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W.P.(C)No.294/2015

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION(C)No.294 of 2015

Salam Samarjeet Singh …..Petitioner

Versus

High Court of Manipur at Imphal & Anr. …..Respondents

J U D G M E N T

Shiva Kirti Singh, J.

1.I have perused the judgment written by Banumathi, J. Since I am

unable to agree with the same, I hereby record my views on the main

issues involved in the case.

2.As most of the relevant facts including the submissions of the rival

parties as well as relevant provisions of rules have already been

extracted, I will borrow and refer from such facts and statutory

provisions where ever necessary. Only to recapitulate the seminal facts,

it is noted that the relevant advertisement for filling up a single vacancy

in the post of District Judge (Entry Level) by way of direct recruitment

through examination of 2013 was published on 15.5.2013. The

advertisement disclosed that the recruitment shall be governed by the

Manipur Judicial Service (Recruitment and Conditions of Service) Rules,

2005 (for brevity, ‘the Rules’). The duly filled applications were to be sent

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W.P.(C)No.294/2015

to Registrar, High Court of Manipur at Imphal. Inter alia, it was also

indicated, as is the position in the Rules, that for being called for viva

voce test a candidate must secure in the written examination 60% marks

if he is from unreserved category and 50% if he is of reserved category.

The viva voce was to carry 50 marks. The examination was held in July

2013. As per initial notification dated 17.10.2013, the Joint Registrar

notified that none of the candidates was successful in their written

examination. The mark sheet was published on 29.01.2014 in which

petitioner being a scheduled caste category candidate had secured more

than the minimum qualifying marks of 50%. In fact he had secured

52.8% marks. Hence petitioner filed a representation on 04.02.2014 for

reconsideration of his result. On 07.02.2014 the High Court issued a

corrigendum and declared the petitioner as successful in the written

examination. Be it noted that the petitioner was the only successful

candidate for the unreserved single post under contest.For almost a

year the recruitment process remained at a standstill. Through a letter

dated 29.01.2015 the petitioner was informed that viva voce will be held

on 12.02.2015. The petitioner undertook the said test. On 19.02.2015

the petitioner learnt from a notice dated 16.02.2015 issued by the Joint

Registrar of the High Court and placed on the Notice Board of the High

Court that the petitioner had failed to qualify in the interview.

3.The petitioner made a request for certain informations under the RTI Act

from the concerned officer of High Court of Manipur on 21.02.2015. The

informations sought for included queries as to whether there was any

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W.P.(C)No.294/2015

pass mark/cut-off mark out of the total 50 marks for the interview and

also details of the particular rule under which he had failed in the

interview. The information was supplied on 19.03.2015 disclosing that

he had obtained 18.8% marks in the viva voce test and the cut-off

mark/pass mark is 40% out of total 50 marks for the interview. The

High Court did not provide reference to any particular rule under which

petitioner had been found not qualified in the interview.

4.It is not in dispute and it was subsequently discovered that the Full

Court of the Manipur High Court had resolved on 12.01.2015, only a few

days before interviewing the lone candidate- the petitioner, to fix 40% as

the pass mark for viva-voce. Since the petitioner was interviewed by all

the three Judges of the High Court in the viva voce and was declared to

have failed on account of pass marks prescribed for viva voce

examination by the Full Court on 12.01.2015, he did not have much

option but to prefer the present writ petition in this Court mainly to seek

the relief for quashing of his viva voce result dated 16.02.2015 and for

declaration of his result for appointment to MJS Grade I with

retrospective effect from a reasonable date and/or to grant any just and

equitable relief in the facts and circumstances of the case.

5.A perusal of relevant informations given to the candidates in the

advertisement, particularly the general instructions contained in

Appendix ‘A’ of the Scheme of Examination clearly discloses that

scheduled caste candidates shall be eligible for the viva voce examination

on obtaining 50% or more marks in the written examination. It is also

clearly spelt out that selection of candidates shall be made on the basis

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W.P.(C)No.294/2015

of cumulative grade value obtained in the written and viva voce

examination. In my considered view the statutory mandate for selection

on the basis of cumulative grade required the authorities to add the

marks of both the examinations, prepare the merit list as per total marks

for the cumulative grade and make the selection from such merit list.

6. This mandate was violated for a reason that does not muster scrutiny.

Although the object of viva voce examination has been given in some

detail but that is only for the guidance of members of the Board

conducting the viva voce test. The mode of evaluating the performance of

grading in the written and viva voce examination has been indicated in

the general instructions and the same has already been noted in the

judgment of Banumathi, J. The grade ‘F’ which provides for percentage

of marks below 40% corresponds to numerical grade ‘0’ but beyond that

there is nothing to support the submission on behalf of the High Court

that ‘F’ is indicator of failure in the written examination or in the viva

voce. The cut-off mark for the written examination is separately provided

under the Rules, to the effect that written examination will carry 200

marks and the cut-off marks should be 60% or corresponding grade for

general candidates and 50% or corresponding grade for SC/ST

candidates. So 40% to 49% denoted by ‘C’ also stand for fail marks for

the written examination and therefore there is no basis to infer that ‘F’

standing for below 40% is a symbol of fail marks. Further when the

Rules explicitly specify the pass marks for the written examination and

conspicuously make no such provision in respect of viva voce

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W.P.(C)No.294/2015

examination, rather provide to the contrary that the final selection list

will be by combining the cumulative grade value obtained in the written

and the viva voce examination, nothing can be gainsaid on the basis of

evaluating procedure alone. For the purpose of deciphering cut-off marks

or pass marks for the viva voce examination there ought to be a similar

specific provision in the Rules. But it was not there at the relevant time.

It has been introduced much later in 2016.

7.In my considered view the Rules and the instructions clearly demonstrate

that there was no cut-off mark or pass mark for the viva voce

examination in the past and therefore the High Court on 12.01.2015

made a specific Resolution that no one shall be declared passed and

selected for appointment unless he secures minimum 40% in the

interview (viva voce). This power to add to the Rules is claimed from the

provisions of sub-rule (3) of Rule 1 of Schedule ‘B’ of the Rules

empowering the recruitment authority to take “all necessary steps not

provided for in these Rules for recruitment under these Rules......”. In

my view the Resolution of the High Court on 12.01.2015 ran counter to

express provision in the Rules as to how the final merit list was to be

prepared by combining the marks of both the examinations. Not

providing any pass mark for the viva voce while so providing for the

written examination clearly indicates that the Rules deliberately chose

not to prescribe any cut-off for the viva voce. The explanation for the

same lies in the recommendations made in this regard by the Shetty

Commission. The Rules are almost verbatim copy of most of the

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W.P.(C)No.294/2015

recommendations in respect of such examination for recruitment.

Clearly, they also followed the recommendation of the Shetty Commission

that there should not be any cut off or fail marks for the viva voce

examination. Such omission was thus clearly deliberate to facilitate the

intended result. There was no gap or vacuum here and therefore Clause

1(3) of the Rules is not attracted. Hence, the Rules could not have been

altered by a Resolution taken by the Full Court. We have been informed

that ultimately the Rules have been formally amended vide notification

dated 09.03.2016 issued in exercise of powers under Article 309 read

with Article 234 of the Constitution of India whereby, inter alia, it has

been included in the general instructions under Schedule ‘B’ that

candidates securing minimum 40% marks in the interview shall only be

eligible to be included in the select list. Apparently this amended rule is

to come into force only in future from a date to be specified. But in any

case it has not been made retrospective and rightly so because such

Rules governing selection procedure for recruitment cannot be amended

to affect the results after the game has been played.

8.In the aforesaid facts and circumstances, the contention advanced on

behalf of the petitioner that the impugned act of bringing about change in

the selection procedure by providing minimum marks for interview or

viva voce test in midst of the selection process which has already been

initiated amounts to changing the rules of the game and hence

impermissible, is well supported by judgment in the case of K.

Manjusree v. State of Andhra Pradesh & Anr.

1

as well as in the case of

1

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W.P.(C)No.294/2015

Hemani Malhotra Etc. v. High Court of Delhi

2

. In my view once

petitioner was declared as the lone candidate having passed in the

written examination, it matters little whether minimum marks for

interview were introduced before or after calling him for interview. The

petitioner or any other person in his place, knowing fully well that there

was no separate cut-off or pass mark for the viva voce, would not feel any

pressure to be extra ready for the interview. In order to ensure fairness,

after the Full Court decision on 12.01.2015 to fix 40% as pass marks for

viva voce, the petitioner ought to have been informed of this development,

at least when intimation of date of interview was communicated to him

through letter dated 29.01.2015. Since the viva voce was held on

12.02.2015, he would have got some time to improve his preparations to

meet the 40% cut-off newly introduced. That was not done. In such

circumstances, I do not find any material, reason or circumstance to

distinguish the case of K. Manjusree as well as of Hemani Malhotra. In

my considered view the High Court did not have the power to change the

scheme of the rules which prescribed pass marks only for the written

examination, deliberately omitted the same for viva voce examination and

warranted final results after adding both the marks. If for the sake of

(2008) 3 SCC 512

2

(2008) 7 SCC 11

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W.P.(C)No.294/2015

arguments, such power is conceded even then the power could not have

been exercised to change the rules of the game when petitioner alone was

left in the arena and could not have been disqualified except by changing

the rules midway. Para 15 in the case of Hemani Malhotra extracted

earlier in the preceding judgment applies on all force like the judgment in

the case of K. Manjusree. Learned counsel for the petitioner has rightly

placed reliance on those judgments. The judgment in the case of

Ramesh Kumar v. High Court of Delhi & Anr.

3

draws some inspiration

from the recommendations of Justice Shetty Commission’s Report in

para 16 but the general law already settled and stated in para 15 also

clearly helps the case of the petitioner. In my view the statutory rules did

prescribe a particular mode of selection which did not require any pass

mark for the viva voce examination and it had to be given strict

adherence accordingly, at least till the ongoing recruitment process got

concluded. Since the procedure was already prescribed by the Rules, in

the present case there was clear impediment in law in the way of the

High Court in proceeding to lay down minimum pass mark for the viva

voce test which was meant only for the petitioner as he was the lone

candidate successful in the written examination. In my view the

petitioner was clearly prejudiced and although no case of bias has been

pleaded, the impugned action would validly attract the criticism of malice

in law.

3

(2010) 3 SCC 104

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W.P.(C)No.294/2015

9.For the aforesaid reasons alone, in my view, there is no need in the

present case to go into recommendations of the Shetty Commission, even

if it be conceded for the sake of arguments that State Government may

decide not to fill up posts if it has reasons to believe that appointing the

selected candidate would adversely affect the required standards of

competence. That stage was never arrived at in this case. Hence

reference to an issue of aforesaid nature to a larger Bench by the order in

the case of Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

4

rendered by a Bench of three Judges will not have any effect on the

outcome of this case. The law laid down in the case of State of Haryana

v. Subash Chander Marwaha & Ors.

5

is applicable only at the stage

when the selection process is complete and then if appointment is

refused to a selected candidate for good reasons, the candidate may not

have an indefeasible right to claim a right of appointment. This course of

action would be valid, subject to satisfactory answer by the authority to

any charge of arbitrariness. But as noted earlier that stage has not been

reached in the case of the petitioner. He has been disqualified by the

High Court on the basis of its Full Bench Resolution taken in the course

of the selection procedure. That process in my view must be continued

and completed fairly, disregarding the subsequent changes brought

about by the High Court or subsequent amendment of the Rules.

4

(2013) 4 SCC 540

5

(1974) 3 SCC 220

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W.P.(C)No.294/2015

10.Hence while not delving into effect of judgment in the case of All India

Judges’ Association v. Union of India & Ors.

6

and leaving the issue

open for decision in an appropriate case as to what is the effect of

aforesaid judgment sub silentio accepting the recommendations of Shetty

Commission’s Report that there shall be no cut-off marks in viva voce

test. The Judicial Service Rules of various High Courts in my view

cannot affect the rights of the petitioner which have to be governed by the

Rules on which I have already expressed my view that it deliberately did

not provide any cut-off marks for the viva voce test and instead provide

for preparation of final result by adding the marks of written examination

and viva voce test.

11.The law laid down in the case of Madan Lal & Ors. v. State of J & K &

Ors.

7

in my considered view does not stand in the way of the petitioner.

The High Court Resolution was not communicated to the petitioner. It

was neither a part of the Rules nor of the advertisement and hence the

theory that if a candidate takes a calculated chance and faces the

selection procedure then on the result being unfavourable, he cannot be

permitted to turn around and challenge the process of selection is not at

all attracted. The theory rests on the hypothesis that the impugned

procedure or rule is already in public domain and the candidate must,

therefore, be aware of it when he participates. So far as the judgment in

6

(2002) 4 SCC 247

7

(1995) 3 SCC 486

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W.P.(C)No.294/2015

the case of Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.

8

is

concerned, I am in respectful agreement with the same and with the view

expressed by Banumathi, J. that only being in the selected panel does

not give the petitioner or anybody else an indefeasible right to get an

appointment. But the vacancies, as highlighted in paragraph 11, have to

be filled up as per statutory rules and in conformity with the

constitutional mandate. I do not see anything in that judgment against

the consideration of petitioner’s case in accordance with law after

declaring his results by ignoring the pass mark criteria for the viva voce

examination introduced by the High Court and then proceed as per Rules

by adding the marks of written examination with that of viva voce test.

All actions of authorities must meet the test of reasonableness and in

case petitioner is not offered appointment though being the only

successful candidate, then the respondents may have to justify their

action, if challenged, on the basis of case of Kulwinder Pal Singh and

similar other judgments. As already indicated earlier, that stage is yet to

arrive.

12.In the result, in my view the petitioner is entitled to the relief sought for

in the writ petition which is allowed in the light of discussions made

above. The viva voce result of the petitioner dated 16.02.2015 showing

him as ‘unsuccessful’ shall stand quashed. The respondents shall

declare the result of the petitioner for appointment to MJS Grade I as per

discussion made in this judgment forthwith and in any case within four

8

(2016) 6 SCC 532

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W.P.(C)No.294/2015

weeks. In the peculiar facts of the case, in my view, a decision for

appointment of petitioner to MJS Grade I with retrospective effect after a

reasonable period from date of the viva voce result which was 16.02.2015

or say w.e.f. 01.04.2015 should be communicated to the petitioner within

the aforesaid period of four weeks. In case petitioner is offered the

appointment and joins the service, he would get wages by way of salary

etc. only from the date he starts working on the post. For the past period

he would be entitled only for notional benefits of increment and length of

service for pensionary benefits, as and when occasion arises in future.

The writ petition of the petitioner succeeds accordingly. The petitioner is

held entitled to a cost of Rs.50,000/-.

……………………………….J.

[SHIVA KIRTI SINGH]

New Delhi.

October 07, 2016.

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W.P.(C)No.294/2015

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 294 OF 2015

SALAM SAMARJEET SINGH PETITIONER

VERSUS

HIGH COURT OF MANIPUR AT IMPHAL & ANR. RESPONDENTS

J U D G M E N T

R. BANUMATHI J.

In this Writ Petition filed under Article 32 of the Constitution of

India, the petitioner prays for issuance of a writ of certiorari quashing

the Notification dated 16

th

February, 2015 issued by the High Court of

Manipur, whereby the petitioner was declared unsuccessful in

viva-voce conducted by the High Court of Manipur for appointment to

the post of District Judge (Entry Level) in Manipur Judicial Services

Grade-I. Petitioner seeks further direction to declare his appointment

to Manipur Judicial Services Grade-I with retrospective effect.

2.An advertisement was issued by the Manipur High Court vide

Notification No. HCL/A-1/2013-A&E(J)/288 dated 15

th

May, 2013,

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W.P.(C)No.294/2015

inviting applications for recruitment to one vacant (unreserved) post of

District Judge (Entry Level) in Higher Judicial Service through District

Judge (Entry Level) Direct Recruitment Examination, 2013. As per the

conditions prescribed in the aforesaid advertisement, the petitioner

being eligible applied for the said post under the category of

‘Scheduled Caste’. Examination was held on 21

st

, 22

nd

& 23

rd

July,

2013 and the petitioner also appeared in the same. The High Court of

Manipur issued a Notification dated 17

th

October, 2013 stating therein

that none of the candidates had secured the minimum qualifying

marks in the said Examination. The marks obtained by all the

candidates who appeared in the said examination were uploaded on

the website of the High Court of Manipur on 29

th

January, 2014. From

the result made available on the website of the High Court, the

petitioner learnt that he had scored 52.8% and that he was eligible for

the interview/viva-voce as per the advertisement dated 15

th

May, 2013

and Schedule “B” of the Manipur Judicial Service Rules, 2005, (for

short ‘the MJS Rules’) as he belongs to the Scheduled Caste

community of the State of Manipur. The petitioner had given a

representation on 4

th

February, 2014 to the High Court for reviewing

the Notification dated 17

th

October, 2013 issued by the High Court of

Manipur. In response to petitioner’s representation, the High Court

issued a corrigendum dated 7

th

February, 2014, modifying the said

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W.P.(C)No.294/2015

Notification by stating that only one candidate namely Shri Salam

Samarjeet Singh (SC), petitioner herein had secured the minimum

qualifying marks in the written examination held on 21

st

, 22

nd

and 23

rd

July, 2013 for recruitment to MJS Grade-I, under direct recruitment

quota and had been found qualified for appearing in the viva-voce. It

was also stated therein that the date and time for interview would be

notified in due course. Before conducting the viva-voce, the

respondent High Court held a Full Court meeting on 12

th

January,

2015 wherein one of the agenda was to prescribe “qualifying marks for

interview (viva-voce)”. After discussion on this agenda, the Full Court

took a decision that “no one shall be declared pass and selected for

appointment unless he secures minimum 40% from the interview”.

3.The petitioner appeared before the Interview Committee

comprising of the Chief Justice and two other Judges of the High

Court of Manipur on 12

th

February, 2015. In the interview, the

petitioner obtained 18.8 marks out of 50 marks i.e. 37.6%. Since the

petitioner failed to secure the minimum marks of 40% vide Notification

dated 16

th

February, 2015 issued by the High Court, the petitioner was

declared “not selected”. Aggrieved by the aforesaid Notification, the

petitioner has filed this Writ Petition, seeking a writ of certiorari to

quash the Notification and another of mandamus directing the High

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W.P.(C)No.294/2015

Court to declare him appointed to MJS Grade-I with retrospective

effect.

4.In the Writ Petition, petitioner has stated that the marks obtained

in the viva-voce should be merely added to the marks obtained in the

written examination to finalize the merit list and it was not permissible

to have fixed a minimum bench mark for the viva-voce. According to

the petitioner, his non-qualification in the interview and the impugned

Notification dated 16

th

February, 2015 pursuant thereto are in violation

of the law laid down by this Court in P.K. Ramachandra Iyer & Ors. v.

Union of India & Ors. (1984) 2 SCC 141and Umesh Chandra

Shukla v. Union of India & Ors. (1985) 3 SCC 721. It is further

averred that before the commencement of selection process, the

Selection Committee prescribed minimum marks only for written

examination and that during the course of the selection process, it

cannot change the criteria by adding an additional eligibility

condition/requirement that the candidates shall secure minimum

marks in the interview.

5.On notice, the respondents entered appearance and filed their

counter affidavit.

6.Case of the respondent-High Court is that the entire selection

process of the 2013 Examination has been conducted in a just and fair

manner following the Rules prescribed under the MJS Rules and the

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W.P.(C)No.294/2015

action of the respondents is not violative of Articles 14 and 16 of the

Constitution of India. Schedule ‘B’ of the MJS Rules prescribes the

minimum qualifying marks for viva-voce as 40%. It is the case of the

respondent-High Court that the minimum qualifying marks prescribed

have been further clarified in its Full Court Resolution dated 12

th

January, 2015 before the viva-voce was conducted by the Interview

Committee, so as to avoid any discrepancies.

7.In its counter affidavit, the respondent-High Court has further

stated that the Recruitment Committee during the course of the

interview of the petitioner, which lasted for half an hour, did individual

assessment of the candidate in nine disciplines (each discipline

carrying 5.55 marks). The total marks obtained by the petitioner from

each member were 19.5, 19.0 and 18.0 totalling to 37.6%. The

petitioner failed to secure the minimum qualifying marks of 40% in

viva-voce as prescribed under the MJS Rules and hence he failed to

qualify in the interview and is not entitled to the relief sought for in the

Writ Petition.

8.We have heard learned counsel for the parties at length.

9.Learned Senior Counsel for the writ petitioner, Mr. Sanjay R.

Hegde submitted that the Full Court Resolution dated 12

th

January,

2015 fixing cut-off marks – minimum 40% in the interview is an

erroneous interpretation of Evaluation of Performance given in

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W.P.(C)No.294/2015

Schedule B of the 2005 Rules. It was further submitted that the action

of the respondents to apply the criteria of minimum qualifying marks in

the interview would amount to change in the criteria for selection after

the selection process started. It was further submitted that the

petitioner was never informed about the Resolution dated 12

th

January, 2015 prescribing minimum marks to be secured in the

interview, and the same amounts to violation of principles of natural

justice. In support of the contention that changing the ‘rules of the

game’ during the course of selection process would vitiate the entire

selection, reliance was placed upon Hemani Malhotra v. High Court

of Delhi (2008) 7 SCC 11 and K. Manjusree v. State of Andhra

Pradesh & Anr. (2008) 3 SCC 512.

10.Per contra, learned counsel for the respondent has submitted that

Schedule B of the MJS Rules stipulates minimum qualifying marks

cumulatively for both written examination and viva-voce; and the said

minimum qualifying marks so prescribed by the Rules were further

clarified in the Full Court meeting dated 12

th

January, 2015 so as to

avoid any discrepancies during the viva-voce conducted by the Interview

Committee. It was submitted that the MJS Rules clearly stipulate “that

all necessary steps not provided for in the Rules for recruitment shall be

decided by the Recruiting Authority” and while so, the Full Court

Resolution dated 12

th

January, 2015, fixing minimum cut-off marks as

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W.P.(C)No.294/2015

40% cannot amount to change in the rules of the game. It was

contended that the respondent has not deviated from the Rules nor has

it adopted any different criteria for the aforesaid selection process.

11.For filling up one “unreserved” post of District Judge (Entry Level)

Grade-I in Manipur Judicial Service, by direct recruitment from the Bar,

admittedly, recruitment process was set in motion by advertisement

dated 15

th

May, 2013. General Instructions with respect to the scheme

of recruitment were appended to the said advertisement. The said

instructions in the advertisement were incorporated from Schedule ‘B’

Competitive Examination of Manipur Judicial Services Rules, 2005. As

per MJS Rules, the competitive examination comprises of two parts viz.,

—(i) written examination comprising of three papers each carrying 100

marks total 300 marks; (ii) interview (viva voce) carrying 50 marks.

General Instructions in Schedule ‘B’ Clause 1(3) read as under:-

3. GENERAL INSTRUCTIONS:-

All candidates who obtain sixty percent or more marks or corresponding grade

in the written examination shall be eligible for viva-voce examination.

Provided that Scheduled Caste/Scheduled Tribe candidates who obtain fifty

per cent or more marks or corresponding grade in the written examination

shall be eligible for the viva-voce examination.

Selection of candidates shall be made on the basis of cumulative grade value

obtained in the written and viva-voce examination.

The object of the viva-voce examination under sub-rule (1) and (2) is to assess

the suitability of the candidate for the cadre by judging the mental alertness,

knowledge of law, clear and logical exposition, balance of judgment, skills,

attitude, ethics, power of assimilation, power of communication, character and

intellectual depth and the like of the candidate.

All necessary steps not provided for in these rules for recruitment under

these Rules shall be decided by the recruiting authority.

The mode of evaluating the performance of Grading in the written and

viva-voce examination shall be as specified below:

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W.P.(C)No.294/2015

EVALUATING PERFORMANCE IN COMPETITIVE

EXAMINATION FOR JUDICIAL SELECTION

The system Operates as follows:-

The questions in the question paper may carry numerical marks for each

question.

The examiner may assign numerical marks for each sub-question which may

be totaled up and shown against each full question in numbers.

The tabulator will then convert the numerical marks into grades in a seven

point scale with corresponding grade values as follows:

Percentage of

marks Grade value

Grad

e

Grade

Value

70% and

above

O 7

65& to 69% A+ 6

60% to

64%

A 5

55% to

59%

B+ 4

50% to

54%

B 3

45% to

49%

C+ 2

40% to

44%

C 1

Below 40% F 0

4. After converting the numerical marks of each question into the appropriate

grade according to the formula given in first column above the tabulator will

re-convert to Grades obtained for each question to the Grade value according

to the value given in the third column above.

…..

6. What happens if there are several successful candidates obtaining the

same grade and the available positions are fewer in number? How do you

rank them to determine who is to be given the job? Of course, this situation

can develop with numerical marking also where persons with one mark of half

a mark difference are given advantage. This is unfair given the fact that in

actual practice this may happen because of the play of subjective elements on

the part of the individual examiners. What is therefore recommended is a

similar vigorous and objective grade value exercise for the viva-voce

examination as well.

7. At the end of each day’s interview the tabulator will convert the

numerical marks assigned to each category into grade and then to grade

values. This will then be totalled up and the cumulative grade value average

of each candidate interviewed will be obtained.

……

9. The final selection list will be readied by combining the cumulative

grade value obtained in the written examination and the viva-voce

examination. [Emphasis added]

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W.P.(C)No.294/2015

12.The above instructions for Competitive Examination For Direct

Recruitment of Grade–I Judicial Officer were inter alia incorporated in

the 2013 advertisement. On a reading of Clause 1(3) – General

Instructions in Schedule ‘B’, it is clear that the first respondent has

reserved a residuary right in its favour to take necessary steps which

are not expressly included in the Rules. Before conducting the

interview/viva-voce of the petitioner, the High Court held a Full Court

Meeting on 12

th

January, 2015 wherein Agenda No.2 – “qualifying

marks for interview (viva-voce)” was taken up for discussion. After

referring to the Rules–“Evaluating Performance in Competitive

Examination for Judicial Selection” and also the table for converting

numerical marks into grades, the Full Court resolved that 40% marks

would be the minimum qualifying marks for the interview/viva-voce.

The resolution of the Full Court reads as under:-

MINUTES OF THE FULL COURT HELD ON 12.01.2015 IN THE CHAMBER OF

HON’BLE THE CHIEF JUSTICE

Agenda No.2:Qualifying mark for interview (viva-voce)

Resolution:A question as to what percentage would be the minimum

qualifying marks for passing interview (viva-voce) is discussed. The following

provisions of sub-rule (3) of Schedule-B of Manipur Judicial Service (MJS)

Rules were taken into consideration:

“All necessary steps not provided for in these Rules for recruitment under

these Rules shall be decided by the recruitment authority. The mode of

evaluating the performance of Grading in the written and viva-voce

examination shall be as specified below:

……………… ..

The Full Court after considering the power conferred on the Recruitment

Authority in the above states Rules and percentage of marks with Grade Value

given above resolved that no one shall be declared passed and selected for

appointment unless he secures minimum 40% from the interview (viva-voce).

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13.Having regard to the submissions of the petitioner and the

respondent, the question falling for consideration is whether

prescribing 40% marks as the minimum qualifying marks for the

interview after holding the written examination and before conducting

the viva-voce was within the power of the respondents; or whether it

amounts to change in the criteria of selection in the midst of the

selection process.

14.As seen from the MJS Rules - under the head - “EVALUATING

PERFORMANCE IN COMPETITIVE EXAMINATION FOR JUDICIAL

SELECTION”, a scheme of converting the numerical marks of each

question into an appropriate grade, according to the formula given in

the table and re-converting into grades, is stipulated. In the table, the

percentage of marks and Grade prescribe that marks below 40% is

Grade ‘F’ which means ‘Fail’ and its Grade Value is ‘0’. The High

Court has maintained that the Full Court decision prescribing minimum

40% marks in the interview/viva-voce was taken in order to introduce

consistency in the criteria of evaluating performance of candidates in

written examination and interview/viva-voce. Since the MJS Rules

already stipulate that less than 40% marks is Grade ‘F’ with Grade

Value ‘0’, it is implicit in the Rules that for a ‘pass’ in the examination,

40% minimum marks need to be obtained, though of course as per

MJS Rules, this is for the cumulative Grade Value obtained in the

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W.P.(C)No.294/2015

written examination and the interview/viva-voce examination. Keeping

in view the MJS Rules, in particular, the table converting numerical

marks into Grades and the final Select List that is prepared by adding

cumulative grade value obtained in the written examination and the

interview/viva-voce, it is my considered view that fixing 40% for

interview/viva-voce out of total marks of 50 is in consonance with MJS

Rules and it will not amount to change in the criteria of selection in the

midst of selection process.

15.Clause 1(3), General Instructions of the MJS Rules reserves a

right in favour of the High Court which enables the High Court to resort

to the procedures, in addition to, what has been specifically laid down

in the Rules. It provides that “all necessary steps not provided for in

these Rules for recruitment under these Rules shall be decided by the

Recruiting Authority”. Having regard to the aforesaid provision, the

High Court cannot be faulted with, in prescribing cut-off marks for the

interview/viva-voce. The object of conducting interview/viva-voce

examination has been rightly stated in the Rules to assess suitability

of the candidate by judging the mental alertness, knowledge of law,

clear and original exposition, intellectual depth and the like. The Rules

further stipulate a vigorous and objective grade value exercise for the

interview/viva-voce examination as well. Keeping in view the Rules

and having regard to the seniority of the post which is District Judge

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W.P.(C)No.294/2015

(Entry Level), the High Court cannot be faulted with for exercising its

residuary right reserved in its favour by prescribing cut-off marks for

the interview.

16.Contending that change in the norms for selection by introducing

the minimum marks for interview during the selection process would

amount to change in the rules of the game, reliance was placed upon

K. Manjusree v. State of A.P . (2008) 3 SCC 512 wherein this Court

held that selection criteria has to be adopted and declared at the time

of commencement of the recruitment process. The rules of the game

cannot be changed after the commencement of the game. It was held

that the competent authority, if not restrained by the statutory rules, is

fully competent to prescribe the minimum qualifying marks for written

examination as well as for interview. But such prescription must be

done at the time of initiation of selection process. Change of criteria of

selection in the midst of selection process is not permissible.

17. Counsel for the Petitioner has also relied on Hemani Malhotra

v. High Court of Delhi (2008) 7 SCC 11. In Hemani Malhotra’s

case, the result of the written examination of the Delhi Higher Judicial

Service was not announced by the High Court of Delhi, and individual

communication was sent to the petitioners therein, informing them of

their selection for the interview. Five candidates were called for

interview on various occasions and were informed of its

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postponement, i.e. the interview first scheduled for 20.09.2006 was

later deferred to 29.11.2006, 07.12.2006, 23.01.2007, 05.02.2007 and

was finally conducted on 27.02.2007. Meanwhile on 13.12.2006, by a

Full Court Resolution, minimum qualifying marks for the viva-voce was

prescribed (55% for General Candidates and 50% for SC and ST

candidates). In such facts and circumstances, prescribing minimum

marks for the interview was struck down along the same lines as in

the case of Manjushree.

18.Observing that prescribing minimum marks for the interview was

not permissible after the written test was conducted, in Hemani

Malhotra v. High Court of Delhi (2008) 7 SCC 11, it was held as

under:

“15. There is no manner of doubt that the authority making rules

regulating the selection can prescribe by rules the minimum marks both

for written examination and viva-voce, but if minimum marks are not

prescribed for viva-voce before the commencement of selection

process, the authority concerned, cannot either during the selection

process or after the selection process add an additional

requirement/qualification that the candidate should also secure

minimum marks in the interview. Therefore, this Court is of the opinion

that prescription of minimum marks by the respondent at viva-voce test

was illegal.”

19.In Hemani Malhotra, candidates were called for interview on

various dates but no interview was held and it was deferred. In the

meanwhile minimum qualifying marks were prescribed for interview.

This is not the case before us. In this case, prior to the interview which

was conducted on 12

th

February, 2015, a Full Court meeting was held

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W.P.(C)No.294/2015

on 12

th

January, 2015 and a decision was taken prescribing minimum

qualifying marks for the viva-voce. Thus, it would be incorrect to

contend that prejudice was caused to the petitioner, especially when

no bias is alleged.

20.After referring to the cases of Manjusree and Hemani

Malhotra, in Ramesh Kumar v. High Court of Delhi & Anr. (2010) 3

SCC 104, it was also held as under:-

15. Thus, the 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 benchmarks for written test as well as for viva-voce.

16. In the instant case, the Rules do not provide for any particular

procedure/criteria for holding the tests rather it enables the High Court to

prescribe the criteria. This Court in All India Judges’ Assn. (3) v. Union of India

(2002) 4 SCC 247 accepted Justice Shetty Commission’s Report in this

regard which had prescribed for not having minimum marks for interview. The

Court further explained that to give effect to the said judgment, the existing

statutory rules may be amended. However, till the amendment is carried out,

the vacancies shall be filled as per the existing statutory rules. A similar view

has been reiterated by this Court while dealing with the appointment of

Judicial Officers in Syed T.A. Naqshbandi v. State of J&K (2003) 9 SCC 592

and Malik Mazhar Sultan (3) v. U.P. Public Service Commission (2008) 17

SCC 703. We have also accepted the said settled legal proposition while

deciding the connected cases i.e. Rakhi Ray v. High Court of Delhi (2010) 2

SCC 637 vide judgment and order of this date. It has been clarified in Rakhi

Ray v. High Court of Delhi

(2010) 2 SCC 637 that where statutory rules do not

deal with a particular subject/issue, so far as the appointment of the Judicial

Officers is concerned, directions issued by this Court would have binding

effect.

21.Both Hemani Malhotra and Ramesh Kumar relied upon

Manjusree to hold that prescription of minimum marks in the interview

was not permissible after the written test was conducted. After

referring to State of Haryana v. Subash Chander Marwaha and

Ors. (1974) 3 SCC 220 and observing that the principles laid down in

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W.P.(C)No.294/2015

Manjusree without any further scrutiny would not be in the larger

public interest or the goal of establishing an efficient administrative

machinery, in Tej Prakash Pathak & Ors. v. Rajasthan High Court &

Ors.(2013) 4 SCC 540 (three Judges), this Court observed that the

matter deserves consideration by a larger Bench. In paras (12) to

(15), it was held as under:-

12. If the principle of Manjusree case (2008) 3 SCC 512 is applied strictly to

the present case, the respondent High Court is bound to recruit 13 of the

“best” candidates out of the 21 who applied irrespective of their performance

in the examination held. In such cases, theoretically it is possible that

candidates securing very low marks but higher than some other competing

candidates may have to be appointed. In our opinion, application of the

principle as laid down in Manjusree case (2008) 3 SCC 512 without any

further scrutiny would not be in the larger public interest or the goal of

establishing an efficient administrative machinery.

13. This Court in State of Haryana v. Subash Chander Marwaha (1974) 3 SCC

220 while dealing with the recruitment of Subordinate Judges of the Punjab

Civil Services (Judicial Branch) had to deal with the situation where the

relevant rule prescribed minimum qualifying marks. The recruitment was for

filling up of 15 vacancies. 40 candidates secured the minimum qualifying

marks (45%). Only 7 candidates who secured 55% and above marks were

appointed and the remaining vacancies were kept unfilled. The decision of the

State Government not to fill up the remaining vacancies in spite of the

availability of candidates who secured the minimum qualifying marks was

challenged. The State Government defended its decision not to fill up posts on

the ground that the decision was taken to maintain the high standards of

competence in judicial service. The High Court upheld the challenge and

issued a mandamus. In appeal, this Court reversed and opined that the

candidates securing minimum qualifying marks at an examination held for the

purpose of recruitment into the service of the State have no legal right to be

appointed. In the context, it was held: (Subash Chander Marwaha case,

(1974) 3 SCC 220 p. 227, para 12)

“12. … In a case where appointments are made by selection from a

number of eligible candidates it is open to the Government with a view to

maintain high standards of competence to fix a score which is much

higher than the one required for more (sic mere) eligibility.”

14. Unfortunately, the decision in Subash Chander Marwaha (1974) 3 SCC

220 does not appear to have been brought to the notice of Their Lordships in

Manjusree

(2008) 3 SCC 512. This Court in Manjusree (2008) 3 SCC 512

relied upon P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141,

Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721 and Durgacharan

Misra v. State of Orissa(1987) 4 SCC 646. In none of the cases, was the

decision in Subash Chander Marwaha (1974) 3 SCC 220 considered.

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W.P.(C)No.294/2015

15. No doubt it is a salutary principle not to permit the State or its

instrumentalities to tinker with the “rules of the game” insofar as the

prescription of eligibility criteria is concerned as was done in C.

Channabasavaih v. State of Mysore

,

AIR 1965 SC 1293 in order to avoid

manipulation of the recruitment process and its results. Whether such a

principle should be applied in the context of the “rules of the game” stipulating

the procedure for selection more particularly when the change sought is to

impose a more rigorous scrutiny for selection requires an authoritative

pronouncement of a larger Bench of this Court. We, therefore, order that the

matter be placed before the Hon’ble Chief Justice of India for appropriate

orders in this regard.

Since the decision laid down in the Manjusree’s case is doubted and

the matter is pending for consideration by a larger Bench, and in the

facts and circumstances of this case, it is my view that the ratio laid

down in Manjusree and Hemani Malhotra is not applicable to the

present case.

22.This Court has laid much emphasis on interview/viva-voce in a

catena of decisions. In the recruitment for judicial services, the

importance of interview/viva-voce cannot be underestimated.

Viva-voce is the best mode of assessing the suitability of a candidate

as it brings out the overall intellectual qualities of the candidates. In

Ramesh Kumar v. High Court of Delhi & Anr. (2010) 3 SCC 104,

this Court held as under:-

“11. In State of U.P. v. Rafiquddin (1987) Supp SCC 401; Krushna Chandra

Sahu (Dr.) v. State of Orissa (1995) 6 SCC 1; Manjeet Singh v. ESI Corpn.

(1990) 2 SCC 367 and K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395

this Court held that the 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

Page 29 29

W.P.(C)No.294/2015

would get diluted and substandard 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 the 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.

12. Reiterating similar views, this Court has given much emphasis on

interview in Lila Dhar v. State of Rajasthan (1981) 4 SCC 159 and Ashok

Kumar Yadav v. State of Haryana (1985) 4 SCC 417 stating that interview

“can evaluate a candidate’s initiative, alertness, resourcefulness,

dependableness, cooperativeness, capacity for clear and logical presentation,

effectiveness in discussion, effectiveness in meeting and dealing with others,

adaptability, judgment, ability to make decision, ability to lead, intellectual and

moral integrity with some degree of error.”

23.Full Court decision dated 12

th

January, 2015 prescribing

minimum qualifying marks for viva-voce is a decision taken towards

ensuring the fair and meritorious appointment on the post advertised

and no mala fide can be attributed to the respondents for such a

decision. Had the High Court convened the Full Court Meeting after

conducting the viva-voce and had then prescribed the minimum

qualifying marks, the contention of the petitioner would have been

justified. When the decision of the Full Court was to ensure selection

of meritorious candidate, it cannot be said that the decision of the High

Court amounted to change in the criteria of selection after the

selection process has started.

24.Petitioner contends that the decision of the High Court to

prescribe minimum qualification marks is against the

recommendations of the Shetty Commission and is violative of the

judgment of this Court in All India Judges’ Association and Ors. v.

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W.P.(C)No.294/2015

Union of India and Ors. (2002) 4 SCC 247. It is further argued that

in the said case, the Court accepted Shetty Commission’s Report

which has recommended not having cut-off marks in interview for the

recruitment of the judicial officers.

25.No doubt, Shetty Commission has recommended in its Report

that there should be no cut-off marks in the viva-voce test. Relevant

recommendation of Shetty Commission reads as under:-

“The viva-voce test should be in a thorough and scientific manner and it

should take anything between 25 to 30 minutes for each candidate. What is

recommended by the Commission is that the via voce test shall carry 50

marks and there shall be no cut-off marks in viva-voce test.”

26.Admittedly, the Shetty Commission has recommended that the

viva-voce test shall carry fifty marks and there shall be no cut-off

marks in the viva-voce test. In All India Judges’ Association case

para (37), this Court subject to various modifications in the judgment,

accepted all other recommendations of the Shetty Commission. While

there was a detailed discussion on the perks, mode of recruitment to

the Higher Judicial Service and the proportionate percentage for

promotion as District Judges for judicial officers, limited competitive

examination for Civil Judges (Junior Division) and percentage of direct

recruitment, there was no detailed discussion regarding the other

recommendations of Shetty Commission. As rightly contended by the

learned Senior Counsel for the respondent, All India Judges’

Association case is sub silentio on the recommendation of Shetty

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W.P.(C)No.294/2015

Commission as to “no cut-off marks for the viva-voce”. Contention of

the petitioner that fixing cut-off marks for the viva-voce is in violation of

the decision of this Court is not tenable.

27.Learned senior counsel for the respondents has also drawn

attention to the Judicial Service Rules of various High Courts namely,

Delhi, Maharashtra, Odisha, West Bengal and Himachal Pradesh

which have prescribed minimum cut-off marks for the interview.

Insofar as MJS Rules are concerned, such fixing of cut-off marks in

the interview/viva-voce cannot be said to be arbitrary or in violation of

the decision of this Court.

28.Yet another aspect of the matter is that the petitioner

participated in the selection process and only because in the final

result the petitioner being unsuccessful, he cannot turn around and

contend that the criteria for selection was changed. It is fairly

well-settled that the candidate having participated in the selection

process without any protest cannot be allowed to turn around and

question the very process having failed to qualify. In Madan Lal &

Ors. v. State of J&K & Ors. (1995) 3 SCC 486, this Court observed:-

“9. … 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….

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.”

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W.P.(C)No.294/2015

29.In the written examination, the petitioner has secured 158.50 out

of 300; in the interview/viva-voce 18.80 out of 50 totalling 177.30 out

of 350 i.e. 50.65%. Learned senior counsel for the petitioner submitted

that as per the existing Rules, the final selection is to be made by

adding the cumulative grade value obtained in the written examination

and interview/viva-voce examination. The petitioner having obtained

cumulative percentage of 50.65 which is equivalent to Grade ‘B’; it is

contended that, had the High Court followed the Rules, the petitioner

must have been declared to have been selected and the High Court

has deliberately denied the appointment to the petitioner.

30.For the sake of argument, even assuming that the petitioner was

successful in the selection, in my view, it would not give the petitioner

an indefeasible right to get an appointment as well. Referring to

various judgments, in Kulwinder Pal Singh and Another v. State of

Punjab and Others (2016) 6 SCC 532, this Court held as under:

10. It is fairly well settled that merely because the name of a candidate finds

place in the select list, it would not give him indefeasible right to get an

appointment as well. The name of a candidate may appear in the merit list but

he has no indefeasible right to an appointment (vide Food Corporation of India

v. Bhanu Lodh (2005) 3 SCC 618, All India SC & ST Employees’ Assn. v. A.

Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav Dwivedi (1999) 5 SCC

180.

11. This Court again in State of Orissa v. Rajkishore Nanda (2010) 6 SCC 777

held as under: (SCC p. 783, paras 14 & 16)

“14. A person whose name appears in the select list does not acquire

any indefeasible right of appointment. Empanelment at best is a condition

of eligibility for the purpose of appointment and by itself does not amount

to selection or create a vested right to be appointed. The vacancies have

to be filled up as per the statutory rules and in conformity with the

constitutional mandate.”

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W.P.(C)No.294/2015

31.No mandamus can be issued in favour of the petitioner as no

prejudice was caused to him. I say so because the 2013

advertisement was issued only for one ‘unreserved’ post. Had

somebody else been appointed, the grievance of the petitioner might

have had substance. Admittedly, nobody was appointed for the said

post and the post remains vacant. Subsequent developments are also

relevant and noteworthy. For filling up of three ‘unreserved’ posts of

MJS Grade-I, fresh advertisement was issued on 12

th

August, 2015 by

the High Court. The petitioner also applied for the said post. Because

of litigation and certain directions thereon, selection process pursuant

to the said advertisement was cancelled. In supersession of the said

earlier advertisement, a fresh advertisement was issued by the High

Court on 4

th

August, 2016 seeking applications for three ‘unreserved’

and one ‘reserved’ post of MJS Grade-I. The last date for the receipt

of applications was 26

th

August, 2016 and the petitioner also applied

for the said post. The learned senior counsel appearing for the High

Court submitted that the examinations are likely to be conducted in

October, 2016. When the said post of 2013 examination has now

been clubbed with other vacant posts and advertised seeking

applications from the eligible candidates, the petitioner cannot seek

mandamus seeking for appointment for the said post with

retrospective effect. The petitioner has no indefeasible right to seek

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appointment as District Judge (Entry Level) in the Manipur Judicial

Services Grade-I. In the facts and circumstances of the case, the

petitioner is not entitled to the relief sought for.

32.For the foregoing discussions, the petitioner is not entitled to the

relief sought for. In the result, the Writ Petition is dismissed.

……………………… ..J.

[R. BANUMATHI]

New Delhi;

October 07, 2016

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IN THE SPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION(C)No.294 of 2015

Salam Samarjeet Singh …..Petitioner

Versus

High Court of Manipur at Imphal & Anr. …..Respondents

O R D E R

Since there is a difference of opinion between us in view of the

dissenting judgments pronounced by us, the matter may be placed before

appropriate Bench for final adjudication after obtaining permission of

Hon’ble the Chief Justice of India.

……………………………….J.

[SHIVA KIRTI SINGH]

..…………………………….J.

[R. BANUMATHI]

New Delhi.

October 07, 2016.