IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 16206 of 2010(R) -------------------------- PETITIONER: -------------- JAYACHANDRAN.C., AGED 38, S/O.R.CHANDRASEKHARAN KARTHA, RESIDING AT LAKSHMI VILAS, EAST KADUNGALLOOR, U.C.COLLEGE P.O. ALUVA. BY ADV. SRI.MATHAI M PAIKADAY, SENIOR ADVOCATE SRI.R.PARTHASARATHY SRI.JOE JOSEPH KOCHIKUNNEL SRI.REJI GEORGE SMT.MANJU RAJAN SRI.MOHAN PULIKKAL RESPONDENTS: ----------------- 1. THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, ERNAKULAM, KOCHI-31. 2. THE REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 3. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. KRISHNAKUMAR.P., S/O.G.P.PANICKER, PUTHEN VEEDU, VANDANAM P.O., ALAPPUZHA-688 001. 5. SMITHA.M., UPHAR, UDAYA NAGAR, NEAR KARTHYANI TEMPLE, AYYANTHOLE, THRISSUR-3. 6. MUHAMMED RAEES, S/O.MUHAMMED BASHEER, ROOBY NIVAS, MUDAPURAM P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM. 7. SULEKHA.M., PANAMVILAKAM VEEDU, PERUMPAZHUTHOOR P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. WP(C).No. 16206 of 2010(R) 8. BALAKRISHNAN K.K., KARIYANGATTE HOUSE, PARAPPUPARA, KODIYURA P.O., VATAKARA, KOZHIKODE- 673515. 9. NAZEERA.S., 8/61, NELSA, VIDYA NAGAR, PALAKKAD DISTRICT. 10. BABU.K., CHARUVILA PUTHEN VEEDU, THEVANNOOR P.O., AYUR, KOLLAM. 11. KAUSER EDAPAGATH, ZAHIRA, P.O.CIVIL STATION, KANNUR-02. 12. BADHARUDEEN.A., PANAYIL VEEDU, MYLAKKADU P.O., KOLLAM. 13. MANILAL C.S., CHENNATTU HOUSE, VELLAVOOR P.O., CHANGANACHERRY, KOTTAYAM-686541. R1 & R2 BY ADV.SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B. UNNIKRISHNA KAIMAL R3 BY SENIOR GOVT. PLEADER, SMT. K. MEERA. R4 BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN R5 BY ADV. SRI.K.JAJU BABU SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH R6 BY ADV. SRI.S.SREEKUMAR SRI. K.SIJU SRI.P.PRATHEESH R7 BY ADV. SRI.R.K.MURALEEDHARAN SRI.SANU.S.PANICKER SRI.M.ZIYAD R8 BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.R.K.MURALEEDHARAN R9 BY ADV. SRI.ELVIN PETER P.J. R10 BY ADV.SRI.C.K.SREEJITH R11 BY ADV. SRI.A.MOHAMED MUSTAQUE R12 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.PETER JOSE CHRISTO SRI.A.MOHAMED MUSTAQUE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010, ALONG WITH WPC NO. 16207 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16206 of 2010(R) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN WRIT PETITION NO.200/2010 DATED 14.05.2009. EXT.P2 : TRUE COPY OF THE NOTIFICATION DATED 16.04.2007, BEARING NO.B1-60160/2006/B INVITING APPLICATIONS FOR APPOINTMENT TO THE POST OF DISTRICT AND SESSIONS JUDGES. EXT.P3 : TRUE COPY OF THELIST OF SUCCESSFUL CANDIDATES IN THE WRITTEN EXAMINATION DATED 23.09.2008. EXT.P4 : TRUE COPY OF NOTICE DATED 13.01.2009 ALONG WITH THE LIST OF QUALIFIED CANDIDATES IN THE ORDER OF MERIT. EXT.P5 : TRUE COPY OF PETITIONER'S FIRST APPLICATION UNDER RTI ACT DATED 20.01.2009. EXT.P6 : TRUE COPY OF HIGH COURT'S REPLY DATED 18.02.2009 GIVEN TO EXT.P5 APPLICATION. EXT.P7 : TRUE COPY OF PETITIONER'S SECOND APPLICATION UNDER RTI ACT DATED 05.03.2010 SPECIFICALLY ENQUIRING ABOUT MODERATION. EXT.P8 : TRUE COPY OF HIGH COURT'S REPLY DATED 31.03.2010 GIVEN TO EXT.P7 APPLICATION REFUSING INFORMATION SOUGHT FOR. EXT.P9 : TRUE COPY OF REJOINDER AFFIDAVIT DATED 15.03.2010 FILED BY THE HIGH COURT IN SLP NO.4203/2009 BEFORE THE HON'BLE SUPREME COURT. EXT.P10 : TRUE COPY OF THE MARK LIST OF QUALIFIED CANIDATES DATED NIL PREPARED BY THE 1ST RESPONDENT. EXT.P11 : TRUE COPY OF LIST OF QUALIFIED CANDIDATES DATED NIL PREPARED BY THE 1ST RESPONDENT. EXT.P12 : TRUE COPY OF THE SELECT LIST AFTER RECASTING DATED NIL SENT BY THE 1ST RESPONDENT FOR THE APPROVAL OF THE GOVERNMENT. RESPONDENTS' EXHIBITS: EXT.R1(A) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE RECRUITMENT COMMITTEE DATED 22.09.2008. EXT.R1(B) : TRUE COPY OF THE DECISION OF THE FULL COURT AT THE MEETING HELD ON 08.03.2010. EXT.R1(C) : TRUE COPY OF THE MERIT LIST OF 45 CANDIDATES. WP(C).No. 16206 of 2010(R) EXT.R4(A) : TRUE COPY OF THE REPLY RECEIVED BY RESPONDENT NO.4 FROM THE PUBLIC INFORMATION OFFICER OF THE HON'BLE HIGH COURT DATED 21.02.2009. EXT.R4(B) : TRUE COPY OF THE INTIMATION OF THE DATE OF HEARING OF THE APPEAL RECEIVED FROM THE HON'BLE HIGH COURT DATED 26.03.2009. EXT.R9(A) : TRUE COPY OF MEMORANDUM OF WRIT PETITION, W.P.(C) No.14027/2009 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT. /TRUE COPY/ PA TO JUDGE J.Chelameswar, CJ. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 16206 and 16207 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of September, 2010 JUDGMENT J.Chelameswar, CJ. These two Writ Petitions are inter connected. The challenge in these two Writ Petitions is with regard to the selection and appointment of respondent Nos.4 to 13 to the Kerala Higher Judicial Service as District and Sessions Judges. The respondent Nos. 4 to 13 are same in both the Writ Petitions. The facts leading to the litigation are as follows: 2. The first respondent issued the Notification dated 16.04.2007 inviting applications for appointment to the post of District and Sessions Judges to the Kerala Higher Judicial Service through Direct Recruitment from the Bar. As per the said Notification, the recruitment process was WP(C) Nos. 16206 and 16207 of 2010 -:2:- initiated for filling up of six vacancies in the above mentioned service. Three stipulations made in the notification are relevant for the purpose of the decision in these writ petitions. They are: (i) Candidates must not have completed the age of 47 years (as on 01.01.2007). (ii) The selection process consists of a written examination and viva-voce. The written examination consists of three papers carrying 200 marks each and viva-voce for 50 marks. (iii) A candidate is required to secure a stipulated cut off mark in the written examination to be qualified for being called for viva-voce. Under Clause 6 of the Notification, it has stipulated that the rules relating to reservation in the matter of appointment of Backward Classes, Scheduled Castes and Scheduled Tribes, as envisaged under Part II of the Kerala State and Subordinate Service Rules (Rules 14 to 17) shall apply to the selection WP(C) Nos. 16206 and 16207 of 2010 -:3:- process in question*. -------------------------------------------------------------------------------------- * “A candidate for appointment as District Judge from Bar shall satisfy the following conditions: xx xx xx (b) He shall not have completed 47 years of age on the first day of January, 2007. xx xx xx The Kerala Higher Judicial Service Examination for selection of candidates for appointment as District and Sessions Judges shall consist of written examination and viva-voce. The written examination shall consist of three papers, each paper carrying a maximum of 200 marks. The duration of each paper will be three hours. General candidates and candidates belonging to Other Backward Classes securing not less than 50 per cent marks and candidates belonging to Scheduled Caste and Scheduled Tribes securing not less than 40 per cent marks in each paper of the written examination shall alone be eligible for being called for viva-voce. Maximum marks for viva-voce shall be 50. The merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and viva-voce. xx xx xx The rules relating to reservation of appointment for Backward Classes, Scheduled Castes and Scheduled Tribes contained in Part II of the Kerala State and Subordinate Service Rules (Rules 14 to 17) shall apply to appointment by direct recruitment, subject to the condition that the benefit in the case of Other Backward Classes will be available only to those who do not belong to the creamy layer of the respective communities”. WP(C) Nos. 16206 and 16207 of 2010 -:4:- 3. In response to the said Notification, 960 “valid applications” were received by the first respondent. The said 960 applicants were invited to participate in the selection process. But it appears that eventually, only 443 applicants appeared for the written examination, which was conducted from 27th to 29th October 2007. After the written examination, the answer scripts of the above mentioned participants were evaluated and it was found that only seven candidates obtained “cut off” marks in the written examination. 'Cut-off', i.e., the minimum qualifying marks to be secured by the candidates in each of the papers for qualifying the examination as specified in paragraph 4 of the Notification dated 16.04.2007. The relevant portion of paragraph No.4 of the Notification reads as follows: “The Kerala Higher Judicial Service Examination for selection of candidates for appointment as District and Sessions Judges shall consist of written examination and viva-voce. The written examination shall consist of three papers, each paper carrying a WP(C) Nos. 16206 and 16207 of 2010 -:5:- maximum of 200 marks. The duration of each paper will be three hours. General candidates and candidates belonging to Other Backward Classes securing not less than 50 per cent marks and candidates belonging to Scheduled Caste and Scheduled Tribes securing not less than 40 per cent marks in each paper of the written examination shall alone be eligible for being called for viva-voce. Maximum marks for viva-voce shall be 50.. The merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and viva-voce.” It can be seen from the above extract that 'cut off' marks, in so far as candidates belonging to Scheduled Castes/Scheduled Tribes is 40% in each of the papers in the written examination while it is 50% with reference to the candidates belonging to other categories. Of the above mentioned seven candidates, it appears that one candidate belongs to Scheduled Caste category, three belong to OBC and the remaining candidates belong to open category. 4. A Committee of Judges, known as “Recruitment Committee”, consisting of first five Judges of this Court, in a WP(C) Nos. 16206 and 16207 of 2010 -:6:- meeting held on 22.09.2008, opined that “it may not be possible” to obtain sufficient number of candidates to fill up the notified vacancies, in view of the fact that only seven candidates secured the minimum qualifying marks for being called for viva-voce and the number of vacancies sought to be filled up is six. In view of such an opinion, the Committee further resolved “to award” 20 marks by way of moderation in all the three papers of the written examination to all the candidates, who appeared for the examination. A final mark list of candidates, after giving the benefit of above resolution, was prepared and was approved by the Recruitment Committee. It is also recorded in the minutes dated 22.09.2008 that on giving the benefit of above mentioned moderation, forty five candidates became qualified for being called for the viva-voce. 5. Of the above mentioned 45 candidates, two candidates, i.e., one Muhammed Raees M and the petitioner in W.P.(C)No.16207 of 2010 (Minu Mathews) secured employment in the interregnum between the notification and viva-voce. WP(C) Nos. 16206 and 16207 of 2010 -:7:- Therefore, a decision was taken by the Recruitment Committee that the above mentioned two persons were not to be permitted to participate in the further selection process. Aggrieved by the said decision, two Writ Petitions came to be filed by the above mentioned persons. Finally, in view of the decision in W.A.No.2292 of 2008, arising from W.P.(C)No.34161 of 2008 filed by Muhammed Raees, both the above mentioned persons were permitted to participate in the viva-voce, though against the judgment in W.A.No.2292 of 2008, the first respondent herein carried the matter to the Supreme Court by way of SLP No.4203 of 2009. 6. To add another complication to the whole process, in the meanwhile the Kerala Higher Judicial Service Rules came to be amended by G.O.(P)No.98/2008/Home dated 09.06.2008, which was published in Kerala Gazette dated 12.06.2008. One of the changes brought about by the said amendment is that while prior to the amendment, the said Rules provided a limitation of upper age limit of 47 years for the WP(C) Nos. 16206 and 16207 of 2010 -:8:- candidates seeking for appointment as District and Sessions Judges from the Direct Recruitment Category from Bar, the amendment stipulates a minimum age limit of 35 years and maximum age limit of 45 years. In view of the said amendment, the High Court once again took a decision to exclude the candidates, who do not qualify for being appointed as per the amended Rules. Consequent to the said decision, after excluding the candidates who were found ineligible as per the amended Rules, there remained only 29 candidates. Both the present writ petitioners were among those who were eliminated. 7. Finally, a list of six candidates was prepared by the Selection Committee, who were found fit for appointment pursuant to the notification dated 16.04.2007, at the end of the selection process. The said list was approved in a Full Court meeting and thereafter, the same was forwarded to the Government for issuance of appropriate orders of appointment. 8. In the meanwhile, some of the candidates who were excluded from consideration on the ground that they do not WP(C) Nos. 16206 and 16207 of 2010 -:9:- fall within the permissible age limits prescribed in the amended Rules, described earlier, approached this Court by various writ Petitions (seven in number) which were eventually allowed by a Division Bench of this Court by its decision dated 12.11.2009, holding that the amended Rules do not have any retrospective operation and therefore, elimination of candidates on the basis of the amended rule from the selection process is illegal. The said decision was unsuccessfully challenged before the Supreme Court by the first respondent and some others. The SLP was dismissed by order dated 15.12.2009. As a consequence of the judgment of the Division Bench dated 12.11.2009 referred to earlier, the first respondent once again re-opened the entire selection process to consider the cases of 16 candidates who were excluded earlier on the ground that they are not falling within the permissible age limits under the amended Rules. 9. Thereafter, the 16 excluded candidates mentioned earlier were subjected to the process of viva-voce and select list WP(C) Nos. 16206 and 16207 of 2010 -:10:- of the candidates was drawn up. At that stage, it appears that the 1st respondent decided that “the then existing four vacancies (which arose subsequent to the Notification) also be reckoned for the purpose of selection” in a Full Court Meeting held on 08.03.2010. It may be mentioned here that pursuant to the recommendation of the High Court, the 6 candidates, who were found suitable for appointment at the earlier stage of selection, before the decision of the Division Bench dated 12.11.2009, referred to earlier, were in fact appointed and were discharging the functions as District Judges. In view of the subsequent developments, three of the above mentioned six candidates were required to be removed from service, if only six posts are to be filled up. In view of the fact that the said 3 candidates belong to various reserved categories, the High Court opined that by increasing the number of posts to be filled up by taking into account the vacancies that arose subsequent to the notification the said 3 candidates' service have to be protected. Accordingly, a select list of 10 candidates was drawn WP(C) Nos. 16206 and 16207 of 2010 -:11:- up to fill up the above mentioned ten posts of District and Sessions Judges and the same was forwarded to the Government. From the counter affidavit filed by the first respondent, it appears that at that juncture, the Government was requested to invoke the inherent power under Rule 39 of the KS & SSR to protect the three candidates, whose services were found to be very satisfactory. 10. It may be mentioned for the sake of precision that pursuant to the Full Court decision dated 08.03.2010 to fill up 10 posts of District and Sessions Judges, a recommendation was sent to the State Government with the names of 9 candidates. One slot was kept unfilled in view of pendency of SLP No.4203 of 2009. The said slot pertains to turn No.42 of the roster prepared under the KS & SSR, which is earmarked to be filled up by a candidate belonging to OBC, falling under the sub category of Muslim. Eventually, when the said SLP was dismissed by the Supreme Court, even the said slot was recommended to be filled by appointing Muhammed Raees M. WP(C) Nos. 16206 and 16207 of 2010 -:12:- The said recommendations are still pending with the Government of Kerala and only the six candidates originally appointed are functioning. 11. Both the writ petitioners herein before us, though they were qualified initially for being called for viva-voce examination, as each of them secured the 'cut-off' marks in each of the three papers in accordance with the original stipulation contained in the Notification dated 16.04.2007, failed to secure appointment in view of the decision of the Selection Committee to award grace marks/moderation of 20 marks in each of the three papers to all the candidates participated in the written examination. By virtue of the said decision, some of the candidates, who would otherwise have been disqualified to be called for viva-voce examination on the ground that they failed to secure the cut-off marks in each of the three papers of the written examination, ended up having higher marks than the writ petitioners herein. Hence the present Writ Petitions. WP(C) Nos. 16206 and 16207 of 2010 -:13:- 12. A Preliminary objection is raised regarding the maintainability of the present Writ Petitions by the respondent No.9, i.e., when both the writ petitioners herein had earlier approached this Court by way of two separate Writ Petitions [W.P.(C) No.14027 of 2009 was filed by C.Jayachandran, the petitioner in W.P.(C)No.16206 of 2010) and W.P.(C)No. 9289 of 2009 was filed by Minu Mathews, the petitioner in W.P.(C) No.16207 of 2010] questioning the decision of the High Court to exclude them from consideration on the ground that they were not falling within the permissible age limits as per the amended Kerala Higher Judicial Service Rules, the instant ground of challenge, i.e., the illegality of the decision of the High Court to provide moderation, was also available to the writ petitioners and the petitioners having failed to raise such a ground in the earlier Writ Petitions are debarred from raising such a ground afresh in these Writ Petitions either on the principle of constructive res judicata contained in Section 11, Explanation IV of the C.P.C., or on the principle envisaged under Order II, WP(C) Nos. 16206 and 16207 of 2010 -:14:- Rule 2 of the C.P.C. 13. The learned counsel for the petitioners however submitted that the preliminary objections are not tenable in view of the fact that the moderation granted pursuant to the decision of the Recruitment Committee dated 22.09.08 was not within the knowledge of the petitioners at the point of time when they had approached earlier this court in the year 2009. The learned counsel in support of such an assertion brought to our notice that the petitioner in W.P.(C) No. 16206 of 2010 made an application under the provisions of the Right to Information Act to the Information Officer of the 1st respondent on 5th March, 2010 enquiring whether any moderation or grace marks were granted to the candidates in the written test in issue. The said information was declined by the Public Information Officer of the 1st respondent by a letter dated 31.03.2010, marked as Ext.P8 in the abovementioned writ petition. 14. The learned counsel for the 9th respondent had relied upon the judgments of the Supreme Court in Executive WP(C) Nos. 16206 and 16207 of 2010 -:15:- Engineer, ZP Engg. Divn. v. Digambara Rao [(2004) 8 SCC 262], State of U.P. v. Nawab Hussain [AIR 1977 SC 1680], A.T. Sharma v. A.P. Sharma [AIR 1979 SC 1047], Forward Construction Co. v. Prabhat Mandal [AIR 1986 SC 391] and The Direct Recruit Class-II Engg. Officers' Assocn. v. State of Maharashtra [AIR 1990 SC 1607]. We do not consider it really necessary to examine in detail the above mentioned decisions. Suffice it to say, each of the above decisions deal with the various aspects of the doctrine of res judicata and their applicability to the proceedings under Article 226. The applicability of the question of res judicata to the proceedings under Article 226 is no more doubt; nor the applicability of doctrine of constructive res judicata. None of the above decisions, in our view, are relevant to the facts of this case. It must be noted that the dispute and the issue in the previous round of litigation was totally different. The question there was whether the elimination of the present petitioners from the consideration on the ground that they were not within the WP(C) Nos. 16206 and 16207 of 2010 -:16:- permissible limits of the age was legally tenable. On the other hand, the question in these two writ petitions is whether the decision of the 1st respondent to award moderation is legally sustainable. In the background, we are required to examine whether the doctrine of constructive res judicata could be pressed into service. In our opinion, judgment reported in State of U.P. v. Nawab Hussain [AIR 1977 SC 1680] throw sufficient light on the matter. The Supreme Court after taking note of two earlier decisions reported in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara (AIR 1964 SC 1013) and Devilal Modi v. Sales Tax Officer, Ratlam (AIR 1965 SC 1150) held: “.... the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi's case .....” and further held: “It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended himself by raising the other pleas .................... It was therefore not permissible for WP(C) Nos. 16206 and 16207 of 2010 -:17:- him to challenge ................”. Justice C.K.Thakker in his textbook on Code of Civil Procedure, referring to the above decisions, opined as follows: In State of U.P. v. Nawab Hussain (AIR 1977 SC 1680), A, a sub-inspector of police, was dismissed from service by the D.I.G. He challenged the order of dismissal by filing a writ petition in the High Court on the ground that he was not afforded reasonable opportunity of being heard before passing the order. The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an additional ground that since he was appointed by the I.G.P., D.I.G. had no power to dismiss him. The State contended that the suit was barred by constructive res judicata. The trial court, the first appellate court as well as the High Court held that the suit was not barred by res judicata. Allowing the appeal filed by the State, the Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and could well have been taken in earlier writ petition. The same principle applies to the pleas which were taken but not pressed at the time of hearing”. WP(C) Nos. 16206 and 16207 of 2010 -:18:- So, it appears clearly from the above that knowledge of the relevant fact is an essential ingredient to be ascertained before coming to a conclusion that a party ought to be barred from seeking a relief from this Court on the ground of constructive res judicata. The fact that the writ petitioners did not have the knowledge of the decision of the 1st respondent to grant moderation and the 1st respondent declined to divulge such information, in spite of the application by the petitioners, is clearly established. In the circumstances, we see no substance in the preliminary objection raised by the 9th respondent. 15. Under the scheme of the Constitution of India appointments of persons to be as District Judges in any State is mandated to be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to