RAMESH KUMARversusHIGH COURT OF DELHI & ANR.

                        [2010] 2 S.C.R. 256


A                        RAMESH KUMAR
                                  v.
                 HIGH COURT OF DELHI & ANR.
                (Writ Petition (Civil) No. 57 of 2008)

                       FEBRUARY 01, 2010
B
    [K.G. BALAKRISHNAN CJI., DEEPAK VERMA AND DR.
                   B.S. CHAUHAN, JJ.]

       Delhi Higher Judicial Service Rules, 1970 - r. 10 -
C Fixation of minimum Bench Marks for interview by High Court
  - Permissibility of - Appointment on the post of District
  Judges - Three vacancies reserved for Scheduled castes
  candidates - Three such candidates went through selection
  process - Two petitioners found unsuitable on failure to
o secure required minimum marks in interview - Writ petition
  seeking directions to High Court to appoint them on the said
  posts - Held: r. 10 does not provide for any particular
  procedure/criteria for holding the tests rather it enables High
  Court to prescribe the criteria - In absence of any statutory
E requirement of securing minimum marks in interview, High
  Court ought to have followed the principle to offer appointment
  to candidates who had secured the requisite marks in
  aggregate in written examination as well as interview, ignoring
  the requirement of securing minimum marks in interview in
F view of the directions issued by this court earlier in respect of
  the same issue- Out of the two petitioners' one of them having
  secured more than the required marks in aggregate, to be
  appointed - Judiciary - Service Jaw.

      Respondent rio. 1 issued an advertisement for filling
G up twenty vacancies of District Judges. Three of the said
  vacancies were to be filled up from the Scheduled Castes
  candidates. Three candidates including two petitioners,
  belonging to the Scheduled Castes category went
  through selection process and stood qualified in the
H                             256
  RAMESH KUMAR v. HIGH COURT OF DELHI & ANR. 257


  written test. Respondent no. 1 found only one person            A
  suitable for the post. Two petitioners were not found
  suitable since they did not secure the required minimum
  marks in interview. Hence the present writ petitions
/ seeking directions to the respondents to offer
  appointment to the petitioners on the posts in the cadre        B
  of District Judge.

      Allowing the appeal, the Court

       HELD: 1. In case the statutory rules prescribe a
  particular mode of selection, it has to be given strict C
  adherence accordingly. In case, no procedure is
  prescribed by the rules and there is no other impediment
  in law, the competent authority while laying down the
  norms for selection may prescribe for the tests ancl
  further specify the minimum Bench Marks for written test D
  as well as for viva-voce. [Para 13] [2&6;a-C]

      . State of U.P. v. Rafiquddin and Ors. AIR 1988 SC 162;
  Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and
  Ors. AIR 1996 SC 352; Majeet Singh, UDC and Ors. v.             E
  Employees' State Insurance Corporation and Anr. AIR 1990
  SC 1104; K.H. Siraj v. High Court of Kera/a and Ors. AIR 2006
  SC 2339; Lila Dhar v. State of Rajasthan and Ors. AIR 1981
  SC 1777; Ashok Kumar Yadav and Ors. v. State    I
                                                     of Haryana
  and Ors. AIR 1987 SC 454; Shri Durgacharan Misra v. State
                                                                  F
  of Orissa and Ors. AIR 1987 SC 2267; B.S. Yadav and Ors.
  v. State of Haryana and Ors. AIR 1981 SC 561; P.K.
  Ramachandra Iyer andOrs. v. Union of India and Ors. AIR
  1984 SC 541; Umesh Chandra Shukla v. Union of India and
· Ors. AIR 1985 SC 1351; K Manjusree v. State of Andhra           G
  Pradesh and Anr. AIR 2008 SC 1470, relied on.

     2.1. The advertis.ement for appointment to the post
 of District Judges provided that selection process would
 be in two stages as it would comprise of written
 examination carrying 750 marks and Viva-Voce carrying            H
    258     SUPREME COURT REPORTS               (2010] 2 S.C.R.


A 250 marks. Respondent No.1-Delhi High Court furnished
  detailed information about the pattern of selection
  process in the instructions annexed to the application
  form. It provided 50% minimum qualifying marks in the
  written examination as well as in the interview for
s General Category candidates and 45% for Scheduled
  Castes and Scheduled Tribes candidates; and that final
  merit list will be drawn up from among the candidates
  who have secured the stipulated minimum marks in the
  written examination and also the stipulated minimum
c marks in the viva-voce by adding up the marks in the
  written examination and .the viva-voce. The petitioners
  were found unsuitable on the ground that they failed to
  secure minimum Bench Marks i.e. 112.50 in interview.
  [Para 6) [262-D-F]
D       2.2. Rule 10 of the Delhi Higher Judicial Service
   Rules, 1970 does not provide for any particular
   procedure/criteria for holding the tests rather it enables
  the High Court to prescribe the criteria. This Court in All
   India Judges' Association's case accepted Justice Shetty
E Commission's Report in this regard which had
  prescribed for not having minimum marks for interview.
  The Court further explained that to give effect to the said
  judgment, th' existing statutory rules may be amended.
  However, till lhe amendment is carried out, the vacancies
F shall be filled as per the existing statutory rules. [Para 14]
  [266-D; 267-EU
       2.3. In p~rsuance of the directions issued in All India
  Judges' case to offer the appointment to candidates who
  had secured the requisite marks in aggregate in the
G written examination as well as in intervi'ew, ignoring the
  requirement qf securing minimum marks-in interview, the
  Delhi High Court offered the appointment to such
  candidates. Selection to the post involved has not been
  completed in any subsequent years to the selection
H process under challenge. Therefore, in absence of any
                                                                   \   -
  RAMESH KUMAR v. HIGH COURT OF DELHI & ANR. 259


 statutory requirement of securing minimum marks in               A
 interview, and in view of the earlier judgment of the court
 in Himani Malhotra's case of the High Court ought to
 have followed the same principle. In such a fact-situation,
 the question of acquiescence would not arise. [Paras 16
 and 17] [267-E-F; 267-F-G]                                       B

       2.4. The petitioner having secured 46.25% marks in
  aggregate and as he was required only to have 45%
  marks for appointment, the writ petition is allowed. The
  connected writ petition is dismissed as the said petitioner
  failed to secure the required marks in aggregate. The           C
  respondents are reque~ted to offer appointment to
  petitioner at the earliest, preferably within a period of two
  months from the date of submitting the certified copy of
. 1his order before the Delhi High Court. It is, however,
  clarified that he. shall not be entitled to get any seniority   D
  or any other perquisite on the basis of his notional
  entitlement. Service benefits shall be given to him from
  the date of his appointment. [Para 18] [268-A-C]
      All India Judges' Association and Ors. v Union of India     E
 and Ors. AIR 2002 SC 1752; Syed T.A. Naqshbandi and Ors.
 v. State of J & K and Ors. (2003) 9 SCC 592; Malik Mazhar
 Sultan and Anr. v. Union Public Service Commission (2007)
 2 SCALE 159; Rakhi Ray & Ors. v. The High Court of Delhi
 and Ors. Civil Appeal No. 1133-1135 of 2010 decided by           F
 SC on 1.2.201 O; Nand Kishore v. State of Punjab (1995) 6
 SCC 614; Hemani Malhotra v. High Court of Delhi AIR 2008
 SC 2103, referred to.
                      Case Law Reference:
                                                                  G
      AIR 1988 SC 162          Relied on.           Para 9
      AIR .1996 SC 352         Relied on.           Para 9
      AIR 1990 SC 1104         Relied on.           Para 9
      AIR 2006 SC 2339         Relied on.           Para 9        H
    260      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A         AIR 1981 SC 1777          Relied on.            Para 10
          AIR 1987 SC 454           Relied on.            Para 10
          AIR 1987 SC 2267          l;ielied on.           Para 11
          AIR 1981 SC 561           Relied on.             Para 11
B
          AIR 1984 SC 541           Relied on.             Para 11
          AIR 1985 SC 1351          Relied on.             Para 11
          AIR 2008 SC 1470          Relied on.             Para 12
c         AIR 2002 SC 1752          Referred to.           Para 14
          (2003) 9 sec 592          Referred to.           Para 14
          (2007) 2 SCALE 159        Referred to.           Para 14
D         (1995) 6 sec 614          Referred to.           Para 1,5
          AIR 2008 SC 2103          Referred to.           Para 16
        CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) NQ.
    57 of 2008.
E
          Petition Under Article 32 of the Constitution of India.

                                  WITH

    W.P. (C) No. 66 of 2008.
F
         V. Shekhar and Mariarputham, S. Ganesh, Jatin Rajput,
    Deepakshi Jain, Ashwani Bhardwaj, Pradeep Dueby, Dharam
    Raj, Shwetank Saikwal (for Lawyer's Knit & Co.) Annam D.N.
    Rao, Neelam Jain and Vimal Dubey for the appearing parties.
G
          The Judgment of the Court was delivered by

          DR. S.S. CHAUHAN, J. 1. These two petitions have been
    filed under Article 32 of the Constitution of India for seeking
    directions to the respondents i.e. the High Court of Delhi and
H
 RAMESH KUMAR v. HIGH COURT OF DELHI & ANR. 261
           [DR. B.S. CHAUHAN, J.]
Govt. of NCT of Delhi to offer appointment to the petitioners         A
on the posts in the cadre of District Judge.

      2. The facts and circumstances giving rise to these
petitions are that in order to fill up 20 vacancies in the cadre of
District Judge in Delhi, the Respondent No.1, the High Court
                                                                      B
of Delhi issued an advertisement ori 19.5.2007. Out of these
20 vacancies, 13 were to be filled up from the General
Category candidates, 3 from Scheduled Castes candidates
and 4 from Scheduled Tribes candidates. The petitioners who
belong to Scheduled Castes category faced the selection
process. The result was declared on 3.1.2008. All the three           C
vacancies reserved for Scheduled Castes candidates could not
be filled up as the Respondent No. 1 found only one person
suitable for the post. The two petitioners herein were found
unsuitable on the ground that they did not secure the required
minimum marks in interview. Hence, these petitions.                   D

      3. Shri V. Shekhar, learned senior counsel appearing for
the petitioners has submitted that in view of decision taken by
the Respondent No. 1, a candidate belonging to Scheduled
Castes Category would be called for interview provided he             E
secured 45% marks in written test. Only three candidates
belonging to the said category stood qualified in the written test,
thus, they could have been offered the appointment without
asking them to complete the formality of facing the interview. It
was not permissible for the Respondent No. 1 to fix minimum           F
Bench Marks at the interview level also for the purpose of
selection. The petitions deserve to be allowed and the
respondents be directed to offer the appointment to the
petitioners.

      4. Per contra, Shri A. Mariarputham, learned senior             G
counsel appearing for the respondents has vehemently
opposed the petitions contending that mere passing the written
test is not sufficient for appointment as some of the required
qualities of a candidate can be assessed only in viva-voce/oral
                                                                      H
    262      SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A examination. The competent authority is permitted in law to fix
  the minimum marks at interview level also. In case, the
  candidate does not secure the marks so fixed, the candidate
  cannot claim the appointment to the post. Decision for fixing
  the cut-off marks in the written test and further for securing the
B minimum Bench Marks in the interview had been taken prior
  to initiation of selection process and was made public at the
  same time. The petitioners did not challenge the said criteria
  at the appropriate stage. Once they had appeared in the
  examination and could not succeed, petitioners cannot be
c permitted to take U-turn and. challenge the selection process
  on this ground at all. The petitions lack merit and are liable to
  be dismissed.

         5. We have considered the rival submissions made by
    learned counsel for the parties and perused the record.
D
       6. The advertisement dated 19.5.2007 provided'that
  selection process would be in two stages as it would comprise
  of written examination carrying 750 marks and Viva-Voce
  carrying 250 marks. Respondent No.1, the Delhi High Court
E furnished detailed information about the pattern of selection
  process in the instructions annexed to the application form. It
  provided 50% minimum qualifying marks in the written
  examination as well as in the interview for General Category
  candidates and 45% for Scheduled Castes and Scheduled
F Tribes candidates.

          The relevant part of the said instruction reads as under:

          "A candidate shall be eligible to appear in the viva-voce
          only in case he secures 50% marks in the written
G         examinatio[l i.e. aggregate of both parts (objective/
          descriptive) in the case of general category, and 45%
          marks in the case of reserved category.
     ·-
      - lnterview/viva-voce will carry 250 marks. A candidate of
        general category must secure a minimum of 50% marks
H                                                                /
RAMESH KUMAR v. HIGH COURT OF DELHI & ANR. 263
          [DR. B.S. CHAUHAN, J.]
     and a candidate of reserved category must secure a               A
     minimum, of 45% marks in the viva-voce".

     It was also provided that final merit list will be drawn up
from among the candidates who have secured the stipulated
minimum marks in the written examination and also the
                                                                      8
stipulated minimum marks in the viva-voce by adding up the
marks in the written examination and the viva-voce.

       RESULT OF THE PETITIONERS REMAINED
                    AS UNDER
                                                                      c
Name          Marks        Marks        Grand total Result
              obtained     obtained
              in written   in interview
              test Out     Out of      Out
              of 750       250         of 1000
                                                                      D

Ramesh        357.50       105.00      462.50      Not qualified in
Kumar                                              interview

Desh Raj     341.50        83.00       424.50      Not qualified in   E
Chalia                                             interview


      It is thus evident that the petitioners were found unsuitable
on the ground that they failed to secure minimum Bench Marks          F
i.e. 112.50 in interview.

     7. As per the submissions advanced by the learned
counsel for the Respondent No.1, the High Court of Delhi had
fixed the said criteria being empowered by the statutory
provisions contained in The Delhi Higher Judicial Service             G
Rules, 1970 (hereinafter called 'the Rules"). Rule 10 thereof
reads as under:

    "The High Court shall before making recommendations to
    the Administrator invite applications by advertisement and        H
    264      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A         may require the applicants to give such particulars as it
          may prescribe and may further hold such tests as may be.
          considered necessary." (_Emphasis added)

        8. The aforesaid statutory provision undoubtedly does not
  fix any particular criteria or minimum Bench Marks either in the
B written test or in interview for the purpose of selection. Rule 10
  provides that the High Court "may hold such tests as may be
  considered necessary", it impliedly provides for requirement
  necessary for assessment of suitability of a candidate. There
  is no challenge to the validity of Rule 10 in these writ petitions.
C The question does arise as to whether the Rules enabled the
  High Court to fix the minimum Bench Marks for interview?

          9. In State of UP. v. Rafiquddin & Ors., AIR 1988 SC 162;
     Dr. Krushna Chandra Sahu & Ors. v. State of Orissa & Ors.
D   AIR 1996 SC 352; Majeet Singh, UDC & Ors. v. Employees'
     State Insurance Corporation & Anr. AIR 1990 SC 1104; and
     K.H. Siraj v. High Court of Kera/a & Ors. AIR 2006 SC 2339,
    this Court held that Commission/Board has to satisfy itself that
     a candidate had obtained such aggregate marks in the written
E   test as to qualify for interview and obtained "sufficient marks in
    viva voce" which would show his suitability for service. Such a
    course is permissible for adjudging the qualities/capacities of
    the candidates. It may be necessary in view of the fact that it is
    imperative that only persons with a prescribed minimum of said
F   qualities/capacities should be selected as otherwise the
    standard of judiciary would get diluted and sub-standard stuff
    may get selected. Interview may also be the best mode of
    assessing the suitability of a candidate for a particular position
    as it brings out overall intellectual qualities of the candidates.
    While the written test will testify the candidate's academic
G   knowledge, the oral test can bring out or disclose overall
    intellectual and personal qualities like alertness,
    resourcefulness, dependability, capacity for discussion, ability
    to take decisions, qualities of leadership etc. which are also
    essential for a Judicial Officer.
H
 RAMESH KUMAR v. HIGH COURT OF DELHI & ANR. 265
           [DR. B.S. CHAUHAN, J.]
      10. Re-iterating similar views, this Court has given much        A
emphasis on interview in Lila Dhar v. State of Rajasthan &
Ors., AIR 1981 SC 1777; and Ashok Kumar Yadav & Ors. v.
State of Haryana & Ors. AIR 1987 SC 454 stating that interview
can evaluate a candidate's initiative, alertness, resourcefulness,
dependableness, co-operativeness, capacity for clear and               B
logical presentation, effectiveness in discussion, effectiveness
in meeting and dealing with others, adaptability, judgment,
ability to make decision, ability to lead, intellectual and moral
integrity with some degree of error.

      11. In Shri Durgacharan Misra v. State of Orissa & Ors.
                                                                       c
AIR 1987 SC 2267, this Court considered the Orissa Judicial
Service Rules which did not provide for prescribing the
minimum cut-off marks in interview for the purpose of selection.
This Court held that in absence of the enabling provision for
fixation of minimum marks in interview would amount to                 D
amending the n,1les itself. While deciding the said case, the
Court placed reliance upon its earlier judgments in B.S. Yadav
 & Ors. v. State of Haryana & Ors. AIR 1981 SC 561; P.K.
Ramachandra Iyer & Ors. v Union of India & Ors. AIR 1984
SC 541; and Umesh Chandra Shukla v. Union of India & Ors.              E
AIR 1985 SC 1351, wherein it had been held that there was
no "inherent jurisdiction" of the Selection Committee/Authority
to lay down such norms for selection in addition to the
procedure prescribed by the Rules. Selection is to be made
giving strict adherence to the statutory provisions and if such        F
power i.e. "inherent jurisdiction" is claimed, it has to be explicit
and cannot be read by necessary implication for the obvious
reason that such deviation from the rules is likely to cause
irreparable and irreversible harm.
                                                                       G
     12. Similarly, in K Manjusree v. State of Andhra Pradesh
& Anr. AIR 2008 SC 1470, this Court held that selection criteria
has to be adopted and declared at the time of commencement
of the recruitment process. The rules of the game cannot be
changed after the game is over. The competent authority, if the
                                                                       H
    266      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A   statutory rules do not restrain, is fully competent to prescribe
    the minimum qualifying marks for written examination as well
    as for interview. But such prescription must be done at the time
    of initiation of selection process. Change of criteria of selection
    in the .midst of selection process is not permissible.
B
        13. Thus, law on the issue can be summarised to the effect
  that in case the statutory rules prescribe a particular mode of
  selection, it has to be given strict adherence accordingly. In
  case, no procedure is prescribed by the rules and there is no
C other impediment in law, the competent authority while laying
  down the norms for selection may prescribe for the tests and
  further specify the minimum Bench Marks for written test as well
  as for viva-voce.

           14. In the instant case, the Rules do not provide for any
D   particular procedure/criteria for holding the tests rather it
    enables the High Court to prescribe the criteria. This Court in
    All India Judges' Association & Ors. v Union of India & Ors:
    AIR 2002 SC 1752 accepted Justice Shetty Commission's
    Report in this regard which had prescribed. for not having
E   minimum marks for interview. The Court further explained that
    to give effect to the said judgment, the existing statutory rules
    may be amended. However, till the amendment is carried out,
    the vacancies shall be filled as per the existing statutory rules.
    A similar view has been reiterated by this Court while dealing
F   with the appointment of Judicial Officers in Syed T.A.
    Naqshbandi & Ors. v. State of J & K & Ors. (2003) 9 SCC
    592; and Malik Mazhar Sultan & Anr. v. Union Public Service
    Commission (2007) 2 SCALE 159. We have also accepted
    the said settled legal proposition while deciding the connected
G   cases, i.e., Civil Appeals@ SLP (Civil) Nos ..... in CC 14852-
    14854 of 2008 (Rakhi Ray & Ors. v. The High Court of Delhi
    & Ors.) vide judgment and order of this date. It has been
    clarified in Ms. Rakhi Ray (supra) that where statutory rules do
    not deal with a particular subject/issue, so far as the
H   appointment of the Judicial Officers is concerned, directions
RAMESH KUMAR v. HIGH COURT OF DELHI & ANR. 267
          [DR. B.S. CHAUHAN, J.]
issued by this Court would have binding effect.                       A
     15. The view taken hereinabove is in conformity with the
law laid down by this Court in Nand Kishore v. State of Punjab
(1995) 6 sec 614, wherein it has been observed as under:-

     "Their Lordship's decisions declare the existing law but do      B
     not enact any fresh law, is not in keeping with the plenary
     function of the Supreme Court under Article 141 of the
     Constitution, for the Court is not merely the interpreter of
     the law as existing but much beyond that. The Court as a
     wing of the State is by itself a source ot"law. The law is       C
     what the Court says it is."

      16. These cases are squarely covered by the judgment of
this Court in Hemani Malhotra v. High Court of Delhi AIR 2008
SC 2103, wherein it has been held that it was not permissible         D
for the High Court to change the criteria of selection in the midst
of selection process. This Court in All India Judges' case
(supra) had accepted Justice Shetty Commission's Report in
this respect i.e. that there should be no requirement of securing
the minimum marks in interview, thus, this ought to have been         E
given effect to. The Court had issued directions to offer the
appointment to candidates who had secured the requisite
marks in aggregate in the written examination as well as in
interview, ignoring the requirement of securing minimum marks
in interview.
                                                                      F
     17. In pursuance of those directions, the Delht High Court
offered the appointment to such candidates. Selection to the
post involved herein has not been completed in any subsequent
years to the selection process under challenge. Therefore, in
the instant case, in absence of any statutory requirement of          G
securing minimum marks in interview, the High Court ought to
have followed the same principle. In such a fact-situation, the
question of acquiescence would not arise.

    18. In view of the above, as it remains admitted position
                                                                      H
   268      SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A that petitioner Ramesh Kumar had secured 46.25% marks in
  aggregate and as he was required only to have 45% marks for
  appointment, writ petition No.57 of 2008 stands allowed. The
  connected writ petition filed by Desh Raj Chalia as he failed to
  secure the required marks in aggregate, stands dismissed. The
8 respondents are requested to offer appointment to petitioner
  Ramesh Kumar, at the earliest, preferably within ~eriod of two
  months from the date of submitting the certifi¢d copy of this
  order before the Delhi High Court. It is, hqwever, clarified that
  he shall not be entitled to get any seniority or any other
C perquisite on the basis of his notional entitlement. Service
  benefits shall be given to him from the date of his appointment.
  No costs.

   N.J.                                          Appeal allowed.