Malik Mazahar Sultan Etc vs Pub.Service Commission,Uttarakhand & ...

Vijendra Kumar Verma ..

Appellant

Versus

Public Service Commission,

Uttarakhand & Ors. .. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. By passing an order on 15.9.2010, we dismissed SLP(C)

No. 12787 of 2008 which was connected with SLP(C) No. 12788

of 2008. SLP (C) No. 12787 of 2008 was dismissed as not

pressed.

2. SLP(C) No. 12788 of 2008 was filed by the petitioners

namely Shri Vijendra Kumar Verma and Shri Harendra Kumar

Ozha. But so far as Shri H.K. Ozha is concerned, on his

behalf a prayer was made to withdraw his name from

the petition as he was appointed as a judicial

officer in the State of Uttar Pradesh.

2 By an order passed on the same day i.e. 15.9.2010, we removed

his name as petitioner from the said petition with a further

direction that the aforesaid petition would be considered only so

far as Shri Vijendra Kumar Verma is concerned.

3. After passing the aforesaid order, we proceeded to hear the

learned counsel appearing for the parties and after hearing the

parties at length, we reserved our orders.

4. Leave granted.

5. By this common judgment and order, we now propose to

dispose of the appeal in terms of our discussion and reasons

recorded herein. The selection of judicial officers for Uttaranchal

Judicial Service is governed by a set of rules called the

Uttaranchal Judicial Service Rules, 2005. The Rules deal with

the procedure and mode of selection, recruitment and

appointment in the Uttaranchal Judicial Service comprising

group A and B posts. In Uttaranchal Judicial Service, there is a

post called Civil Judge (Junior Division). Rule 8 of the said

Rules lays down the eligibility criterion that a candidate for

direct recruitment to the service apart from holding qualification

of Bachelor of Law must possess a thorough knowledge of Hindi

in Devnagari script as well as the basic knowledge of computer

operation.

3 6. Rule 8 reads as follows:-

"8. A candidate for direct recruitment to the Service

must be -

(a) A bachelor of Law from a University established

by law in Uttaranchal or any other University of

India recognized for this purpose by the

Governor.

(b) Must possess thorough knowledge of Hindi in

Devnagri script.

(c) Basic knowledge of Computer operation."

7. Rule 14 of the said Rules lays down that the examination

may be conducted at such time and on such dates as may be

notified by the Commission and the same would consist of a

written examination on such legal and allied subjects in the

syllabus prescribed under Rule 17, an examination to test the

knowledge of the candidate in Hindi and in English and an

interview for assessing the merit of the candidates.

8. Rule 17 provides that the syllabus and the Rules relating

to the competitive examination shall be such as given in

Appendix II. The said Appendix II contains the syllabus as well

as the individual aggregate marks to be allocated against

individual papers.

9. Rule 18 of the said Rules speaks of the manner and mode

of the preparation of the final list of the selected candidates in

order of their proficiency as disclosed by the aggregate of marks

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finally awarded to such candidates in the written examination

and interview whereas Rule 19 makes a provision as to how on

submission of the final list of the candidates prepared by the

Commission, appointment is to be made to the Post of Civil

Judge (Junior Division). It provides that on receipt of the list of

candidates submitted by the Commission, the Governor shall

make appointment to the post of Civil Judge (Junior Division) in

the order in which their names are given in the list.

10. An advertisement was issued on 16.2.2006 inviting

applications from eligible candidates for filling up 50 posts of

Civil Judge (Junior Division). The appellant herein submitted

his application for one of the aforesaid posts. The appellant

appeared in the preliminary examination and he was declared

successful in the said examination on 16.9.2006.

11. Thereafter, he was called for the Viva Voce examination

also, but despite his appearance in the viva voce examination

and doing reasonably well according to his own estimation, he

was not selected and his name did not appear in the final list of

selected candidates. The appellant, however, came to know that

he received total of 576 marks together in written examination

and in viva voce examination and on the basis thereof in his

estimation he should have been selected as persons getting total

marks of 568 were inducted into the service. The appellant

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submitted that to his knowledge and information he was not

selected because according to the respondents the appellant did

not have basic knowledge of computer operation. The reason for

non-selection of the appellant was also disclosed in the counter

affidavit filed on behalf of Respondent No. 1 against the writ

petition filed by the appellant. In the said counter affidavit, it

was stated that the appellant was to put to test for determining

and ascertaining as to whether he possessed the basic

knowledge of computer operation. It is also stated in the said

affidavit that an expert in the field of computer was associated

for determining, assessing and ascertaining the aforesaid fact

and it was found that the appellant did not possess basic

knowledge in computer operation. Therefore, he was not

selected.

12. The aforesaid writ petition was filed by the appellant

praying for declaration that since the respondents have

introduced a new selection criterion during the midstream of the

selection, therefore, the selection process was vitiated. It was

also submitted that the action of the respondents in failing the

appellant only on the ground that he did not have basic

knowledge in computer operation should be set aside and

quashed and that the appellant should now be inducted into the

service.

6 13. The aforesaid writ petition was heard by the Division

Bench of the Uttarakhand High Court and finally by the

impugned judgment and order dated 28.3.2008, the writ petition

was dismissed with certain observations contained in the said

judgment.

14. Being aggrieved by the aforesaid judgment and order, the

present appeal is filed by the appellant on which we heard the

learned counsel appearing for the parties.

15. Mr. Shyam Diwan, the learned senior counsel appearing

for the appellant submitted before us that no syllabus was ever

prescribed by the respondents for judging and ascertaining the

basic knowledge of the candidate in computer operation either

before the selection process was initiated or even at the time

when the advertisement was issued and therefore such a

syllabus could not have been introduced by the respondents in

the midstream of such selection process and therefore, the

action of the respondent, in introducing a benchmark at a

subsequent stage is without jurisdiction and the same is

required to be set aside.

16. It was also submitted by the learned counsel for the

appellant that the benchmark provided for judging the suitability

of the person in computer operation being vague and there being

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no proper guidelines for adjudging the said competence and

suitability, failing the appellant only on the ground that he did

not have sufficient knowledge in basic computer operation was

uncalled for and unjustified and therefore the appellant should

be declared to have passed the examination as he had passed

even in the viva voce examination as he scored more than the

minimum marks obtained by the successful candidates.

17. The aforesaid submissions of the learned counsel

appearing for the appellant were refuted by the learned counsel

appearing for the respondents who has taken us through the

records and on the basis of which he submitted that the

respondents have all along spelt out that the candidate desiring

to be appointed to the aforesaid post of Civil Judge (Junior

Division) must have the basic knowledge of computer operation

and therefore the same was a part and parcel of the syllabus

which was known to each one of the candidates including the

appellant and therefore no grievance could be raised in that

regard.

18. It was also submitted by him that the appellant having

participated in the entire selection process and having specific

knowledge that he would be required to have basic knowledge in

computer operation and then having taken a chance therein by

appearing in the viva voce and facing the questions of the expert

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on the computer operation, he cannot now turn back and take a

stand that the said selection process is vitiated.

19. In the light of the aforesaid submissions of the learned

counsel appearing for the parties, we have considered the

records. The advertisement inviting applications from eligible

candidates for filling up the posts was published in a newspaper

on 16.2.2006. In the said advertisement, conditions of eligibility

have also been mentioned in clause 4 wherein the essential

qualifications were prescribed. In clause 4(c), it was specifically

mentioned that the candidate should have basic knowledge of

computer operation. In clause 9 of the aforesaid advertisement,

it was stated that the candidate desiring to apply should read

the advertisement carefully and apply only if he is satisfied

regarding eligibility according to the conditions of advertisement.

In paragraph 12(4), it was also mentioned that only those

candidates would be called for interview who would be declared

successful on the basis of main examination (written

examination).

20. The candidates were thereafter called for the written

examination which was held from 17.1.2007 to 19.1.2007 and a

list of successful candidates in the written examination was

published by the Uttarakhand Public Service Commission on

26.4.2007. In the aforesaid notification which was published, it

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was also mentioned that the aforesaid successful candidates in

the written competitive examination will have to establish that

they have sufficient knowledge of Hindi in Devnagari script and

basic knowledge of computer operation. It was further stated

that with regard to the basic knowledge of computer operations,

the candidates should have the knowledge of Microsoft

Operating System and Microsoft Office operation. Interview

letters were thereafter issued and in so far as the appellant is

concerned, his interview letter was dated 21.5.2007. In the said

call letter for the interview also, it was specifically mentioned

that basic knowledge of the computer operation would be

essential to the candidate and in connection with the basic

knowledge of the computer operation, knowledge of Microsoft

Operating System and Microsoft Office Operation would be

essential to the candidate and the said knowledge of the

candidate would be examined at the time of interview.

Therefore, the appellant knowing fully well about the

requirement of having basic knowledge of computer operation

went for his viva voce examination and gave the said test without

any protest or demur of the kind that is being raised in the writ

petition and before us.

21. The basic knowledge of the appellant in computer

operation was tested at the time of his interview by an expert

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who was sitting with the interview members conducting the

interview. The said expert after testing the knowledge, the

suitability of the appellant and his basic knowledge in computer

operation gave his opinion that the appellant did not possess the

basic knowledge of computer operation. Since possession of

such knowledge of computer operation was one of the eligibility

criteria for being selected for the aforesaid post of Civil Judge

and as the appellant was not found suitable and lacking in basic

knowledge of computer operation, he was not selected. The

issue is whether such a course adopted by the respondent could

be said to be illegal, without jurisdiction and unheard of.

22. In support of his contention, the learned counsel appearing

for the appellant relied upon the decisions of the Supreme Court

in K. Manjusree Vs. State of Andhra Pradesh & Anr. reported

in (2008) 3 SCC 512. In paragraph 25 and 27 of the said

judgment, it was said that introducing minimum marks for

interview in the midstream of the selection process is illegal.

23. The counsel for the appellant also relied upon a judgment

of this Court in Hemani Malhotra Vs. High Court of Delhi

reported in (2008) 7 SCC 11 and Ramesh Kumar Vs. High

Court of Delhi & Anr. reported in (2010) 3 SCC 104 in support

of the contention that minimum benchmark provided for

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selection during the midstream of the selection process is

without jurisdiction.

24. In our considered opinion, the reliance on the aforesaid

judgments by the counsel appearing for the appellant was

misplaced as in the present case the requirement and the

necessity for having basic knowledge of computer operation as

one of the eligibility criteria and conditions for selection is

prescribed in Rule 8 itself. The said clause was also specifically

mentioned in the advertisement issued making it clear to all the

intending candidates that they must have basic knowledge of

computer operation.

25. When the list of successful candidates in the written

examination was published in such notification itself, it was also

made clear that the knowledge of the candidates with regard to

basic knowledge of computer operation would be tested at the

time of interview for which knowledge of Microsoft Operating

System and Microsoft Office Operation would be essential. In

the call letter also which was sent to the appellant at the time of

calling him for interview, the aforesaid criteria was reiterated

and spelt out. Therefore, no minimum benchmark or a new

procedure was ever introduced during the midstream of the

selection process. All the candidates knew the requirements of

the selection process and were also fully aware that they must

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possess the basic knowledge of computer operation meaning

thereby Microsoft Operating System and Microsoft Office

Operation. Knowing the said criteria, the appellant also

appeared in the interview, faced the questions from the expert of

computer application and has taken a chance and opportunity

therein without any protest at any stage and now cannot turn

back to state that the aforesaid procedure adopted was wrong

and without jurisdiction.

26. In this connection, we may refer to the decision of the

Supreme Court in Dr. G. Sarana Vs. University of Lucknow &

Ors. reported in (1976) 3 SCC 585 wherein also a similar stand

was taken by a candidate and in that context the Supreme Court

had declared that the candidate who participated in the selection

process cannot challenge the validity of the said selection

process after appearing in the said selection process and taking

opportunity of being selected. Para 15 inter alia reads thus:-

"15.... He seems to have voluntarily appeared

before the Committee and taken a chance of having

a favourable recommendation from it. Having done

so, it is not now open to him to turn round and

question the constitution of the Committee."

27. In P.S. Gopinathan Vs. State of Kerala and Others

reported in (2008) 7 SCC 70, this Court relying on the above

principle held thus;

13 "44. .....Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lucknow......."

28. In Union of India and Others vs. S. Vinodh Kumar and

Others reported in (2007) 8 SCC 100 at paragraph 18 it was

held that it is also well settled that those candidates who had

taken part in the selection process knowing fully well the

procedure laid down therein were not entitled to question the

same. Besides, in K.H. Siraj vs. High Court of Kerala and

Others reported in (2006) 6 SCC 395 in paragraph 72 and 74

it was held that candidates who participated in the interview

with knowledge that for selection they had to secure prescribed

minimum marks on being unsuccessful in interview could not

turn around and challenge that the said provision of minimum

marks was improper, said challenge is liable to be dismissed on

the ground of estoppel.

29. Now, while deciding the submission of the counsel

appearing for the appellant that judging the suitability of the

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candidate by laying down the benchmark of basic knowledge of

computer operation being sufficient or insufficient is vague, we

are of the opinion that possessing of basic knowledge of

computer operation is one of the criteria for selection and in

order to judge such knowledge, an expert on the subject was

available at the time when the candidate was facing the Interview

Board. In order to ascertain the candidate's knowledge of

computer operation, he put questions and thereafter he gave

remarks that the candidate has sufficient knowledge or that he

does not have sufficient knowledge.

30. It is also to be considered that the Indian judiciary is

taking steps to apply e-governance for efficient management of

courts. In the near future, all the courts in the country will be

computerized. In that respect, the new judges who are being

appointed are expected to have basic knowledge of the computer

operation. It will be unfair to overlook basic knowledge of

computer operation to be an essential condition for being a judge

in view of the recent development being adopted. Therefore, we

are of the considered opinion that requirement of having basic

knowledge of computer operation should not be diluted. We also

deem fit not to comment over the standard applied by the expert

in judging the said knowledge as the same is his subjective

satisfaction. However directions can be recommended to make

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the procedure more transparent. The directions in respect of

same have already been given by the High Court we do not think

proper to prescribe the directions for the same separately.

31. The aforesaid procedure for testing the knowledge may not

be foolproof but at the same time it cannot be said that the same

was not reasonable or that it was arbitrary. Therefore, after

giving very thoughtful consideration to the issues, we are of the

opinion that the appellant has failed to make out any case before

us for interference with the orders passed by the High Court.

We find no merit in this appeal and the same is dismissed.

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

[Dr. Mukundakam Sharma]

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

[Anil R. Dave]

New Delhi,

October 8, 2010

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