Case: State Of Haryana Vs. Subash Chander Marwaha And Ors

2. On 3-2-1970 an advertisement was published in the Government Gazette to the effect that the Haryana Public Service Commission will hold an examination for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). In response to the advertisement a number of candidates appeared for the examination held in November 1970. The result of the competitive examination was declared and published in the Haryana Government Gazette on April 6, 1971. It was a list of 40 candidates who obtained 45% or more marks in the examination. The State Government which is the appointing authority made seven appointments in the serial order of the list according to merit. Respondents who ranked 8, 9 and 13 respectively in that list did not get an order of appointment although there were vacancies. The reason for not making the appointments was that in the view of the State Government, which was the same as that of the High Court previously intimated to the State Government candidates getting less than 55 % of marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining high-standards of competence in Judicial Service. Respondents 1 to 3 who expected to be appointed filed the petition claiming that since there were 15 vacancies and they had the necessary qualifications for appointment the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so would be to prescribe a standard which was not contemplated by the rules but was against them. The appellant, on the other hand, contended that the rules did not oblige them to fill in all the vacancies and it was open to them (the Government) to appoint the first seven candidates from the list in the interest of maintaining high-standards. There was no question of picking and choosing. The rules did not prevent the State from deciding at the time of selection from the list, the minimum number of marks that a selected candidate should score for the purpose of an appointment. The High Court agreed with the contention of the State that merely because the advertisement was for filling 15 vacancies, the first 15 candidates in the list had no right to be appointed in the posts but held that as long as there are requisite number of vacancies unfilled and qualified candidates were available, those candidates had a legal right to be selected under Rule 10 of Part C of the Rules. In the view of the High Court the State Government was not entitled to impose a new standard of 55 % of marks for selection as that was against the rule which provided for a minimum of 45 %.

Court's reasoning:
It will be seen from this that the function under the rules given to the Punjab Public Service Commission was to hold the examination and then prepare a list strictly in accordance with merit on the basis of the marks received in the examination and this list was to be published in the Punjab Government Gazette. Thus it became public property and every candidate would know having regard to the vacancies whether he is likely to be appointed.In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45 per cent. Their names were published in the Government Gazette as required by Rule 10 (1) already referred to. It is not disputed that the mere entry in this list of the name of a candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments. The High Court does not come into the picture for recommending any particular candidate. After the State Government have taken a decision as to which of the candidates in accordance with the list should be appointed, the list of selected candidates for appointment is forwarded to the High Court and the High Court then will have to enter such candidates on a Register maintained by it. When vacancies are to be filled the High Court will send in the names of the candidates in accordance with the select list and in the order they have been placed in that list for appointment in the vacancies The High Court, therefore, plays no part except to suggest to the Government who in accordance with the select list is to be appointed in a particular vacancy. It appears that in the present case the Public Service Commission had sent up the rolls of the first 15 candidates because the Commission had been informed that there are 15 vacancies The High Court also in its routine course had sent up the first 15 names to the Government for appointment.This will clearly go to show that the High Court itself had recommended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate Judges and the Haryana Government in the interest of maintaining high-standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.8. It is rather difficult to follow the reasoning of the High Court in this case, It agrees that the advertisement mentioning 15 vacancies did not give a right to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated "so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10 (ii) in Part C." One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidates name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by theargument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10 (ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55 % for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55 % for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55 % have no right to claim that the selections be made, of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C.