MOHIT S. SHAH, C.J.:- Both these petitions under Article 226 of the Constitution of India pertain to the selection process for appointment to the post of District Judges by direct recruitment under the Maharashtra Judicial Service Rules, 2008.

2. In Writ Petition No.4313 of 2010. the petitioners, 12 in numbers, have challenged the constitutional validity of proviso to Rule 6(2)(a) of the Maharashtra Judicial Service Rules. 2008 (hereinafter referred to as "said Rules") to the extent the rules lay down the condition that the candidate must obtain minimum 40% marks at the interview for being included in the select list. The petitioners have also challenged the advertisement dated 28th July, 200S in so far as the same specified minimum cut off of 40% marks at the interview/ viva-voce examination. The petitioners have also challenged the select list dated 8th July, 2010 consisting of 14 candidates (respondent Nos.3 to 16) who are selected for appointment to the post of District Judge by nomination i.e. by direct recruitment.

3. In Writ Petition No.4452 of 20 10. the sole petitioner has challenged the same select list dated 8th July, 2010 mainly on the ground that the petitioner's answer books at the written test were not correctly and fully assessed. Since the said petitioner had obtained less than 40% marks at the oral interview, the said petition was also heard along with Writ Petition No.4313 of 2010. The petitions were heard together and since common questions of law were raised, both the petitions are being disposed of by this common judgment.

4. As per the Maharashtra Judicial Service Rules. 2008 for appointment to the post of District Judge by nomination, the recmitment rules make the following provisions in Rules 6 and 12:

"6(1)(c) The Recruitment Authority shall hold the final examination of two hundred marks for the category of District Judges referred to in sub-rule (1) of rule 12 of these rules.

(d) xxxxx xxxxx xxxxx (e) The Recruiting Authority shall hold viva-voce Examination carrying fifty marks.

6(2)(a) Candidate who secures not less than fifty percent of marks in each paper in written examination shall be eligible for the viva-voce examination for appointment to the post of District Judge under 1(b) and 1(c) and Civil Judge, Junior Division under 3(A) of the table 'c' under rule 5 and by nomination;

Provided that Scheduled Caste or Scheduled Tribe candidates who obtain forty-five percent or more marks in the written examination shall be eligible for the viva-voce examination:

Provided further that the candidate who obtains 40% marks in viva-voce examination shall be eligible for selection." "12. Competitive Examination - (1) The . Competitive Examination or Written Examination for recruitment to the posts of District Judges whether by nomination or promotion shall be of two hours duration carrying maximum 200 marks.

(2)The Competitive Examination for recruitment of Civil Judge, Junior Division shall consist of a Written Examination of two papers having duration of two hours each carrying 100 marks each in Civil Law and Criminal Law respectively.

(3) The object of the viva-voce examination under these Rules is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of Judgment, skills, attitude, ethics, power of assimilation, power of communication, character, intellectual depth and the like of the candidate.

(4) The mode of evaluating the performance shall be specified in numerical marks obtained in written and oral examination. The scheme of examination of the candidates including written and viva-voce shall be framed by the High Court in consultation with the Commission."

5. The learned counsel for the petitioners have submitted that the aforesaid prescription in the recruitment rules laying down that the candidate must obtain atleast 40% marks in the viva-voce or oral interview is illegal for the following ;(A) The Shetty Com