# Mahesh Kumar Singh & Anr v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 881
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Writ A No.7994 of 2022
- **Bench:** Mrs. Sunita Agarwal, Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-singh-anr-v-state-of-u-p-ors-49283
- **Pages:** 13

## Headnote

Civil Law - U.P. Higher Judicial Service
Rules, 1975- prescription of minimum passing
marks
in
the
interview-upheld-Petitioners
participated in interview-had knowledge of
prescribed minimum pass marks-cannot turn
around and contest the minimum prescribed
marks.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,921 of 42,228. This is a partial read: ask again with offset=39921 for what follows._

9 All. Mahesh Kumar Singh & Anr. Vs. State of U.P. & Ors.
881
sustainable as it de-hors the rules and liable
to be set aside.

13. In the present case too,
petitioner was retired on 30.04.2018
thereafter disciplinary proceeding was
initiated vide order dated 07.07.2021 and
charge sheet was served upon him on
07.04.2022 i.e. undisputedly disciplinary
proceeding was initiated after retirement
of the petitioner whereas Regulations
1984 does not provide any disciplinary
proceeding against a retired employee.
Even in case of adoption of rules
applicable to the State Government
employees
under
Regulation
43
of
Regulations 1984, once the service is not
pensionable under Regulation 47 of
Regulations 1984, no action can be taken
against him under Article 351-A of CSR
or any other rule adopted by respondents
under Regulation 43 of Regulations 1984.
Therefore,
impugned
order
dated
07.07.2021 and subsequent charge sheet
dated 07.07.2022 are bad in law and
liable to be set aside.

14. Accordingly, the writ petition is
allowed. The impugned order dated
07.07.2021 passed by respondent no. 3
and charge sheet dated 07.04.2022 are
hereby quashed.

15. No order as to costs.
----------
(2022) 9 ILRA 881
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. JYOTSNA SHARMA, J.

Writ A No.7994 of 2022
Mahesh Kumar Singh & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Alok Kumar Yadav, Ms. Jigyasa Singh

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra

Civil Law - U.P. Higher Judicial Service
Rules, 1975- prescription of minimum passing
marks
in
the
interview-upheld-Petitioners
participated in interview-had knowledge of
prescribed minimum pass marks-cannot turn
around and contest the minimum prescribed
marks.

W.P. dismissed. (E-9)

List of Cases cited:

1. All India Judges' Assc. & ors. Vs U.O.I. & ors.,
(2002) 4 SCC 247

2. Ramesh Kumar Vs High Court of Delhi & anr.,
(2010) 3 SCC 104

3. Hemani Malhotra Vs High Court of Delhi,
(2008) 7 SCC 11

4. Salam Samarjeet Singh Vs High Court of
Manipur at Imphal & anr., (2016) 10 SCC 484

5. Taniya Malik Vs Registrar General of the High
Court of Delhi, (2018) 14 SCC 129

6. K.H. Siraj Vs High Court of Kerala & ors.,
(2006) 6 SCC 395

7. St. of U.P. Vs Rafiquddin & ors., 1987 (Supp)
SCC 401

8. Dr. Krushna Chandra Sahu & ors. Vs St. of
Orissa & ors., (1995) 6 SCC 1

9. Manjeet Singh, UDC & ors. Vs Employees St.
Insurance Corp. & anr., (1990) 2 SCC 367

10. Lila Dhar Vs St. of Raj. & ors., (1981) 4 SCC
159
882 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Ashok Kumar Yadav & ors. Vs St. of Har. &
ors., (1985) 4 SCC 417

12. Madan Lal Vs St. of J& K (1995) 3 SCC 486
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Mrs. Jyotsna Sharma, J.)

1. Heard Sri Alok Kumar Yadav
learned counsel for the petitioners and Sri
Ashish Mishra learned counsel for the
respondent-High Court.

2. The present writ petition has been
filed seeking declaration of Note (ii) Paper
No. 6 (Interview) to Appendix-G framed
under Rule 18 of the U.P. Higher Judicial
Service Rules, 1975 (In short as "the
U.P.H.J.S. Rules, 1975) as ultra vires to
Articles 14 and 16 of the Constitution of
India, in view of the decision of the Apex
Court in the cases of All India Judges'
Association and others vs. Union of India
and others1 and Ramesh Kumar vs. High
Court of Delhi and another2.

3. The petitioners herein being
practicing
Advocates
at
the
District
Judgeship at Meerut and Delhi had
participated for appointment in the Higher
Judicial Services of the State of U.P. in the
Direct Recruitment Examination-2018 (PartIII),
against
the
advertisement
dated
9.8.2019.

4. It is stated that the petitioners being
eligible for appointment to the Higher
Judicial
Services,
had
qualified
the
preliminary as well as main written
examinations held on 15th September, 2019
and 18th-20th October, 2019; respectively.
They were called for the interview held on
14.12.2019. The final result of the selection
was declared on 20.12.2019.

5. The brief facts of the case as stated in
the writ petition are that both the petitioners
herein belonging to Scheduled Caste category
remained unsuccessful in the final result.
Being aggrieved by their non-selection in
U.P. Higher Judicial Services Recruitment2018 (Part-III), they filed a Writ-A No.
12441 of 2020 (Kameshwar Pratap Singh and
another vs. Hon'ble High Court of Judicature
of Allahabad and another) which was
dismissed vide judgment and order dated
15.12.2020. Aggrieved by the said decision,
the petitioners herein filed the Special Leave
to Appeal (C) No. 2836 of 2021 (Kameshwar
Pratap Singh and another vs. Hon'ble High
Court of Judicature at Allahabad and another)
which was dismissed as withdrawn by the
judgment and order dated 5.4.2021.

It may be noted that the said
decision has not been brought on record of
the present writ petition.

It is further stated in the writ
petition that when the aforesaid writ petition
was filed by the petitioners herein, their
marks were not disclosed and they were
praying persistently for release of their marks.
Final marks, which included marks of the
main examination and interview were
ultimately declared/released at the official
website of the High Court on 15.12.2020.
The petitioners again filed a Writ-A No.
11763 of 2021 which was disposed of vide
judgment and order dated 9.9.2021.

This is the third round of
litigation by the petitioners herein after
having remained unsuccessful in the
Recruitment Examination-2018 (Part-III)
held in the year 2019, final result of which
was declared on 20.12.2019.

6. Before proceeding to deal with the
submission of the learned counsel for the
9 All. Mahesh Kumar Singh & Anr. Vs. State of U.P. & Ors.
883
petitioners, on the merits of the prayer
made herein, we may record that the first
Writ Petition No. 12441 of 2020 was filed
by the petitioners after declaration of the
final result on the plea that the petitioners
did well in the interview but due to
requirement of minimum passing marks in
the interview, their names did not figure in
the select list. It was noted by this Court
while dismissing the writ petition vide
judgment and order dated 15.12.2020 that
minimum qualifying marks in the interview
have been prescribed for selection in
U.P.H.J.S. Rules, 1975 and the petitioners
having failed to obtain minimum passing
marks, their names did not appear in the
select list. The challenge to the selection
cannot
be
sustained
based
on
the
assumption of the petitioners therein about
their performance as it was judged by the
interview Board and no allegations of
malafide against the interview Board had
been made. It was further noted that the
petitioners cannot be granted relief only
because they belonged to Scheduled Caste
as the rule does not permit lower marks for
any
particular
caste
to
qualify
the
interview. It was lastly noted that in
absence of challenge to the U.P.H.J.S.
Rules, 1975, the prayer made in the writ
petition cannot be granted.

7. In the second round of litigation, it
was noted by this Court that the writ petition
was highly belated but on the prayer made by
the learned counsel for the petitioners that the
petitioners made a representation before the
State Government, which is the Selection and
Appointing Authority and the High Court
which is the recommending Authority, the
writ petition was disposed of with the
direction to the petitioners to file a copy of
the writ petition as representation before the
Authority concerned who shall consider and
decide the same. The petitioners then
submitted a representation dated 17.2.2022
before the High Court, which was rejected in
the
meeting
of
the
Selection
and
Appointment Committee of the High Court
dated 22.2.2022 on the ground that the
petitioners have failed to secure 40%
qualifying marks in the interview of the direct
recruitment of the U.P.H.J.S.-2018 (Part-III).

Though it is stated in the present
writ petition that at the time of filing of the
first writ petition, the petitioners were not
aware of their marks of the main examination
and the interview but it has not been
explained as to why the petitioners did not
challenge the validity of the rules, as prayed
in the present writ petition when the main
ground of challenge therein was to the
requirement of minimum passing marks in
the interview under the U.P.H.J.S. Rules,
1975 for a candidate to qualify for selection.

8. In our considered opinion, the
present writ petition is the third writ petition
virtually for the same relief and as such
cannot be entertained. We may further note
that the reliefs sought in the Second Writ-A
No. 11763 of 2021 filed by the petitioners
herein have not been disclosed in the present
petition.

9. Be that as it may, the petitioners
being practicing Advocates should desist
from filing repeated writ petitions for the
same cause of action thereby wasting
precious judicial time of this Court as the
Court was required to deliberate on the
same issue again and again from different
angles. In our considered opinion, the
present writ petition is liable to be
dismissed for this reason alone.

10. However, in order to put the
controversy to its logical end, the prayer
made in the writ petition about the validity
884 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Rule 18 Appendix-G as contained in
U.P.H.J.S. Rules, 1975 prescribing for
minimum qualifying marks in the interview
is being considered by us in light of the
arguments made by the learned counsel for
the petitioners.

11. We may first note the language of
Appendix-G framed under Rule 18 of the
U.P.H.J.S. Rules, 1975 which prescribes
the syllabus for the recruitment of the
officers in U.P. Higher Judicial Service.
The examination for U.P. Higher Judicial
Services as per Appendix-G includes six
papers. Paper no. 6-Interview is relevant
for our purpose and is noted as under:-

"The interview will be of 200
marks - The suitability of the candidate for
employment in the U.P. Higher Judicial
Service will be tested with reference to his
merit giving due regard to his ability,
character, personality, and physique.

Notes -

(i)
The
candidates
securing
minimum aggregate 45% marks in the
written examination shall be called to
appear in the interview subject to maximum
thrice the number of vacancies categorywise.

The interview shall be in a
thorough and scientific manner and shall
take any thing between 25 and 30 minutes
for each candidates.

(ii)
The
candidate
securing
minimum 40% marks in the interview shall
only be eligible to be included in the select
list. The marks obtained in the interview
will be added to the marks obtained in the
written papers and the candidate's place in
the select list will depend on the aggregate
of both."

A perusal thereof indicates that
the
candidates
securing
minimum
aggregate 45% marks in the written
examination are called in the interview
subject to maximum thrice the number of
vacancies category-wise. The time period
of interview has been prescribed as 25 to
30 minutes for each candidate to be taken
in a thorough and scientific manner. The
candidate securing minimum 40% marks in
the interview are eligible to be included in
the select list which is to be prepared by
adding the marks obtained in the written
papers and the interview. The candidate's
place in the select list depends upon the
aggregate of both.

12. It is argued by the learned counsel
for the petitioners that in view of the above
provision, the preparation of the final result
was actually not based on the cumulative
award of marks to the petitioners herein in
the
written
examination
as
well
as
interview, rather the petitioners were
excluded from the select list because of the
fact that they could not obtain minimum
40% marks in the interview. The exclusion
of
meritorious
candidates
like
the
petitioners
by
prescribing
minimum
qualifying marks in the interview is in teeth
of the decision of the Apex Court in All
India Judges' Association (supra) and
Ramesh Kumar (supra). The resolution of
the Selection and Appointment Committee
dated 22.2.2022 rejecting the representation
of the petitioners dated 17.2.2022 based on
the aforesaid rule is, thus, liable to be set
aside.

It is argued that the Shetty
Commission's Report was accepted by the
Apex
Court
in
All
India
Judges'
Association
(supra)
and
it
was
categorically noted in Ramesh Kumar
(supra) that the Shetty Commission did not
9 All. Mahesh Kumar Singh & Anr. Vs. State of U.P. & Ors.
885
prescribe for having minimum marks for
interview. It was further noted therein that
in Hemani Malhotra vs. High Court of
Delhi3, it was held by the Apex Court that
it was not permissible for the High Court to
prescribe the requirement of securing
minimum marks in the interview as against
the
recommendation
of
the
Shetty
Commission.

The
extract
of
the
Shetty
Commission's report, Appendix-1 titled as
"Model Rules for Recruitment to District
Court Service", appended as Annexure '21'
to the writ petition, has been placed before
us to argue that Rules 10 and 11 of the
Model Rules prescribing for eligibility for
candidates for the interview and the criteria
of interview; respectively, do not prescribe
minimum marks for interview. It was
pointed out that Rule 12 of the Model
Rules prescribing procedure to prepare the
list of selected candidates, i.e. final select
list provides that the select list shall be
drawn on the basis of the aggregate of the
percentage of the total marks secured in the
qualifying
examination
as
determined
under Rule 10 and of the marks secured at
the interview under Rule 11. The Rules
framed by the High Court prescribing
minimum qualifying marks of 40% for the
interview for inclusion of a candidate in the
final select list prepared on the aggregate of
marks obtained in the written examination
and the interview is, thus, contrary to the
recommendations
of
the
Shetty
Commission accepted by the Apex Court in
All India Judges' Association's case
(supra).

The contention, thus, is that the
Note (ii) to Paper No. 6 of Appendix-G
framed under Rule 18 of the U.P.H.J.S.
Rules, 1975 is liable to be declared ultra
vires and the rejection of the candidature of
the petitioners pursuant to the said rule is to
be held illegal.

13. Apart from the above, no other
contention has been made by the learned
counsel for the petitioners to challenge the
vires of the aforesaid rule. No argument has
been made as to how the said rule can be
said to be ultra vires to Articles 14 and 16
of
the
Constitution of
India, being
antithesis to the doctrine of equality.

14. We may record that the
contentions made by the learned counsel
for the petitioners can be met with the aid
of the observations of the Apex Court in
Salam Samarjeet Singh vs. High Court
of Manipur at Imphal and another4
wherein the candidates who remained
unsuccessful in the viva-voce conducted by
the High Court of Manipur for appointment
to the post of District Judge (entry level) in
Manipur Judicial Service Grade-I, had
challenged the Schedule-B of Manipur
Judicial Services Rules which stipulated
minimum qualifying marks, both for the
written examination and viva-voce. It may
be noted that in the said case Schedule-B of
Manipur Judicial Services Rules stipulated
minimum qualifying marks cumulatively
for both written examination and vivavoce. The Full Court later passed a
resolution fixing cut-off marks-minimum
40% marks in the interview which was
challenged
as
being
erroneous
interpretation
of
"evaluation
of
performance" given in Schedule-B of the
said Rules. Amongst various arguments to
challenge the correctness of the decision of
the Full Court prescribing minimum
qualifying marks for viva-voce, one of the
challenge was that the decision of the High
Court to prescribe minimum qualifying
marks was against the recommendation of
the Shetty Commission and was violative
886 INDIAN LAW REPORTS ALLAHABAD SERIES
of the judgment of the Apex Court in All
India Judges' Association (supra). While
dealing with the said argument, it was
observed by the Apex Court in paragraphs
'26', '27' and '28' as under:-

"26. The petitioner contends that
the decision of the High Court to prescribe
minimum qualification marks is against the
recommendations of the Shetty Commission
and is violative of the judgment of this
Court in All India Judges' Association and
Ors. v. Union of India and Ors. (2002) 4
SCC 247. It is further argued that in the
said case, the Court accepted Shetty
Commission's
Report
which
has
recommended not having cut-off marks in
interview for the recruitment of the judicial
officers.

27. No doubt, Shetty Commission
has recommended in its Report that there
should be no cut-off marks in the viva-voce
test. Relevant recommendation of Shetty
Commission reads as under:-

"The viva-voce test should
be in a thorough and scientific manner and
it should take anything between 25 to 30
minutes for each candidate. What is
recommended by the Commission is that
the viva-voce test shall carry 50 marks and
there shall be no cut-off marks in viva-voce
test."

28.
Admittedly,
the
Shetty
Commission has recommended that the
viva-voce test shall carry fifty marks and
there shall be no cut-off marks in the vivavoce test. In All India Judges' Association
case para (37), this Court subject to
various modifications in the judgment,
accepted all other recommendations of the
Shetty Commission. While there was a
detailed discussion on the perks, mode of
recruitment to the Higher Judicial Service
and the proportionate percentage for
promotion as District Judges for judicial
officers, limited competitive examination
for Civil Judges (Junior Division) and
percentage of direct recruitment, there was
no detailed discussion regarding the other
recommendations of Shetty Commission. As
rightly contended by the learned Senior
Counsel for the respondent, All India
Judges' Association case is sub silentio on
the recommendation of Shetty Commission
as to "no cut-off marks for the viva-voce".
Contention of the petitioner that fixing cutoff marks for the viva-voce is in violation of
the decision of this Court is not tenable."

It may further be noted that the
decision of the Apex Court in Hemani
Malhotra (supra) and Ramesh Kumar
(supra) as relied by the learned counsel for
the petitioners have been considered by the
Apex court therein and it was noted that the
said decisions proceeded on the issue that
prescription of minimum marks in the
interview was not permissible after the
written test was held.

Further on the view taken by the
Hon'ble Justice R. Banumathi, (as she then
was) about correctness of the decision of
the Full Court in prescribing minimum
qualifying marks for the viva-voce, a
contrary opinion was noted by the Hon'ble
Mr. Justice Shiva Kirti Singh, (as he then
was) and the matter was referred for final
adjudication before the appropriate Bench
in view of difference of opinion. The
dissenting view of the Hon'ble Mr. Justice
Shiva Kirti Singh, however, was on the
ground that change in the selection
procedure by providing minimum marks
for interview or viva-voce test in the midst
of the selection process which has already
been initiated amounted to changing the
9 All. Mahesh Kumar Singh & Anr. Vs. State of U.P. & Ors.
887
Rules
of
the
game
and
hence
impermissible. It is noted in the dissenting
judgment that the rules and the instructions
clearly demonstrate that there was no cutoff mark or pass mark for the viva-voce
examination in the past and the Full Court
by resolution provided for minimum 40%
marks
in
the
interview
after
the
advertisement notification was issued and
written examinations were held but before
holding the interview. It was, thus,
observed that the minimum marks for
interview was introduced in the midst of
the selection process.

In another decision in Taniya
Malik vs. Registrar General of the High
Court of Delhi5, the petitioners therein
who remained unsuccessful in the Delhi
Judicial Service recruitment examination
2015 had challenged the prescription of
minimum pass marks in the viva-voce
examination under the recruitment rules
and sought for a direction to relax the
marks for interview for the Scheduled
Caste category candidates for selection.
The petitioner therein had been declared
failed
in
the
viva-voce
examination
(interview) and urged that fixation of
minimum passing marks of 45% in vivavoce
examination
(interview)
was
unreasonable. It was observed by the Apex
Court relying upon its earlier judgment in
K.H. Siraj vs. High Court of Kerala and
others6 that the interview is the best mode
to assess the suitability of a candidate and
to judge the capacity of the candidate to
perform well in the service, minimum
marks is necessary to prescribe. It was
observed that the interview is the best
method of judging the performance, overall
personality, the actual working knowledge
and capacity to perform. It is desirable to
have the interview and it is necessary to
prescribe minimum passing marks for the
same when the appointment in the higher
judiciary to the post of District Judge (entry
level) is involved. It was observed that a
written examination only tests academic
knowledge, which is sometimes, gained
without
possessing
overall
qualities,
practical experience of practice and law.
The observations in Taniya Malik (supra)
in paragraphs '18' and '19' are relevant to be
extracted hereunder:-

"18. Coming to the question of
prescribing the minimum pass marks in the
viva voce examination, in our opinion it is
rightly observed by this Court in K.H. Siraj
v. High Court of Kerala & rs. (2006) 6
SCC 395, that interview is the best method
to assess the ability of the candidate and to
judge the capacity and minimum marks can
also be prescribed. In case a candidate
fails in an interview it cannot be said that
he is suitable for the job of a Munsif
Magistrate. This Court observed:

"54. 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,
ability to take decisions, qualities of
leadership etc. which are also essential for
a judicial officer.

55. We may usefully refer to a
decision of this Court in Lila Dhar v. State
of Rajasthan (1981) 4 SCC 159 in which
this Court observed as under:

4. The object of any process of
selection for entry into a public service is
to secure the best and the most suitable
888 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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

***

5...."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 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."

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 distinct advantage over the interviewtest 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 moral integrity.

9. ... "15. 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 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. (SCC p.166, para 9)"

56. In Mohan Kumar Singhania and Ors. v.
Union of India and Ors. : AIR 1992 SC 1, S.
Ratnavel Pandian, J. speaking for the Bench,
observed as under: (SCC p.608, paras 18-21)

'18. Hermar 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 asinorum of
recruitment
to
the
public
services
everywhere.
The
British
Civil
Service
experiments with the interview.'

19. The purpose of viva voce test
for the ICS Examination in 1935 could be
best understood from the following extract of
the Civil Service Commission's pamphlet:

'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.'

20.
It
is
apposite,
in
this
connection, to have reference to an excerpt
from the United Nations Handbook on Civil
9 All. Mahesh Kumar Singh & Anr. Vs. State of U.P. & Ors.
889
Service Laws and Practice, which reads
thus:

"...the written papers permit an
assessment of culture and 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."

21. This Court in Lila Dhar v.
State of Rajasthan (1981) 4 SCC 159 while
expressing the view about the importance
and significance of the two tests, namely,
the written and interview has observed
thus: (SCC p.164, para 6) '...the written
examination assess the man's intellect and
the interview test the man himself and 'the
twain shall meet' for a proper selection.' "

57. The qualities which a Judicial
Officer would possess are delineated by
this Court in Delhi Bar Association v.
Union of India (2002) 10 SCC 159. A
Judicial Officer must, apart from academic
knowledge,
have
the
capacity
to
communicate 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 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 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
benchmark for the oral interview, a
benchmark 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 prescription is, therefore, kept
to the bare minimum and if a candidate
fails to 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."

19. In our considered opinion, it
is desirable to have the interview and it is
necessary to prescribe minimum passing
marks for the same when the appointment
in the higher judiciary to the post of
District Judge is involved. The interview is
the
best
method
of
judging
the
performance, overall personality and the
actual working knowledge and capacity to
perform otherwise the standard of judiciary
is likely to be compromised. A written
examination
only
tests
academic
knowledge, which is some time, gained
without
possessing
overall
qualities,
practical experience of practice and law. In
written exam, even the person with no
caliber who takes decision by cramming
may obtain better marks. When the Judges
of the High Court too are appointed by
adjudging the performance and intellect,
an interview would be indispensable for
judicial post. As ultimately, they also come
to adorn the chair of a Judge and Judges of
subordinate and higher judiciary to deliver
justice to masses, the criteria of experience
of practice for direct recruitment of 7 years
whether actually gained can be adjudged
only by interview, communicating skills
890 INDIAN LAW REPORTS ALLAHABAD SERIES
and by elucidation of certain aspects which
would not be possible by written exam
alone. In Siraj (supra), it was emphasized
that interview is the main fulcrum for
judging the suitability of the candidate for
appointment as District Judge in the higher
judiciary. In our opinion that is absolutely
necessary. When we consider past practice
earlier when the written examination was
not prescribed, the High Court used to
select the candidates for higher judiciary
only by the method of interview. Now
additional
safeguards
of
written
examination
have
been
added.
The
importance of interview for the post of the
higher judiciary has increased than ever
before it is absolutely necessary to weed
out unworthy elements/crammers and in
our considered opinion it is not only
appropriate but also absolutely necessary
to prescribe the minimum pass marks soas
to weed out unworthy element so as to
segregate grain from the chaff. There is a
vast
difference
between
having
the
experience that is required for a Judge that
cannot solely be adjudged on the basis of
written performance, and for which overall
personality, intelligence test is absolutely
necessary. Without that it would not be
appropriate to make appointments in
judiciary.
Thus
in
our
opinion
the
prescription of minimum 45% marks for
reserved category candidates could not be
said to be uncalled for. Merely by the fact
that some more posts were advertised and
they are lying vacant, it could not have
been a ground to relax the minimum marks
for interview after the interview has
already been held. It would not have been
appropriate to do so and the High Court
has objected to relaxation of minimum
passing marks in viva voce examination in
its reply and as the power to relax is to be
exercised by the High Court and since it
has opposed such a prayer on reasonable
ground and the institutional objective
behind such prescription, we are not
inclined to direct the High Court to relax
the minimum marks."

In a catena of decisions, the
Courts have laid much emphasis on the
interview/viva-voce. In the recruitment for
higher judicial services, the importance of
interview/viva-voce
cannot
be
underestimated. Viva-voce is the best mode
of assessing the suitability of a candidate as
it brings out the overall intellectual
qualities of the candidates. [Reference
Salam samarjeet Singh (supra)]

15. As noted in Ramesh Kumar
(supra), the decision relied upon by the
learned counsel for the petitioners itself, the
selecting body has to satisfy itself that a
candidate had obtained such aggregate
marks in the written test as to qualify for
interview and obtained (sufficient marks in
viva-voce)
which
would
show
his
suitability for service. Such a course is
permissible
for
adjudging
the
qualities/capacities of the candidates. It was
observed by the Apex Court that it may be
necessary in view of the fact that it is
imperative that only persons with the
prescribed
minimum
of
said
qualities/capacities should be selected as
otherwise the standard of judiciary would
get diluted and substandard stuff may get
selected. Interview may also be the best
mode of assessing the suitability of a
candidate for a particular position as it
brings out the overall intellectual qualities
of the candidates. While the written test
will testify the candidate's
academic
knowledge, the oral test can bring out or
disclose overall intellectual and personal
qualities like alertness, resourcefulness,
dependability, capacity for discussion,
ability to take decisions, qualities of
9 All. Mahesh Kumar Singh & Anr. Vs. State of U.P. & Ors.
891
leadership etc., which are also essential for
a Judicial Officer, [(Reference Para ''11').
The decisions in State of U.P. vs.
Rafiquddin and others7; Dr. Krushna
Chandra Sahu and others vs. State of
Orissa and others8; Manjeet Singh, UDC
and
others
vs.
Employees
State
Insurance Corporation and another9 and
K.H. Siraj (supra) were relied therein].

16. The decisions of the Apex Court
in Lila Dhar vs. State of Rajasthan and
others10 and Ashok Kumar Yadav and
others vs. State of Haryana and
others11 were also considered by the
Apex Court in Ramesh Kumar (supra),
Salam Samarjeet Singh (supra) and
Taniya Malik (supra) to notice that the
interview 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 moral integrity with some degree of
error.

In
Taniya
Malik
(supra),
however, prescription of minimum marks
for interview in the Delhi Judicial
Services Rules-2015 has been upheld
with the observation that interview is the
main fulcrum for judging the suitability
of the candidates for appointment as
District Judge (entry level) in the Higher
Judiciary.

In Ramesh Kumar (supra), it
was noted that the selection rules namely
the Delhi High Court Judicial Services
Rules, 1970 (as it then was) did not
provide
for
minimum
marks
for
interview.
The
Shetty
Commission's
report and the decision of the Apex Court
in All India Judges' Association (supra)
was then noted and it was observed that
where statutory rules do not deal with the
particular
subject/issue,
so
far
as
appointment of the Judicial Officers is
concerned, directions issued by the Apex
Court would have binding effect.

17. From the above discussion, it
can be discerned that the Courts have
upheld the prescription of minimum
passing marks in the interview/viva-voce
examination
in
the
recruitment
for
judicial
services
prescribed
in
the
Recruitment
Rules
framed
by
the
different High Courts. Much emphasis
has been given to the interview as the
best method of judging the overall
personality, actual working knowledge,
intelligence, communicating skills etc.,
which are essential for a Judicial Officer.

As regards the observations in
Ramesh Kumar (supra) that the Shetty
Commission's report had not prescribed
for not having minimum marks for
interview, the same was made in the facts
of that case as the statutory rules namely
Delhi Higher Judicial Services Rules,
1970 (as it then was) did not provide for
the requirement of securing minimum
marks in interview.

18.

Coming
to
the
Shetty
Commission's report, the Model Rules
framed therein were a recommendation for
framing appropriate rules by the High
Court for recruitment to the District Court
Service. The recommendation of the Shetty
Commission as accepted by the Apex Court
in All India Judges' Association (supra),
no where prohibits the High Court from the
prescribing minimum qualifying marks by
framing its own statutory rules to prescribe
892 INDIAN LAW REPORTS ALLAHABAD SERIES
the recruitment criteria for the higher
judicial
services,
nor
the
said
recommendation in any way makes the
recruitment rules violative of Articles 14
and 16 of the Constitution of India.

As noted by Hon'ble R. Banumathi,
J. in Salam Samarjeet Singh (supra), All
India Judges' Association (supra) is ''sub
silentio' on the recommendation of Shetty
Commission as to "no cut-off marks for the
viva voce".

19. The contention of the learned
counsel for the petitioners that fixing cut-off
marks for the interview in the rules is in
violation of the decision of the Apex Court in
All India Judges' Association (supra) and
Ramesh Kumar (supra) or against the Shetty
Commission recommendation is not tenable.

20. For the above discussion, the
challenge to the vires of Note (ii) to Paper
No. 6 (Interview) of Appendix-G framed
under Rule 18 of the U.P.H.J.S. Rules, 1975,
being in teeth of the decisions of the Apex
Court in All India Judges' Association
(supra) and Ramesh Kumar (supra) is
hereby turned down.

21. Yet another aspect of the matter is
that the petitioners herein participated in the
interview with the knowledge that for the
selection, they have to clear the criteria of
prescribed minimum pass marks. On being
unsuccessful in the interview, they cannot
turn around and contend that the criteria for
selection, i.e. the prescription of minimum
marks for interview was improper. They are
estopped to contend it as observed in K.H.
Siraj (supra) as under:-

"72. 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 a minimum marks had to
be secured both at the written test and in
the oral test. .........xxxxxxx......."

In Madan Lal vs. State of
Jammu & Kashmir12, the Apex Court has
observed that:-

"9. ... It is now well settled that if
a candidate takes a calculated chance and
appears at the interview, 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........

10. Therefore, the result of the
interview
test
on
merits
cannot
be
successfully challenged by a candidate who
takes a chance to get selected at the said
interview and who ultimately finds himself
to be unsuccessful."

22. Before parting with this judgment,
as we have found that this is the third round
of litigation at the instance of the
petitioners challenging the rejection of their
candidature in the Higher Judicial Services
Examination-2018 (III) held in the year
2019, we deem it fit and proper to impose
cost upon the petitioners, who being
Advocates are supposed to be well versed
in law that in a challenge before the Court
of law, all points/grounds of challenge have
to be raised in the first attempt itself.
Repeated attempts raising different grounds
of challenge at different points of time by
the petitioners are nothing but sheer abuse
of the process of the Court more so when
they are officers of the Court being
practicing Advocates.
9 All. Rohit Sharma & Anr. Vs. State of U.P. & Ors.
893

We quantify the cost to Rs.
20,000/- for each of the petitioners herein,
which shall be deposited by them in the
Registry of the High Court within a period
of one month from today.

The cost so deposited by the
petitioners shall be transmitted in the
accounts of the High Court Legal Services
Committee.