Supreme Court of India
HEMANI MALHOTRAversusHIGH COURT OF DELHI
- Citation
- 2008 INSC 450
- Decided
- 3 April 2008
- Disposal
- Case Partly allowed
- Bench
- K G BALAKRISHNAN
Holding
Prescribing minimum qualifying marks for the viva‑voce after the commencement of the selection process is illegal and the petitioners must be declared selected by adding their written‑exam marks to their viva‑voce marks.
Summary
Two candidates who had cleared the written examination for the Delhi Higher Judicial Service filed writ petitions under Article 32, alleging that the High Court of Delhi illegally introduced minimum qualifying marks for the viva‑voce after the selection process had begun, thereby excluding them from the merit list. The advertisement for the recruitment specified only written‑exam cut‑offs and no viva‑voce cut‑off, but the Full Court later prescribed 55% (general) and 50% (SC/ST) as minimum marks for the interview, which was applied after the interview had been postponed multiple times. The Supreme Court held that prescribing a minimum cut‑off for viva‑voce after the commencement of the selection process is impermissible and amounts to changing the rules of the game. Relying on K. Manjusree and earlier precedents, the Court declared the cut‑off illegal and directed that the petitioners' written‑exam marks be added to their viva‑voce marks to prepare a combined merit list. The petitioners were to be declared selected, but without retrospective seniority or salary; their seniority and salary would accrue from the date of appointment. The judgment was delivered by Justice J.M. Panchal.
Issues considered
- Whether the High Court could prescribe minimum qualifying marks for the viva‑voce after the written examination had been conducted and the selection process was underway.
- Whether such post‑hoc imposition of a cut‑off violates principles of natural justice and the established selection procedure.
- Whether the petitioners are entitled to be declared selected and what relief, if any, is available regarding seniority and salary.
Legislation cited
- Constitution of Indias. Article 32
- Right to Information Act, 2005
Subjects
Service LawDirect RecruitmentJudicial ServiceMinimum qualifying marksViva voceSelection processArticle 32Right to Information ActMerit listProspective relief
Judgment
[2008] 5 S.C.R. 1066
~-
A HEMANI MALHOTRA
v
HIGH COURT OF DELHI
(Writ Petition (Civil) No. 490 of 2007)
APRIL 3, 2008
B
(K.G. BALAKRISHNAN, CJ AND J.M. PANCHAL, J.)
..
Service Law:
Dirf:)ft recruitment to Delhi Higher Judicial Service -
c Prescribing of minimum qualifying marks for viva voce test
after commencement of selection process by High Court -
HELD: Illegal - Besides, total marks for written test being 250,
prescribing 750 marks for viva voce test was on higher side -
Respondent directed to add marks obtained by petitioners in
D written examination to marks obtained by them in viva voce
test and to prepare a combined merit list along with other
selected candidates - There being 16 vacancies notified and f'
only five candidates including the petitioners having been
found qualified for viva voce test, respondent directed to
E . declare petitioners as selected - However, petitioners would
neither be entitled to seniority nor to salary with retrospective
effect - Prospective operation of judgment.
The instant writ petitions were filed by two candidates
who had appeared in written examination and interview
F for recruitment to Delhi Higher Judicial Service, but were
. not selected. The respondent-High Court of Delhi invited
applications for filling up 16 posts in Delhi Higher Judicial
Service by direct recruitment. It was notified that the
felection process would be in two stages: (a) a written
G examination comprising one paper of 250 marks, and (b)
interview/viva voce. Minimum qualifying marks in written
examination were 55% for general candidates and 50%
for Scheduled Castes and Scheduled Tribes candidates.
The written examination was conducted on 12.3.2006. It
H 1066
HEMANI MALHOTRA v. HIGH COURT OF DELHI 1067
--I
was stated that the High Court did not at all declare the A
result of written examination. But, five candidates
including the two writ petitioners received letters dated
14.6.2006 for interview to be held on 12.7.2006. The
interview was, however, deferred from time to time and
ultimately viva voce test was conducted on 27.2.2007.. B
• _...\ Meanwhile, the Full Court in its meeting on 13.12.2006
prescribed minimum qualifying marks for viva voce, i.e.,
55% for general candidates and 50% for Scheduled
Castes and Scheduled Tribes candidates out of 750
marks. A notice dated 10.4.2007 was issued mentioning c
that only three candidates were selected. Names of the
two petitioners did not figure in the said notice.
It was submitted for the petitioners that the Selection
Committee did not draw the final merit list on the basis of
the combined result of written examination and the D
interview, and had that been done, they would have
~
obtained the fourth or the fifth position in the final merit
list as orily five candidates had qualified for the viva voce
test. It was stated that according to the information
supplied by the High c·ourt, one petitioner secured 142 E
marks out of 250 marks in written examination and 363
marks out of 750 marks in viva voce; whereas the other
secured 153.50 marks in written examination and 316
marks in viva voce test. It was contended that prescribing
cut off marks for viva voce test after the process for F
selection had commenced was illegal. It was, therefore,
prayed that a direction be issued to amend the selection
list by including the names ofthe two petitioners therein.
The stand of the respondent-High Court was that the
two petitioners belonged to the General category and they G
could not secure the minimum marks stipulated for the
viva voce test and, therefore, their names were not
recommended for appointment. It was also contended for
the resporidents that the Supreme Court while deciding
K. Manjusree did lot notice its earlier decisions and, H
1068 SUPREME COURT REPORTS . [2008] 5 S.C.R.
A therefore, the decision in K. Manjusree be regarded as per
incuriam or should be referred to a larger Bench for
reconsideration.
The question for consideration before the Court was
whether introduction of the requirement of minimum
8 marks for interview/viva voce, after the entire selection
•
process was completed, would amount to changing the
rules of the game after the game was played.
Allowing the writ petitions in part, the Court
C HELD: 1.1 Prescribing minimum marks for viva-voce
was not permissible at all after written test was conducted.
There is no manner of doubt that the authority making
rules regulating the selection can prescribe by rules the
minimum marks both for written examination and viva
D voce, but if minimum marks are not prescribed for viva-
voce before the commencement of selection process, the I
authority concerned cannot either during or after the
$election process add an additional requirement/
qualification that the candidate should also secure
E minimum marks in the interview. [para 9] (1077-E-F]
K.Manjusree vs. State of A.P & Anr. [2008] 2 SCR 1025
- relied on.
Lila Dhar vs. State of Rajasthan AIR 1981 SC 1777 -
F c;ited.
1.2 The decision rendered by this Court in
K.Manjusree can neither be regarded as Judgment per
incuriam, nor a good case is made out by the respondent
fpr referring the matter to larger Bench for reconsidering
G the said decision. While deciding K. Manjushree. the Court
(tPticed the earlier decisions* and thereafter laid down the
proposition. What is laid down in the decisions** relied
upon by the respondent is that it is always open to the
authority making the rules regulating thr.: selection to
H
HEMANI MALHOTRA v. HIGH COURT OF DELHI 1069
prescribe the minimum marks both for written A
examination and interview. The question whether
introduction of the requirement of minimum marks for
interview afterthe entire selection process was completed
was valid or nor, which was involved in K. Manjushree,
never fell for consideration of this Court in the said B
• ,,.\ decisions**. [para 10] [1077-G-H; 1078-A]
*PK.Ramachandra Iyer v. Union of India (1984) 2 SCC
141; Umesh Chandra Shukla v Union of India (1985) 3 SCC
721; and Durgacharan Misra v. State of Orissa (1987) 4 SCC
646 - referred to. C
**Ashok Kumar Yadav v State of Haryana (1985) 4 SCC
417; K.H.Siraj v. High Court of Kera/a and Others (2006) 6
sec 395 - cited.
2.1 In the instant case, as per the advertisement, D
minimum qualifying marks in the written examination were
\ specified to be 55% for General candidates and 50% for
Scheduled Castes and Scheduled Tribes candidates; but
no cut off marks were prescribed for viva voce test at all.
The averments made in the petitions which are not E
effectively controverted by the respondent would indicate
that oral interview was postponed by the respondent on
six occasions and was finally conducted by the Selection
Committee only on February 27, 2007. However, before
that date criteria of cut off marks for viva voce test was F
introduced by the respondent. It is an admitted position
i that at the beginning of the selection process, no minimum
cut off marks for viva voce were prescribed for Delhi Higher
Judicial Service Examination, 2006. Thus, prescription of
cut off marks at viva voce test by the respondent was G
illegal. Besides, prescribing 750 marks for viva voce test
is on higher side. [para 8, 9 and 11] [1076-A-D; 1077-F;
1078-F, G]
All-India Judges Association and ors. V Union of India
and Ors. (2002) 4 sec 247 - referred to. H
1070 SUPREME COURT REPORTS [2008] 5 S.C.R.
)- .
A 2.2 It is an admitted position that both the petitioners
had cleared written examination and, therefore, after
adding marks obtained by them in the written examination
to the marks obtained in the viva voce test, the result of
the petitioners should have been declared. Admittedly, 16
B vacant posts were notified to be filled up and only five
candidates had. cleared the written fest. Therefore, if the
marks obtained by the petitioners at viva voce test had t-
been added to the marks obtained by them in the written
test then the .names of the petitioners would have found
c place in the merit list prepared by the respondent. [para 9 ,.._
and 11] [1079-B, C, D]
2.3 The respondent is directed to add the marks
obtained by the petitioners in the written examination to
the marks obtained by them in the viva voce test and
D prepare a combined merit list along with the other selected
candidates. The respondent is directed to amend the
notice dated April 10, 2007 issued by the Registrar (Vig.), I
High Court of Delhi, New Delhi and declare the petitioners
as selected for being recommended for appointment to
E the post in Delhi Higher Judicial Service. It is clarified that
the petitioners would neither be entitled to, seniority nor
salary with retrospective effect. Their seniority shall be
reckoned from the date of their appointment and salary
as allowable be paid from that date only. [para 12]
F [1079-E, F, G]
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
490 of 2007.
"'"
Under Article 32 of The Constitution of India.
G P.S. Patwalia, Ranjit Kumar, Pradeep Dahiya, Veenita
Goyal, Hemani Malhotra and Bharat Sangal for the Petiti_oner.
P.P. Rao, A. Mariarputham and Aruna Mathur {for
Mariarputham, Aruna &'Co.) for the Respondent.
H The Judgment of the Court was delivered by
HEMANI MALHOTRA v. HIGH COURT OF DELHI '1071
[J.M. PANCHAL, J.]
J.M. PANCHAL, J. 1. These petitions are filed under Article A
32 of the Constitution wherein the common prayer made, is to
issue a writ of mandamus or any other appropriate writ or order
to direct the respondent i.e. the High Court of Delhi at New Delhi
to amend notice dated April 10, 2007 issued by Registrar (Vig.},
High Court of Delhi to the effect that the petitioner of each petition, B
is also declared as selected for being recommended for
. appointment to the vacant post in Delhi Higher Judicial Service
and prepare a combined merit list on the basis of total marks
obtained in written examination as well as proportionate marks
of the interview, as if, the vive-voce test was of 75 marks instead C
of 750 marks or by adding marks obtained in written examination
and the marks given to the petitioner in the interview out of 750
marks without cut off.
. .
2. In order to resolve the controversy raised by the
petitioners in the petitions it would be advantageous to refer t°' D
certain basic facts .
. 3. The respondent i.e. the High Court of Delhi at New Delhi
through Registrar General issued an advertisement inviting
applications from eligible candidates for 16 vacant posts to be
filled up by direct recruitment to Delhi Higher Judicial Service. E
Detailed information was given in the instructions annexed with
the Application Form. The relevant particulars stated in the
advertisement were as under:-
"Delhi Higher Judicial Service Examination shall be a two F
stage selection process comprising the following:
(a) There shall be a written examination comprising of
one paper only of 250 marks. It shall have two parts. Part
I shall be objective and Part II shall be descriptive. Syllabus
for written examination shall comprise General Knowledge, G
Current Affairs, English Language and topics on
Constitution of India, Evidence Act, Limitation Act, Code
of Civil Procedure, Criminal Procedure Code, Indian Penal
Code, Contract Act, Partnership Act, Principles governing
Arbitration Law, Specific Relief Act, Hindu Marriage Act, H
1072 SUPREME COURT REPORTS [2008] 5 S.C.R.
A Hindu Succession Act, Transfer or Property Act and
Negotiable Instrument Act.
(b) lnterviewNiva-Voce.
Minimum qualifying marks in the written examination shall
B be 55% for General Candidates and 50% for Scheduled
Castes and Scheduled Tribes candidates. " •
4. The petitioner of each petition submitted application in
the prescribed form. They were allotted relevant Roll Nos. A
written examination was conducted on March 12, 2006 wherein
C the petitioners appeared. The written examination was of three
hours' duration and comprised both multiple questions as well
as questions with descriptive answers. The respondent High
Court did not declare the result of the written examination at all.
However, the petitioners received letter dated June 14, 2006
o from the respondent asking them to appear for interview on July
12, 2006. Since the result of the written examination conducted
by the respondent was not declared, no merit list of the
successful candidates who passed the written test was
displayed and therefore it is the case of the petitioners that they
E were not in a position to find out details about the number of
candidates who were declared successful in the written
examination or for that matter, the number of candidates who
had qualified for .viva- voce test. According to the petitioners,
the Registrar General of Delhi High Court verified testimonials
F and other documents submitted by them and informed them that
the interview had been deferred and that the next date would be
intimated in due course. What is averred by the petitioners is
that the respondent issued letter dated September 4, 2006
directing the petitioners to appear for interview on September
20, 2006 at 2.30 P.M., but on September 19, 2006 another letter
G was issued intimating the petitioners that the interview fixed on
September 20, 2006 was deferred. It may be mentioned that
no next date of interview was intimated to the petitioners The
respondent High Court issued letter dated Nover.ber 9. 2006
intimating the petitioners that the interview was f;xed on
H November 29 2006. but again on November 28. 2006 another
HEMANI MALHOTRA v. HIGH COURT OF DELHI 1073
[J.M. PANCHAL, J.]
"'--'
letter was issued intimating the petitioners that the ihterview fixed A
November 29, 2006 was deferred. This last letter of November
28, 2006 specified that the interviews were to take place on
December 7, 2006. According to the petitioners on December
7, 2006 five candidates who had cleared written test gathered
in the Office of Registrar General of Delhi High Court for B
..-+ appearing at viva- voce test and all the five candidates were
collectively called in a Chamber by the Selection Committee
comprising five Hon'ble Judges of Delhi High Court to be
informed that the interview had been postponed. Meanwhile,
the Selection Commettee met and resolved that as it was
desirable to prescribe minimum marks for the viva-voce the
c
matter be placed before the Full Court. Accordingly, the matter
was placed before the Full Court for considering the question
whether minimum marks should be prescribed for vive-voce test.
The Full Court, in its meeting held on December 13, 2006,
resolved as under:- D
"Considered. It was resolved that for recruitment to Delhi
Higher Judicial Service from Bar, the minimum qualifying
marks in viva-voce will be 55% for General candidates
and 50% for Scheduled Castes and Scheduled Tribes
E
Candidates".
The respondent High Court thereafter issued letter dated
January 17, 2007 intimating the petitioners that the vive-voce
was fixed on January 23, 2007, but on January 22, 2007 another
letter was issued intimating that the interview fixed on January F
23, 2007 was P.ostponed. Again by letter dated February 2, 2007
i the petitioners were intimated that they were required to appear
for interview on February 5, 2007, but even on that day also, no
interview could be held.
5. The respondent High Court issued letter dated February G
23, 2007 fixing the oral interview on February 27, 2007 and on
that day viva- voce test was finally conducted by the Selection
Committee. Thereafter, the Registrar (Vig.) issued a notice
dated April 10, 2007 mentioning that only three candidates were
selected and the petitioners had not been selected. This notice H
1074 SUPREME COURT REPORTS [2008] 5 S.C.R.
A was posted on the web-site of Delhi High Court. What is claimed
by the petitioners is that the Selection Committee had not drawn
final merit list on the basis of combined result of written
examination and interview because if the merit list had been
drawn on this basis, the petitioners would have obtained fourth
B or fifth position in the final merit list as only five candidates had
qualified for the viva- voce test, _?nd no cut-off marks were t--
prescribed for viva- voce test. The petitioners claim that they
filed an application under ~ight to Information Act before the
Public Information Officer of High Court of Delhi on April 28,
c 2007 seeking information about the result etc. of Delhi Higher
Judicial Service Examination 2006. According to the petitioners
the Public Information Officer of the High Court did not supply
most of the information demanded by them on the pretext of
confidentiality, but in reply dated June 20, 2007 only a part of
D the information was given to the petitioner in Writ Petition No.
490 if 2007 that out of 250 marks for which written test was
conducted, she had secured 141 marks and 363 marks out of ~
750 marks for which viva- voce test, was conducted. The
petitioner in Writ Petition Civil No. 491 of 2007 was informed
by intimation dated June 20, 2007 that she had obtained 153.50
E marks out of 250 marks for which written test was conducted
and 316 marks out of 750 marks for which viva- voce test was
conducted. What is maintained by the petitioners is that the
petitioners have been excluded from being considered for
appointment to the post of Higher Judicial Services exclusively
F on the basis of cut off marks prescribed at the stage of viva-
voce test, which is illegal and contrary to the principle laid down
by the Supreme Court in Lila Dhar vs. State of Rajasthan
AIR 1981 SC 1777. According to the petitioners what weightage
should be attached to written test and interview depends upon
G the requirement of service for which selection is being made,
but minimum cut off marks could not have been prescribed for
viva- voce test, after process for selection had commenced. It
is stressed that the oral interview was the only criteria adopted
by the respondent for selection to the posts in question which is
H illegal and therefore the notice dated April 10, 2007 issued by
•. .,(
HEMANI MALHOTRA v. HIGH COURT OF DELHI
[J.M. PANCHAL, J.]
1075
the Registrar (Vig:), High Court of Delhi should be directed to
be amended to include names of the petitioners also as selec_ted
A
candidates for appointment.to the posts in question. Under the
circumstances the petitioners have invoked extra ordinary
jurisdiction of this Court under Article 32 of the Constitution and
claimed the reliefs to which reference is made earlier. B
•• -+ 6. On service of notice, Mr. Ramesh Chand, Deputy
Registrar, Delhi High Court has filed reply affidavit controverting
the averments made in the petition. In the reply it is stated that
the writ petitions filed against prescription of minimum
percentage of marks for qualifying at the viva- voce test, is not c
maintainable and therefore should be dismissed. It is mentioned
in the reply that as far as selection made in the year 2000 was
concerned, a candidate was required to get minimum of 55%
marks if he belonged to the General Category and 50% marks
if he belonged to the Scheduled Castes and Scheduled Tribes D
category for passing the vive-voce test and as the petitioners
'\ who belong to the General Category did not secure the minimum
marks stipulated for the vive-voce, but failed, their names were
not recommended for appointment. It is mentioned in the reply
that another advertisement dated May 19, 2007 was issued for
E
recruitment to the vacant posts in the Delhi Higher Judicial
Service wherein the petitioners had appeared but failed and
therefore also they are not entitled to the reliefs claimed in the
petitions. What is pointed out in the reply is that a candidate is
required to secure the stipulated minimum marks in the written
examination in order to qualify for the next stage i.e. vive-voce F
test and therefore the respondent was justified in prescribing
1
cut off marks at the vive-voce test. By filing the reply the
·~- respondent has demanded dismissal of the petitions.
7. This Court has heard the learned Counsel for the parties
G
at length and in great detail. This Court has also considered the
documents forming part of the petitions.
•r 8. From the record of the case it is evident that the public
advertisement was issued by the respondent for direct
recruitment to Delhi Higher Judicial Services. As per the said H
1076 SUPREME COURT REPORTS [2008] 5 S.C.R. :•
A
;.. ,,,
.._
advertisement written examination was to be held on March 12,
2006. The selection process was of two stages: stage one was
written examination comprising one paper only of 250 marks,
whereas stage two included interview/vive-voce. As per the
advertisement minimum qualifying marks in the written
8 examination were specified to be 55% for General candidates
and 50% for Scheduled Castes and Scheduled Tribes
candidates but no cut off marks were prescribed for vive-voce t
. .
test at all. The averments made in the petitions which are not
effectively controverted by the respondent would indicate that
oral interview was postponed by the respondent on six occasions
c and was finally conducted by the Selection Committee only on
February 27, 2007. However, before that date criteria of cut off
marks for vive-voce test was introduced by the respondent. It is
an admitted position that at the beginning of the selection
process, no minimum cut off marks for vive-voce were
D prescribed for Delhi Higher Judicial Service Examination, 2006.
The question, therefore, which arises for consideration of the
Court is whether introduction of the requirement of minimum .. '
marks for interview, after the entire selection process was
completed would amount to changing the rules of the game after
E the game was played. This Court notices that in Civil Appeal
No. 1313 of 2008 filed by K.Manjusree against the State of
A.P. &Anr. decided on February 15, 2008, the question posed
for consideration of this Court in the instant petitions was
considered and answered in the following terms:-
F "The resolution dated 30.11.2004 merely adopted the
procedure prescribed earlier. The previous procedure was
not to have any minimum marks for interview. Therefore,
extending the minimum marks prescribed for written "
examination, to interviews, in the selection process is
G impermissible. We may clarify that prescription of
minimum marks for any interview is not illegal. We have
no doubt that the authority making rules regulating the
selection, can prescribe by rules, the minimum marks both
for written examination and interviews, or prescribe
,...
H minimum marks for written examination but not for
HEMANI MALHOTRA v. HIGH COURT OF DELHI 1077
[J.M. PANCHAL, J.]
interview, or may not prescribe any minimum marks for A
either written examination or interview. Where the rules do
not prescribe any procedure, the Selection Committee
may also prescribe the minimum marks, as stated above.
But if the Selection Committee want to prescribe minimum
marks for interview, it should do so before the B
commencement of selection process. If the selection
committee prescribed minimum marks only for the written
· examination, before the commencement of selection
process, it cannot either during the selection process or
after the selection process, add an additional requirement C
that the candi.dates should also secure minimum marks in
the interview. What we have found to be illegal, is changing
the criteria after completion of the selection process, when
the entire selection proceeded on the basis that there will
be no minimum marks for the interview."
D
9. From the proposition of law laid down by this Court in
the above mentioned case it is· evident that previous procedure
was not to have any minimum marks for vive-voce. Therefore,
prescribing minimum marks for vive-voce was not permissible
at all after written test was conducted. There is no manner of E
doubt that the authority making rules regulating the selection
can prescribe by rules the minimum marks both for written
examination and vive-voce, but if minimum marks are not
prescribed for vive-voce before the commencement of selection
process, the authority concerned, cannot either during the F
selection process or after the selection process add an
additional requirement/qualification that the candidate should
also secure minimum marks in the interview. Therefore, this
Court is of the opinion that prescription of minimum marks by
the respondent at vive-voce, test was illegal.
G
10. The contention raised by the learned Counsel for the
respondent that the decision rendered in K.Manjusree {Supra)
did not notice the decisions in Ashok Kumar Yadav v. State
of Haryana (1985) 4 sec 417 as well as K.H.Siraj v. High
Court of Kerala and Others (2006) 6 SCC 395 and therefore H
1078 SUPREME COURT REPORTS [2008] 5 S.C.R.
A should be regarded either as decision per incuriam or should
be referred to Larger Bench for reconsideration, cannot be
accepted. What is laid down in the decisions relied upon by the
learned Counsel for the respondent is that it is always open to
the authority making the rules regulating the selection to prescribe
B the minimum marks both for written examination and interview.
The question whether introduction of the requirement of minimum +-
•
marks for interview after the entire selection process was
completed was valid or nor, never fell for consideration of this
Court in the decisions referred to by the learned Counsel for the
respondent. While deciding the case of K.Manjusree (Supra)
c the Court noticed the decisions in (1) P.K.Ramachandra Iyer ,,..
v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra
Shukla v. Union of India -(1985) 3 SCC 721; and (3)
Durgacharan Misra v. State of Orissa (1987) 4 SCC 646,
and has thereafter laid down the proposition of law which is
D quoted above. On the facts and in the circumstances of the case
~
this Court is of the opinion that the decision rendered by this j
Court in K.Manjusree (Supra) can neither be regarded as
Judgment per incuriam nor good case is made out by the
respondent for referring the matter to the Larger Bench for
E reconsidering the said decision.
11. At this stage this Court notices that as per the
information supplied by the respondent to the petitioners under
the provisions of Right to Information Act, the petitioner in Writ
Petition Civil No. 490/2007 had secured 142 marks out of 250
F prescribed for the written test and 363 marks out of 750 marks
in vive-voce test, whereas the petitioner in Writ Petition No. 491/
'f
2007 had secured 153.50 marks out of 250 marks in the written
test and 316 marks out of 750 marks in vive-voce test. There is
no manner of doubt that the prescription of 750 marks for vive-
G voce test is on higher side. This Court further notices that
Hon'ble Justice Shetty Commission has recommended in
. its Report that "The vive-voce test should be in a thorough and
scientific manner and it should be taken anything between 25
to 30 minutes for each candidate. What is recommended by
H the Commission is that the vive-voce test shall carry 50 marks
...
HEMANI MALHOTRA v. HIGH COURT OF DELHI 1079
[J.M. PANCHAL, J]
and there shall be no cut off marks in vive-voce test." This Court A
notices that in All-India Judges Association and ors. V.
Union of India and Ors. (2002) 4 SCC 247, subject to the
various modifications indicated in the said decision, the other
recommendations of the Shetty Commission (supra) were
accepted by this Court. It means that prescription of cut off marks B
.
-~
at vive-voce test by the respondent was not in accordance with
the decision of this Court. It is an admitted position that both the
petitioners had cleared written examination and therefore after
adding marks obtained by them in the written examination to
the marks obtained in the vive-voce test, the result of the c
petitioners should have been declared. As noticed earlier 16
vacant posts were notified to be filled up and only five
candidates had cleared the written test. Therefore, if the marks
obtained by the petitioners at vive-voce test had been added to
the marks obtained by them in the written test then the names of
0
the petitioners would have found place in the merit list prepared
by the respondent. Under the circumstances, this Court is of the
opinion that the petitions filed by the petitioners will have to be
accepted in part.
12. For the foregoing reasons both the petitions succeed. E
The respondent is directed to add the marks obtained by the
petitioners in the written examination to the marks obtained by
them in the vive-voce test and prepare a combined merit list
along with the other selected candidates. The respondent is
directed to amend the notice dated April 10, 2007 issued by F
the Registrar (Vig.), High Court of Delhi, New Delhi and declare
the petitioners as selected for being recommended for
appointment to the post in Delhi Higher Judicial Service. It is
clarified that the petitioners would neither be entitled to, seniority
or salary with retrospective effect. Their seniority shall be G
reckoned from the date of their appointment and salary as
allowable be paid from that date only. Rule is made absolute
accordingly in each petition. There shall be no order as to cost.
R.P. Writ Petition partly allowed.
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Service Law"Sign in to search