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

- **Citation:** [2006] Supp. 2 S.C.R. 790
- **Court:** Supreme Court of India
- **Decided:** 2006-05-23
- **Bench:** Dr. Ar. Lakshmanan, Lokeshwar Singh Panta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-h-siraj-v-high-court-of-kerala-and-anr-21486
- **Pages:** 43

## Headnote

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--
D
Reversed by the High Court-- On appeal, Held: Rule 7 confers powers on
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.
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:
Writ Petition-Absence of necessary parties in the array of partiesEffect 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
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
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
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
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 appea

## Text

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A
K.H. SIRAJ
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--
D
Reversed by the High Court-- On appeal, Held: Rule 7 confers powers on
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.
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:
Writ Petition-Absence of necessary parties in the array of partiesEffect 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
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
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
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
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
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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.
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
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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
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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,
[ 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
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
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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
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and the principles laid down by this Court in catena of decisions and
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
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clause IO of the Notification prescribes a scheme of written and oral
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K.H. SIRAJ v. HIGH COURT OF KERALA
793
examination to be taken by the candidate; that the oral examination was
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 preexamination training to the Scheduled Castes and Scheduled Tribes
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.
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
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
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)
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
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]
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SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.
1.3. It will not be proper to 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 germane and best suited to achieve the
object, it is not proper to scuttle the same as beyond its powers.
[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
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
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
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
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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
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Sahkari Ganna Vikas Samiti ltd. v. Mahabir Sugar Mills (PJ Ltd.,
[1981] 4 SCC 149; Mohan Kumar Singhania & Ors. v. Union of India &
Ors., [19921 Suppl. SCC 594; Delhi Bar Association v. Union of India 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
..
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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
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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]
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]
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
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
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]
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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Madan Lal & Ors. v. State of J & Kand Ors., (1995) 3 SCC 486,
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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,
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
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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
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have to fail for non-joinder of necessary parties also. (830-D-E-F)
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
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
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
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
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
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. 25392540/2005.
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.
A
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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
DR. AR. LAKSHMANAN, J. : Mr. K.H. Siraj is the appellant in
Civil appeal Nos. 2539-2540 of 2005. Aggrieved against the judgment and
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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
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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
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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.
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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.
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A
The short facts are as follows:
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c
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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:
THE HIGH COURT OF KERALA
No. B4-14037/2001
Kochi 682 031
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
Service.
1.
Scale of pay of the post Rs.2500-4000 (under revision)
2.
Probable number of vacancies 70 (53 candidates to be selected
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by direct recruitment from the Bar and 17 by recruited by
transfer)
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3.
Methods of recruitment:
(i)
Direct recruitment from the Bar
(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.
4.
Qualifications:
(i)
Direct recruitment. ......................... .
(ii) Recruitment by transfer. ......................... .
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K.H. SIRAJ v. HIGH COURT OF KERALA [LAKSHMANAN, J.] 799
Note:-..................................................... ..
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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.
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(I) ........................................................................................... .
(2) .......................................................................................... ..
(ii) ........................................................................................... .
6.
Reservation of appointment- The Rules relating to reservation
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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.
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7.
Training ............................................................................... .
8.
Probation .............................................................................. .
9.
Tests ..................................................................................... .
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800
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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.
Paper I ........................................................................................ ..
Paper II ........................................................................................ ..
Paper III
Paper IV
(2)
Oral Examination : - There shall be an oral examination
carrying a maximum of 50 marks for deciding the candidate's
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
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
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minimum of 35 per cent 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 shall be ignored.
(4)
No candidate who has not secured the minimum marks
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
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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
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total marks secured by them.
11.
Application form and application fee - .................................. .
12.
Certificates/Documents - ...................................................... .
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(i) ..................................................................................... .
(ii) ................................................................. , .................. .
"Certified that Shri/Smt. . . . .. .. ..... .. . .. ... .. .. .... .. . . . .. .... ... .. .. ... .. ... .. . has
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been actually practising an an ....................... Court since and that
his/her character and conduct are/were
Station:
Date:
Signature, Name & Designation
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
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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
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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
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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
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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
the respondents. The order reads thus:
"Delay condoned.
The petitioner herein has agreed that by the refusal to grant interim
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
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
petition is disposed of.
Sd/-
(Ganga Thakur)
PS to Registrar
Sd/-
(Prem Prakash)
Court Master
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.
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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.
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.
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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
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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:
"7. Preparation of lists of approved candidates and reservation of
appointmentsD
(1) The High Court of Kerala shall, from time to time, hold
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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
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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
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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."
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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
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,
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
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.
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(15) "Service" means a group of persons classified by the State
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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
of a service as above defined.
(16) "Special Rules" shall mean the rules in Part III applicable to
each service or class of service.
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( 17) The Kerala Civil Services (Classification, Control and Appeal)
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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,
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
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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
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
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
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
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
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.
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
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I 00 marks each. For each paper tWo and a half hours duration was prescribed.
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A
B
806
SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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
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
E
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
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
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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
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.
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
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
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:
1.
In the absence of specific legislative mandate under rule 7(i)
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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
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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
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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~~~
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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:
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808
SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
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I.
Annexure P-1 is the Notification dated 26.3.2001 in which
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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
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
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
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:
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
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3.
Durga Charan Misra v. State of Orissa, [1987] 4 SCC 469.
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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
6.
State of Punjab v. Manjith Singh, [2003] 2 SCC 559
7.
Inder Prakash Gupta v. State of J & 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
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."
In Umesh Chanda Shukla v. Union of India (supra), it has been held that the
Selection Committee had no power to prescribe the minimum marks which
A
B
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
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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
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,
"in the light of these discussions, the conclusion is inevitable that the
commission in the instant case.