# MAHINDER KUMAR & ORS v. HIGH COURT OF MADHYA PRADESH THROUGH REGISTRAR GENERAL &·ORS

- **Citation:** [2013] 13 S.C.R. 884
- **Court:** Supreme Court of India
- **Decided:** 2013-07-12
- **Bench:** Altamas Kabir, Fakkir Mohamed Ibrahim Kalifulla, Vikramajit Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahinder-kumar-ors-v-high-court-of-madhya-pradesh-through-registrar-general-ors-28992
- **Pages:** 54

## Headnote

c
Judiciary - Higher Judicial Service - Madhya Pradesh
Higher Judicial Service - Selection of entry level District
Judge - Procedure followed by High Court - Challenged -
Held: Having regard to the power vested in the High Court u/
r. 7, as well as para 9 of the advertisetrJent (inviting
D applications for filling up the posts), in particular para 9 (iv),
the High Court was fully empowered to prescribe its own fa.ir
procedure for purpose of evaluation of the marks of the
candidates, in order to make the ultimate selection - No flaw
found in the process adopted by the High Court - Para 9(iv)
E of the advertisement, read along with r. 7, fully empowered the
High Court to prescribe a procedure from the stage of
evaluating the answer sheets of the candidates, initially by
different District Judges and after noticing different standard.
adopted by different District Judges in the matter of valuation
j
F of answer sheets of the candidates, for adopting the
normalization process in order to streamline the whole
selection in a fair manner - Also there was no conflict with the
~
Sheffy Commission recommendation, as approved by
Supreme Court - The procedure followed by 1st respondent
G High Court was also rational - No material on record in
--r
support of the plea that the minimum percentage requirement
for final selection was increased at the final stage - Procedure
adopted by the 1st respondent High Court well in order and
not calling for interference - Madhya Pradesh Uchchtar
H
884
l\t'AHINDER KUMAR v. HIGH COURT OF M.P. THR. REG.
885
GEN.
,y
Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994 - r. 7
A
(as amended by Madhya Pradesh Rajpatra (ASADHARAN)
dated 08.06.2005).
Selection made by the High Court of Madhya
Pradesh of the third respondent for the post of entry level
B
District Judge in the cadre of Madhya Pradesh Higher
Judicial Service for the year 2006-07 was in issue in the
instant appeals.
t
Dispute arose as to whether by virtue of the powers
provided in Rule 7 of the Madhya Pradesh Uchchtar c
Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994
("the 1994 Rules") as amended by Madhya Pradesh
Rajpatra (ASADHARAN) dated 08.06.2005, read along with
para 9 (iv) and (vi) of the advertisement inviting
applications for filling up posts in the Madhya Pradesh
D
-ft.
Higher Judicial Service, the High Court was well justified
in formulating the procedure in making the selection in
question.
The Petitioners/ appellants further contended before
E
this Court that under the Rules, there was no provision
for adopting the procedure of normalization of the marks
secured by the candidates in the written examination and
'f
that, therefore, the said procedure adopted by the High
Court could not be sustained. It was also contended that
while making the final selection and appointment of 3rd
F
respondent, the prescription of 50% cut-off marks in the
aggregate marks was again not prescribed either in the
Rule nor in the advertisement and thus, such a
prescription evolved by the High Court on its own was
G
--rwithout any authority and, therefore, the ultimate
selection and appointment of 3rd respondent cannot be
sustained. In support of their stand, the Petitioners/
appellants .;eferred to the Shetty Commission Report,
which was accepted by this Court where the benchmark
of 120 out of 200 marks, i.e. 60%, was fixed, which in turn
H
886
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A stated that the said prescription should be followed,
unless or otherwise the High Court Rules provide for a
different benchmark and the prescription of a bel)Chniark
for viva voce.
·
.B
Disposing of all the matters, the Court
HELD:
Per Kalifulla, J.
c
1. Rule 7 specifically deals with the direct recruitment
of District Judges as provided for in Rule 3(1) of the
amended Rules. Therefore, in the absence of any
challenge to the said Rule 7 as prescribed or any serious
infirmity pointed out in the said Rule, going by the Rule
0
as it stands, it can be stated that the High Court

## Text

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[2013] 13 S.C.R. 884
A
MAHINDER KUMAR & ORS.
v.
HIGH COURT OF MADHYA PRADESH THROUGH
REGISTRAR GENERAL &·ORS
~
(Writ Petition (Civil) No.289 of 2007)
j;
B
JULY 12, 2013
[ALTAMAS KABIR, CJI AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, VIKRAMAJIT SEN. JJ.]
c
Judiciary - Higher Judicial Service - Madhya Pradesh
Higher Judicial Service - Selection of entry level District
Judge - Procedure followed by High Court - Challenged -
Held: Having regard to the power vested in the High Court u/
r. 7, as well as para 9 of the advertisetrJent (inviting
D applications for filling up the posts), in particular para 9 (iv),
the High Court was fully empowered to prescribe its own fa.ir
procedure for purpose of evaluation of the marks of the
candidates, in order to make the ultimate selection - No flaw
found in the process adopted by the High Court - Para 9(iv)
E of the advertisement, read along with r. 7, fully empowered the
High Court to prescribe a procedure from the stage of
evaluating the answer sheets of the candidates, initially by
different District Judges and after noticing different standard.
adopted by different District Judges in the matter of valuation
j
F of answer sheets of the candidates, for adopting the
normalization process in order to streamline the whole
selection in a fair manner - Also there was no conflict with the
~
Sheffy Commission recommendation, as approved by
Supreme Court - The procedure followed by 1st respondent
G High Court was also rational - No material on record in
--r
support of the plea that the minimum percentage requirement
for final selection was increased at the final stage - Procedure
adopted by the 1st respondent High Court well in order and
not calling for interference - Madhya Pradesh Uchchtar
H
884
l\t'AHINDER KUMAR v. HIGH COURT OF M.P. THR. REG.
885
GEN.
,y
Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994 - r. 7
A
(as amended by Madhya Pradesh Rajpatra (ASADHARAN)
dated 08.06.2005).
Selection made by the High Court of Madhya
Pradesh of the third respondent for the post of entry level
B
District Judge in the cadre of Madhya Pradesh Higher
Judicial Service for the year 2006-07 was in issue in the
instant appeals.
t
Dispute arose as to whether by virtue of the powers
provided in Rule 7 of the Madhya Pradesh Uchchtar c
Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994
("the 1994 Rules") as amended by Madhya Pradesh
Rajpatra (ASADHARAN) dated 08.06.2005, read along with
para 9 (iv) and (vi) of the advertisement inviting
applications for filling up posts in the Madhya Pradesh
D
-ft.
Higher Judicial Service, the High Court was well justified
in formulating the procedure in making the selection in
question.
The Petitioners/ appellants further contended before
E
this Court that under the Rules, there was no provision
for adopting the procedure of normalization of the marks
secured by the candidates in the written examination and
'f
that, therefore, the said procedure adopted by the High
Court could not be sustained. It was also contended that
while making the final selection and appointment of 3rd
F
respondent, the prescription of 50% cut-off marks in the
aggregate marks was again not prescribed either in the
Rule nor in the advertisement and thus, such a
prescription evolved by the High Court on its own was
G
--rwithout any authority and, therefore, the ultimate
selection and appointment of 3rd respondent cannot be
sustained. In support of their stand, the Petitioners/
appellants .;eferred to the Shetty Commission Report,
which was accepted by this Court where the benchmark
of 120 out of 200 marks, i.e. 60%, was fixed, which in turn
H
886
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A stated that the said prescription should be followed,
unless or otherwise the High Court Rules provide for a
different benchmark and the prescription of a bel)Chniark
for viva voce.
·
.B
Disposing of all the matters, the Court
HELD:
Per Kalifulla, J.
c
1. Rule 7 specifically deals with the direct recruitment
of District Judges as provided for in Rule 3(1) of the
amended Rules. Therefore, in the absence of any
challenge to the said Rule 7 as prescribed or any serious
infirmity pointed out in the said Rule, going by the Rule
0
as it stands, it can be stated that the High Court has been
vested with the required power to evolve its own
procedure" of selection for direct recruitment and
promotion in respect of Entry Level District Judges and
that the High Court can specify such procedure from time
E to time. Rule 7 fully empowered the High Court to evolve
its own procedure. [Para 26) (910-8-D)
2. It cannot be said that the said Rule 7 in anyway
conflict with whatever that has been recommended in the
Shetty Commissi?n Report. The Shetty Commission
F
Report, while prescribing a benchmark of 60% marks for
the written examination, without any prescription of
minimum marks in the viva voce, itself mentions that
such recommendation was subject to prescription of any
Rule, which operates in the respective High Courts.
G Therefore, so long as Rule 7 operates in the field and the
said Rule does not conflict with any other constitutional ·
or statutory provision or any other Rule or regulation
governing the subject, the said Rule empowering the
High Court to formulate its own procedure and specify
H such procedure from time to time is valid and also
,,
)
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG
887
GEN.
justified. Such a provision does empower the High Court A
to formulate a procedure for the purpose of selection of
direct recruitment to the post of Entry Level District
Judges. [Para 27] [910-E-H]
3.1. In view of the constitutional mandate, which
8
empowers the respective High Court to deal with the
selection of District Judges, within its jurisdiction and the
ultimate appointment to be made by the concerned
Governor of such a State, a reading of Article 233(1) of
the Constitution along with Rule 7 of the 1994 Rules, as
C
amended in the year 2005, makes it clear that the 1st
respondent High Court is invested with every power and
authority to evolve an appropriate procedure in the
matter of selection for direct recruitment and promotion
of Entry Level District Judges and that depending upon
the exigencies, such procedures can also be specified by D
the 1st respondent High Cou'rt from time to time.
Therefore, the 1st r~spondent High Court was fully
empowered under Rule 7 to prescribe the required
procedure for selection of Entry Leyel District Judges by
way of direct recruitment and specify such procedure
E
from time to time according to the exigencies prevailing.
[Para 30) [912-G-H; 913-A-C]
3.2. In the background of the Rule prevailing, the
prescription contained in para 9(iv) of the advertisement
F
dated 21.08.2006, empowering the High Court to decide
which of the candidates can be called for the interview
based on the evaluation of their performance in the
written examination, should also be held to be in
consonance with Rule 7 and Article 233(1) of the G
Constitution. [Para 31) [913-C-D]
3.3. There is a clear indication in para 9 of the
advertisement as to in what manner the High Court .is
going to conduct the selection process. In para 9(iii), it
has been sufficiently indicated that each P.aper of the
H
888
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
written examination will be for a duration of 3 hours, with
a maximum of 100 marks to be scored. The object in
holding the written examination in both the 1st and 2nd
papers, have also been specifically highlighted in para
9(iii). Once the written examination part is fulfilled, the
B
High Court has to formulate a "procedure by which the
answer papers are to be evaluated in order to ascertain
the marks scored by the respective candidates.
Therefore, in para 9(iv) it has been specified that before
calling any of the candidates for interview who appeared
c
for the written examination, an evaluation will have to be
made and based on the evaluation and performance, the
High Court will decide as to who should be called .for the
interview. [Paras 32, 35 & 36] [913-G; 914-D-F]
D
E
F
3.4. The expression 'evaluation' would take into its
fold the minimum marks to be scored, the manner in
which the evaluation is to be made and in the event of
any requirement, to equalize the merits of the candidate
in the written examination and follow any appropriate
procedure in consonance with law, in order to ultimately
arrive at a fair process by which the candidate can be
called for interview, based on the evaluation of the marks
in the written examination. In a situation like this, where
nearly 3000 candidates appeared for the written
examination and the answer papers were evaluated by
several District Judges, the High Court in exercise of its
authority under Rule 7, read along with para 9(iv) adopted
1
a fair procedure to normalize the rriarks of the candidates
in order to asses their respective merits. Therefore, the
expression evaluation used in para 9(iv), should be held
G
to fully empower the High Court to even resort to such
a step in a case like this, where more number of District
Judges evaluated the answer sheets and thereby, it
required the intervention of the High Court in its
administrative side, to find a fair method by which the
H
-+
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG
889
GEN.
normalization of the marks could be worked out. [Paras A
37, 38] [914-G-H; 915-A-D]
3.5. Para 9(iv), read along with Rule 7, fully
empowered the High Court to prescribe a procedure from
the stage of eva·luating the answer sheets of the 8
candidates, initially by different District Judges and after
noticing different standard adopted by different District
Judges in the matter of valuation of answer sheets of the
candidates, for adopting the normalization process in
order to streamline the whole selection in a fair manner. C
Therefore, the submission that every minute detail of the
procedure, which the High Court followed in evaluating
the answer sheets of the candidates, were not disclosed
to them in the advertisement and on that the whole
selection stood vitiated, cannot be accepted. [Para 39]
[915-E-G]
D
3.6. By virtue of Rule 7 and para 9(i), (iii), (iv) and (vi),
there was enough prescription empowering the High
Court to follow its own procedure in evaluating the
answer sheets initially by the District Judges and E
subsequently by common evaluators, before holding the
interview. The submission made on behalf of the
petitioners in attacking the procedure f~llowed by the
High Court in the matter of holding the selection pursuant
to the advertisement dated 21.08.2006, is therefore F
rejected. [Para 40] [915-H; 916-A-B]
4.1. The High Court constitute"d a Selection
Committee, consisting of 6 Judges of the High Court, with
whom the process of direct recruitment to the post of
Addi. District Judges, through competitive examination G
was entrusted. The methodology followed by the High
Court based on the resolution of the Selection Committee
dated 24.04.2007, was that the 40% marks secured by
general category candidates and 35 % marks secured by
reserved category candidates in each of the papers H
890
SUl?.REME COURT REPORTS
[2013] 13 S.C.R.
A evaluated by the District Judges was the basis to finalize
the n"ames of 15 candidates for the purpose of
interviewing them on the 6th and 7th of April, 2007, by the
Selection Committee and not based on the normali2:ation
of marks. [Paras 47, 54] [918-H; 919-A; 924-A-B]
B
4.2. Any such criteria of fixing 50% of aggregate
marks as the benchmark for making the selection, was
neither resolved in any of the resolutions of the Selection
Committee or any other proceedings of the High Court,
•
C nor was there anything stated in so many words in the
counter affidavit of the first respondent High Court. [Para
57] (926-C-D]
5. None of the aggrieved candidates have made any
allegation of ma/a. tides or lack of bona tides, as against
D any of the Selection Committee members or for that
matter in the manner in which the interview was held by
the interviewing committee or with regard to the valuation
of marks arrived at either by the District Judges or in the
normalization of marks ultimate·1y arrived at by the
E common evaluators. The only submission was that the
methodology adopted by the Selection Committee in
resorting to the normalization process was a departure
in the midway of the selection process and therefore, on
that score the ultimate selection cannot be approved. As
F far as the said challenge is concerned, having regard to
the power vested in the High Court under Rule 7, as well
as ·paragraph 9 of the advertisement, in particular para 9
(iv), the High Court was fully empowered to prescribe its
own fair procedure for the purpose of evaluation of the
G marks of the candidates, in order to make the ultimate
selection. Therefore, in the absence of any other attack
to the selection process made by the High Court by
constituting a Selection Committee and the procedure
followed by the said Selection Committee, which
ultimately arrived at the merit list of the 15 shortlisted
H
-
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG
891
GEN.
'"1'
candidates for finalizing the selection, it will have to held
;:.
that no flaw can be found in the said process adopted
by the High Court. [Para 59] (927-B-F]
6. The Selection Committee's ultimate decision in
their resolution dated 18.4.2007; in holding that in their f.air
B
assessment, the third .respondent alone, who secured
55.46% marks in the aggregate, as the only suitable
tcandidate for holding the post of entry level District
Judge, cannot be assailed. It is by now well settled that
no Court, including this Court can venture to go behind c
~
the said assessment made by. an expert committee
.....
··consisting of high level members of the judiciary of the
State and state that the said decision should be varied
by holding that the other candidates whose performance
was also apprised by the said expert committee, should
D
_,..
be held to be suitab!e on par with the selected candidate
•.
and that they should also be selected and appointed. This
Court should never make even an attempt to go behind
the ultimate decision of the Selection Committee in order
....
.to set at naught the final decision arrived at by it, which
i
E
was approved by the Full Court or vary its decision by
adding sorne more candidates in t!ie list by laying down
a different criteria, by altering or by fixing any benchmark
,,._
for being appointed to the higher judiciary of the State.
[Para 61) (928-H; 929-A-D]
F
7. In the instant case, based on the Rule prevailing
and the 'prescription found in the advertisement, the first
respondent High Court scrupulously followed the
procedure without givir:ig room for any deviation. Also
.. .....,..,.,
there was no conflict with the Shetty Commission
re.commendation, which had the approval of this Court in
G
:the decision reported in All India Judges' Association and
,,.
others. [Para 62) [929-F-G]
8. The· normalization process adopted by the High
H
Court in this case where the initial evaluation was made
892
SUPREME COURT REPORTS
[2013] '13 S.C.R.
A
by several evaluators in the rank of District Judges, by
appointing common evaluators in the status of a Retd.
Chief Justice and a Retd. Judge of the High Court, was
a prudent step taken by the 1st respondent High Court
B
and no fault could be found with that approach. [Para 65]
9. In the present case, what all was done by the
Selection Committee based on the power vested in the
High Court, under Rule 7 and what was prescribed in
para 9 (iv) of the advertisement, was a pattern of selection ~
C
in which the 25 marks allotted for interview was simply
applied. No minimum marks to be secured in the
interview, was prescribed afresh after the selection
process commenced and thereby, for anyone to state
that there was any change in the 'rule of the game' in
order to interfere with the selection. By virtue of Rule 7
D
and para 9(iv), the 1st respondent High Court had every
k-"
authority to prescribe the procedure, while making the
selection to the post of higher judicial service and that
such procedure followed was also rational. The
procedure adopted by the 1st respondent High Court
E
was well in order and the same d0es not ca!! for
interference. [Paras 68, 69 and 73] [933-B-C; 935-A-F]
F
K. Manjusree vs. State of Andhra Pradesh and another
(2008) 3 SCC 512: 2008 (2) SCR 1025 - held inapplicable. .A(
K.H. Siraj vs. High Court of Kera/a and others (2006) 6
sec 395: 2006 (2) Suppl. SCR 790 - relied on.
Alf India Judges' Association an.d others vs. Union of
India and others (2002) 4 sec 247: 2002 (2) SCR 712;
G
Sanjay Singh and another vs. U.,P. Public- Sf?rvice ---r'°"'
Commission, Allahabad and another (2007) 3 sec 720:
2007 (1) SCR 235; Hemani Malhotra vs. High Court of Delhi
(2008) 7 SCC 11: 2008 (5) SCR 1066; Ramesh Kumar vs.
High court of Delhi and another (2019) 3 sec 104: 2010 (2)
H
SCR 256 and The State of Haryana vs. Subash Chander
-
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG
893
GEN.
~ Marwaha and others (1974) 3 SCC 220: 1974 (1) SCR 165 -
A
·referred to.
Per Kabir, CJI. [Supplementing)
HELD: 1. There is no material on record in support B
I
of Ground 'O' taken in the Writ Petition, wherein it has
<
::I
been mentioned that "To top it all, the minimum
percentage requirement for final selection was increased
t
to 50% at the final stage." [Para 1) [936-A-B]
2. Nowhere in the advertisement inviting applications c
for filling up the 20 posts in the Madhya Pradesh Higher
Judicial Service by direct" recruitment from the Bar, has it
been ·indicated as to what would be the minimum
percentage of marks, which would be required for final
selection. The only place where reference has been made D
• -f.-.
to the said figure is in the Resolution of the Selection
'
Committee ·adopted on 23rd March, 2007, wherein in
paragraph 1 it has been indicated that on the basis of the
evaluation made by District Judges, Scheduled· Castes
and Scheduled Tribes candidates would have to secure E
35% marks and other candidates, would have to secure
'
40% marks in the first paper and in the second paper in ·
order to qualify for the viva-voce. The problem was
~·
cau~ed by the note written by the Registrar General of the
High Court indicated at the bottom of the final Select List, F
wherein it~ was mentioned that the selected candidate,
who had obtained more than 50% marks, was found
suitable to be recommended for appointment. The said
note has given cause for Ground 'D' to the Writ Petition,
"1'" -
although, there is nothing, even in the note, to suggest
G
that previously 40% of the total marks had been declared
or accepted to be the bench-mark for appointment. The
<
note is merely a statement which indicates that the
sel~cted candidate had obtained more than 50% marks.
The same does not either indicate or pre-suppose that
there was a lower bench-mark for the Petitioners to claim H
894
SUPRE.ME COURT REPORTS
[2013] 13 S.C.R.
~
A
in Ground 'D' that the bench-mark had been increased to
-r
50%. [Paras 1, 2 and 3) [936-C-D, G-H; 937-A-B]
Case Law Reference:
In the judgment of Kalifulla, J.
B
2002 (2) SCR 712
referred to
Paras 4, 8,
t61,67,71
2007 (1) SCR 235
referred to
Paras 4, ~4
i
c
2008 (2) SCR 1025
referred to
Para 4, 66
2008 (5) SCR 1066
referred to
Para 4
2010 (2) SCR 256
referred to
Paras 4, 60,
70
D
2006 (2) Suppl. SCR 790referred to
Para 8, 61,
~
72
1974 (1) SCR 165
referted to
Para 8,
E
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
289 of 2007.
Under Article 32 of the Constitution of India.
WITH
.)I(
F
W.P.(C) No. 178 of 2008, C.A. Nos. 7790 & 7791 of 2011.
B.H. Marlapalle, Ravindra Shrivastava, Pragati Neekhra,
Rauf Rahim, Yadunandan Bansal, Parth Tiwari, Annam D.N.
Rao, Manisha Monga, A. Venkatesh, Manish K. Bishnoi, C.D.
G Singh, Sunny Choudhary, Survigya, Harmeet, Sakshi, Arjun
-...,.-
Garg, Mishra Saurabh, Dharam Bir RajVohra, Mohan Pandey,
~
Niraj Sharma, Kuldip Singh, B.S. Banthia, Deepak K.
,;
Wadhwani (Respondent-In-Person) for the appearing parties.
H
The Judgments of the Court was delivered by
.
.
MAHINDER KUMAR v. HIGH COURT OF M.P THR. REG GEN. 895
...
~
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. As the
A
•
issues involved in these writ petitions and appeals are one and
tlie: same, the same are being disposed of by this common
judgment.
. 2. In Writ Petition (C) No. 289 of 2007, the challenge is to
B
·the selection made.by the High Court of Madhya Pradesh in
the cadre of Madhya Pradesh Higher Judicial Serv.ice to the
.,.._ post of entry level District Judge in the selection process for
t~e year 2006-07 in which the third respondent .alone came to
b.e. selected for the .20 posts advertised. Petitioners and c
respondent Nos.4 to S were all unsuccessful candidates who
participated in the said selection. Writ Petition No.178 of 2Q08
was also by one of the candidates who also participated in the
selection of 2006-07 and has come forward with the similar
relief as in Writ Petition (C) No. 289 of 2007. Civil Appeal
D
..,._
N'o.7790 of 2011 and Civil Appeal No.7791 of 2011 have been
preferred by two candidates who were also not successful in
the very ~ame selection ar:id who approached the High Court
by filing independent writ petitions in W.P. (C) No.4604 of 2007
and W.P.(C) No.4605 of 2007, which were disposed of by a
common order dated 09.04.2007, by the Division Bench of
E
Madhya Pradesh High Court. Both the writ petitions were
dismissed. Those writ petitions were also filed challenging the
.,_
very same selection made for the post of Madhya Pradesh
Higher Judicial Service in the selection process of 2006-07.
.'\
Since the challenge in both the writ petitions, as well as the civil
F
appeals are- relating to the same selection for the post of
District Judge (Entry Level) of the Madhya Pradesh Higher
Judicial Service, we dispose of all the above four cases by this
common judgment.
" ~
3. Since the_~ubmissions made by Mr. Marlapalle; learned
G
senior counsel appearing for the petitioners i!l W.P.(C) No.289
of 2007 were generally adopted by the other respective
counsel, except for a few submission made by Mr. Annam D.
· N. Rao, i,earned counsel for the appellants in Civil Appeal
H
896
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A No.7790 of 2011 and Civil Appeal No.7791 of 2011, we mainly 'r
•
refer to the submissions of Mr. Marlapalle, while considering
the grievances of the petitioners in the writ petition, as well a.s
the appellants in the civil appeals.
B
4. Mr. Marlapalle learned senior counsel, in his
submissions referred to the advertisement dated 21.08.2006,
calling for 20 posts of Higher Judicial Service of Madhya
Pradesh, namely, the Entry Level District Judge post. The
i
written examination was held on 17.12.2006, for two papers
c prescribed in the advertisement. The learned senior counsel,
after referring to the list of candidates who were called for
interview and the ultimate resolution of the Selection Committee
after normalization of the marks secured by the short-listed 15
candidates, who are the petitioners in Writ Petition (C) No. 289
D
of 2007, as well as respondent Nos.4 to 8 in th~t writ petition,
~
submitted that the merit list could have been drawn solely based
on the written examination marks and the interview marks put
together, without adopting the normalization process as was
done by the High Court, which was not mentioned in the
advertisement. According to learned senior counsel, the
E procedure of normalization of marks adopted by the High Court
after the holding of the written examination, was not permissible
in law. The learned senior counsel contended that the condition
of 50% of marks to be scored in the normalized marks along
-¥
with marks secured in the interview, was neither mentioned in
,;.
F the advertisement, nor in the Rules, nor in the Shetty
Commission recommendations and, therefore,. such a
condition could not have been prescribed at the fag end of the
conduct of the selection. The learned senior counsel after
referring to the resolution of the Selection Committee submitted
~
·'
G that the same did not have the approval of the Full Court. By
referring to the amended Rules 7 of the Rules relating to the
recruitment for the post of Higher Judicial Service of Madhya
Pradesh, learned senior counsel contended that if the High
Court can formulate its own procedure as per the said Rule,
H
.
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG
897
GEN. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
~ then it should have been disclosed in the advertisement or at
A
f
least before the written examination was conducted. The
learned senior, counsel would further contend that even in the
counter affidavit filed before this Court, no reason was given
for the decision taken by the High Court to resort to
normalization of marks as mentioned in para 11 (a) of the
B
counter affidavit. The learned senior counsel would contend that
having regard to such serious violations in the matter of
selection, the whole selection was vitiated. ·The learned senior
tco_unsel in his submission contended that in the Shetty
Commission Report, which was accepted by this Court in All c
India Judges' Association and others vs. Union of India
and others - (2002) 4 SCC 2~7, the Shetty Commission,
recommended that there can be· a benchmark of 1.20 marks
out of 200 marks, i.e., 60%, for making the selection and that
the High Court can provide a benchmark under the Rules for
D
viva voce and without any such prescriptio,n it was not
permissible for the High Court to prescribe a benchmark, while
making the selection. The learned senior counsel also relied
upon the decisions in Sanjay Singh and another vs. UP.
Public Service Commission, Allahabad and another - (2007)
E
3 SCC 720, K. Manjusree vs. State of Andhra Pradesh and
another- (2008) 3 SCC 512, Hemani Malhotra vs. High Court
of Delhi - (2008) 7 sec 11 and.Ramesh Kumar vs. High court
of Delhi and anothet - (2010) 3 sec 104.
5. Mr. A.D.N. Rao, learned counsel appearing for the
F
appellants in Civil Appeal No.7790 of 2011 and Civil Appeal
No. 7791 of 2011, referred to the advertisement and submitted
that though specific posts were earmarked for reserved
categories, when the ultimate select list was announced1
- --r----
reservation was given a go by. The learned counsel further
G
contended that since the Rules were changed midway, the
appellant got eliminated and, therefore, on that score the
selection should be held to be vitiated.
6. As against the above submissions .Mr. Shrivastava,
H
898
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
learned senior counsel appearing for the High Court, dealing
with the last of the contentions made by Mr. Marlapalle that the
selection did not have the approval of the Full Court, pointed
out that in the letter by which the selection was announced by
the communication of the Registrar General dated 24.04.2007,
B there is a reference to the resolution of the Full Court meeting
dated 22.04.2007, by which the selection was approved by the
Full Court. The said submission was made by Mr. Shrivastava,
apart from submitting' that such a contention was never raised
before the High Court, nor in the writ petition.
c
7. The learned senior counsel then referred to the
amended Rule 7 and pointed out that as per the said Rule,
whatever was not prescribed in the Rules was left to be
decided by the High Court and lhat even as per para 9 of the
advertisement and in particular Rule 9(iv), the High Court was
D empowered to follow its own procedure. The learned senior
counsel then contended that the High Court in exercise of such
powers vested in it, constituted a Committee of Judges to
make the selection and that the Selection Committee
determined the procedure to be followed as to how the eligibility
E of the candidates who participated in the examination, were to
be determined for the purpose of the interview and that after
following the due procedure resolved by the Selection
Committee, the marks secured by the candidates in the written
examinations, in both the papers, which were evaluated by
F different District Judges, were normalized by two common
evaluators and that based on such normalized marks and the
marks scored by the eligible candidates in the interview, the
ultimate selection was made.
G
8. The learned senior counsel contended that the
submission that there was midway change in the process of
selection was not correct in the light of the amended Rule 7 and
the power vested in the High Court under Rule 9(iv), which
enabled the High Court to follow its own procedure for making
the selection. The learned senior counsel lastly contended that
H
y •
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG GEN. 899
[F-AKKIR MOHAMED IBRAHIM KALIFULLA, J]
. by following the due procedure prescribed by the High Court A
in the matter of the selection, which was in accordance with the
prescribed Rules, the Selection Committee in its wisdom found
that the third respondent alone was found meritorious and
suitable for holding the post in Higher Judicial Service of
Madhya Pradesh and in the absence of any other allegations
B
striking at the route of the selection process or the Selection
Committee or Interview Committee, the ultimate selection
~-
made by the High Court and the appointment of the third
respondent based on such selection cannot be interfered with.
The learned senior counsel relied upon the decisions reported c
in A// India Judges' Association and others (supra), K.H. Siraj
vs. High Court of Kera/a and others - (2006) 6 SCC 395 anct
•!
The State of Haryana vs. Subash Chander Marwaha and
i
others - (1974) 3 sec 220 in support of his submissions.
9. Having heard the learned counsel for the respective D
'I
parties and having perused the relevant Rules made by the
High Court in its advertisement, as well as the judgment
·-
·impugned in the civil appeals and other material papers, we
feel that in order to· appreciate the controversy raised and the
correctness of the decision made by the High Court in the
E
matter of selection and appointment of third respondent in Writ
Petition (C) No.289 of 2007, reference to the relevant Rules,
1
the clauses contained in the advertisement and the resolutions
of the Selection Committee of the High Court and the
proceedings of the Interview Comn:iittee have to be looked into.
F
We also find that the procedure actually followed by the High
Court and what it sought to explain in the counter affidavit,· have
to be referred in order to understand and clar!fy the procedure
~
followed in the matter of selection.
~/
10. By the advertisement at Annexure P-2, filed by G
respondent No.1 by way of counter affidavit dated 21.08.2006,
the High Court of Madhya Pradesh called for applications to
fill up 20 posts in Madhya Pradesh Higher Judicial Service by
direct recruitment from the Bar, making it .clear that it will be
H
900
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
governed by the Madhya Pradesh Uchchtar Nyayik Seva (Bharti
Tatha Seva Sharten) Niyam, 1994 (hereinafter cajled "the 1994
Rules") as amended by Madhya Pradesh Rajpatra
(ASADHARAN) dated 08.06.2005.
.
B
11. The advertisement stated that out of 20 posts, 11 posts
were earmarked for general category candidates and three
posts each reserved for Scheduled Castes, Scheduled Tribes
and Other Backward Classes candidates. It was also made
clear that if sufficient number of suitable candidates belonging
C
to the reserved categories were not available, such posts would
be treated as unreserved. Para 9 of the advertisement which
contains sub-clauses (i) to (vii) are relevant for our purpose. The
same are required to be extracted, which read as under:
D
(i)
The candidates may be short-listed at the
preliminary stage i.e. before written examination, by ·
the High Court.
(ii)
Eligible candidates will be required to appear in
Written Examination and interview at their own
E
expenses before the High Court of Madhya
Pradesh, Jabalpur, or at such other places as may
be specified by the High Court.
F
G
H
(iii)
The Written Examination shall consist of two
papers, each of 3 hours' duration and of maximum
100 marks. The object of the written examination
is to assess the knowledge of a candidate in Law
and latest pronouncements. 1st paper shall relate
to Constitution of India, Civil Procedure Code,
Cr.P.C., l.P.C.,..Hindu Law, Transfer of Property Act,
M.P. Accommodation Control Act, Limitation Act,
Evidence Act and M.P. Land Revenue Code,
Special Acts like N.D.P.S. Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act,
Prevention of Corruption Act, Negotiable Instrument
Act.
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG
901
GEN. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
'~
Second paper will be in two parts, the First Part will
A
contain factual data of a Civil Case and a Criminal
Case on the basis of which the candidate shall
prepare judgment in the Civil Case and Criminal
Case. The Second Part will contain a passage in
Hindi to be translated into English ar:id a passage
B
in English to translate into Hindi.
(iv)
Only such candidates will be called for interview as
the High Court may decide, on the basis of
evaluation of their performance in the written
C
examination.
(v)
The interview shall carry 25 marks.
(vi)
Candidates shall be selected on tne basis of
aggregate marks obtained by them in both the
0
written examination and interview.
(vii) On completion of the selection process, the result
of examination (list of selected candidates) shall be
published in M.P. Rajpatra and all the candidates
both successful and unsuccessful shall be supplied
mark sheets at their given addresses by ordinary
post."
E
12. The said para 9 states as to how the short-listing of
candidates at the preliminary stage itself before the written
F
examination were to be made/by the High Court, the
requirement of the candidates to appear in the written
examination consisting of two papers where, the maximum
marks in each paper was 100 and the relevant laws in which
the examination would be conducted in botti the papers was
G
also specified. In para 9(iv), it was specified ttiat the High Court
may decide on the basis of evaluation of their performance in
the written examination for calling those candidates for
interview. Under para 9 (v), the interview marks were specified
as 25. In para 9(vi), it was mentioned that candidates would
H
\
902
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A be selected on the basis of aggregate marks obtained by them,,
·T"'"""
bo.th in the written examination and the interview. The last.
paragraph of the amended Rule 7 is also relevant, which reads ·
as under:
B
"The procedure of selection for direct recruitment and
promoti6n shall be such, as may be specified by the High
Court from time to time."
13. As per the advertisement at Annexure P-2, the last date
for submission of application was 30.09.2006 and the date of.
c examination was notified as 17.12.2006. In response to the:
advertisement, it is stated that 3556 number of applications i
were received and ultimately 2498 candidates appeared for '
paper I and 2494 candidates appeared for paper II. According
to the High Court, in accordance with Rule 7, as well as
D paragraph 9 of the advertisement, the Selection Comrpittee
constituted by the High Court, monitored the whole selecti_on
and the ultimate appointment of the third respondent was also
approved by the Full Court. The Selection Committee stated
to have met on 22.03.2007, as per Annexure R-1 in which the
E committee adopted the following resolutions in the matter of
direct recruitment to the post of Additional District Judge through •
competitive examination. The resolutions are as under:
"1.
On the basis of the evaluation made by District
F
Judges scheduled caste and scheduled tribe
candidates must secure 35 per cent marks and
other candidates must secure 40 per cent marks
in the first paper and in the second paper to qualify
for viva-voce.
G
2.
While determining the merit of candidates finally,
the marks secured by different candidates in the
written examination in the first and second paper
will be normalized on the basis of marks secured
by them in the common evaluation by the same
H
i
~
_,..,
'.,,- -
MAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG GEN. 903
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
3.
evaluator for each of the two papers.
To the marks so normalized by common Evaluators
of both the papers, the marks secured in the vivavoce will be added and the merit position of the
candidates will be determined."
14. Annexure R-2 filed along with counter affidavit of the
High Court, consists of 15 candidates who were called for
interview on the basis of the result of the written examination
held on 17.12.2006. The date of interview was noted as 6th and
A'
B
7th April, 2007 at 10 A.M. to 5 P.M. for all the candidates at C
the High Court of Madhya Pradesh, Jabalpur. All the 15
-eandidates found in Annexure R-2 are the petitioners and
respoi:idents 3 to 8, in Writ Petition (C) No. 289 of 2007 and it
is relevant to state that Annexure P-6 to P-9 relate to them.
Ahnexure P-6 filed·by the petitioners in the said writ petition, D
is a true copy issued by the Registrar General of the High Court
of Madhya Pradesh, which is stated to be the tabulation sheet
of candi~ates on the basis of the marks awarded by District
Judges prior to the process of normalization and who were
selected for personal interview on the 6th and 7tti of April, 2007.
E
It will be necessary to notethe marks found therein in the said
statement and, 'therefore, the same is also extracted hereunder;
s.
Roll
Name of the
Paper I Paper II
No. No;
No.Candidates
F
1
1030 Shri Axay Kumar Dwivedi
59
58
.-
2
3202 Shri Radhe Shaym Sharma
65
64
3
3806 Shri Sanat Kumar Kashyap
58
45
G
4
1652 Shri Arvind Kumar Soni
53
57
5
.4477 Shri Mahinder Kumar
50
59
-·
6
4480 Shri Hemant Kumar Yadav
48
50
H
904
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
7
4484 Shri Jai Narayan Gupta
44
54
.
8
4463 Shri Praneet Sharma
42
52
9
4143 Shri Ravindra Kumar Agrawal
40
44
.
B
10
2571 Shri Akhilesh Shukla
43
45
11
1554 Shri Dharam Prakash Sharma 42
44
12
4402 Shri Niraj Kumar Shrivastava
47
41
c
13
1058 Raj Kumari Mishra
40
45
14
3048 Shri Deepak Kishanchand
40
41
Wadhwani
15
2909· Shri Krishna Ballabha Kumar
43
40
Pandey
D
15. Annexure P-7 is also a certified true copy issued by
Registrar General, which contains the normalized marks
awarded by the common evaluator of the candidates who were
E
called for personal interview on the 6th and 7t~ of April, 2007,
which is as under:
s.
Roll
Name of the
Normalized Marks
No.
No.
Candidates
by common.Evaluators
F
I
II
1
1030
Shri Axay Kumar
50
56
Dwivedi
2
3202
Shri Radhe Shaym
47
52
G
Sharma
3
1652
Shri Arvind Kumar
42
52
Soni
4
3806
Shri Sanat Kumar
37
41
Kashyao
H
'fMAHINDER KUMAR v. HIGH COURT OF M.P. THR. REG GEN. 905
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
5
4477
Shri Mahinder
41
42
·Kumar
6
4480
Shri Hemant Kuamr
29
50
Yadav
7
1554
Shr~ Dharam
36
40
Prakash Sharma
.
8
4143
Shri Ravindra
23
44
Kumar Agrawal
-
9
2571
Shri Akhilesh Shukla
34
37
10
1058
Raj Kumari Mishra
26
40
11
4402
Shri Niraj Kumar
29
37
Shrivastava
12
4484
Shri Jai Narayan
23
38
Gupta
,13
4463
Shri Praneet Sharma
24
36
1 :4
3048
Shri Deepak
19
32
Kishanchand Wadhwani
15
2909
Shri Krishna Ballabha
23
28
Kumar Pandey
A
B
c
D
E
16. Annexure P-8 is another certified true copy of the
tabulation sheet of candidates who were interviewed on the 6th
and .7th of April, 2007, which disclosed ·the marks secured by
F
them in the interview, which is as under:
s.
Roll
Name_ <>! the
Interview Marks
No.