S. Remany vs High Court of Kerala and Others

C.S. Rajan, J.—The petitioner, while working in the ministerial wing of the subordinate judiciary, was promoted as a temporary judicial Second Class Magistrate on 16.4.1984 and continued for about 5 years. After suffering a reversion for about 4 months, she was again promoted as temporary Judicial Second Class Magistrate on 29.6.1989 and continued as such till 25.2.1991, on which date she was reverted again. Pursuant to Ext.P1 notification dated 16.1.1991 issued by the High Court of Kerala inviting applications from qualified candidates for appointment to the post of Munsiff in the Kerala Judicial Service, the petitioner also applied. According to Ext.P1 notification, the methods of recruitment are direct recruitment from the Bar and recruitment by transfer. The post the petitioner was holding was one of the feeder categories for recruitment by transfer. The selection process consisted of a written examination in three papers carrying a maximum of 100 marks each and an oral examination carrying a maximum of 50 marks. Only candidates who secured not less than 45% marks in each of the papers of the written examination and 30% of the marks in the oral examination shall be eligible for appointment. According to the notification, the object of the oral examination is for deciding the candidates'' general knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsiff. The petitioner successfully passed the written examination and appeared for the oral examination. But in Ext.P3 list of candidates selected for appointment as Munsiffs, the petitioner''s name did not find a place. According to the petitioner, her name was excluded from the list on the ground that she did not secure the minimum 30% of the marks for the oral examination. According to the counsel for the petitioner, the above procedure adopted by the first respondent is opposed to the Kerala Civil Judicial Service Rules. According to the petitioner, the exclusion of her name was not justified when the rules did not prescribe minimum qualifying marks for oral examination. According to the petitioner the marks of both the oral and written examination should be added together and persons who top in the aggregate total marks should be selected. The petitioner has a case that persons who got less marks in the written examination were selected because the petitioner did not get the minimum of 30% marks in the oral examination. According to the petitioner this is unreasonable and violative of Article 14 of the Constitution.

Sri. Sahasranaman, learned counsel for the petitioner strongly relied on the decision of the Supreme Court reported in Durgacharan Misra Vs. State of Orissa and Others, . According to the counsel for the petitioner this decision applies squarely to the facts of this case. In the above ruling of the Supreme Court it was held as follows:

This is the mandate of Rule 18. The Commission shall add the two marks together, no matter what those marks at the viva voce test. On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit. The list so prepared shall be forwarded to the Govt. The Commission has no power to exclude the name of any candidate from the select list merely because he has secured less marks at the viva voce test.

To come to the above conclusion the Supreme Court also referred and relied on two earlier rulings of the Supreme Court reported in P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, and Umesh Chandra Shukla Vs. Union of India (UOI) and Others, .

In the case of Durgacharan Misra Vs. State of Orissa and Others, rules 16 to 19 are the relevant rules which have been relied on by the Supreme Court. According to rule 16, the Commission shall summon for the viva voce test all candidates who secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be 30% of the total marks. According to Rule 17, the Chief Justice or any other Judge nominated by the Chief Justice shall represent the High Court at the viva voce test and advise the Commission on the fitness of the candidates. Rule 18 which is the rule quoted by the Supreme Court to came to the conclusion in favour of the petitioner therein is as follows:

The marks obtained at the viva voce test shall be added to the marks obtained in the written examination. The names of candidates will then be arranged by the Commission in order of merit. If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination. Should the marks secured at the written examination of the candidate concerned be also equal, then the order shall be decided in accordance with the total number or marks obtained in the optional papers.

Therefore according to the Supreme Court it is the mandate of rule 18 that the Commission shall add the two marks together, no matter what those marks are at the viva voce test. On the basis of the aggregate marks in both the test, the selection has to be made. In I.C.A.R''s case (AIR 1984 S.C. 541) also the relevant rules did not enable the selection Board to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. In the Umesh Chandra Shukla Vs. Union of India (UOI) and Others, the rules did not empower the committee to exclude candidates securing less than 600 marks in the aggregate. Therefore in all these cases the Supreme Court came to the conclusion that prescription of separate minimum marks for viva voce test is bad in law because under the rules, no minimum qualifying marks were prescribed.

Sri. Radhakrishnan, learned Government Pleader appearing for the High Court brought to my notice the decision of the Supreme Court reported in Mehmood Alam Tariq and Others Vs. State of Rajasthan and Others, . The above case related to the selection of candidates for various posts in the Rajasthan State and subordinate services, Rajasthan Administrative services, Rajasthan Police Service and Rajasthan Forest Services. The Public Service Commission in the above case prescribed a minimum qualifying mark of 60 (33%) out of the maximum marks of 180 set apart for the viva voce examination. The argument in the above case centered round the legality of the prescription of the above minimum qualifying marks for the viva voce examination. It was contended in the above case that it was undesirable to impose such a condition in the background of the increasing public suspicion of abuse of such situation by the repositories of the power. The suspicion has grown recently that on such occasion considerations other than those that are relevant prevail. The Supreme Court after considering all the oft quoted passages from the cases of Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, , Lila Dhar Vs. State of Rajasthan and Others, and Ashok Kumar Yadav and Others Vs. State of Haryana and Others, held that those decisions do not militate against or render impermissible the prescription of the minimum qualifying marks of 33% for the viva voce examination. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time expected to man increasingly responsible positions in the core services should be men endowed with personality traits conducive to the levels of performance expected in such services.

Yet another decision of the Supreme Court reported in State of U.P. Vs. Rafiquddin and Others, dealt with the same question. In the above case the Supreme Court was considering the prescription of minimum qualifying or cut off marks in viva voce examination contained in the Uttar Pradesh Civil Service (Judicial Branch) Rules. The provision required the selection committee, inter alia, to ensure that persons who did not secure sufficiently high marks in the interview were not recommended for the post. Pursuant to the power thus reserved to it, the selection committee prescribed certain minimum cut off marks for the interview. The Supreme Court upheld the above provision holding that the scheme underlying the rule may be apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva voce test was the sine qua non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to a service. The viva voce test is a well recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services.

In the cases of Ajay Hasia, Lila Dhar and A.K. Yadav the Supreme Court was considering the chances for abusing an oral interview because the separate marks allotted for the viva voce was enormous in comparison with the marks allotted for the written examination, and the possibility of a candidate undeservedly being allotted high marks at the interview. That is not the circumstance available in the present case. This is a case where the selection authority prescribed a certain minimum percentage of marks at the viva voce test in order to become eligible to get selected. It was necessary to prescribe such minimum marks for oral examination, as in the case of the written test to find out the best talent from among the candidates, especially when the selection is intended to appoint Munsiffs in the subordinate judiciary. Therefore the situation available in the above three cases is entirely different from the situation existed in the present case.

Nothing has been stated in the Kerala Civil Judicial Service Rules regarding prescription of minimum qualifying marks either for the written test or for viva voce test. There is also no prohibition against prescription of such minimum qualifying marks. In fact Ext.P1 notification issued by the High Court specifically prescribed 45% marks in each of the papers of the written examination and 30% of the marks for the oral examination for a candidate to be eligible for appointment. Ext. R1 (a) is the procedure to be followed for selection of candidates for appointment as Munsiffs to the Kerala Civil Judicial Service. According to paragraph IX(4), only candidates who secure not less than 45% marks in each of the papers of the written examination and 30% of marks for the oral examination shall be eligible for appointment. The intention of the oral examination has been made clear in Ext.P1 notification. The object of the oral examination is to decide the candidates'' general knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsiffs. The entire process of selection including the conduct of oral examination was carried out by the Munsiffs Recruitment Committee which consisted of the Hon''ble Chief Justice and 4 other Judges. There is no allegation of mala fide or arbitrariness in awarding marks by the selection committee. In the absence of any attack on the ground of mala fides or bias etc., I am not prepared to hold that the selection committee exceeded in its jurisdiction in fixing the minimum qualifying mark of 30% for the viva voce test.

In this connection it is interesting to note that the petitioner has not complained against the fixation of minimum qualifying marks for the written test. If the petitioner''s argument that the rules do not empower the High Court to fix the minimum qualifying marks for viva voce test is accepted, then the prescription of minimum qualifying marks for the written test is also ''tarred by the same brush'' (to borrow a classical expression). Therefore there is no basis for the contention of the appellant against the prescription of qualifying minimum marks for the viva voce test. There is another legal hurdle for the petitioner to succeed in the original petition. Ext.P1 notification provided the prescription of minimum qualifying marks for both written test and/or oral examination. Therefore when the petitioner applied pursuant to Ext.P1 notification, she was well aware of the above two conditions to be satisfied in order to get selection. With open eyes she applied for the post. When she found that she was not successful in scoring the minimum qualifying marks in the oral examination, she has now turned round to challenge the above provision contained in Ext. P1. It is an accepted principle that a person who sat on the fence and took the chance of getting selected in the examination, both written and oral, is not allowed to challenge the legality of the process of selection. A frustrated candidate cannot successfully challenge the process of selection or the principles underlying the selection after the results are announced. On that ground also the petitioner cannot succeed in this original petition.

Under these circumstances the original petition is liable to be dismissed and it is accordingly dismissed. I make no order as to costs.