TMI Blog1995 (2) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... lications. The Commission conducted the written examination in July and August, 1993 and thereafter vide notification dated 27th April, 1994 candidates mentioned in the notification were declared to have qualified for viva voce test. In all 79 candidates were found qualified for the viva voce test. 'Mat included the petitioners and the contesting respondents. Under the Jammu and Kashmir Civil Service (Judicial) Recruitment Rules of 1967 (hereinafter referred to as rules') examination for selection of Munsiffs consists of written examination and viva voce test. The Commission, respondent no. 2 accordingly conducted the said viva voce test under rule 10 of the aforesaid rules. On the request of the Commission the Chief Justice of the High Court is to nominate a Judge to act as an expert on the Commission for the purpose of conducting the viva voce test. In pursuance of this rule a viva voce test was conducted by four Members of the Commission and an expert (sitting Judge of the High Court) Mr. Justice B.A. Khan. The Chairman of the Commission respondent no. 3 and one member, namely, respondent no. 4 did not participate in the viva voce test on the ground that one of the candi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age as revealed from the record of this case, that the second respondent prepared a select list of twenty successful candidates in the order of merit on the basis of the aggregate of marks obtained by them in written as well as viva voce test. The said merit list of candidates recommended by respondent no. 2 for appointment as Munsiffs consists of two parts. The first part at annexure-C collectively deals with the general category candidates. Sixteen such candidates have been included in the general category merit list while there is also a waiting list of five such candidates. At annexure-C collectively is also found merit list of Scheduled Castes and Scheduled Tribes candidates who have been recommended for appointment as Munsiffs pursuant to aforesaid selection. Two candidates belonging to Scheduled Caste and two candidates belonging to Scheduled Tribe are found to have been listed in reserved category as seen from the said annexure. It thus becomes clear that sixteen candidates from general category and two candidates each from reserved categories of Scheduled Caste and Scheduled Tribe, in all twenty candidates are so recommended. 5. After petitioners moved this petition, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the advertised post and hence her selection is bad in law. 8) That preparation of the merit list of 16 candidates from general category and 4 candidates from reserved category, in all 20 is in any case bad and violative of rule 41 of the rules as the vacancies for which the advertisement was issued by the Commission were only 11 and requisition was sent by the Govt. for selection of suitable candidates through the Commission for those vacancies. 7. The learned counsel for the contesting respondents comprising of selected candidates as well as the State of Jammu Kashmir and the Commission have resisted these contentions and have submitted that there was nothing wrong with the selection process so far as viva voce test was concerned and that the petition is devoid of merits and is required to be dismissed. 8. It is now time for us to deal with the contentions canvassed by the learned senior counsel in support of the petition. We shall deal with these contentions seriatim. 9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainly not acting as a court of appeal over the assessment made by such an expert committee. 11.In the light of the aforesaid settled legal. position let us see whether there is any substance in the contentions canvassed before us by the learned senior counsel for unsuccessful candidates at the oral interview. 12.So far as the first contention is concerned learned senior counsel for petitioners submitted that rule 10 of the rules lays down that the examination for selection of candidates shall consist of written examination as well as viva voce test. So far as written examination is concerned it is not challenged before us as noted earlier. So far as viva voce test is concerned rule 10(1)(b) lays down as under:- 'The object of viva-voce examination is to assess the candidates' intelligence, general knowledge, personality, aptitude and suitability. The learned senior counsel for petitioners submitted that when a candidates is orally interviewed, the members of the committee should assign separate marks for the different faculties of the concerned candidate namely, intelligence, general knowledge, etc, as laid down in the rule and that does not appear to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the candidates can furnish to the interview committee while the last two tests will depend upon his performance at the interview. In view of this hybrid type of tests for which assessment was to be made at the oral intervire, 75 marks assigned for all these five tests necessarily had to be split up and from the carrier record of the candidate, separate marks had to be assigned for first three tests and that necessarily required separate assessment of marks on the remaining two heads of tests. It is in the light of this requirement of peculiar type of marking at the oral inter-view that it has been observed in para 16 17 of the report that it was clearly illegal to give marks in a lumpsum and that the committee had not divided the marks under various heads nor on the basis of item-wise. It is also to be kept in view that while selecting a student for admission in M.B.B.S. course, what is more important is his performance in the written test and even at the oral interview his past record of performance has its own weight. A student while undertaking study is not required to perform any duty of a public office. But in the case of recruitment to the posts of Munsiffs he is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non- allocation of marks under various heads in the interview test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was thought that the failure to allocate marks under each head or distinct test was an illegality. But in the case before us, the rule merely and generally indicates the criteria to be considered in the interview test without dividing the interview test into distinct, if we may so call them, sub-tests........ The aforesaid decision in Lila Dhar's case was approved by a Constitution Bench of this Court speaking through Bhagwati, J. as he then was in Ashok Kumar Yadav v. State of Haryana (1985 (4) SCC 417). This aspect was also considered later by a Division Bench of this Court speaking through Chinnappa Reddy, J. in Dr. Keshav Ram Pal v. UP. Higher Education Services Commission, Allahabad Ors. (AIR 1986 SC 597). An identical contention concerning viva voce test conducted by the interview board which had not sub- divided the total marks into sub-heads was rejected in that case. Chinnappa Reddy, J. speaking for the Division Bench observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acity and caliber of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. However, in the matter of admission to college or even in the matter-of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. It is to be kept in view that Bhagwati, J. as he then was, speaking for the Court in that case ultimately dismissed the petitions subject to certain general observations and directions. So far as tape-recording is concerned, as one of the contentions of the petitioners was that the oral interview was held in an arbitrary and slip sort manner, an observation was made in para 20 of the report to the effect that it would also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether more marks should be assigned to the petitioners or to the concerned respondents. It cannot be the subject matter of an attack before us as we are not sitting as a court of appeal over the assessment made by the committee so far as the candidates interviewed by them are concerned. In the light of the affidavit in reply filed by Dr. Girija Dhar to which we have made reference earlier, it cannot be said that the expert committee had given a deliberate unfavorable treatment to the petitioners. Consequently, this contention also is found to be devoid of any merit and is rejected. 18.This contention is equally devoid of any merit. The submission of the learned senior counsel for the petitioners is that a mere look at annexure-C will show that the merit list of open category candidates recommended for appointment comprises of majority of candidates belonging to one community only and therefore the committee has shown special liking for such candidates who are preferred by inflating their marks in the oral interview. To say the least, it is a mere conjecture on the part of the petitioners. The very first candidate in the order of merits is roll no. 100 who does not belong t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, he submitted that according to him this certificate may not be correct as atleast respondent no. 13 was stationed in Leh where her husband was a police officer. This contention is controverted by the respondents. Even apart from that the rule requires production of certificate by District Judge within whose local limits of jurisdiction the concerned advocate should have practiced at the bar. The Commission would be justified in not going behind the certificate issued by the concerned District Judge and in not holding any further enquiry into the extent of actual practice put in by such candidate at the bar for being permitted to appear at the written and viva voce test. As both these candidates are armed with certificates which clearly indicated that before 28th December '92, being the last date for submitting applications by concerned candidates for such recruitment, these candidates had completed atleast 2 years of actual practice at the bar as certified by their District Judge, it cannot be urged with any emphasis that still they are not eligible to compete for the said posts. 20.It was next vehemently contended by the petitioners that actual practice would mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners or in favour of any given candidate. In the absence of such pleading of bias and mala fides such a hypothetical contention, only based on the result of the oral interview cannot be sustained. It is also to be kept in view that there is one salient feature of the case which contraindicates this contention. As noted earlier there were 11 vacancies of Munsiffs for which the selection process was started by the Commission as recommended by the State of Jammu and Kashmir. So far as respondent No. 13 is concerned her rank on merits of open category candidates is at sl. no. 14, in the light of the marks obtained by her. There are 13 candidates above her who have got more marks. Therefore, if 11 vacancies were to be filled in, respondent no.13 would be left out. If what the petitioners contended was true and if the Members of the Commission were interested in seeing that anyhow she walks in an for that purpose they were to inflate her marks, they would have resorted to inflating her marks to such an extent that she would clearly walk in the list of first 11 selected candidates. Consequently there is no substance in this contention of learned counsel for the petitioners. In this conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f candidates is 'required. Yours faithfully, Sd/- G.A Lone, Secretary to Government Laws Department A mere look at the letter shows that the Government requested the Commission to hold selection for filling up II clear vacancies only. The letter nowhere showed that more vacancies were likely to arise in future and selection may be held also for such anticipated vacancies. It is true that the letter mentioned that a select list of 20 candidates may be prepared and furnished to the Government but these 9 additional candidates would serve as waiting list candidates from which eligible candidates can be drawn in order or merits if any of the first 11 candidates selected did not join or for any reason could not join. 'Mat is the precise reason why no separate list of waiting list candidates was directed to be prepared. Learned senior counsel for the petitioners was right when he submitted that the recruitment process in the present case was only for filling up II existing clear vacancies of Munsiffs. It is not possible to agree with the respondents that this requisition also took note of anticipated vacancies during the course of one year and therefore it can be said to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any higher candidate not being available to fill the 11 vacancies, for any reason. Once 11 Vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose. 24.It is now time to refer to rule 41 as pointed out by the learned counsel for the petitioners. The said rule reads as under:- Security of the list. The list and the waiting list of the selected candidates shall remain in operation for a period of one year from the date of its publication in the Government Gazette or till it is exhausted by appointment of the candidates whichever is earlier, provided that nothing in this rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will remain in operation till the list or the waiting list is exhausted. A mere look at the rule shows that Pursuant to the requisition to be forwarded by Government to the Commission for initiating the recruitment process, if the Commission has prepared merit list and waiting list of selected candidates such list will have a life of one year from the date of publication in Government Gazette or till it is exhausted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess for recruitment to additional anticipated vacancies. He -fairly stated that no further request was sent. That letter at page 87 is the only material for this purpose since that is the basis for the recruitment made by the Commission in the present case. In this connection, we may usefully refer to a decision of this Court in the Case of State of Bihar v. Madan Mohan Singh Ors. (AIR 1994 SC 765). In that case appointments to the posts of Additional District and Sessions Judges were being questioned. The question was whether appointments could be made to more than 32 posts when the selection pro- cess was initiated for filling up 32 vacancies and whether the merit list of larger number of candidates would remain in Operation after 32 vacancies were filled in. Negativing the contention the such merit list for larger number of candidates could remain in operation after 32 advertised vacancies were filled in, K. Jayachandra Reddy, J. made the following pertinent observations:- Where the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list of 129 candidates prepared in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o disapprove or reject the list, it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded. Not having done that and having approved the list partly (13 out of 20 names), they cannot put forward any ground for not approving the remaining list. It is difficult to appreciate how this judgment can be of any avail to the respondents. In the case aforesaid before this court there was a clear requisition and recruitment for 20 posts. The State had however chosen to appoint only 13 out of 20. The list had a life of one year till all the 20 posts were fill up. This was in consonance with rule 41. In the present case the facts are different. The requisition is not for 20 vacancies as in Asha Kaul's case but for 11 posts. There is no requisition to fill up any anticipated more vacancies. Once the list is approved even though it may contain names of 20 candidates, the list in the present case will get exhausted once 11 vacancies for which advertisement had been issued and recruitment is made are filled up. 25. At this stage we may profitably refer to one more decision of this court in Hoshiar Singh Vs. State of Haryana and Ors. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated hereinabove. 26. As per annexure-C so far as open category candidates are concerned, they are shown in the order of merits upto sl. no. 16. There arc also 2 Scheduled Castes and 2 Scheduled Tribes candidates in all making 20. The extend of selected Scheduled Caste and Scheduled Tribe candidates on reservation quota works out to be 1/5 of the total 20 selected candidates. If this list has to operate, as we have held, only till vacancies are filled up, then on the ratio of 115 of the total vacancies to be filled up, the posts to be reserved for Scheduled Castes and Scheduled Tribes out of total 1 1 posts could be one each for Scheduled Caste and Scheduled Tribe candidates, as 1/5 of 11 would be 2.5 which would yield either 2 reserved candidates or maximum 3 candidates but as maximum 3 candidates may tilt the inter se balance between the Scheduled Castes and Scheduled Tribes, if either of these two categories is given 2 posts out of 3, interest of justice would be served if we direct the respondents to reserve 2 posts in all out of II for being filled up by 1 Scheduled Caste and Scheduled Tribe candidate each, in the order of inter se merits of Scheduled Caste and Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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