Decided on August 13,2012

Kalyan Singh Goswami Appellant


BARIN GHOSH, J. - (1.) THE only question in the present writ petition is, whether the High Court was competent to fix a minimum benchmark for crossing the hurdle of written examination after the same was held? Petitioner, appearing in person, submitted that the same would tantamount to altering the statutory procedure subsequent to holding of the examination and, accordingly, not permissible. There is no dispute that in the instant case, the written examination was held on 23rd October, 2005 and, by a resolution dated 10th August, 2006, the Full Court provided that a candidate would pass the written examination provided he has received 50 per cent of the allotted marks. Petitioner submitted that such an action by the Delhi High Court was not permitted by the Honble Supreme Court in the case of Ramesh Kumar versus High Court of Delhi and another, reported in AIR 2010, SC 3714. In that case, in the advertisement itself, it was mentioned that the cut -off marks for success in the written examination would be 50 per cent of the aggregate marks awardable to a candidate in the written examination. That part of the advertisement was challenged by people, who had come within the zone of consideration, but were not appointed, inasmuch as, they received less than the required marks. Delhi High Court by referring to Rule 10 of the applicable rules held out that it was empowered to do what it did since it was empowered to conduct such tests as may be considered necessary and, accordingly, was competent to fix cut -off marks. The said contention of Delhi High Court was not accepted by the Honble Supreme Court. The Honble Supreme Court laid down the law that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly and 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 and further specify the minimum benchmarks for written test as well as for viva -voce.
(2.) IN the instant case, Uttaranchal Higher Judicial Service Rules, 2004 (hereinafter referred to as 'the Rules) were made in exercise of powers conferred by Article 233 and the proviso to Article 309 of the Constitution of India. The Rules did not prescribe any cut -off mark, instead the Rules prescribed that, keeping in view the number of vacancies, a list of candidates shall be prepared by the committee on the basis of written examination for viva -voce; and normally, candidates, thrice the number of vacancies, should be called for viva -voce. Therefore, the Rules provided that if the number of vacancies is ten, normally 30 people, who had participated in the written examination, shall be called for interview, despite the last of them getting one mark or two marks. Petitioner submitted that he secured 149 out of 300 marks in the written examination and, having had obtained such marks, secured fifth place in the merit list. It was submitted that the vacancies were 13, out of which atleast 7 posts were available for general candidates. It was submitted that in such view of the matter, petitioner ought to have had been given an opportunity to appear for viva -voce/interview. It was contended that he was denied his right to appear before the Board for viva -voce/interview, because of a subsequent decision taken by the High Court fixing the cut -off marks. By using the word "normally" the Rules made it clear that it is not mandatory to call thrice the number of vacancies for viva -voce. It may call more or less than thrice the number of vacancies for interview. What would be the criteria for calling those for interview, has not been specified in the Rules. The matter, therefore, will come within that part of the procedure, where there is no prescription by the Rules and there is also no other impediment in law, inasmuch as, a desire to get a better candidate for the Judiciary, can not be said to be an impediment in law. In the circumstances, the conclusion would be that for the purpose of fixing the number of candidates to be called for viva -voce, it was well within the competence of the Court to fix a basic minimum cut -off mark for the written examination. That having been done, though subsequent to the advertisement, the same can not be called in question.
(3.) ACCORDINGLY , the writ petition fails and the same is dismissed.;

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