# STATE OF HARYANA v. SUBASH CHANDER MARW AHA AND ORS

- **Citation:** [1974] 1 S.C.R. 165
- **Court:** Supreme Court of India
- **Decided:** 1973-05-02
- **Case number:** Civil Appeal No. 534 of 1973
- **Bench:** J). G. Palekar, A. Alag!Riswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-haryana-v-subash-chander-marw-aha-and-ors-6647
- **Pages:** 7

## Headnote

Puniab Civil Service (Judicial Branch) Service Rules. Part C, rr. 8 and 10Rules fixing 45% as qualifying
marks-Government
fixing SS% for actual
3election fur appointment-ILillegal.
Under the Punjab Civil Service (Judicial Branch) Service Rules, which were
applicable in the appellant-State, the State Public Service Commission was to
hold an examination and prepare a list strictly in accordance with the marks
obtained by the candidates.
Under s. 8 of Part C of the Rules, no candidate
shall be considered to have qualified unless he obtains 45% marks in the aggre ..
gate.
Under r. 10. after the list is published in the Gazette. Government was
bound to make the selection of the candidates strictly in the order in
the
list. and intimate the selection to the High Court. When vacancies are to be
filled the High Court will send in the names in accordance with. and in the
order in, the list, for appointment.
In the present case, it was advertised that the Public Service Commission
would hold an examination for recruitment
of candidates
for 15 vacancies.
<40 candidates qualified by scoring 45% or more marks. The appellant selected
the first seven who had scored more than 55% marks. The respondent,
who
ranked 8, 9 and 13 in the list, filed a petition for the
issue of a
mandamuJ
claiming that since there were 15 vacancies, the appellant was not entitled to
fill up only seven.
The appellant justified their action on the ground that in
the interest ot maintaining high standards of judicial competence, they were not
prevented from fixing a higher standard while 111aking the actual appointment.
'The High Court allowed the petition.
Allowing the appeal to this Court.
E
HELD: (1) In order that
n1andamus may issue to compel an authority
F
to do something, it must be shown that the statute imposes a legal duty on that
authority and that the aggrieved party had a legal right under the statute to
enforce its performance. [l 70E-G]
Rai Shivendra Bahadur v. The Governing Body of the Nalande1 College,
(1962] Suppl. 2 S.C.R. 144, followed.
(2) The advertisement that there were 15 vaca:Ocies did not give the res·
pendent a right to be appointed. The fact that a candidate's name appeared in
the list also did not entitle him to be appointed. [170A]
(3) The effect of the rules is that, (a) the State Government shall
not
make appointments by travelling outside the list. and (b) the State Government
!hall make the selection for appointment strictly according to the order in the
list. There is no other constraint or le2al duty on the Government l;O make
an appointment. in the judicial service. merely because there are vacanc;1es or 11
list had been prepared. [l 70C-E]
G
( 4) There !s no constraint ~~ the Government against fixing a higher score
H
of marks for the purfJOSe of sefection with a view to maintain a high standard.
There was nothing arbitrary in fixing 55% for the purpose of selection, because,
the H1.e:h Court itself intimated such a view to the Punjab Government. The
fact that that Govern1nent later fixe:d a lower score was no 2I'Ollnd for
the
,appellafit to change their mind. (l 71A-D]

## Text

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165
STATE OF HARYANA
v.
SUBASH CHANDER MARW AHA AND ORS.
May 2, 1973
[J). G. PALEKAR AND A. ALAG!RISWAMI, JJ.J
Puniab Civil Service (Judicial Branch) Service Rules. Part C, rr. 8 and 10Rules fixing 45% as qualifying
marks-Government
fixing SS% for actual
3election fur appointment-ILillegal.
Under the Punjab Civil Service (Judicial Branch) Service Rules, which were
applicable in the appellant-State, the State Public Service Commission was to
hold an examination and prepare a list strictly in accordance with the marks
obtained by the candidates.
Under s. 8 of Part C of the Rules, no candidate
shall be considered to have qualified unless he obtains 45% marks in the aggre ..
gate.
Under r. 10. after the list is published in the Gazette. Government was
bound to make the selection of the candidates strictly in the order in
the
list. and intimate the selection to the High Court. When vacancies are to be
filled the High Court will send in the names in accordance with. and in the
order in, the list, for appointment.
In the present case, it was advertised that the Public Service Commission
would hold an examination for recruitment
of candidates
for 15 vacancies.
<40 candidates qualified by scoring 45% or more marks. The appellant selected
the first seven who had scored more than 55% marks. The respondent,
who
ranked 8, 9 and 13 in the list, filed a petition for the
issue of a
mandamuJ
claiming that since there were 15 vacancies, the appellant was not entitled to
fill up only seven.
The appellant justified their action on the ground that in
the interest ot maintaining high standards of judicial competence, they were not
prevented from fixing a higher standard while 111aking the actual appointment.
'The High Court allowed the petition.
Allowing the appeal to this Court.
E
HELD: (1) In order that
n1andamus may issue to compel an authority
F
to do something, it must be shown that the statute imposes a legal duty on that
authority and that the aggrieved party had a legal right under the statute to
enforce its performance. [l 70E-G]
Rai Shivendra Bahadur v. The Governing Body of the Nalande1 College,
(1962] Suppl. 2 S.C.R. 144, followed.
(2) The advertisement that there were 15 vaca:Ocies did not give the res·
pendent a right to be appointed. The fact that a candidate's name appeared in
the list also did not entitle him to be appointed. [170A]
(3) The effect of the rules is that, (a) the State Government shall
not
make appointments by travelling outside the list. and (b) the State Government
!hall make the selection for appointment strictly according to the order in the
list. There is no other constraint or le2al duty on the Government l;O make
an appointment. in the judicial service. merely because there are vacanc;1es or 11
list had been prepared. [l 70C-E]
G
( 4) There !s no constraint ~~ the Government against fixing a higher score
H
of marks for the purfJOSe of sefection with a view to maintain a high standard.
There was nothing arbitrary in fixing 55% for the purpose of selection, because,
the H1.e:h Court itself intimated such a view to the Punjab Government. The
fact that that Govern1nent later fixe:d a lower score was no 2I'Ollnd for
the
,appellafit to change their mind. (l 71A-D]
CIVIL APPELLATE JURISDICTION : Civil
Appeal No. 534 of
1973.
Appeal by special leave from the judgment and order da~
January 31. 1973 of the Puniab and Haryana High Court at. Chand1-
~arh in c.w. No. 1541 of 1972.
166
SUPREME COURT REPORTS
[ 1974 J l s.c.R.
C. K. Daphtary, J. N. Kaushal and Bishambar Lal, for the appelA
Jant.
,
P. Malhotra, for respondent No. t.
Uma Dutta, for respondent No. 2.
L. M. Singhvi arid. S. K. Dhingra, for respondent No. 3 Brahm
Dev Sethi, for the intervener.
B
The Judgment of the Court was delivered by
PALEKAR, J.-This is an appeal by special leave from an Order of
the High Court of Punjab and Haryana dated January 31, 1973 passed
in Civil Writ No. 1541 of 1972. That was a Writ Petition filed by
respondents 1 to 3 for a mandamus.
The petition was allowed and by
its judgment the High Court issued a mandamus to the appellant to
select respondents 1 to 3 under Rule lO(ii) of Part C of the Punjab
Civil Service (Judicial Branch) Services Rules so that their names are
brought on the High Court Register for appointment as Subordinate
Judges in the Haryana State. The aforesaid rules had been adopted by the Haryana State after bifurcation.
On February 3, 1970 an advertisement was published in the Government Gazette to the effect that the Haryana Public Service Commis-
. sion will hold an examination for recruitment of candidates for 15
vacancies in the Haryana Civil Service (Judicial Branch).
In response
to the advertisement a number of candidates appeared for the examination held in November, 1970. The result of the competitive examination was declared and published in the Haryana Govermnent Gazette
on April 6, 1971. It was a list of 40 candidates who obtained 45 %
or more marks in the examination.
The State Government which is
the appointing authority made seven appointments in the serial order
of the list according to merit.
Respondents who ranked 8, 9 and 13
respectively in that list did not get an order of appointment although
there were vacancies.
The reason for not making the appointments
was that in the view of the State Government, which was the same as
that of the High Court previously intimated to the State Goverru:i:ient,
candidates getting less than 55% of marks in the examination should
not be appointed as Subordinate Judges in the interest of maintaining
high-standards of competence in Judicial Service.
Respondents 1 to
3 who expected to be appointed filed the petition claiming that since
there were 15 vacancies and they had the necessary qualifications for
appointment the State Government was not entitled to pick and choose
only seven out of them for appointment, because to do so would be
to prescribe a standard which was not contemplated by the rules but
was against them.
The appellant, on the other hand, contendep that
the rules did not ohlige them to fill in all the vacancies and it was open
to them ( the Government) to appoint the first seven candidates from
the list in the interest of maintaining high-standards.
There was no
question of picking and choosing.
The rules did not prevent the State
from deciding at the time of selection from the list, the minimum number of marks that a selected candidate should score for the purpose of
an appointment. The High Court agreed with the contention of the
State that merely becaus·e the advertisement was for filling 15 vacancies,
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G.
8
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G
H
HARYANA v. s. c. MARWAHA (Palekar, J.)
167
the first 15 candidates in the list had no right to be appointed in the
posts but held that as long as there are requisite number of . vacancies
unfilled and qualified candidates were available, those candidates had
a legal right to be selected under rule 10 . . . . . . . . of Part C of the
Rules.
In the view of the High Court the State Government was not
entitled to impose a new standard of 55 % of marks for selection as
that was against the rule which providecflor a minimum of 45%.
It is contended on behalf of the appellant that the above finding
agamst the State was erroneous.
The submission was that under the
rules the minimum of 45 % was an element to be considered for the
eligibility of a candidate for selection and that while making the actual
appointment by selection the State Government, in the interest of maintaining high-standards of judicial competence, were not prevented from
fixing a minimum standard of a score of 55% marks, especiaJly, as that
was the view of the High Court also previously intimated to them.
In
our view that submission is correct.
Elaborate rules were framed by the Punjab Government in 1951
for the purpose of recruitment of Subordinate Judges to the Punjab
Civil Service (Judicial Branch).
After the bifurcation of the Punjab
State these rules applied to the State of Haryana and the same have
been published by the Government of Haryana with appropriate
amendments.
Part A of these rules deals with general quaiifications.
Part B deals with the preparation and submission of rolls of those who
are qualified under Part-A.
Those who are on these rolls prepared
by the District Judges become eligible for appearing in a written examination held by the Punjab Public Service Commission.
The rules with
regard to this examination are in Part C.
Rule 4 thereof provides that
"the examination papers shall be set and marks awarded by examiners -
who will be appointed by the Punjab Public Service Commission."
Rule 8, which is important, is as follows : "No candidate shall be considered to have qualified unless he obtains 45 per cent marks in the
aggregate of all the papers and at least 33 per cent marks in the language paper, that is, Hindi (in Devnagri script)".
As we shall ;ee
immediately the final selection depends entirely on this examination.
Apart from this examination there is no other hurdle except that of
medical examination to be passed by the candidate.
No oral interview is prescribed.
Rule 10 is as follows :
(i) The result of the examination will be published in the
Punjab Government Gazette.
(ii) Candidates will be selected for appointment strictly
in the order in which they have been placed by the
Punjab Service Commission in the list of those who
have qualified under rule 8 ; .......... "
It will be seen from this that the function under the rules given to the
Punjab Public Service Commission was to hold the examination and
then prepare a list strictly in accordance with merit on the basis of the
marks received in the examination and this list was to be pubibhed in
the Punjab Government Gazette.
Thus it became public property and
every candidate would know having regard to the vacancies whether he
ts likely to be appointed.
'168
SUPREME COURT REPORTS
( 1974] 1 S.C.R.
The list is of great importance.
There could be no departure from
A
:the list either by the Public Service .CommissiPD, \he High Court or the
State Government.
This will be seen from Part D which relates to
appointments.
Rule 1 in this part provides that "the names of candidates selected by Government for appointment as Subordinate Judges
under rules 10 and 11 of Part C shall be entered on the High Court
Register in the order of their selection." Rule lO(ii) in Part C referred to earlier stated that the "candidates will be selected for appointII
ment" and rule 1 in Part D says "that the selection was by Government
for appointment".
Reading the two together it is clear that Government was bound to make the selection strictly in the order in which the
names were mentioned by the Public Service Commission in the list
and this selection was for the specific purpose of making appointments.
There is no question of the High Court making any recommendations.
Once the State Government has selected the names of the candidates
C
strictly in accordance with the list, such selection for appointment is
intimated to the High Court and the candidates so selected by Government for appointment are to be entered by the High Court in a Register
in the order of the selection.
Obviously the Register is to be kept by
the High Court because the High Court knows in its administrative
capacity what vacancies have occurred and which are the courts to
which the appointments have to be made.
The Service Rules have
D
been made in consultation with the Public Service Commission and the
High Court and, therefore, they are binding on all.
They show that
the examination is the final test, apart from medical examination as per
rule 11 in Part C for a candidate's appointment to the post of the Subordinate Judge and once the list is prepared by the Public Service
·Commission strictly in order of merit, neither the Public Service Commission nor the State nor the High Court can depart from the order of
E
merit given in the list except where reservations have been made in
favour of backward classes and Scheduled castes and tribes in accordance with rule lO(ii).
In the present case it appears that about 40 candidates had passed
the examination with the minimum score of 45 per cent.
Their names
were published in the Government Gazette as required by Rule 10 ( 1)
F
already referred to.
It is not disputed that the mere entry in this list
<1f the name of a candidate does not give him the right to be appointed.
The advertisement that there are 15 vacancies to be filled does not also
give him a right to be appointed. It may happen that the Government
for financial or other administrative reasons may not fill up any vacandes. In such a case the candidates, even the first in the list, will not
have a right to be appointed.
The list is merely to help the State
G
Government in making the appointments showing which candidates
have the minimum qualifications under the Rules.
The stage for
~election for appointment comes thereafter, and it is not djsputed that
under the Constitution it is the State Government alone' which can
make the appointments.
The High Court does not come into the picture for recommending any particular candidates.
After the State
Government have taken a decision as to which of the candidates in
H
accordance with the list should be appointed. the list of selected candidates for apopintment is forwarded to the High Court and the
Hi~h
Court then will have to enter such candidates on a Register maintained
8
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HAllYANA v. s. c. MARWAHA (Palekar, J.)
169
by it. When vacancies are to be filled the High Court will send in the
names of the candidates in accordance with the select list and in the
order they have been placed in that list for appointment in the vacancies.
The High Court, therefore, plays no part except to suggest to
the Government who in accordance with the select list is to be appointed in a particular vacancy. It appears that in the present case the
Public Service Commission had sent up· the rolls of the first 15 candidates because the Commission had been informed that there are 15
vacancies. The High Court also in its routine course had sent up the
first 15 names to the Government for appointment.
Thereupon the
Chief Secretary to Government, Haryana wrote to the Registrar of the
High Court on May 4, 1971 as follows :
"I am directed to refer to Haryana· Government endst.
No. 1678-lGS II-71/3802, dated the 22nd April, 1971, on
the subject noted above, and to say that after careful consideration of the recommendations of the Punjab and Haryana
High Court for appointment of first fifteen candidates to the
Haryana Civil Service (Judicial Branch), the State Government have taken the view that it would be appropriate that
only the first seven. candidates should be appointed to the
Haryana Civil Service (Judicial Branch) and a notification
has been issued accordingly.
The reason is
that in
the
opinion of the State Government, only those candidates who
obtained 55 % or more marks in the Haryana Civil Service
(Judicial Branch) Examination, should be appointed as that
wiil serve to n11aintain a minimum standard in the appointments to the Service. It may be mentioned that the last candidate appointed against un-reserved vacancies out of
the
merit list prepared on the basis of the Haryana Civil Service
(Judicial Branch) Examination held in May, 1969, secured
55;67% marks.
The State Government have also received information
that the, Punjab and Haryana High Court themselves recommended to the Punjab Government that in respect of P .C.S.
(Judicial Branch) Examination held in
1970, candidates
securing 55% marks or more should be appointed against
un-reserved vacancies.
Thus, the decision taken by Haryana Government. is in line with the recommendations which
the High Court made to the Punjab Government regarding
recruitment to the P.C.S. (Judicial Branch) on the basis of
the Examination held in 1970, and a similar policy in both
the cases would be desirable for obvious .reasons."
This will clearliy go to show that the High Court itself had recom-
·mended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate Judges
and the Haryana Government in the interest of maintaining highstandards in_ the service had agreed with that opinion.
This was
entirely in the interest of judicial administration.
.
It is rather difficult to follow the reasoning of the High Court in
thiit case. It agrees that the advertisement mentioning 15 vacancies
170
SUPREME COURT REPORTS
[ 1974 I 1 S.C.R.
did not give a right to any candidate to be appointed to the post of a
Subordinate Judge., Even so it s?mehow persuaded itself to spell out
a nght m the candidates because m fact there were 15 vacancies.
At
one place it was stated "so long as there are tlie number of vacaucies
to be filled in and there are qualified candidates in the list forwarded
by the Public Service Commission along with their Rolls, they have
got a legal nght to be selected under rule lO(ii)
in Part ·c." One
fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment.
The examination is for the
purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then
to the Government to decide how many appointments shall be made.
The mere fact that a candidate's name appears in the list will not entitle
him to a mandamus that he be appointed.
Indeed, if the State Government while making the selection for appointment had departed from
the ranking given in the list, there would .have been a legitimate grievance on the ground that the State Government had departed from the
rules in this respect.
The true effect of rule 10 in Part C is that if and
when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for
appointments strictly in the order the candidates have been placed in
· ·the list published in the Government Gazette.
In the present case
neither of these two requirements is infringed by the
Goven;ment.
They have appointed the first seven persons in the list as Subordinate
Judges.
Apart from these constraints on the power to make the
appointments, rule 10 does not impose any other constraint.
There
is no constraint that the Government shall make an appointment of a
Subordinate Judge either because there are \'acancies or because a list
of candidates has been prepared and is in existence.
It must be remembered that the petition is for a mandamus.
This
Court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing
Body of the Nalanda College(!) that in order that mandamus may
issue to compel an authority to do something, it must be shown that the
statute imposes a -legal duty on that anthority and the aggrieved party
has a legal right under the statute to enforce its performance. Since
there is no legal duty on the State Government to appoint all the 15
persons who are in the list and the petitioners have no legal right under
the rules to enforce its performance the petition is clearly misconceived.
It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per
cent or more in the competitive examination eligible for appointment,
the State Government had no right to introduce a new rule- by which
they can restrict the appointments to only those who have scored not
less than 55%. It is contended that the State Government have acted
arbitrarily in fixing 55 per cent as the minimum for selection and this
is contrary to the rule referred to above.
The argument has no force.
Role 8 is a step in the preparation of a list of eligible candidates with
minimum qualifications who may be considered for appointment. 1be
list is prepared in order of merit: The one higher in rank is deemed
(I) [1962] (2) Suppl. S.C.R. 144.
A
B
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HARYANA v. s. c. MARWAHA (Palekar, J.)
171
to be more meritorious than the one who is lower in rank.
It could
never be said that one who tops the list is equal in merit to the one who
is at the bottom of the list.
Except that they are all mentioned in on~
list, oach one of them stands on a separate level of competenec as compared with another. That is why rule lO(ii), Part C speaks of "selection for appointment".
Even as there is no constraint on the State
Government in respect of the number of appointments to be
made,
lhere is no constraint on the Government fixing a higher score of marks
for the purpose of ·selection. ln a case where appointments are made
by selection from a number of eligible candidates it is open to the
Government with a view to maintain high-standards of competence to
fix a score which is much higher than the one required for mere e!igi-
'blity.
As shown in the letter of the Chief Secretary already reierred
to, they fixed a minimum of 55 % for selection as they had done on a
previous occasion.
There is nothing arbitrary in fixing the score of
55% for the purpose of selection, because that was the view of the
High Court also previously intimated to the Punjab Government on
which the Haryana Government thought tit to act.
That the Punjab
Government later on fixed a lower score is no reason for !he Haryana
Government to change their mind.
This is essentially a matter of
administrative policy and if the Haryana State Governmem think that
in the interest of Judicial competence persons securing less than 5 5 %
o( marks in the competitive examination should not be selected for
appointment, those who get less than 55 % have no right to claim that
the selections be made of also those candidates who obtamed less than
the minimum fixed by the State Government.
In our view the High·
Court was in error in thinking that the State Government had somehow contravened rule 8 of Part C.
The appeal must, therefore, be allowed and the order passed by the·
High Court set aside.
There shall be no order as to costs.
V.P.S.
Appeal alloweil~