CWP No. 16345 of 2005 [1] IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of Decision: January 18, 2008 Baljinder Singh Teja and another ............ Petitioners versus Punjab and Haryana High Court and others ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri J.S. Bhatia, Advocate for the petitioners Shri Balram Gupta, Senior Advocate with Shri R.N. Raina, Advocate for respondent No.1 Dr. Surya Parkash, Advocate for respondents No. 3 and 5 Shri P.K. Rana, Advocate for respondent No. 6 HEMANT GUPTA, J. The challenge in the present writ petition is to the selection of respondents No. 3 to 8 as the Readers attached to Hon'ble Judges of this Court by the petitioners, who are regular and confirmed employees of this Court, serving for more than two decades. Vide notice dated 22.07.2002, applications were invited for the post of Readers to Hon'ble Judges from the candidates who are eligible in accordance with the provisions of Rule 9 of the High Court Establishment (Appointment and Service) Rules, 1973 (hereinafter to be referred as “the Rules”). The syllabus of the competitive examination consists of written CWP No. 16345 of 2005 [2] paper carrying 100 marks; Practical Test (oral) regarding familiarity with records of the High Court and lower Courts and Registers maintained in the Judicial Department carrying 50 marks; Oral examination Shikasta reading in languages of the lower Courts i.e., Hindi and Punjabi, carrying 50 marks and, lastly, Viva Voce including familiarity with law reports and other law books carrying 25 marks, thus, total 225 marks. The petitioners being eligible applied for the post of Reader. They were called for written examination held on 18.10.2003. 23 candidates qualified the written examination. Hon'ble Chief Justice constituted a Committee to hold the further oral test. The petitioners, amongst other candidates, were called for practical test (oral) and Shikasta reading in the languages on 20.03.2004. The test was not held on the said date but on 26.05.2004 the process was completed by the Committee and the merit list was sent to the Hon'ble Chief Justice. Initially, Hon'ble Chief Justice approved the merit list on 29.05.2004 and directed the Registrar to take further action but before the Registrar could issue the orders, Hon'ble Chief Justice recorded a note on 31.05.2004 in respect of grant of 125 marks in the oral test and the interview as ultra vires Article 14 and 16 of the Constitution of India and, therefore, amended the Rules in exercise of powers conferred on him under Articles 229 and 231 of the Constitution of India. The amended Rules were notified on 31.05.2004 whereby 100 marks for written examination were maintained but 10 marks for Practical Test, 10 marks for Oral examination Shikasta reading in language of the lower courts and 5 marks for Viva Voce, including familiarity with law reports and other law books, were prescribed. Thus, instead of 125 marks for different aspects of oral examination were CWP No. 16345 of 2005 [3] curtailed to 25 marks. Since the Rules were amended, all the eligible candidates were subjected to oral part of the examination afresh. Notice for such examination was issued on 6.11.2004 to appear before a Committee on 18.11.2004. On the basis of the recommendations of the Committee, respondents No. 3 to 8 have been appointed on 30.11.2004, which appointment is subject matter of challenge in the present writ petition. Learned counsel for the petitioners has vehemently argued that once the selection process is set in motion, the criteria for selection cannot be changed midstream. If any change is effected, such change will be effective for the subsequent selection and not for the selection initiated prior to the amendment of the Rules. It is also contended that the principle is that the rules applicable on the date of vacancy has to be applied, therefore, the amendment made on 31.05.2004 cannot be made applicable in respect of the vacancies which were advertised earlier and were available before 31.05.2004. Reliance is placed upon Y.V. Rangaiah vs. J. Sreenivasa Rao, (1983) 3 Supreme Court Cases 284 and a Division Bench judgment of this Court reported as Jagar Singh and another vs. State of Haryana and others, 2003(1) RSJ 795. Learned counsel for the petitioners also relied upon Shankarsan Dash vs. Union of India, (1991) 3 Supreme Court Cases 47 to contend that the respondents have no licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. On the other hand, learned counsel for the respondents has raised a preliminary objection that the petitioners are estopped to challenge the selection of private respondents. It is argued that after the amended Rules were notified on 31.05.2004, the petitioners as well as selected CWP No. 16345 of 2005 [4] candidates were called for oral part of test on 18.11.2004. On that date, the test was postponed to 22.11.2004. The petitioners have participated in the oral part of the test on 22.11.2004 and have chosen to file the writ after remaining unsuccessful in the test and, therefore, the petitioners are estopped to challenge the selection process. Reliance is placed upon Madan Lal and others vs. State of Jammu and Kashmir and others, AIR 1995 SC 1088, Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others, (2002) 6 Supreme Court Cases 127 and G.N. Nayak vs. Goa University and others, (2002) 2 Supreme Court Cases 712. It is also argued that amendment in the Rules does not affect any substantive and vested right of the petitioners. The amendment does not alter the eligibility condition but only deals with the examination process. Since no vested right of the petitioners has been infringed by amending the Rules after the oral examination was completed, therefore, the amended Rule has been rightly made applicable. In any case, relying upon Dr. K. Ramulu and another vs. Dr. Suryaprakash Rao and others, (1997) 3 SCC 59, it was argued that Hon'ble Chief Justice, the Rule making authority, has taken a conscious decision in amending the Rules pertaining to oral examination in respect of the existing vacancies as well. Therefore, once a conscious decision has been taken for amendment of the Rules and such amendment being made applicable in respect of already existing vacancies, the principle of old Rules in respect old vacancies cannot be made applicable in the instant case. Admittedly, oral examination of the petitioners was completed prior to approval of the merit list by Hon'ble Chief Justice on the file on 29.05.2004. It was thereafter, Hon'ble Chief Justice found that the Rules CWP No. 16345 of 2005 [5] provide for excessive marks in the oral examination and, therefore, such marks are required to be curtailed down. Such Rule was amended and the amendment was notified on 31.05.2004. It was thereafter the petitioners were called for oral examination in month of November, 2004. During the integrum period, the petitioners did not chose to challenge the amendment or the selection process. Once the petitioners failed to challenge the amendment and the selection process which was in progress and appeared for interview on 22.11.2004, the petitioners by their conduct are estopped to dispute the selection after participation in the interview in terms of the amended Rules. The petitioners have taken a chance to compete for the post after the amendment of the Rules. Having remained unsuccessful, the petitioners cannot turn around to allege that the amendment in the Rules itself is not tenable. It was held by Hon'ble Supreme Court in Chandra Prakash Tiwari's case (supra) that when a candidate appears in the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. The argument of learned counsel for the respondents that none of the vested rights of the petitioners have been infringed by amending the Rules and subjecting the petitioners to fresh interview in terms of the amended Rules may not strictly be justified in normal circumstances. However, Hon'ble Chief Justice has recorded a note on 31.05.2004 to the effect that the marks assigned for oral examination are ultra vires Articles 14 and 16 of the Constitution. The amendment in the Rules is on the basis of principle of law enunciated by Hon'ble Supreme Court whereby unduly CWP No. 16345 of 2005 [6] excessive marks for interview providing leverage to the Selection Committee has not found favour and, therefore, the objective for which the Rules were amended cannot be said to be unjustified which may warrant interference in the writ jurisdiction. At this stage, the note written by Hon'ble Chief Justice on 31.05.2004 requires to be reproduced. The said note, which is taken from the record produced by the official respondents, reads as under:- “ On Saturday dated 29th May 2004 around 9.00 PM, I had approved the result prepared by the Sub Committee in relation to appointment of Readers of the Court. However, from the scrutiny of the record today, it appears that no notice was sent to any candidate for holding viva-voce examination, which comprises 25 marks. From perusal of the Establishment Rules, it is clear that maximum of 100 marks for the written examination whereas for Practical Test (Oral) 50 maximum marks and for Oral Examination (Shikasta) 50 maximum marks and for Viva-Voce Test 25 maximum marks have been prescribed. In my view, fixation of 125 marks in all for the purposes of oral examinations including viva-voce as compared to maximum of 100 marks for written examination ultra vires Articles 14 and 16 of the Constitution of India. In this regard, I have already passed an order today amending the Rule pertaining to award of maximum of marks of Practical Test (Oral), Oral Examination (Shikasta) and Viva- Voce to 10+10+5 respectively that is to say 25 marks only. Thus, I recall my earlier order dated May 29, 2004 of approval and request the Selection Committee to proceed afresh in accordance with law. Sd/- ( Binod Kumar Roy ) Chief Justice 31.05.2004” CWP No. 16345 of 2005 [7] A perusal of the note shows that Hon'ble Chief Justice was aware of the higher marks assigned for oral examination and had taken a conscious decision for amending the Rules relating to the vacancies already notified. In view of the said fact, judgment of Hon'ble Supreme Court in Dr. K. Ramulu's case (supra) would be applicable which it was held as under:- “12. ........But the question is whether the ratio in Rangaiah case, (1983) 3 SCC 284, would apply to the facts of this case. The Government therein merely amended the Rules, applied the amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in ay a decision and those cited by him are P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740, P. Mahendran v. State of Karnataka (1990) 1 SCC 411, A.A. Calton v. Director of Education, (1983) 3 SCC 33, N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157, Ramesh Kumar Choudha v. State of M.P., (1996) 11 SCC 242. In none of the decisions, a situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules. 13. It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the Rules........ 15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us........” In view of the above, we do not find any merit in the arguments raised by learned counsel for the petitioners that the amendment CWP No. 16345 of 2005 [8] in the Rules will not be applicable in respect of the vacancies already notified. Thus, we do not find any merit in the present petition and dismiss the same. (HEMANT GUPTA) JUDGE January 18, 2008 (MOHINDER PAL) ks JUDGE