WP(C) 2973/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICEIA ANSARI JUDGMENT AND ORDER (CAV) Amitava Roy, J A concerted challenge has been laid against the exclusion of the petitioners fro m induction in Grade-III of the Assam Judicial Service (for short hereafter refe rred to as the Service) governed by the Assam Judicial Service Rules, 2003 (as a mended) (for short hereafter also referred to as the Rules), they having been de clared to be unsuccessful in the pre-appointment qualifying examination conducte d on the completion of the training course prescribed thereby. The petitioners h ave chiefly maintained that their purported disqualification is in outright viol ation of the Rules and, therefore, liable to be adjudged non est. Direction for their appointment has been sought for as well. 02. We have heard Mr. SK Pathak assisted by Mr. PN Goswami, Advocate s for the petitioners, Mr. KN Choudhury, learned Addl. Advocate General, Assam f or the respondent No. 1 and Mr. SS Dey, learned Standing Counsel, Gauhati High C ourt, Guwahati for the respondent No.2. 03. The facts in bare essential are indispensable. An advertisement was published on 24.01.2008 by the Gauhati High Court (for short also referred t o as the Court) inviting candidature from those eligible in terms of the criteri a prescribed therein pertaining to academic qualification, age etc. for recruitm ent to 72 (existing as well as anticipated) vacancies in Grade-III of the Servic e. While setting out the curriculum for the written test with the marks apportio ned for the subjects thereof as well as for the viva-voce to follow in terms of the Assam Judicial Service (Amendment) Rules, 2008, it was in clear terms procla imed that the selected candidate would be required to undergo one year pre-appoi ntment training course in any reputed institute to be decided by the Court and t hat on the completion of such training would have to appear in an examination to be conducted by the concerned institute in consultation with the Court and furt her that on the successful completion of such training only, he/she would be eli gible for recruitment to the post. The advertisement further mentioned that afte r the successful completion of the training, the candidate would be appointed to the service and may be required to undergo a further orientation/acclimatizatio n course for the period as referred to therein. It was, indeed, mentioned that t he inclusion of the name of any candidate in the list prepared under the Rules a s well as Assam Judicial Service (Amendment) Rules, 2008, on the successful comp letion of the training would not, however, confer any right of appointment in hi m/her. Adequate provisions for reservation of the candidate as per the Rules wer e also ensured. As the advertisement was in continuation of an earlier one as me ntioned therein, it was clarified that those who had already applied in response thereto, though need not apply afresh, but would be governed/bound by the terms and conditions of the fresh advertisement dated 24.01.2008 and the provision of the Assam Judicial Service (Amendment) Rules, 2008. 04. The petitioners, amongst others, responded to the advertisement and participated in the written examination held on 15th and 16th of March, 2008 . They having qualified therein, were called for the interview conducted from 13 .07.2008, and, eventually, on 30.08.2008 the results were declared in the offici al website of the Court. Their names figured in the list of successful candidate s. 05. On 01.10.2008, the Registrar General of the Court, by his commun ication of the same date required the petitioners and the other candidates selec ted to undergo the Pre-Appointment Training, to execute an agreement stipulating inter alia that to acquire adequate working knowledge of official/local languag e(s) of the State of Assam, they would be required to pass a written test and an oral test in the same as an index of satisfactory completion of the training co urse. It was clarified that in case they failed to complete the training course successfully or to serve the State of Assam on successful completion of such tra ining for a period of five years, they would be required to reimburse such amoun t as would be decided by the Court. It was clearly indicated therein that if the y failed to execute the agreement within the time allowed, it would be deemed th at they were not interested to undergo the Pre-Appointment Training and in that event their selection would stand cancelled and offer would resultantly be made to the waitlisted candidates. The petitioners, admittedly, executed the agreement and were, thereafter, depute d to undergo the pre-appointment training for one year at the National Law Schoo l, Delhi, which commenced from 29.12.2008. This training was recalled w.e.f. 31. 05.2009, whereafter, the same was conducted at Guwahati, in course thereof, the trainee candidates, including the petitioners were placed for field training w.e .f. 29.09.2009 up to 19.12.2009 under the jurisdictional District and Sessions J udges as mentioned in the notification dated 17.09.2009 to that effect. They wer e, thereafter, informed of the requirement of appearing in a qualifying examinat ion for appointment in the Grade-III of the Service in the following subjects, v iz, i) Law Paper-I, ii) Law Paper-II and iii) Language Paper to be followed by a n interview. The petitioners, accordingly, appeared in the qualifying test and t he interview. 06. In the eventual notification dated 22.02.2010 releasing the list of the candidates who had qualified the pre-appointment training examination fo r the appointments, the names of the petitioners, however, did not figure. Accor ding to them, their representations seeking to know the reasons therefor, also r emained unresponded. By notice dated 17.03.2010, 45 candidates who had been adju dged to be qualified, vide the notification dated 22.02.2010 were appointed to t he Service. It was, thereafter, that on requisition being made by the petitioner s under the Right to Information Act, 2005, that they (the petitioners in WP(C) No. 2973/2010) were furnished the marks secured by them in the qualifying examin ation, which disclosed that they had failed in the language paper. The petitione r in WP(C) No. 4598/2010 was similarly informed to have failed in the language p aper. The petitioners have in unison impugned the validity of the requirement of the written examination and viva-voce on the completion of the training course as a prerequisite for appointment to the service being in contravention of the R ules and have also assailed the prescription of passing the language paper as en joined by the agreement. The petitioner in WP(C) No. 4598/2010, has additionally urged that her answers to question Nos. 5,6, 7, 8, 10 (A) and 10 (B) of Law Pap er-I have remained unevaluated for which no marks have been allotted to her. 07. The respondent No. 1 in its affidavit through the Joint Legal Re membrancer and Joint Secretary to the Government of Assam, Judicial Department, Dispur has endorsed the impugned action. While affirming the requirement of qual ifying in the language paper as a condition precedent for recruitment to the ser vice in terms of Article 345 of the Constitution of India and the Assam Official Language Act, 1960, the challenge for invalidation thereof on the perceived con travention of the Rules has been dismissed as frivolous. The answering responden t has insisted on the essentiality of proficiency in Assamese language in the in terest of functional excellence and has maintained that the petitioners having p articipated in the qualifying examination without any reservation, they are esto pped from assailing the validity thereof, having failed therein. 08. The respondent No. 2 as well, has asserted that the requirement of the qualifying examination having been prescribed by the Rules, in absence of any challenge thereto (the Rules), the remonstrances of the petitioners with re gard thereto are wholly inconsequential. It has maintained that it having been e njoined by Para B(iii) of the Schedule D to the Assam Judicial Service Rules, 20 03 (as amended in 2008) that a candidate selected to undergo the training course would have to qualify in an examination and the petitioners being conscious of the above having participated in the said process, they are estopped from turnin g around and plead to the contrary. According to the answering respondent, the p etitioners did not, at any point of time, express any objection to the interveni ng stages leading to the qualifying examination involving the evaluation, amongs t others of their performance in the language paper and that they having taken a chance in the exercise of their volition, they cannot be permitted to contend o therwise at this stage. The answering respondent has maintained that the Full Co urt’s decision dated 13.09.2008 and all other consequential actions vis-a-vis th e qualifying examination are all inconformity with the Rules and are thus, unass ailable. That during the pre-appointment training, classes in Assamese had been regularly conducted and attended by the trainee officers including the petitione rs, has also been stated in clear terms. The allegation of violation of the Rule s and hostile discrimination has been emphatically denied. 09. The learned counsel for the petitioner has insistently urged tha t as they had, at no point of time, been informed of the requirement of passing the test in official/local language in the pre-appointment qualifying examinatio n, the disqualification on that ground is in violation of the Rules. As the Rule s do not have any such ordainment, the insistence of passing of the qualifying e xamination in the official language amounts to changing the modalities of the ex ercise midway which is impermissible in law. To reinforce his plea, the learned counsel has drawn our attention to the relevant provisions of the Rules, the let ter dated 01.10.2008 as well as the agreement made to be executed by the petitio ners. The learned counsel for the petitioners impeached Clause 4 of the Agreeme nt also on this count. As such vital information bearing on their ultimate eligi bility for appointment had been withheld from them, the whole process is invalid , he urged. The petitioners having been disqualified on the basis of norms intro duced after the initiation of the selection process to their prejudice, the impu gned action is, per se, invalid, he maintained. Reliance has been placed in supp ort of these pleas on the decisions of the Apex Court in K. Manjusree Vs. State of Andhra Pradesh & Anr., (2008) 3 SCC 512 and Ramesh kumar vs. high court of de lhi & anr., (2010) 3 SCC 104. 10. The learned Addl. Advocate General, Assam, reiterated that the c hallenge is not cognizable in law as the petitioners by their conduct are disent itled to the reliefs claimed. As the letter dated 01.10.2008 of the Registry of this Court had clearly mentioned about the qualifying examination in the languag e paper, it was open for the petitioners to challenge the same at that point of time and they having omitted to do so, they are estopped from pleading to the co ntrary at this distant point of time. Mr. Choudhury, endorsed the requirement of the qualifying examination in the language paper referring to the mandate of Ar ticle 345 and the Assam Official Language Act, 1960. While distinguishing the de cisions relied upon by the petitioners in the contextual facts, the learned Addi tional Advocate General maintained that the impugned decision is valid and that the same ought not to be interfered with, at this belated stage, at the instance of the petitioners. He relied upon the decisions of the Apex Court in VN Sunand a Reddy & Ors. Vs. State of AP & Ors., (1995) 2 SCC 235, All India Judges associ ation vs. Union of India, (2002) 4 SCC 247, K. Manjusree Vs. State of Andhra Pra desh & Anr., (2008) 3 SCC 512 and Ramesh kumar vs. high court of delhi & anr., ( 2010) 3 SCC 104. 11. Generally abiding by the above, Mr. Dey, particularly emphasised on the validity of the impugned action being founded on the Rules. While conten ding that the candidates aspiring for the selection are supposed to be acquainte d with the norms applicable therefor, he pleaded that not only in the instant ca se, the High Court has the prerogative of prescribing the details thereof vis-a- vis the pre-appointment qualifying examination, those were inessential to be lai d before the candidates. As the insistence for qualifying in the official/local language paper was visibly for ensuring excellence in service and thus is demons trative of an overwhelming nexus with the purpose sought to be achieved thereby, the petitioners’ clamour to the contrary is unsustainable in law and on facts, he contended. Mr. Dey urged that the impugned action is wholly founded on the Ru les which have remained unchallenged and thus the assailment ought to be negated in limine. 12. We have extended our cautious consideration to the rival pleadin gs and the arguments based thereon. That the process of recruitment to the posts involved was to be essentially governed by the provisions of the Rules (as amen ded) is an unassailable fact. Under Rule 7, appointment to Grade-III of the serv ice has to be by direct recruitment of candidates satisfying the conditions of e ligibility as prescribed therein. By an amendment to the original Rules vide Ass am Judicial Service (Amendment) Service Rules, 2008, on 9/1/2008 and published i n the issue dated 22/1/2008 of the Assam Gazette Extra Ordinary following amendm ents in Rule 7, Rule 10 and Paragraph B of Schedule D were introduced:- Rule 7:- By direct recruitment; A candidate shall appear in a competitive examination conducted by the High Court as specified in Schedule-B of the Rules for selection to undergo the pre-appointment training course in any reputed Ins titute/National Law School/State Judicial Academy, as may be decided by the High Court. Every candidate shall, on completion of one year pre-appointment trainin g, appear at an examination conducted by the concerned Institute/School/Academy in consultation with the High Court and only on successful completion of such tr aining, the candidates will be eligible for recruitment to the post. The candida tes sent for training shall be paid such monthly stipend as may be fixed by the High Court. Rule 10:- In case of Grade-III cadre, the candidates whose names are included in the list prepared under Clause-(iii) above, shall undergo pre-appointment train ing in reputed pre-appointment training course in reputed Institute/National Law School/State Judicial Academy, as may be decided by the High Court, in the orde r in which their names appear in the list and on their successful completion of such training for one year, they shall be considered for appointment by the appo inting authority in the vacancies notified under Clause (i) above, subject to Ru le 9 of the Rules. The candidates whose names are included in the additional lis t may similarly be directed to undergo one year’s pre-appointment training as sp ecified above and they shall be considered for appointment on successful complet ion of such training, after the candidates whose names are included in the list published under Clause (iii) and who have successfully completed such training. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & The inclusion of the name of a candidate in any list pre pared under clause-(iii) or clause (iv) or on their successful completion of the training as aforesaid, shall not confer any right of appointment to such candid ate. Para B of Schedule D There shall be a training course of one year for the selected candidates in Grade III of the service, which will be spread over as below; (i) Class room lectures, Moot Courts, group discussions etc. at the concerne d Institute/School/Academy, as per the curriculum fixed, in consultation with th e High Court. (ii) A candidate selected for training will be required to execute an agreeme nt that on successful completion of training course, he will serve the State of Assam for a minimum period of five years. In the event the candidate does not su ccessfully complete the training course or on successful completion thereof he f ails to serve the State for minimum period of five years, such candidate shall b e required to reimburse such amount, as may be decided by the High Court. (iii) Candidate selected to undergo the training course will have to qualify i n an examination to be conducted by the concerned Institute/School/ Academy, on completion of the course. (iv) After successful completion of the training in the concerned Institute/S chool/Academy, the candidates will be appointed in the services. They may, howev er, be required to undergo a further orientation/acclimatization course of 4-6 w eeks, if deemed necessary by the High Court. 13. It would thus be apparent from the above extracts that a candida te for direct recruitment to Grade-III of the Service was under the Rules requir ed to appear in a competitive examination to be conducted by the High Court as s pecified in Schedule B for selection to undergo the pre-appointment training cou rse whereafter on the completion of one year pre-appointment training, was to ap pear in an examination conducted by the concerned Institute/School/Academy in co nsultation with the High Court and that only on successful completion of such tr aining he/she was to be eligible for recruitment. Mere inclusion of the name of the candidate in any list for pre-appointment training or in the one drawn after the successful completion thereof would per se not confer on him or her a right of appointment to the service. The training course was to include classroom lec tures, Moot Courts, group discussions etc. at the concerned Institute/School/Aca demy as per the curriculum fixed in consultation with the High Court. A candidat e selected for training was required to execute an agreement that on successful completion of training he/she would serve the State of Assam for a minimum perio d of five years and that in the event of his/her being unsuccessful in the train ing course or the failure to serve the State of Assam for a minimum period of fi ve years on successful completion thereof, he/she would be required to reimburse such amount to be decided by the High Court. 14. Not only the amendments in unequivocal terms enjoined that a can didate selected to undergo the training course would have to qualify in an exami nation to be conducted by the concerned Institute/School/Academy on completion o f the course, it was provided further that even thereafter they could be require d to undergo post appointment orientation/acclimatization course of four to six weeks, if deemed necessary by the High Court. The advertisement dated 24/1/2008 was published after the notification of the Amendment Rules of 2008 and in clear terms embodied the above statutory stipulations. Though the advertisement was i n continuation of the earlier one referred to therein, it was clarified that the candidates who had responded earlier would not apply afresh but would be govern ed/bound by the terms and conditions mentioned therein (Advertisement dated 24/1 /2008) as well as the provisions of the Assam Judicial Service (Amendment) Rules , 2008. In terms of Schedule B to the Rules, the written examination was held on the following subjects. (i) Paper on English 100 marks (a) Essay writing, (b) Precise writing, (c) Grammar etc. (ii) General Knowledge 100 marks (a) Objective Type (b) Aptitude Test (iii) Law Paper-I 100 marks (a) Constitution of India, (b) Code of Civil Procedure, (c) Transfer of Property Act, (d) Indian Contract Act (iv) Law Paper-II 100 marks (a) Indian Penal Code, (b) Criminal Procedure Code, (c) Indian Evidence Act, (d) Law of Torts. 15. That the petitioners qualified in the written examination and th at thereafter were interviewed on a scale of 70 marks is a matter of record. The ir names also appeared in the merit list of candidates for selection for pre-app ointment training. In keeping with the provisions of the Rules vis-à-vis the pre-appointment traini ng and in terms of the resolution dated 13/9/2008 of the Full Court of the High Court in alignment therewith, the petitioners along with others were informed by the letter dated 01.10.2008 of the Registrar General of the Court about the req uirement of execution of an agreement containing amongst others the following st ipulations. 1. That you will undergo one year pre-appointment training at National Law School, Delhi, and successfully qualify in an examination to be conducted by the National Law School, Delhi and that on successful completion of the pre-appoint ment training, you will serve the State of Assam for 5 (five) years. 2. That you will acquire adequate working knowledge of official/local langu age(s) of the State of Assam and for such purpose you will be required to pass a written test and an oral test in such official/local language(s) as a condition of satisfactorily completion of the training course. 16. Thereby it was reiterated that if the candidates concerned did n ot successfully complete the training course or on successful completion thereof failed to serve the State of Assam for a minimum period of five years they woul d have to reimburse such amounts as decided by the High Court. A time limit was fixed for the candidates to execute the agreement and their failure was, as ment ioned therein, to be construed to be their disinclination to undergo the pre-app ointment training warranting cancellation of their selection. The format of the agreement containing the above stipulations recorded that it was under Rule 7, 1 0(iv) and Schedule D of the Assam Judicial Service (Amendment) Rules, 2008. The petitioners executed the agreement without any demur. Noticeably Clause (4) of t he agreement stated as hereunder:- (4) & & The trainee shall acquire adequate working knowledge of the official loc al language(s) of the State of Assam and for such purpose the trainee will be re quired to pass a written test and oral test in such local language(s) as a condi tion of satisfactory completion of the Training Course. Though the training course initially was undertaken at the Natio nal Law School, Delhi, for administrative reasons the same had to be called off and was pursued and completed at Guwahati. The subjects of the training course w ere as herein below:- Law Paper-I 100 Law Paper-II 100 Language 100 17. The training included class room lectures, moot courts, group di scussions etc on the curriculum and a language teacher in particular was appoint ed to teach Assamese to all the pre-appointment trainees throughout the training period except for the term during which the candidates were deputed to differen t districts of Assam for field training. On the completion of the training, the qualifying examination on the above papers was conducted on 26/12/2009 and 27/12 /2009. Whereas the candidates appeared in Law Paper-I and Law Paper-II on 26/12/ 2009, they did so in the Language Paper on 27/12/2009. Their interview was held on 27/12/2009 in the Language Paper. Whereas the candidates had to take written tests in Law Paper-I and Law Paper-II in 100 marks each, in Language Paper the w ritten test was out of 75 marks and the oral test was of the balance 25 marks. E ventually by notification dated 25/2/2010, the list of 45 candidates who had pas sed the pre-appointment qualifying examination on the completion of the training course was published. The names of the petitioners were not included therein. Having regard to the facets of the challenge laid, it would be expedient to enum erate the marks secured by the petitioners in the pre-appointment qualifying exa mination. Sl. No.