# STATE OF U.P., ETC v. RAFIQUDDIN & ORS. ETC

- **Citation:** [1988] 1 S.C.R. 794
- **Court:** Supreme Court of India
- **Decided:** 1987-11-04
- **Case number:** Civil Appeal No. 4023 of 1982
- **Bench:** E.S. Venkataramiah, K.N. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-etc-v-rafiquddin-ors-etc-9770
- **Pages:** 41

## Headnote

c
D
Service matters-Questions of law relating to seniority of Munsifs
in the Uttar Pradesh Nyayik Seva appointed as a result of the competitive Examinations of 1970, 1972 and 1973, held under the Uttar Pradesh
Civil Service (Judicial Branch) Rules, 1951-Determination of.
These appeals and writ petitions raised common questions of law
relating to the determination of seniority of Munsif appointed in the
Uttar Pradesh Nyayik Seva as a result of competitive Examinations of
1970, 1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 (the Rules).
Public Service Commission issued a notification dated September
3, 1970, for recruitment to 85 posts of Munsifs. In the examination held
for the purpose, 294 out of 918 candidates qualified in the written test
·and were called for viva voce test, and the Commission submitted to the
State Government a list of 46 approved candidates-list of 1970
E examination-for appointment to the service. The Government
requested the Commission to recommend some more candidates as there
was a shortage of Munsifs, while suggesting that the minimum of 40 per
cent marks in the aggregate be reduced to 35 per cent. The Commission
forwarded another list of 33 candidates-the Ilnd list, comprising the
candidates who had secured 35 per cent marks in the aggregate and 35
F
percent, in the Viva Voce .• All the 79 candidates of the two lists abovesaid were appointed to service between May, 1972, and June, 1973, and
in July, 1973, a notification was issued, determining inter se seniority of
the 79 persons appointed on the basis of the 1970 examination in
accordance with their position in the lists prepared by the Commission
under rule 19 of the Rules. Meanwhile, the Public Service Commission
G held another ·competitive examination-the 1972 examination-for
appointments to 150 posts of Munsifs, and forwarded a list of 150
successful candidates to the Government for appointment under Rule
19 above-mentioned, and they were so appointed between 1975 and
1977.
H
The State Government, in view of the shorta~e of the Munsifs
794
' }
STATE OF U.P. v. RAFIQUDDIN
795
as also the amendment of rule 19 in pursuance whereof it was no longer
A
necessary for a candidate to qualify independently in the viva voce,
requested the Commission to reconsider the result of the examination of
1967, 1968, 1969 and 1970 and approve all those candidates for
appointment who might have obtained 40 per cent or more marks in the
aggregate even if they might have failed to secure the m·inimum marks
in the viva voce tests. The Commission refused to consider this proposal B
as the minimum marks prescribed by it under the then existing proviso
to Rule 19 could not be ignored. The Government thereupon constituted
a high level committee comprising the Chief Minister, the Chief Justice
of the High Court and the Chairman of the Public Service Commission
to consider this question, and the Committee decided that the Commis-
(
sion be requested to recommend candidates of the 1967, 1968, 1969 and
~ 1970 examinations as above-mentioned. The Government wrote to the C
commission again for the purpose, conveying to it the decision of the
High level committee above-said, and asking it to forward the applications and the marks of the unsuccessful candidates of the Examinations
above-mentioned. The Commission could forward a list of 37 such
candidates of the 1970 Examination only-the Illrd list-to the Gov- o
ernment. The Hird list contained the names of Refiquddin and 36
others, the "unplaced candidates" of the 1970 Examinations, unsuccessful due to failure in the viva voce. Thereupon, the Government
issued a notification, appointing 21 of the 37 candidates above-mentioned as Munsifs, the remaining 16 having already again appeared in
the 1972 Examination and selected and appointed to the service. Upon a E
further request by the Government for 16 more candidates, the Commission forwarded another list. of 16 candidates who had appeared in
t

## Text

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A
STATE OF U.P., ETC.
v.
RAFIQUDDIN & ORS. ETC.
NOVEMBER 4, 1987
B
[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.]
c
D
Service matters-Questions of law relating to seniority of Munsifs
in the Uttar Pradesh Nyayik Seva appointed as a result of the competitive Examinations of 1970, 1972 and 1973, held under the Uttar Pradesh
Civil Service (Judicial Branch) Rules, 1951-Determination of.
These appeals and writ petitions raised common questions of law
relating to the determination of seniority of Munsif appointed in the
Uttar Pradesh Nyayik Seva as a result of competitive Examinations of
1970, 1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 (the Rules).
Public Service Commission issued a notification dated September
3, 1970, for recruitment to 85 posts of Munsifs. In the examination held
for the purpose, 294 out of 918 candidates qualified in the written test
·and were called for viva voce test, and the Commission submitted to the
State Government a list of 46 approved candidates-list of 1970
E examination-for appointment to the service. The Government
requested the Commission to recommend some more candidates as there
was a shortage of Munsifs, while suggesting that the minimum of 40 per
cent marks in the aggregate be reduced to 35 per cent. The Commission
forwarded another list of 33 candidates-the Ilnd list, comprising the
candidates who had secured 35 per cent marks in the aggregate and 35
F
percent, in the Viva Voce .• All the 79 candidates of the two lists abovesaid were appointed to service between May, 1972, and June, 1973, and
in July, 1973, a notification was issued, determining inter se seniority of
the 79 persons appointed on the basis of the 1970 examination in
accordance with their position in the lists prepared by the Commission
under rule 19 of the Rules. Meanwhile, the Public Service Commission
G held another ·competitive examination-the 1972 examination-for
appointments to 150 posts of Munsifs, and forwarded a list of 150
successful candidates to the Government for appointment under Rule
19 above-mentioned, and they were so appointed between 1975 and
1977.
H
The State Government, in view of the shorta~e of the Munsifs
794
' }
STATE OF U.P. v. RAFIQUDDIN
795
as also the amendment of rule 19 in pursuance whereof it was no longer
A
necessary for a candidate to qualify independently in the viva voce,
requested the Commission to reconsider the result of the examination of
1967, 1968, 1969 and 1970 and approve all those candidates for
appointment who might have obtained 40 per cent or more marks in the
aggregate even if they might have failed to secure the m·inimum marks
in the viva voce tests. The Commission refused to consider this proposal B
as the minimum marks prescribed by it under the then existing proviso
to Rule 19 could not be ignored. The Government thereupon constituted
a high level committee comprising the Chief Minister, the Chief Justice
of the High Court and the Chairman of the Public Service Commission
to consider this question, and the Committee decided that the Commis-
(
sion be requested to recommend candidates of the 1967, 1968, 1969 and
~ 1970 examinations as above-mentioned. The Government wrote to the C
commission again for the purpose, conveying to it the decision of the
High level committee above-said, and asking it to forward the applications and the marks of the unsuccessful candidates of the Examinations
above-mentioned. The Commission could forward a list of 37 such
candidates of the 1970 Examination only-the Illrd list-to the Gov- o
ernment. The Hird list contained the names of Refiquddin and 36
others, the "unplaced candidates" of the 1970 Examinations, unsuccessful due to failure in the viva voce. Thereupon, the Government
issued a notification, appointing 21 of the 37 candidates above-mentioned as Munsifs, the remaining 16 having already again appeared in
the 1972 Examination and selected and appointed to the service. Upon a E
further request by the Government for 16 more candidates, the Commission forwarded another list. of 16 candidates who had appeared in
the 1972 Examination.
In March, 1977, the State Government published a seniority list
of the successful candidates of the 1970 examination, whereupon, the F
-\ "unplaced candidates" of the Hird list of the 1970 Examination submitted a representat.ion for determination of their seniority under Rule
22 of the Rules on the footing that they were recruited in pursuance of
the 1970 Examination, and, therefore, they were entitled to seniority as
candidates of the examination held in 1970 irrespective of their appointment being made in 1975, thereby claiming seniority over those who G
had been recruited in pursuance of the 1972 Examination and those who
had been recruited earlier to them in pursuance of the 1970 Examina-
\
tion and the 1st and llnd lists of the 1970 Examination. The representation was rejected by the High Court (administratively) and the Government. Then, Rafiquddin and 16 other "unplaced candidates" filed a
writ petition in the High Court. The High Court allowed the writ petiH
I
'
796
SUPREME COURT REPORTS
[1988] 1 S.C.R.
A lion on the footing that the "unplaced candidates" were appointed on
the basis of the result of the 1970 Examination, quashed the seniority
list and issued directions for the preparation of the seniority list of the
candidates of the 1970 Examination afresh in accordance with rule 22,
read with rule 19 of the rules and for confirmation and promotion of the
petitioners in accordance with the seniority list so drawn up. The State
B of Uttar Pradesh appealed to this Court again.st the decision of the High
Court.
Appellants Sushi! Kumar Srivastava and others also preferred an
appeal to this Conrt against the above-said decision of the High Court.
-
D.P. Shukla and three other unsuccessful candidates of the 1970
,
C Examination preferred an appeal to this Court against the judgment of .J
the High Court dismissing the writ petition filed by them, raising the
grievance that they were discriminated as they had not been appointed,
D
E
F
G
and instead, 37 candidates "belonging to the Hird list" had been appointed although they had obtained lower marks.
Chandra Prakash Agrawal, an unsuccessful candidate at the 1970
Examination, filed a wrii petition in this Court, challenging the
appointments of those who had secured less than 40 per cent marks in
the aggregate.
Sushi! Chand Srivastava, a member of the service appointed in
pursuance of the 1972 Examination filed a writ petition in this Court,
challenging the validity of the appointments of the "unplaced candidates" of the 1970 Examination belonging to the Hird list which
included Rafiquddin and others, on the ground that their appointment
was illegal and, therefore, they could not be treated as senior to him.
R.P. Lavani ya, a member of the service recruited in pursuance of
the 1973 Examination filed a writ petition in this Court, claiming
seniority over respondents 3 to 15 in the writ petition, recruited in
pursuance of the 1972 Examination and appointed in service after the
petitioners appointment.
P.N. Parasher and 11 others, recruited in pursuance of the 1972
Examination, filed a writ petition in the High Court, challenging the
seniority list prepared in pursuance of the judgment of the High Court
Yin the writ petition filed by Rafiquddin and others, afore-mentioned on
the ground that the "unplaced candidates" of, the 1970 Examination
H were not entitled to seniority over the candidates of the 1972 Examina-
'
,.
STATE OF U.P. v. RAFIQUDDIN
797
~
tion, as they had been appointed to service earlier in time, that writ
petition was transferred to this Court as the Transferred case.
A
Allowing the appeal filed by the State of U .P. and the appeal
preferred by Sushi! Kumar Srivastava and others and allowing in part
the writ petition of Sushi! Chand Srivastava and the Transferred case of
P.N. Parashar and others, and dismissing the appeal of D.P. Shukla B
and others, and the writ petition of Chandra Prakash Agarwal and the
writ petition of R.P. Lavaniya, the Court.
-
HELD: The High Court completely misconceived the relevant
Rules, while rendering the judgment in the writ petition filed by the
i
"unplaced candidates" Rafiquddin and 16 oth~rs-in total disregard of c
the facts. It committed a serious error in applying the principles of
natural justice to a competitive examination. [820E]
The Rules entrust the Public Service Commission with the duty of
holding competitive examinations and recommending the names of the
:Suitable candidates for appointment to the service on the basis of the D
proficiency shown by the candidates. Rule 19 provided that the list of
the selected candidates should be arranged in order of merit on the
basis of the aggregate marks of each candidate in the written as well as
viva voce tests. In pursuance of clause (i) to the proviso to rule 19, the
eommission had the power to fix minimum aggregate marks in the
---<fl
written test. Similarly, clause (ii) of the proviso conferred power on the E
Commission to fix the minimum marks for the viva voce to judge the
suitability of the candidates for the service. The scheme underlying rule
19 and the proviso there to made it apparent that the obtaining of the
minimum aggregate marks in the written test and the viva voce test,
was the sine qua non before the Commission could make its recommendations in favour of the candidates for appointment to the service. It is F
*
manifest that only those candidates could be appointed to the service
who were included in the list prepared by the Commission under rule
19. Appointments to the service are made from the list forwarded by the
Commission to the State Government. Seniority in the service is
determined on the basis of the year of the examination irrespective of
the date of the appointment and the inter se seniority of the candidates G
recruited is determined on the basis of their ranking in the merit list.
Seniority of a candidate appointed to the service would depend upon the
'\
result of the competitive examination and his position in the list prepared under rule 19. The claim to seniority on the basis of the year of
competitive examination as contemplated by rule 22 is available only to
those candidates who are approved by the Commission on the basis of H
;\
798
SUPREME COURT REPORTS
(1988] 1 S.C.R.
their marks in the written and viva voce tests. The commission alone
had the power to prescribe the minimum marks in the viva voce test for
judging the suitability of a candidate for the service. That is the clear
meaning of the words in the proviso to rule 19. (814B-H]
In the instant case, the commission had fixed 35 per cent
13
minimum marks for the viva voce test. The viva voce test is a
well-recognised method of judging the suitability of a candidate for
appointment to public services. There is no constitutional, legal
infirmity in the provision of clause (ii) of the proviso to rule 19, conferring power on the commission to fix minimum marks for the viva voce
test, as aforesaid, and so long as the clause (ii) remained in force, the
Commission had that power. Even if a candidate had obtained higher
C aggregate marks in the written and viva voce test, his name could not be
included in the list prepared by the Commission under rule 19. None of
the "unplaced candidates" of the 1970 examination (those included in
the Hird list) had secured minimum marks of 35 per cent in the viva
voce test, and for that reason they were not approved by the CommisD sion. The appointments of the "unplaced candidates" made in
pursuance of the decision of the high level committee are not
countenanced by the rules. There is no escape for the conclusion that
the "unplaced candidates" were appointed to service on the basis of
the result of the competitive examination of 1970. Their appointments
were made in breach of the rules. It is well-settled that where recruitE ment to service is regulated by the statutory rules, the recruitment must
be made in accordance with those rules, and any appointment made in
breach of the rules, would be illegal. The appointments of the 21
"unplaced candidates" made out of the third list were illegal as thev
were made in violation of the provisions of the rules. The high level
committee, even though constituted by highly placed persons, had no
F authority in law to take the decision it did as above-said, as the rules do
no contemplate any such committee and the decision taken by t.he committee could not be implemented. The committee had no authority in
law to disregard the rules and direct the Commission, which is a constitutional and independent authority, not sub-servient to the directions
of the Government, to make a recommendation to the Government in
G favonr of the unsuccessful candidates by disregarding the minimum
marks prescribed for the viva voce test. Its view that after the amendment of the rule 19, the minimum qualifying marks fixed for viva voce
could be ignored, was wholly wrong. Rule 19 was amended in January
1972, but before that the 1970 examination had already been held, and
the amendment was not retrospective. Even if the Commission had
H made recommendations in favour of the "unplaced candidates" under
)
STATE OF U.P. v. RAFIQUDDIN
799
the directions of .the government, the appointments of the said candi·
dates would have been illegal as made in violation of the rule~. And
there was no justification for the appointments of the unsuccessful candidates
in 1975 because by then, the result oftbe 1972 examination bad been announced and duly selected candidates were available. [816F-H; 822D-ll; 823C·D]
A
There is no express provision in the rules as to for what period the
B
list prepared under rule 19 can be utilised for making appointments to
· . ..J..,,
the service. In the absence of any provision in the rules, a reasonable
period must be followed during which the appointments on the basis of
the result of a particular examination should be made. The list pre·
pared by the Commission on the basis of the competitive examination of
a particular year could be utilized by the Government for making
appointments before the declaration of the result of the subsequent C
examination. If selected candidates are available for appointment on
the basis of the competitive examinations of subsequent years, it would
be unreasonable and unjust to revise the list of earlier examination by
changing norms to fill up the vacancies, as that would adversely effect
the rights of those selected at the subsequent examination in the matters D
relating to their seniority undrr rule 22. The 1970 examination could
not be utilised· as a perennial source or an. exhaustible reservoir for
making appointments indefinitely. The result of a particular examina·
tion must come to an end at some point of time, like a "dead ball" in
cricket. The practice of revising the list prepared by the Commission
under rule 19 at the behest of the government by lowering down E
fixed standards and norms, is subversive of the rule of law. This
practice is' fraught with dangers of favouritism and nepotism and
it would ~pen back ·door entry to the service. Once the result of
the subsequent examination of 1972 was declared, the Commission
could not revise the list of approved candidates of 1970 examina·
'· tion prepared by it under rule 19 at the behest of the Govern· F
. ment by lowering. down the standar ~ fixed by it. The procedure
r adopted in appointing the unplaced candidates of 1970 examina·
·
tion was unauthorised by law and it practised discrimination in
violation of Articles 14 and 16 of the Constitution. [824B·ll; 82611]
The "unplaced candidates" were appointed to the service in G
breach of the rules and they form a separate class. They cannot be
equated with those appoinied from the first and the second lists of the
· 1970 examination as their appointments were made on the recommen·
dation of the Commission. Similarly, the candidates appointed to the
service on the basis of the result of the competitive examinatio·n of 1972
before the "unplaced candidates" were appointed, fermed a· separate . H
800
SUPREME COURT REPORTS
[ 1988] 1 S.C.R.
A class as they were also appointed in accordance with the rules. The
"unplaced candidates" could not claim seniority over them on the basis
of rule 22, as their appointments were not made on the basis of the list
approved by the Commission under rule 19. [827A-C]
Even though the 21 "unplaced candidates" of 1970 examination
B have been found to have been appointed to the service illegally in breach
of the rules, yet the judgments and others passed by them are not
rendered invalid; they were appointed by competent authority with the
concurrence of the High Court. They have been working in the judicial
service all these years and some of them have been promoted also; they
have performed their functions as de facto judicial officers. The judge ments and orders of a de facto judge cannot be challenged on the
ground of his ineligibility for appointment. Keeping in view the period
of 12 years that has elapsed, the Court did not propose to strike down
the appointments of the "unplaced "andidates". Having regard to all
the facts and circumstances, it would be just and proper to assign
seniority to the "unplaced candidates" of the 1970 examination at the
D bottom of the list of the 1972 candidates. The 16 "unplaced candidates"
out of the total of 37, who were successful in the 1972 examination and
were approved and included by the Commission in the list prepared
under rule 19, are entitled to seniority of 1972 examination on the basis of
their positions in the merit list of that examination. [8270-G; 828F-H]
E
The appeal of the State of U.P. and the appeal of Sushi! Kumar
F
G
Srivastava and others allowed. Judgment of the High Court set aside.
The High Court and State Government shall determine the seniority of
the 21 "upheld candidates" as directed by the Court. [829F-G]
In the Appeal filed by D.P. Shukla and others, directed against
another judgment of the High Court, the view of the High Court was
consistent with the view of this Court. The appellants had appeared at
the 1970 examination but were unsuccessful as they had failed to secure
35 per cent minimum marks at the viva voce test, although they had
secured higher marks in the aggregate than those selected and
appointed. They had challenged the selection made in pursuance of the
1970 examination. [830A-B]
In the writ petition filed in this Court by Chandra Prakash
Aggarwal, as the petitioner had failed to obtain the minimum
marks prescribed for the viva voce test although he had obtained
more than 40 per cent marks in the aggregate, he could not be
H
granted the relief of appointment to the service. He was also,
-
.
j
,
STATE OF U.P. v. RAFIQUDDIN
801
disentitled to any relief on the ground of inordinate delay, there A
being rJo plausible explanation for the delay in challenging the
validity ll;f the 1970 examination in 1982. [830C-D l
/
In the writ petition filed in this Court by Sushi! Chand
( -'Srivastava and in the transferred case of P.N. Parasher and others,
,
the petitioners, recruited to the service on the basis of the 1972 B
J
examination, were aggrieved by the decision of the High Court in
'
Rafiquddin's case as their seniority was affected adversely.
This Court has already taken the view that the "unplaced can-
""
didates" of the 1970 examination could not be senior to the
candidates appointed as a result of the 1972 examination, and the
1 petitioners were covered by that decision of the Court to get relief
~ to that extent. [830G]
C
In the writ petition filed in this Court by R.P. Lavania, the
petitioner was appointed to the service in November, 1976 on the
basis of the result of the 1973 exair.ination. His grievance was that
the respondents Nos. 3 to 15 in the petition had been shown senior o
to him; although they had been appointed later in time on the basis
of the 1972 examination, and that the selection and appointment
of the said respondents were against the rules and they were not
entitled to seniority over him as he was a regularly selected candidate.
_. There was no merit in the petitioner's case. Rule 22 directs that
seniority shall be determined on the basis of the year of examination,
E
which means that a person recruited to the service in pursuance of the
result of a particular year of examination would rank senior to a candi_.
date who is recruited in pursuance of the result of a subsequent year of
examination, although he might have been actually appointed earlier in
time, as, after the selection of the candidates, several formalities, like
medical examination, character and antecedents verification, etc., are F
.~. followed before the appointments are made under rule 21. Many a time,
\ this process of formalities causes delay in the making of the actual
appointment, with the result that sometimes persons selected on the
basis of subsequent examination are appointed before the successful
candidates of the earlier examination. But under rule 22, the latter shall
be senior to the former, irrespective of the date of appointment. The G
petitioner was appointed in the service on the basis of the result of the
1973 examination while the respondents Nos. 3 to 15 were recruited to
-'I'. service on the basis of the result of the 1972 examination. Therefore,
under rule 22, the validity of which has not been challenged, the respondents Nos. 3 to 15 are entitled to be senior to the petitioner.
There was no illegality in the appointments of the respondents
H
802
SUPREME COURT REPORTS
[1988] 1 S.C.R.
Nos. 3 to 15. Their appointments in the service were made by the
A State Government on the recommendation of the Public Service
Commission made under Rule 19, as they had obtained the requisite.
aggregate makrs in the written and the viva voce tests. They were
B
• -appointed in accordance with the · rules and were entitled to
·seniority in terms of ruk22. [83IA-H]
The Public Service Commission has been changing the norms
fixed by it at the behest of the Government after the declaration of the k
results. The Commission is an independent, expert body. It has to act in
an independent manner. It may consult the State Government and the
High Court In prescribing the norms for judging the suitability of the
candidates if no norms are prescribed in the Rules. Once the CommisC sion determines the norms and makes selection on the conclusion of a.-\
competitive examination and submits the list of the suitable candidates
to the Government, it should not re-open the selection by lowering
down the_ norms at the instance of the Government. If the practice of
rel'ising the results of competitive examinations by changing the norms
D is followed there will be confusion and the people will loss faith in the
institution of the Public Service Commission and the authenticity of the
selections. The Commission should take a firm stand in these matters,
uninfluenced by the directions of the State Government unsupported by
the Rules. f833A-D I
E
(ii) The practice of appointing a retired Judge of the High Court
,,\....
F
.G
H
· as an expert to assist the Commission in making selections for appoint·
ments to the judicial service, is not desirable. A sitting Judge of the
High Court should be nominated by the Chief Justice of the State to
participate in the interviews as an expert; he would be in a better posi·
tion to give advice to the Commission in the selection of suitable candi·
dates and his ad vice would be binding on the Commission unless there
are strong an·d cogent reasons· for not ·accepting such advice, which~
must be recorded in writing by the Chairman and Members of the ' I
Commission, as observed by a Constitution Bench of this Court inA.K.
Yadav v. State of Haryana, [1985] 4 S.C.C. 417. The Constitution
Bench had issued directions to the Pub)ic Service Commission of every
state to follow this direction, but it appears that in the State of U.P ., this
direction is not being followed. In future, the selections for appoint·
ments to the judicial service shall be made by the Commission on the
expert advice of a sitting judge of the High Court nominated by the
Chief Justice. [833E-H; 834A]
-
(iii) It has been noticed that generally, there is a considerable
"
STATE OF U.P. v. RAFIQUDDIN (SINGH, J.J
803
interregnum between the holding of the examination and the appointA
ments of the selected candidates in these cases, no system was followed
in making the appointments, as some of the candidates selected in the
subsequent examination were appointed earlier than those selected in
the earlier examination, and those appointed later in time are. made
senior to those appointed earlier in time under Rule 22. This causes
heart-burning and other complications. To avoid this situation, it is
B
necessary that every effort should be made to appoint the successful
candidates of a particular examination before any candidate of a subsequent exmaination is appointed. [834B-D I
K.N. Chandrasekhra & Qrs. v. State of Mysore and Ors., A.l.R.
( 1963 Mysore 292; T.N. Manjvla Devi v. State of Karnataka, (1982]
~ Labour and Industrial Cases, 759; Durga Charan Misra v. State of C
Orissa, W.P. 1123of1986, decided on 27.8.1987; Lila Dhar v. State of
Rajasthan, (1982] 1 S.C.R. 320; A.K. Yadav v. State of Haryana,
(1985] 4 S.C.C. 417; Umash Chandra Shukla v. Union of India & Ors.,
[1985] 3 S.C.C. 721; Shit/a Prasad Shukla v. State of U.P. & Ors.,
(1986] Supp. S.C.C. 185 and Achanti Sreenivasa Rao & Ors. v. State of D
Andhra Pradesh, (1981] 3 S.C.C. 133, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4023
of 1982 etc.
From the Judgment and Order dated 31.3.1982 of the Allahabad
E
High Courtiu C.M.W.P. No. 1303 of 1979.
G. Vishwanath Iyer, Satish Chandra, D:P. Singh, S.P. Gupta,
G.L. Sanghi, Gopal Subramaniam, Shobha Dikshit, H.K. Puri, S.D.
Lal, M.K.D. Namboodry, R.N. Keshwani, Irfan Ahmad, S.
' Balakrishnau, A.O. Sikri, Pradeep Misra, L.R. Singh, Jayanand,
F
\- Gopal Singh, C.P. Pandey, Mrs. Rani Chhabra and Krishnamani for
the appearing parties.
The Judgment of the Court was delivered by
SINGH, J. These three civil appeals directed agamst the judgG
ment of the High Court of Allahabad and four writ petitions filed
.J under Article 226 of the Constitution raise common questions of law
"\ relating to determination of seniority of members appointed as
Munsifs in the Uttar Pradesh Nyayik Seva as a result of competitive
Examinations of 1970, 1972 and 1973 held under the Uttar Pradesh
Civil Service (Judicial Branch) Rules, 1951 (hereinafter referred to as
H
A
B
c
804
SUPREME COURT REPORTS
[ 1988] 1 S.C.R.
the Rules). Since the appeals and the petitions raise common ques- '""-
lions of law they have been heard together and are being diposed of by
·
a common judgment.
On September 3, 1970 a Notification was issued by the Public
Service Commission inviting applications for recruitment to 85 posts of
Munsifs. In this examination 918 candidates appeared, out of whom
294 candidates on the basis of their marks in written papers, were
~
called for viva voce test. After completion of the written and viva voce
test, the commission submitted a list of approved candidates to the
Government on October 25, 1971 recommending the names of 46
candidates for appointment to the service, which shall hereinafter be
referred to as the !st list of 1970 examination. On receipt of the list of \
46 candidates the State Government requested the Commission to j
recommend some more candidates for appointment to the service as·
there was shortage of Munsifs, and it further suggested that the
minimum of 40 per cent marks in the aggregate may be reduced to 35
per cent. The Commission agreed to the State Government's suggesD tion and thereafter it forwarded another list of 33 candidates on April
25, 1972 for appointment to the service which shall hereinafter be
referred to as the !Ind list. This list included those who had obtained
35 per cent marks in the aggregate, as well as 35 per cent marks in viva
voce .. All the 79 candidates, as recommended by the Commission in
the aforesaid two lists were appointed ·10 service by different Notifica- ·.,,__
E lions issued between May, 1972 to 12th Julie 1973. On July 17, 1973 a
Notification was issued determining inter-se seniority of all the 79
candidates appointed on the basis of 1970 examination in accordance
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with of their position in the list prepared by the Commission under
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Rule 19 of the Rules. Meanwhile, the Public Service Commission held
another competitive examination for appointment to the 150 posts of
F Munsifs which shall hereinafter be referred to as the 1972 Examination. The Written test was held in November, 1973 and the result was--}
declared on 26th June 1974. The Public Service Commission·
forwarded a list of 150 successful candidates to the Government for
appointment to the service under Rule 19 of the Rules and all those
candidates were appointed to the service on different dates between
G
1975 to 1977. ·
Some of the unsuccessful candidates of the 1970 Examination
made representation to the State· Government for considering their 'r
case for appointment on the basis of their aggregate marks irrespective
of their low marks in the viva voce. The State Government by its letter
H dated 24th Joly, 1973 requested the Commission that in view of the
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STATE OF U.P. v. RAFJQUDDIN [SINGH, J.]
805
shortage of Munsifs in the State and since in view of the amendment of
_x' Rule 19 it was no longer necessary for a candidate to qualify independently in the viva voce, it may reconsider the result of the examinations of 1967, 1968, 1969 and 1970 and approve all those candidates for
appointment to the service who might have obtained 40 per cent of
marks or more in the aggregate even if they might have failed to secure
the minimum marks in the viva voce test. The Commission refused to
consider the proposal of the Government, as the minimum marks prescribed by the Commission under the then existing proviso to Rule 19
could not be ignored in judging the suitability of a candidate. lnspite of
the Commission's refusal the Government pursued the matter further,
and it convened a meeting of the Chief Minister, Chief Justice of the
High Court and the Chairman of the Public Service Commission on
( 3rd May, 1974. At that meeting it was decided that in view of the
-..11
immediate need for Munsifs the Public Ser".ice Commission should be
requested to recommend such candidates of 1967, 1968, 1969 and 1970
examination who might have secured 40 per cent or more marks in the
aggregate, but could not qualify in the viva voce. The committee took
the view that after the amendment of Rule 19 it was n'ltt necessary for a
candidate to qualify in the viva voce test and therefore he could be
appointed to the service if he had got 40 per cent or more marks in the
aggregate. In pursuance of the decision taken by the said high level
Committee the Government by its letter dated May 10, 1974 requested
the Commission to forward the application forms and the marks obtained by the unsuccessful candidates of the Examinations held during
the years 1967, 1968, 1969 and 1970 who might have got 40 per cent or
more marks in the aggregate but might not have qualified in the viva
A
B
c
D
E
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voce. The letter enclosed a note containing the decision taken by the
high level committee. The Commission by its letter dated 9th June
1974 informed the Government that the application forms and other
particulars of the unsuccessful candidates of 1967, 1968 and 1969
F
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examination had been destroyed, and therefore the Commission was
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unable to forward the names of candidates of those examinations as
desired by the Government. But the Commission forwarded with a
covering letter dated June 19, 1974 a list of 37 candidates of the 1970
Examination who had obtained 40 per cent or more marks in the
aggregate but who had failed to secure 35 per cent qualifying marks in
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the viva voce which shall hereinafter be refetTed to as the IIIrd list.
The Commission's letter contained a note that the candidates
mentioned therein had obtained 40 per cent or more marks in ~e
aggregate but they had not been found suitable by the Commission.
This Illrd list contained the names of Rafiquddin and 36 others, who
were unsuccessful at the 1970 Examination who will be referred to
H
806
SUPREME COURT REPORTS
[ 1988] I S.C.R.
A hereafter as the "unplaced candidates" of the 1970 Examination. On
receipt of the Illrd list of the "unplaced candidates" the State Government after obtaining approval of the High Court issued a Notification
dated August 19, 1975 appointing 21 candidates out of the list of 37
candidates as Munsifs with a note that the appointments were being
made on the basis of the 1970 Examination conducted by the CommisB sion and the persons appointed were "unplaced candidates" with a
further note that their seniority would be determined later on. Out of
the list of 37 candidates forwarded by the Commission under its letter
dated June 19, 1974 the State Government found that the remaining 16
persons who had been unsuccessful at the 1970 Examination had again
appeared in the 1972 Examination and they had been selected and
C appointed to the service. Therefore, the Government requested the
Commission to select 16 more candidates from the 1972 Examination.
Jn pursuance of the Government's request the Public Service Commission by its letter dated 14/15th July, 1976 fprwarded another list of 16
candidates who had appeared in the 1972 Examination for appointment to the serv~e.
D
In March, 1977 the State Government published a seniority list
of successful candidates of the competitive examination of 1970. The
"unplaced candidates" belonging to the Hird list of the 1970 Examination made representation to the High Court for determining their
seniority in accordance with Rule 22 of the Rules on the footing that
E they were recruited to the service in pursuance of 1970 Examination
),....
and therefore they were entitled to the seniority as candidates belonging to the examination held in 1970 irrespective of their appointment
being made in 1975. They claimed that they were senior to those who
had been recruited to service in pursuance of 1972 Examination as well
as to those who had been recruited to service, earlier to them in
F pursuance of the 1970 Examination who were appointed in service in
pursuance of 1st and the Ilnd list of 1970 Examination but who had -l
secured lower marks in the aggregate. Their representation was
rejected by the High Court as well as by the State Government as in
their view the "unplaced candidates" were unsuccessful in the competitive examination of 1970, their appointment was not in accordance
G with the Rules and as such they were not entitled to seniority of 1970.
Rafiquddin and 16 otlier "unplaced candidates" filed Writ Petition
No. 1303 of 1979 under Article 226 of the Constitution before the High
Court of Allahabad for quashing the decision of the High Court and
~r
the State Government rejecting their representation and also for the
issue of a writ of mandamus dtrecting the High Court to confirm the
H petitioners and to grant them seniority of 1970, and to rearrange the
STATE OF U.P. v. RAFIQUDDIN [SINGH, J.[
807
;:..:' seniority of Munsifs appointed in service in pursuance of 1970 Examination in order of merit on the basis of the aggregate marks obtained
by each of the candidates at the said examination. A Division Bench of
the High Court consisting of M.N. Shukla and K.M. Dayal JJ. by their
Judgment dated 31st March, 1982 allowed the writ petition on the
finding that the unplaced candidates were appointed in service on the
basis of the result of 1970 examination. The Bench quashed the seniorA
B
~ ity list and issued a direction to the State Government and the High
Court to prepare the seniority list of caudidates of the 1970 Examination afresh in accordance with Rule 22 read with Rule 19 of the Rules
and to confirm and promote them in accordance with the seniority list
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so drawn. The State of Uttar Pradesh has preferred Civil Appeal No.
( 4023 of 1982 against the judgment Qf the Divis!on Bench. ~ivil Appeal
C
~ No. 4024 of 1982 has been preferred by Sush!I Kumar Snvastava and
"-others against the aforesaid judgment of the Division Bench. It should
be stated here that D .P. Shukla and three other unsuccessful candidates at the 1970 Examination had filed another writ petition Writ
Petition No. 4261of1974 in the High Court of Allahabad under Article 226 of the Constitution raising the grievance that even though they
D
had secured higher marks in the competitive examination than those
appointed to the service yet they were discriminated, as they had not
been appointed to the service instead 37 candidates "belonging to the
, IIIrd list" were appointed although they had obtained lower marks.
E
--i Another Division Bench of the High Court consisting of Satish
Chandra CJ. and A.N. Verma J. by its judgment dated March 30, 1982
dismissed the said writ petition on the ground that since the petitioner~
therein had failed to secure minimum qualifying marks in the viva voce
they were not entitled to selection. Civil Appeal No. 3736 of 1982 has
been preferred by the unsuccessful petitioners against the aforesaid
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judgment.
F
In addition to the aforesaid three civil apeals four writ petitions
have also been filed raising the same controversy. Writ Petition No.
4636 of 1982 has been filed in this Court under Article 32 of the
Constitution b'y Chandra Prakash Agrawal an unsuccessful can\lidate
at the 1970 Examination, challenging the appointment of those who
had failed to secure less than 40 per cent marks in the aggregate. Sushil G
Chand Srivastava a member of the service appointed in pursuance of
the 1972 Examination has also filed Writ Petition No. 12818 of 1984
--\ under Article 32 of the Constitution challenging the validity of the
appointment of "unplaced candidates" of the 1970 Examination
belonging to the Hird list which include Rafiquddin and others on the
ground that their appointment was illegal and for that reason they H
808
SUPREME COURT REPORTS
[1988] 1 S.C.R.
could not be treated senior to him. R.P. Lavaniya a member of the ·""-
A service who was recruited in pursuance of the 1973 Examination has
also filed Writ Petition No. 1347 of 1984 under Article 32 of the Constitution claiming seniority over Respondents 3 to 15 to the writ petition who had been recruited in service in pursuance of the 1972 Examination and appointed in service after the petitioner's appointment.
B P. N. Parashar and 11 others who had been recruited to the service in
pursuance of the 1972 Examination filed a writ petition under Article 'r
226 of the Constitution before the High Court of Allahabad being writ
petition No. 5409 of the 1982 challenging the seniority list prepared in
pursuance of the judgment of the High Court in writ petition No. 1303
ef 1979 (Rafiquddin and others v. State of Uttar Pradesh), on the
ground that the "unplaced candidates" of the 1970 Examination were 1
C not entitled to seniority over the candidates of the 1972 Examination J
as they had been appointed to service earlier in time. That writ petition was transferred to this Court. Three Civil appeals and four writ
petitions including the transferred petition have been heard tegether at
length.
D
The U.P. Civil Service (Judicial Branch) Rules 1951 that is, the
Rules have been framed by the Governor under the proviso to Article
309 read with Article 234 of the Constitution in consultation with the
U .P. Public Service Commission and the High Court which provide for
recruitment to the service and lay down the conditions of service of }--
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personnel appointed to the U.P. Civil Service (Judicial Branch).