Dismissed

Bharat Bhushan Dahiya v. State of Haryana and Anr.

Punjab & Haryana HC16 Feb 2012CWP/3539/2011

Case brief

AI extract

What is this about?

The High Court dismissed petitions filed by Scheduled Caste candidates seeking appointment as Civil Judges. The court held that the Selection Committee's decision to require 45% aggregate marks in written and viva-voce tests was valid under Rule 11 of the Punjab Civil Service Rules, which empowers the Committee to determine inter-se merit for reserved categories. The notification by the State was

What did the court decide?

The writ petitions were dismissed finding no merit, upholding the requirement of 45% aggregate marks for Scheduled Caste candidates.

Bharat Bhushan Dahiya Vs State of Haryana… — Service and Employment | Punjab & Haryana HC (2012)

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CWP No. 3539 of 2011 (1)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of Decision: 16.2.2012

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(i) CWP No. 3539 of 2011

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Bharat Bhushan Dahiya ......Petitioner Versus State of Haryana and another .....Respondents (ii) CWP No. 8087 of 2011 Surinder Kumar and another ......Petitioners Versus State of Haryana and others .....Respondents

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Present: Shri Karan Nehra, Advocate, for the petitioners.

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Shri B.S. Rana, Additional AG, Haryana, with Ms. Shubhra Singh, DAG, Haryana, for respondent No.1. Shri Deepak Sibal, Advocate, for respondent No.2. Shri H.N. Mehtani, Advocate, for respondent No.3.

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(iii) CWP No. 4129 of 2011 Naveen Kamal Ranga ......Petitioner Versus State of Haryana and another .....Respondents

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(iv) CWP No.6677 of 2011 Vinay Kamal and another ......Petitioners Versus State of Haryana and others .....Respondents Present: Shri Harkesh Manuja, Advocate, for the petitioners. Shri B.S. Rana, Additional AG, Haryana, with Ms. Shubhra Singh, DAG, Haryana, for respondent No.1. Shri Deepak Sibal, Advocate, for respondent No.2. Shri H.N. Mehtani, Advocate, for respondent No.3.

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CWP No. 3539 of 2011 (2)

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(v) CWP No.5878 of 2011

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Mukesh Kumar and others ......Petitioners Versus State of Haryana and others .....Respondents

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Present: Hari Om Attri, Advocate, for the petitioners.

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Shri B.S. Rana, Additional AG, Haryana, with Ms. Shubhra Singh, DAG, Haryana, for respondent No.1.

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Shri Deepak Sibal, Advocate, for respondent No.2.

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Shri H.N. Mehtani, Advocate, for respondent No.3.

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CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N. JINDAL

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Hemant Gupta, J.

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This order shall dispose of Civil Writ Petition Nos.3539, 8087, 4129, 6677 and 5878 of 2011, filed by the candidates, belonging to the Scheduled Castes Category, seeking appointment to the Haryana Civil Service (Judicial Branch).

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The Haryana Public Service Commission invited applications from eligible candidates for filling up 83 existing posts of Civil Judge (Junior Division), vide advertisement published on 9.3.2010. The last date for submission of the application form was 9.4.2010. Out of such 83 posts, 43 posts were meant for General Category and 26 for Scheduled Castes. Applications were also invited for 30 anticipated unforeseen posts, which included 15 posts for General Category and 5 posts for the Scheduled Castes. There was a specific condition that the examination will be conducted in accordance with the provisions of the Punjab Civil Services (Judicial Branch) Rules, 1951, as amended from time to time and inclusive of amendment dated 10.2.2010. The petitioners underwent

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CWP No. 3539 of 2011 (3)

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the selection process and rank at Serial Numbers 28 onwards of the merit list of the Schedule Caste Candidates.

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The names of the petitioners have not been put in the Register for the selected candidates for the reason that they have not obtained 45% marks in aggregate of the written examination and vivavoce. The grievance of the petitioners is that under the Rules notified in exercise of the powers under Article 234 and proviso to Article 309 of the Constitution of India, there is no provision contemplating requirement of securing 45% marks in aggregate of the written examination and vivavoce. The Rules contemplate securing of 45% marks only in the written examination, the condition, which the petitioners satisfy. Therefore, such condition cannot be put by the Selection Committee and/or by the High Court or the State Government.

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At this stage, we may notice that the recruitment to Haryana Civil Service (Judicial Branch) is made under the Punjab Civil Services Rules, 1951, as amended from time to time. Framing of new Rules for recruitment to Haryana Civil Service (Judicial Branch) are under consideration.

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The entire controversy in the present set of the writ petitions revolves around the recommendations of the Selection Committee dated 14.1.2010, consisting of three Hon'ble Judges of this Court; Chairman of the Haryana Public Service Commission; Advocate General of Haryana; Chief Secretary, Haryana and Legal Remembrancer, Haryana. The Selection Committee has finalised the modalities of the selection process on the said date which are to the effect that candidates who secure 50% or more marks (45% marks for Scheduled Castes and Backward Classes), will qualify for the viva-voce test. It was also decided that only those candidates shall be eligible for be recruitment as Civil Judges (Junior Division), who secure 50% or more marks (45% marks for Scheduled Castes and Backward Classes candidates) in aggregate marks

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CWP No. 3539 of 2011 (4)

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secured in the main examination and viva-voce. On the basis of the said decision, a communication was addressed to the State Government on 14.1.2010 (Annexure R.2/2) by the Registrar (Recruitment) of this Court to the State Government to conduct the selection process in the manner so decided. Relevant extract reads as under:-

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“Main Written Examination

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The syllabus for the main written examination except the English paper Stands already prescribed in the relevant Rules.

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xx xx xx

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Only those shall qualify for the viva-voce who secure 50% or more marks (read 45% for the S.C. and B.C. Candidates) in the main written examination.

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No candidate shall be credited with any marks in any paper including Hindi language paper, unless he obtains at least 33% marks in it.

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Only those shall be eligible to be recruited as Civil Judges/Judicial Magistrates who secure 50% or more marks read 45% for S.C. and B.C. candidates) in aggregate of the marks secured in the main written examination and the viva-voce.

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The expenses regarding the setting up of the papers and evaluation thereof etc., shall be borne by the State of Haryana.

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The State of Haryana will immediately notify the vacancies to be filled up through this process.

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The advertisement inviting applications for the post be issued latest by second week of February, 2010.”

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The candidates have been offered appointment by the State Government on the recommendation of the High Court in terms of the said decision of the Selection Committee. Only 27 Scheduled Castes candidates satisfied the eligibility criteria so fixed and were offered appointment, whereas the petitioners have failed to meet out the minimum eligibility conditions, were not offered appointment.

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The grievance of the petitioners is that in the Rules notified on 10.2.2010, there is no condition of obtaining 45% marks in the

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CWP No. 3539 of 2011 (5)

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aggregate of the written and viva-voce examination. Therefore, the respondents are bound to offer appointment to the petitioners without any such condition. If out of the total marks, 45% marks in the viva-voce are not taken into consideration, the petitioners are eligible for appointment, which again shall be in terms of the Rules notified on 10.2.2010.

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Before we consider the respective arguments, we may notice that Part-C of the Rules deals with the competitive examination for the post of Haryana Civil Service (Judicial Branch). The relevant part for the purpose of the present set of the writ petitions i.e. Part-C, was amended on 10.2.2010. The relevant extracts from the said Rules read as under:-

“Haryana Government

Personnel Department

Notification

The 10^th February, 2010

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No.G.S.R 3/Const./Art.234 & 309/2010- In exercise of the powers conferred by Article 234 read with the proviso to Article 309 of the Constitution of India, the Governor of Haryana after consultation with the Haryana Public Service Commission and the High Court of Punjab and Haryana, hereby makes the following rules further to amend the rules published by erstwhile Punjab Government, notification No. 3010-G-51/6094 dated the 26^th October, 1951, in their application to the State of Haryana, namely:[1] xx xx xx

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[2] In the Punjab Civil Service (Judicial Branch) Rules, 1951 (hereinafter referred to as the said rules), in Part A, for rule 7B, the following rule shall be substituted, namely:-

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“7-B (1) Notwithstanding anything to the contrary contained in these rules, appointment to eighty five actual post presently lying vacant and thirty anticipated posts of Civil Judges (Junior Division), shall be made by the State Government through special recruitment on the recommendations of a Selection Committee constituted for the purpose in the manner hereinafter laid down.

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(2) The Selection Committee referred to in sub-rule

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(1) shall consist of the following members, namely:-

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CWP No. 3539 of 2011 (6)

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(i) three Judges of the High Court of Punjab and Haryana nominated by the Chief Justice, of whom the senior-most shall be the Chairman;

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(ii) the Chief Secretary to Government, Haryana; (iii) the Chairman/Acting Chairman of the Haryana Public Service Commission;

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(iv) the Law Secretary-cum-Legal Remembrancer to Government, Haryana, Law and Legislative Department, who shall also act as Secretary of the Selection Committee; and

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(v) the Advocate General, Haryana.”

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“Part-C-Competitive Examination.

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(1) The examination shall be conducted in three stages, namely:-

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(i) Preliminary examination;

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(ii) Main examination; and

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(iii) Viva-voce

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(3) to (6) xx xx xx

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(7) The main examination shall consist of six papers (five written and one viva-voce test). The description of papers and syllabi shall be as under:-

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xx xx xx

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Paper-VI Viva Voce:

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To Judge the personal qualities of the candidates. The viva-voce test shall relate to the matters of general interest and is intended to test the candidates alertness, intelligence and general outlook. It shall be conducted in English.

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xx xx xx

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(9) No candidate shall be called for the viva-voce test unless he obtains at lest fifty percent qualifying marks in the aggregate of all the written papers. However, for the candidate belonging to the categories of Scheduled Caste/Scheduled Tribes and Backward Classes, the qualifying marks shall be forty five percent;”

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xx xx xx

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(11) Candidates shall be selected for appointment strictly in the order in which they have been placed by the Selection Committee:

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Provided that in the case of candidates belonging to the Scheduled Castes/Scheduled Tribes and Backward

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CWP No. 3539 of 2011 (7)

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Classes, Selection Committee shall have a right to select in order of merit a candidate who has merely qualified irrespective of the position obtained by him in the examination:

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Provided further that the selection of candidates belonging to the Scheduled Castes/Scheduled Tribes and Backward Classes in order of merit inter-se shall be made against the vacancies reserved for them and in the manner to be adopted by the Selection Committee.”

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Learned counsel for the petitioners has vehemently argued that the condition of eligibility imposed by the Selection Committee of obtaining 45% aggregate marks in the written examination and viva-voce is contrary to the Statutory Rules notified. Therefore, the action of the State Government in not giving appointment to the Petitioners is illegal and cannot be sustained. The recommendation made by the High Court runs counter to the Rules notified, therefore, the petitioners cannot be declared ineligible. In support of the said argument, learned counsel for the petitioners has placed reliance upon the judgments of the Supreme Court reported as Umesh Chandra Shukla v. Union of India and others, AIR 1985 Supreme Court 1351; Shri Durgacharan Misra v. State of Orissa and others, AIR 1987 Supreme Court 2267 and a Division Bench Judgment of this Court reported as Miss Anshul Kakkar and another v. State of Punjab and others, 1997 PLR 93. Reliance is also placed upon the report of the Shetty Commission considered by the Hon'ble Supreme Court in All India Judges' Association(3) v. Union of India, (2002)4 SCC 247; Hemani Malhotra v. High Court of Delhi, (2008) 7 Supreme Court Cases 11 and Ramesh Kumar v. High Court of Delhi and another, (2010) 3 Supreme Court Cases 104, wherein the condition of obtaining minimum marks in viva voce was found to be illegal on the basis of the report of the Shetty Commission.

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Shri Rana, learned State Counsel has argued that though in the first impression, it appears that the Rules have not been notified in

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CWP No. 3539 of 2011 (8)

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terms of the recommendations of the Selection Committee, but there is no such contradiction. The Rule 11 of Part C of the Rules, reproduced above, gives liberty to the Selection Committee to prepare merit inter-se of the candidates belonging to the Scheduled Castes Category against the vacancies reserved for them and in the manner to be adopted by the Selection Committee. Therefore, once, the Selection Committee has decided that the aggregate marks of written examination and the vivavoce are to be taken into consideration, therefore, the decision of the Selection Committee to consider the marks obtained in the written examination and viva-voce is permissible under Rule 11 and thus the recommendation of the High Court or the action of the State Government does not run counter to the Rules notified.

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Shri Sibal, learned counsel appearing for the High Court has argued that the Rules notified on 10.2.2010 should have been strictly in accordance with the decision taken by the Selection Committee, which incidentally includes the Chief Secretary of the State. Therefore, such Rules notified without consultation of the High Court are ineffective and unenforceable in view of Article 234 of the Constitution of India.

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We have heard learned counsel for the parties at length. Learned counsel for the State as also the learned counsel for the High Court were directed to produce the record to examine the consultation process. Such record has been produced. We find that the questions need to be examined are:-

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i) Whether substitution of Rule 7B of Part-C of the Punjab Civil Service (Judicial Branch) Rules, 1951 Rules is contrary to the decision taken by the Selection Committee and communicated by the High Court?

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ii) Whether the decision of the Selection committee to declare candidates of the Scheduled Castes and Scheduled Category eligible only if they have obtained 45% marks in

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CWP No. 3539 of 2011 (9)

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aggregate in the written examination and viva-voce is in terms of the Rules so notified and whether the decision of the Selection committee is legal and valid?

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The record produced by the counsel for the respondents shows that the consultation in respect of fresh set of Rules called Haryana Civil Service (Judicial Branch) Rules, 2009 is pending consideration as the Draft set of Rules was communicated including the amendments on 25.9.2009 and 27.4.2010 to the State Government. The said consultation process is independent of the selection process in question.

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On the other hand, the recruitment of the Haryana Civil Service (Judicial Branch) was conducted through the Special Selection Committee on the basis of Rule 7B in Part A vide notification dated 5.8.2005 in respect of thirty one posts. Rule 7B was again substituted on 23^rd March, 2007 constituting Selection Committee, as constituted earlier in respect of thirty four posts. The said notification was amended on 25^th February 2008 allowing the selection committee to make recommendations in respect of twenty unforeseen vacancies as well. Sub-section (2) of Section 7B as amended above as well as per the notification dated 10.2.2010 deals with the constitution of the Selection Committee. The Selection Committee consists of three Hon'ble Judges of this Court nominated by the Chief Justice of the High Court; Chief Secretary of the State; Chairman of Haryana Public Service Commission; Advocate General, and Legal Remembrancer.

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The record of the High Court and of the State Government shows that the basis of Rules as notified was the communication from the High Court in respect of appointment and manner of selection of the existing and anticipated vacancies by the Registrar (Recruitment) on 14.1.2010. The record of the State Government bearing File No.

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CWP No. 3539 of 2011 (10)

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25/I/2009-4S-III, starts with the Office note dated 10.9.2009 to fill up the vacancies for the year 2009. The note is for filling up of 85 regular and 13 ad hoc vacancies. The Office note dated 1.1.2010 is to the effect that the decision is required to be taken whether the preliminary examination is to be conducted by the High Court or by the Haryana Public Service Commission. The meeting of the representatives of the State Government and the Haryana Public Service Commission was convened for 7.1.2010 by the Chairman of the Selection Committee and was held on 14.1.2010 in which the decision referred to above, was taken. After the meeting of 14.1.2010, a note was prepared and put up for the approval of the Chief Secretary/Chief Minister, wherein there is a specific mention that only those shall be eligible to be recruited as Civil Judges/Judicial Magistrates, who secure 50% or more marks (read 45% for Scheduled Castes and Backward Classes candidates) in aggregate of the marks secured in the main written examination and the viva-voce. Thereafter, the amendment in the Rules was proposed and approved by the Chief Secretary and then the Chief Minister. The draft Rules were put up for the orders of the Chief Secretary/Chief Minister. With the approval of the Chief Secretary and the Chief Minister, the Rules were notified on 10.2.2010. Thus, it is apparent that there was no consultation other than the communication dated 14.1.2010 addressed by the Registrar of this Court to the State Government in respect of Rule 7B or in respect of Part C of the Rules.

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Article 234 of the Constitution provides that appointment of persons other than District Judges to the judicial service of a State shall be made by the Governor in accordance with the Rules framed after consultation with the State Public Service Commission and with the High Court. The Rules have not been notified strictly in accordance with the decision taken by the Selection Committee. The Selection Committee has decided that the candidates to be eligible for appointment has to obtain

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CWP No. 3539 of 2011 (11)

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50% marks in aggregate of the written examination and viva-voce (for General Category) and 45% for the candidates belonging to Scheduled Castes and Backward Classes. In the Rules notified there is no condition imposed in respect of the eligibility of candidates for appointment either in respect of the General Category or for Scheduled Castes or Backward Classes category candidates. The Rules notified on 10.2.2010 are not strictly in accordance with the communication of this Court, therefore, such part of the Rules notified, which is not in accordance with the consultation of the High Court, is not enforceable and is ineffective.

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But even if the Rules notified are not in accordance with the communication, but in respect of the Scheduled Castes and Backward Classes candidates, Rule 11 of Part C of the Rules contemplates that the inter-se merit of the Scheduled Castes and Backward Classes candidates and the manner for their appointment shall be determined by the Selection Committee. Therefore, the decision of the Selection Committee to fix eligibility conditions of 45% in written examination and viva-voce is in accordance with second proviso to Rule 11 Part C of 1951 Rules.

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In A.C. Thalwal v. High Court of H.P. and others, (2000)7 SCC page 1, the issue was in respect of the applicability of the Demobilised Indian Armed Forces (Reservation of Vacancies in H.P. Judicial Service) Rules, 1975. Such rules provided that the period of approved military services rendered after attaining the minimum age prescribed shall count towards fixation of pay and seniority. The said Rules were valid only for a period of five years. The State proposed extension of these Rules, but the High Court did not agree for the same. But still the State Government extended such rules providing period of approved military service to count towards pay and seniority. The Hon'ble Supreme Court was considering the legality and validity of such Rule. It held that the consultation with the High Court is mandatory and it is not a mere formality. It has to be meaningful and effective. The

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CWP No. 3539 of 2011 (12)

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Court observed as under:-

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“15. Article 234 of the Constitution of India provides for appointments to the judicial service of the State (excluding District Judges) to be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and the High Court of the State. The consultation is mandatory. The consultation contemplated by Article 234 is not a matter of mere formality; it has to be meaningful and effective. Judicial services have to be independent of executive influence and so the Constitution has placed them on a pedestal different from other services under the State. The constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy. The status which the High Court as in institution enjoys in the constitutional scheme and the expertise and the experience which it posseses of judicial services command with justification a place of primacy being assigned to the High Court in the process of consultation.

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xx xx xx

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Rules regarding consultation with the High Court must at the proposal stage be made available to the High Court so that after study, scrutiny and reflection the High Court may be able to offer its advice to the Governor. 16. The Reservation Rules, 1981 having been framed by the Governor without consultation with the High Court of Himachal Pradesh are ultra vires the Constitution and hence ineffective and unenforceable in law in view of Article 234 of the Constitution. All that was done by the State Government was to refer an amendment in the Reservation Rules, 1975 for the opinion of the High Court so as to seek its opinion on the proposed extension in the life thereof. The proposal of the State Government did not meet the approval of the High Court. The disapproval was conveyed to the State Government. Thereafter, there was no correspondence and no reference by the State Government to the High Court. Even the proposed extension of the life of the Reservation Rules, 1975 could not be said to have satisfied the test of mandatory consultation with the High Court. In the matter of the Reservation Rules of 1981 even that much formality was not done. The Division Bench of the High Court is, therefore, absolutely right in forming the opinion that these Rules are void and a nullity.” (Emphasis Supplied)

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In Ramesh Kumar's case (supra), relied upon by the learned

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CWP No. 3539 of 2011 (13)

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counsel for the petitioners, an argument was raised that the condition of securing minimum marks in viva-voce is illegal. That was a case where separate qualifying marks were contemplated for written examination and viva-voce. The said judgment is not applicable to the facts of the preset case, wherein the aggregate of all subjects including viva-voce has to be taken into consideration to determine the minimum eligibility criteria. By fixing over all aggregate marks of the written test and vivavoce, the vice of arbitrariness in disqualification of a candidate for not obtaining minimum marks in viva-voce is eliminated. The viva voce is a subject and paper so described in the scheme of examination. Therefore, the said judgment has no applicability to the facts of the present case.

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In Umesh Chandra's case (supra), the Delhi High Court decided that the two marks be granted to every candidate. The Hon'ble Supreme Court found that by such addition of 2 marks, the decision of the High Court has the effect of amending Rules and such amendment to the Rules can be only made by the Lt. Governor (Administrator) under Article 234 after consulting with the High Court. Thus, it was held that the High Court has no such power under the Rules and the list prepared by the High Court after adding the moderating marks, is liable to be struck down. In respect of another argument raised that the High Court has no power to eliminate the candidates, who secured less than 600 marks after the viva-voce, it was found that there is no power reserved under the Rules to fix minimum marks to exclude the candidates from the final list. It was held that the Selection Committee has no power to prescribe the minimum marks, which a candidate should obtain in aggregate different from the minimum already prescribed under the Rules.

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The said judgment is not applicable to the facts of the present case. In fact, the said judgment supports the stand of the respondents that the Rules in respect of the recruitment have to be

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CWP No. 3539 of 2011 (14)

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notified in consultation with the High Court. Even in terms of Rule 11 of Part C, the Selection Committee has been given liberty to determine criteria, therefore such action is contemplated by the Rules. Though substantially, the Rules notified are in terms of the communication from this Court, except to the extent of 50% marks for the General Category and 45% marks in aggregate of the written examination and viva-voce for the Scheduled Castes and Backwards Classes candidates. However, the Rules notified empower the Selection Committee to fix its criteria. Therefore, the judgment referred to above, in fact, is not helpful to the argument raised by the learned counsel for the petitioners. If the Rules are contrary to the recommendations of the selection committee, the same cannot be said to enforceable and are ineffective.

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In Durgacharan Misra's case (supra), the decision of the Commission fixing minimum standard at the viva-voce test was found to be illegal. The Court has observed that the Commission constituted under the Rules must, therefore, faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would therefore, be illegal and without authority.

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As mentioned above, the decision of the High Court as per the recommendations of the Selection Committee in respect of the condition of aggregate marks of the written examination and the viva voce is in fact in terms of Rule 11 of the Part C of the Rules. Such decision cannot be said to be illegal or unwarranted.

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Hemani Malhotra's case (supra) is again not helpful to the argument raised by the learned counsel for the petitioners. In the said case, the minimum marks for viva-voice were introduced after the written examination was conducted. It was held that fixing of the minimum

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marks for interview after the selection process started would mean to change the rules of the game after the game was played. The said judgment is of not help to the petitioners as the marks aggregate of the written test and viva-voce was the decision taken by the Selection Committee even before the Rules were notified.

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In Miss. Anshul Kakkar's case (supra), the names of the petitioners were published with the remarks “qualified, but not found suitable”. In the aforesaid case, the challenge was to the action of the Commission. The petitioners have sought a direction to the Commission to forward the names of the petitioners to the Government and to direct the Government to recommend their names to the High Court for entering their names in the High Court Register and to direct the Punjab Government and the High Court to appoint the petitioners for appointment in respect of the existing and future vacancies. It was held that the Commission cannot take into consideration the number of vacancies for the purpose of sending the list of the qualified candidates to the Government. The said judgment has no applicability to the facts of the present case.

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In view of the above, we hold that:-

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The amendments notified on 10.2.2010 are substantially in terms of the recommendations of the Selection Committee communicated by the Registrar (Recruitment) of this Court to the State Government except in the matter of aggregate marks in the written examination and vivavoce test.

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Rule 11 of Part C of the Rules empowers the Selection Committee to adopt manner of selection of candidates belonging to Scheduled Castes and Scheduled Tribes and Backwards Classes. Therefore, the decision of the

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Selection Committee to take into consideration the aggregate marks in the written test and viva-voce cannot be said to be in violation of the Rules.

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In view of the above, finding no merit in the present writ

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petitions, the same are hereby dismissed.

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(HEMANT GUPTA) JUDGE

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(A.N. JINDAL) JUDGE