Holding

The Commission's imposition of a minimum viva‑voce mark was illegal and the selection list was set aside.

Summary

The petitioner, D. Misra, secured 470 marks in the written exam and 30 marks in the viva‑voce for the Probationary Munsif post, but was omitted from the select list prepared by the Orissa Public Service Commission. The Commission had introduced a rule requiring a minimum 30% score in the viva‑voce, based on the advice of a High Court judge present at the interview, although the Orissa Judicial Service Rules, 1964 did not prescribe any such minimum. The petitioner challenged the selection as arbitrary and contrary to the Rules under Article 32 of the Constitution. The Court held that the Commission could not add qualifications beyond those stipulated in the Rules and that the judge’s advice could not override statutory provisions. Consequently, the selection list was declared illegal and the Commission was directed to recompute the list based on aggregate marks alone. The writ petition was allowed.

Issues considered

Whether the Orissa Public Service Commission was empowered to prescribe a minimum qualifying mark for the viva‑voce test under the Orissa Judicial Service Rules, 1964.
Whether the advice of a High Court judge present at the viva‑voce could validly modify the statutory recruitment rules.
Whether the select list prepared by the Commission complied with the Rules and constitutional provisions (Art. 309, Art. 234).

Legislation cited

Constitution of Indias. Article 234, s. Article 235, s. Article 309, s. Article 32
Orissa Judicial Service Rules, 1964s. Rule 16, s. Rule 17, s. Rule 18, s. Rule 19

Subjects

Judicial service recruitmentViva‑voce testMinimum qualifying marksPublic Service CommissionStatutory rulesConstitutional provisionsWrit petitionSelection criteria

Judgment

DURGACHAR{\N MISRA A
v.
STATE OF ORISSA & ORS.

AUGUST 27, 1987

[O. CHINNAPPA REDDY AND B
K. JAGANNATHA SHETTY, JJ.)

Orissa Judicial Service Rules, 1964: Rules 16-19: Judicial

- Service-Probationary Munsifs-Recruitment of-Viva-voce test-
Minimum qualifying marks not prescribed-State Public Service
Commission-Whether competent to prescribe additional requirements C
for selection-High Court Judge present as an expert at the viva-voce--
Advice of-Whether could run counter to the Statutory Rules.

The petitioner had secured 470 marks out of 950 in the written
examination conducted by the Orissa Public Service Commission for
-"( the post of Probationary Munsifs for the year 1982-83. In the viva-voce D
test he was given 30 marks out of 200. But he did not find a place in the
merit list though candidates with less number of aggregate marks had
been selected.

In the writ petition under Art. 32 of the Constitution he chal-
,ti lenged the validity of selection on the ground, among others, that it was E
"""- arbitrary and contrary to rules. For the respondents it was submitted
that the Commission had taken a decision on the advice of the High
Court Judge who was present at the viva-voce test as provided under
'( r. 17 of the Orissa Judicial Service Rules, 1964, that a candidate to be
suitable for the post of Munsif should secure at least 30 per cent marks
at the viva-voce test, and that the petitioner did not secure the minimum F
qualifying marks so prescribed.

Allowing the writ petition,

HELD: 1. The decision of the Orissa Public Service Commission
~·
to prescribe the minimum marks to be secured at the viva-voce test for G
the post of Probationary Munsifs in the State Judicial Service was illegal
and without authority. [1106B]

2.1 The Orissa Judicial Service Rules, 1964 framed under the
proviso to Article 309 read with Article 234 of the Constitution, have
been made by the Governor of the State after consultation with the State H

1097
1098 SUPREME COURT REPORTS (1987] 3 S.C.R.
>
A Public Service Commission and the Slate High Court. The Commission,
which has been constituted under the Rules must, therefore, faithfully
follow the Rules. It must select candidates in accordance with the Rules.
It cannot prescribe additional requirements for selection either as to
eligibility or as to suitability. (1105G-H; 1106A]
~
13 2.2 Rule 16 of the Rules reqnires a candidate to secure a mini·
mum of 30 per cent marks in the written examination to qualify. The ·~
candidates who have secured more than that minimum would alone be '
called for viva-voce test. The Rules do not prescribe any such minimum /I

c
marks to be secured at the viva-voce test. Rule 18 mandates the Com·
mission to add the marks obtained at the written examination and the viva·
voce test together, no matter what the marks at the viva-voce test. On the
basis of the aggregate marks in both the tests, the names of candidates y
--
will have to be arranged in order of merit. The list so prepared Is then
to be forwarded to the Government under Rule 19. (llOlD-E; Fl

The Commission, therefore, had no power to exclude the name of
D any candidate from the select list merely because he had secured less .,.
marks at the viva-voce test. (llOlG]

P.K. Ramchandra Iyer & Ors. v. Union of India & Ors., (1984]
2 SCR 200; and Umesh Chandra Shukla etc. etc. v. Union of India,
(1985] Supp, 2 SCR 367, referred to.
~.
E
3. Even if the minimum qualifying marks were fixed for the viva· ....
voce test by the Commission on the advice of the High Court Judge,
present at the viva-voce test in accordance with r. 17 of the Rules, that
cannot validate the action of the Commission, for he had no power to )'
add anything to the Rules of recruitment. Role 17 itself proceeds to
F state that such a Judge shall not be responsible for selection of candi·
dates. He may advise the Commission as to the special qualities re·
quired for judicial appointments. His advice may be in regard to the
range ofsubjects in respect of which the viva-voce shall be conducted. It
may also cover the type and standard of questions to be put to candi·
dates or the acceptance of the answers given thereof. But his advice
-I
G cannot run counter to the statutory Rules. (1104F·H; 1105F]

Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and
Ors. etc. etc., (1985] Supp. 1SCR657, referred to.

4. The Orissa Public Service Commission is directed to re-do the
H select list on the basis of the aggregate marks obtained by the candidates
D. MISRA v. STATE OF ORISSA [SHETTY, J.) 1099

in the written examination and at the viva-voce test. The list so pre- A
pared to be forwarded to the Government as required under r. 19 of the
Rules for appointments as Munsifs. The persons who fall within the
revised list, if already in service need not be disturbed. Their inter-se
seniority to be regulated as per the rankings in the revised list. [11068-D]
~
ORIGINAL JURISDICTION: Writ Petition No. 1123 of 1986. B

(Under Article 32 of the Constitution of India).

R.K. Garg and J.R. Das for the petitioner.

A.K. Panda and Vinoo Bhagat for the Respondents.
c
The Judgment of the Court was delivered by

JAGANNATHA SHETTY, J. This is a petition under Article 32
of the Constitution challenging the validity of the list of candidates
-"'( prepared by Orissa Public Service Commission, Cuttack for appoint- D
men! as Probationary Munsifs in the State Judicial Service.
The selection of candidates for subordinate judicial service is
governed by the Orissa Judicial Service Rules, 1964 (the "Rules").
The Rules were framed under the proviso to Article 309 read with
Article 234 of the Constitution of India. The State Public Service
-.. ·~ Commission (The "Commission") is the selecting authority. The E
candidates are required to be selected by written test followed by
viva-voce test. The written examination carries the maximum marks of
950 and the viva-voce test 200.
In accordance with the Rules, the Commission issued advertise-
ment No. 12 of 1982-83 inviting applications from eligible candidates for F
posts of Probationary Munsifs. The petitioner was one of the candi-
dates who applied in response thereof. In the written examination
conducted by the Commission the petitioner secured 470 marks. He
was called for viva-voce test in which he was given 30 marks. He thus
~- secured in all 500 out of 1150. The Commission prepared a list of
candidates which we may term as 'select list' and recommended to the G
Government altogether 56 candidates in four batches as desired by the
latter. The petitioner did not find a place in that list. The candidates
with less number of aggregate marks than that of the petitioner have,
however, been selected. The petitioner, therefore, challenges the
validity of selection, on the ground among others that it is arbitrary
and contrary to the Rules. H
1100 SUPREME COURT REPORTS [1987] 3 S.C.R.

A The reason for ei<clusion of the petitioner from the select list is
not obscure. It has been at any rate now made explicit. He did not
secure the minimum qualifying marks prescribed by the Commission in
the viva-voce test. In the counter affidavit filed on behalf of the Com-
mission it has been so stated. It is said that the Commission has taken a
B decision that a candidate to be suitable for the post of Munsif, should ~
secure at least 30% at the viva-voce test. That decision was taken on
the advice of the High Court Judge. ~

The question for our consideration is whether the mm1mum
marks prescribed by the Commission at the viva-voce test is justified,
and whether the select list prepared by the Commission is in accord-
C ance with the Rules.
y
Rules 16, 17, 18 and 19 are the relevant rules which have a mate-
rial bearing on the question that falls for determination:

These Rules read as under:
D
Rule 16: "The Commission shall summon for the viva-voce test all
candidates who have secured at the written examination not
less than the minimum qualifying marks obtained in all sub-
jects taken together which shall be the (30%) of the total
marks in all the papers: Provided that Government may
E after consultation with the High Court and Commission fix I,.
higher qualifying marks in any or all of the subjects in the
written examination in respect of any particular recruitment.

Rule 17: The Chief Justice or any of the other Judges of the High
Court nominated by the Chief Justice shall represent the
F High Court and be present at the viva-voce test and advise
the Commission on the fitness of candidates at the viva-voce
test from the point of view of their possession of the special
qualities required in the judicial service, but shall not be
responsible for selection of candidates.

G Rule 18: The marks obtained at the vive-voce test shall be added to~
the marks obtained in the written examination. The names
of candidates will then be arranged by the Commission in
order of merit. If two or more candidates obtain equal marks
in the aggregate, the order shall be determined in accord-
ance with the marks, secured at the written examination.
H Should the marks secured at the written examination of the
D. MISRA v. STATE OF ORISSA [SHETfY, J.] 1101

candidate concerned be also equal, then the order shall be A
decided in accordance with the total number of marks ob-
tained in the optional papers.

Rule 19: ( 1) The Commission shall then forward to the Government
in the Law Department the list of candidates prepared in
accordance with Rule 18 indicating therein whether a candi- B
date belongs to Schedule Caste or Scheduled Tribes.

(2) The list prepared shall be published by the Commission

- for general information.

(3) The list, unless the Governor in consultation with the C
High Court otherwise decides, shall ordinarily be in force for
one year from the date of its preparation by the Commi-
ssion."

The Rule making authorities have provided a scheme for selec-
tion of candidates for appointment to judicial posts. Rule 16 prescribes D
the minimum qualifying marks to be secured by candidates in the
written examination. It is 30% of the total marks in all the papers. The
candidates who have secured more than that minimum would alone be
called for viva-voce test. The Rules do not prescribe any such
minimum marks to be secured at the viva-voce test. After the viva-
~ voce test, the Commission shall add the marks of the viva-voce test to E
the marks in the written examination. There then, Rule 18 states:

"The names of candidates will then be arranged _by the
Commission in the order of merit."

This is the mandate of Rule 18. The Commission shall add the F
two marks together, no matter what those marks at the viva-voce test.
On the basis of the aggregate marks in both the tests, the names of
candidates will have to be arranged in order of merit. The list so
prepared shall be forwarded to the Government. The Commission has
no power to exclude the name of any candidate from the select list
,._ merely because he has secured less marks at the viva-voce test. G

Similar pattern of selection is generally found in all the rules of
recruitment which prescribe written examination and also viva-voce
test. There are two authorities of this Court in this aspect of the
matter. In P.K. Ramchandra Iyer & Ors. v. Union of India & Ors.,
[ 1984] 2 SCR 200 this Court considered the scope of recruitment rules H
1102 SUPREME COURT REPORTS [1987) 3 S.C.R.

governing the selection of candidates to various disciplines under the
A
Indian Council of Agricultural Research. There the Agricultural
Scientists Recruitment Board (ASRB) was required to select candi-
dates by holding competitive examination and viva-voce test. ASRB
prescribed minimum qualifying marks which a candidate must
obtain at the viva-voce test before his name could be included in the ~
B merit list. The question that fell for consideration was whether the
ASRB was competent to prescribe such a minimum? Accepting the
contention that ASRB has no such power, this Court observed
(p. 244):

c
"Neither Rule 13 nor Rule 14 nor any other rule enables
the ASRB to prescribe minimum qualifying marks to be
obtained by the candidate Ht the viva-voce test. On the
-
contrary, the language of Rule 14 clearly negatives any
such power in the ASRB when it provides that after the
written test if the candidate has obtained minimum marks,
he is eligible for being called for viva-voce test and the final
D merit list would be drawn up according to the aggregate of
marks obtained by the candidate in written test plus viva-
voce examination. The additional qualification which
ASRB prescribed to itself namely, that the candidate must
have a further qualification of obtaining minimum marks in
the viva-voce test does not find place in Rules 13 and 14, it
E amounts virtually to a modification of the Rules. By neces- ~
sary inference, there was no such power in the ASRB to
add to the required qualifications. If such power is claimed,
it has to be explicit and cannot be read by necessary impli-
cation for the obvious reason that such deviation from the
rules is likely to cause irreparable and irreversible harm."
F
The closest to the facts of this case is the recent decision of this
Court in Umesh Chandra Shukla etc. etc. v. Union of India, [ 1985]
Supp. 2 SCR 367. There the. scope of Delhi Judicial Service Rules,
1970 came up for consideration. Rules 17 and 18 of the Delhi Judicial
Service Rules, 1970 are similar to Rules 16 and 18 of Orissa Judicial
G Service Rules, 1964. The Selection Committee constituted under these ~
Rules consisted among others of Judges of the High Court of Delhi.
The Selection Committee apparently thought that it has got power to
exclude candidates securing less than 600 marks in the aggregate as not
being suitable for appointment to the Judicial Service. Accordingly it
excluded all such candidates from the select list. It was contended
H before this Court that the Selection Committee would be competent to
D. MISRA v. STATE OF ORISSA [SHE1TY, J.] 1103

prescribe a minimum standard to be crossed by candidates at the vive- A
voce test in order to be suitable for appointment to judicial posts.
Repelling that contention this Court observed (pp. 382-383):

"With regard to the second contention, namely, that the
High Court had no power to eliminate the names of candi-
dates who had secured less than 600 marks in the aggregate B
after the viva-voce test, reference has to be made to Rules
17 and 18 of the Rules which provide that the Selection
Committee shall call for viva-voce test only such candidates
who are qualified at the written test as provided in the

- Appendix and that the Selection Committee shall prepare
the list of candidates in order of merit after the viva-voce C
test. There is no power reserved under rule 18 of the Rules
for the High Court to fix its own minimum marks in order
to include candidates in the final list. It is stated in
paragraph 7 of the counter-affidavit filed in Writ Petition
No. 4363 of 1985 that the Selection Committee has inherent
power to select candidates who according to it are suitable D
for appointment by prescribing the minimum marks which
a candidate should obtain in the aggregate in order to get
into the Delhi Judicial Service. It is not necessary to con-
sider in this case whether any other reason such as charac-
ter, antecedents, physical fitness which may disqualify a
candidate from being appointed to the Delhi Judicial E
Service may be taken into consideration by the Selection
Committee whlle preparing the final list. But on going
through the Rules, we are of the view that no fresh disqua-
lification or bar may be created by the High Court or the
Selection Committtee merely on the basis of the marks
obtained at the examination because clause (6) of the F
Appendix itself has laid down the minimum marks which a
candidate should obtain in the written papers or in the
aggregate in order to qualify himself to become a member
of the Judicial service. The prescription of the minimum of
600 marks in the aggregate by the Selection Committee as
an additional requirement which the candidate has to G
satisfy amounts to an amendment of what is prescribed by
clause (6) of the Appendix. The question whether a candi-
date included in the final list prepared and forwarded by
the Selection Committee may be appointed or not is a
matter to be considered by the appointing authority. In the
instant case the decision that a candidate should have sec- H
1104 SUPREME COURT REPORTS [1987] 3 S.C.R.

A ured a minimum of 600 marks in the aggregate in order to
be included in the final select list is not even taken by the
High Court but by the Selection Committee. Moreover,
recruitment of persons other than District Judges to the
Judicial Service is required to be made under Article 234 of
the Constitution in accordance with the Rules made by the
B Governor as provided therein, in consultation with the
High Court. Article 235 which vests in the High Court the
control over the District Courts and Courts subordinate
thereto, cannot include the power of making rules with
regard to recruitment of persons other than District Judges

c
to the judicial service as it has been expressly dealt with in
Article 234 of the Constitution. We are of the view that the
Selection Committee has no power to prescribe the mini-
-
mum marks which a candidate should obtain in the aggre-
gate different from the minimum already prescribed by the
Rules in its Appendix. We are, therefore, of the view that
the exclusion of the names of certain candidates, who had
D not secured 600 marks in the aggregate including marks
obtained at the viva-voce test from the list prepared under
rule 18 of the Rules is not legal."

In the light of these decisions the conclusion is inevitable that the
Commission in the instant case also has no power to prescribe the
E niinimum standard at viva-voce test for determining the suitability of ~
candidates for appointment as Munsifs. .-

It was, however, urged by counsel for the respondents that the
principles enunciated by the aforesaid two decisions of this Court can- 'r
not be extended to the case on hand. The counsel sought to derive
F support for their contention on rule 17. Rule 17 provides that the Chief
Justice or any other Judge of the High Court nominated by the Chief
Justice shall represent the High Court and be present at the viva-voce
test. He shall also advice the Commission on the fitness of the candi-
dates at the viva-voce test. The advice may relate to the special
qualities to be possessed by candidates for Judicial Service. The Rule
G 17, however, proceeds to state that such a Judge shall not be responsi- ~
ble for selection of candidates. The contention for the respondents was
that a Judge of the High Court was present at the viva-voce test. He
was an expert in the field. He was primarily concerned with regard to
fitness of candidates for judicial service. He advised the Commission
to determine the minimum marks to be secured at the viva-voce test.
H The Commission accepted the advice and determined the cut out
D. MISRA v. STAIB OF ORISSA [SHETTY, J.] 1105

marks in the viva-voce. It was also contended that the Judge could A
advise as to fitness of candidates for judicial appointment and his
advice could also relate to the minimum which a candidate should
secure in the viva-voce test. If such power is not conceded to the
Judge, his presence at the interview as provided under rule 17 would
totally be unnecessary.
B
We are not persuaded by this argument. That does not mean that
we are doubting the purpose of rule 17. The purpose is undoubtedly
laudable and indeed, it is in accordance with the observations of this
Court in Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana
.. and Ors etc. etc., [1985] Supp. 1SCR657. There it was observed:-
c
"It is therefore essential that when selections to the Judi-
cial Service are being made, a sitting Judge of the High
Court to be nominated by the Chief Justice of the State
should be invited to participate in the interview as an
expert and since such sitting Judge comes as an expert who,
by reason of the fact that he is a sitting High Court Judge D
knows the quality and character of the candidates appear-
ing for the interview, the advice given by him should ordi-
narily be accepted, unless there are strong and cogent
reasons for not accepting such advice and such strong and
cogent reasons must be recorded in writing by the Chair-
man and members of the Public Service Commission." E

But the crux of the matter is whether the Judge present at the
viva-voce test has the power to add anything to the Rules of recruit-
ment. He may advice the Commission as to the special qualities re-
i quired for judicial appointments. His advice may be in regard to the
range of subjects in respect of which the viva-voce shall be conducted. F
It may also cover the type and standard of questions to be put to
candidates; or the acceptance of the answers given thereof. But his
advice cannot run counter to the statutory Rules.

The Rules have been framed under the proviso to Article 309
't' read with the Article 234 of the Constitution. Article 234 requires that G
the appointment of persons other than District Judge to the Judicial
Service of State shall be made by the Governor of the State. It shall be
in accordance with the rules made by the Governor in that behalf after
consultation with the State Service Commission and with the State
High Court. The Rules in question have been made after consultation
with the Commission and the State High Court. The Commission H
1106 SUPREME COURT REPORTS [1987) 3 S.C.R.

A which has been constituted under the Rules must, therefore faithfully
follow the Rules. It must select candidates in accordance with the
Rules. It cannot prescribe additional requirements for selection either
as to eligibility or as to suitability. The decision of the Commission to
prescribe the minimum marks to be secured at the viva-voce test
would, therefore, be illegal and without authority. ~
8
In the result we allow the petition and quash the selection made
by the Orissa Public Service Commision with a direction to re-do the
select list on the basis of the aggregate marks obtained by the candi-

-
dates in the written examination and at the viva-voce test and in the
light of the observations made. The list so prepared shall be forwarded
C to the Government as required under rule 19 of the Rules for appoint-
ments as Munsifs. The persons who fall within the revised list, if they
are already in service need not be disturbed. Their inter-se seniority,
may however, be regulated as per the rankings in the revised list.

In the circumstances, however, we make no order as to cost.

P.S.S. Petition allowed.