pvr １ WP1364-9944-3869-2549-2284 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1364 OF 2010 1.Aarti Madhukar Gaikwad & Ors. ...Petitioners vs. 1.State of Maharashtra & Ors. ...Respondents --- Mr.S.G.Gokhale & Mr.G.R.Mishra i/b. Mr.J.G.Reddy, for Petitioners. Mr.V.R.Dhond with Sanjay Udeshi i/b. Sanjay Udeshi & Co., for Respondent-High Court. --- AND IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9944 OF 2009 1.Waghmare Shriram Bhagwandas & Ors. ...Petitioners vs. 1.State of Maharashtra & Ors. ...Respondents --- pvr ２ WP1364-9944-3869-2549-2284 Mr.S.G.Gokhale & Mr.G.R.Mishra i/b. Mr.J.G.Reddy, for Petitioners. Mr.V.R.Dhond with Sanjay Udeshi i/b. Sanjay Udeshi & Co., for Respondent-High Court. AND WRIT PETITION NO.3869 OF 2010 Jaydin Govardhan Pande. ...Petitioner vs. 1.State of Maharashtra & Ors. ...Respondents --- None for Petitioner. Mr.V.R.Dhond with Sanjay Udeshi i/b. Sanjay Udeshi & Co., for Respondent-High Court. AND WRIT PETITION NO.2549 OF 2010 1.Mr.Sachin Durgashankar Mehta and Another. ...Petitioners vs. 1.State of Maharashtra & Ors. ...Respondents --- None for Petitioners. Mr.V.R.Dhond with Sanjay Udeshi i/b. Sanjay Udeshi & Co., for Respondent-High Court. pvr ３ WP1364-9944-3869-2549-2284 AND WRIT PETITION NO.2284 OF 2010 1.Sayyad Shahnawaj Shabbir & ors. ...Petitioners vs. 1.State of Maharashtra & Ors. ...Respondents --- None for Petitioners. Mr.V.R.Dhond with Sanjay Udeshi i/b. Sanjay Udeshi & Co., for Respondent-High Court. CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 12th September,2011. P.C.:- 1. By these petitions, the petitioners challenge the validity of the Second proviso to Rule 6(2)(a) of the Maharashtra Judicial Service pvr ４ WP1364-9944-3869-2549-2284 Rules,2008. The petitioners are lawyers. They had applied for the post of Judicial Magistrate First Class and Civil Judge, Junior Division. Some of the petitions have been filed challenging the validity of the above said Rules immediately after the advertisement was issued, some of petitions have been filed by the candidates who have applied pursuant to the advertisement but were unsuccessful in getting selected though on the basis of their performance in the written test they were called for interview, obviously on the basis of their performance at Viva-voce they were not selected. The relevant Rule reads as under:- 6.Recruitment by Nomination.-(1) (a) On or before the 15th January of every year in case of the Civil Judge, Junior Division and in case of District Judges the 31st March of every year, the Recruiting Authority shall be informed of the number of existing vacancies and pvr ５ WP1364-9944-3869-2549-2284 the vacancies that are likely to occur within one year for the post of Civil Judge, Junior Division and District Judge. (b) Every year the Recruiting Authority shall, by advertisement in the Official Gazette and in at least two newspapers, invite applications in such form as it may determine, for intending candidates, who possess the qualifications for filling in the vacancies. (c) The Recruitment Authority shall hold the final examination of two hundred marks for the category of District Judges referred to in sub-rule (1) of rule 12 of these rules. (d) The Recruiting Authority shall hold a written examination of one hundred marks each in Civil Law and Criminal Law, respectively, for the category of Civil Judge, Junior Division referred in sub-rule (2) of rule 12 of these rules. (e) The Recruiting Authority shall hold viva voce Examination pvr ６ WP1364-9944-3869-2549-2284 carrying fifty marks. (2)(a) Candidate who secures not less than fifty percent of marks in each paper in written examination shall be eligible for the viva-voce examination for appointment to the post of District Judge under 1(b) and 1(c) and Civil Judge, Junior Division under 3(A) of the table  c under rule 5 and by nomination; Provided that Scheduled Caste or Scheduled Tribe candidates who obtain forty-five percent or more marks in the written examination shall be eligible for the viva voce examination; Provided further that the candidate who obtains 40% marks in viva voce examination shall be eligible for selection. (b) A candidate who could not successfully pass the competitive written examination in three attempts, consecutively, shall be debarred from appearing for such examination. pvr ７ WP1364-9944-3869-2549-2284 (c) A candidate who has committed any copying or misconduct during course of written examination or has been convicted in criminal case or is compulsorily retired, removed or dismissed from judicial service or could not successfully complete probation period of any post in judicial service shall not be eligible to appear for the Competitive Examination. 3.(a) The Recruiting Authority, on the basis of cumulative marks secured by a candidate, shall prepare in the order of merit, a list of candidates eligible for appointment. The number of candidates to be included in the list shall be equal to the number of vacancies as on the date of examination. (b) Besides the above list, the recruiting Authority shall prepare wait list, equal to ten per cent of the number of vacancies notified for recruitment or one, pvr ８ WP1364-9944-3869-2549-2284 whichever is higher. (4) (a) The Recruiting Authority shall recommend the names of selected candidates by completing the selection process. (b) The Government within two months of the names of the selected candidates being forwarded to it shall complete the process of verification of antecedents and medical examination and issue appointment orders. (c) The lists so prepared under clause (a) of sub-rule (3) above shall be published within one month of preparation in the Official Gazette and cease to be operative on the expiry of one year from the date of such publication. (d) The High Court may issue the posting orders after appointments are notified by the Government. (5) Every candidate applying for appointment by nomination shall furnish such certificates, from two respectable persons unconnected with his College or University and not pvr ９ WP1364-9944-3869-2549-2284 related to him, testifying to his character, on declarations as to educational qualification, experience, age, caste, etc. as may be required by the Recruiting Authority, besides certificates. (6) The decision of the Recruiting Authority as to the eligibility or otherwise of a candidate for admission to the written and viva-voce examination shall be final. (7) Candidates whose names are included in the list prepared under clause (a) of sub-rule (3) above shall be considered for appointment in the order in which their names appear in the list and subject to rule 8, they may be appointed by the appointing authority in the vacancies notified under clause (a) of sub-rule 1 above. Candidates whose names are included in the wait list shall be considered for appointment after the candidates whose names are included in the list published under sub- clause (a) of sub-rule (3) above pvr １０ WP1364-9944-3869-2549-2284 have been appointed and have not joined or have not been appointed for any reason. Inclusion of the name of a candidate in any list prepared under clause (3) shall not confer any right of appointment on such candidate. Thus, according to this Rule, selection of candidate for appointment to the post of Judicial Magistrate First Class and Civil Judge, Junior Division is to be done on the basis of the performance of the candidate in the written examination and performance in Viva-voce. In order to become eligible for being called for viva-voce, the candidate has to secure minimum 50% mark in the written examination if the candidate belongs to general category. In case of Scheduled Caste and Scheduled Tribe candidate, there is a provision for relaxation of 5% mark for being eligible to be called for oral interview. The Second proviso to Rule 6(2)(a) of pvr １１ WP1364-9944-3869-2549-2284 the Rules provides that no candidate who has secured less than 40% of marks in viva voce, will be eligible for selection. The learned Counsel appearing for petitioners submits that this Rule is void and invalid because it is contrary to the recommendations of Shetty Commission which recommendations have been accepted by the Supreme Court by its judgment in the case All India Judges Association and others Vs. Union of India, (2002)4 SCC 247. The learned Counsel submitted that the Supreme Court has accepted the recommendations of the Shetty Commission after granting an opportunity to all the State Governments and other concerned persons to raise objections, and therefore, the recommendations of the Shetty Commission are binding on everybody. The learned Counsel pointed out to us the relevant recommendations which read as under:- 10.97 The Commission has received innumerable complaints that the pvr １２ WP1364-9944-3869-2549-2284 selection by only viva-voce has more often led to arbitrariness if not whimsical selection, unjust if not unreasonable. With respect to High Courts, we do not want to carry any such impression. But we do feel that there is less transparency and objectivity in the selection process. We would, therefore, like to recommend the following procedure to reduce degrees of subjectivity and arbitrariness and to promote more fairness and objectivity: (i) There shall be written examination followed by viva-voce. (ii) Written Examination must carry 200 marks on the subject/subjects prescribed by the High Court. The paper should be of a duration of minimum two hours. (iii) The cut off marks in the Written Examination should be 60% or corresponding grade for general candidates and 50% or corresponding grade for SC/ST candidates. Those who have secured the marks above the cut off marks shall be called for pvr １３ WP1364-9944-3869-2549-2284 viva-voce Test. (iv) The viva-voce Test should be in a thorough and Scientific Manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva-voce shall carry 50 marks. There shall be no cut off marks in viva-voce Test. (v) The merit list will be prepared on the basis of marks/grades obtained both in the Written Examination and viva-voce. The learned Counsel submitted that the recommendations of Shetty Commission which have been accepted by the Supreme Court is that There shall be no cut off marks for Viva-voce test. The learned Counsel submits that, therefore, the rule framed by the State Government is violative of directions of the Supreme Court and is, therefore, liable to be set aside. The learned Counsel relied on the judgment of the Supreme Court in the case Hemani Malhotra Vs. High Court of Delhi with Vineeta Goyal V. High Court of pvr １４ WP1364-9944-3869-2549-2284 Delhi, AIR 2008 Supreme Court 2103 to contend that the Supreme Court has held that contrary to the directions of the Shetty Commission a rule cannot be framed prescribing minimum mark for Viva-voce. The learned Counsel also relied on the judgment of the Supreme Court in the case Ramesh Kumar Vs. High Court of Delhi & Anr., 2010 AIR SCW 946 . The learned Counsel also invited our attention fairly to the judgment of the Division Bench of this Court in the case Manoj s/o. Arvindrao Sable & Ors. Vs. State of Maharashtra & Ors., 2011(2) ALL MR 325 . By that judgment the Division Bench of this Court has already upheld the validity of a rule which is identical to the rule in question. The learned Counsel submits that the Division Bench has wrongly held that the Rule is valid. According to the learned Counsel, the Division Bench has not properly appreciated the law laid down by the Supreme Court in its judgment in Ramesh Kumar case referred to above. pvr １５ WP1364-9944-3869-2549-2284 2. We have also heard the learned Counsel appearing for respondents. The learned Counsel invited out attention to the judgment of the Division Bench of this Court in the case Dipti Dipak Kolapkar Vs. Maharashtra Public Service Commission & Anr., 2009(4) Bom.C.R.59 . He also pointed out to us the judgment of the Supreme Court in All India Judges Association case referred to above, to contend that all the recommendations of the Shetty Commission which have been accepted by the Supreme Court are not binding on the State Government and the High Courts. Some are of recommendatory nature. The learned Counsel also invited our attention to the judgment of the Supreme Court in the case Barot Vijaykumar Balakrishna & Ors. Vs. Modh Vinaykumar Dasrathlal & Ors., 2011(4) ALL MR 849 (S.C) and submitted that acceptance of the report of the Shetty Commission by the Supreme Court does not take away the power of the Rule making Authority pvr １６ WP1364-9944-3869-2549-2284 to frame a rule which may be contrary to the recommendation made by the Shetty Commission. The learned Counsel submitted that if a question arises in case of conflict between the recommendations of the Shetty Commission and the Statutory Rules, the Statutory Rules prevail. It is only in the absence of the Statutory Rules, that the recommendations of the Shetty Commission will have to be followed. The learned Counsel also invited our attention to the judgment of the Supreme Court in the case Rakhi Ray and others Vs. High Court of Delhi and others, (2010)2 Supreme Court Cases 637 . The learned Counsel pointed out that the judgment of the Supreme Court in Rakhi Ray case, is the judgment delivered by three Judges Bench of the Supreme Court, and therefore, that judgment will have to be followed. 3. From perusal of the recommendations of Shetty Commission which we have quoted above, it pvr １７ WP1364-9944-3869-2549-2284 is clear that it is clear recommendation made by Shetty Commission that performance at Viva-voce of the candidate is to be taken into consideration for the purpose of deciding the suitability of the candidate for the post of Judicial Officer. It is also clear that the Shetty Commission has recommended that there shall no cut off marks in viva-voce. So far as the judgment of the Supreme Court in Hemani Malhotra case is concerned, that was the case of selection and appointment to the vacant post in Delhi Higher Judicial Service and those appointments were governed by the administrative Resolutions of the High Court. For filling up the post, the Registrar General of Delhi High Court issued an advertisement which laid down minimum qualifying marks in the written examination as 55% for General Candidates and 50% for Scheduled Castes and Scheduled Tribes candidates. In the advertisement there was no indication at all about cut off marks for oral pvr １８ WP1364-9944-3869-2549-2284 interview. After written examination no result was published giving names and number of qualifying candidates, but the successful candidates were called for interview individually through letters. After the date was fixed for oral interview, it was postponed three to four times. Meanwhile, the selection committee resolved that as it was desirable to prescribe minimum marks for the viva voce, the matter be placed before the Full Court. Then the matter was placed before the Full Court and the Full Court resolved that for recruitment to Delhi Higher Judicial Service from Bar, the minimum qualifying marks in viva voce will be 55% for General candidates and 50% for Scheduled Castes and Scheduled Tribes Candidates. After the decision, the interview were held but the candidates were kept in dark about the decision fixing cut off marks for viva voce. The High Court prepared a select list applying the cut off marks fixed for viva voce, but the candidates called for oral pvr １９ WP1364-9944-3869-2549-2284 interview still were not knowing the said decision. It is only after the application is made under the Right to Information Act, that some of the unsuccessful candidates could gather information that they have failed to secure cut off marks in viva voce and then selection was challenged before the High Court. In this background, in paragraph 9, the Supreme Court has observed thus:- 9.From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after written test was conducted. There is no manner of doubt that 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 pvr ２０ WP1364-9944-3869-2549-2284 not prescribed for viva voce before the 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. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce, test was illegal. 4. From this judgment, it is clear that the selection process with which the Supreme Court was dealing in this case was started after the Supreme Court had accepted the recommendation of the Shetty Commission. In this case, the Supreme Court was dealing with the selection process for appointment to the post of Judicial Officer and in this background the Supreme Court has observed that the authority making rules regulating the selection can frame rules prescribing minimum pvr ２１ WP1364-9944-3869-2549-2284 marks for viva voce. It is, thus, clear from the observation of the Supreme Court in this Judgment that prescription of minimum marks by framing rule was accepted as a legal method by the Supreme Court by its judgment in Hemani Malhotra case. 5. So far as the judgment in the case of Ramesh Kumar vs. High Court of Delhi & Anr., (2010)3 Supreme Court cases 104 , is concerned, in that case the Supreme Court has held that for appointment to the post of Judicial Officer in the absence of any contrary provision in the relevant Rules, Delhi High Court should not have fixed any minimum qualifying mark for viva voce because the Supreme Court had accepted Justice Shetty Commission s Report which contains a direction not to have any cut off marks for viva- voce. In paragraph 15, the Supreme Court has observed thus:- 15. Thus, the law on the issue pvr ２２ WP1364-9944-3869-2549-2284 can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum benchmarks for written test as well as for viva voce. Thus, the Supreme Court clearly contemplates that the Statutory authority framing rules can provide for minimum marks for viva voce after noting that the recommendations of Shetty Commission accepted by the Supreme Court is for not providing for any cut off marks for viva voce. On the same date on which three Judges Bench of the Supreme Court decided the case of Ramesh Kumar referred to above, it also decided the case of Rakhi Ray & Ors. Vs. High Court of pvr ２３ WP1364-9944-3869-2549-2284 Delhi & Ors. referred to above. It is clear from the observations of the Supreme Court in that judgment in paragraph 16 that the question that the Supreme Court was considering in that case was  whether the recommendations of the Shetty Commission which were approved by the Supreme Court could be implemented without they being incorporated in the Statutory Rules and the Supreme Court in clear terms held that the Rules have to be framed incorporating the recommendations that were approved. Obviously, while incorporating the recommendations, the Rule making Authority had power and authority to deviate from the recommendations. That situation is clearly accepted by the Supreme Court by its judgment in Ramesh Kumar case referred to above. Perusal of the judgment of the Division Bench of this Court in Manoj Sable case referred to above, shows that apart from considering the observations of the Supreme Court in its judgment in Ramesh Kumar case, this pvr ２４ WP1364-9944-3869-2549-2284 Court has also considered the recommendations of Shetty Commission and found that even according to the Shetty Commission, the performance of the candidates at viva voce is crucial and if the candidate secures below 40% mark in viva voce then he gets  0 grade value, which dis-entitles him to be selected for the post. Thus, even after re-examining the entire issue, we cannot persuade ourself to take a different view than the one which has already taken by the Division Bench of this Court in Manoj Sable case referred to above. 6. The learned Counsel appearing for petitioners submitted that though the rule provides that the candidate belonging to Scheduled Caste and Scheduled tribe is entitled to concession of 5% of marks for being eligible to be called for interview, same benefit is not extended for the viva-voce. The learned Counsel, however, was not in a position to substantiate pvr ２５ WP1364-9944-3869-2549-2284 this contention. In the result, therefore, all the petitions fail and are dismissed. Rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)