No 1123 of 1986
Under Article 32 of the Constitution of India
RK Garg and JR Das for the petitioner
AK Panda and Vinoo Bhagat for the Respondents
The Judgment of the Court was delivered by JAGANNATHA SHETTY J
This is a petition under Article 32 of the Constitution challenging the validity of the list of candidates prepared by Orissa Public Service Commission Cuttack for appointment as Probationary Munsifs in the State Judicial Service
The selection of candidates for subordinate judicial service is governed by the Orissa Judicial Service Rules 1964 the Rules
The Rules were flamed under the proviso to Article 309 read with Article 234 of the Constitution of India
The State Public Service Commission The Commission is the selecting authority
The candidates are required to be selected by written test followed by viva voce test
The written examination carries the maximum marks of 950 and the viva voce test 200
In accordance with the Rules the Commission issued advertisement No 12 of 1982 83 inviting applications from eligible candidates for posts of Probationary Munsifs
The petitioner was one of the candidates who applied in response thereof
In the written examination conducted by the Commis sion the petitioner secured 470 marks
He was called for viva voce test in which he was given 30 marks
He thus secured in all 500 out of 1150
The Commission prepared a list of candidates which we may term as select list  and recommended to the Government altogether 56 candidates in four batches as desired by the latter
The petitioner did not find a place in that list
The candidates with less number of aggregate marks than that of the petitioner have however been selected
The petitioner therefore chal lenges the validity of selection on the ground among others that it is arbitrary and contrary to the Rules
1100 The reason for exclusion of the petitioner from the select list is not obscure
It has been at any rate now made explicit
He did not secure the minimum qualifying marks prescribed by the Commission in the viva voce test
In the counter affidavit filed on behalf of the Commission it has been so stated
It is said that the Commission has taken a decision that a candidate to be suitable for the post of Munsif should secure at least 30 at the viva voce test
That decision was taken on the advice of the High Court Judge
The question for our consideration is whether the mini mum marks prescribed by the Commission at the viva voce test is justified and whether the select list prepared by the Commission is in accordance with the Rules
Rules 16 17 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination These Rules read as under Rule 16 The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be the 30 of the total marks in all the papers Provided that Government may after consulta tion with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment
Rule 17 The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candi dates at the viva voce test from the point of view of their possession of the special quali ties required in the judicial service but shall not be responsible for selection of candidates
Rule 18 The marks obtained at the vive voce test shall be added to the marks obtained in the written examination
The names of candi dates will then be arranged by the Commission in order of merit
If two or more candidates obtain equal marks in the aggregate the order shall be determined in accordance with the marks secured at the written examination
Should the marks secured at the written exami nation of the 1101 candidate concerned be also equal then the order shall be decided in accordance with the total number of marks obtained in the optional papers
Rule 19 1 The Commission shall then forward to the Government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Schedule Caste or Scheduled Tribes
2 The list prepared shall be published by the Commission for general information
3 The list unless the Governor in consulta tion with the High Court otherwise decides shall ordinarily be in force for one year from the date of its preparation by the Commi ssion
 The Rule making authorities have provided a scheme for selection of candidates for appointment to judicial posts
Rule 16 prescribes the minimum qualifying marks to be se cured by candidates in the written examination
It is 30 of the total marks in all the papers
The candidates who have secured more than that minimum would alone be called for viva voce test
The Rules do not prescribe any such minimum marks to be secured at the viva voce test
After the viva voce test the Commission shall add the marks of the viva voce test to the marks in the written examination
There then Rule 18 states The names of candidates will then be arranged by the Commission in the order of merit
 This is the mandate of Rule 18
The Commission shall add the two marks together no matter what those marks at the viva voce test
On the basis of the aggregate marks in both the tests the names of candidates will have to be arranged in order of merit
The list so prepared shall be forwarded to the Government
The Commission has no power to exclude the name of any candidate from the select list merely be cause he has secured less marks at the viva voce test
Similar pattern of selection is generally found in all the rules of recruitment which prescribe written examination and also viva voce test
There are two authorities of this Court in this aspect of the matter
In PK Ramchandra Iyer  Ors
vs Union of India  Ors
  this Court considered the scope of recruitment rules 1102 governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research
There the Agricultural Scientists Recruitment Board ASRB was re quired to select candidates by holding competitive examina tion and viva voce test
ASRB prescribed minimum qualifying marks which a candidate must obtain at the viva voce test before his name could be included in the merit list
The question that fell for consideration was whether the ASRB was competent to prescribe such a minimum Accepting the contention that ASRB has no such power this Court observed p 244 Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candi date at the viva voce test
On the contrary the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks he is eligible for being called for viva voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination
The additional qualification which ASRB pre scribed to itself namely that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14 it amounts virtually to a modification of the Rules
By necessary inference there was no such power in the ASRB to add to the required qualifica tions
If such power is claimed it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm
 The closest to the facts of this case is the recent decision of this Court in Umesh Chandra Shukla etc
vs Union of India 19851 Supp 2 SCR 367
There the scope of Delhi Judicial Service Rules 1970 came up for considera tion
Rules 17 and 18 of the Delhi Judicial Service Rules 1970 are similar to Rules 16 and 18 of Orissa Judicial Service Rules 1964
The Selection Committee constituted under these Rules consisted among others of Judges of the High Court of Delhi
The Selection Committee apparently thought that it has got power to exclude candidates securing less than 600 marks in the aggregate as not being suitable for appointment to the Judicial Service
Accordingly it excluded all such candidates from the select list
It was contended before this Court that the Selection Committee would be competent to 1103 prescribe a minimum standard to be crossed by candidates at the vive voce test in order to be suitable for appointment to judicial posts
Repelling that contention this Court ob served pp 382 383 With regard to the second contention namely that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after the viva voce test reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva voce test
There is no power reserved under rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list
It is stated in paragraph 7 of the counter affidavit filed in Writ Petition No 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service
It is not neces sary to consider in this case whether any other reason such as character antecedents physical fitness which may disqualify a candi date from being appointed to the Delhi Judi cial Service may be taken into consideration by the Selection Committee while preparing the final list
But on going through the Rules we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause 6 of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial service
The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause 6 of the Appendix
The question whether a candidate included in the final list prepared and forwarded by the Selection Committee may be appointed or not is a matter to be considered by the appointing authority
In the instant case the decision that a candidate should have sec 1104 ured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee
Moreover recruit ment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein in consultation with the High Court
Article 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto cannot include the power of making rules with regard to recruitment of persons other than District Judges to the judicial service as it has been expressly dealt with in Article 234 of the Constitution
We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix
We are therefore of the view that the exclusion of the names of certain candi dates who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under rule 18 of the Rules is not legal In the light of these decisions the conclusion is inevi table that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appoint ment as Munsifs
It was however urged by counsel for the respondents that the principles enunciated by the aforesaid two deci sions of this Court cannot be extended to the case on hand
The counsel sought to derive support for their contention on rule 17
Rule 17 provides that the Chief Justice or any other Judge of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test
He shall also advice the Commission on the fit ness of the candidates at the viva voce test
The advice may relate to the special qualities to be possessed by candi dates for Judicial Service
The Rule 17 however proceeds to state that such a Judge shall not be responsible for selection of candidates
The contention for the respondents was that a Judge of the High Court was present at the viva voce test
He was an expert in the field
He was primarily concerned with regard to fitness of candidates for judicial service
He advised the Commission to determine the minimum marks to be secured at the viva voce test
The Commission accepted the advice and determined the cut out 1105 marks in the viva voce
It was also contended that the Judge could advise as to fitness of candidates for judicial ap pointment and his advice could also relate to the minimum which a candidate should secure in the viva voce test
If such power is not conceded to the Judge his presence at the interview as provided under rule 17 would totally be unnec essary
We are not persuaded by this argument
That does not mean that we are doubting the purpose of rule 17
The pur pose is undoubtedly laudable and indeed it is in accordance with the observations of this Court in Ashok Kumar Yadav and Ors
vs State of Haryana and Ors etc
etc 19851 Supp 1 SCR 657
There it was observed It is therefore essential that when selec tions to the Judicial Service are being made a sitting Judge of the High Court to be nomi nated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who by reason of the fact that he is a sitting High Court Judge knows the quality and character of the candidates ap pearing for the interview the advice given by him should ordinarily be accepted unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission
 But the crux of the matter is whether the Judge present at the viva voce test has the power to add anything to the Rules of recruitment
He may advice the Commission as to the special qualities required for judicial appointments
His advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted
It may also cover the type and standard of questions to be put to candidates or the acceptance of the answers given thereof
But his advice cannot run counter to the statutory Rules
The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution
Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State
It shall be in accordance with the rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court
The Rules in question have been made after consultation with the Commission and the State High Court
The Commission 1106 which has been constituted under the Rules must therefore faithfully follow the Rules
It must select candidates in accordance with the Rules
It cannot prescribe additional requirements for selection either as to eligibility or as to suitability
The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would therefore be illegal and without authority
In the result we allow the petition and quash the selec tion made by the Orissa Public Service Commission with a direction to redo the select list on the basis of the aggre gate marks obtained by the candidates in the written exami nation and at the viva voce test and in the light of the observations made
The list so prepared shall be forwarded to the Government as required under rule 19 of the Rules for appointments as Munsifs
The persons who fall within the revised list if they are already in service need not be disturbed
Their inter se seniority may however be regu lated as per the rankings in the revised list
In the circumstances however we make no order as to cost
PSS Petition allowed


Summary:
The petitioner had secured 470 marks out of 950 in the written examination conducted by the Orissa Public Service Commission for the post of Probationary Munsifs for the year 1982 83
In the viva voce test he was given 30 marks out of 200
But he did not find a place in the merit list though candidates with less number of aggregate marks had been selected
In the writ petition under article 32 of the Constitution he challenged the validity of selection on the ground among others that it was arbitrary and contrary to rules
For the respondents it was submitted that the Commission had taken a decision on the advice of the High Court Judge who was present at the viva voce test as provided under r 17 of the Orissa Judicial Service Rules 1964 that a candidate to be suitable for the post of Munsif should secure at least 30 per cent marks at the viva voce test and that the petition er did not secure the minimum qualifying marks so pre scribed
Allowing the writ petition HELD 1
The decision of the Orissa Public Service Commission to prescribe the minimum marks to be secured at the viva voce test for the post of Probationary Munsifs in the State Judicial Service was illegal and without authori ty
1106B 21 The Orissa Judicial Service Rules 1964 flamed under the proviso to Article 309 read with Article 234 of the Constitution have been made by the Governor of the State after consultation with the State 1098 Public Service Commission and the State High Court
The Commission which has been constituted under the Rules must therefore faithfully follow the Rules
It must select candidates in accordance with the Rules
It cannot prescribe additional requirements for selection either as to eligibil ity or as to suitability
1105G H 1106A 22 Rule 16 of the Rules requires a candidate to secure a minimum of 30 per cent marks in the written examination to qualify
The candidates who have secured more than that minimum would alone be called for viva voce test
The Rules do not prescribe any such minimum marks to be secured at the viva voce test
Rule 18 mandates the Commission to add the marks obtained at the written examination and the viva voce test together no matter what the marks at the viva voce test
On the basis of the aggregate marks in both the tests the names of candidates will have to be arranged in order of merit
The list so prepared is then to be forwarded to the Government under Rule 19
1101D E F The Commission therefore had no power to exclude the name of any candidate from the select list merely because he had secured less marks at the viva voce test
1101G PK Ramchandra Iyer  Ors
vs Union of India  Ors
   and Umesh Chandra Shukla etc
vs Union of India 1985 Supp 2 SCR 367 referred to
Even if the minimum qualifying marks were fixed for the viva voce test by the Commission on the advice of the High Court Judge present at the viva voce test in accord ance with r 17 of the Rules that cannot validate the action of the Commission for he had no power to add any thing to the Rules of recruitment
Rule 17 itself proceeds to state that such a Judge shall not be responsible for selection of candidates
He may advise the Commission as to the special qualities required for judicial appointments
His advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted
It may also cover the type and standard of questions to be put to candidates or the acceptance of the answers given thereof
But his advice cannot run counter to the statutory Rules
1104F H 1105F Ashok Kumar Yadav and Ors
vs State of Haryana and Ors etc
etc 1985 Supp 1 SCR 657 referred to 4
The Orissa Public Service Commission is directed to re do the select list on the basis of the aggregate marks obtained by the candidates 1099 in the written examination and at the viva voce test
The list so prepared to be forwarded to the Government as re quired under r 19 of the Rules for appointments as Munsifs
The persons who fall within the revised list if already in service need not be disturbed
Their inter se seniority to be regulated as per the rankings in the revised list
1106B D