- (1.) R. A. Sbarma, J. The petitioner and the respondent Nos. 3 and 4 alongwith various other candidates appeared in U. P. Nyayik Sewa (Munsiff) Examination, 1990 (hereinafter referred to as the Examination) conducted by the U. P. Public Service Commission (hereinafter referred to as the Commission), The result of the examination was declared on 25-11-1994 in which respondent Nos. 3 and 4 were declared successful but the petitioner's name was not there in the list of the successful candidates. Being aggrieved by it petitioner has filed this writ petition for writ of certiorari for getting the selection of respondents Nos. 3 and 4 quashed. Further consequential relief in connection therewith has also been sought.
(2.) RESPONDENTS have filed counter-affidavit and the petitioner has filed rejoinder-affidavit in reply thereto. We have heard the learned counsel for the parties. Petitioner and the respondent Nos. 3 and 4 have secured equal marks in the aggregate, as is clear from the following chart given by the Commission in its counter-affidavit: Sl. No. Roll No. Name Marks in. Inter view Total written Exams 49 4 Surendra Nath 481 Tripathi (Respondent No. 3) 50 40 Himanshu Bhatnagar 473 (Respondent No. 4) 80 Avinash Narain2 2 Pandey (Petitioner) As all the three candidates mentioned above have secured equal marks in the aggregate, the Commission has selected the respondent Nos. 3 and 4 as they secured more marks in written test than the petitioner. The contention of the learned counsel for the petitioner, however, is that when two or more candidates have secured equal marks in the aggregate, the Commission has to place their names in the list in order of merit on the basis of the marks obtained by them in the interview and, therefore, the petitioner, who secured more marks in the Interview is entitled to be given higher place in the merit list than the respondent Nos. 3 and 4 who have secured less marks in the interview, although all of them have secured equal marks in the aggregate. Rule 15 of U. P. Nyayik Sewa Niyamawali (hereinafter referred to as the Rules), which prescribes the procedure for recruitment for the post of Munsiff, is reproduced below : "15. Competitive examination.-The examination may be conducted at such time and on such dates as may be notified by the Com mission and shall consist of- (a) written examination such legal and allied subjects, includ ing procedure, as may be included in the syllabus prescribed under Rule 18 ; (b) an examination to test the knowledge of the candidates in Hindi and Urdu ; and (c) an interview to assess the all round student career of the candidates and their personality, address and general suit ability. " Under Rule 19 the Commission has to prepare a list of candidates selected by it according to the aggregate marks finally awarded to each candidate. This Rule is reproduced below : "19. List of candidates approved by the Commission.-The Commis sion shall prepare a list of candidates who have taken examina tion for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate, the Commission, shall arrange them in order of merit on the basis of their general suitability for the service. (emphasis supplied) Provided that in making their recommendations the Commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service. " Rule 19 has also laid down criteria for selection if two or more candidates obtained equal marks in the aggregate. The criteria is the general suitabi lity of the candidate for the service. By Rule 15 (c) interview has been prescribed for judging the general suitability of the candidate. Appendix 'e' to the Rule has prescribed the syllabus for competitive examination for the selection for written examination plus viva- voce. Clause (6) of Appendix 'e', which provides for viva-voce is reproduced below : "6. Viva-voce.-The suitability of the candidate for employment in the Judicial Service will be tested with reference to his record at School, College and University and his personality, address and physique. The questions which may be put to him may be of a general nature and will not necessarily be of an academic or legal nature. "
(3.) A learned Single Judge in Vinay Khare v. State of U. P. ,1993 (2) ALR 1 has held that if two or more candidates have secured equal marks in the aggregate, the candidate, who secured more marks in written test is to be given higher place in the merit list. The above decision of the learned Judge has been overruled by the Division Bench in Km. Manju Trivedi v. State of U. P. , Writ Petition No. 1247 (SB) of 1992, decided on 19-1-1994 (LKO) relevant extract from which is reproduced below : "we are not in agreement with the contention raised on behalf of the petitioner that in judicial service academic knowledge of law is the most important equipment and, therefore, the written test should have a primacy in determining the merit of two candidates who secured equal marks in the aggregate, firstly, because this statement does not accurately assess the require ment of the judicial officer and, secondly, it is not for this Court to determine as to which would be the better alternative. it has only to construe Rule 19 as it exists. For performing as a judicial officer knowledge of law is necessary ; but more necessary is the skill to use it and the attitude of the officer concerned. It is this skill and attitude which goes to constitute the personality of a Judge and which are more impor tant for his effectively dispensing justice than mere knowledge of law. 'the ultimate guarantee of justice in a court of law is the personality of. the Judge,' was said by Hugen Ehrlish (Freedom of Decision ; in Science of Legal Method, 9 Mad. Leg. Philos, Ser. 65 (1917 Trans, by Eruncken ). In the opinion of Roscoe Pound also. "men count more than machinery in administration of justice. " What goes to constitute the personality of the man who administer justice is their attitude including their sensitivity to the prob lems of the litigants, and zeal to dispense justice and the skills necessary in the administration of justice. The skill in the interpretation and application of laws, in dealing with men effectively and conceptual skills of being able to visualise effect of a decision comprehensively and the very attitude of a person are more determinative of his effectiveness as a judicial officer. Without these qualities, knowledge of law would be a mere surplus baggage. It was for these reasons that Lord Chancellor Lyndhurst stated that when trying to select a person for being appointed as a Judge, "i look out for a gentleman, and if he knows a little law as much the better. (See Ballantine. Some Experiences of a Barrister's Life 148 (2nd Ed. 1882 ). Even Haynes in the Selection and Tenure of Judges (Newark National Conference of Judicial Councils, 1944) stated :- "it is truism that the quality of justice depends more on quality of men who administer the law than the contents of the law they administer. " All this goes to show that the personality of a person is equally, if not more, important in his being selected to perform the task of a Judge than mere knowledge of law. ******* Reliance was placed by the learned counsel for the petitioners on a Judgment in Writ Petition No. 24584 of 1989, Vinay Khare v. State of U. P. , decided by learned Single Judge at Allahabad. We are in respectful disagreement with the opinion expressed by the learned Single Judge. In this case, the learned Single Judge found that the marks in the written examination should determine the order of merit because Clause (6) cannot be read in interpreting Rule 19 and that laghav axiem of mimansa principles of interpretation leads to that conclusion and also that the other alternative of the interview marks being considered would render the selection arbitrary. ** ** * Rule 19 provides for general suitability to be the determinative factor while clause (6) of Appendix E provides the manner of determining suitability of the candidates. There is no reason not to consider the provision, of clause (6) in interpreting Rule 19. We are, therefore, not in agreement with the view of the learned Single Judge. The rule of simpler and shorter interpretation has no application in this case. Whether the written test or interview constitute test of general suitability, is the question to be decided. They cannot be compared for being shorter and simpler. There is no objective test to determine it and in absence of any reason to say that either of them is shorter or simpler, the test appears to be totally inapplicable and artificial. " In paragraph 6 of ita counter-affidavit, the Commission has stated that earlier when two or more candidates secured equal marks in the aggre gate, it used to give higher place in the merit list to a candidate, who secured more marks in the interview, but after the decision of the learned Single Judge in the case of Vinay Khare v. State of U. P. (supra), it aban doned its earlier policy and has accordingly arranged the names of the respondent Nos. 3 and 4 and the petitioner in the merit list at serial Nos. 49, 50 and 51 respectively on the basis of the marks obtained by them in the written test. It has further been mentioned by the Commission in the said counter-affidavit that the judgment of the Division Bench in the case or Km. Manju Trivedi v. State of U. P. (supra) was received in its office after the result, which was prepared on the basis of the law laid down by the learned Single Judge in Vinay Khare's case, has already been declared. Be that as it may, the fact remains that the Commission has declared the result of the examination of respondent Nos. 3 and 4 and the petitioner on 25-11-1994 on the basis of the law laid down by the learned Single Judge which had already been overruled by the Division Bench in April, 1994! Therefore, the order rejecting the candidature of the petitioner and selecting the respondent No. 3, Surendra Nath Tripathi, cannot be sustained. As the petitioner and respondent Nos. 3 and 4 have obtained equal marks in the aggregate, their names have to be placed in the merit list on the basis of the marks obtained by them in the interview. Out of the three candi dates, the petitioner (Avinash Narain Pandey) has secured 60 marks in the interview, which is highest. Next comes Sri Himanshu Bhatnagar, respon dent No. 4, who has secured 49 marks. The respondent No. 3 (Surendra Nath Tripathi) has secured 41 marks in the interview, which is the lowest Therefore, Avinash Narain Pandey (petitioner) and Himanshu Bhatnagar respondent No. 4 are liable to be placed at serial Nos. 49 and 50 respec tively in the merit list. The result is that the name of Sri Surendra Nath Tripathi, the respondent No. 3 has to be placed at Serial No. 51 in the list of the general candidates. As the quota of the general candidates is only 40, the respondent No. 3 cannot be selected.;