The petitioners and each of them were successful in the test conducted for ad hoc appointment of District & Sessions Judge (Entry Level) to preside over the Fast Track Courts (hereinafter referred to as, FTC) on 14.10.2003, in terms of Rules of Andhra Pradesh State Higher Judicial Service Special Rules for Ad hoc Appointments, 2001, and since then they have been working in the said posts. According to them, they were entitled to be absorbed permanently as District & Sessions Judge (Entry Level) in view of the length of service. It is now well settled that fixing the qualifying marks in the viva voce test after the commencement of the process of selection is not justified but fixing some criteria for qualifying a candidate in the written examination is necessary in order to shortlist the candidates for participating in the interview. 30. Therefore, it emerges after reading of the aforesaid authoritative pronouncements of the Supreme Court that if the rules do not permit to adopt any different criteria, the Selection Committee cannot fix of its own. The minimum qualifying marks in the viva voce test cannot be laid down after the written test is over. However, it is possible before commencement of the selection process, provided it conforms to the rule. 31. In view of the aforesaid discussion, we hold that the decision of the Selection Committee declaring that the petitioners and each of them are not eligible to be absorbed for not securing the minimum qualifying marks in viva voce or aggregate qualifying marks in written and viva voce is illegal and arbitrary. Therefore, we direct the respondents to appoint the petitioners and each of them as they have qualified in the written test and have also taken viva voce test. This appointment shall be made within a period of one month from the date of communication of this order, subject to compliance with other formalities as required under law. 32. Both the Writ Petitions are accordingly allowed. There will be no order as to costs. The records produced before us by the Registry shall be returned.

THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR                    

Writ Petition No.38252 of 2014

25-3-2015

P. Murali Mohana Reddy and others   Petitioners

The State of Andhra Pradesh, Law (LA & J SC.F) Department rep. by its Chief
Secretary to Government of Andhra Pradesh  Secretariat, Hyderabad and others
Respondents

COUNSEL FOR PETITIONERS : Dr. L. Lakshmi Narasimha      

COUNSEL FOR RESPONDENT NO.1  : Government Pleader for Law &        
                                Legislative Affairs (Andhra Pradesh)
COUNSEL FOR RESPONDENT NO.2   : Government Pleader for Law &        
                                Legislative Affairs (Telangana)

COUNSEL FOR RESPONDENT NOs.3 & 4: Sri Bathula Raj Kiran,      
                                  Standing Counsel for High Court

<GIST:

>HEAD NOTE:  

? CITATIONS: 1. (2012) 6 SCC 502
                     2. (1983) 3 SCC 33
                     3. (1985) 3 SCC 721
                     4. (1990) 3 SCC 157
                     5. (2008) 3 SCC 512
                     6. (2008) 7 SCC 11
                     7. (2010) 13 SCC 467
                     8. (2013) 7 SCC 737



THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

Writ Petition No.38252 of 2014
and
Writ Petition No.38687  of 2013

COMMON ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)  
            Both the writ petitions are taken up for hearing
analogously in order to dispose of the same by a common order as
the issues on fact and law are identical therein.

2.              Bereft of unnecessary and irrelevant facts mentioned in
the writ petitions, the fact which is relevant for our purpose is
stated hereunder:

3.              The petitioners and each of them were successful in the
test conducted for ad hoc appointment of District & Sessions Judge
(Entry Level) to preside over the Fast Track Courts (hereinafter
referred to as, FTC) on 14.10.2003, in terms of Rules of Andhra
Pradesh State Higher Judicial Service Special Rules for Ad hoc
Appointments, 2001, and since then they have been working in the
said posts.  According to them, they were entitled to be absorbed
permanently as District & Sessions Judge (Entry Level) in view of
the length of service.  They demanded absorption unsuccessfully
both in and outside Court before the appropriate authorities.
However, ultimately, the Supreme Court in the case of Brij Mohan
Lal v. Union of India [(2012) 6 SCC 502] laid down the procedure for
the absorption that had hitherto been claimed by the petitioners.
In the said judgment, automatic absorption has not been provided
for by virtue of length of service alone.  In that case, Supreme Court
laid down the modalities viz., further test, both written and viva
voce, and such test must be preceded by advertisement inviting
applications for taking tests for absorption from the eligible
candidates.   Accordingly, all the four petitioners, in response to the
notification dated 13.8.2012, along with other candidates applied
for taking the test in order to be absorbed.   In the advertisement, it
was mentioned as follows:
       Viva Voce (Interview): 100 marks

       Minimum qualifying
marks to be secured: Qualifying marks in the written examination
shall be 40% aggregate for general
candidates and 35% for SC/ST/BC
candidates.
       
        Each of the appointees shall be entitled to
one mark per year of service in the FTCs,
which shall form part of the interview marks.


4.              The petitioner in W.P.No.38687 of 2013 belongs to BC-A
category, as such she was required to secure 35% qualifying marks
in the written examination going by the above stipulation.
However, the writ petitioners in the other writ petition
(W.P.No.38252 of 2014) belong to other categories and were
required to secure 40% qualifying marks.    All the writ petitioners
duly secured the minimum qualifying marks in the written test, as
such they were invited to take viva voce test.   According to them,
in spite of securing qualifying marks in the written test, and taking
viva voce test they were not selected for appointment.   No reason
has been disclosed as to why they were not selected.   All the writ
petitioners say that, going by the norms in the advertisement
published in the newspaper and read with the relevant Rule, they
were entitled to be absorbed the moment they qualified in the
written test followed by attending viva voce test.  The writ
petitioners and each of them state that refusal to absorb them has
no basis and the same is discriminatory, and also not in
accordance with the rules.

5.              Counter-affidavit has been filed by the respondents
3 & 4 in W.P. No.38252 of 2014 (respondents 1 & 2 in
W.P. No.38687 of 2013) who were responsible for holding the
selection test.  The major factual aspect has not been denied and
disputed by these respondents in their counter-affidavits.  In order
to justify the exclusion of the petitioners from the consideration
zone for absorption, it is stated as follows:
The Honble Supreme Court specified the mode and
manner in which the Fast Track Court Judges ought to be
absorbed in the State Judicial Service and the relevant
directions are as follows:

(i)     Written examination is to be conducted for 150 marks.
(ii)    Interview is to be conducted for 100 marks.
(iii)   Qualifying marks in the written examination shall be
aggregate 40% for General Candidates and 35% for
SC/ST/OC candidates.
(iv)    Each of the appointees shall be entitled to one mark per
year of service in the FTCs, which shall form part of the
interview marks.


6.               In pursuance of the direction of the Honble Supreme
Court, the High Court placed the matter before the Administrative
Committee in the meeting held on 9.8.2012 and the Committee
resolved  to issue a notification calling for applications from the
working Ad hoc Fast Track Court District Judges and directed to
conduct a written examination with syllabus.  Accordingly,
notifying the same in the official website of the High Court on
13.8.2012, applications from working/former Ad hoc Fast Track
Court Judges were called for.  All the 19 working/former Ad hoc
Fast Track Court Judges submitted their applications in response
to the same.

7.              The answer scripts of the participating candidates were
evaluated, and in order to invite the qualified candidates to take
oral test on 27.11.2012, the Committee concerned found and
resolved that out of 19 candidates, 17 candidates were qualified for
interview and as such they were called on 17.12.2012 and
18.12.2012 for taking the viva voce test.   Two more candidates, in
terms of interim orders of the High Court, were also called for
interview on 26.12.2012.  The performance of the candidates was
placed before the Committee of Honble Judges and considering the
same it was found and resolved that 12 candidates were eligible to
be appointed as regular Additional District Judges, leaving out the
present petitioners.  It is further stated that the petitioners herein
had to secure minimum 40% qualifying marks out of 250 marks in
total i.e., 100 marks in general category.  The 1st petitioner in
W.P.No.38252 of 2014 secured 63 marks in written examination
and 26 marks in oral interview totalling 89 marks, and the 2nd
petitioner secured 60.5 marks in written examination and 38.8
marks in oral interview totalling 99.3 marks, whereas the 3rd
petitioner in the same writ petition secured 67.5 marks in written
examination and 32.2 marks in oral interview totalling 99.7 marks
out of 250 marks respectively.   Thus the writ petitioners did not
secure the minimum 40% qualifying marks of 250 marks in total as
laid down by the Supreme Court of India for absorption. Similarly,
it is stated that the writ petitioner in W.P.No.38687 of 2013 secured
53 marks out of 150 marks in the written examination.  However,
she secured 20 marks out of 100 marks in oral test and 8 marks
were added towards her service.  Accordingly she got 28 marks in
viva voce.

8.              The learned counsel for the petitioners submits that it is
clear from the affidavit that the petitioners and each of them were
excluded from the  consideration zone for absorption as they could
not secure the qualifying marks in viva voce test, and the aggregate
qualifying marks of 40% and 35% respectively.  He says that
neither the rules nor the judgment of the Supreme Court lay down
the norm of a qualifying mark in the viva voce test.  Even in the
advertisement, such a norm was not published and it was later on
stipulated unilaterally in derogation of the rules as well as the
judgment of the Supreme Court.  According to him, it was not a
case of selection but absorption and the tenor of the judgment in
Brij Mohan Lal v. Union of India  makes it clear that primacy should
be given to the experience, because of length of service put in by
the Fast Track Court Judges as they were recruited after having
gone through the screening test once.   There is no mention in the
rules that the aggregate qualifying marks of 40% is to be a criteria.
Therefore, norms were laid down for screening without being
informed and it was done at the time of evaluation of the
performance only and it is arbitrary, consequently
unconstitutional.

9.              In support of his submission, the learned counsel for
the petitioners has relied on a number of decisions of the Supreme
Court and they are as follows:

10.             In the case of A.A. Calton v. Director of Education ,  the
Supreme Court laid down the legal principle that a candidates
selection is to be done only on the basis of the original
advertisement.

11.             In the case of Umesh Chandra Shukla v. Union of India ,
the Supreme Court expounded the legal proposition that the High
Court has no power to act contrary to the recruitment rules while
undertaking selection process.

12.             In the case of N.T. Devin Katti v. Karnataka Public
Service Commission , the Supreme Court stated the legal
proposition that the candidates who apply and undergo written or
viva voce test acquire a vested right for being considered for
selection in accordance with the terms and conditions contained in
the advertisement, unless the advertisement itself indicates a
contrary intention. Generally, a candidate has a right to be
considered in accordance with the terms and conditions set out in
the advertisement as his right crystallises on the date of
publication of advertisement, however he has no absolute right in
the matter.  A candidate on making an application for a post
pursuant to an advertisement does not acquire any vested right of
selection, but if he is eligible and is otherwise qualified in
accordance with the relevant rules and the terms contained in the
advertisement, he does acquire a vested right of being considered
for selection in accordance with the Rules as they existed on the
date of the advertisement.  He cannot be deprived of that limited
right on the amendment of rules during the pendency of the
selection unless the amended rules are retrospective in nature.

13.             He concluded that in terms of the advertisement and
also the rules, the petitioners and each of them secured qualifying
marks in the written test, the performance in the viva voce test is
immaterial and they should have been absorbed taking note of their
performance in the written examination.

14.             The learned counsel for respondents 3 & 4 submits that
in terms of the stipulation given by the Supreme Court in Brij
Mohan Lals case  (1 supra), the Selection Committee found that the
petitioners and each of them could not secure 40% qualifying
marks in viva voce and also the consolidated qualifying marks both
in written  and viva voce tests.  He drew our attention to
clause (c) of paragraph 207.9 of the report in case of Brij Mohan
Lals case   (1 supra) wherein it is provided as follows:
     There shall be 150 marks for the written examination
and 100 marks for the interview.   The qualifying marks
shall be 40% aggregate for general candidates and 35% for
SC/ST/OBC candidates.  The examination and interview
shall be held in accordance with the relevant Rules enacted
by the States for direct appointment to Higher Judicial
Services.
15.             Following the aforesaid direction, the Honble Committee
laid down 40% of qualifying marks in viva voce also.   Therefore,
there is nothing wrong in the decision of excluding the petitioners
as they did not qualify in the viva voce test nor they did secure
aggregate qualifying marks of 40%.

16.             In view of the aforesaid contention and rival contention
of the parties and on the revelation of facts, it appears to us that
there is no dispute that the petitioners and each of them qualified
in the written test securing the minimum qualifying mark as
published in the advertisement and in accordance with the rules.
We have already set out the norms published in the notification.
Now, we need to set out the Andhra Pradesh State Judicial Service
Rules, 2007, to the extent relevant, which were in effect on the date
of selection.
6. Methodology for conducting examination:
(1)     The High Court from time to time shall notify the
number of vacancies  for  the  category of District Judges to
be appointed by direct recruitment indicating inter alia, the
eligibility criteria, the syllabus, the number of marks
allotted for written examination, the qualifying mark to be
secured by a candidate, the number of marks allotted for
the viva voce and the minimum to be secured therein by
the candidate.
       
     Provided that owing to the contingency it shall be open
to the High Court to conduct a screening test which shall
be objective type before conducting the written examination
followed up by viva voce after duly notifying the same.

(2)             While the written examination is meant to test
the academic knowledge of the candidate, the viva voce is
to test his communication skills; his tact; ability to defuse
the situations to control the examination of witnesses and
also lengthy irrelevant arguments and the like; and his
general knowledge.

        (3)                          ..      

(4) The written examination shall invariably carry 80 marks
limiting the viva voce to the remaining 20 marks.

        Provided that the candidate shall secure a minimum
qualifying mark of 40% for O.C. category, 35% for B.C.
category; and 30% for S.C. and S.T. category in the written
examination. (as amended by G.O.Ms.No.132, dated 16th  
November, 2011)
(5)                          ..      
(6)                          ..      
(7)                          ..      
(8)                          ..      
(9)                          ..      
(10)                         ..      


17.             Thus, it will appear, neither in the advertisement nor in
the rules, there is any stipulation for securing minimum qualifying
marks in viva voce test in order to secure aggregate qualifying
marks.   Even in the Rules, there is no mention about minimum
aggregate qualifying marks.

18.             The contention of the learned counsel for the third and
fourth respondents is that the aforesaid stipulation in Brij Mohan
Lals case (1 supra) authorizes the Selection Committee to stipulate
such qualifying marks in viva voce and aggregate qualifying marks
as well.

19.             If the said clause (c) of paragraph 207.9 is read as a
whole, which was set out hereinbefore, it will appear that the
qualifying marks shall be 40% aggregate for general candidates and
35% for SC/ST/OBC candidates.  It does not mention about
qualifying marks in viva voce.   The examination and interview were
also to be held in accordance with the relevant Rules enacted by
the States for direct appointment to Higher Judicial Services.
20.             While reading the above pronouncement of Supreme
Court harmoniously with the Rule, we think the following
procedure would have been a fair one, as the said judgment has not
ignored, rather accepted the relevant Rules:-
(i) Written test would be for 150 marks.
(ii) Viva voce would be for 100 marks.
(iii) Candidate has to secure minimum 40% qualifying marks
in written test.
(iv) Candidate has to participate in viva voce test.
(v) Securing qualifying marks in viva voce or in aggregate are
not the requirements.


21.             Therefore, we are of the view that the Selection
Committee should not have adopted the norm of securing a
minimum qualifying mark in the viva voce test or for that matter,
minimum aggregate qualifying marks.

22.             Moreover, it is rightly contended by the learned counsel
for the petitioners, relying on the aforesaid judgment of Supreme
Court in Umesh Chandra Shukla v. Union of India (3 supra) and
A.A. Calton v. Director of Education (2 supra),  that the respondents
and each of them cannot act contrary to the norms as published in
the advertisement or the Rules and admittedly, the advertisement
does not stipulate a minimum qualifying mark for the viva voce test
or that of aggregate marks both in written and viva voce test.   As
the petitioners and each of them,  in terms of the advertisement as
well as the rules, have acted upon  and that they acquired a vested
right to be considered in terms of the advertisement and the rules.

23.             It is not that the norms cannot be changed or varied,
but this has to be done in terms of the statutory rules.   If they do
not permit, the Selection Committee cannot lay down the same as it
will be ultra vires.

24.             Moreover, as it appears from the original record
produced before us, we find that the assessment was made on the
basis of minimum qualifying marks in the aggregate as well as in
viva voce tests and it does not appear that the aforesaid norms
were ever published.

25.             In case of K. Manjusree v. State of A.P. , the Supreme
Court in paragraph-27 it was held amongst others as follows:
27.           .      Therefore, introduction of the
requirement of minimum marks for interview, after the
entire selection process (consisting of written examination
and interview) was completed, would amount to changing
the rules of the game after the game was played which is
clearly impermissible.        

         In paragraph-33 of the said report, it is observed as follows:

33.     .      .             Therefore, extending the minimum
marks prescribed for written examination, to interviews, in
the selection process is impermissible. We may clarify that
prescription of minimum marks for any interview is not
illegal. We have no doubt that the authority making rules
regulating the selection, can prescribe by rules, the
minimum marks both for written examination and
interviews, or prescribe minimum marks for written
examination but not for interview, or may not prescribe any
minimum marks for either written examination or
interview.  Where the rules do not prescribe any procedure,
the Selection Committee may also prescribe the minimum
marks, as stated above. But if the Selection Committee
wants to prescribe minimum marks for interview, it should
do so before the commencement of selection process. If the
Selection Committee prescribed minimum marks only for
the written examination, before the commencement of
selection  process, it cannot either during the selection
process or after the selection process, add an additional
requirement that the candidates should also secure
minimum marks in the interview. What we have found to
be illegal, is changing the criteria after completion of the
selection process, when the entire selection proceeded on
the basis that there will be no minimum marks for the
interview.


26.             Thus, it is clear from the above pronouncement that the
concept of estoppel has been applied by the Supreme Court in a
case of this nature.  To put it differently, the Selection Committee
must stick to the norms published at the time of commencement of
the selection process.  In the case on hand, it is not only a question
of estoppel but a case of non-application of the law also.

27.             Again in the case of Hemani Malhotra v. High Court of
Delhi , the Supreme Court in  paragraph-14 has observed by way of
reiteration of the statement of law in K. Manjusree v. State of A.P.
(5 supra) as follows:
14.           .. The question, therefore, which arises for
consideration of the Court is whether introduction of the
requirement of minimum marks for interview, after the
entire selection process was completed would amount to
changing the rules of the game after the game was played.
                   
      Therefore, prescribing minimum marks for viva voce
was not permissible at all after the written test was
conducted.


28.             In the case of State of Bihar v. Mitilesh Kumar , the
Supreme Court in paragraph-20 of the report has laid down the law
as follows:
20.     The decisions which have been cited on behalf of
the respondent have clearly explained the law with regard
to the applicability of the rules which are amended
and/or altered during the selection process. They all say
in one voice that the norms or rules as existing on the
date when the process of selection begins will control
such selection and any alteration to such norms would
not affect the continuing process, unless specifically the
same were given retrospective effect.


29.             In the case of Arunachal Pradesh Public Service
Commission v. Tage Habung , the Supreme Court in paragraph-31
says as follows:
31.                   It is now well settled that fixing
the qualifying marks in the viva voce test after the
commencement of the process of selection is not justified
but fixing some criteria for qualifying a candidate in the
written examination is necessary in order to shortlist the
candidates for participating in the interview.


30.             Therefore, it emerges after reading of the aforesaid
authoritative pronouncements of the Supreme Court that if the
rules do not permit to adopt any different criteria, the Selection
Committee cannot fix of its own.  The minimum qualifying marks in
the viva voce test cannot be laid down after the written test is over.
However, it is possible before commencement of the selection
process, provided it conforms to the rule.

31.             In view of the aforesaid discussion, we hold that the
decision of the Selection Committee declaring that the petitioners
and each of them are not eligible to be absorbed for not securing
the minimum qualifying marks in viva voce or aggregate qualifying
marks in written and viva voce is illegal and arbitrary.  Therefore,
we direct the respondents to appoint the petitioners and each of
them as they have qualified in the written test and have also taken
viva voce test.  This appointment shall be made within a period of
one month from the date of communication of this order, subject to
compliance with other formalities as required under law.

32.             Both the Writ Petitions are accordingly allowed.
There will be no order as to costs.  The records produced before us
by the Registry shall be returned.
           Consequently, pending miscellaneous petitions, if any,
shall also stand closed.
_______________________  
Kalyan Jyoti Sengupta, CJ
_______________  
Sanjay Kumar, J
Dt. 25.03.2015

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