CWP No.9157 of 2008 etc. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 18 .05 .2010 1.CWP No.9157 of 2008 Keshav Kaushik ... Petitioner VERSUS State of Haryana & Others …Respondents 2.CWP No.17137 of 2008 Baldev Singh ...Petitioner VERSUS State of Haryana & Others …Respondents 3.CWP No.17708 of 2008 Nidhi Garg and another ...Petitioner VERSUS State of Haryana & Others …Respondents 4.CWP No.11437 of 2008 Labh Singh ...Petitioner VERSUS Punjab & Haryana High Court & others …Respondents 5.CWP No.12410 of 2008 Surinder Kumar Garg (Advocate) ...Petitioner VERSUS State of Haryana & Others …Respondents 6.CWP No.14743 of 2008 Navin Kumar ...Petitioner VERSUS Punjab & Haryana High Court through its Registrar General and others …Respondents CWP No.9157 of 2008 etc. 2 7. CWP No.9158 of 2008 Gehal Singh Sandhu & anr. ...Petitioner VERSUS State of Haryana & Others …Respondents 8.CWP No.3462 of 2009 Baldev Singh ... Petitioner VERSUS State of Haryana & Others …Respondents 9.CWP No.6822 of 2009 Keshav Kaushik ...Petitioner VERSUS State of Haryana & Others …Respondents 10.CWP No.4924 of 2009 Ravindra Kumar ...Petitioner VERSUS State of Haryana & Others …Respondents 11.CWP No.16211 of 2009 Sudesh Kumar Goyal ...Petitioner VERSUS State of Haryana & Others …Respondents 12.CWP No.15464 of 2009 Vinod Kumar ...Petitioner VERSUS State of Haryana & Others …Respondents CWP No.9157 of 2008 etc. 3 CORAM HON'BLE MR.JUSTICE PERMOD KOHLI Present: Mr.Anupam Gupta, Advocate with Mr.Keshav Kaushik, Petitioner-in-Person. Mr.Ashok Aggarwal, Senior Advocate, with Mr.Alok Jain, Advocate, for respondent No.12 in CWP No.9157 of 2008. Mr.SD Sharma, Senior Advocate, with Ms.Bindu Goel, Advocate, for respondent No.13 in CWP No.9157 of 2008. Mr.Balram Gupta, Sr.Advocate, Mr.Anand Chibbar and with Ms.Anamika Negi,Advocates. Mr.OP Goyal, Senior Advocate, with Mr.Varun Sharma, Advocate,for respondent Nos.4 & 12. Mr.PS Dhaliwal, Mr.KDS Sodhi, Advocate, for Respondent Nos.7 to 11 in CWP No.7708 of 2008 and Respondent Nos.3 to 7 in CWP No.3462 of 2009. Mr.Pawan Kumar, Senior Advocate, with Mr.Sandeep Sharma, Advocate, for respondent Nos.15 & 18 in CWP No.9157 of 2008. Mr.Sanjive Pandit, Advocate,for respondent No.8 -Mr.RC Dimri) Mr.RN Raina, Advocate,for respondent No.7- Puneesh Jindia. Mr.Gaurav Sharma, Advocate, for respondent No.9-Dinesh Kumar Mittal. Mr.Sudesh Kumar Goyal, respondent No.21, (CWP No.17137 of 2008) in person. Mr.Sumeet Goel and Mr.PR Yadav,Advocates. Mr.PC Goyal, Addl.AG, Punjab, Mr.RS Kundu, Addl.AG, Haryana. CWP No.9157 of 2008 etc. 4 Permod Kohli, J. I. General 1. District Judiciary is the foundation of the judicial system upon which the whole edifice of the judicial institutions stands. Judiciary is the bulwark of the democratic system in India and reckons indubitably as the most potent institution in the triad, the executive and legislative being the other two pillars under the constitutional scheme. The selection/appointment to the Subordinate Judiciary thus assumes a great significance in the administration of justice. The administration of justice in turn depends upon the fairness of the appointments of the meritorious candidates necessary to keep and strengthen the faith in the judicial system. No doubt the appointments to any service should be fair and on merits and this is particularly so in case of judicial appointments. The reverence reposed in the judicial system makes it imperative that judicial appointments obtain a close scrutiny to dispel even the remotest apprehension in the minds of consumers of justice about quality and legality of the selection process. What to say of a common man who often approaches the courts for protection of their civil and constitutional rights, even the State some times seeks not only the advice and counselling from the courts, particularly, the higher judiciary, but invokes the jurisdiction of the courts for remedying any action of its own statutory and other authorities. The complexity of the judicial functions imposes an onerous duty upon the courts in administration of justice, be it violation of fundamental rights, civil rights, disputes relating to property, matrimonial and host of other areas. Thus, it is essential that the judicial appointments CWP No.9157 of 2008 etc. 5 must undergo the toughest test of scrutiny, not only to retain the faith reposed in the judicial system, but also to imbibe it further. 2. Judicial appointments to the middle rung of the judiciary below the High Court, called the superior judiciary is under scrutiny in the present bunch of writ petitions. Most of the issues raised are common in all these writ petitions; so is the nature of defence. Wherever the additional grounds of challenge are raised, we will advert to the same at the appropriate stage. In some of the writ petitions, the prayers made are for consideration of the candidature of the writ petitioners without challenging the selection of the private respondents. II. The process and Procedure of Selection 3. Through the medium of advertisement dated 18.5.2007, the process for selection was set in motion by inviting applications for the notified posts of Additional District & Sessions Judges (hereinafter referred to as “ADJ”) in the Haryana Superior Judicial Service by way of direct recruitment on the basis of a competitive examination envisaged under rule 6 (1) (C ) of Haryana Superior Judicial Service Rules, 2007. 22 posts were advertised for selection/appointment for the General and Reserved categories. Out of 22 posts, 14 posts were meant for General Category, 5 for Scheduled Castes and 3 for Backward Classes. Eligible candidates within the age limit of 35 to 45 years as on 1.1.2007 possessing the requisite qualifications could only apply. Qualification prescribed for the posts in question was that a person should be duly enrolled as an Advocate and has practiced for a period not less than seven years as on the date of notification i.e. 18.5.2007. Last date for making application was fixed as on 15.6.2007. The requirement of applications to be made strictly in the prescribed format CWP No.9157 of 2008 etc. 6 was made part of the advertisement notification. The mode and method of selection were written examination comprising of 750 marks and viva-voce with 250 marks. Minimum qualifying marks in the written test prescribed under the notification were 40% in each paper and 50% in aggregate for the General Category and 45% in aggregate for the Scheduled Castes/Backward Class Category candidates. Achieving minimum percentage of marks in the written examination was prescribed for pass percentage, reserving right with the High Court to resort to short-listing of candidates equal to three times, the number of vacancies to be called for Viva-voce. The selections/appointments were to be made strictly in the order of merit (Category-wise) in which the candidates were to be placed after the result of written examination and Viva-voce. III. Parties to the Litigation 4. All the writ petitioners and private respondents in some of the writ petitions applied in response to the aforesaid advertisement on the prescribed formats. Written tests were conducted by the Punjab and Haryana High Court at Chandigarh between 22.2.2008 to 24.8.2008. On the basis of the performance in the written tests, a list of as many as 64 candidates who qualified the main written examination was issued vide press release dated 22.3.2008 indicating their roll numbers. These candidates were in fact short-listed for Viva-voce. Roll numbers of some of the writ petitioners were also included in the aforesaid list. Interview of the candidates bearing roll numbers referred to above was conducted in April, 2008 in the Chamber of Hon'ble the Chief Justice by a Committee comprising of Hon'ble Judges of Punjab and Haryana High Court. Based upon the combined merit of written test and Viva-voce, final select list was CWP No.9157 of 2008 etc. 7 notified on the website of the Punjab and Haryana High Court as also by way of press release on 25.4.2008 followed by recommendation to the State of Haryana, the appointing authority. Private respondents no.3 to 18 in CWP No.9157 of 2008 are the recommendees who were appointed and whose selections are under challenge. IV. Constitutional Provision/Rules govering the Selection/appointment to the posts of ADJ in the State of Haryana 5. Article 233 of the Constitution of India which is the source of judicial appointments for superior/higher judiciary; is reproduced as under:- “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.” Rules 5, 6 and 11 of Part III of the Haryana Superior Judicial Service Rules, 2007 read as under:- “PART III- METHOD OF RECRUITMENT 5.Recruitment to the Service shall be made by the Governor:- (i)by promotion from amongst the Haryana Civil Service (Judicial Branch) in consultation with the High Court; and CWP No.9157 of 2008 etc. 8 (ii)by direct recruitment from amongst eligible Advocates on the recommendations of the High Court on the basis of the written and viva-voce test conducted by the High Court. 6. (1)Recruitment to the Service shall be made:- (a)50 per cent by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division) on the basis of principle of merit-cum- seniority and passing a suitability test; (b)25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service as Civil Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division); and who are not less than thirty five years of age on the last date fixed for submission of applications for taking up the limited competitive examinations; and (c )25 per cent of the posts shall be filled by direct recruitment from amongst the eligible Advocates on the basis of the written and viva voce test, conducted by the High Court. (2)The first and second post would go to category (a) (by promotion on the basis of merit-cum- CWP No.9157 of 2008 etc. 9 seniority), third post would go to category (c ) direct recruitment from the bar), and fourth post would go to category (b) (by limited competitive examination) by rule 6 and so on. XXX XXX XXX 11.The qualifications for direct recruits shall be as follows:- (a)must be a citizen of India; (b)must have been duly enrolled as an Advocate and has practiced for a period not less than seven years; (c )must have attained the age of thirty five years and have not attained the age of forty five years on the 1st day of January of the year in which the applications for recruitment are invited.” V. Nature of Challenge and the Grounds therefor 6. Challenge to the selection/appointment falls under two broad categories with sub categories:- (i) Validity of the process of selection as a whole; (a) assignment of marks for interview vis-a-vis written test; (b) time for each candidate for interview (ii) Ineligibility of the selectees/appointees. Under this category, the ineligibility is alleged to arise by- (a) candidates selected/appointed as ADJs from the Fast Track Courts; (b)Additional District Attorneys, Public Prosecutors and Assistant Advocate General. Apart from the challenge to the selection, the petitioners in some cases CWP No.9157 of 2008 etc. 10 challenge the rejection of the State Government the plea for de-reservation of seats for backward and scheduled caste categories for general category seats. In this, the High Court (administration side) supports the claim of the petitioners. The issue of de-reservation and the validity of the state decision will also engage our attention in these cases. VI. The statement in defence on behalf of the High Court and its recommendations for appointments: 7. The selection authority of the High Court has defended the selection process and selection of the candidates in its statement filed to the writ petitions. Detailing various steps in the process of selection, it is averred that the petitioners as well as the contesting private respondents were all found eligible in the written test having secured more than the prescribed marks and applying the notified short-listing criteria i.e. three times number of vacancies were called for interview. It is stated that on 4.4.2007, a Committee comprising of three Hon'ble Judges of the High Court finalized the syllabus for appointment and recruitment of 21 posts of ADJ by direct recruitment from the Bar in the State of Haryana, for General and Reserved Categories which resulted into issuance of advertisement notification dated 18.5.2007. After the result of the written test, the short-listed candidates were summoned for Viva-voce. In respect of the eligibility of the District Attorney/Additional District Attorney/Public Prosecutors, it is pleaded that a Committee consisting of five senior most judges of the High Court under the Chairmanship of the Hon'ble Chief Justice took following decision:- “III. The matter as to whether District Attorney/Additional District Attorney/Public Prosecutor are eligible for direct recruitment from the quota of Bar CWP No.9157 of 2008 etc. 11 under rule 6 (1) (c ) was considered and it was decided that they are eligible for direct recruitment from the quota of Bar under Rule 6 (1) (c ).” It is further contended that in the Full Court meeting of the Hon'ble Judges held on 25.4.2008, recommendations were made to the State Government for appointment of 16 candidates in the order of merit to the post of ADJ in the State of Haryana by direct recruitment. Out of these 16 candidates, 13 candidates are from General Category, one from Backward Category and 2 from Scheduled Caste Category. The Full Court of the High Court further recommended six candidates of the General Category in the order of their merit against four vacancies of Scheduled Castes and two of the Backward Classes in relaxation of rule for appointment against the unfilled posts earmarked for these categories. It is accordingly stated that the petitioners do not fall amongst the recommendees having secured less marks than them. It is further pleaded that there was no impediment for an Advocate who was in service as a District Attorney, Additional District Attorney and Public Prosecutors to be selected as an ADJ in terms of the advertisement notification dated 18.5.2007 and the recruitment rules. It is, however, stated that only three selectees were working as Additional District Attorney, namely, Chandra Shekhar Roll No.1074 (respondent no.15), Sh.Desh Raj Chalia Roll No.1084 (respondent no.18), Sh.Deepak Aggarwal, Roll No.1436 (respondent no.13). VII. Reply by State of Haryana 8. As far as State of Haryana is concerned, it has only placed on record a short written statement through Under Secretary to Government of Haryana, Personnel Department simply pleading that the proposal for CWP No.9157 of 2008 etc. 12 appointment of the private respondents as ADJ in the State of Haryana was forwarded by respondent no.2 (High Court) and on the basis of the recommendation, the State has issued the appointment order dated 19.5.2008 (Annexure R-1) appointing the recommendees to the posts in the order of merit. Regarding the selection of these respondents, the High Court is said to be solely responsible. Almost all the private respondents have filed their separate and joint replies. Reference to the same shall be made while dealing with their individual eligibility. VIII. Analysis and opinion on the issues: (i) Validity of the process of selection as a whole: (a) on assignment of marks 9. Firstly, we deal with the issue relating to validity of the process of selection as a whole. The only ground urged to challenge the selection process is the alleged excessive marks allocated for interview which is said to have nullified the merit in the written test and has the capacity of converting overall “merit” into “demerit” and “demerit” into “merit”. We have carefully examined this aspect of the matter. Marks for written test and viva-voce are statutorily provided. Rule 7 of the Recruitment Rules prescribes procedure for direct recruitment which reads as under:- “7.The High Court shall before making recommendations to the Governor invite applications by advertisement and may require the applicants to give such particulars as it may specify and may further hold written examination and viva-voce test for recruitment in terms of rule 6 (c ) above and the maximum marks shall be in the CWP No.9157 of 2008 etc. 13 following manner:- (i)Written test 750 marks (ii)Viva Voce 250 marks” 10. What is sought to be projected is the excessive allocation of marks for viva-voce i.e. undue weightage to interview, thus, providing discretion to the interviewing body to award marks in the interview to nullify the impact of merit in the written test. Rule 7 is not under challenge in any of the writ petitions. The criteria laid down under Rule 7 was not introduced during the process of selection, rather was in existence since the framing of Rules i.e. 10.1.2007. The rules are duly notified and also referred to in the advertisement notification in response to which the petitioners submitted their applications for selection. The petitioners had the notice and knowledge of the selection criteria and knowing fully well they participated in the process. Now after having remained unsuccessful, the criteria is sought to be assailed on the ground of arbitrariness. How much marks should be allocated for interview/viva-voce when the same follows the written test has been subject of judicial debate in the cases of Lila Dhar vs. State of Rajasthan AIR 1981 SC 1771, Ashok Kumar Yadav and others vs. State of Haryana and others, (1985) 4, SCC 417, and Ajay Hasis vs. Khalid Mujib Sohrawardi, AIR 1981 SC 486 . These cases deal with the question of allocation of marks for interview following written tests. The case of Lila Dhar (supra), relates to selection of Munsiff. Allocation of 25% marks for viva-voce as against 75% for the written test, which had been upheld. In the case of Ashok Kumar Yadav (supra), 12 ½% for viva-voce and in case of Ajay Hasia vs. Khalid Mujib (supra) 33 ½% for interview have been upheld by the Hon'ble Supreme Court. Except CWP No.9157 of 2008 etc. 14 the case of Ajay Hasia (supra), which relates to admission to professional college, all other cases relate to selection/appointment to various services. Thus, there is no hard and fast rule which inter-alia provides any fixed percentage of marks for interview as against the written test. It is primarily the prerogative of the employer, though the allocation should be within reasonable limits not to provide an arbitrary lever to the selection body to exercise the discretion in an arbitrary manner and completely nullify the impact of merit achieved by the candidates in the written test. In the present case, there is no allegation of bias, favouritism in general or in any specific case. The allegations are casual in nature without in any manner establishing a case of bias or arbitrary exercise by the selection body. Interview has been held by committee comprising of five Hon'ble judges of the High Court. No motive could be attributed nor there is any such averment in any of the writ petitions. We do not find any legal or factual basis to interfere in the selection on this ground. (b) on time spent for each interviewee 11. The other limb of the argument sought to be urged relating to the validity of the selection process is that only 4 to 5 minutes were utilized to interview each candidate. In the case of All India Judges' Association and others vs. Union of India and others, (2002) 4 Supreme Court Cases 247, Hon'ble Supreme Court definitely suggested interview for 10 to 15 minutes. There is no material on record to support the contention of the petitioners that interview was confined to 4-5 minutes for each candidate, although some of the petitioners have made such an averment. Suffice it to say, caliber of a candidate may be tested some times by putting 1 or 2 questions and some times, may not be over a period of 10 to 15 CWP No.9157 of 2008 etc. 15 minutes as well. No hard and fast rule could be prescribed to test the knowledge and depth on the subject of a candidate, particularly, in field of law. We have also noticed that none of the candidates has specified the nature of queries and questions put to them which may, in some way, suggest an arbitrariness and draw our attention to the allegations made in a casual manner. In any case averments simpliciter do not make the selection wrong warranting any interference. We thus reject the contentions of the petitioners on this ground as well. IX Ineligibility of the selectees/appointees: (a) Candidates selected/appointed as ADJs from the Fast Track Courts: 12. We now deal with the second issue relating to ineligibility of the candidates i.e. Presiding Officers of Fast Track Courts. Appointment/absorption of the Presiding Officers of the Fast Track Courts in the State of Haryana against the quota of direct recruits in the Haryana Superior Judicial Service is other issue which has fallen for our consideration. It may be useful to briefly trace out the source of the Fast Track Courts. 11th Finance Commission allocated Rs.5029 crores (275 of the Constitution of India) for setting up of 1734 Fast Track Courts in various States to deal with the long pending cases. This amount was to be utilized over a period of five years. Under the Scheme envisaged by the Central Government, the State Governments were required to establish such Fast Track Courts for disposal of the long pending cases. The Scheme formulated by the Government of India, however, received a challenge in the Hon'ble Supreme Court on variety of grounds, including the constitutional sanction, suggested re-employment of the retired Judicial CWP No.9157 of 2008 etc. 16 officers, lack of infrastructural facilities etc. After inviting objections from the concerned quarters and hearing the parties at length, the Hon'ble Supreme Court issued various directions for the implementation of the Scheme in the case of Brij Mohan Lal vs. Union of India and others, AIR 2001 SC 2096. Some of the directions relevant in the instant controversy are noticed here under:- “Keeping in view the laudable objectives with which the Fast Tract Courts Scheme has been conceived and introduced, we feel the following directions, for the present, would be sufficient to take care of initial teething problems highlighted by the parties: Directions by the Court: 1.The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services. 2. The second preference in appointments to Fast Track Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, integrity and character are concerned. Those who were not given the benefit of two years extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Article 233(2) and 309 of the Constitution. The concerned High Court shall take a decision with regard to the minimum- maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts. 3. No Judicial Officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial Officers who have sought voluntary retirement after initiation of Departmental proceedings/inquiry shall not be considered for appointment. 4. The third preference shall be given to members of the Bar for direct appointment in these Courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed periodically by the