Judgement

JAGANNATHA SHETTY, J.:- This is a petition under Art. 32 of the Constitution challenging the validity of the list of candidates prepared by Orissa Public Service Commission, Cuttack for appointment as Probationary Munsifs in the State Judicial Service.

2. The Selection of candidates for subordinate judicial service is governed by the Orissa Judicial Service Rules, 1964 (the "Rules"). The Rules were framed under the proviso to Article 309 read with Article 234 of the Constitution of India. The State Public Service Commission (The "Commission") is the selecting authority. The candidates are required to be selected by written test followed by viva voce test. The written examination carries the maximum marks of 950 and the viva voce test 200.

3. In accordance with the Rules, the Commission issued advertisement No. 12 of 1982-83 inviting applications from eligible candidates for posts of Probationary Munsifs. The petitioner was one of the candidates who applied in response thereof, In the written examination conducted by the Commission the petitioner secured 470 marks. He was called for viva voce test in which he was given 30 marks. He thus secured in all 500 out of 1150. The Commission prepared a list of candidates which we may term as select list and recommended to the Government altogether 56 candidates in four batches as desired by the latter. The petitioner did not find a place in that list. The candidates with less number of aggregate marks than that of the petitioner have, however, been selected. The petitioner, therefore, challenges the validity of selection, on the ground among others that it is arbitrary and contrary to the Rules.

4. The reason for exclusion of the petitioner from the select list is not obscure. It has been at any rate now made explicit. He did not secure the minimum qualifying marks prescribed by the Commission in the viva voce test. In the counter-affidavit filed on behalf of the Commission it has been so stated. It is said that the Commission has taken a decision that a candidate to be suitable for the post of Munsif should secure at least 30% at the viva voce test. That decision was taken on the advice of the High Court Judge.

5. The question for our consideration is whether the minimum marks prescribed by the Commission at the viva voce test is justified, and whether the select list prepared by the Commission is in accordance with the Rules.

6. Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination :

7. These Rules read as under :

Rule 16: "The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be the (30%) of the total marks in all the papers :

Provided that Government may after consultation with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.

Rule 17 : The Chief Justice or any of the other judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candidates at the viva voce test from the point of view of their possession of the special qualities required in the judicial service, but shall not be responsible for selection of candidates.

Rule 18 : 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 of marks obtained in the