DUDDILLA SRINIVASA SHARMA AND ORS.versusV. CHRYSOLITE

                   [2013] 12 S.C.R. 421


       DUDDILLA SRINIVASA SHARMA AND ORS.                         A
                              v.
                      V. CHRYSOLITE
             (Civil Appeal No. 10492 of 2013)
                   NOVEMBER 21, 2013
                                                                  B
     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

    SERVICE LAW:

     Recruitment - Candidates shortlisted by fixing higher c
qualification - Held: A person who fulfils the eligibility
conditions as per the recruitment rules cannot be excluded
even from appearing in the qualifying written examination by
fixing higher educational qualification bench mark - Further,
when there is a particular provision for short listing the 0
candidates in the Rules or Instructions, the short listing is to
be resorted to in accordance with the criterion mentioned in
those Rules or Instructions - In the instant case, a specific
criterion for shortlisting was prescribed, which was not followed
- High Court rightly quashed the selection - However, the E
appellants continuing by virtue of interim orders, shall
continue till selections are made and shall be allowed to
participate in the selection process - Those of the appellants
 who get so selected, shall retain their seniority from the date
 of the initial appointment - Andhra Pradesh Judicial
 Ministerial SeNice Rules, 2003 - r. 8 - Circular dated 1. 7. 1996. F

     In the process of recruitment to 17 posts of Junior
Assistants in the office of the District and Sessions
Judge, the bench mark for short-listing the candidates
was raised as degree qualification instead of the                  G
intermediate which was the statutory qualification for the
post in question and had been prescribed in the
Notification inviting applications. The High Court in a writ
petition quashed the selection.
                               421                                 H
    422      SUPREME COURT REPORTS           [2013] 12 S.C.R.


A         Dismissing the appeal, the Court

        HELD: 1.1 A person who fulfils the eligibility
  conditions as per the recruitment rules cannot be
  excluded even from appearing in the qualifying written
8 examination by fixing higher educational qualification
  bench mark. That would be permissible where the post
  is to be filled by main written examination (with marks
  obtained therein to be included in the total marks)
  followed by viva-voice test OR where the post is to be
C filled by interview mode alone. [para 17] [433-E-G]

       1.2 When a particular criterion for short listing is
  adopted, the validity thereof is to be examined keeping
  in view whether the same is rational and having nexus
  with the objective sought to be achieved. It would depend
D on the facts and circumstances of each case as to
  whether a particular criterion is valid or not. At the same
  time, it also becomes clear that whenever there is a
  particular provision for short listing the candidates in the
  Rules or Instructions, then the short listing is to be
E resorted to in accordance with the criterion mentioned in
  those Rules or Instructions. [para 12] [429-D-F]

       S.B.Mathur & Ors. vs. Chief Justice of Delhi High Court
  & Ors. 1988 (2) Suppl. SCR 772 = (1989) Supp.(1) sec 34;
F Union of India v. S. Vinod Kumar; 1996 (7) Suppl. SCR 142
  =1996 (6) SCC 580; Andhra Pradesh Public Service
  Commission v. Balo}i Badhavath; 2009 (5) SCR 688 = 2009
  (5) sec 1- referred to.

      1.3 In the instant case, the candidates who applied
G were to appear in the qualifying examination and Circular
  Instruction dated 1.7.1996 issued by the High Court
  administration very categorically provided for the
  procedure of short listing of candidates as well. Two
  things which emerge from the record, germane to the
H decision in this case, are as: (i) As per Rule 8 of A.P.
 DUDDILLA SRINIVASA SHARMA AND ORS. v. V.             423
                CHRYSOLITE
Judicial Ministerial Services Rules 2003, read with A
Annexure I thereto the educational qualification
prescribed for the post of Junior Assistant is intermediate
examination conducted by A.P. State Board of
intermediate examination or any equivalent examination.
Thus, all those who fulfil this educational qualification B
become eligible to be considered for the post; and (Ii) The
selection process was to start with qualifying written
examination and as per guideline 7(a) of the Instructions
dated 1.7.1996 this qualifying examination was for the
 purpose of screening/ short listing of the applicants c
 whereby those who secured first class or 60 percent and
 above were to be preferred to others. Therefore, a specific
 criteria for shortlisting prescribed is the marks obtained
 in qualifying examination. Thus, having regard to the
 specific provision of short-listing, the High Court has
                                                             0
 taken the correct view. [para 13, 14 and 17) [429-F-G; 430·
 C-F; 433-G]
     2. The appellants were given appointments by order
dated 16.6.2010. However, even after setting aside of their
appointments they have continued in service because of E
interim order passed by this Court. However, since large
number of candidates were excluded from consideration
by adopting wrong methodology, the appointments of
the appellants cannot be saved. At the same time the
appellants be allowed to continue till the selection F
process for filling up the said 17 posts of Junior
Assistants is taken afresh by the authorities. This is to
ensure that there is no undue disruption in the Ministerial
functioning of the District Court. The appellants shall also
 be allowed to participate in said selection process. Those G
appellants who get selected will continue to be In service
 and they will be treated in service from their initial
 appointment by orders dated 16.6.2010 protecting their
 seniority. [para 18) [434-A-E]
                                                             H
    424       SUPREME COURT REPORTS                (2013] 12 S.C.R.

A                         Case Law Reference:
          1996 (7) Suppl. SCR 142         referrnd to     para 10
          2009 (5) SCR 688                referred to     para 10
          1988 (2) Suppl. SCR 772         referred to     para 11
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    10492 of 2013.
        From the Judgment and Order dated 25.10.2010 of the
c   High Court of Andhra Pradesh at Hyderabad in WP (C) No.
    9437 of 2010.
         A. Subba Rao, Annam D.N. Rao, Sudipto Sircar, Mansha
    M., for the Appellants.
D         The Judgment of the Court was delivered by
        A.K. SIKRI, J. 1. The appellants have filed the present
  petition under Article 136 of the Constitution of India for Special
  Leave to Appeal against the final judgment and order of the
E High Court of Andhra Pradesh at Hyderabad dated 25.10.2010
  allowing Writ Petition (C) No. 9437 of 2010 filed by !h1:1
  Respondent herein and quashing t:ie recruitment of the
  appellants herein to the post of Junior Assistants in the Unit of
  District and Sessions Judge, Adilabad under category IV of the
  A.P. Judicial Ministerial Service Rules 2003 pursuant to the
F Notification dated 4.12.2009 bearing Heference No. Dis. 6184
  of 2009.
        2. Since the appellants were in service when their
   recruitment was quashed, along with Special Leave Petition the
G appellants had also filed I.A. praying for stay of the impugned
  judgment of the High Court. While ise.uing notice in the Special
  Leave Petition on 16.12.2010 this Court had granted interim
  stay as prayed for. As a consequence, the appellants continue
  in the employment.
H
  DUDDILLA SRINIVASA SHARMA AND ORS. v. V.               425
          CHRYSOLITE [A.K. SIKRI, J.]
    3. Though the notices have been duly served upon the        A
respondent, the respondent has not put 'in his appearance.
Accordingly, we had no option but to proceed with the matter.
The Counsel for the appellant was heard at length.
    4. Leave granted.                                           B
     5. The matter relates to the appointment to the post of
Junior Assistants in the office of District and Sessions Judge,
Adilabad, Andhra Pradesh. The Principal District and Sessions
Judge had issued Notification dated 4.12.2009 inviting
applications for 17 posts of Junior Assistants. This was in C
compliance with the directions given by the High Court of
Andhra Pradesh. All the appellants herein also applied for the
said post. The respondent herein as well as her sister V.
Buelah were also the applicants. The educational qualification
prescribed for the post included passing of intermediate D
examination conducted by the A.P. State Board of intermediate
 examination or any equivalent examination. The appellants as
 well as the respondent and her sister fulfilled these
 qualifications. However, since the authorities had received large
 number of applications, the District Judge decided to raise the E
 bench mark for short listing the candidates and only those
 candidates having degree qualification were sent letters for
 participating in the selection process. The Respondent and her
 sister got excluded in this short listing process.
       6. Challenging their exclusion both the respondent and her F
 sister filed the Writ Petition No. 8923 of 2010 in the High Court
 of Andhra Pradesh. Notice was issued. However when the
 petition was taken up on 20.10.2010 the Court found that the
 examination for the said post had already been conducted on
 18.4.2010. Thus, vide orders dated 20.4.2010 a Division Bench G
 of the High Court dismissed the Writ Petition with liberty to the
 respondents to take appropriate action in accordance with law.
 Thereafter, the respondent filed Writ Petition No. 9437 of 2010
 praying for issuance of a writ order or directions, more
 particularly one in the nature of Writ of Mandamus, declaring H
     426     SUPREME COURT REPORTS                 [2013] 12 S.C.R.

A action of the authori~es in prescribing degree qualification as
   against the prescribed intermediate qualification shown in the
  Notification dated 4.12.2009 as illegal, arbitrary and violative
  of Article 21 of the Constitution of India. Interim orders were
  passed in this Writ Petition to the effect that any appointment
B made to the post of Junior Assistants shall be subject to the
  result of the Writ Petition. This Writ Petition, after contest, has
  been allowed by the High Court vide impugned judgment dated
  25.10.2010 holding that the selection procedure and
  recruitment process followed by the District Judge for
c recruitment to the 17 posts of Junior Assistants is unsustainable
  and the orders appointing the appellants tc> the said post has
  been quashed. This is how the appellants are before us
  questioning the validity of the said judgment.
        7. We may record at this stage that for the 17 posts of .
D Junior Assistants, 9,366 applications were received from the
  candidates who had the intermediate qualification. On the
  premise that it is very large number for 17 posts; the District
  Judge decided to short list the candidates. For this purpose
  reliance was placed on Circular Instructions vide ROG No.
E 2318/96-C1(1) dated 1.7.1996, Clause 7(E) whereof reads as
  under:
        "7(E) The Selection Committee shall screen all the
        applications from the list "A" to "C" and shortlist the same,
F       keeping in view that nor more than 25 candidates will be
        considered for each vacancy."
      8. As per the official respondents even in the notification
  dated 4.12.2009 vide which applications for the aforesaid post
  were invited it was categorically provided in Clause (XI) thereof
G as under:-
        "Mere applying will not give any right to any person to be
        called for either written examination and interview as the
        application of the candidates will be short listed as per
H       guidelines issued by Hon'ble High Court from time to time"
  DUDDILLA SRINIVASA SHARMA AND ORS. v. V.                    427
          CHRYSOLITE [A.K. SIKRI, J.]
       9. Taking shelter of the aforesaid provisions the authorities A
tried to justify their action to notify only those candidates who
had higher qualification i.e. who were graduates. In this manner
the official respondent short listed the application enhancing the
 minimum qualification to degree and even after short listing
 more than 3,800 candidates appeared for written examination. B
 However, this explanation given by the official respondents, did
 not convince the High Court. A perusal of the judgment of the
 High Court would reveal that the High Court was more swayed
  by the fact that in the advertisement it was no where stated that
 there can be short listing of candidates on the basis of             c
  academic qualifications. It thus held that since the eligibility
  prescribed in the A.P. Judicial Ministerial Service Rules, 2003
  mentions passing of intermediate examination, all those who
  fulfil this qualification were eligible to participate in the selection
  process. The High Court also referred to guideline 7 (a) of the D
   Instructions dated 1.7.1996 as per which marks secured in the
   qualifying examination is the criteria enlisted for the parties of
   screening/ shortlisting of the applicants for the post in Ministerial
   Services.
        10. It was argued by learned Counsel for the petitioner that E
  when large number of applications are received for a particular
  post, it is always permissible for the recruitment agency to short
  list the candidates by fixing higher bench mark and such a
  higher bench mark can be on the basis of academic
  qualifications as well. The learned Counsel relied upon the F
  following two judgments of this Court in support of his aforesaid
   plea:-
         (i)    Union of India v. S. Vinod Kumar; 1996 (6) SCC
                580
                                                                        G
         (ii)   Andhra Pradesh Public Service Commission v.
                Baloji Badhavath; 2009 (5) SCC 1.
        11. We may record, at the outset, that general observations
   of the High Court in the impugned judgment to the effect that          H
     428      SUPREME COURT REPORTS                  (2013) 12 S.C.R.

A short listing of the applicants could not be 011 the basis of higher
  qualification, may not be correct. In this behalf we may refer to
  the judgment of this court in the case of S.B.Mathur & Ors. vs.
  Chief Justice of Delhi High Court & Ors. (1989) Supp.(1) SCC
  34. That was a case of departmental prornotion. However, zone
B of consideration was limited to a multipl•a of 3 to 5 times of the
  number of vacancies. This criterion was upheld. The test laid
  down was that criterion adopted should be reasonable, based
  on rational & intelligible differentia which has nexus to the object
  sought to be achieved. The justification given by this Court in
c adopting such a course of action is found in the following
  passage from the said judgments.
          "In the case before us, zone has been restricted by
          prescribing that out of the total number of candidates who
          satisfy the eligibility requirement, the zone of consideration
D         will be limited to a multiple of 3 to 5 times of the number
          of vacancies and the persons to be considered will be
          determined on the basis of their seniority in the combined
         seniority list. It appears to us that there is nothing
         unreasonable in this restriction. It was open to the Delhi
E        High Court to restrict the zone of consideration in any
         reasonable manner and limiting the zone of consideration
         to a multiple of the number of vacancies and basing it on
         seniority according to the combined seniority list, in our
        view, cannot be regarded as arbitrary or capricious or
F       mala fide. Nor can it be said that such restriction violates
        the principle of selection on merit because even experience
        in service is a relevant consideration in assessing merit.
        We may also refer, in this connection, to the decision of
        this Court in V.J. Thomas v. Union of India where it has
G      been pointed out that even though minimum eligibility
       criterion is fixed for enabling one to take the examination,
       yet the examination can be confined on a rational basis
       to recruits up to a certain number of years. In adopting
       such a policy which underlay the Note to clause (4) of
H      Appendix I to the new Rules in question, there is nothing



                                                                    I
 DUDDILLA SRINIVASA SHARMA AND ORS. v. V. 429
         CHRYSOLITE [A.K. SIKRI, J.]
  which is arbitrary or amounting to denial of equal A
  opportunity in the matter of promotion. It had the desired
  effect of not having a glut of Junior Engineers taking
  examination compared to fewer number of vacancies.
  Length and experience were given recognition by the
  Note. The promotion can be thus by stages exposing the B
  promotional avenue gradually to persons having longer
  experience. This seems to be the policy underlying the
   Note and there was nothing arbitrary or unconstitutional in
   it. Such a limitation caters to a well known situation in
   service jurisprudence that there must be some ratio of c
    candidates to vacancies. lf for taking an examination this
    aspect of classification is introduced, it is based on
    rational and Intelligible differentia which has a nexus to the
    object sought to be achieved (see   sec      p. 13 para 13). In
    view of what we have pointed out above, the submission 0
    of Mr Thakur In this connection must also be rejected."
     12. Therefore, what follows from the above Is that
whenever a particular criterion for short listing Is adopted, the
validity thereof is to be examined keeping in view whether the
same is rationale and having nexus with the objective sought E
to be achieved. It would depend on the facts and circumstances
of each case as to whether a particular criteria Is valid or not.
At the same time, it also becomes clear that whenever there
Is a particular provision for short listing the candidates In the
 Rules or Instructions, then the short listing is to be resorted to F
 in accordance with the criterion mentioned In those Rules or
 Instructions.
      13. In the Instant case the candidates who applied were
 to appear in the qualifying examination and Circular Instruction G
 dated 1.7.1996 issued by High Court administration very
 categorically provided for the procedure of short listing of
  candidates as well. Guideline 7(a) of the said Instructions dated
  1.7.1996, in this behalf, reads as follows:
                                                                      H
          430         SUPREME COURT REPORTS               [2013} 12 S.C.R.

    A          "Ministerial Service: For the purpose of screening/ short
               llstlng of the applications for the posts in Ministerial
               Services, the Committee shall take into consideration the
              marks secured in the qualifying examination and those who
              secured first class or 60% and above in the qualifying
    a         examination may be preferred to others, subject however
              to the rider that those having qualification in Type writing
              (Higher Grade) or Shorthand and those possessing Law
              Degree are not denied consideration".
    C         14. Two things which emerge from the record, germane
         to the decision in this case, are as follows:
                (i)   As per Rule 8 of AP. Judicial Ministerial Services
                      Rules 2003, read with Annexure l thereto the
                      educational qualification prescribed for the post of
D                     Junior Assistant is intermediate examination
                      conducted by A.P. State Board of intermediate
                      examination for any equivalent examination. Thus,
                      all those who fulfil this educational qualification
                      become eligible to be considered for the post.
E
              (ii)     The selection process was to start with qualifying
                      written examination and as per guideline 7(a) of the
                      instructions dated 1.7.1996 this qualifying
                      examination was for the purpose of screening/ short
                      listing of the applicants whereby those who secured
F                     first class for 60 percent and above were to be
                      perfect to others. Therefore, a specific criteria for
                      short listing prescribed by the respondents is the
                      marks obtained in qualifying examination.
G             15. Two judgments relied upon by the learned Counsel
        were cited before the High Court also and the High Court has
        dealt with and discussed these cases in its impugned judgment
        in the following manner:
            "Standing Counsel for the High Court placed reliance on
H
DUDDILLA SRINIVASA SHARMA AND ORS. v. V.                431
        CHRYSOLITE [A.K. SIKRI, J.]
  Union of India v. S. Vinodh Kumar; 1996 (6) SCC 580 A
  and Andhra Pradesh Public Service Commission v.
  Baloji Badhavath; 2009 (5) SCC 1 of the Supreme Court
  in support of his contention to uphold shortlisting of
  candidates by the 2nd respondent in this case. In S. Vinod
  Kumar (supra), the Supreme Court upheld fixing of cut off B
  marks by the competent authority during the course of
  recruitment and further upheld that decision not to lower
  the cut off marks in the interest of general merit, even if
   some of the vacancies remained unfilled, as such decision
   cannot be termed arbitrary. The railway administration      c
   fixed cut off mark differently for the purpose of filling up
   vacancies in general category and reserved category. The
   Supreme Court upheld the same holding that the said
   fixing of cut off mark is neither arbitrary nor offends the
   principles of equality enshrined under Article 14 of the
   Constitution of India. It was further observed therein that D
   power of the employer to fix cut off marks is neither denied
    nor disputed and that if the cut off marks were fixed on
    rational basis, no exception can be taken thereof. The
    question of fixing cut off mark in the recruitment process E
    arises only after the applicants/ candidates are given
    opportunity to participate in the selection process. Fixing
    of cut off marks during the course of recruitment process
    after giving opportunity to the candidates to participate in
    the process, is totally different from preventing entry of the
    candidates to participate in the recruitment process by F
    shortlisting the candidates at the threshold of recruitment
    process by denying even opportunity to the eligible
    candidates to participate in the recruitment process by way
    of attending written test or screening test. Thus, S. Vinod
    Kumar (supra) is no answer for the respondents to support G
    shortlisting of eligible candidates by applying criterion of
     possessing higher educational qualifications than
     prescribed by the 2003 Rules.

         In Baloji Badhavath (supra), the Supreme Court         H
    432       SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A          upheld rules as well as action of the Andhra Pradesh
          Public Service Commission in conduc:ting preliminary
          examination for all the qualified candidates before
          shortlisting the candidates for the purpose of attending
          written examination, particularly when seveial lakhs of
B         candidates applied for recruitment to Group-I services in
          the State. Of course, the quesiton therein was with regard
          to non fixing of lesser minimum marks to be secured by
          candidates belonging to reserved categories when
          compared to candidates belonging to open category and
c         its validity qua proviso to Article 335 ()f the Constitution.
          The Supreme Court noticed the following rule position with
          regard to short listing:

      "35. Rule 4 of the Andhra Pradesh Public Service
      Commission Rules of Procedure which refers to Rules 22
D     and 22-A of the Andhra Pradesh State and Subordinate
      Service Rules, 1996 would apply only where short listing
      is done. The first part of the said Rule empowers the
      commission to restrict the number of candidates to be
      called for interview to such extent as it may deem fit. While
E     shortlisting, however, it may hold a written test or provide
      for a preferential or higher qualification and experience and
      only for that purpose it is required to take into account the
      requirements with reference to Rules 22 and 22 A of the
      Andhra Pradesh State and Subordinate Service Rules,
F     1996 and the rule of reservatiein in favour of local
      candidates."
      The Supreme Court further observed:
      "By reason of providing for a preliminary examination, the
G     right of the reserved category candidates has not been
      taken away. The means cannot be allowed to defeat the
      ends which the constitutional scheme seeks to achieve."
      With regard to conducting of preliminary examination which
H
 DUDDILLA SRINIVASA SHARMA AND ORS. v. V.                   433
         CHRYSOLITE [A.K. SIKRI, J.)
    is not part of main examination, the Supreme Court              A
    observed:

           "29. Indisputably, the preliminary examination is not
           a part of the main examination. The merit of the
           candidate is not judged thereby. Only an eligibility     8
           criterion is fixed. The papers for holding the
           examination comprise of General Studies and
           Mental Ability. Such a test must be held to be
           necessary for the purpose of judging the basic
           eligibility of the candidates to hold the tests."
                                                                    c
    Ultimately the Supreme Court upheld action of Andhra
    Pradesh Public Service Commission in conducting
    preliminary test before conducting main examination for
    shortlisting the candidates for main examination without
    even fixing minimum marks differently for open and              D
    reserved categories of candidates."

     16. We do not find any fault in the aforesaid discussion of
the High Court pertaining to the said two judgments and are of
the opinion that these judgments do not advance the case of         E
the appellants. On the contrary para 29 of Baloja Badhawath
case supports the view taken by the High Court.

     17. We fail to understand how a person who fulfils the
eligibility conditions as per the recruitment rules can be
excluded even from appearing in the qualifying written              F
examination by fixing higher educational qualification bench
mark. That would be permissible where the post is to be filled
by main written examination (with marks obtained therein to be
included in the total marks) followed by viva-voice test OR where
the post is to be filled by interview mode alone. Thus, having      G
regard to the specific provision of shortlisting, we are of the
opinion that the impugned judgment of the High Court has
taken the correct view.

     18. The High Court has quashed the selections. These           H
    434     SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A appellants were given appointments vide order dated
  16.6.2010. However, even after the setting aside of their
  appointment they have continued in service because of interim
  order passed by this Court. In this manner they have served for
  more than 3 years as Junior Assistants. However, since large
s number of candidates were excluded from consideration by
  adopting wrong methodology, the appointments of the
  appellants cannot be saved. At the same time we are of the
  opinion that the appellants be allowed to continue till the
  selection process for filling up the said 17 posts of Junior
c Assistants is taken afresh by the official respondents. This is
  to ensure that there is no undue disruption in the Ministerial
  functioning of the District Court, Adilabad. At the same time we
  direct that the Principal District and Session Judge shall initiate
  fresh selection for appointment to the aforesaid posts within one
  month from the date of this order and complete the selection
0
  process within six months from thereafter. The appellant shall
  also be allowed to participate in the said selection process.
  Those appellants who get selected will continue to be in service
  and they will be treated in service from their initial appointment
E vide orders dated 16.6.2010 protecting their seniority. Those
  of the appellants who fail in the fresh selection process, their
  services shall be terminated.

        19. Subject to the aforesaid observations the present
    appeal is dismissed, with no order as to cost.
F
    R.P.                                        Appeal dismissed.