Vijay Shankar Upadhyaya and Another vs State of Uttarakhand and Others

Barin Ghosh, C.J.—Appointments to the posts of Higher Judicial Officers in this State are governed by the Uttaranchal Higher Judicial Service Rules, 2004 made in exercise of powers conferred by Article 233 and the proviso to Article 309 of the Constitution of India. In terms thereof, one of the sources of recruitment is by direct recruitment of Advocates having not less than seven years of practice on the first date of January of the year, in which the notice inviting applications is published. The said Rules authorise holding of preliminary examination for the purpose of short-listing candidates for selection test. Selection test is comprised of written examination and viva-voce. The Rules have provided in the Schedule appended thereto that the written examination shall carry 300 marks, whereas viva-voce 100 marks. The Rules provide that keeping in view the number of vacancy, a list of candidates shall be prepared by the Committee on the basis of written examination for viva-voce and normally candidates thrice the number of vacancies should be called for viva-voce. Therefore, for one post, in order of merit, three candidates, in the normal circumstances, are required to be called for viva-voce. The Rules provide that viva-voce shall be conducted by a Board to be constituted by the Chief Justice comprising of Judges of the High Court or any other person having professional ability for judging personality. The Rules direct preparation of a final list after interview and viva-voce and direct that the merit list shall be prepared by adding marks of written test and of viva-voce. The Rules further direct that the list of selected candidates, thus, prepared shall be forwarded to the Governor for appointment. That appears to be the mandate of the Rules. On 17.2.2008, a notification was issued for filling up 15 vacant posts of Additional District and Sessions Judge by direct recruitment. Amongst those 15 vacant posts, 9 were available for general candidates. In the notification, it had been indicated, amongst others, that candidates, who secure 50 per cent marks in general category shall only be eligible to be called for viva-voce. Thus, while the Rules directed that in normal circumstances candidates to be called for viva-voce shall be three against one vacancy, the notification made it clear that despite the candidate coming within three against one vacancy, if he does not get 50 per cent and belongs to general category, he shall not be called for viva-voce. Petitioners responded to said notification, succeeded in the preliminary examination, and accordingly were asked to appear in the written examination. In the written examination, Petitioner No. 1 obtained 158 marks out of 300 marks and Petitioner No. 2 obtained 150 marks out of 300 marks. They having, thus, secured 50 per cent marks in the written examination, became eligible for being called at viva-voce. They were called at viva-voce along with four other candidates belonging to general category. A final list of candidates was thereupon prepared in accordance with the merit of the candidates. Petitioner No. 1 having had obtained 8 marks in the viva-voce obtained a total marks of 166, whereas Petitioner No. 2 having had obtained 7 marks in viva-voce obtained a total marks of 157. Having had, thus, obtained respectively 166 and 157 marks, Petitioner Nos. 1 and 2 became 6th and 8th in the final list. Despite they being 6th and 8th in the final list, and though there being nine vacancies available for general category candidates, while preparing the list of selected candidates for forwarding the same to the Governor for appointment, Petitioner Nos. 1 and 2 were omitted along with one Chandra Shekhar Jha, who obtained 153 marks in written examination and 8 marks in viva-voce aggregating to 161 marks. In the present writ petition, it is being contended that since neither the rules, nor the notification indicated any cut-off marks for viva-voce, refusal to include the Petitioners in the select list to be forwarded to the Governor for appointment, was arbitrary, improper and contrary to rules and the judgments of the Hon''ble Supreme Court. It was contended that the Petitioners having obtained the qualifying marks in the written examination and there being no qualifying marks fixed for viva-voce and they having come within the first 9 with their aggregate marks, the Petitioners could not be excluded from the select list to be forwarded to the Governor for appointment.

In the counter affidavit filed to the writ petition, it is the contention of the High Court that for the purpose of the selection in question, the Hon''ble Chief Justice had constituted a Board comprises of Hon''ble Judges of this Court for judging the personality of the candidates at viva-voce. The said Board having had judged the personality of the Petitioners felt that they were not suitable for the appointment, inasmuch as, they obtained 8 and 7 marks out of 100 marks in viva-voce.

The learned Counsel for the Petitioner drew our attention to the judgment of the Hon''ble Supreme Court rendered in the case of Hemani Malhotra Vs. High Court of Delhi, for the proposition that when minimum marks for viva-voce had not been prescribed at the commencement of the selection process, the same could not be prescribed after the written test was over, and on the basis of such prescription, it is not permissible to non-select a candidate, who comes within the zone of appointment.

We are fully ad idem with the views expressed by the Hon''ble Supreme Court in the case of Hemani Malhotra (supra). We hold that after the process of selection has started, it is not permissible to prescribe something anew for the purpose of increasing one more elimination yardstick. In the instant case, however, the said proposition has no application. In the instant case, it is not the contention of the High Court that there was any cut-off mark in the viva-voce. On the other hand, it is the contention of the High Court that in terms of the rules, the purpose of the viva-voce was to judge the personality of the candidates and the Board having had judged such personality felt that the Petitioners cannot be awarded more than 8 percent and 7 percent marks respectively on account of personality and persons having such low personality are not suitable for the job for which they were being recruited. It had not been the contention of the High Court, nor it is the contention of the High Court even at this stage that the High Court had prescribed at any stage any eligibility to cross the hurdle of viva-voce. On the other hand, it is the consistent stand of the High Court that the Board of Judges, who were assigned the responsibility of judging personality of the candidates, found that the Petitioners are not suitable for the job, while ascertaining their personality in course of viva-voce. Such opinion having been expressed by people assigned the obligation to judge personality in the backdrop of the facts of the case cannot be said to be arbitrary requiring interference.

We, accordingly, dismiss the writ petition.