2016 Supreme(SC) 823

IN THE SUPREME COURT OF INDIA
SHIVA KIRTI SINGH, R. BANUMATHI, JJ.
Salam Samarjeet Singh - Petitioner
Versus
High Court of Manipur at Imphal & Anr. - Respondents
Writ Petition (C) No. 294 of 2015
Decided On : 07-10-2016

Headnote:Per Shiva Kirti Singh, J.

       (a) Manipur Judicial Service (Recruitment and Conditions of Service) Rules, 2005 – Rule 1(3) of Schedule ‘B’ – Rules providing cut-off mark for written examination only, not for viva voce – Rules deliberately choosing not to prescribe any cut-off for the viva voce – Merit list to be prepared on combined marks obtained in written and viva voce teats – Cut-off marks of 40% for viva voce introduced by way of amendment in the Rules much later, in 2016 – Full Court could not introduce cut-off mark for viva voce u/r 1(3). (Para 7)

       (b) Service Law – Recruitment – Advertisement not prescribing any cut-off marks for viva voce – Full Court deciding cut-off marks of 40% only three days before viva voce test – Changing the procedure after selection process already started – Impermissible. (Para 8)

       (2008) 3 SCC 512; (2008) 7 SCC 11; (2010) 3 SCC 104 – Relied upon

       (2013) 4 SCC 540; (1974) 3 SCC 220; (1995) 3 SCC 486 – Distinguished

       (2002) 4 SCC 247 – Referred

       (c) Service law – Recruitment – Selection – Mere selection does not give anybody an indefeasible right to get an appointment – But the vacancies advertised have to be filled up as per statutory rules and in conformity with the constitutional mandate – No impediment in considering petitioner’s case by ignoring the pass mark criteria for the viva voce examination – Thus marks of written and viva voce examination should be added and petitioner’s case should be considered on that basis – Viva voce result quashed – Petitioner entitled to appointment as prayed, but pecuniary benefits to accrue from date of joining – Petition allowed with cost. (Para 11, 12)

       (2016) 6 SCC 532 – Referred

       Per R. Banumathi, J.

       (d) Manipur Judicial Service (Recruitment and Conditions of Service) Rules, 2005 – Rule 1(3) of Schedule ‘B’ – Percentage of marks, Grade and Grade value – Rules providing for adding up marks of written and viva voice examinations, converting them to Grade on basis of total percentage of marks, and allotting Grade value – Less than 40% marks is Grade F with Grade value 0 – Thus for a ‘pass’ in the examination, 40% minimum marks need to be obtained – Therefore fixing 40% for interview/viva-voce out of total marks of 50 is in consonance with MJS Rules and it will not amount to change in the criteria of selection in the midst of selection process. (Para 14)

       (e) Manipur Judicial Service (Recruitment and Conditions of Service) Rules, 2005 – Rule 1(3) of Schedule ‘B’ – Clause 1(3) reserves a right to High Court enabling it to resort to the procedures, in addition to those specifically laid down in the Rules – Therefore the High Court cannot be faulted with in prescribing cut-off marks for the interview/viva-voce. (Para 15)

       (f) Service law – Recruitment – Prescription of minimum marks in the interview after conducting written test – Permissibility – Issue referred by Tej Prakash Pathak (three Judge Bench) to larger Bench. (Para 21)

       (g) Service law – Selection – Viva voce – In recruitment for judicial services, the importance of interview/viva-voce cannot be underestimated – Full Court decision to fix cut-off marks for viva voce justified. (Para 22, 23)

       (2010) 3 SCC 104 – Referred

       (2002) 4 SCC 247 – Sub silentio

       (h) Service Law – Selection – Petitioner participating in the selection process – Not selected – Cannot turn around and contend that the criteria for selection was changed – a

       (1995) 3 SCC 486 – Relied upon

       (i) Service Law – Selection and appointment – Mere selection does not give an indefeasible right to get an appointment. (Para 30)

       (2016) 6 SCC 532 – Relied upon

       (j) Constitution of India – Article 32 – Present controversy relating to vacancy in 2013 – Three unreserved and one reserved vacancies clubbing the vacancy of 2013 now advertised – In view of this, petitioner cannot seek mandamus for appointment for the said post with retrospective effect – Held, petitioner not entitled for relief prayed for – Writ petition dismissed. (Para 31, 32)

       Facts of the case:

       An advertisement was issued by the Manipur High Court inviting applications for recruitment to one vacant (unreserved) post of District Judge (Entry Level) in Higher Judicial Service through District Judge (Entry Level) Direct Recruitment Examination, 2013.

       The petitioner applied for the said post under the category of ‘Scheduled Caste’.

       The High Court notified that only one candidate namely Shri Salam Samarjeet Singh (SC), petitioner herein had secured the minimum qualifying marks in the written examination and had been found qualified for appearing in the viva-voce. It was also stated that the date and time for interview would be notified in due course.

       Before conducting the viva-voce, the respondent High Court held a Full Court meeting and the Full Court took a decision that “no one shall be declared pass and selected for appointment unless he secures minimum 40% from the interview”.

       In the interview, the petitioner obtained 18.8 marks out of 50 marks i.e. 37.6%. Since the petitioner failed to secure the minimum marks of 40% vide Notification dated 16th February, 2015 issued by the High Court, the petitioner was declared “not selected”.

       Finding of the Court:

       While Shiva Kirti Singh, J. allowed the petition wit cost, R. Banumathi, J. dismissed the same.

       Result: Since there is a difference of opinion between the Judges in view of the dissenting judgments pronounced by them, the matter recommended to be placed before appropriate Bench for final adjudication after obtaining permission of Hon’ble the Chief Justice of India.