Judgement

SHELAT, J.:- This appeal, by special leave, is directed against the judgment of the High Court of Andhra Pradesh in Writ Petition No.1915 of 1971. That was filed by the respondents herein, who were candidates for the posts of District Munsif in the Andhra Pradesh State Judicial Service which were to be filled in by direct recruitment as distinguished from recruitment by promotion.

2. The respondents are advocates enrolled by the High Court of Andhra Pradesh. In pursuance of an advertisement dated November 8, 1968 issued by the State Public Service Commission, they and certain others applied for the said posts for which at the time there were sixty vacancies. One of the qualifications required of such applicants was that they should be below the age of 32 years on July 1, 1961. The Commission was to hold the examination on the 7th and 8th May, 1969. The examination however, could not be held as the examinees staged a walk-out on the ground that the question paper in Civil Law was at variance with the "Information For Candidates" previously issued by the Commission. The Commission thereafter issued another notice dated July 5, 1969 for holding another examination on July 25, 1969. Thereupon these respondents and ten others filed a Writ Petition No. 2484 of 1969 in the High Court for a direction restraining the Commission from holding the written examination and for a further direction to fill up the said posts by oral test only.

3. Under the Rules, dated December 4, 1962, made by the Governor in exercise of powers under Art. 234 read with Arts. 309 and 237 of the Constitution, the Andhra Pradesh State Judicial Service consists of three categories: (1) Subordinate Judges; (2) District Munsifs, and (3) Judicial Second Class Magistrates. The mode of appointment to the post of District Munsifs as provided by R.4 of the said Rules was by (a) direct recruitment, (b) by transfer from certain categories of public servants and (c) by promotion from the Judicial Second Class Magistrates. Rule 5 empowered the Commission to prepare a list of persons considered fit for appointment in accordance with the rules and regulations as from time to time made by the Governor "after holding such examinations if any, as the Governor may think necessary for the candidates for appointments by direct recruitment or transfer to the post of District Munsif in the State".

4. There were in all 71 vacancies out of which 60 were to be filled in by direct recruitment and the rest by transfer. The selection to the posts to be filled in by direct recruitment was to be made on the basis of a written as well as an oral test. The written test was to consist of three papers of 100 marks each in Civil Law Criminal Law and language, and 200 marks were earmarked for the oral test.

5. The contention of these respondents then was that the said rules did not provide for a written examination that such an examination was provided only by the said "Information For Candidates" issued by the Commission, and that the said rules did not also provide for the maximum and minimum marks and the requisite percentage of marks required for selection. Therefore, the said "Information", the written examination proposed to be held thereunder the requirement of certain percentage of marks, etc. were all ultra vires and invalid. According to the State the Governor had issued certain Government Orders, the requirements of which the Commission had incorporated in the said "Information". Since those Government Orders were issued in pursuance of R.5 of the said Rules the Commission was competent to hold the examination and select candidates for the list to be prepared under R.5 in accordance with the qualifying marks required under the said orders.

6. There was no dispute that the said rules were made by the Governor in consultation with the High Court and the Public Service Commission as provided by Art. 234. Rule 5, amongst them, empowered the Commission to prepare a list of persons consid