IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 W.A.No. 1676 of 2008 ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13749/2008 .................... APPELLANT/PETITIONER ------------------------------------- K.PEETHAMBARAN, 50 YEARS, S/O.K.KUNHIKORAN, JUNIOR SUPERINTENDENT, MUNSIFF'S COURT, HOSDURG PO., KANHANGAD 671315, R/AT.KANHANGAD SOUTH, KASARAGOD. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.RAMPRASAD UNNI.T SRI.MANU TOM SRI.M.H.HANIS RESPONDENTS/RESPONDENTS : --------------------------------------------- 1. HIGH COURT OF KERALA, REP. BY ITS REGISTRAR GENERAL, ERNAKULAM, KOCHI-31. 2. THE REGISTRAR, SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 3. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. SENIOR ADV.SRI.K.R.B.KAIMAL GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, ALONG WITH W.A. NO. 1693 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & K.T.Sankaran, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 1676 & 1693 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2009. JUDGMENT Basheer, J: Since identical issues are involved in these two appeals, they are being disposed of by this common judgment. 2. Appellants who are working in the cadre of Junior Superintendent in the Subordinate Judicial Service had applied for the post of Munsiff-Magistrate in response to a notification issued by the High Court of Kerala under the “Recruitment By Transfer” quota. According to the appellants, they had obtained very high marks in the written examination carrying 900 marks. However in the viva voce examination both of them failed to obtain the minimum 30%, thereby falling out of the zone of consideration. 3. Appellants contended before the learned single Judge that they had been awarded lesser marks for viva voce only for the reason that some disciplinary proceedings had been initiated against them in the past, which had no bearing on their individual merit. It was further contended that the Selection Committee had egregiously erred in excluding the appellants from the zone of consideration by giving them less than minimum marks. 4. The learned single Judge repelled the above and other contentions and dismissed the writ petitions filed by the 2 W.A.NOS.1676&1693/08 appellants by a common judgment. The correctness of the above decision of the learned single Judge is called in question in these two appeals. 5. It is contended by the learned senior counsel appearing for the appellants in these two cases that the very prescription of cut off marks for the written examination as well as for viva voce is highly illegal and arbitrary. The other contention raised by the appellants is that the Committee of the Hon'ble Judges which interviewed the candidates had excluded the appellants for reasons which had no bearing or nexus to the requisite parameters for assessing the suitability of the candidates to hold the judicial post in question. 6. As has been noticed already, Ext. P1 notification was issued by the High Court inviting applications from qualified candidates on February 15, 2007 for appointment to the post of Munsiff-Magistrates in the Kerala Judicial Service, under the categories of direct recruitment and recruitment by transfer. The appellants who are working in the category of Junior Superintendent applied under the latter category. 7. The selection process comprised of a preliminary examination consisting of one paper of objective type screening test based on the syllabi indicated in the notification. Cut off marks (of 40% for general candidates and 35% for candidates belonging to SC/ST category) were prescribed in the preliminary examination to qualify for the main written examination. Only those candidates, who qualified in the 3 W.A.NOS.1676&1693/08 preliminary examination, were allowed to write in the main written examination. The scheme of the main examination comprised of five papers carrying an aggregate of 900 marks and viva-voce carrying 100 marks. For the written examination, cut off marks of 40% were prescribed for each paper for the general candidates with an over all minimum of 45%. 8. Since the bone of contention in these two appeals is in relation to the “cut off” marks prescribed for vivo-voce examination, the said clause in the notification is extracted hereunder: “(b) Viva-voce: Only those candidates who score the prescribed percentage of marks in the main written examination shall be called for viva- voce. The viva-voce is meant to assess the candidate’ General knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsiff- Magistrate. The cut off marks in the viva-voce is 30% for general candidates and 25% for candidates belonging to Schedule Caste and Scheduled Tribes category. Fraction of half or more or more than half shall be regarded as full marks and less than half shall be ignored. The marks secured by the candidates in the viva-voce shall be added to the total marks secured by them at the written examination (Main) and the names of all those candidates shall be arranged in the respective 4 W.A.NOS.1676&1693/08 lists on the basis of the total marks secured by them.” 9. It is not in dispute that both the appellants had obtained more than the minimum cut off marks in the written examination. But the common grievance of the appellants is that both of them could obtain only 26% in the viva-voce examination. In other words, the appellants failed to get the prescribed minimum of 30% in the viva-voce and therefore, they were not included in the list of candidates, a copy of which is available on record as Ext.P5 in W.A.No.1693/2008. 10. The appellant in W.A.No.1676/2008 contends that the only reason to exclude his name from Ext.P5 list was that some disciplinary proceedings had been initiated against him way back in the year 1999 for participating in an Employees' agitation while he was serving in the Munsiff's Court at Hosdurg in Kasaragod district. He asserts that the records pertaining to the interview conducted by the committee of judges would establish that the above disciplinary proceeding was the sole reason which persuaded the committee of judges to give him lesser marks for viva- voce. 11. The case of the appellant in W.A.No.1693/2008 is also almost on identical lines. But, admittedly, the disciplinary proceedings against this appellant had been initiated in connection with “missing” of certain court records in a criminal case (S.C.No.240/1994) pending on the file of the 5 W.A.NOS.1676&1693/08 First Additional Sessions Court, Trivandrum while he was working as Bench Clerk in the said court. It is on record, as could be seen from Ext.P7 order passed by the appellate authority, that the punishment of barring of one increment with cumulative effect imposed on the appellant by the disciplinary authority, was reduced to that of withholding of one increment without cumulative effect. 12. In short, the fact remained that the appellant in W.A.No.1693/2008 suffered departmental indictment. But, according to this appellant, first of all, the High Court was not justified in fixing cut off marks either for the written examination or viva-voce. More importantly, the interviewing committee ought not to have been carried away by the so called punishment imposed on the appellant in a departmental proceeding while assessing the overall merit for appointment. 13. It may at once be noticed that the appointing authority, the High Court, had issued Ext.P1 notification in exercise of the power conferred on it by Rule 7 of the Kerala Judicial Service Rules. The above Rule enables the High Court to prepare a list of candidates found suitable for appointment, after following such procedure as the High Court deems it fit and also subject to the Rules relating to communal reservation contained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958. It is also beyond controversy that Rule 3(2) empowers the appointing 6 W.A.NOS.1676&1693/08 authority to ensure that a candidate for appointment shall satisfy certain general conditions enumerated under the said Rule, one of which is that the candidate shall be of “good character”. 14. As rightly pointed out by the learned senior counsel appearing for the appointing authority, no candidates seeking appointment to such a sensitive post like that of Munsiff-Magistrate in the judicial service, can be heard to say that the appointing authority shall not be influenced or swayed by the fact that he/she had been subjected to disciplinary proceedings and imposed with punishment. Of course, the appointing authority, in its counter affidavit, had averred that there was no merit in the contention that the appellants had been awarded low marks for viva-voce examination only for the reason that they had been subjected to disciplinary proceedings resulting in imposition of penalty. According to the appointing authority, the appellants were awarded marks only on the basis of their performance in the interview. 15. The learned single Judge, while dealing with the contention of the appellants that the selection committee was not justified in giving undue significance or importance to the disciplinary proceedings initiated against them in the past, had, of course, observed that the committee was perfectly competent to take note of such proceedings also while assessing their merit and suitability. This observation was 7 W.A.NOS.1676&1693/08 made by the learned Judge while repelling the contention that those disciplinary proceedings were irrelevant to assess the merit of the candidates. 16. We do not find any reason to disagree with the view taken by the learned Judge. The very purpose of conducting a vivo-voce examination (as is indicated in Clause 13(b) of Ext.P1 notification itself) is to assess the candidate’s “general knowledge, grasp of general principles of law, analytical ability and suitability” for appointment as Munsiff- Magistrate (emphasis supplied). Even assuming the selection committee had been swayed by the fact that the appellants were involved in some disciplinary proceedings, it cannot be said the decision of the committee would be vitiated because of that. While assessing the suitability of a candidate, the committee would be entitled to keep in view all inputs which may have a bearing on the selection process. But we hasten to add that the records relating to the selection proceedings in this case, which we have perused, do not reveal that the selection committee had given low marks to the appellants solely on the ground of their being involved in some disciplinary proceedings in the past. Obviously, members of the selection committee headed by Hon’ble the Chief Justice, had awarded marks to the appellants considering their performance in the interview. 17. In this context, it may be noticed that the pleadings in the writ petition and the appeal memorandum would show 8 W.A.NOS.1676&1693/08 that the appellants have proceeded on the assumption that they had failed to obtain the requisite cut off marks only because of the disciplinary proceedings initiated against them. In the absence of any materials on record, we are not persuaded to assume that the appellants could not obtain the minimum cut off marks in the viva-voce examination because of the disciplinary proceedings initiated against them. 18. It is trite that this Court cannot sit in judgment over the proceedings of a selection committee unless and until it is shown that the process of selection is ex facie vitiated. The members of a selection committee were entrusted with the responsibility to assess the merit of the candidates depending on the performance in the interview. As has been noticed already, the selection committee comprised of the Hon’ble the Chief Justice and four senior Judges of the High Court, who are high constitutional functionaries. Appellants cannot be heard to say that the members of the committee had deliberately ignored or overlooked the merit and suitability of the appellants solely for the reason that they were involved in some disciplinary proceedings. We do not find any merit in the contentions raised by the appellants in this regard. 19. The other contention raised by the appellant in W.A.No.1693/2008 is that the appointing authority was not justified in fixing “cut off marks” either for the written examination or viva-voce. A similar argument has been 9 W.A.NOS.1676&1693/08 advanced by the learned senior counsel in W.A.No.1676/2008 also, though no specific grounds in this regard have been raised, either in the writ petition or in the writ appeal. Our attention has been invited the following decisions of the apex court in this connection (P.K. Ramachandra Iyer v. Union of India. (1984 (2) SCC 141), Ashok Kumar Yadav v. State of Haryana (1985 (4) SCC 417), Umesh Chandra Shukla v. Union of India (1985 (3) SCC 721) and Durgacharan Misra v. State of Orissa (1987 (4) SCC 646). 20. Though we have carefully perused the above judgments, we are unable to understand how the dicta laid down in those judgments would come to the rescue of the appellants. In Ramachandra Iyer’s case (Supra), the factual position was that the relevant rules applicable in that case did not enable the appointing authority to fix or prescribe any qualifying marks at the stage of viva-voce over and above the minimum qualifying marks fixed for being eligible to appear for the viva-voce test. But significantly, in spite of the above irregularity committed by the appointing authority, the apex court did not choose to disturb the entire selection. 21. In Ashok Kumar Yadav’s case (supra), the question that came up for consideration was whether the marks awarded for viva-voce test was excessive or not. In Umesh Chandra Shukla’s case (supra) the apex court held that awarding additional marks by way of moderation after 10 W.A.NOS.1676&1693/08 publishing the list of candidates qualified for viva-voce test was irregular and illegal. The decisions cited supra are not in any way helpful to the case projected by the appellants. 22. It is idle for the appellants to contend for the position that the very prescription of cut off marks for the written as well as viva-voce test was illegal or impermissible. That the High Court is empowered to fix cut off marks for the written as well as viva-voce test is now well settled in view of the decision of the apex court in Siraj v. High Court of Kerala (2006(6) SCC 395)=/AIR 2006 SC 2339). 23. In K. Manjusree v. State of Andhra Pradesh (2008 (3) SCC 512) the apex court has held that minimum qualifying marks for interview could not have been prescribed by the appointing authority after the interviews were over. But the above decision has no application to the case on hand since, admittedly, the appointing authority had prescribed the minimum cut off marks for both written examination as well as viva-voce test. 24. The last decision pressed into service by the appellants is Hemani Malhotra v. High Court of Delhi (2008 (7) SCC 11). In this case, the question that came up for consideration was whether the appointing authority could have fixed minimum marks for viva-voce after the written test was over. Their Lordships held that this could not be done. The apex court further held thus: 11 W.A.NOS.1676&1693/08 “The authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process, add an additional requirement/qualification that the candidate should also secure minimum marks in the interview.” 25. Having carefully perused the materials available on record, particularly the files relating to selection, and also having considered the various contentions raised by the learned senior counsel for the appellants, we do not find any reason to interfere with the view taken by the learned Single Judge, who in our view, had rightly repelled the contentions raised by the appellants. There is no merit in any of the contentions urged in these two writ appeals. These writ appeals fail and they are accordingly dismissed. However, in the peculiar facts and circumstances of the case, there is no order as to costs. A.K. BASHEER, JUDGE K.T. SANKARAN, JUDGE. cl 12 W.A.NOS.1676&1693/08 cl