Holding

Rule 7 empowers the High Court to fix reasonable minimum eligibility criteria, including oral cut‑off marks, and the selection complied with the reservation rules, rendering the petitioners’ challenges barred by estoppel and res judicata.

Summary

The Kerala High Court invited applications for 70 Munsif‑Magistrate posts and conducted written and oral examinations, prescribing minimum cut‑off marks of 35% (written) and 30% (oral). Several candidates, including K.H. Siraj, failed to meet the oral cut‑off and challenged the select list, alleging violation of reservation rules and that Rule 7 of the Kerala Judicial Service Rules did not authorize such cut‑offs. The High Court initially declared parts of the list illegal, but a Division Bench later upheld the selection, finding the procedure within the High Court’s powers under Rule 7 and the Constitution. The Supreme Court examined whether the High Court could set minimum oral marks, the applicability of reservation rules, estoppel, and res judicata, and held that the High Court’s power to determine suitability includes fixing reasonable eligibility criteria, that the reservation provisions were correctly applied, and that the petitioners were estopped from challenging the list. Consequently, the Supreme Court dismissed the appeals and special leave petitions, affirming the Division Bench’s order.

Issues considered

The scope of power conferred on the High Court by Rule 7 of the Kerala Judicial Service Rules to prescribe minimum cut‑off marks for the oral examination.
Whether the selection procedure complied with the reservation provisions under Rules 14‑17 of the Kerala State Subordinate Service Rules, 1958.
Whether the petitioners are barred by estoppel from challenging the select list after participating in the examination.
Whether the earlier High Court judgment operates as res judicata on the present appeals.
The necessity of joinder of all candidates as parties to the writ petition.

Legislation cited

Code of Civil Procedure, 1908
Constitution of Indias. 233, s. 234, s. 235
Kerala High Court Ruless. 148
Kerala Judicial Service Rules, 1991s. 7
Kerala Public Service Act, 1968s. 2

Subjects

service lawjudicial appointmentsreservationminimum cut‑off marksoral examinationestoppelres judicataKerala Judicial Service Rulesselection procedure

Judgment

K.H. SIRAJ
A
v.
HIGH COURT OF KERALA AND ANR.

MAY 23, 2006

B [DR. AR. LAKSHMANAN AND LOKESHWAR SINGH PANTA, JJ.]

Service Law:

Kerala Public Service Act, 1968- -Section 2-Kerala State subordinate
C Service Rules, 1958: Rules 14, 15 & 17/Kerala Judicial Service Rules,
1991; Rule 7/Notification dated 26.3.2001; Cl.JO: State Judicial Service
Examination-Appointment of Munsif Magistrate-Fixation of minimum
cut-off marks-Necessity of-Rules of reservation--Violation of-Single
Judge of the High Court declaring selection of certain candidates illegal--
Reversed by the High Court-- On appeal, Held: Rule 7 confers powers on
D the High Court to select suitable persons to serve as judicial officer-Power
so coriferred enables the High Court to select best available talent for
manning judiciary----C'ondition for obtaining minimum cut-off marks in
written/oral Examination not irrelevant--High Court could evolve its own
procedure to select suitable candidates-Thus. power conferred under the
E Rules justified the prescribed minimum eligibility condition-- -Since the
procedure so evolved is germane and best suited to achieve the object, it
is not proper to scuttle the same as beyond its power--Such power is vested
on the High Court constitutionally for the purpose of administration of the
subordinate judiciary-Constitution of India, 1950--Artic/es 233, 234 &
F 235-Kerala High Court Rules-Rule 148.

Testing of suitability of a candidate-Oral test/Interview-Necessity
of-Held: lntellactual and personal qualities of a candidate could
appropriately be assessed by conducting oral test.

G Bench marks/cw-off marks-Fixation of-Held: Jn order to select the
best amongst the available candidates, fixation of Benchmarks is necessary.

Rule of reservation--Applicability of-Held· In terms of rule 15, slots
had mandatorily tu be filled up by open merit candidates if no suitable
H candidate from reserved categories available -Hence, filling up of such
790
K.H. SIRAJ v. HIGH COURT OF KERALA 791

vacancies from candidates other. than reserved categories permissible A
under the Rules.

Validity of seleN. list-Challenged by unsuccessful/ineligible
candidates-Held: IneligilJle candidates could not challenge the validity of
the select list.
B
Selection and appointment-Challenge to-Estoppel-Applicability
of-Held: Principle of estoppel applicable since appellants participated in
the examination with knowledge of rules and procedural requirements.

Civil Procedure Code, 1908:
c
Writ Petition-Absence of necessary parties in the array of parties-
Effect of-Held: The petition falls on this ground.

Disposal of appeals on the same issue by the High Court-Not filing
of appeal against-Effect of-Held: the order of the High Court became
final and opeartes as res-judicata to the appeals in question-Principle of
D
Res-judicata.

The High Court ofKerala invited applications for the appointment
for the post of Munsif-Magistrate in the Kerala Judicial Services. The
appellants/petitioners appeared in the Written test. They were called for E
an interview before the Board. The select list was issued by the High
Court. The appellants challenged the select list alleging that the selection
was done in violation of the principles and Rules relating to reservations.
They also moved an application for staying the training and appointment
of candidates from the select list till the disposal of the writ petition.
However, the High Court commenced the training of the last 20 F
candidates from the select list. The single Judge of the High Court
disposed of the original petition declaring the appointment of certain
candidates as illegal and consequently restrained respondent Nos. 1 &
2 (the High Court and the State ofKerala) from filling up the said posts
from the select list The Respondents preferred an appeal. The Division G
Bench of the High Court by its interim order stayed the order of the
single Judge. Against the order of the Division Bench, the appellant
preferred Special Leave Petition before this Court. This Court disposed
of the petition after recording the statement of the respondents that in
the event of writ appeal being allowed, the appointments so made would
H
792 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A be quashed and appointed candidates would not claim equity on the
ground that they have joined the service earlier. Later, the Division
Bench of the High Court disposed of the petition holding that the
selections and appointments so made were regular in all respects. Hence
the present appeals and SLPs.

B One of the appellants contended that in terms of Rule 7 of the
Rules, the suitability of a candidate for appointment has to be considered
by the aggregate marks of written examination and oral examination;
that List has to be prepared after following such a procedure as the
High Court deems fit; that fixing a separate minimum cut off marks
C is not procedural requirement but it is an additional eligibility for the
post, which is contrary to rule 7; that rule 7 is silent as to the fixation
of cut off marks which is for relaxation from time to time for the
purpose of reservation; that the wording 'procedure deems fit' does not
confer any power on the selection Authority so as to take away a right
provided elsewhere as reported in Raja Ram .'vfahadev Parjapee 's case,
D
[ 1962) Supp l SCR 739 followed in Babau Nagar & Ors. v. Sree Synthetic,
reported in (1984) Supp SCC 128; and that the selection authority
rannot follow any procedure in violation of the Rule of reservation.

Other appellant~ contended that apart from the candidates belonging
E to backward classes, SC/ST candidates were also disqualified for selection
by fixing 30% minimum cut off marks for the oral examination which
is arbitrary because unequals are treated alike; that the selection agency
has no inherent power to prescribe selection criteria; that the Legislature
did not provide criteria for selection by exclusion of candidates by oral
F examination; that the first respondent has no authority to override the
legislative intention; that Rule 7 of the Rules did not provide a selection
criteria based on the exclusion of candidates on account of not securing
a separate minimum cut off marks in the oral examination; and that
the system followed by the High Court is in clear violation of the Rules
and the principles laid down by this Court in catena of decisions and
G also against the norms suggested by Shetty Commission with regard to
the Judicial Service appointments.

Respondents submitted that the selection in question was done
pursuant to the Notification issued by the High Court of Kerala; that
H clause IO of the Notification prescribes a scheme of written and oral
K.H. SIRAJ v. HIGH COURT OF KERALA 793

examination to be taken by the candidate; that the oral examination was A
held for deciding the candidate's general knowledge, grasp of general
principles of law, analytical ability an suitability for appointment as
Munsif Magistrate; that there was a relaxation of the marks in the
written examination in favour of candidates belonging to scheduled
castes and Scheduled Tribes; that in terms of the Notification pre-
examination training to the Scheduled Castes and Scheduled Tribes B
candidates was given to equip them for the examination; that on earlier
occasions appointments had been made in accordance with the same
procedure as laid down in the Notification. The same procedure was
followed in the impugned selection also.
c
Dismissing the appeals and the SLPs, the Court

HELD : 1.1. Rule 7 of the Kerala Judicial Service Rules requires
the High Court to hold examinations written and oral. The mandate is
to prepare a select list of candidates suitable for appointment as Munsif
Magistrates. The very use of the word 'suitable' gives the nature and D
extent of the power conferred upon the High Court and the duty that it
. has to perform in the matter of selection of candidates. The High Court
alone knows the requirements of the subordinate judiciary, the qualities
the Judicial Officer should possess both on the judicial side and on the
administrative side since the performance of duties as a Munsif or as E
judicial officer require administrative abilities as well. Since the High
Court is the best Judge of what should be the proper mode of selection,
Rule 7 has left it to the High Court to follow such procedure as it deems
fit. The High Court has to exercise its powers in the light of the
constitutional scheme so that the best available talent, suitable for
manning the judiciary may get selected. (819-A-B-C-D) F

1.2. It cannot be said that prescription of minimum pass marks for
the written examination or for the oral examination is in any manner
irrelevant or not having any nexus to the object sought to be achieved.
The merit of a candidate and his suitability are always assessed with G
reference to his performance at the examination and it is a well accepted
norm to adjudge the merit and suitability of any candidate for any
service. Therefore, the powers conferred by Rule 7 fully justified the
, prescription of the minimum eligibility condition interms of clause 10 of
the Notification. [819-D-E-F]
H
794 SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

1.3. It will not be proper to any other authority to confine the
A
High Court within any limits and it is, therefore, that the evolution of
the procedure has been left to the High Court itself. When a high
powered constitutional authority is left with such power and it has
evolved the procedure which is germane and best suited to achieve the
object, it is not proper to scuttle the same as beyond its powers.
B [819-G-H, 820-AI

Union of India and Ors. v. Kali Dass Balish & Anr., [200611 SCC
779, relied on.

1.4. Under the scheme of the Indian Constitution, the High Court
c is vested with the entire administration of the subordinate judiciary
under Arts. 233, 234 and 235 of the Constitution of India. The High
Court is vested with the power to see that the high traditions and
standards of the judiciary are maintained by the selection of proper
persons to man the subordinate judiciary. (820-B-CI
D
State of Bihar & Anr. v. Balmukund Sah & Ors., (20001 4 SCC 640,
followed.

2. Interview is the best mode of assessing the suitability of a
candidate for a particular position. While the written examination will
E testify the candidates' academic knowledge, the oral test alone can
bring out or disclose his overall intelectual and personal qualities
which are also essential for a judicial officer. (820-F-GI

3.1. Executive instructions can always supplement the Rules which
may not deal with every aspect of a matter. Even assuming that Rule
F 7 did not prescribe any particular minimum, it was open to the High
Court to supplement the Rule with a view to implement them by
prescribing relevant standards in the advertisement for selection.
(824-F-GI

Sahkari Ganna Vikas Samiti ltd. v. Mahabir Sugar Mills (PJ Ltd.,
G [1981] 4 SCC 149; Mohan Kumar Singhania & Ors. v. Union of India &
Ors., [19921 Suppl. SCC 594; Delhi Bar Association v. Union ofIndia Ors.,
12002110 SCC 159; State of Haryanav. Subash Chander Marwaha & Ors.,
119741 3 SCC' 220; Manjeet Singh, UDC & Ors. v. Employees State
Insurunce Corporation & Anr., 11990] 2 SCC 367; Rajesh Sood v.
H Director- (Jenera/, Employees State Insurance Corporation, (1985) 2
K.H. SlRAJ v. HIGH COURT OF KERALA 795

Service Law 699; Union of India & Anr. v. Amrik Singh & Ors., (1994] A
1 SCC 269; Jasbir Singh & Ors. v. State of Punjab & Anr., [2002] l SCC
124; State of Haryana v. Subhash Chander Marwaha & Ors., (1974] 3
SCC 220 and Madhya Pradesh Public Se,rvice Commission v. Navnit
Kumar Potdar & Anr., (1994] 6 SCC 293, referred to.
.. 4.1. There were no eligible reserved candidates available for B
filling up certain slots from all the reserved candidates, 37 of them
available among the 88 eligible candidates had already been given
place above Slot No. 60 and there was not a single reserved candidate
available to fill up slots 60 etc. Therefore, under Rule 15, the slots had
mandatorily to be filled up by open merit candidates. It is not possible C
for the Government to keep those vacancies unfilled particularly, when
there was a total of 70 vacancies to be filled up and open merit
candidates were also available. Non-filling up of those vacancies by
open merit candidates would have resulted in violation of rule 15 of
the Rules. (827-G-H, 828-A]
D
4.2. Jn fact, the Division Bench of the High Court had gone into
this aspect and examined this matter with reference to Rules and found
that there was no departure from Rules 14 to 17 in the preparation
of the select list. Since the appellants/petitioners are not eligible
candidates, they are not entitled to constest the validity of the list on
this ground. [828-A-B] E
5.1. The appellants/petitioners, in any event, are not entitled to
any relief under Art. 226 of the Constitution of India for more reasons
than one. They had participated in the written test and in the oral test
without raising any objection. They knew well from the High Court's
Notification that minimum marks had to be secured both at the written F
test and in the oral test. [828-G-H]

Remany v. High Court of Kerala, (1996) 2 KLT 439, referred to.

5.2. The appellants/petitioners having participated in the interview,
it is not open to them to turn round thereafter when they failed at the G
interview and contend that the provision of a minimum mark for the
interview was not proper. Therefore, the writ petition filed by the
appellants/petitioners should be dismissed on the ground of estoppel.
• The decision of the High Court holding to the contrary is per incuriam .
[829-D-E, 830-C] H
796 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Madan Lal & Ors. v. State of J & Kand Ors., (1995) 3 SCC 486,
relied on.

6. The writ petitions have also to fall on the ground of absence
of necessary parties in the party array. Though the appellants/petitioners
contend that they are only challenging the select list to a limited extent,
B acceptance of their contention will result in a total re-arrangement of
the select list. The candidates will be displaced from their present
ranks, besides some of them may also be out of the select list. It was,
therefore, imperative that all the candidates in the select list should
have been impleaded as parties to the writ petitions as otherwise they
C will be affected without being heard. Publication in the newspaper does
not cure this defect. In such cases, resort cannot be made to Rule 148
of the Kerala High Court Rules. That Rule can be applied only when
very large number of candidates are involved and it may be not able
to pin point those candidates with details. Hence, the writ petitions
have to fail for non-joinder of necessary parties also. (830-D-E-F)
D
7. Since the appellant has chosen to file appeals only against the
decision in Writ Appeal filed by himself and has not chosen to file any
appeal against the decision in the other appeals, the decision therein
has become final and, therefore, operates as res judicata. (831-B-q
E
8. The appellants/petitioners could not secure even the minimum
of 30% marks prescribed by the High Court. The five Judges including
the Chief Justice who had interviewed the candidates in an objective
way, have found these appellants/petitioners as not suitable for the job
and, therefore, not awarded them even the minimum marks required
F in the oral test. There is no mala fide or bias attributed to the selection
committee. (831-D-E(

9. When the Constitutional mandate is that the High Court should
perform its duty in having the best available talent chosen for the
subordinate judiciary, it is not possible to dilute the standards by any
G
process. It is only this mandate of the Constitution, that the select
committee in this case has performed and found the appellants/
petitioners unsuitable. (831-F-G(

CIVIL APPELLATE JURlSDICTiON . Civil Appeal Nos. 2539-2540
H of 2005.
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.) 797

From the Judgment and Order dated 1.3.2005 of the High Court of A
Kerala at Emakulam in W.A. No. 1496/2004 and 1584/2004.

L. Nageswara Rao, Sr. Adv. Haris Beeran, Radha Shyam Jena,
E.M.S. Anam and C.K. Sasi, Advs. with him for the appellant in C.A. 2539-
2540/2005.
B
T.L.V. Iyer, U.U. Lalit, Sr. Advs., Vipin Nair, P.B. Suresh, V.K. Biju
for M/s. Temple Law Firm, K.R. Sasiprabhu, Roy Abraham, Ms. Seema
Jain and Himinder Lal, for RR- I.

P.V. Dinesh, Sindhu T.P., Jogy Scaria and Sanjay Misra, in SLP (C) C
NO. 14140-14141/2005.

Ms. Malini Poduval, E.M.S. Anam, for RR-3 in CA No. 3377-3378/
2005 Advs., with them for the Respondents.

The Judgment of the Court was delivered by
D

DR. AR. LAKSHMANAN, J. : Mr. K.H. Siraj is the appellant in
Civil appeal Nos. 2539-2540 of 2005. Aggrieved against the judgment and
final order d11ted 1.3.2005 passed by the High Court of Kerala in Writ
Appeal Nos. 1496 & 1584 of 2004 whereby the Division Bench by its E
judgment and order allowed the appeals filed by the respondent-High Court
of Kerala, set aside the judgment of the learned single Judge and held that
the selections and appointments made were regular in all respects.

Mr. C.T. Sivanandan and Mr. Shahjahan M. are the appellants in Civil F
appeal Nos. 3377-3378 of 2005. Aggrieved against the judgment dated
1.3.2005 in Writ appeal No. 1584 of 2004 and O.P. No. 6784 of 2002 of
the High Court of Kerala, they filed the above appeals by which the
Division Bench set aside the judgment of the learned single Judge.

Special Leave Petition(c) Nos. 14140-14141 of 2005 were filed by Mr. G
V.R. Manu Manaswini against the common impugned judgment dated
1.3.2005 passed in W.A.No.1497 of 2004 and W.A.No.1719 of 2004
whereby the Division Bench by its final order allowed Writ Appeal No.
1497 of2004 filed by the High Court ofKerala and dismissed Writ Appeal
No. 1719 of 2004 filed by the appellant herein Mr. V.R. Manu Manaswini. H
798 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A The short facts are as follows:

The High Court of Kerala by its Notification dated 26.3.2001 invited
applications for the appointment to the post of Munsiff-Magistrate in the
Kerala Judicial Services in the pay scale of Rs.2500-4000. The relevant part
of the Notification reads as under:
B
THE HIGH COURT OF KERALA

No. B4-14037/2001 Kochi 682 031

c Dated:26.3.2001

NOTIFlCA TION

Applications are invited in the prescribed form from qualified candidates
for appointment to the post of Munsif-Magistrate in the Kerala Judicial
D Service.

1. Scale of pay of the post Rs.2500-4000 (under revision)

2. Probable number of vacancies 70 (53 candidates to be selected
E by direct recruitment from the Bar and 17 by recruited by
transfer)

3. Methods of recruitment:

(i) Direct recruitment from the Bar
F
(ii) Recruitment by transfer.

Selection shall be after holding examinations. written and oral. The
written examination shall be held on I Ith and 12th August, 2001.
G
4. Qualifications:

(i) Direct recruitment. ......................... .
•
(ii) Recruitment by transfer. ......................... .
H
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 799

Note:-..................................................... .. A
Feeder categories of offers for recruitment by transfer:

(i)
B
(ii) ............................................. .

(iii)

(iv)
(v) .............................................. c
(vi)

(vii) ............................................. .

(viii) ............................................. .
D
5. Age limit (i) Direct recruitment

Note.
E
(I) ............................................................................................

(2) .......................................................................................... ..

(ii) ........................................................................................... .
'
6. Reservation of appointment- The Rules relating to reservation F
of appointment for Backward Classes, Scheduled Castes and
Scheduled Tribes contained in Part II of the Kerala State and
Subordinate Services Rules, 1958 (Rules 14 to 17) shall apply
to appointment by direct recruitment.
G
7. Training ............................................................................... .

8. Probation .............................................................................. .
-- 9. Tests ..................................................................................... .
H
800 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A 10. Scheme of written and oral examinations -

(I) Written examination~- The written examination shall consist
of the following four papers carrying a maximum of 100
marks each. The time for each paper shall be two and a half
hours.
B
Paper I ........................................................................................ ..

Paper II ........................................................................................ ..

c Paper III

Paper IV

(2) Oral Examination : - There shall be an oral examination
carrying a maximum of 50 marks for deciding the candidate's
D general knowledge, grasp of general principles oflaw, analytical
ability and suitability for appointment as Munsif-Magistrate.

(3) Only candidates who secure not less than 35 per cent marks
in each of the papers of the written examination with an overall
E minimum of 45 per cent of the total marks of written
examination and 30 per cent of the marks for the oral
examination shall be eligible for appointment provided that
the minimum marks required for pass in each paper of the
written examination shall be 30 per cent with an overall I
minimum of 35 per cent of the total marks for candidates
F
belonging to Scheduled Castes/Scheduled Tribes. Fraction of
half or more than half shall be regarded as full mark and less
than half shall be ignored.

(4) No candidate who has not secured the minimum marks
G prescribed above in the written examination shall be called for
oral examination.

(5) fhc marks secured by the candidates at the oral examination
shall be added to the total marks secured by them at the
H written examination and the names of all those candidates
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 801

shall be arranged in the respective lists on the basis of the A
total marks secured by them.

11. Application form and application fee - .................................. .

12. Certificates/Documents - ...................................................... .
B
(i) ..................................................................................... .

(ii) ................................................................. ,.................. .

"Certified that Shri/Smt. ... .. .. ..... .. ... ... .. .. .... .. ... .. .... ... .. .. ... .. ... .. . has C
been actually practising an an ....................... Court since and that
his/her character and conduct are/were

Station: Signature, Name & Designation
Date: of the presiding Officer"
D
Pursuant to the above Notification, the appellants/petitioners herein
submitted their applications. Written test was held in the month of August,
2001. Thereafter they were called for an interview to appear before the Board
consisting of five Hon 'ble Judges including Hon 'ble the Chief Justice on
17.12.2001. The select list was issued by the High Court on 7.2.2002. The E
appellants filed writ petition praying for quashing the select list insofar as
it is contrary to the principles and Rules relating to reservations. They also
moved an application f9r stay to stay the training and appointment of
candidates from the select list till the disposal of the writ petition. The learned
single Judge passed an order on 16.1.2004 in I.A.No. 425 of 2004 to the F
effect that the appointments, ifany, will be subject to the result of the original
petition. On 23.2.2004, the High Court commences the training of the last
20 candidates in the select list. The learned single Judge, by his order dated
6.8.2004, disposed of the .original petition declaring that the decision to fill
up the candidates appearing in S.Nos. 60,62,64,66,68 and 70 in the select
list from open merit candidates as illegal and consequently restrained G
respondent Nos. 1 & 2 (High Court of Kerala and State of Kerala) from
filling up the above posts from the select list.

The High Court preferred the appeal being W.A.No.1496 of 2004 on
9.8.2004 against the judgment of the learned single Judge. The Division H
802 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Bench by its interim order dated 12.8.2004 admitted the appeal and stayed
the order of the learned single Judge. The appellant preferred Special Leave
Petition(c) No.17535 of 2004 before this Court against the interim order
dated 12.8.2004. This Court on 25.8.2004 issued notice and stayed the
operation of the impugned order. This Court disposed of the above special
leave petition on 1.11.2004 after recording the statement of the counsel for
B the respondents. The order reads thus:

"Delay condoned.

The petitioner herein has agreed that by the refusal to grant interim
c order by the appellate Bench of the Kerala High Court, he has filed
this SLP after issuance of notice. Respondents are represented
herein. We find that the learned counsel appearing for the contesting
respondents Mr. C.S. Vaidyanathan, learned senior counsel and Mr.
Krishnana Venugopal, learned counsel have stated before this Court
that in the event of writ appeal being allowed, their appointment
D being quashed and they will not claim equity on the ground that they
have jointed the service earlier.

Recording the above statement, we think it is not
necessary to entertain this petition hence this special leave
E petition is disposed of.

Sd/- Sd/-
(Ganga Thakur) (Prem Prakash)
PS to Registrar Court Master
F
The Division Bench of the High Court by its final judgment dated
I .3 .2005 allowed the appeal filed by the High court, set aside the judgment
of the learned single Judge and held that the selections and appointments
made were regular in all respects.

G We heard Mr. L. Nageswara Rao, learned senior counsel ably assisted
by Mr. Haris Beeran, Mr. Radha Shyam Jena, Mr. E.M.S. Anam and Mr.
C.K. Sasi, learned counsel appearing for the appellants. We also heard Mr.
T.L.V. Iyer, learned senior counsel ably assisted by Mr. Vipin Nair, Mr.
P.B. Sursh, Mr. V.K. Biju, learned counsel and Mr. K.R. Sasiprabhu,
H learned counsel, Mr. P.V. Dinesh, learned counsel and Mr. U.U. Lalit,
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.) 803

learned senior counsel ably assisted by Mr. Roy Abraham for the respondents. A
The arguments of Mr. L.N. Rao, learned senior counsel, was adopted
by counsel appearing for the other appellants and the arguments of Mr.
T.L.V. Iyer, learned senior counsel, was adopted by the other counsel
appearing for the respondents.
B
Mr. Siraj, appellant in C.A.Nos. 2539-2540 of2005 belongs to Muslim
Community (OBC), the first appellant in C.A.Nos. 3377-3378 of 2005 is
Scheduled Caste candidate and the second appellant belongs to Muslim
Community(OBC) and the third appellant belongs to Hindu Nadar Community
(OBC). The petitioner in S.L.P. (C) Nos. 14140-14141 of 2005 is a C
Scheduled Caste candidate.

Kerala Judicial Service Rules, 1991 (hereinafter referred to as "the
Rules") were made in exercise of the powers conferred by Articles 234 and
23 5 of the Constitution of India and sub-section( 1) of Section 2 of the Kerala
Public Services Act, 1968 (19 of 1968). Rule 7 of the Rules reads thus:
D

"7. Preparation of lists of approved candidates and reservation of
appointments-

(1) The High Court of Kerala shall, from time to time, hold E
examinations, written and oral, after notifying the probable
number of vacancies likely to be filled up and prepare
a list of candidates considered suitable for appointment
to category 2. The list shall be prepared after following
such procedure as the High Court deems fit and by F
following the rules relating to reservation of appointments
contained in rules 14 to 17 of Part II of the Kerala State
and Subordinate Services Rules, 1958."

(2) The list consisting of not more than double the number
of probable vacancies notified shall be forwarded for the G
approval of the Governor. The list approved by the
Governor shall come into force from the date of the
approval and shall remain in force for a period of two
years or until a fresh approved list is prepared, whichever
is earlier." H
804 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Sub-clause ( 1) of Rule 10 of the Rules reads as under:

Qualifications -

(I) No Advocate shall be eligible for appointment to category
2 unless he is having practice at the Bar for a period of not
B less than five years and has not completed 35 years of age
on the first day of January of the year in which applications
for appointment are invited.

Rules 14 to 17 of the Kerala State and Subordinate Services Rules,
c 1958 read as under:

"( 14) Scheduled Castes and Scheduled Tribes mean the Castes and
Tribes declared as such by the President of India under Article
341(1) and 342(1) of the Constitution of India and other
Backward Classes mean the classes declared as such by the
D State Government under Article 16(4) of the Constitution of
India. Lists of such castes, tribes and classes, so declared are
included as Lists I, II and III respectively in the Schedule to
this part.

E (15) "Service" means a group of persons classified by the State
Government as a State or a Subordinate service as the case
may be.

Note : Where the context so requires, 'service' means the period
during which a person holds a post or a lien on a post or is member
F
of a service as above defined.

(16) "Special Rules" shall mean the rules in Part III applicable to
each service or class of service.

G (17) The Kerala Civil Services (Classification, Control and Appeal)
Rules, the rules regulating the pay of the services issued from
time to time, the Government servants' Conduct Rules, the
Travancore Service Regulations, the Cochin Service
Regulations, the Fundamental Rules, the Madras leave Rules,
H 1933, Kerala Service Rules and the pension rules for the time
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 805

being in force shall, in so far as they may be applicable A
and except to the extent expressly provided in those rules
govern members of every service in the matter of their pay,
allowances, leave, leave salary, pension and other conditions
of service:

Provided that the said rules and regulations shall in their
B
applications to the members of the Secretariat Staff of the Governor
be construed as if the functions of the State Government under those
rules and regulations were the functions of the Governor."

INTERPRETATION OF THE RULES c
According to Mr. L.N. Rao, Rule 7 of the Rules have to be interpreted
in the following manner:

High Court of Kerala shall hold examination written and oral and
prepare a list of suitable candidates for appointment to category 2. The
D
wording written and oral means the suitability of a candidate eligible for
appointment has to be considered by the aggregate marks of written
examination and oral examination. The legislative intention is to take the
aggregate marks of both written examination and oral examination to decide
the suitability of the candidate. List has to be prepared after following such E
a procedure as the High Court deems fit. Procedure means the manner of
doing things and not substantive. Fixing a separate minimum cut off marks
is not procedural which is an additional eligibility for the post which is
contrary to rule 7. Rule 7 is silent as to the fixation of cut off marks which
is for relaxation from time to time for the purpose of reservation. The
F
wording procedure deems fit does not confer any power on the selection
Authority so as to take away a right provided elsewhere, reported in Raja
Ram Mahadev Parjapee's case, 1962 Supp (l)SCR 739 at 749 followed in
Babau Nagar & Ors. v. Sree Synthetic reported in [1984] Supp SCC 128.
The selection authority cannot follow any procedure not in violations of the
Rule of reservation. G

Clause I 0 of the Notification deals with the Scheme of written and
oral examination. The marks prescribed for written examination is 400 and
50 for oral examination. The written examination consists of four papers of
I 00 marks each. For each paper tWo and a half hours duration was prescribed. H
806 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A As per clause I 0(3) of the Notification, the candidates who secure not
less than 35% marks of each of the papers of the written examination with
an overall minimum of 45% of the written examination and 30% of the marks
for the oral examination shall be eligible for appointment provided that the
minimum marks required for pass in each paper of the written examination
shall be 35% with an overall minimum of 35% of the total marks for
B candidates belonging to SCs/STs. Fraction of half or more than half shall be
regarded as full marks and less than half shall be ignored.

Clause 10(4) of the Notification stipulates that no candidate who has
not secured the minimum marks prescribed above in the written examination
C shall be called for oral examination. Clause I 0(5) of the Notification states
that the marks secured by the candidates at the oral examination shall be
added to the total marks secured by them at the written examination and the
names of all those candidates shall be arranged in the respective lists on the
basis of the total marks secured by them.

D The appellant in C.A.Nos. 2539-2540 of 2005 had obtained a total of
213 marks out of which 200 marks in written examination and 13 marks in
oral examination. The first appellant in C.A.Nos. 3377-3378 of 2005 who
had secured a total of 162 marks out of which 150 marks in written
examination and 12 marks in oral examination. The second appellant who
E had secured a total of 208 marks out of which 195 marks in written
examination and 13 marks in oral examination. The third appellant who had
secured a total of259 marks out of which 245 marks in written examination
and 14 marks in oral examination.

F The petitioner in S.L.P. ©Nos. 14140-14141 of2005 had obtained a
total of 321.5 marks out of which 217.5 marks in written examination and
14 marks in oral examination.

Besides the fact that the appellants are reserved category candidates
they were thrown out from the zone of consideration on the ground that
G they had not secured 30% marks in interview. The respondents and other
candidates who had been selected only because they had got 30% marks
in interview irrespective of the facts that the total marks of those candidates
are less than the marks obtained by the appellants.

H The preparation of the Select List was challenged on the ground that
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 807

Rules 14 to 17 of KSSSR Part II had not been complied since the selection A
was against the Rules of reservation and on the ground of illegal
prescription of cut off marks in oral examination made by the first
respondent, the selection agency without statutory sanction.

More than 1800 candidates have applied of which 1292 applicants
were found valid. 118 candidates have passed in written examination of
B
which 88 were passed in the interview and select list was prepared among
these 88 candidates.

No supplementary list was prepared by the first respondent with
respect to the reserved category candidates. The reserved category candidates c
who scored sufficient marks to be considered in the merit list were placed
in the reserved quota. They have to be placed in the merit list. The reserved
vacancies are filled up from the open merit candidates.

According to Mr. L.N. Rao, the following questions which are posed
for the consideration of this Court in these ~ppeals/petitions are as under:
D

1. In the absence of specific legislative mandate under rule 7(i)
of the Kerala Judicial Service Rules, 1991 prescribing cut off
marks in oral examination whether the fixing· of separate
minimum cut off marks in the interview of further elimination E
of candidates after a comprehensive written test touching the
required subjects in detail in violating of the statute.

2. Whether the select list (Annexure P-2) is prepared in violation
of the principles ofreservation as provided under Rules 14 to F
17 of the Kerala State Subordinate Service Rules, 1958?

3. Whether the first respondent-High Court has the power to
decide the reserved post are to be de-reserved to carry
forwarded in the absence of a decision taken by the government
in~~~ G
4. Whether Annexure P-2 List is liable to be strike off at its
entirely?

Adverting to the first question, Mr. Rao submitted as follows: H
808 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A I. Annexure P-1 is the Notification dated 26.3.2001 in which
Rule 10(3) provides that only candidates who secure not less
than 35% marks in each of the papers of the written
examination with an overall minimum of 45 % of the total
marks of written examination and 30% of the marks for the
oral examination shall be eligible for appointment provided
B that the minimum marks required for pass in each paper of
the written examination shall be 30% with an overall minimum
of 35% of the total marks for candidates belonging to
scheduled castes/scheduled tribes. Fraction of half or more
than half shall be regarded as full mark and less than half
c shall be ignored.

2. Method of conducting written test is a well known method
for screening the candidates for the purpose of interview.
Interview was conducted for 118 candidates who had passed
in the written examination out of which 9 Muslim candidates
D and 4 SC/ST candidates and one Nadar Community candidate
participated.

For the above proposition, learned senior counsel placed reliance on the
following judgments of this Court:
E I. P.K. Ramachandra Iyer & Ors. v. Union of India & Ors., [1984]
2 sec 141

2. Umesh Chandra Shukla v. Union of India, [1985] 3 SCC 72

F 3. Durga Charan Misra v. State of Orissa, [1987] 4 SCC 469.

4. Dr. Krishna Chandra Sahu & Ors. v. State of Orissa & Ors.,
[1995] 6 sec 1

5. Praveen Singh v. State of Punjab, [2000] 8 SCC 633
G 6. State of Punjab v. Manjith Singh, [2003] 2 SCC 559

7. Inder Prakash Gupta v. State ofJ & K & Ors., [2004] 6 SCC 786

In P.K. Ramachandra Iyer & Ors. v. Union of India & Ors. (supra),
H this Court held as under:
K.H. SIRAJ v. HIGH COURT OF KERALA (LAKSHMANAN, J.] 809

"Once an additional qualification of obtaining minimum A
marks at the viva voce test is adhered to, a candidate who may
figure high up in the merit list was likely to be rejected on the
ground that he has not obtained minimum qualifying marks at
the viva voce test... ......... This was impermissible and contrary
to the Rules and the merit list prepared in contravention of
the Rules cannot be sustained."
B

In Umesh Chanda Shukla v. Union ofIndia (supra), it has been held that the
Selection Committee had no power to prescribe the minimum marks which
a candidate should obtain in the aggregate different from the minimum
already prescribed by the Rules in its Appendix. In the instant case, the Rule C
is silent as to the fixation of cut off marks in oral examination. Prescription
of cut off marks in oral examination for the purpose of elimination following
a comprehensive written examination is bad so far it adversely affects
meritorious candidates irrespective of the fact of reservation.

Durga Charan Misra v. State of Orissa (supra) was a case relating to D
the selection and appointment of Munsiffs in the State of Orissa, where this
Court held that prescribing of minimum marks for viva voce test could not
be justified as the Rules do not prescribe minimum marks for viva voce test.
It was also observed by this Court in paragraph 12 of the said judgment that,
E
"in the light of these discussions, the conclusion is inevitable that the
commission in the instant case. also has no power to prescribe the minimum
standard at viva voce test for determining the suitability of candidate."

In Dr. Krishna Chandra Sahu & Ors. v. State of Orissa & Ors.,
(supra), this Court observed as under: F
"The members of the Selection Board or for that matter any
other Selection Committee, do not have the jurisdiction to lay down
the criteria for selection unless they are authorised specifically in
that regard by the rules made under Art. 309. It is basically the
G
function of the rule making authority to provide for the basis for
selection."

So in the instant case, Rule 7 of the Kerala Judicial Service Rules did
no_t provide selection criteria for elimination of the candidate by oral
examination after a comprehensive written examination. The first respondent H
810 SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

A has no inherent power to prescribe such a criteria for selection since the
same is arbitrary and illegal.

In this context, the decision of this Court in Praveen Singh v. State of
Punjab, (supra) is very relevant. In that case, the Public Service Commission
invited applications for appointment to the post of Block Development
B Officer and Panchayat Officer. The Public Service Commission conducted a
qualifying written examination for 400 marks of 4 papers and thereafter the
persons who qualified in the wr.itten test was called for an interview of 50
marks and the merit list was prepared on account of the viva voce test only.
The qualifying test becomes meaningless and the propriety of selection only
c on the basis of the interview was challenged. This Court held that viva voce
test as sole basis for selection is not proper. In the instant case, only 118
candidates were got qualified out of 1292 candidates appeared in the written
examination. The written examination consists of 24 legal subjects divided
into four papers of 100 marks each. For each paper, two and a half hours
examination was conducted. A comprehensive written examination touching
D the required subjects in detail which assess the candidate's general knowledge,
intellectual capacity, legal learning and legal grasping. Thereafter conducted
an oral examination fixing cut off marks for further elimination of the
candidates including backward classes, scheduled castes and scheduled
tribes. So the mode of selection procedure is unfair and illegal so far it
considers the interview which figure up I I.I% of the total marks is the sole
E
decisive factor. Such consideration makes the written test meaningless.

Mr. L.N. Rao illustrated the gravity of the situation as follows:

A candidate who secures 350 marks in the written examination and
F obtains 14 marks in the oral examination taken out from the zone of the
consideration where as the candidate secures 180 marks in the written
examination and 15 marks in the oral examination find a place in the merit
list. In the present system, the latter having 43% of marks will outweigh
the former having 65% of marks on account of the illegal fixation of
separate minimum cut off marks in the oral examination. So, the arbitrary
G approach of the first respondent prescribed additional qualification with
regard to the scheme of selection made the written test meaningless and
thereby vitiated the whole process unfair and illegal.

In Praveen Singh v. State of Punjab & Ors., (supra), this Court held
that for appointments viva voce test as sole basis not proper. In paragraph
H
K.H. SI RAJ v. HIGH COURT OF KERALA [LAKSHMANAN;J.] 8 I I

9, this Court observed that the "interview should not" be the only method A
of assessment of the merits of candidates. The vice of manipulation cannot
be rules out in viva voce test. Though interview undoubtedly is a significant
factor in the matter of appointments. It plays a strategic role but it also allows
creeping in of a lacuna rendering the appointments illegitimate. Obviously,
it is an important factor but ought not to be the sole guiding factor since
reliance thereon only may lead to a "sabotage of the purity of the proceedings". B

It was also observed that the freedom for appointing aµthorities to adopt
any procedure for selection cannot be at the cost of fair play, god conscience
and equity.

In the case of State of Punjab v. Manjith Singh (supra), Public Service
c
Commission's power to shortlist candidates for appointment has been
considered. It has been decided that commission can shortlist candidates. But
not by fixing minimum qualifying marks. Commission cannot impose any
extra qualification/standard for maintaining efficient in services.
D
In Indre Prakash Gupta v. State of.! & K & Ors. (supra), this Court
while dealing with the J & K Public Service Commission (Conduct of
Business and Procedure) Rules, 1980 vis-a-vis J & K Medical Education
(Gazetted) Services Recruitment Rules, I 979 held as follows:

"The Public Service Commission is a body created under the E
Constitution. Each State constitutes its own Public Commission to
meet the constitutional requirement for the purpose of discharging
its duties under the Constitution. Appointment to service in a State
r
must be in consonance with the constitutional provisions and in
conformity with the autonomy and freedom of executive action. F
Section 133 of the Constitution imposes duty upon the State to
conduct examination for appointment to the services of the State.
The Public Service Commission is also required to be consulted
on the matters enumerated under Section 133. While going through
the selection process the Commission, however, must scrupulously
follow the statutory Rules operating in the field. It may be that G
for certain purposes, for example, for the purpose of shortlisting;
it can lay down its own procedure. The Commission, however,
must lay down the procedure strictly in consonance with the
statutory Rules. It cannot take any action which per se would be
violative of the statutory Rules or makes the same inoperative for H
812 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A all intent and purport. Even for the purpose of shortlisting, the
Commission cannot fix any kind of cut off marks."

whether the fixing of separate minimum cut off marks in the interview of
further elimination ofcandidates after a comprehensive written test touching
the required subjects in detail is violating of the statute.
B
Mr. L:N. Rao submitted that in the present case, apart from the
candidates belonging to backward classes, SC/ST candidates are also
disqualified for selection by fixing 30% minimum cut off marks for the oral
examination which is arbitrary because unequal are treated alike. Clause
10(3) of the Notification did not contemplate 30% cut off marks in interview
c for SC/ST candidates. Moreover, the selection agency has no inherent power
to prescribe selection criteria. The first respoodent has no authority to
override the legislative intention. The Legislature did not provide criteria for
selection by exclusion of candidates by oral examination. Rule 7 of the
Kerala Judicial Service Rules did not provide a selection criteria bas~d on
D the exclusion of candidates on account of not securing a separate min/mum
cut off marks in the oral examination. Hence, the system followed by the
High Court is in clear violation of the Rules and the principles laid down
by this Court in catena of decisions and also against the norms sugg¢sted
by Shetty Commission with regard to the Judicial Service appointments.

E Whether there is violation of Rules of reservation as contemplated
under Rules 14 to 17 of the KSSSR 1958

For this proposition, the following aspects are to be considered;

1. Clause 6 of the Notification clearly states that "the Rules relating
F
to reservation for appointment for backward classes, scheduled
castes and scheduled tribes contained in Part II of the KSSSR,
1958 (Rules 14-17) shall apply to appointment by direct
recruitment." It is in clear terms the first respondent admitted
that the Rules of reservation shall be followed. Thereby the first
G respondent is estopped from denying the fact that the Rules of
reservation is not necessarily be followed in the event of
sufficient number of reservation, candidates were got qualified
in the selection process. Where a statute requires a particular
formality to be complied with there is no estoppel where such
statutory requirement is violated. In the present system, there is
H
,·
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 813

every chance of illegal elimination. In order to give effect to the A
Rules or reservation, there should be some relaxation in selection
criteria. This aspect has been accepted by this Court in a number
of decisions.

2. The SC/ST community is entitled to 10% reservation and Muslim
community is entitled to 12% reservation under the provisions of B
KSSSR and Rules 14 to 17 of the same are applicable in the instant
case. According to the Select List (Annexure P-2), only five
Muslim candidates and 1 SC/ST candidate were appointed. The
remaining candidates in the list can be appointed in merit or
reservation if followed the Rules in strict sense. The reservation c
roster provided in KSSSR for Muslim candidates are
6, 16,26,30,46,56,66, 76,80,86 and 96.

3. "Backward classes a rational classification recognized by our
Constitution, therefore, differential treatment in standards of
selection are within the concept of equality." [Para 44 in State of D
Kera/av. N.M Thomas, AIR (1976) SC 490]. The reservation
rosters are to be filled up from the reservation candidates alone,
that is reserved for their community (R.K. Sabharwal v. State of
Punjab & Ors., [I 9.95] 2 SCC 745. The reservation rosters are to
be strictly followed as per the Rules. No deviation is permissible E
[Unidh of India v. Virpal Singh, AIR (1996) SC 448]. This Court
held that candidates of reserved category selected on their own
merit are not to be counted as reserved category candidat~s. A
reserved candidate comes in the merit list is to be considered in
merit rather than reservation.
F
4. 82nd Constitution Amendment (2000) provides that nothing in
Article 335 shall prevent the State from making any provision
in favour of the members of the Scheduled Castes and Scheduled
Tribes for relaxation in qualifying marks with respect to
examination/job/promotion. So there should be relaxation in G
selection criteria with respect to reserved candi'dates. The non-
creamy layer section of the Muslim community is socially and
educationally most backward. They cannot be equated with a high
pedestal than the scheduled castes and scheduled tribes. Backward
class is a caste within the ambit of Article 15(4) and Article 16(4). H
814 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A So, the non-creamy layer section of the Muslim community is
allotted 12% reservation by the State of Kerala.

5. In order to fill up reserved quota, the inter se merit of the
reserved candidates has to be taken into account. In State of
Andhra Pradesh v. Vijaya Kumar, AIR 1995 SC 1648, this Court
B held that the reservation is permissible under the Constitution
and that cannot be whittled down in any manner. So, the reservation
is the policy of the State and for which Rules 14-17 of KSSSR are
provided for protecting the constitutional mandate under Art.15.

C 6. What is meant by reservation and the effect of reservation is
much discussed in Ajith Singh & Ors. v. State of Punjab & Ors.,
AIR 1999 SC 2471. Jn paragraph 38, this Court held as under:

"It must be noted that whenever a reserved candidate goes
for selection at the initial level (say level 1) he is not going
D through the normal process but gets appointment to a post
reserved for his group. That is what is meant by reservation."
That is the effect of reservation."

So, the reservation is a legally accepted aspect. Therefore, in the case
of reservation of candidates, there should be relaxation in the selection
E procedure. In the present case, the first respondent did not prepare a
supplementary list consisting the names of the candidates in reservation
quota. For the compliance of Rules 14 to 17 of KSSSR, there should be a
supplementary list as per Kerala Public Service Commission Rules of
Procedure Rules 4(iv) and 12. So supplementary list of candidates coming
F under the reserved categories has to be prepared and the same is to be
considered as part of the rank list for the purpose of filling up of reserved
candidates. Articles 15(4) and 16(4) mandate maximum possible reservation
shall be given to sociaUy educationally backward classes including Scheduled
castes and scheduled tribes in order to bring them in the main stream.
G (7) The Division Bench without any factual foundation relied on the
decision of this Court in State of Bihar v. Bal Mukund Shah, (2004] 4 SCC
640. In that case, this Court discussed the legislative competence of the
State Government under Art.309. It was held that legislation for reservation
in Judicial appointments can only be made after consultation with the High
H Court. In that case, Bihar Government made a legislation prescribing 50%
K.H. SIRAJ v. HIGH COURT OF KERALA (LAKSHMANAN, J.] 815

posts of District Judges under reservation quota without consulting the High A
Court. In the instant case, the High Court has no case that the reservation
is not applicable. Judicial Service Rules of I 991 is made in consultation
with the High Court under Art. 234 of the Constitution of India.

(8) The learned single Judge is of the view that the Select List (Ann. P-
2) can be interfered with only to the extent that the decision to fill up S.Nos. B
60, 62, 64, 66, 70 which are reserved posts from the open merit candidates.
The learned single Judge has observed in paragraph I 0 of his judgment that,
"But under the pretext of shortlisting many qualified candidates were
irregularly and illegally taken out from the zone of consideration for the
reason that they had not obtained qualifying marks in the total examination. C
Annexure P-2 (Select List) published by the High Court is in clear violation
of the provisions of the Rules. So, it is very clear that the procedure adopted
by the first respondent-High Court made the written test meaningless. It can
be seen that the Annexure P-2 list is prepared not as per the merit and rules
of reservation since the open merit candidates are arranged in the reservation
quota. The reservation candidates who come out in merit also placed in the D
reserved quota instead of placing them in the merit list. That is against the
dictum laid down in R.K. Sabharwal's case (supra). The illegality strikes at
the root of appointment cannot be validated. So, it is for the interest of
justice, equity and good conscience the entire list is to be quashed and the
same is to be re-arranged in the order of merit considering the aggregate E
marks secured by the candidate in the written as well as oral examination
strictly following Rules 14 to 17 ofthe KSSSR to secure reservation under
Art. 15(4) of the Constitution of India. The procedure adopted by the first
respondent is not legally valid since statutory requirements have been
violated.
F
£STOPPEL

It is submitted by Mr. L.N. Rao that estoppel is not available to the
respondents inasmuch as the Division Bench itself while allowing the
appeal of the respondent, specially rejecting the contentions of plea of
estoppel in paras 47 and 48 of the impugned judgment. According to Mr. G
Rao, none of the respondents before this Court has neither challenged the
said findings nor filed any cross-appeal in this regard. He would, therefore,
submit that it is impermissible to the respondent to take the plea of estoppel
where they themselves have waived of their right to file cross appeal
challenging the said findings in para 48 of the impugned judgment. He H
816 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A would further submit that there is no plea of estoppel against the violation of
statutory rules. Similarly there cannot be any plea of estoppel against the
Constitution. It is submitted that the appellants/petitioners have approached
this Court against the violation of their fundamental right also being unequal
or treated alike by fixing equal cut off marks for all candidates thereby
violating Arts. 14 & 16 of the Constitution of India. For this proposition,
B Mr. Rao relied on a Constitution Bench decision of this Court in Olga Tellis
& Ors. v. Bombay Municipal Corporation, AIR (1986) SC 180 in which this
Court held that there can be no estoppel against Constitution and that the
Constitution is not only the paramount law of the land but it is the source
and sustenance of all laws. In this regard, he invited our attention to
c paragraphs 28 and 29 of the above decision.

Concluding his elaborate submissions, Mr. Rao submitted that the
prayer of the appellants/petitioners is not to quash the select list published
by the High Court in its entirety and that the select list may be redone on the
basis of the aggregate marks obtained by the candidates in the written and
D oral examination as envisaged in Rule 7(i). It is submitted that by doing this
only 5 or 6 candidates will be affected.

Elaborating. Mr. Rao submitted that if this Court is not inclined to redo
the list as aforesaid, the case of the appellants/petitioners before this Court
be considered on individual basis. The appellants/petitioners are age barred
E and will not be able to attempt another examination. It is stated that there
are 50 vacancies existing and so the interest of the appellants/petitioners can
be protected if this Court issues a direction to accommodate the 5 appellants/
petitioners before this Court which will not cause an:,- prejudice to any of the
respondents.

F Per contra, Mr. T.L. Vishwanatha Iyer, learned senior counsel, appearing
for the respondents made elaborate submissions by way of reply to the
arguments advanced by Mr. Rao. In regard to his main submissions made on
behalf of the appellants in challenge of the decision of the Division Bench
accepting the High Court's appeal and reversing the judgment of the learned
single Judge, Mr. T.L. Vishwanatha Iyer submitted that the selection in
G question was pursuant to the Notification issued by the High Court of Kerala
on 26.3.2001 notifying 70 vacancies of Munsif Magistrates to be filled up.
We have alread:,- reproduced the Notification in paragraphs supra. He
invited our attention to clause I0 of the Notification which prescribed a
scheme of written and oral examination to be taken by the candidate. The
H written examination was to consist of four papers carrying I00 marks each,
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 817

the subjects for which the examinations were to be held being specified in A
the Notification. There was also to be an oral examination carrying 50
marks for deciding the candidate's general knowledge, grasp of general
principles oflaw, analytical ability and suitability for appointment as Munsif
Magistrate. Sub-clause 3 provides that only candidates securing not less
than 3 5% marks in each of the four papers of the written examination with
an overall minimum of 45% of the total marks of the written examination B
and 30% of the marks for the oral examination shall be eligible for
appointment. There was a relaxation of the marks in the written examination
in favour of candidates belonging to .Scheduled castes and Scheduled Tribes.
The rank list is to be prepared of the eligible candidates, i.e. those who
secure the minimum in the written and oral examinations, as stated above,
adding together the marks of the written and oral examinations. The
c
Notification itself stated that the candidates belonging to the Scheduled
Castes and Scheduled Tribes will be given a pre-examination training. This
was done with a view to equip them for the examination.

It is pertinent to notice that Rules of 1991 were formulated after the D
integration of the Civil and Criminal wings of the Judiciary and formation
of the cadre of Munsif Magistrate at the entry point. Two earlier selections
had been made in 199 I and 1998 in accordance with the same procedure as
laid down in the Notification dated 26.3.200 I by prescribing the securing of
minimum marks in the written and oral examinations as a condition of
eligibility. The same procedure was followed in the impugned selection E
also.

It is also pertinent to notice that the prescription of a minimum mark
for the oral examination as a condition of eligibility for appointment was
questioned in the High Court by an aspirant by name Remani, by filing a
writ petition. That writ petition was dismissed by a learned single Judge in F
1996 (2) KL T 439, wherein the learned single Judge upheld the prescription
of a minimum mark for the oral examination as valid and in accordance
with Rule 7 of the Rules. This decision made on the judicial side was
binding on the administrative side of the High Court and was followed in
the subsequent selection in 1998 and in the impugned selection. G
The oral examination in this case was conducted by the Chief Justice
and four seniormost Judges, to whom the marks in the written test were not
available at the time of the interview. The Judges had to assess the suitability
of the candidates for selection as Munsif Magistrate, keeping in mind
various factors. The Judges have awarded marks and found that the appellants H
818 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A have not been able to secure even 30% marks which has been prescribed as
the minimum for eligibility.

Mr. T.L.V. Iyer also pointed out that over 1200 candidates had taken
the written examination and out of them, a total of 118 secured the
minimum marks prescribed for the written examination. These 118 were
B interviewed by the five Judges including the Chief Ju5tice. Of these, 88
secured over 30% marks of the 50 marks prescribed for the oral examination.
88 candidates who were thus successful and eligible to be considered were
arranged in the order of merit following the rules of reservation prescribed
in Rules 14 to 17 of the KSSSR. The list so prepared was forwarded to
C the Government for appointment to 70 vacancies notified.

It was also stated that 88 eligible candidates as aforesaid contained
37 persons belonging to reserved categories like other backward classes,
Scheduled Castes/Scheduled Tribes. Of these, 8 persons got appointed in
the open merit quota and the rest 29 got appointed in the reservation quota.
D 70 persons recommended to be appointed contained all these 37 candidates
including 29 who got selected and ranked in the reservation quota. It may
be mentioned that none of the eligible candidates belonging to the reserved
categories failed to secure appointment and all of them found a place in
the li5t of 70 persons selected for the appointment.

E The select list so prepared in accordance with the reservation Rules
was forwarded to the Government for approval under Rule 7(2) of the
Rules. Government approved the same, after due scrutiny of all aspects and
all the 70 persons have been appointed as Munsif Magistrates after
undergoing the statutory training and are now functioning as Munsif
Magistrates.
F
In this background, two questions raise by Mr. L.N. Rao have to be
considered.

I. The prescription of minimum mark for the oral examination as
a condition of eligibility for selection as Munsif Magistrate is not
G authorized by Rule 7 of the Kerala Judicial Service Rules, I991;

2. The select list has not been prepared in accordance with Rules
14 to 17 of KSSR 1958.

H So far as the first submission is concerned, we have already extracted
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 819

Rule 7 in paragraph supra. Rule 7 has to be read in this background and A
High Court's power conferred under Rule 7 has to be adjudged in this basis.
The said Rule requires the High Court firstly to hold examinations written
and oral. Secondly the mandate is to prepare a select list of candidates
suitable for appointment as Munsif Magistrates. The very use of the word
'suitable' gives the nature and extent of the power conferred upon the High
Court and the duty that it has to perform in the matter of selection of
B
candidates. The High Court alone knows what are the requirements of the
subordinate judiciary, what qualities the Judicial Officer should possess
both on the judicial side and on the administrative side since the performance
of duties as a Munsif or in the higher categories of subordinate Judge. Chief
Judicial Magistrate or District Judge to which the candidates may get c
promoted require administrative abilities as well. Since the High Court is
the best Judge of what should be the proper mode of selection, Rule 7 has
left it to the High Court to follow such procedure as it deems fit. The High
Court has to exercise its powers in the light of the constitutional scheme so
that the best available talent, suitable for manning the judiciary may get
selected.
D

What the High Court has done by the Notification dated 26.3 .200 I
is to evolve a procedure to choose the best available talent. It cannot for
a moment be stated that prescription of minimum pass marks for the written
examination or for the oral examination is in any manner irrelevant or not E
having any nexus to the object sought to be achieved. The merit of a
candidate and his suitability are always assessed with reference. to his
performance at the examination and it is a well accepted norm to adjudge
the merit and suitability of any candidate for any service, whether it be the
Public Service Commission (I.A.S., I.A.F. etc.) or any other. Therefore, the
F
powers conferred by Rule 7 fully justified the prescription of the minimum
eligibility condition in Rule 10 of the Notification dated 26.3.2001. The
very concept of examination envisaged by Rule 7 is a concept justifying
prescription of a minimum as bench mark for passing the same. In addition,
further requirements are necessary for assessment of suitability of the
candidate and that is why power is vested in a high powered body like High G
Court to evolve its own procedure as it is the best Judge in the matter. It
will not be proper in any other authority to confine the High Court within
any limits and it is, therefore, that the evolution of the procedure has been
left to the High Court itself. When a high powered constitutional authority
is left with such power and it has evolved the procedure which is gemiane H
820 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A and best suited to achieve the object, it is not proper to scuttle the same
as beyond its powers. Reference in this connection may be made to the
decision of this Court in [2006] 1 SCC 779 wherein an action of the Chief
Justice of India was sought to be questioned before the High Court and it
was held to be improper.

B The very scheme and an1plitude of Rule 7 under which the selection
is made is sufficient answer to the contention of the appellants. Under the
scheme of the Indian Constitution, the High Court is vested with the entire
administration of the subordinate judiciary under Arts. 233, 234 and 235
of the Constitution of India. The High Court is vested with the power to
C see that the high traditions and standards of the judiciary are maintained
by the selection of proper persons to man the subordinate judiciary.

The place of the High Court in the matter of administration of justice
was very elaborately and poignantly delineated by S.B. Majmudar, J.,
speaking for the Constitution Bench in [2000} 4 SCC 640, said that the very
D responsible and onerous duty is cast on the High Court under the
Constitutional scheme and it has been given a prime and paramount
position in this matter, with the necessity of choosing the best available
talent for manning the subordinate judiciary. The repercussions of wrongful
choice is also pointed out in the said judgment.
E It is significant to note that the appellants/petitioners themselves have
not challenged the prescription of minimum cut off marks for the written
examination though if their contention is to be accepted, the prescription
of such minimum cut off will also be equally invalid. Their contention, in
our view, is without any substance and merit.
F
In our opinion, the interview is the best mode of assessing the
suitability of a candidate for a particular position. While the written
examination will testify the candidates' academic knowledge, the oral test
alone can bring out or disclose his overall intellectual and personal qualities
like alertness, resourcefulness, dependability, capacity for discussion,
G ability to take decisions, qualities of leadership etc. which are also essential
for a judicial officer.

We may usefully refer to a decision of this Court in Sahkari Ganna
Vikas Samiti Ltd. v. Mahabir Sugar Mills (P) Ltd., [1981] 4 SCC 149 in
H which this Court observed as under:
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 821

"The object of any process of selection for entry into a public A
service is to secure the best and the most suitable person for the job,
avoiding patronage and favouritism. Selection based on merit,
tested impartially and objectively, is the essential foundation of any
useful and efficient public service. So, open competitive examination
has come to be accepted almost universally as the gateway to public
services.
B

The ideal in recruitment is to do away with unfairness."

c
A system of recruitment almost totally dependent on
assessment of a person's academic knowledge and skills, as
distinct from ability to deal with pressing problems of economic
and social development, with people, and with novel situations
cannot serve the needs of today, much less of tomorrow .... We
D
venture to suggest that out recruitment procedures should be such
that we can select candidates who cannot only assimilate knowledge
and sift material to understand the ramifications of a situation or
a problem but have the potential to develop an original or
innovative approach to the solution of problems. E
It is now well recognised that while a written examination
assesses a candidate's knowledge and intellectual ability, an
interview test is valuable to assess a candidate's overall intellectual
and personal qualities. While a written examination has certain F
distinct advantage over the interview-test there are yet no written
tests which can evaluate a candidate's initiative, alertness,
resourcefulness, dependableness, cooperativeness, capacity for
clear and logical presentation, effectiveness in discussion,
effectiveness in meeting and dealing with others, adaptability,
judgment, ability to make decision, ability to lead, intellectual and G
· moral integrity ................. ,.................................. "

"While we do feel that the marks allotted for interview are
on the high side and it may be appropriate for the Government to
re-examine the question, we are unable to uphold the contention H
822 SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

A that it was not within the power of the Government to provide such
high marks for interview or that there was any arbitrary exercise
of power."

In Mohan Kumar Singhania & Ors. v. Union of India & Ors., (1992)
suppl. 1 SCC 594, S. Ratnavel Pandian, J. speaking for the Bench, observed
B as under:

"Hermer Finer in his textbook under the caption The Theory
and Practice of Modern government states:

"'The problem of selection for character is still the pons
c asinorum of recruitment to the public services everywhere. The
British Civil Service experiments with the interview."

The purpose of viva voce test for the JCS Examination in 1935
could be best understood from the following extract of the Civil
Service Commission's pamphlet:
D
"Viva Voce - the examination will be in matters of general
interest : it is intended to test the candidate's alertness, intelligence
and intellectual outlook. The candidate will be accorded an
opportunity of furnishing the record of his life and education."
E
"It is apposite, in this connection, to have reference to an
excerpt from the United Nations Handbook on Civil Service laws
and Practice, which reads thus:

" .......... the written papers permit an assessment of culture and
F intellectual competence. This interview permits an assessment of
qualities of character which written papers ignore; it attempts to
assess the man himself and not his intellectual abilities."

"This Court in Lila Dhar v. State of Rajas than, [ 1984 J 2 SCC
159 while expressing the view about the importance and significance
G of the two tests, namely, the written and interview has observed
thus:

" .......... .the written examination assess the man's intellect
and the interview test the man himself and the 'the twain shall
H meet' for a proper ;election."
K.H. SIRAJ v. HIGH COURT OF KERALA (LAKSHMANAN).J- 823 -
--... '

The qualities which a Judicial Officer would possess are delineated by A
this Court in Delhi Bar Association v. Union of India & Ors., [2002] 10
SCC 159. A Judicial Officer must, apart from academic knowledge, have
the capacity to 1ommunicate his thoughts, he must be tactful, he must be
diplomatic, he must have a sense of humour, he must have the ability to
defuse situations, to control the examination of witnesses and also lengthy
irrelevant arguments and the like. Existence of such capacities can be B
brought out only in an oral interview. It is imperative that only persons with
a minimum of such capacities should be selected for the judiciary as
otherwise the standards would get diluted and substandard stuff may be
getting into the judiciary. Acceptance of the contention of the appellants/
petitioners can even lead to a postulate that a candidate who scores high in
the written examination but is totally inadequate for the job as evident from
c
the oral interview and gets 0 marks may still find it a place in the judiciary.
It will spell disaster to the standards to be maintained by the subordinate
judiciary. It is, therefore, the High Court has set a bench mark for the oral
interview, a bench mark which is actually low as it requires 30% for a pass.
,The total marks for the interview are only 50 out of a total of 450. The D
prescription is, therefore, kept to the bare minimum and if a candidate fails
\o secure even this bare minimum, it cannot be postulated that he is suitable
for the job of Munsif Magistrate, as assessed by five experienced Judges of
the High Court.

In this connection, reference may be made to the decision in Manjeet
E
Singh, UDC & Ors, v. Employees State Insurance Corporation & Anr.,
(1990] 2 SCC 367 at 371 wherein the Rules did not prescribe any minimum
marks for the interview. The advertisement for the job set a minimum of
40% to the written test and without a minimum for the interview. However,
candidates with less than 40% at the interview were not selected. The F
selection was upheld by this Court relying on a judgment of Punchhi,J in
Rajesh Sood v. Director-General, Employees State Insurance Corporation,
(1985) 2 Service Law 699. In Union ofIndia & Anr. v. AmrikSingh & Ors,,
(1994] 1 SCC 269, though there was no specification in the statutory Rules
regarding the minimum length of service for promotion, such prescription
was laid by administrative instructions. In para 7, this Court said that the G
instructions so issued were not inconsistent with the Rules. Reference may
also be made to a decision of this Court in Jasbir Singh & Ors, v. State of
Punjab & Anr., (2002] 1 SCC 124, in which the relevant Rules did not
spec\fy as to the relevant date for considering the age qualification. The
advertisement, however, fixed a cut off date, which was contended to be H
824 . • SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

.A illegal This Court held that the said prescription was for the purpose of
implementation Of the Rules regarding age.

We may now refer to few decisions cited by Mr. T.L.V. Iyer, learned
senior counsel appearing for the respondents, in support of his contentions.

B In State of Haryana v. Subash Chander Marwaha & Ors., (1974] 3
SCC 220, the Rules specified that a candidate obtaining 45% marks was
eligible for appointment. However, the Government restricted the
appointments to candidates getting over 55%. Candidates who had obtained
less than 55% but over 45% challenged the non-appointment despite existence
c of vacancies, on the ground that all those got over 45% should have been
appointed. This was not accepted by this Court.

It has been held by this Court in Madhya Pradesh Public Service
Commission v. Navnit Kumar Potdar & Anr., (1994] 6 SCC 293 that in a
selection based interview, it was open to the Selecting Board to insist on a
D
higher qualification than that prescribed by the Rules. In that case, five
years' experience was the prescribed qualification. But this Court held that ·
. there was nothing wrong in confining the selection to candidates with
experience of 7% years.

E Thus it is seen that apart from the amplitude of the power under Rule 7
it is clearly open for the High Court to prescribe bench marks for the written
test and oral test in order to achieve the purpose of getting the best available
talent. There is nothing in the Rules barring such a procedure from being
adopted. It may also be mentioned that executive instructions can always
F supplement ,the Rules which may not deal with every aspect of a matter.
Even assuming that Rule 7 did not prescribe any particular minimum, it was
open to the High Court to supplement the Rule with a view to implement
them by prescribing relevant standards in the advertisement for selection.
Reference may be made to' the decision of this Court in State of Gujarat v.
Akhilesh C. Bhargav & Ors., (1987] 4 SCC 482. ·
G
We shall now advert to the decisions relied on by Mr. L.N. Rao :

I. P.K. Ramachandra Iyer & Ors. v. Union ofIndia & Ors., (supra)

H 2. · Umesh Chandra Shukla v. Union of India, (supra)
K.H. SJRAJ v. HIGH COURT OF KERALA [LAKSHMANAN,· J.J-825
. ~

3. . Durga Charan Misra v. State of Orissa, (supra) A
These decisions· do not deal with a situation like Rule 7. Even
otherwise, these decisions are totally distinguishable as was virtually conceded
by the appellants/petitioners' learned counsel as recorded by the High Court
in paragraph 27 of the judgment which reads as under:
B
"Before we examine the rest of the issues, this could be a
. resting point, so as to take notice of the reply made. It has to be
· observed that these_ points hiiblighted practically go unanswered.
Of course, valiant effort had been mad by Mr. Sudhkara Prasad,
learned counsel appearing for the respondent, to salvage the c
situation. He had to agree that the decisions relied on by the learned
Judge, referred to earlier, may not apply on all fours. But the
submission is t.'1at substantial rights cannot at all be circumscribed
by a prescription for adopting a procedure .. When the Rule does
not· give power to the authority to prescribe minimum cut off
marks, the discretion has to be understood as circumscribed.......•....."
D
i This apart, those cases deal with particular situations .based on
interpretation of the Rules concerned in those cases. In Ramachandra Jyer.'s
case (supra}, Rule 14 (paragraph 43 of the judgment) mandated that the
· marks at the written test and the oral examination have to be aggregated E
and the merit list. prepared on the basis of such aggregation of marks.
Therefore, the marks obtained at the written test and the oral test were both
relevant whatever be the percentage, in the preparation of the merit list.
Nevertheless, the examining Board prescribed minimum for viva voce test
and eliminated those who failed to.get the minimum. Resultantly, candidates F
who would have found a place in the rank list based on the aggregate of
the marks for the two tests stood eliminated because they did not get the
minimum in the viva voce test. This was contrary to Rule 14 and that was
the reason why the prescription of minimum marks for viva voce test was
held invalid in Ramachandra Iyer's case (supra). That this is the reason
evident from a reading of paragraph 44 of the judgment where, inter a/ia, G
this Court observed as under: -

"Neither Rule 13 nor Rule 14 no_r any other Rule enables the
ASRB to prescribe minimum qualifying marks to be obtained by
the candidates at the viva voce test On the contrary, the language H
826 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A of rule 14 clearly negatives any such power in the ASRB when it
provides that after the written test if the candidate has obtained the
minimum marks, he is eligible for being called for viva voce test
and final merit list would be drawn up according to the aggregation
of marks obtained by the candidates in the written test plus viva voce
examination."
B
" .... This prescription of impermissible additional qualification
has a direct impact on the merit list because the merit list has to
be prepared according to the aggregate marks obtained by the
candidates at the written test plus viva voce test. Once an additional
c qualification of obtaining minimum marks at the viva voce test is
adhered to, a candidate who may figure high in the merit list was
likely to be rejected on the ground that he has not obtained
qualifying marks at the viva voce test."

The decision is, therefore, based on Rule 14 and the necessity to
D aggregate the marks at the written test and the oral test.

Similar is the question in Durga Charan Misra v. State of Orissa,
(supra) where the decision turned on Rule 18 of the Orissa Judicial Service
Rules. The said Rule is quoted in para 6 of that Judgment and it requires
E the marks obtained at the viva voce test to be added to the marks obtained
in the written examination and merit list to be prepared in accordance with
the aggregate of these two marks. It was, therefore, held that the prescription
of a minimum of 30% at the viva voce test and elimination of candidates
accordingly a counter to this express provision in Rule 18. This case is
F analogous to the decision in P.K. Ramachandra Iyer 's case (supra) and what
is stated earlier as the distinguishing feature of P.K. Ramachandra Iyer 's case
applies equally to this decision as well.

The third case is Umesh Chandra Shukla v. Union of India, (supra). In
that case, the Delhi High Court had made a list of 27 candidates after
G eliminating those who had not obtained the requisite minimum at the test
conducted for the purpose. However, the High Court modified the select list
prepared in accordance with the Rules by awarding moderation marks to
those who did not obtain the prescribed minimum marks at the written test
and the viva voce. This was held to be bad because awarding marks by
H moderation amounted to amendment of the Rules which could not be done
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 827

by the High Court or the Selection Committee. This decision, therefore, A
turned on the interpretation of the Rules involved in that case and violation
thereof by the High Court by adding moderation marks is contrary to the
Rules. This case is also, therefore, distinguishable and has no application to
the case on hand. The learned single Judge relied on these three decisions to
decide against the High Court. Apart from the fact that these decisions are
distinguishable and pertain to the Rules involved in those cases, the learned
B
Judge did not correctly appreciate the amplitude of Rule 7 and the wide
powers conferred on the High Court to evolve its own procedure under the
said Rule.

Rule of Reservation c
Contention No. 2 relates to correctness of the application of the Rule
ofreservation. This point, in our opinion, will ari~e for consideration only if
the first contention of the appellants/petitioners is accepted. If that contention
is rejected, the question of considering this point will not arise. In fact, in D
that event, the appellants/petitioners are not even entitled to question the
correctness of the list, as laid down by this Court in Dr. Umakant Saran v.
State ofBihar & Ors., [1973] l SCC 485 and only those who are eligible or
in the zone of consideration can question the legality or otherwise of a select
list. It is the submission of Mr. T.L. V. Iyer that the Select List has been
prepared fully in accordance with Rules 14-17 of the Rules. The appellants/ E
petitioners' challenge is the filling up of slot Nos. 60, 62, 64, 66, 68 and 70
which come within the reservation slots by candidates in the merit list. This
is misconceived and incorrect. Rule 15(a) & (b) of KSSSR specially mandates
that if candidate belonging to a particular community-OBC, SC/ST is not
available to fill up any particular slot, then it should be passed over and F
filled up by a candidate available from the next reserved community and so
on. If no member of a reserved community is ultimately available for filling
up that slot, that slot should be filled up by an open merit candidate. That is
the position here. There were no eligible reserved candidates available for
filling up the aforesaid slots 60 etc. As mentioned earlier, from all the
reserved candidates, 37 of them available among the 88 eligible candidates G
had already been given place above Slot No. 60 and there was not a single
reserved candidate llvailable to fill up slots 60 etc. Therefore, under Rule
15, the aforesaid slots had mandatorily to ·be filled up by open merit
candidates. It is not possible for the Government to keep those vacancies
unfilled particularly, when there was a total of 70 vacancies. to be filled up H
828 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A and open merit candidates were also available. Non-filling up of those
vacancies by open merit candidates would have resulted in violation of Rule
15. In fact, the Division Bench had gone into this aspect and examined this
matter with reference to Rules and found that there was no departure from
Rules 14 to 17 in the preparation of the list.

B The list so prepared in accordance with the reservation Rules was
forwarded to the Government and the Government, in its tum, examined the
matter again in all its aspects and approved the same.

Mr. L.N. Rao cited the decision in the case of Rajasthan Public
Service Commission & Anr. v. Harish Kumar Purohit & Ors.. (2003] 5 SCC
c 480. He raised the contention that the so called de-reservation had to be
done only by the Government and not by the Selecting authority viz. the
High Court. This question is not relevant in this context. There is no
question of de-reservation so far as the case on hand is concerned for the
reason that it was an application of Rule 15 and the filling up of the posts by
D open merit candidates as required therein. There is no de-reservation involved
at all. The High Court has only followed the mandate of Rule 15.

Mr. L.N. Rao made a further contention based on the above decision
that the de-reservation of any post has to be done by the Government. This
contention, in our view, has also no force. Assuming that this is a case of de-
E reservation, the High Court only forwarded the list to the Government and it
is the Government who approved the same. De-reservation, if any, of the
posts was, therefore, done only by the Government and not by the High
Court. But as stated earlier, the question of de-reservation does not arise, as
this is a case of application of the mandate of Rule 15. In the circumstances,
F the second contentions raised by Mr. L.N. Rao is also incorrect and untenable,
apart from the fact that the appellants/petitioners who are not eligible
candidates are not entitled to contest the validity of the select list on this
ground. Since they are ineligible for appointment, no relief, in any case, be
afforded to them in any event.

G The appellantslpetitioners, in any event, are not entitled to any relief
under Art. 226 of the Constitution of India for more reasons than one. They
had participated in the written test and in the oral test without raising any
objection. They knew well from the High Court's Notification that a minimum
marks had to be secured both at the written test and in the oral test. They
H were also aware of the High Court decision on the judicial side reported in
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 829

Remany v. High Court of Kera/a, I 996 (2) KL T 439. This case deals with A
prescription of minimum qualifying marks of 30% for viva voce test. C.S.
Rajan, J., in the above judgment, observed as under:

" ...... On the basis of the aggregate marks in both the tests,
the selection has to be made. In LC.A.R's case, AIR 1984 SC 541
also the relevant rules did not enable the selection Board to B
prescribe minimum qualifying marks to be obtained by the
candidate at the viva voce test. In the Delhi Judicial Service's case
also (AIR 1985 SC 1351, the rules did not empower the committee
to exclude candidates securing less than 600 marks in the aggregate.
Therefore, in all these cases, the Supreme Court came to the
c
conclusion that prescription of separate minimum marks for viva
voce test is bad in law because under the rules, no minimum
qualifying marks were prescribed."

The High Court also relied on P.K. Ramachandra Jyer's case (supra)
and Umesh Chandra's case (Supra). D
The appellants/petitioners having participated in the interview in this
background, it is not open to the appellants/petitioners to tum round
thereafter when they failed at the interview and contend that the provision
of a minimum mark for the interview was not proper. It was so held by
this Court in paragraph 9 of Madan Lal & Ors. v. State of J & K & Ors., E
[1995] 3 sec 486 as under:

"Before dealing with this contention, we must keep in view
the salient fact that the petitioners as well as the contesting
successful candidates beingrespondents concerned herein, were all
F
found eligible in the light of marks obtained in the written test,
to be eligible to be called for oral interview. Up to this stage there
is no dispute between the parties. The Petitioners also appeared
at the oral interview conducted by the Members concerned of the
Commission who interviewed the petitions as well as the contesting
respondents concerned. Thus the petitioners took a chance to get G
themselves selected at the said oral interview. Only because they
did not find themselves to have emerged successful as a result of
their combined performance both at written test and oral interview,
they have filed this petition. It is now well settled that if a
candidate takes a calculated chance and appears at the interview, H
830 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A then, only because the result of the interview is not palatable to
him, he cannot turn round and subsequently contend that the
process of interview was unfair or the Selection Committee was
not properly constituted. In the case of Om Prakash Shukla v.
Akhilesh Kumar Shukla, [ 1986] suppl SCC 283, it has been clearly
laid down by a Bench of three learned Judges of this Court that
B when the petitioner appeared at the examination without protect
and when he found that he would not succeed in examination he
filed a petition challenging the said examination, the High Court
should not have granted any relief to such a petitioner."

c be dismissed
Therefore, the writ petition filed by the appellants/petitioners should
on the ground of estoppel is correct in view of the above ruling
of this Court. The decision of the High Court holding to the contrary is
in per incuriam without reference to the aforesaid decisions.

The writ petitions have also to fall on the ground of absence of
D necessary parties in the party array. Though the appellants/petitioners
contend that they are only challenging the list to a limited extent,
acceptance of their contention will result in a total re-arrangement of the
select list. The candidates will be displaced from their present ranks,
besides some of them may also be out of the select list of 70. It was,
therefore, imperative that all the candidates in the select list should have
E been impleaded as parties to the writ petitions as otherwise they will be
affected without being heard. Publication in the newspaper does not cure
this defect. There are only a specified definite number of candidates who
had to be imp leaded namely, 70. It is not as if there arc a large unspecified
number of people to be affected. In such cases, resort cannot be made to
F Rule 148 of the Kerala High Court Rules. That Rule can be applied only
when very large number of candidates are involved and it may be not able
to pin point those candidates with details. In our view, the writ petitions
have to fail for non-joinder of necessary parties also.

One more factor has also to be noticed in regard to the civil appeals
G filed by Mr. K.H. Siraj which, in our opinion, is also hit by res 1udicata. His
writ petition in the High Court was O.P. No. 5219 of2002. That was partly
allowed without giving him any relief for a direction for appointment. On
the other hand, the High Court set aside the selection of candidates occupying
Rank Nos. 60, 62, 64, 66, 68, and 70. The High Court filed Writ Appeal No.
H 1496 of2004 before the Division Bench. Mr. K.H. Siraj himselffikd W.A.
K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 83 I

No.1584 of 2004 against that part of the impugned judgment which was A
against him. Candidates occupying Rank Nos. 60 etc. who are affected by
the judgment had themselves filed W.A.Nos. 1498, 1510, 1526, 1527, 1541,
1588 and 1574 of 2004. All these appeals filed by the High Court and by
these parties were allowed setting aside the judgment of the learned single
Judge. Mr. K.H. Siraj's appeal (W.A. 1584/2004) was dismissed. However,
Mr. Siraj has chosen to file appeals only against the decision in W.A.No. B
1496/2004 filed by the High Court and W.A. No. 1584 of 2004 filed by
himself and has not chosen to file any appeal against the decision in the
other appeals, W.A.No. 1498 of2004 etc. filed by the affected parties. The
decision therein has become final and, therefore, operates as res judicata
and Mr. K.H. Siraj's appeal is to be dismissed as such. c
Mr. L.N. Rao, concluding his arguments, sought to the argument of
sympathy. The flimsy plea was made by him in this regard. We are unable
to countenance the plea of sympathy. The appellants/petitioners could not
secure even the minimum of 30% marks prescribed by the High Court. The
five learned Judges including the Chief Justice who had interviewed the D
candidates in an objective way, have found these appellants/petitioners as
not suitable for the job and, therefore, not awarded them even the minimum
marks required in the oral test. As pointed out earlier, there is no ma/a fide
or bias attributed to the selection committee. It is irrelevant to say that they
failed to make only one or two marks when it is evident that they were
E
not able to score even the very low minimum of 30% marks prescribed for
the oral test.

Likewise, the request of Mr. L. N. Rao for relaxation of the age
qualification in future selection in so far as the appellants/petitioners are
concerned is again not a valid request. This is a case where the High Court F
has gone strictly by the Rules and found the appellants/petitioners as
unsuitable. When the Constitutional mandate is that the High Court shou Id
perform its duty in having the best available talent chosen for the
subordinate judiciary, it is not possible to dilute the standards by any
process. It is only this mandate of the Constitution, that the select
committee in this case has performed and found the appellants/petitioners
G
unsuitable. There is no case for any relaxation of age in future recruitment
to be given so far as the appellants/petitioners are concerned.

Mr. Uday U. Lalit, learned senior counsel appearing for respondent
Nos. 6, 7, 8 & 9 in C.A. Nos. 2539-2540 of 2005. He also advanced the H
832 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A similar arguments as that of Mr. T.L.V. Iyer. He also submitted that since
malajides is not alleged, the selection made by five Hon'ble Judges of the
High Court should not be interfered with. He also advanced the argument
on Rule 7. On the question of equality, Mr. Uday U. Lalit submitted that
the list was published in the year 2002 and that is more than four years
aftef and that the respondents were selected and once they selected, they
B seized to be advocates and that since then they are working and, therefore,
to put the clock back completely at this distance of time is not proper. Mr
Lalit also placed reliance on the decision of this Court in Manjeet Singh,
UDC & Ors. v. Employees State Insurance Corporation & Anr., (supra)
which in tum refers to the views expressed by Punchhi,J (as he then was)
c in decision Rajesh Sood v. Director-General, Employees State Insurance
Corporation (supra).

The Division Bench summoned the original files and verified as to
whether proper procedure has been followed in the pattern of awarding of
marks and prepared of the lists. The learned Judges in paragraph 50 of their
D judgment observed as under:

" .... The compilation of records are immediately done, and at
every stage, the senior Judges including the Chief Justice, who
were in office, had been closely monitoring the selection process.
The details of marks awarded in the written and oral examinations
E were available, as arising from the selection process. Details of
candidates with permissible amount of secrecy and the marks
respectively secured by them were available, under the signature
of the Chief Justice and his companion Judges. The records reveal
that principles of rotation have been borne in mind."
F For the foregoing reasons, we are of the opinion that the appellants
in the civil appeals and petitioners in the special leave petitions are not
entitled to any of the reliefs prayed for as they have not made out any valid
or sustainable ground. We, therefore, set aside the judgment passed by the
learned siii.gle Judge and affirm the judgment passed by the Division Bench
G which, in our opinion, does not warrant interference.

Accordingly, the civil appeals and the special leave petitions are
dismissed. There shall be no order as to costs.

S.K.S. Appeals and Special Leave
H petitions dismissed.