- (1.) Petitioners are law-graduates. The Punjab Public Service Commission (hereinafter referred to as die Commission) issued advertisement No. 8 which appeared in the Daily Tribune of September 8,1990, inviting applications for recruitment of 52 posts to Punjab Civil Services (Judicial Branch). 26 posts were meant for general category candidates, 14 for scheduled castes, 3 for backward classes, one for freedom-fighters and 8 for ex-servicemen. The recruitment and appointment to the Punjab Civil Services (Judicial Branch) is governed by a statutory rule known as the Punjab Civil Service (Judicial Branch) Rules, 1951 (hereinafter referred to as the 1951 Rules). Under the 1951 Rules, a candidate is required to sit in written test comprising five papers. Four papers are of 200 marks each and 5th paper is of 100 marks. Rule 7 of the 1951 Rules provides that no candidate shall be credited with any marks in any paper unless he obtains minimum 33% marks in it and no candidate shall be called for the viva-voce test unless he obtains atleast 45% marks in the aggregate of all the written papers. He is also required to get minimum 33% marks in a paper. Rule 8 of the 1951 Rules provides that the merit of the qualified candidate shall be determined by the Commission according to the aggregate marks obtained in the written papers and viva-voce test. It required mention here that while conducting interview of the candidates for selection to Punjab Civil Service (Judicial Branch) in the year 1990, a sitting Judge of this Court who was nominated by the Hon'ble Chief Justice as an Expert in the aforesaid selection, noticed an anomaly in Rule 8 of the 1951 rules which inter alia provided that a candidate has to obtain atleast 55% marks in aggregate including the viva voce to become eligible for appointment to the service. It was pointed out that a candidate who obtains 45% marks in the written papers, i.e. 405 out of 900, is eligible to be called for viva voce test Even if the said candidate is awarded 100 out of 100 marks in the viva voce test, his total marks, Le. 505 would be less than 55% of the total marks of 1000 and, therefore, he will not be eligible for appointment in view of Rule 8 of the 1951 Rules. This Court, therefore, recommended that Rule 8 of the 1951 Rules be suitably amended and it should provide that a candidate who had obtained 50% marks (instead of 55% marks) as provided under the Rules in aggregate of all the papers including viva- voce shall be eligible for appointment to the service. Keeping in view of these recommendations, the 1951 Rules were amended vide Notification No. GSR 35/Const. Art. 309/Amd. (25)/91, dated 4th June, 1991. For the facility of reference, the unamended and the amended Rules are reproduced as under:- UNAMENDED RULES "7. No candidate shall be credited with marks in any paper unless he obtains 33% marks in it and no candidatehe shall be called for the Viva Voce test unless he obtains at least fifty-five per cent marks in the aggregate of all the written papers which he has passed and thirty-three per cent marks in the paper of Punjabi (In Gurmukhi Script)". "8. No candidate shall be considered to have qualified in the examination AMENDED RULES "7(1) No candidate shall be credited any with any marks in any paper unless he atleast obtains atleast thirty three per cent marks in it. (2) No candidate shall be called for the viva-voce test unless he obtains atleast fifty per cent qualifying marks in the aggregate of all the written language papers; Provided that the candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes categories unless he obtains at least fifty-five per cent marks in the aggregate of all the papers including viva-voce test and at least thirty-three per cent marks in the language paper of Punjabi 'Gurmukhi Script). The standard of the language papers will be that of Matriculation Examination of the Punjab School Education Board or equivalent to it. shall be called for the viva-voce test if they obtain forty-five per cent qualifying marks in the aggregate of all all the written papers. (3) The minimum qualifying marks in the the language paper Punjabi (Gurmukhi Script) shall be thirty three percent. The standard of language paper will be that of Matriculation Examination of the "Punjabi School Education Board or its equivalent. (8) The merit of the qualified candidates shall be determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written papers and viva- voce. Provided that in the case of two or more candidates obtaining equal marks, the candidate older in age shall be placed higher in order of merit" The 1951 Rules after amendment, thus, provide that no candidate shall be called for the viva vove test unless he obtains atleast fifty per cent marks in aggregate of all the written papers. It further provides that the merit of the qualified candidates shall be determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written papers and viva voce. Petitioners who had applied against the ex-servicemen category, appeared in the written test held from 1.4.1991 to 4.4.1991. They obtained more than 45% marks but less than 50% marks in aggregate of all written papers. In view of the amended Rules, only those candidates who had obtained 50% marks or more were called for interview, but because of some directions in a writ petition which was filed in this Court by some of the candidates, petitioners were also interviewed on 18.7.1991. The grievance of the petitioners in the writ petition is that the respondents inspite of having interviewed the petitioners are not considering them for appointment against the posts reserved for ex-servicemen category.
(2.) Respondents No. 1 and 2 have filed separate written statements. In the written statements, the respondents have stated that as per the old Rules, the petitioners were required to obtain atleast 55% marks in aggregate of the written papers and viva-voce test as stipulated under Rule 8(i) of the 1951 Rules. Petitioners having obtained less than 50% marks were not entitled to be called for interview. In the alternative, it is stated that even if the new Rules are applied to the petitioners, then also they will be lacking in merit because under the new Rules, petitioners were required to obtain at least 50% marks in aggregate of all papers and the petitioners having failed to obtain the requisite marks were not eligible for appointment to the P.C.S. (Judicial).
(3.) While impugning the action of the respondents, learned counsel for the petitioners contended that the petitioner ought to have been considered for appointment under the old Rules and that too after ignoring Rule 8 because Rule 8 was found to be not workable by the sitting Judge of this Court, who was appointed as an Expert, and for that matter, the 1951 Rules were amended. His precise contention was that once the petitioners had obtained 45% marks in aggregate, they ought to have been considered for appointment. His other argument was that if the amended Rules are to be applied, then petitioners No. 1 and 2 who had obtained 49.3% marks in aggregate ought to have been considered on the principles of rounding off, i.e. 49.3% ought to have been treated as 50%. In reply, learned counsel for the respondents contended that the petitioners are neither eligible under the old Rules nor could be appointed under the amended Rules.;