Judicial Service; Salam Samarjeet Singh Vs. High Court of Manipur at Imphal [Supreme Court of India, 07-10-2016]

Manipur Judicial Service (Recruitment and Conditions of Service) Rules, 2005 – Minimum qualifying marks – Petitioner was declared unsuccessful in viva-voce conducted by the High Court of Manipur for appointment to the post of District Judge (Entry Level) in Manipur Judicial Services Grade-I – Whether proper? – Since there is a difference of opinion the matter placed before appropriate Bench for final adjudication after obtaining permission of Hon’ble the Chief Justice of India.

Cut-off Marks / Pass Marks

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

[SHIVA KIRTI SINGH] AND [R. BANUMATHI] JJ.

October 07, 2016

WRIT PETITION(C)No.294 of 2015

Salam Samarjeet Singh …..Petitioner

Versus

High Court of Manipur at Imphal & Anr. …..Respondents

J U D G M E N T

Shiva Kirti Singh, J.

1. I have perused the judgment written by Banumathi, J. Since I am unable to agree with the same, I hereby record my views on the main issues involved in the case.

2. As most of the relevant facts including the submissions of the rival parties as well as relevant provisions of rules have already been extracted, I will borrow and refer from such facts and statutory provisions where ever necessary. Only to recapitulate the seminal facts, it is noted that the relevant advertisement for filling up a single vacancy in the post of District Judge (Entry Level) by way of direct recruitment through examination of 2013 was published on 15.5.2013. The advertisement disclosed that the recruitment shall be governed by the

Manipur Judicial Service (Recruitment and Conditions of Service) Rules, 2005

(for brevity, ‘the Rules’). The duly filled applications were to be sent to Registrar, High Court of Manipur at Imphal. Inter alia, it was also indicated, as is the position in the Rules, that for being called for viva voce test a candidate must secure in the written examination 60% marks if he is from unreserved category and 50% if he is of reserved category. The viva voce was to carry 50 marks. The examination was held in July 2013. As per initial notification dated 17.10.2013, the Joint Registrar notified that none of the candidates was successful in their written examination. The mark sheet was published on 29.01.2014 in which petitioner being a scheduled caste category candidate had secured more than the minimum qualifying marks of 50%. In fact he had secured 52.8% marks. Hence petitioner filed a representation on 04.02.2014 for reconsideration of his result. On 07.02.2014 the High Court issued a corrigendum and declared the petitioner as successful in the written examination. Be it noted that the petitioner was the only successful candidate for the unreserved single post under contest. For almost a year the recruitment process remained at a standstill. Through a letter dated 29.01.2015 the petitioner was informed that viva voce will be held on 12.02.2015. The petitioner undertook the said test. On 19.02.2015 the petitioner learnt from a notice dated 16.02.2015 issued by the Joint Registrar of the High Court and placed on the Notice Board of the High Court that the petitioner had failed to qualify in the interview.

3. The petitioner made a request for certain informations under the RTI Act from the concerned officer of High Court of Manipur on 21.02.2015. The informations sought for included queries as to whether there was any pass mark/cut-off mark out of the total 50 marks for the interview and also details of the particular rule under which he had failed in the interview. The information was supplied on 19.03.2015 disclosing that he had obtained 18.8% marks in the viva voce test and the cut-off mark/pass mark is 40% out of total 50 marks for the interview. The High Court did not provide reference to any particular rule under which petitioner had been found not qualified in the interview.

4. It is not in dispute and it was subsequently discovered that the Full Court of the Manipur High Court had resolved on 12.01.2015, only a few days before interviewing the lone candidate- the petitioner, to fix 40% as the pass mark for viva-voce. Since the petitioner was interviewed by all the three Judges of the High Court in the viva voce and was declared to have failed on account of pass marks prescribed for viva voce examination by the Full Court on 12.01.2015, he did not have much option but to prefer the present writ petition in this Court mainly to seek the relief for quashing of his viva voce result dated 16.02.2015 and for declaration of his result for appointment to MJS Grade I with retrospective effect from a reasonable date and/or to grant any just and equitable relief in the facts and circumstances of the case.

5. A perusal of relevant informations given to the candidates in the advertisement, particularly the general instructions contained in Appendix ‘A’ of the Scheme of Examination clearly discloses that scheduled caste candidates shall be eligible for the viva voce examination on obtaining 50% or more marks in the written examination. It is also clearly spelt out that selection of candidates shall be made on the basis of cumulative grade value obtained in the written and viva voce examination. In my considered view the statutory mandate for selection on the basis of cumulative grade required the authorities to add the marks of both the examinations, prepare the merit list as per total marks for the cumulative grade and make the selection from such merit list.

6. This mandate was violated for a reason that does not muster scrutiny. Although the object of viva voce examination has been given in some detail but that is only for the guidance of members of the Board conducting the viva voce test. The mode of evaluating the performance of grading in the written and viva voce examination has been indicated in the general instructions and the same has already been noted in the judgment of Banumathi, J. The grade ‘F’ which provides for percentage of marks below 40% corresponds to numerical grade ‘0’ but beyond that there is nothing to support the submission on behalf of the High Court that ‘F’ is indicator of failure in the written examination or in the viva voce. The cut-off mark for the written examination is separately provided under the Rules, to the effect that written examination will carry 200 marks and the cut-off marks should be 60% or corresponding grade for general candidates and 50% or corresponding grade for SC/ST candidates. So 40% to 49% denoted by ‘C’ also stand for fail marks for the written examination and therefore there is no basis to infer that ‘F’ standing for below 40% is a symbol of fail marks. Further when the Rules explicitly specify the pass marks for the written examination and conspicuously make no such provision in respect of viva voce examination, rather provide to the contrary that the final selection list will be by combining the cumulative grade value obtained in the written and the viva voce examination, nothing can be gainsaid on the basis of evaluating procedure alone. For the purpose of deciphering cut-off marks or pass marks for the viva voce examination there ought to be a similar specific provision in the Rules. But it was not there at the relevant time. It has been introduced much later in 2016.

7. In my considered view the Rules and the instructions clearly demonstrate that there was no cut-off mark or pass mark for the viva voce examination in the past and therefore the High Court on 12.01.2015 made a specific Resolution that no one shall be declared passed and selected for appointment unless he secures minimum 40% in the interview (viva voce). This power to add to the Rules is claimed from the provisions of sub-rule (3) of Rule 1 of Schedule ‘B’ of the Rules empowering the recruitment authority to take “all necessary steps not provided for in these Rules for recruitment under these Rules……”. In my view the Resolution of the High Court on 12.01.2015 ran counter to express provision in the Rules as to how the final merit list was to be prepared by combining the marks of both the examinations. Not providing any pass mark for the viva voce while so providing for the written examination clearly indicates that the Rules deliberately chose not to prescribe any cut-off for the viva voce. The explanation for the same lies in the recommendations made in this regard by the Shetty Commission. The Rules are almost verbatim copy of most of the recommendations in respect of such examination for recruitment. Clearly, they also followed the recommendation of the Shetty Commission that there should not be any cut off or fail marks for the viva voce examination. Such omission was thus clearly deliberate to facilitate the intended result. There was no gap or vacuum here and therefore Clause 1(3) of the Rules is not attracted. Hence, the Rules could not have been altered by a Resolution taken by the Full Court. We have been informed that ultimately the Rules have been formally amended vide notification dated 09.03.2016 issued in exercise of powers under Article 309 read with Article 234 of the Constitution of India whereby, inter alia, it has been included in the general instructions under Schedule ‘B’ that candidates securing minimum 40% marks in the interview shall only be eligible to be included in the select list. Apparently this amended rule is to come into force only in future from a date to be specified. But in any case it has not been made retrospective and rightly so because such Rules governing selection procedure for recruitment cannot be amended to affect the results after the game has been played.

8. In the aforesaid facts and circumstances, the contention advanced on behalf of the petitioner that the impugned act of bringing about change in the selection procedure by providing minimum marks for interview or viva voce test in midst of the selection process which has already been initiated amounts to changing the rules of the game and hence impermissible, is well supported by judgment in the case of