IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MR.JSTICE N.PAUL VASANTHAKUMAR WRIT PETITION NOs.25778 and 26588 OF 2010 and connected miscellaneous petitions .. V.Yamuna Devi .. Petitioner in WP.No.25778 of 2010 Venkateswaran .. Petitioner in WP.No.26588 of 2010 Vs. 1.The Registrar General High Court, Madras. 2.The Government of Tamil Nadu Rep. by its Secretary to the Government Public (Special-A) Department Secretariat, Chennai 9. 3.R.Sakthivel (R.3 is representing R.4 to R.105) 4.T.S.Nandakumar 5.P.Dhanabal 6.S.Shaji Bino 7.N.Ramesh 8.S.Pandiarajan 9.A.Nazeema Banu 10.V.Senthil Murugan 11.VR.Shanmuganathan 12.A.Edwin Prabakar 13.M.Sadiq Basha 14.S.Mahesh Babu 15.A.Kanthakumar 16.P.Murugan 17.S.Karthikeyan 18.S.Balaraman 19.C.R.Gowthaman 20.V.Gunasekaran 21.T.Shanmuga Boopathi 22.S.Karnan 23.C.Kumarappan https://hcservices.ecourts.gov.in/hcservices/ 24.K.Chenthil Kumar 25.K.Dhanasekaran 26.V.Esaikumar 27.M.Manikandan 28.S.Sounthar 29.I.Stephen 30.R.Shanmuga Sundaram 31.Chinnaraja G Naidu 32.T.Muthukumar 33.R.Karl Marx 34.N.Suresh 35.B.Ratha 36.S.Gopalamanikandan 37.S.Deenadhayalan 38.S.Mythili 39.M.D.Sumathi 40.P.Arun Jayat Ram 41.S.Subadevi 42.H.Aurumugam 43.A.Chellapandian 44.V.Raja 45.P.Sivakumar 46.S.Suresh Kumar 47.M.Suresh Viswanathan 48.M.Chenthura Pandiyan 49.S.N.Dhananjeyan 50.D.Gopinath 51.M.Jothiraman 52.D.Karthikeyan 53.P.Selvi 54.S.Senthilrajan 55.A.Xavier Pandian 56.R.Anburaj 57.K.Rajasekar 58.P.Chellum 59.M.Mohamed Riyaz 60.S.Anil Sandeep 61.S.Annamalai 62.S.Janarathanam 63.T.R.Narayanan 64.K.Porkodi 65.S.Ettieswaran 66.M.S.Karthikeyan 67.S.Kiruba Vijay Anand 68.E.Nalla Maharajan 69.R.Poornima 70.A.K.A.Rahmaan 71.R.Sumithra 72.C.Kumaresan 73.P.Murugan https://hcservices.ecourts.gov.in/hcservices/ 74.K.Pandian 75.V.Praburam 76.R.Prem Anand 77.G.Senthilkumar 78.M.R.Thangavel 79.R.Saravanan 80.M.Ponniah 81.K.H.Elvazhagan 82.R.Barathiraja 83.N.Gunasekaran 84.S.Jeevagan 85.N.Sivakumar 86.D.Lingeswaran 87.A.Nambunayagam 88.G.Gengaraj 89.T.G.Kavitha 90.A.P.Srinivas 91.N.S.Sivakumar 92.S.P.Maharajan 93.R.Raja 94.S.Umar Farooq Raja 95.G.Sendil Kumaran 96.A.Vijayarajan 97.S.Chella Mani 98.N.Vijayaraj 99.H.Nagarajan 100.N.Srinivasan 101.C.Jotheeswaran 102.P.Ganapathi Subramanian 103.M.Paramasivam 104.C.Sanjai Baba 105.P.Senthil Kumaran .. Respondents in WP.No.25778 of 2010 1.The Registrar General High Court, Madras. 2.The Government of Tamil Nadu Rep. by its Secretary to the Government Public (Special-A) Department Secretariat, Chennai 9. .. Respondents in WP.26588 of 2010 WP.No.25778/2010: Writ petitions filed under Article 226 of the Constitution of India praying for issuance of writ of Certiorarified Mandamus calling for the records relating to the short-list of candidates published by the respondents 1 and 2 for viva-voice for the Direct Recruitment to the post of District Judge (Entry Level) based on the written examination held on 3.10.2010 and quashing the same as being illegal, arbitrary, unconstitutional and consequently https://hcservices.ecourts.gov.in/hcservices/ direct respondents 1 and 2 to prepare a legally valid shortlist of candidates by giving weightage for the years of practice at the Bar and a proper zone for women candidates on par with the men candidates and call them for viva-voice WP.No.26588/2010: Writ petition filed under Article 226 of the Constitution of India praying for issuance of writ of Certiorarified Mandamus to call for the records of the District Judge Selection process pursuant to the Notification dt.24.6.2010 on the file of the Second Respondent herein and quash the same as illegal and Direct the First Respondent to revaluation of the Answer Sheets to the petitioner by Independent Expert Committee. For petitioner : Mr.N.G.R.Prasad in WP.25778/2010 For petitioner : Mr.R.Sankarasubbu in WP.26588/2010 For respondents : Mr.R.Muthukumarasamy,Sr.Counsel in both the cases for Mr.V.Ayyadurai for R.1 (WP.No.26588/10) Mr.M.Senthilkumar AGP & -R2 Mr.A.C.Manibharathi GA for R2 (WP.No.25778/2010) .. COMMON ORDER P.JYOTHIMANI,J. The petitioners, practicing lawyers belonging to Adi-Dravida Community (which is a scheduled caste) and Backward Class community respectively, have applied for the post of District Judge (Entry Level), pursuant to the notification issued by the Government. Having taken part in the written examination conducted by the High Court of Madras and having failed to get their names short-listed for the viva-voce, they have filed the present writ petitions challenging the short-list of candidates published by the respondents 1 and 2 for viva-voce for direct recruitment to the post of District Judge (Entry Level) and also for direction to the respondents 1 and 2 to prepare a valid short-list of candidates by giving weightage for the years of practice at the Bar and a proper zone for women candidates on par with men candidates and challenging the notification with direction to revalue the answer sheets by an independent expert Committee respectively. 2. As it is seen in the notification issued by the Government dated 24.6.2010 and subsequent corrigendum dated 27.10.2010, applications were called for filling up of the posts of District https://hcservices.ecourts.gov.in/hcservices/ Judge (Entry Level) in the Tamil Nadu State Judicial Service to be filled up through direct recruitment. The recruitment process is governed by the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 (in short, "the Rules"). The applications were called for from advocates or pleaders in India having not less than 7 years of practice and practicing on the date of notification. The vacancy position as per the said notification was as follows: General Turn … … 4(1 woman) Scheduled Caste (Arunthathiyars on preferential Basis) … … 1 (1 woman) Most Backward Classes and Denotified Communities … … 4 (1 woman) Backward Classes (Other than Backward Class Muslims) … … 4 (1 woman) Scheduled Castes … … 3 (1 woman) Backward Class Muslims … … 1 a) Out of the total 17 vacancies, five have been allotted for woman candidates in each of the categories of reservation. As per the notification, the selection is made based on the results of the written examination and viva-voce stating that the total marks obtained by the candidates in the written examination and viva-voce would be taken together, subject to the rule of reservation. The maximum marks allotted for written examination is 75 marks while for viva-voce it is 25 marks as per the notification. b) The written examination, as per clause 7 of the notification, is stated to be for three hour duration involving three papers, viz., Law Paper Part-I (Civil), Law Paper Part-II (Criminal) and Law Paper Part-III (General) each carrying 25 marks to a total of 75 marks. In the said notification it is also stated that the written examination would precede the viva-voce examination and as to the short-listing of candidates, the length of practice at the Bar and the marks obtained by them in the written examination would be considered and such short-listed candidates alone would be called for viva-voce examination. c) It is, based on the said explicit contents in the notification, the petitioners applied for the post of District Judge (Entry Level) in the Tamil Nadu State Judicial Service. Under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, which have been framed by the Governor of Tamil Nadu in consultation with the High Court and the Government of Tamil Nadu under Article 309 of the Constitution of India, three avenues are provided viz., (i) 50% by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrate/Chief Metropolitan https://hcservices.ecourts.gov.in/hcservices/ Magistrate/Metropolitan Magistrates, on the basis of principle of merit-cum-seniority and suitability; (ii) 25% by promotion from amongst the Civil Judges (Senior Division), etc., on the basis of merit through limited competitive examination and viva-voce test as prescribed and conducted by the High Court; and (iii) 25% by direct recruitment from amongst the eligible advocates on the basis of written and viva-voce test prescribed and conducted by the High Court. 3. In the present writ petitions, we are concerned with the last category viz., direct recruitment from amongst the eligible advocates, in respect of which the following qualifications are prescribed as per the rules: a) must possess a degree in law of a University in India, established or incorporated by or under a Central Act or a State Act or an institution recognized by the University Grants Commission or any other equivalent qualification and got enrolled in the Bar Council of Tamil Nadu and in the case of candidates enrolled in the Bar Councils of other States, they should submit proof of transfer of their enrollment to the Bar Council of Tamil Nadu; b) must be practicing on the date of notification as an advocate and must have so practiced for a period of not less than seven years as on such date; and c) must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year in which the selection for appointment is made. 4. As per rule 9 of the said Rules, all rules regulating the conditions of service of the members of the State Civil Services made from time to time under any law or under the proviso to Article 309 of the Constitution of India subject to Articles 233, 233A, 234 and 235 of the Constitution of India would apply. Again, rule 10 which relates to the ‘reservation of appointments’ also states that rules 21(b) and 22 of the General Rules for the Tamil Nadu State and Subordinate Service relating to reservation of appointment shall apply for the selection to the post of District Judge (Entry Level) by direct recruitment. 5. As per Annexure-I to the said Rules, the relevant portion of which is as follows: “DISTRICT JUDGE (ENTRY LEVEL) BY DIRECT RECRUITMENT (1) The Government, in consultation with the Madras High Court shall invite applications for filling up the post of District Judge (Entry Level) by Direct Recruitment. The High Court shall conduct the written examination and viva-voce as specified below for selection of District Judge (Entry Level) by Direct Recruitment. (2) A candidate shall, along with his application- (a) If he/she is an Advocate or Pleader, produce https://hcservices.ecourts.gov.in/hcservices/ from the Presiding Officer of the Court in which he/she is actually practicing, a certificate indicating the length of his/her practice. (b) If he/she is an Assistant Public Prosecutor, Grade I or an Assistant Public Prosecutor, Grade II, produce from the Collector of the District concerned a certificate indicating the length of his/her service. (c) Produce a certificate of good character, from a Senior Advocate/counsel and another from a responsible person, not being a relative but who is well acquainted with him/her in private life. The selection shall be made based on the results of written examination and viva-voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva-voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva-voce shall be 75% and 25% respectively The Notification enlisting the successful candidates prepared under these rules shall be published in the Tamil Nadu Government Official Gazette and it shall cease to be operative as from the date of Publication of the next list of successful candidates prepared under these rules, in the Tamil Nadu Government Official Gazette." the selection is made based on the total marks obtained by the candidates in the written examination and viva-voce would be taken together, as stated above. 6. In the Annexure-II to the Rules which relate to the appointment of Civil Judge (Junior Division) by direct recruitment, which also contains the written examination as well as viva-voce, a detailed procedure has been earmarked and in that regard, it is stated that, ‘the minimum marks for a pass in each written examination shall be 30% for candidates belonging to SC and ST, 35% for candidates belonging to BC and MBC/DNC and 40% for others. In that regard, it is the Tamil Nadu Public Service Commission which invites applications and conducts the written examination and viva- voce. 7. In respect of appointment of District Judge (Entry Level), as it is seen in the Annexure-I, the Government in consultation with the Madras High Court, invites applications and the High Court conducts the written examination and viva-voce. 8. The said rule along with the Annexure is in accordance with the constitutional mandate, in respect of appointment of District Judges, as enunciated under Articles 233 and 235 of the Constitution of India, viz., https://hcservices.ecourts.gov.in/hcservices/ " 233. Appointment of district judges.- (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment." " 235.Control over subordinate Courts.- The total control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law." which entrusts the appointment and promotion of District Judges with the Governor of the State in consultation with the High Court. 9. The rules 21(b) and 22 of the General Rules as mentioned in rule 10 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, relate to the appointment of women and reservation of appointment respectively. In respect of appointment of women, rule 21(b) of the General Rules specifically states as follows: “Rule 21. Appointment of women. (a) xxx (b) A minimum of 30% of all vacancies which are to be filled through direct recruitment shall be set apart for women candidates irrespective of the fact whether the rule of reservation of appointment applies to the post or not. In respect of the posts to which the rule of reservation of appointments applies, 30% of vacancies shall be set apart for women candidates following the existing reservation for Scheduled Castes and Scheduled Tribes, Backward Classes, Most Backward Classes/De-notified Communities and General Turn. Women Candidates shall also be https://hcservices.ecourts.gov.in/hcservices/ entitled to compete for the remaining 70% of vacancies along with male candidates. Provided that in the case of direct recruitment to the posts in the scale of pay, the minimum of which does not exceed Rs.4000/- ten percent of vacancies out of 30% vacancies set apart for women shall be set apart for destitute widows and the first vacancy in every ten vacancies set apart for women in each category namely the General Turn, Backward Classes, Most Backward Classes/De- notified Communities, Scheduled Castes or Scheduled Tribes shall be set apart for destitute widows. If no qualified and suitable destitute widow is available, the turn so set apart for destitute widow shall go to the women (other than destitute widow) belonging to the respective category. Explanation: In this rule, the expression ‘destitute widow’ shall have the same meaning as in the Explanation under sub-rule(d) of Rule 12.” 10. In respect of rule 22 which relates to reservation of appointments, the unit of selection for appointment is taken as 100 of which 18 shall be reserved for Scheduled Castes, one for Scheduled Tribes, 30 for backward Classes, 20 for Most Backward Classes and De-notified communities and 31 shall be filled up on the basis of merit. Therefore, the principle of reservation by allotment of various percentage as stated above, is vertical in nature in each and everyone of categories of reservation whereas, the appointment of women to the extent of 30% of vacancies is on horizontal basis, where women candidates who are to be filled up in each of the categories, are also entitled to compete for the remaining 70% of vacancies along with male candidates, on merit. 11. The petitioner in WP.No.25778 of 2010, who was given registration No.022530 and the petitioner in WP.No.26588 of 2010 with registration No.022459 were allowed to write examination pursuant to their applications along with other candidates, numbering 2047 in total. It was, on the basis of performance in the written examination, the High Court short-listed 103 candidates for the purpose of calling them for viva-voce. As it is seen in the list of candidates short-listed for viva-voce furnished by one of the petitioners in the typed-set of papers, the last four candidates in sl.Nos.100, 101, 102 and 103 have obtained 37.5 marks out of 75, while the first candidate short-listed obtained 61 marks out of 75. The petitioner in WP.No.25778 of 2010 secured 27.25 marks and the petitioner in WP.No.25688 of 2010 secured 20 marks and therefore, their names did not find place in the short-listed candidates for viva-voce examination. 12. The main grievance of the petitioner in WP.No.25778 of 2010, as it is seen from the affidavit filed by her is that while https://hcservices.ecourts.gov.in/hcservices/ short-listing the candidates, the first respondent ought not to have merely considered the marks obtained in the written examination alone and as per the terms of notification, weightage should have been given for the length of practice at the Bar. According to her, if such weightage was given to her, since she has the Bar experience of 16 years, she would have got a fair chance of being included in the short-listed candidates for viva-voce examination. Therefore, according to her, the short-listing was done contrary to the terms of the notification which contemplates for the weightage to be given for Bar experience. 13. It is her further grievance, as it is seen from the affidavit filed by her that out of the short-listed candidates eligible for viva-voce test, in respect of 12 posts meant for men candidates, 92 men candidates have been short-listed, while in respect of 5 vacancies reserved for women, only 11 women candidates were short-listed and therefore, according to her, the zone of consideration has not been arrived at on the basis of proper proportion. In other words, according to her, equal proportion of men and women candidates should have been called for, so as to equalize the zone of consideration at 1:8 as stated to have been followed by the first respondent in short-listing the candidates for viva-voce. 14. Incidentally, the petitioner has also chosen to state that she understands that no dummy numbers were allotted to candidates for correction of papers and there was no proper guideline and therefore, according to her, the selection can only be presumed to be arbitrary. It is also her case that 25% of marks allotted for interview has no basis and that the examination and selection process should have been entrusted to an outside agency like, Law University, since it is stated that some of the relatives of Hon’ble Judges happened to be the candidates. According to her, non-calling her for viva-voce is discriminatory. 15. The grievance of the petitioner in WP.No.26588 of 2010 is that he has applied for revaluation of answer papers on 27.10.2010, which was not considered by the first respondent and that the selection process should not have been conducted by the High Court. 16. In the counter affidavit filed by the first respondent in WP.No.25778 of 2010, it is stated that the writ petition is not maintainable for the reason that the notifications calling for applications for appointment to the posts of District Judge (Entry Level) dated 24.6.2010 and 10.7.2010 were challenged earlier and a Division Bench has already upheld the validity of the notifications. Further, it is stated that the petitioner having participated in the selection process by appearing in the written examination, knowing fully about the contents of the notification, has now chosen to approach this Court only due to the reason that she was not selected https://hcservices.ecourts.gov.in/hcservices/ for viva-voce examination. It is stated that the notification which was issued by the Government as per the Rules provides that for the purpose of short-listing of candidates, after written examination, the marks obtained in the same and the length of service should be considered and only such short-listed candidates were called for viva-voce. a) It is stated that pursuant to the notification, 2047 candidates appeared for written examination conducted on 3.10.2010 including the petitioner and since large number of candidates appeared for the examination, it became necessary to short-list the candidates for viva-voce. It is stated that considering the number of vacancies and by following the distribution pattern mentioned in the notification, from among the merit list which was based on the marks secured in the written examination, serial Nos.1 to 103 were short-listed and that the short-listing was done taking into consideration the rule of reservation and merit. b) It is stated that the short-list of candidates contains all categories of reservation and the short-list was notified and viva-voce was called and conduced between 11.11.2010 and 13.11.2010 and based on the performance in the viva-voce, along with the marks obtained by the candidates in the written examination, select list was drawn and sent to the Government on 13.11.2010. It is also stated that 11 women candidates were called for viva-voce on the basis of marks obtained in the written examination. c) In respect of weightage to be given for the length of practice, it is stated that the statutory rules framed only contemplate selection through written examination and viva-voce with 75% of marks in written examination and 25% in viva-voce and the rules do not enable consideration of weightage or awarding of marks for the length of practice of the candidates. It is the case of the first respondent in the counter affidavit that the weightage for Bar experience as found in clause-7 of the notification only means that while short-listing, when two or more candidates secure equal marks, the length of practice will be considered as a criterion for assigning rank by giving preference among them. d) It is also stated that the said clause-7 itself came to be challenged earlier in W.P.No.15566 of 2010 reported in K.Appadurai vs. The Secretary to Government, Public (Special A) Department [2010 (5) CTC 1] to the effect that the consideration of such Bar experience would amount to going beyond 100 marks and the said writ petition was dismissed accepting the stand of the first respondent as to the manner proposed to be done while implementing the notification, as stated above, and therefore, according to the first respondent, it is not open to the petitioner to reagitate the case once again. It is stated that the reservation for women is on horizontal basis and therefore, there is no question of preparation of separate zone for consideration for women because, women candidates are entitled to be fit in any of the categories subject to 30%. e) It is also stated that the reservation itself cannot be https://hcservices.ecourts.gov.in/hcservices/ claimed as a matter of right under Article 16 of the Constitution of India and the same is subject to Article 335 of the Constitution of India, as laid down by the Supreme Court and fixation of cut-off marks for each category of reserved communities is not a required condition and non-fixation thereof cannot be said to be violative of Articles 14 and 16 of the Constitution of India. f) It is further stated that, in fact, dummy numbers were allotted to the answer scripts before giving them for valuation, and other allegations regarding arbitrariness are also denied. It is stated that sufficient number of candidates belonging to Scheduled Caste/Scheduled Tribes, Backward Community, Most Backward Community/De-notified community were available and therefore, there was no need for relaxation of marks, especially with reference to Scheduled Caste community. g) It is also stated that the viva-voce was conducted by the Hon’ble Judges of this Court and it is not necessary to issue any guideline for viva-voce. It is also stated that deploying of outside agency for appointment of District Judges is not permissible and the selection process was done by the High Court and the short- listing was done in a proper manner with proper reasonings. 17. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner in WP.25778 of 2010 has made the following submissions: i) As per the notification, the marks obtained in the written examination and viva-voce have to be taken together for the completion of selection process and therefore, after written examination is completed, there is no power on the part of the first respondent to reduce the number of candidates to be called for interview. Even though ultimately he accepts that large number of candidates that is, 2047 in