Brojendra Prasad Katakey, J.

1. The petitioners, who applied for selection for appointment in Grade-I Assam Judicial Service, by these writ petitions, have challenged the result of the selection notified on 01.12.2011, in so far as their non-selection against the post advertised. Since both the writ petitions relates to the same selection process, those are taken up for hearing and disposal together, as agreed to by the learned counsel for the parties. An advertisement dated 18.01.2011 was issued by the Registrar (Judicial)-cum-In Charge Recruitment Cell of this Court inviting applications to fill up 16(sixteen) vacant posts (actual and anticipated) in Grade-I Assam Judicial Service by direct recruitment under the provisions of Assam Judicial Service Rules, 2003 (in short the 2003 Rules). A number of candidates, including the petitioners submitted their applications, who appeared in the preliminary examination/screening test (multiple choice questions) on 12.06.2011. 84 candidates, including the petitioners were declared as qualified for the Main (Written) Examination scheduled to be held on 30th and 31st July, 2011. The petitioners along with others appeared in the said Main (Written) Examination, result of which was declared on 29.09.2011 declaring altogether 19 candidates, including the petitioners, as qualified for the interview/viva-voce test, who accordingly appeared in the viva-voce test. The final result of the selection test was declared on 01.12.2011 selecting only 5(five) candidates, who are the private respondents in the writ petitions. Hence the present writ petitions.

2. We have heard Mr. D.K. Mishra, learned Sr. counsel appearing for the petitioners in WP(C) No. 3364/2012; Mr. G.P. Bhowmik, learned counsel appearing for the petitioners in WP(C) No. 99/2013; Mr. N. Choudhury, learned standing counsel of the High Court; Mr. K.K. Mahanta, learned Sr. counsel, Mr. A.D. Choudhury, Mr. A.M. Buzarbaruah and Mr. A. Das, learned counsel appearing for the private respondents and Mr. J. Handique, learned State counsel appearing for the State of Assam.

3. The learned counsel appearing for the petitioners, referring to the provisions of 2003 Rules, have submitted that the Rules having not prescribed any bench mark or cut off mark in the viva-voce test, unlike in the written test, the High Court was not justified in not selecting the petitioners, who having secured more than 60% marks in the written test were called for viva-voce test, for appointment in Grade-I Assam Judicial Service. According to the learned counsel the petitioners have not been selected for appointment as Selection Committee has put the bench mark or cut off mark in the viva-voce test, which in any case cannot be done without their being any such prescription in the Rules. It has also been submitted that neither in the advertisement nor at any stage subsequent thereto and before conducting the selection test any decision was taken by the High Court to introduce the bench mark or cut off mark in the viva-voce test and the petitioners having secured certain marks in the viva-voce test, they ought to have been selected for appointment. According to the learned counsel, in view of the recommendation made by Justice Shetty Commission in his report and acceptance of such recommendation by the Apex Court in All India Judges' Association & ors. Vs. Union of India & ors. reported in (2002) 4 SCC 247, in any case, there cannot be any cut off mark in the viva-voce test and as such the non-selection of the petitioners despite securing certain marks in the viva-voce test amounts to introduction of cut off mark in such test, which is contrary to the 2003 Rules as well as the aforesaid decision of the Apex Court.

4. The learned counsel, referring to the decision of the Apex Court in Ramesh Kumar Vs. High Court of Delhi and anr. reported in (2010)3 SCC 104 as well as in Hemani Malhotra Vs. High Court of Delhi reported in (2008)7 SCC 11, have also submitted that in the