Bhanu Pratap vs State Of Haryana & Ors

Bhanu Pratap ....Appellant

VERSUS

State of Haryana & Ors. .... Respondent(s)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. In this appeal we are called upon to decide an issue pertaining to

an appointment to the Post of Subordinate Judge under the

Haryana Civil Services [Judicial Branch] Examination which was

advertised in 2003 and for which the selection process was

completed in 2004. Thereafter two candidates who alone were

selected have been appointed and joined their services on

18.03.2005 and 07.07.2005, respectively.

Page 1 of 11 3. Even subsequent thereto advertisements have been issued for

filling up similar vacancies in 2008 and 2010 which process was

also long completed and persons selected have also been

appointed pursuant to the said selection process. We are also

informed that in 2011, further 111 posts have been advertised for

which selection process has been initiated.

4. The appellant herein submitted his application as against the

aforesaid advertisement issued by the respondents in 2003 for

filling up 73 posts of Subordinate Judges under Haryana Civil

Services [Judicial Branch] Examination. The appellant appeared

in the written tests and was declared successful and thereafter he

was called for interview. Incidentally out of 3,471 candidates who

appeared for the written examination, only 3 persons obtained

more than 50% marks in the written examination and were

eligible under the extant Rules for being called for interview/viva-

voce. All the 3 candidates called for interview duly appeared before

the interview board constituted by the Haryana Public Service

Commission [for short "the Commission"] in which one of the then

Judges of the Punjab and Haryana High Court was called as an

Expert Advisor who was present during the process of the

interview.

5. It transpires from the records that in the interview conducted by

the Commission total marks allocated for the interview/viva-voce

test were 120 and one Shri Vivek Nasir obtained 72 marks out of

120, whereas, Shri Anubhav Sharma was awarded 60 marks out

of 120. However, the present appellant could get only 20 marks

out of the total marks of 120 for the interview. Since he failed to

qualify in terms of Rule 8 of the Haryana Civil Services (Judicial

Branch) Rules [for short "the Rules"] he was not appointed to the

said post.

6. Feeling aggrieved the appellant filed a Writ Petition before the

Punjab and Haryana High Court at Chandigarh which was

registered as CWP No. 12205 of 2005 in which he sought for a

writ of mandamus directing his appointment to the post of

Judicial Officer. In the Writ Petition his contention was that since

he received total aggregate marks of 508 out of 1020 total marks,

i.e., 49.8% and since the marks obtained by him was short of 50%

by just two marks the same should be rounded off to the

qualifying marks of 50% in aggregate in terms of Rule 8 of the

Rules. It was contended that shortage of the percentage of half or

less was to be rounded off and when the petitioner had obtained

49.8% in the whole aggregate after viva voce test, he should have

been treated to have obtained 50% and should have been deemed

to have qualified.

Page 3 of 11 7. The aforesaid contention of the appellant, however, was rejected

by the Single Judge of the High Court and the Writ Petition filed

by the appellant was dismissed, which order was further upheld

by the Division Bench on appeal. Being aggrieved by the dismissal

of his Writ Petition and Letters Patent Appeal, the appellant filed

the present appeal in this Court, on which we heard the learned

counsel appearing for the parties who had also taken us through

the entire records.

8. Appointment to the post of Subordinate Judge (HCS Judicial

Branch) is guided by Haryana Civil Services [Judicial Branch]

Rules, which are statutory in nature. Rule 7(1), 7 (2) and 8(1)

specifically deal with the minimum marks that a candidate has to

obtain to qualify in the written test and also for selection. The said

provisions are extracted hereinbelow for ready reference: -

"7(1) No candidate shall be credited with any marks

in any paper unless he obtains at least thirty three per

cent marks in it.

(2) No candidate shall be called for the viva-voce

test unless he obtains at least fifty per cent qualifying

marks in the aggregate of all the written papers and

thirty three per cent marks in the language paper, Hindi

in (Devnagri Script).

........................................................

........................................................

8(1) No candidates shall be considered to have

qualified in the examination unless he obtains at least

50% marks in the aggregate papers including viva-voce

test."

9. In the advertisement issued by the respondents for filling up the

said post along with instructions and information for candidates it

was specifically mentioned that the syllabus of the examination

would be as contained in Schedule under Rule 9 of para `C' of the

Rules relating to the appointment of Subordinate Judges in

Haryana. The said syllabus was set out in detail showing the

compulsory papers, description of subjects, maximum marks for

each subject. It was also communicated that for viva-voce test

there will be 120 marks. The rules with regard to the conduct of

the written examination were also set out therein. In clause (g)(i)

thereof it was indicated that no candidate shall be considered to

have qualified in the examination unless he obtains at least 50%

marks in the aggregate of all papers including viva-voce test. It

was also stated thereafter in the advertisement that the merit of

the qualified candidates shall be determined by the Haryana

Public Service Commission strictly according to the aggregate

marks obtained in the written papers and viva-voce. For the viva-

voce test it was provided in the advertisement that it will be a test

relating to the matters of general interest and is intended to test

the candidate's alertness, intelligence and general outlook. It was

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reiterated thereunder also that the merit of the qualified

candidates would be determined by the Haryana Public Service

Commission strictly according to the aggregate marks obtained in

the written papers and viva-voce.

10.As stated hereinbefore, a sitting Judge of the Punjab and Haryana

High Court was associated as an Expert Advisor at the time of

viva-voce test which consisted of 120 marks. The total 120 marks

of viva-voce test were divided under four heads evaluating the

personal quality of the candidates as follows: -

"a) Awareness, outlook, Subject knowledge 30 marks

and general interest

b) Articulation and expression 30 marks

c) Intelligence and alertness 30 marks

d) Poise, bearing and other qualities 30 marks"

The Judge of the High Court was to classify a candidate as Expert

Advisor under the following categories: -

"Class Marks Range

Excellent (E) 26-30

V. Good (G+) 21-25

Good (G) 16-20

Above average (A+) 11-15

Average (A) 06-10

Poor (P) 01-05"

11.It is brought out on records that the Judge present in the

interview graded Anubhav sharma as `G', i.e., `Good' placing him

within the mark range of 16-20, whereas Bhanu Partap was

graded as "P", i.e., `Poor' placing him within the mark range of 01-

05 and Vivek Nasir was graded as "A+", i.e., `Above Average'

placing him within the mark range of 11-15. The aforesaid grading

criteria to be awarded by the Judge for evaluating the personal

quality of the candidates were circulated to the members of the

Selection Committee for viva-voce examination as a guideline

before the viva-voce examination. Therefore, the minimum marks

which could be given to the appellant in each of the heads, was

only one and in this case, the Chairman, and the members of the

Commission had given him the maximum marks, i.e., 5 marks,

under each of above-mentioned four heads and consequently he

got 20 marks out of 120 ascribed to the viva-voce examination.

12.Counsel appearing for the appellant submitted before us that

since the appellant had received 49.8% in aggregate in all the

tests including viva-voce, the same could and should have been

rounded off to 50% in aggregate which would have entitled the

appellant to be selected for appointment to the aforesaid post.

Counsel also submitted that during the earlier selection

immediately preceding the selection in question there was the

requirement of grading under three factors/categories only and

the same came to be varied/increased in the selection in question

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from three to six. He contended that this increasing of grading

factors/categories from three to six envisages much wider criteria

in the selection process in question which amounted to

arbitrariness.

13.The aforesaid submissions of the counsel appearing for the

appellant were however refuted by counsel appearing for the

respondents by submitting that the respondents have strictly and

minutely followed and complied with the Rules which are

statutory in nature and, therefore, the present appeal has no

merit at all. He also submitted that there cannot be addition of

any marks unless the same is specifically permitted and provided

either under the Rules or in the advertisement and, therefore,

there was no illegality or arbitrariness in the selection in question.

14.In the light of the records placed before us we have considered

the aforesaid submissions of the counsel appearing for the parties.

The relevant Rules have already been extracted above. A bare

reading of the aforesaid rules would make it crystal clear that in

order to qualify in the written examination a candidate has to

obtain at least 33% marks in each of the papers and at least 50%

qualifying marks in the aggregate in all the written papers. The

further mandate of the rules is that a candidate would not be

considered as qualified in the examination unless he obtains at

least 50% marks in the aggregate including viva-voce test. When

emphasis is given in the Rules itself to the minimum marks to be

obtained making it clear that at least the said minimum marks

have to be obtained by the concerned candidate there cannot be a

question of relaxation or rounding off as sought to be submitted

by the counsel appearing for the appellant.

15.There is no power provided in the statute nor any such

stipulation was made in the advertisement and also in the

statutory Rules permitting any such rounding off or giving grace

marks so as to bring up a candidate to the minimum requirement.

In our considered opinion, no such rounding off or relaxation was

permissible. The Rules are statutory in nature and no dilution or

amendment to such Rules is permissible or possible by adding

some words to the said statutory rules for providing or giving the

benefit of rounding off or relaxation.

16. We may also draw support in this connection from a decision of

this Court in District Collector & Chairman, Vizianagaram

Social Welfare Residential School Society, Vizianagaram and

Another. v. M. Tripura Sundari Devi reported in (1990) 3 SCC

655. In the said judgment this Court has laid down that when an

advertisement mentions a particular qualification and an

appointment is made in disregard of the same then it is not a

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matter only between the appointing authority and the appointee

concerned. The aggrieved are all those who had similar or even

better qualifications than the appointee or appointees but who

had not applied for the post because they did not possess the

qualifications mentioned in the advertisement.

17. In the case of Umrao Singh Vs. Punjabi University, Patiala and

Ors. reported in (2005) 13 SCC 365 this Court while dealing

with the power of Selection Committee for relaxation of norms

held thus: -

"Another aspect which this Court has highlighted is scope for relaxation of norms.

Although Court must look with respect upon the performance of duties by experts in the

respective fields, it cannot abdicate its functions of ushering in a society based on rule

of law. Once it is most satisfactorily established that the Selection Committee did not

have the power to relax essential qualification, the entire process of selection so far as

the selected candidate is concerned gets vitiated. In P.K. Ramchandra Iyer

and Ors. v. Union of India and Ors. (1984)ILLJ314SC this Court

held that once it is established that there is no power to relax

essential qualification, the entire process of selection of the

candidate was in contravention of the established norms

prescribed by advertisement. The power to relax must be

clearly spelt out and cannot otherwise be exercised."

18. Let us also examine the issue from another angle. If rounding off

is given to the appellant as sought for by him there has to be

similar rounding off for a person who has missed 33% in one of

the papers just by a whisker. To him and to such a person who

could not get 50% in aggregate in the written test, if this rule of

rounding off is offered then they would also get qualified. In that

event, there would be no meaning of having a rule wherein it is

provided that a person must at least have the minimum marks as

provided for thereunder. Somewhere a line has to be drawn and

that line has to be strictly observed which is like a Lakshman

Rekha and no variation of the same is possible unless it is so

provided under the Rules itself. Both the Selection Committee as

also the appointing authority are bound to act within the

parameters of the Rules which are statutory in nature and any

violation or any relaxation thereof whether by way of giving grace

marks or rounding off would be acting beyond the parameters

prescribed which would be illegal.

19.In that view of the matter, we find no merit in this appeal, which

is dismissed but leaving the parties to bear their own costs.

.................................................

J

(Dr. MUKUNDAKAM SHARMA)

................................................J

(ANIL R. DAVE)

NEW DELHI,

AUGUST 2, 2011.

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