

tape-recording of questions and answers the interview

process would fail or the result of the interview would get

vitiated. In the very writ petitions decided by the

Constitution Bench, even though were was no tape-recording

of questions and answers, interview test was upheld. It

appears that the aforesaid observation only suggests a

better method for insulating oral interviews against

possible future attacks of arbitrariness and nothing more.

Consequently, it cannot be said that merely because there is

nothing on the record to show that any tape-recording of

questions and answers at the interview was done, the viva

voce test should on that score fail. Therefore, this

contention also stands rejected.

Contention No. 4

17.In the light of what is stated above, while dealing with

contention no. 1, this contention also must fail. The

petitioners subjectively feel that as they had fared better

in the written test and had got more marks-therein as

compared to concerned selected respondents, they should have

been given more marks also at the oral interview. But that

is in the realm of assessment of relative merits of

concerned candidates by the expert committee before whom

these candidates appeared for the viva voce test. Merely on

the basis of petitioners apprehension or suspicion that they

were deliberately given less marks at the oral interview as

compared to the rival candidates, it cannot be said that the

process of assessment was vitiated. This contention is in

the realm of mere suspicion having no factual basis. It has

to be kept in view that there is not even a whisper in the

petition about any personal bias of the members of the

interview committee against the petitioner. They have also

not alleged any mala fides on the part of the interview

committee in this connection. Consequently, the attack on

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assessment of the merits of the petitioners cannot be

countenanced. It remains in the exclusive domain of the

expert committee to decide whether more marks should be

assigned to the petitioners or to the concerned respondents.

It cannot be the subject matter of an attack before us as we

are not sitting as a court of appeal over the assessment

made by the committee so far as the candidates interviewed

by them are concerned.

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In the light of the affidavit in reply filed by Dr. Girija

Dhar to which we have made reference earlier, it cannot be

said that the expert committee had given a deliberate

unfavorable treatment to the petitioners. Consequently,

this contention also is found to be devoid of any merit and

is rejected.

Contention No. 5

18.This contention is equally devoid of any merit. The

submission of the learned senior counsel for the petitioners

is that a mere look at annexure-C will show that the merit

list of open category candidates recommended for appointment

comprises of majority of candidates belonging to one

community only and therefore the committee has shown special

liking for such candidates who are preferred by inflating

their marks in the oral interview. To say the least, it is

a mere conjecture on the part of the petitioners. The very

first candidate in the order of merits is roll no. 100 who

does not belong to the other community. He is one Sh.

Vinod Chatterji. Similarly, there are also other candidates

in the said merit list of 16 candidates who do not belong to

the other community' Once the interview process is found to

be proper and justified and not being vitiated by any mala

fides, the result of the viva voce test may project a

picture in which more candidates from one community may get

selected on merits but that is neither here nor there. The

validity of viva voce test cannot be judged simply on the

basis of the result thereof unless there is anything to show

that the entire selection process was vitiated on account of

mala fides or bias or that the interview committee, members

had acted with an ulterior motive from the very beginning

and the whole selection process was a camouflage. No such

allegations have been made by the petitioners against the

selectors who sat in the interview committee. Consequently

even this contention is found to be devoid of any factual

basis and stands rejected.

Contention No. 6

19. So far as this contention is concerned the submission

of learned senior counsel for the petitioners is that as

per rule 9 of the rules a candidate for recruitment to the

service must have put in at least two years actual practice

at the bar by the date on which he submits his application

for such recruitment and must produce a certificate to this

effect from the District Judge within the local limits of

whose jurisdiction he has practiced at the Bar. It is

submitted that neither respondent no. IO nor respondent no.

13 had Out in two years of actual practice at the bar. This

contention is sought to be repelled by the respondents.

They submitted that the District Judge of Jammu has issued

requisite certificates to both these candidates showing that

they had put in at least 2 years of actual practice at the

bar. It may be noted that learned counsel for the peti-

tioners submitted that so far as the certificate issued by

District Judge to respondent no. 10 is concerned he had

nothing more to say but according to him, there is nothing

on record to show that such a certificate was available to

respondent no. 13. During the course of arguments learned

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counsel for respondents showed to us a certificate issued to

respondent no. 13 by the District Judge, Jammu. That was

shown to the learned counsel for the petitioners who

thereafter did not pursue this objection further. However,

he submitted that according to him this certificate may not

be correct as atleast respondent no. 13

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was stationed in Leh where her husband was a police officer.

This contention is controverted by the respondents. Even

apart from that the rule requires production of certificate

by District Judge within whose local limits of jurisdiction

the concerned advocate should have practiced at the bar.

The Commission would be justified in not going behind the

certificate issued by the concerned District Judge and in

not holding any further enquiry into the extent of actual

practice put in by such candidate at the bar for being

permitted to appear at the written and viva voce test. As

both these candidates are armed with certificates which

clearly indicated that before 28th December '92, being the

last date for submitting applications by concerned

candidates for such recruitment, these candidates had

completed atleast 2 years of actual practice at the bar as

certified by their District Judge, it cannot be urged with

any emphasis that still they are not eligible to compete for

the said posts.

20.It was next vehemently contended by the petitioners that

actual practice would mean that the concerned candidates

should have appeared before courts and conducted cases

during these two years. It is difficult to accept this

contention. A member of the bar can be said to be in actual

practice for 2 years and more if he is enrolled as an

Advocate by the concerned Bar Council since 2 years and more

and has attended law courts during that period. Once the

Presiding Officer of the District Court has given him such a

certificate, it cannot be said that only because as an ad-

vocate he has put in less number of appearances in courts

and has kept himself busy while attending the courts

regularly by being in the law library or in the bar room, he

is not a member of the profession or is not in actual

practice for that period. The words 'actual practice' as

employed in rule 9 indicate that the concerned advocate must

be whole time available as a professional attached to the

concerned court and must not be pursuing any other full time

avocation. To insist that the terms 'actual practice'

should mean continuous appearances in the court would amount

to rewriting the rule when such is not the requirement of

the rule. There is no substance even in this additional

aspect of the matter canvassed by the learned senior counsel

for the petitioners. It must therefore be held that

respondent no. 10 & 13 were eligible for competing for the

said posts of Munsiffs.

21.It is difficult to appreciate how only because respondent

no. 13 was the daughter of the Chairman and daughter-in-law

of another Member of the Commission, both of whom

disassociated themselves from the selection process as she

was competing, can be said to be disqualified from being

considered for selection only on the ground of her

relationship with the concerned Members of the Commission.

The learned senior counsel for the petitioners fairly

submitted that relatives of Members simpliciter are not

disqualified but his contention was that other Members of

the Commission are also bureaucrats and would be having

liking and soft comer for each other. They may therefore

try to push up the relative- of the Chairman by inflating

her marks at the oral test. Such a contention, to say the

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least, is totally outside the scope of the present

proceedings. As we have noted earlier, it is not alleged by

the petitioners that the Members of the Interview Committee

were biased either against the petitioners or in favour of

any given candidate. In the absence of such

305

pleading of bias and mala fides such a hypothetical

contention, only based on the result of the oral interview

cannot be sustained. It is also to be kept in view that

there is one salient feature of the case which contra-

indicates this contention. As noted earlier there were 11

vacancies of Munsiffs for which the selection process was

started by the Commission as recommended by the State of

Jammu and Kashmir. So far as respondent No. 13 is concerned

her rank on merits of open category candidates is at sl. no.

14, in the light of the marks obtained by her. There are 13

candidates above her who have got more marks. Therefore, if

11 vacancies were to be filled in, respondent no.13 would be

left out. If what the petitioners contended was true and if

the Members of the Commission were interested in seeing that

anyhow she walks in an for that purpose they were to inflate

her marks, they would have resorted to inflating her marks

to such an extent that she would clearly walk in the list of

first 11 selected candidates. Consequently there is no

substance in this contention of learned counsel for the

petitioners. In this connection, we may also profitably

recapitulate what is stated in para 2 of the affidavit in

reply of Dr. Girija Dhar. She has clearly stated that as a

matter of fact the particulars furnished by the candidates

in their applications in pursuance of the advertisement only

had been placed before the Members of the Interview Board.

The results of the candidates at the written examination

were not placed before the Members of the Interview Board.

These averments could not be successfully challenged by the

learned counsel for the petitioners. Consequently, it must

be held that the Members of the Interview Committee were not

knowing as to what marks were obtained by the candidates at

the written test. Therefore, there would be no occasion for

them to manipulate the marks of any candidate at the oral

interview so as to bring them in the light of the marks

obtained by him in the written test to a total which would

make him eligible to be included in the select list of first

II candidates as there were only 11 clear vacancies.

Consequently, there is no substance even in this grievance

of the petitioners.

Contention No.8

22.This takes us to the last contention. The learned

counsel for the petitioners submitted that as per the

requisition forward by the State of Jammu and Kashmir

through the Secretary to the Law Department, the second

respondent was required to hold the selection process for

recruiting candidates from open market for filling up 11

vacancies. The said letter of the Secretary to the

Government, Law Department is at annexure-A to the petition.

It reads as under: -

GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECTT

:LAW DEPARTMENT

TO

The Secretary,

J & K State Public Service

Commission, Srinagar

No. LD(A)92/78

Dated: 22.7.1992

Subject: Selection of Candidates for ap-

pointment as Munsiffs in the Judicial

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Department.

Sir,.

I am directed to say that the Public Service

Commission may kindly start a process in

accordance with the Jammu

306

and Kashmir Civil Service (Judicial) Re-

cruitment Rules, 1967 for selection of can-

didates for appointment as Munsiffs in the

K.C.S. (Judicial) Service. However,

considering the fact that only 11 vacancies

are presently available, only a select list of

twenty candidates inclusive of Scheduled

Castes/Scheduled Tribes candidates as per

their reservation quota may kindly be prepared

and furnished to the Government. No waiting

list of candidates is 'required.

Yours faithfully,

Sd/-

G.A Lone,

Secretary to Government Laws

Department"

A mere look at the letter shows that the Government

requested the Commission to hold selection for filling up II

clear vacancies only. The letter nowhere showed that more

vacancies were likely to arise in future and selection may

be held also for such anticipated vacancies. It is true

that the letter mentioned that a select list of 20

candidates may be prepared and furnished to the Government

but these 9 additional candidates would serve as waiting

list candidates from which eligible candidates can be drawn

in order or merits if any of the first 11 candidates

selected did not join or for any reason could not join.

'Mat is the precise reason why no separate list of waiting

list candidates was directed to be prepared. Learned senior

counsel for the petitioners was right when he submitted that

the recruitment process in the present case was only for

filling up II existing clear vacancies of Munsiffs. It is

not possible to agree with the respondents that this req-

uisition also took note of anticipated vacancies during the

course of one year and therefore it can be said to be a

requisition for recruiting 20 candidates on clear and

anticipated vacancies. If that was so, the contents of the

letter would have been different. We agree with the learned

counsel for the respondents that while sending the

requisition for recruitment to posts the Government can keep

in view not only actual vacancies then existing but also an-

ticipated vacancies during one more year or for a given

period of time and in that case the requisition would cover

actual vacancies and anticipated ones. But one the clear

wordings of the aforesaid letter, it is not possible to

agree with this submission. It must be held that the

requisition in the present case by the Government was for

holding selection tests by the Commission for fillings up

11 clear vacancies and nothing more. No anticipated

vacancies were contemplated to be filled in. The process of

recruitment was got initiated by the State through the

Commission, for only eleven clear vacancies.

23. It is no doubt true that even if requisition is made by

the Government for II Dosts the public Service Commission

may 'send merit list of suitable candidates which may exceed

11. That by itself may not be bad but at the time of giving

actual appointments the merit list has to be so operated

that only 11 vacancies are filled up, because the

requisition being for 11 vacancies, the consequent

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advertisement and recruitment could also be for 11 vacancies

and no more. It easy to visualise that if requisition is

for 11 vacancies and that results in the initiation of

recruitment process by way of advertisement, whether the

advertisement mentions filling up of 11 vacancies or not,

the prospective candidates can easily find out from the

Office of the Commission that the requisition for the

proposed recruitment is for filling up 11 vacancies. In

such a case a given can-

307

didate may not like to compete for diverse reasons but if

requisition is for larger number of vacancies for which

recruitment is initiated he may like to compete. Conse-

quently the actual appointments to the posts have to be

confined to the posts for recruitment to which requisition

is sent by the Government. In such an eventuality,

candidates in excess of 11 who are lower in the merit list

of candidates can only be treated as wait listed candidates

in order of merit to fill only the eleven vacancies for

which recruitment has been made, in the event of any higher

candidate not being available to fill the 11 vacancies, for

any reason. Once 11 Vacancies are filled by candidates

taken in order of merit from the select list that list will

get exhausted, having served its purpose.

24.It is now time to refer to rule 41 as pointed out by the

learned counsel for the petitioners. The said rule reads as

under:-

"Security of the list. The list and the

waiting list of the selected candidates shall

remain in operation for a period of one year

from the date of its publication in the

Government Gazette or till it is exhausted by

appointment of the candidates whichever is

earlier, provided that nothing in this rule

shall apply to the list and the waiting list

prepared as a result of the examination held

in 1981 which will remain in operation till

the list or the waiting fist is exhausted.

A mere look at the rule shows that Pursuant to the

requisition to be forwarded by Government to the Commission

for initiating the recruitment process, if the Commission

has prepared merit list and waiting list of selected

candidates such list will have a life of one year from the

date of publication in Government Gazette or till it is

exhausted by the appointment of candidates, whichever is

earlier. This means that if requisition is for filling up

of II vacancies and it does not include any anticipated

vacancies, the recruitment to be initiated by the Commission

could be for selecting 11 suitable candidates. 'The Com-

mission may by abundant caution prepare a merit list of 20

or even 30 candidates as per their inter se ranking on

merits. But such a merit list will have a maximum life of

one year from the date of publication or till all the

required appointments are made whichever even happened

earlier. It means that if requisition for recruitment is

for 11 vacancies and the merit list prepared is for 20

candidates, the moment 11 vacancies are filled in from the

merit list the gets exhausted, or if during the span of one

year from the date of obligation of such list all the 11

vacancies are not filled in, the moment the year is over the

list gets exhausted. In either event, thereafter, if

further vacancies are to be filled in or remaining vacancies

are to be filled in, after one year, a fresh opportunity to

all the open market candidates to compete. This is the

thrust of rule 41. It is in consonance with the settled

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legal position as we will presently see. We cannot agree

with the learned counsel for respondents that during the

period of one year even if all the 11 vacancies are filled

in for which requisition is initiated by the State in the

present case and if some more vacancies arise during the one

year, the present list can still be operated upon because

the Commission has sent the list of 20 selected candidates.

As discussed above, the candidates standing at serial nos.

12 to 20 in the list can be considered only in case within

one year of its publication, all the 11 vacancies do not

get filled up for any reason. In such a case only this

additional list of

308

selected candidates would serve as a reservoir from which

meritorious suitable candidates can be drawn in order of

merit to fill up the remaining requisitioned and advertised

vacancies, out of the total 11 vacancies. If that cannot be

done for any reason within one year of the publication of

the list, even this reservoir will dry up and the entire

list will get exhausted. We asked learned counsel for

respondents State to point out whether after the letter at

page 87, there was any further communication by the State to

the Commission to initiate process for recruitment to

additional anticipated vacancies. He -fairly stated that no

further request was sent. That letter at page 87 is the

only material for this purpose since that is the basis for

the recruitment made by the Commission in the present case.

In this connection, we may usefully refer to a decision of

this Court in the Case of State of Bihar v. Madan Mohan

Singh & Ors. (AIR 1994 SC 765). In that case appointments

to the posts of Additional District and Sessions Judges were

being questioned. The question was whether appointments

could be made to more than 32 posts when the selection pro-

cess was initiated for filling up 32 vacancies and whether

the merit list of larger number of candidates would remain

in Operation after 32 vacancies were filled in. Negativing

the contention the such merit list for larger number of

candidates could remain in operation after 32 advertised va-

cancies were filled in, K. Jayachandra Reddy, J. made the

following pertinent observations:-

"Where the particular advertisement and the

consequent selection process were meant only

to fill up 32 vacancies and not to fill up the

other vacancies, the merit list of 129

candidates prepared in the ratio of 1:4 on the

basis of the written test as well as viva voce

will hold good only 'for the purpose of

filling up those 32 vacancies and no further

because said process of selection for those 32

vacancies got exhausted and came to an end.

If the same list has to be kept subsisting for

the purpose of filling up other vacancies also

that would naturally amount to deprivation of

rights of other candidates who would have

become eligible subsequent to the said

advertisement and selection process.

Reliance placed by the learned counsel for respondents in

the case of Asha Kaul (Mrs) and Anr. Vs. State of Jammu

and Kashmir and Ors. (1993 (2) SCC 573), is of no avail. In

that case the very same Jammu and Kashmir Government had

sent a requisition to the Public Service Commission to

select 20 candidates for the posts of Munsiffs in accordance

with the High Court requirement. Therefore, the Commission

advertised for recruitment to the said posts and held

written test and oral interview. The Commission having

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selected 20 candidates in the order of merits and also

having prepared a waiting list of candidates, the State of

Jammu and Kashmir did not appoint even selected 20

candidates on these advertised posts. The High Court

rejected the writ petition praying for a suitable writ of

mandamus to the State to fill up the remaining vacancies out

of 20 for which recruitment was made. The petitioners

approached this court in appeal by way of special leave.

This court speaking through Jeevan Reddy, J took the view

that though inclusion in the select list does not confer any

indefeasible right to appointment, there was an obligation

for the Government to fill up all the posts for which

requisition and advertisement were given. However on the

peculiar facts of the case, the court did not think it fit

to interfere. This court in para 10 of the

309

report clearly observed that by merely approving the list of

20 there was no obligation on the Government to appoint them

forthwith. The appointment depends upon the availability of

the vacancies. The list remains valid for one year from the

date of its approval and date of publication and if within

such one year any of the candidates therein is not

appointed, the list lapses and a fresh list has to be

prepared. Though a number of complaints had been received

by the Government about the selection process, if the

Government wanted to disapprove or reject the list, it ought

to have done so within a reasonable time of the receipt of

the select list and for reasons to be recorded. Not having

done that and having approved the list partly (13 out of 20

names), they cannot put forward any ground for not approving

the remaining list. It is difficult to appreciate how this

judgment can be of any avail to the respondents. In the

case aforesaid before this court there was a clear

requisition and recruitment for 20 posts. The State had

however chosen to appoint only 13 out of 20. The list had a

life of one year till all the 20 posts were fill up. This

was in consonance with rule 41. In the present case the

facts are different. The requisition is not for 20

vacancies as in Asha Kaul's case but for 11 posts. There is

no requisition to fill up any anticipated more vacancies.

Once the list is approved eventhough it may contain names of

20 candidates, the list in the present case will get

exhausted once 11 vacancies for which advertisement had been

issued and recruitment is made are filled up.

25.At this stage we may profitably refer to one more

decision of this court in Hoshiar Singh Vs. State of

Haryana and Ors. (1993 supp (4) SCC 377). In that case of

requisition for recruitment as sent by the Director General

of Police to the Haryana Subordinate Services Selection

Board was for appointment of 8 posts of Inspector of Police.

The Board however sent the list of 19 selected candidates,

out of them 18 persons were given appointments. The

appointments on posts beyond the 8 posts for which

requisition was made by the Director General of Police were

brought in challenge before the High Court. The High Court

accepted the challenge and held that appointments beyond 8

posts were illegal. This Court while upholding the decision

of High Court speaking through Agrawal, J. observed in para

10 of the report as under:-

"The learned counsel for these appellants have

not been able to show that after the revised

requisition dated January 24, 1991 whereby the

Board was requested to send its recommendation

for 8 posts, any further requisition was sent

by the Director General of Police for a larger

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number of posts. Since the requisition was

for eight posts of Inspector of Police, the

'Board was required to sent its

recommendations for eight posts only. The

Board, on its own, could not recommend names

of 19 persons for appointment even though the

requisition was for eight posts only because

the selection and recommendation of larger

number of persons than the posts for which

requisition is sent. The appointment on the

additional posts on the basis of such

selection and recommendation would deprive

candidates who were not eligible for

appointment to the posts on the last date for

submission of applications mentioned in the

advertise and who became eligible for

appointment thereafter, of the opportunity of

being considered for appointment on the

additional posts because if the said

additional posts are advertised subsequently

those who become eligible for appointment

would be

310

entitled to apply for the same. The High

Court was, therefore, right in holding that

the selection of 19 persons by the Board even

though the requisition was for 8 posts only,

was not legally sustainable. "

In the present case as the requisition is for 11 posts and

even though the Commission might have sent list of 20

selected candidates, appointments to be effected out of the

said list would be on 11 posts and not beyond 11 posts, as

discussed by us earlier. This contention will stand

accepted to the extent indicated hereinabove.

26. As per annexure-C so far as open category candidates

are concerned, they are shown in the order of merits upto

sl. no. 16. There arc also 2 Scheduled Castes and 2

Scheduled Tribes candidates in all making 20. The extend of

selected Scheduled Caste and Scheduled Tribe candidates on

reservation quota works out to be 1/5 of the total 20

selected candidates. If this list has to operate, as we

have held, only till vacancies are filled up, then on the

ratio of 115 of the total vacancies to be filled up, the

posts to be reserved for Scheduled Castes and Scheduled

Tribes out of total 1 1 posts could be one each for

Scheduled Caste and Scheduled Tribe candidates, as 1/5 of 11

would be 2.5 which would yield either 2 reserved candidates

or maximum 3 candidates but as maximum 3 candidates may tilt

the inter se balance between the Scheduled Castes and

Scheduled Tribes, if either of these two categories is given

2 posts out of 3, interest of justice would be served if we

direct the respondents to reserve 2 posts in all out of II

for being filled up by 1 Scheduled Caste and Scheduled Tribe

candidate each, in the order of inter se merits of Scheduled

Caste and Scheduled Tribe selected candidates as mentioned

in the list at annexure-C. The remaining 9 posts will be

available to general category candidates as listed in order

of merits in the list at annexure-C. The moment these 11

posts are filled up within 1 year of the publication of list

at annexureC this list will get exhausted or if for any

reason these II vacancies could not be filled up by the time

one year from the date of publication of the list is over,

even then the list would get exhausted and fresh recruitment

will have to be made in the light of fresh requisition from

the State. For computing one year's currency of impugned

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select list as per rule 41, the period during which

appointments were stayed during pendency of these proceed-

ings would naturally got excluded. The contention no.8

therefore will stand accepted to the aforesaid extent. In

the result this writ petition fails subject only to the

directions issued by us to the State Government while

accepting contention no. 8 aforesaid. In the facts and

circumstances of the case, there will be no order as to

costs.

312