TMI Blog1964 (7) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... up of appeals (C.As. Nos. 960 to 968 of 1963) the Appellants challenge the order of the High Court of Mysore dated September 4, 1961, quashing a notification dated May 22, 1961, issued by the Public Service Commission announcing the list of candidates declared successful at the competitive examination held in 1961 for recruitment to the cadre of Munsiffs in the Judicial Service of the State. Appeals in the second group (C,As. Nos. 533 to 538 of 1963) are preferred against the order of the High Court dated December 19, 1962 quashing the list of successful candidates at the examination held for recruitment to the cadre of Munsiffs in the State of Mysore published on July 12, 1962 by the Public Service Commission. 2. By Writ Petitions Nos. 61, 62 and 152 of 1963 certain persons who were candidates for promotion to the cadre of Munsiffs prayed for orders quashing the list of successful candidates declared under Rule 9(2) of the Mysore State (Recruitment) Rules, 1958, and for direction appointing the applicants as Munsiffs. 3. Recruitment to the cadre of Munsiffs in the Mysore State Judicial Service is regulated by the Mysore Munsiffs (Recruitment) Rules, 1958 (for the sake of bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment, shall be associated with the Commission. Rule 9 sets out the procedure for selection by promotion. By Clause (1) it is prescribed that the candidates for promotion as Munsiffs shall be selected on grounds of merit and suitability in all respects, from among the candidates possessing the prescribed qualifications. Clause (2) provides that the Public Service Commission shall call for applications from candidates possessing the prescribed qualifications for promotion, and after interviewing such of the candidates, as it deems fit, a list of the candidates suitable for appointment by promotion shall be prepared and arranged in the order of seniority of the candidates in service. Rule 12 provides that a list of candidates declared successful at the competitive examination shall be published in the Mysore Gazette in order of merit and appointments shall be made in the order in which their names appear in the list. The candidates selected for promotion are to be so interposed in the common list of eligibility that out of every six vacancies to be filled, five will be filled by candidates selected at the competitive examination and the sixth by the candidate selected for promotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointments to the cadre of Munsiffs from out of the approved lists. Diverse grounds were set up in support of the challenge to the validity of the lists, of which the following were the principal grounds : (1) That the Commission by its decision dated May 19, 1961 had adopted a criterion for declaring candidates successful at the examination which was not found in the Rules, and which the Commission had no power to adopt. It was submitted that the Governor alone had the power conferred upon him by Article 234 and proviso to Article 309 of the Constitution to prescribe the qualifications for appointment of Munsiffs, and that the power to prescribe the qualifications could not be delegated to the Commission and was not in fact delegated to the Commission and on that account declaration of the list of successful candidates was invalid, being in violation of the Rules. (2) That in the Viva voce test under the Rules, the Public Service Commission had to test, as set out in the schedule to the Recruitment Rules, the general knowledge and grasp of principles of law, but the Commission had also considered the personality of the candidates and their suitability to be appointed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... schedule to the Recruitment Rules. The High Court pointed out that the notification was obviously published under the authority of the Commission and it was plain that the Commission did intend when it called for applications by that notification to hold a viva voce test in respect of all the four matters enumerated therein, and what it avowedly intended to do it must be presumed it did. The High Court therefore held that the Commission having considered, apart from the general knowledge and the grasp of principles of law, certain other qualities described as personality and suitability and having awarded marks on a consideration of all those qualities, the viva voce test was not conducted in accordance with the Recruitment Rules. 7. On the third question also the High Court held in favour of one of the Petitioners. The High Court held that the examining body was, in holding the viva voce test, not performing a constitutional function . In the body constituted for holding the viva voce test a person who was not a member of the Commission being included, the provisions of the Mysore Public Service Commission (Conduct of Business and Additional Functions) Act 20 of 1959 had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in the High Court of Mysore by one Kulkarni who was a candidate for promotion, but his petition was dismissed. After consultation with the High Court, the Governor of Mysore by notification dated August 22, 1962 appointed 62 persons 52 selected for direct recruitment through the competitive examination and 10 selected for promotion as Munsiffs in the judicial service of the State of Mysore. 9. Thereafter another batch of six petitions was filed in the High Court of Mysore challenging the appointment of the ten candidates selected for promotion. Some of the Petitioners in those petitions had submitted to the competitive examination and had also applied for promotion : others had applied for promotion alone. The High Court by its order dated December 19, 1962 issued a writ of mandamus directing the Public Service Commission to include the names of the six Petitioners in the list prepared by the Commission under Rule 9(2) of the Rules for appointment to the cadre of Munsiffs. In the view of the High Court the appointment of ten candidates whose names were included in the list under Rule 9(2) as fit for promotion could not be disturbed, yet the six applicants should be added to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Public Service Commission, candidates who had secured a higher percentage of marks at the viva voce test could not be excluded. (3) That the Body which interviewed five of the candidates selected for promotion was different in its composition from the Examining Body which included their names in the list in June 1962 and it was difficult to appreciate how that Examining Body found it possible to pick out five persons whom it had never interviewed and to include them in the list of successful candidates. The High Court summarised its conclusion as follows: It is thus perfectly manifest that the inclusion of both these groups of persons in the list prepared by the Commission is open to-more than one challenge. Firstly, the Petitioners in Writ Petitions 1080 and 1446 of 1962 were entitled to claim inclusion in the list to the exclusion of Respondents 4, 5, 6 and 9 each of whom secured less marks than those two Petitioners. Likewise, the Petitioner in Writ Petition 1461 of 1962 was entitled to be so included in preference to Respondents 5 and 9 who secured less marks than this Petitioner. It is equally clear that the selection of Respondents 7, 8, 11, 12 and 13 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. But the order passed by the High Court maintaining the inclusion of Respondents 4 to 13 in the list and then directing the Commission to include the names of the six Petitioners in the list merely because they had applied to the High Court is without authority. 11. That again is not the only infirmity in the judgment of the High Court. The High Court has also fallen into another error. It may be recalled that in the first set of petitions filed before the High Court of Mysore the applicants challenged the validity of the list of candidates declared successful at the competitive examination under the notification issued by the Commission on May 22, 1961. The list of ten candidates who were selected for promotion was not published and no relief was claimed in the petitions challenging the validity of the list. The names of the ten candidates selected for promotion were not even known to the Petitioners and the averments made in the petitions clearly show that no attempt was made to obtain a decision of the High Court about any invalidity in the selection for promotion of any of those candidates. The High Court in the order which it passed also did not purport to set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes found fit for promotion was not given effect to immediately after it was prepared. Appointment of all those candidates was made on the basis of interviews in 1961 and not on the basis of marks obtained by them at the viva voce test either in the year 1961 or in the year 1962. It is true that five of the candidates who had submitted to the competitive examination and had also applied for promotion had undergone the viva voce test in March 1961 and June 1962. The viva voce test of 1961 has been declared ineffective and all candidates for the qualifying test including those who had applied for promotion alone had to submit to the viva voce test in 1962, because the candidates who sought admission to the cadre through the qualifying examination as well as promotion were entitled under the Rule to compete with the other examinees at the competitive examination and if they secured a higher percentage of marks, to claim to be absorbed in the list of candidates successful at the examination. The fact that five candidates who were already selected for promotion were called for interview again in June 1962 does not lead to the inference that their selection was made on the basis of marks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability for promotion was also determined from that test. Even though the same test did duty for assessing their marks at the examination and selection for promotion, it cannot be assumed that the assessment of marks at the viva voce test was determinative of suitability for promotion. That is clear from the affidavit of S.D. Nayak, Under Secretary to the Government of Mysore in the Home Deptt., who in his affidavit dated December 10, 1962 has stated in paragraph 3: Even if certain candidates are called for interview, their performance in the interview need not be the sole basis for the selection. Though the performance of the candidates in the interview may be one of the factors to be taken into account, Government is required to take into account other factors like the record of service of the candidate and the opinion expressed by the Hon'ble High Court whether candidate is suitable for selection. The assumption made by the High Court that because persons who had obtained a smaller percentage of marks at the viva voce test in the year 1962 were selected out of the candidates who had applied for the competitive examination and for promotion and the persons who had obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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