http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

NEELIMA SHANGLA Ph.D. CANDIDATE

Vs.

RESPONDENT:

STATE OF HARYANA & ORS.

DATE OF JUDGMENT17/09/1986

BENCH:

REDDY, O. CHINNAPPA (J)

BENCH:

REDDY, O. CHINNAPPA (J)

DUTT, M.M. (J)

CITATION:

1987 AIR 169 1986 SCR (3) 785

1986 SCC (4) 268 JT 1986 445

1986 SCALE (2)435

CITATOR INFO :

APL 1989 SC1637 (11)

D 1991 SC1612 (1,7,8)

ACT:

Haryana Civil Services (Judicial Branch) - Subordinate

Judges-Appointment to-Parts & D/Rules 7 & 8 - Public Service

Commission-Whether it can withhold the name of some of the

qualified candidates-Duty of the Commission to make

available to government complete list of qualified

candidates.

HEADNOTE:

Out of 390 candidates who appeared at the test held in

1983-84 for selection to the Haryana Civil Service (Judicial

Branch), 54 candidates belonging to the general category,

four candidates belonging to the backward classes, four

candidates belonging to scheduled castes and two candidates

belonging to the category of ex-servicemen, qualified for

appointment by securing the prescribed minimum of 55 per

cent. The petitioner was ranked No. 24. There were 54

vacancies altogether but the Public Service Commission

recommended 26 candidates only and they included 17 from the

general category.

In a writ petition under Art. 32 of the Constitution,

the petitioner contended (i) that if the rules relating to

the appointment of Subordinate Judges in Haryana had been

adhered to, she would have been selected for appointment;

and (ii) that 32 candidates in order of merit from the

general category should have been selected for appointment

and that the Service Commission illegally withheld the names

of all the successful candidates from the Government and the

High Court.

Allowing the writ petition,

^

HELD: 1.1 The scheme of the rules relating to the

appointment of Subordinate Judges in Haryana appears to be

that the Public Service Commission should hold first a

written test in subjects chosen by the High Court and next a

Viva-voce test. The result of the examination is required to

be published in the Haryana Gazette and the selection for

appointment is to be made strictly in the order in which the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

candidates

786

have been placed by the Service Commission in the list of

candidates qualified under rule 8 of Part-C. [790 B-D]

1.2 Under the "Rules relating to the appointment of

Subordinate Judges in Haryana", the Public Service

Commission is not concerned with the number of vacancies at

all. Nor is it expected to withhold the full list of

successful candidates on the ground that only a limited

number of vacancies are available. The duty of the Public

Service Commission is confined to holding the written

examination, holding the Viva-voce test and arranging the

order of merit according to marks among that candidates who

have qualified as a result of the written and the Viva-voce

tests. Thereafter the Public Service Commission is required

to publish the result in the Gazette and, apparently to make

the result available to the Government. The Public Service

Commission is not required to make any further selection

from the qualified candidates and is, therefore, not

expected to withhold the names of any qualified candidates.

The duty of the Public Service Commission is to make

available to the Government a complete list of qualified

candidates arranged in order of merit. Thereafter the

Government is to make the selection strictly in the order in

which they have been placed by the Commission as a result of

the examination. The names of the selected candidates are

then to be entered in the Register maintained by the High

Court strictly in that order and appointments made from the

names entered in that Register also strictly in the same

order. It is, of course, open to the Government not to fill

up all the vacancies for a valid reason. [790 E-H; 791 A]

2. The selection cannot arbitrarily be restricted to a

few candidates, notwithstanding the number of vacancies and

the availability of qualified candidates. There must be a

conscious application of the mind of the Government and the

High Court before the number of persons selected for

appointment is restricted. Any other interpretation would

make rule 8 of Part of the Rules relating to the appointment

of Subordinate Judges in Haryana meaningless. [791 D-E]

In the instant case, the reason given by the Public

Service Commission for not communicating the entire list of

qualified candidates to the Government is that they were

originally informed that there were only 28 vacancies. That

is not a sound reason at all. The net result is that

qualified candidates, though available, were not selected

and were not appointed. The petitioner is one of them.

Therefore, she is entitled to be selected for appointment as

Subordinate Judge in the Haryana Civil Service (Judicial

Branch). [791 F; 792 B-C]

787

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 292 of

1986.

Under Article 32 of the Constitution of India.

Petitioner-in-person.

C.M. Nayar, C.V. Subba Rao, Pankaj Kalra, Ms. Abha

Jain, A.K. Goel, T.V.S.N. Chari and S.M. Ashri for the

Respondents

The Judgment of the Court was delivered by

O. CHINNAPPA REDDY, J. Miss Neelima Shangla desires to

be . appointed to the Haryana Civil Service (Judicial)

Branch. She has a brilliant academic record. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

certificates produced by her show that from Matriculation to

LL.B. she has passed every one of her examinations m the

first division. She was ranked No. 2 in the LL.B. examina-

tion of the Punjab University. She was awarded the national

merit scholarship and the UGC's scholarship. She was also

awarded the medal for the best all round student of the Law

Department in the year 1980-81. Her extra-curricular

activities also appear to be of a very high order. She was

President of the College Young Speakers' Club, Vice-

President of the College Students' Council, the best camper

and debater and represented the Punjab University in the

All-India Rock Climbing and Mountaineering Camp. She was the

student Editor of the College Magazine, the Law Review and

the Punjab University Magazine. She has also some published

works to her credit. She appeared at the competitive test

held in 1983-84 for selection to the Haryana Civil Service

(Judicial) Branch. She secured 60.8 per cent marks in the

written test and 50.5 per cent marks in the viva voce test.

She was ranked No. 24. It may be mentioned here that there

were altogether 774 applicants, while 390 only appeared at

the test. Out of the candidates who appeared at the test, 54

candidates belonging to the general category, four

candidates belonging to backward classes, four candidates

belonging to scheduled castes and two candidates belonging

to the category of ex-servicemen, qualified for appointment

by securing the prescribed minimum of 55 per cent. According

to the petitioner, though there were 54 vacancies

altogether, the Public Service Commission purported to

recommend 26 candidates only and they included 17 from the

general category. The petitioner claims that 32 candidates

in order of merit from the general category should have been

selected for appointment and that the Service. Commission

788

illegally withheld the names of all the successful

candidates from the Government and the High Court. She

contents that if the rules had been adhered to, she would

have been selected for appointment. To appreciate her

submission, it is necessary to refer to the relevant rules.

The rules relating to the appointment of Subordinate Judges

in Haryana are in six parts-A, B, C, D, & F. Part A deals

with qualifications. Part deals with submission of rolls.

Part deals with examination of candidates. Rule 1 of Part

provides that an examination will be held at a place to be

determined by the Haryana Public Service Commission. Rule S

provides that the Judges of the High Court may, from time to

time, declare the subjects in which the examination will be

held. Rule 7 prescribes that no candidate shall be called

for the viva-voce test unless he obtains at least 45 per

cent marks in the aggregate in all the written papers and 33

per cent marks in the language paper, Hindi (in Devanagri

script). Rule 8 is important and it is as follows.

"No candidate shall be considered to have

qualified in the examination unless he obtains at

least 55 per cent in the aggregate of all papers

including Viva-Voce test.

The merit of the qualified candidates shall

be determined strictly according to the marks

obtained by them.

Provided that in case two or more candidates

obtain equal marks, their merit shall be

determined according to the marks secured by them

in the Viva-Voce and if the marks in the Viva-Voce

of the candidates are also equal, the older in age

shall be placed higher in order of merit,"

Rule 10 is also important and it is as follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

"(i) The result of the examination will Haryana

Government Gazette.

(ii) Candidates will be selected for appointment

strictly in the order in which they have been

placed by the Haryana Public Service Commission in

the list of those who have qualified under rule 8:

Provided that in the case of candidates

belonging to

789

the Scheduled Castes/Tribes and other Backward

Classes, Government will have a right to select in

order of merit a candidate who has merely

qualified under rule 8, irrespective of the

position obtained by him in the examination:

Provided further that the selection of

candidates belonging to the Scheduled Castes/

Tribes and other Backward Classes in the order of

merit inter se shall be made against the vacancies

reserved for them and in the manner prescribed by

Government from time to time."

Part of the rules deals with "Appointment". Rule 1 of Part

is as follows:

"The names of candidates, selected by Government

for appointment as Subordinate Judges under rules

10 and 11 of Part C, shall be entered on the High

Court Register in the order of their selection."

Rule 7(1) may also be extracted and it is as follows:

"Whenever it shall appear to the Judges that a

vacancy or vacancies in the cadre of the Judicial

Branch of the Haryana Civil Service, whether

permanent, temporary or officiating, should be

filled, they will make a selection from the High

Court Register in the order in which the names

have been entered in the register under rule 1 of

this Part. The name or names of the selected

candidate or candidates will be forwarded to

Government for appointment as Subordinate Judges

under Article 234 of the Constitution of India.

Every Subordinate Judge shall, in the first

instance, be appointed on probation for two years

but this period may be extended from time to time

expressly or impliedly so that the total period of

probation including extension, if any, does not

exceed three years.

Explanation-The period of probation shall be

deemed to have been extended impliedly if a

Subordinate Judge is not confirmed on the expiry

of his period of probation. '

Rule 8 is again important and it is as follows:

790

"There is no limit to the number of names borne on

the High Court Register but ordinarily no more

names will be included than are estimated to be

sufficient for the filling of vacancies which are

anticipated to be likely to occur within two years

from the date of selection of candidates as a

result of an examination."

The scheme of the rules appears to be that the Public

Service Commission should hold first a written test in

subjects chosen by the High Court and next a Viva-Voce test.

Unless a candidate secures 45 per cent of the marks in the

written papers and 33 per cent in the language paper, he

will not be called for the Viva-Voce test. All candidates

securing 55 per cent of the marks in the aggregate in the

written and Viva-Voce tests are considered as qualified for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

appointment, their merit being determined strictly in

accordance with the marks obtained by them. The result of

the examination is required to be published in the Haryana

Gazette and the selection for appointment is to be made

strictly in the order in which they have been placed by the

Service Commission in the list of candidates qualified under

rule 8 of Part-C. The names of the selected candidates are

to be entered in a Register maintained by the High Court in

the order of their selection and appointments are to be made

from the names entered in the Register in that order. The

number of names to be entered in the Register maintained by

the High Court may be sufficient to fill vacancies

anticipated to occur within two years from the date of

selection of candidates as a result of the examination.

Therefore, it appears that the duty of the Public Service

Commission is confined to holding the written examination,

holding the Viva-Voce test and arranging the order of merit

according to marks among the candidates who have qualified

as a result of the written and the Viva-Voce tests.

Thereafter the Public Service Commission is required to

publish the result in the Gazette and, apparently to make

the result available to the Government. The Public Service

Commission is not required to make any further selection

from the qualified candidates and is, therefore, not

expected to withheld the names of any qualified candidates.

The duty of the Public Service Commission is to make

available to the Government a complete list of qualified

candidates arranged in order of merit. Thereafter the

Government is to make the selection strictly in the order in

which they have been placed by the Commission as a result of

the examination. The names of the selected candidates are

then to be entered in the Register maintained by the High

Court strictly in that order and appointments made from the

names

791

entered in that Register also strictly in the same order. It

is, of course, open to the Government not to fill up all the

vacancies for a valid reason. The Government and the High

Court may, for example, decide that, though 55 per cent is

the minimum qualifying mark, in the interests of higher

standards, they would not appoint anyone who has obtained

less than 60 per cent of the marks. Something of that nature

happened in State of Haryana v. Subash Chander Marwah & Ors.

In that case, though the rules prescribed a minimum 45 per

cent of the aggregate marks to be qualified for appointment

as a Subordinate Judge, the High Court and the Government

decided not to appoint candidates who had secured less than

55 per cent marks. The result was that although there were a

large number of vacancies, only a few candidates were

selected for appointment. The selection was challenged on

the ground that it could not be so restricted when qualified

candidates were available. This court rejected the

submission and upheld the selection. However, as we said,

the selection cannot arbitrarily be restricted to a few

candidates, notwithstanding the number of vacancies and the

availability of qualified candidates. There must be a

conscious application of the mind of the Government and the

High Court before the number of persons selected for

appointment is restricted. Any other interpretation would

make rule 8 of Part meaningless. In the present case, though

the rules required the Public Service Commission to publish

the result of the examination and, apparently, also to

communicate the result to the Government, the Public Service

Commission did not publish the result in the first instance

and sent only the names of 17 candidates belonging to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

general category to the Government, though many more had

qualified. That was wrong. The names of all the qualified

candidates had to be sent to the Government. The reason

given by the Public Service Commission for not communicating

the entire list of qualified candidates to Government is

that they were originally informed that there were only 28

vacancies. That is not a sound reason at all. Under the

"Rules relating to the appointment of Subordinate Judges in

Haryana", the Public Service Commission is not concerned

with the number of vacancies at all. Nor is it expected to

withhold the full list of successful candidates on the

ground that only a limited number of vacancies are

available. The Government of Haryana has taken the stand

that they were unable to select and appoint more candidates

as the names of only a few candidates were sent to them by

the Public Service Commission. It now transpires that even

before the Public Service Commission sent its truncated list

to the Government, the High Court had already informed the

Government that there were more vacancies

792

which required to be filled. The Government not knowing that

the names of several candidates who were qualified had been

withheld from the Government by the Service Commission,

wrote to the Service Commission to held a fresh competitive

examination. If the Government had been aware that there

were qualified candidates available, they would have surely

applied rule 8 of Part and made the necessary selection to

be communicated to the High Court. The net result is that

qualified candidates, though available, were not selected

and were not appointed. Miss Neelima Shangla is one of them.

In the view that we have taken of the rules, Miss Neelima

Shangla is entitled to be selected for appointment as

Subordinate Judge in the Haryana Civil Service (Judicial)

Branch. By an interim order of this Court, one post of

Subordinate Judge has been kept vacant for her.

We direct the first respondent (Government of Haryana)

to include the name of the petitioner (Miss Neelima Shangla)

in the 1984 List of candidates selected for appointment as

subordinate judges in the Haryana Judicial Service (Judicial

Branch) and forward the same to the High Court of Punjab and

Haryana for inclusion in the High Court Register maintained

under Rule 1 of Part of the Rules. She will be entitled to

her due place in the Seniority List of the 1984 batch. The

petitioner will be entitled to her costs which we quantify

at Rs. 5000.

As a result of our finding a few more candidates would

also be entitled to be included in the Select List and

ordinarily we would have directed their inclusion in the

list. But having regard to the fact that most of the others

have not chosen to question the selection and the

circumstance that two years have elapsed we do not propose

to make any such general order as that would completely

upset the subsequent selection and create confusion and

multiplicity of problems. The cases of any other candidate

who may have already filed a writ petition; this Court or

the High Court will be disposed of in the light of the,

judgment. These who have not so far chosen to question the

selection will not be allowed to do so in the future because

of their laches.

M.L.A. Petition allowed

793