2006 Supreme(SC) 530

2006(4) Supreme 448
SUPREME COURT OF INDIA
(From Kerala High Court)
Dr. A.R. Lakshmanan and Lokeshwar Singh Panta, JJ.
K.H. Siraj—Appellant
versus
High Court of Kerala & Ors.—Respondents
Civil Appeal Nos. 2539-2540 of 2005
With
Civil Appeal Nos. 3377-3378 of 2005
And
SLP (C) Nos. 14140-14141 of 2005
All Decided on 23-5-2006
Counsel for the Parties :
For the Appellant in C.A. Nos. 2539-2540/2005 : L. Nageswara Rao, Sr. Advocate, Haris Beeran, Radha Shyam Jena, E.M.S. Anam, C.K. Sasi Advocates.
T.L.V. Iyer, U.U. Lalit, Sr. Advocates, Vipin Nair, P.B. Suresh, V.K. Biju for M/s. Temple Law Firm, K.R. Sasiprabhu, Roy Abraham, Ms. Seema Jain, Himinder Lal, for RR-1.
P.V. Dinesh Sindhu T.P., Jogy Scaria, Sanjay Misra, in SLP (C) No. 14140-14141/2005.
For the Respondents : Ms. Malini Poduval, E.M.S. Anam, for RR-3 in CA No. 3377-3378/2005 Advocates.

IMPORTANT POINT
In the absence of specific legislative mandate under Rule 7(i) of the Kerala Judicial Service Rules, 1991 prescribing cut off marks in oral examination, the fixing of separate minimum cut off marks in the interview after a comprehensive written test is not in violation of the statute.

Headnote:(i) Kerala Public Services Act, 1968—Section 2(1)—Kerala Judicial Service Rules, 1991—Rules 7, 10(1)—Interpretation of—Appointment to the post of Munsif Magistrate in the Kerala Judicial Service—Scheme of written and oral examination as laid down in the Notification—Marks prescribed for written examination are 400 and 50 for oral examination—Written examination consists of four papers of 100 marks each—Prescription of an overall minimum of 45% of the written examination and 30% of the marks for the oral examination as eligibility for appointment—Appellants are reserved category candidates—Their names were not considered for selection as they had not secured 30% marks in interview—Respondents and other candidates who had been selected only because they had got 30% marks in interview irrespective of the facts that total marks of those candidates are less than the marks obtained by the appellants—Preparation of Select List was challenged on ground that selection was against the Rules of reservation and on ground of illegal prescription of cut off marks in oral examination—More than 1800 candidates had applied of which 1292 applicants were found valid—118 candidates had passed in written examination of which 88 were passed in the interview—Whether selection made was in violation of the statute—(No)—Constitution of India—Articles 235, 236.

       Held : It is pertinent to notice that Rules of 1991 were formulated after the integration of the Civil and Criminal wings of the Judiciary and formation of the cadre of Munsif Magistrate at the entry point. Two earlier selections had been made in 1991 and 1998 in accordance with the same procedure as laid down in the Notification dated 26.3.2001 by prescribing the securing of minimum marks in the written and oral examinations as a condition of eligibility. The same procedure was followed in the impugned selection also.(Para 32)

       The oral examination in this case was conducted by the Chief Justice and four seniormost Judges, to whom the marks in the written test were not available at the time of the interview. The Judges had to assess the suitability of the candidates for selection as Munsif Magistrate, keeping in mind various factors. The Judges have awarded marks and found that the appellants have not been able to secure even 30% marks which has been prescribed as the minimum for eligibility.(Para 34)

       The select list so prepared in accordance with the reservation Rules was forwarded to the Government for approval under Rule 7(2) of the Rules. Government approved the same, after due scrutiny of all aspects and all the 70 persons have been appointed as Munsif Magistrate after undergoing the statutory training and are now functioning as Munsif Magistrates.(Para 37)

       Since the High Court is the best Judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected. What the High Court has done by the Notification dated 26.3.2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission (I.A.S., I.A.F. etc.) or any other. Therefore, the powers conferred by Rule 7 fully justified the prescription of the minimum eligibility condition in Rule 10 of the Notification dated 26.3.2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as bench mark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high powered body like High Court to evolve its own procedure as it is the best Judge in the matter. It will not be proper in any other authority to confine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers.(Paras 39 & 40)

       Under the scheme of the Indian Constitution, the High Court is vested with the entire administration of the subordinate judiciary under Arts. 233, 234 and 235 of the Constitution of India. The High Court is vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to man the subordinate judiciary.(Para 41)

       In our opinion, the interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidates’ academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a judicial officer.(Para 44)

       A Judicial Officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary.(Para 47)

       It is, therefore, the High Court has set a bench mark for the oral interview, a bench mark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court.(Para 47)

       (ii) Kerala State and Subordinate Service Rules, 1958—Rules 14 to 17—Rules of reservation—Appointment to the post of Munsif Magistrate in Kerala Judicial Service—Appellants challenge filling up of slot Nos. 60, 62, 64, 66, 68 and 70 which come within the reservation slots by candidates in the merit list—No eligible reserved candidates being available for filling up the slots—All reserved candidates, 37 of them available among the 88 eligible candidates had already been placed above slot No. 60—Under Rule 15, these slots had mandatorily to be filled up by open merit candidates—There was no departure from Rules 14 to 17 in the preparation of the list.

       Held : Rule 15(a) & (b) of KSSSR specially mandates that if candidate belonging to a particular community – OBC, SC/ST is not available to fill up any particular slot, then it should be passed over and filled up by a candidate available from the next reserved community and so on. If no member of a reserved community is ultimately available for filling up that slot, that slot should be filled up by an open merit candidate. That is the position here. There were no eligible reserved candidates available for filling up the aforesaid slots 60 etc. As mentioned earlier, from all the reserved candidates, 37 of them available among the 88 eligible candidates had already been given place above Slot No. 60 and there was not a single reserved candidate available to fill up slots 60 etc. Therefore, under Rule 15, the aforesaid slots had mandatorily to be filled up by open merit candidates. It is not possible for the Government to keep those vacancies unfilled particularly, when there was a total of 70 vacancies to be filled up and open merit candidates were also available. Non-filling up of those vacancies by open merit candidates would have resulted in violation of Rule 15. In fact, the Division Bench had gone into this aspect and examined this matter with reference to Rules and found that there was no departure from Rules 14 to 17 in the preparation of the list.(Para 59)

       (iii) Constitution of India—Article 226—Evidence Act, 1872—Section 114—Estoppel—Appointments—Petitioners had participated in the written test and in the oral test without raising any objection—It is not open to them when they failed at the interview to contend that provision of a minimum mark for the interview was not proper—Writ petitions held liable to be dismissed on ground of estoppel.

       Held : The appellants/petitioners, in any event, are not entitled to any relief under Art. 226 of the Constitution of India for more reasons than one. They had participated in the written test and in the oral test without raising any objection. They knew well from the High Court’s Notification that a minimum marks had to be secured both at the written test and in the oral test.(Para 63)

       The appellants/petitioners having participated in the interview in this background, it is not open to the appellants/petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper.(Para 65)

       Therefore, the writ petition filed by the appellants/petitioners should be dismissed on the ground of estoppel is correct in view of the above ruling of this Court. (Para 66)

       (iv) Constitution of India—Article 226—Kerala High Court Rules—Rule 148—Writ Petition challenging appointments—It was imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions—There are only a specified definite number of candidates who had to be impleaded namely 70—Rule 148 of the Rules held not applicable in such a case.

       Held : The writ petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellants/petitioners contend that they are only challenging the list to a limited extent, acceptance of their contention will result in a total re-arrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does not cure this defect. There are only a specified definite number of candidates who had to be impleaded namely, 70. It is not as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules. That Rule can be applied only when very large number of candidates are involved and it may be not able to pin point those candidates with details. In our view, the writ petitions have to fail for non-joinder of necessary parties also.(Para 67)