IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW MONDAY, THE26H DAY OF MAY20145TH JYAISHTA, 1936 WA.No. 1663 of 2013 () IN WP(C).22517/2012 -------------------------------------------- AGAINST THE
JUDGMENTIN WP(C) 22517/2012 of HIGH COURT OF KERALA DATED3009-2013 APPELLANT/WRIT PETITIONER:-: ------------------------------------------ BALAKRISHNAN K.K. S/O.CHATHAPPAN, RESIDING AT KARIYANGAT HOUSE PARAPPUPARA, KODIYURA P.O., VATAKARA TALUK KOZHIKODE DISTRICT - 673 506. BY ADVS.SRI.P.CHANDRASEKHAR SMT.UMA SMT.M.JENNY THANKAM SRI.K.A.SABU SRI.P.K.ABDU RAHEEM RESPONDENTS/RESPONDENTS:-: ------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, STATE SECRETARAIT THIRUVANANTHAPURAM.
2. THE HIGH COURT OF KERALA, REPRESENTED BY REGISTRAR GENERAL, ERNAKULAM KOCHI - 682 031. ADDITIONAL RESPONDENT3 SULEKHA M. W/O ALEXANDER JOSEPH, AGED43PANAMVILAKAM VEEDU PERUMPAZHITHOOR P.O. NEYYATTINKARA THIRUVANANTHAPURAM695126 * Addl. Respondent impleaded vide order dated 23.1.14 in I.A.No.960/13 R2 BY ADV. SRI.B.UNNIKRISHNA KAIMAL RADDL R3 BY ADV. SRI.BECHU KURIAN THOMAS RADDL R3 BY ADV. SRI.PAUL JACOB (P) RADDL R3 BY ADV. SRI.ENOCH DAVID SIMON JOEL RADDL R3 BY ADV. SMT.TINA ALEX THOMAS RADDL R3 BY ADV. SRI.S.SREEDEV RADDL R3 BY ADV. SRI.RONY JOSE BY SR. GOVERNMENT PLEADER SRI.A.RANJITH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON2605-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR & K.ABRAHAM MATHEW,JJ.
- - - - - - - - - - - - - - - - - - - - - W.A.No.1663 OF2013- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May , 2014
JUDGMENTRamachandran Nair, J.
The appellant is the writ petitioner. The learned Single Judge by an elaborate judgment dismissed the writ petition.
2. The necessary facts for the disposal of the appeal are the following : The appellant was an applicant to the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar. Ext.P1 produced along with the writ petition is the copy of the notification dated 16.4.2007 issued by the High Court. The appellant belongs to Hindu Vaniyan community, which is included among Other Backward Communities. The community is eligible for reservation in appointment. The total number of vacancies shown in the notification is six including three reservation vacancies.
3. After the selection process was over, he was selected for W.A.No.1663/2013 2 appointment in the vacancy ear-marked for Other Backward Classes. He was appointed by a notification dated 30.03.2009 and he took charge as Additional District and Sessions Judge, Kollam on 21.05.2009.
4. The said selection and appointment was subjected to challenge by different candidates successively. The first batch of cases filed was W.P.(C)No.2021/2009 and connected cases by some of the candidates who were excluded from selection for the reason of not attaining the age of 35 years as on the date of notification. The writ petitions were allowed and the merit list was recast. The same did not affect the appointment of the appellant. Another writ petition was filed by certain other candidates as W.P.(C)No.16206/2010 and the main challenge was regarding the award of 20 marks in each paper in the written test as moderation. The said writ petition was allowed as per Ext.P2 judgment by a Division Bench of this court. The appellant was one of the respondents in the same and SLP No.27701/2010 filed by the appellant along with the additional third respondent herein was rejected by Ext.P3 order. In implementation of the said judgment, the W.A.No.1663/2013 3 appellant was excluded from the new list prepared and the merit list contained only seven candidates who had passed the examination without moderation. Thereafter he was eliminated from service by Ext.P4 notification dated 22.12.2010. The three candidates excluded by the said notification were eligible for reservation. From among the 7 candidates one was appointed in the vacancy ear marked for Muslim along with three open competition candidates. The two remaining vacancies for reservation turns could not be filled up for want of candidates belonging to those communities in the merit list of seven candidates.
5. For filling up two reservation posts, namely one from Other Backward Classes and another from SIUC Nadar, the High Court by Ext.P5 notification dated 18.02.2011 invited application. The appellant was one of the candidates who applied pursuant to the said notification. But none of the candidates were selected as they could not secure the minimum cut off marks of 60%.
6. Contending that if Rule 14(e) of the Kerala State and Subordinate Service Rules( for short KS & SSR) is properly W.A.No.1663/2013 4 implemented, the appellant would have to be re-inducted in service, he filed a representation as Ext.P9. But he did not get any reply and came up with the writ petition. In the writ petition the main prayer is to grand a declaration that the High Court is legally bound to apply Rule 14(e) for the selection and appointment of the District and Sessions Judge based on Ext.P1 notification and the second prayer is to issue a direction to the High Court to apply the said rule for the selection of candidates based on written test conducted pursuant to Ext.P1 notification.
7. Going by the details given in paragraph 14 of the writ petition, the following are the marks secured by the appellant in the qualifying examination conducted as per Ext.P1 notification. Paper I - 121 marks out of 200 ( 60%) Paper II- 84 marks out of 200 ( 42%) Paper III- 88 marks out of 200 ( 44%) 8. The learned Single Judge entered various findings and found that the writ petition is liable to be dismissed for delay and laches. The learned Judge also concluded that the appellant is not W.A.No.1663/2013 5 entitled for the reliefs sought to implement Rule 14(e) by lowering the marks especially since the procedure contemplated under Rule 15(a) of KS & SSR will become redundant, as held already by the Division Bench in Ext.P2.
9. We heard the learned counsel for the appellant Sri.P.Chandrasekhar, the learned standing counsel for the High Court Sri.Unnikrishna Kaimal and Sri.Bechu Kurian Thomas, the learned counsel appearing for the additional third respondent, who supported the appellant.
10. Since the main argument is one based on the benefit allowable under Rule 14(e) of the KS & SSR, we extract the rule herein below: "A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published. Note:- 'Suitable Candidates' for the purpose of this rule shall mean candidates with notified minimum qualifications and marks in selection procedure lowered W.A.No.1663/2013 6 to the extent necessary." 11. The learned counsel for the appellant Sri.P.Chandrasekhar raised various contentions. In a nut shell, they are the following; Rule 14(e) of the KS & SSR being a mandatory one, makes it obligatory to prepare a supplementary list for appointment in the reservation quota. For the said purpose, as provided in the Note to the rule, the marks will have to be lowered to the extent necessary for the reservation vacancies when nobody is available. This method could have been adopted which will give a benefit to the candidates competing from such communities. According to the learned counsel, Rule 14(e) protects the right to have a level playing field which is supported by Articles 14 and 16 of the Constitution of India. The Rule confers a power coupled with duty. The said rule is brought into effect by an amendment in the light of the recommendations of Justice Narendran Commission. A purposive interpretation will have to be adopted so as to have smooth implementation of the provisions of the Rule. The court should consider the legal provisions which existed before coming into force of the rule, the law as it stood then and in W.A.No.1663/2013 7 force at present and the mischief that is sought to be remedied by the introduction of the rule. The rule is specifically brought into effect to see that the vacancies in the reservation slots shall not be left unfilled. In this context, the learned counsel relied upon the decision in Dhampur Sugar Mills Ltd. v. State of U.P. and others (2007 (8) SCC338. By referring to the various judgments of the Apex Court concerning the interpretation of Articles 14 and 16 and the benefit of reservation and the purpose behind the constitutional provisions introducing benefit of reservation to various communities, the learned counsel submitted that when the said constitutional scheme is analysed, it can be seen that the purpose behind the introduction of the rule is to give protection to the communities concerned, for bringing them to the main stream.
12. The learned counsel submitted that the lowering of marks from the notified marks arises only if the authority finds it is necessary to lower the marks to the extent necessary for giving adequate representation to Backward class candidates having the minimum qualification notified. Such a procedure can be taken after the W.A.No.1663/2013 8 selection process is completed and it cannot be a process that can be undertaken before the start of the selection. Such a power for lowering marks is one coupled with duty and when the condition for exercising the discretion exists, it has no other option to decide whether to exercise the discretion or not. When the constitutional scheme is to be implemented to protect candidates belonging to the backward classes and other candidates and when Article 14 provides right to equality to poor and weaker sections of the society, non-implementation of Rule 14(e) results in discrimination and therefore the provisions of Article 14 and 16 are violated. The learned counsel submitted that even though in Rule 15(a) there is a provision to have a separate selection for reservation communities, the obligation under Rule 14(e) cannot be side lined by the presence of Rule 15(a). When reservation is one measure recognised as an affirmative action and as a compensation to the members of the backward classes, which is accorded by historical reasons and to ameliorate the sufferings of the communities concerned, the rule is well protected by Articles 14 and 16 of the Constitution of India. The appellant has got the fundamental right to seek the benefit. W.A.No.1663/2013 9 If that be so, the finding by the learned Single Judge that the writ petition is liable to be rejected for laches and delay is not correct. He attacked the findings rendered on the merits also.
13. The learned counsel further submitted that by applying the principles of proportionality, this court will have to review the administrative action. He relied upon the various judgments of the Supreme Court in this regard and the procedures being adopted by the Public Service Commission usually in public appointments.
14. One of the important arguments raised by the learned counsel for the appellant is that in Ext.P2 judgment of the Division Bench, the main aspect considered was whether the award of moderation marks was legal or not. Even though the award of moderation marks was sought to be justified by the High Court and other respondents relying upon Rule 14(e) of KS & SSR, the said plea was rejected by the Division Bench. Appellant was a party to the judgment. It is submitted that the same is not a bar for considering the claim of the appellant under Rule 14(e) of KS & SSR independently. Actually the application of Rule 14(e) was not a subject matter of the W.A.No.1663/2013 10 said writ petition and therefore the judgment to that extent is sub silentio. It is therefore submitted that the learned Single Judge was wrong in relying upon paragraph 31 of the said judgment. The learned counsel further contended that the view taken by the Division Bench therein that Rule 14(e) will have to be applied at the threshold is also not correct. According to the learned counsel even though the appellant was a party respondent in the said writ petition and the Special Leave Petition filed by him along with others was dismissed, it will not foreclose his rights to re-agitate the matter before this court.
15. The learned counsel relied upon the following judgments to support various pleas.
1. AIR1981SC1922( K.P.Varghese v. Income tax officer, Ernakulam and another) 2. AIR1967SC1450( The Moon Mills, Ltd. v. M.R.Meher, President Industrial Court, Bombay and others) 3. 2001 (2) SCC259( K.Thimmappa and others v. Chairman, Central Board of Directors, State Bank of India and another) 4. 2013 ( 1) SCC353( Tukaram Kana W.A.No.1663/2013 11 Joshi and others v. Maharashtra Industrial Development Corporation and others) 5. 2000 (1) SCC168( Indra Sawhney v. Union of India and others) 6. 2011(9) SCC354(Delhi Airtech Services Private Limited and another v. State of Uttar Pradesh and another) 7. 2001(2) SCC386(Om Kumar and others v. Union of India) 8. 2010 (6) SCC614( Chairman, All India Railway Recruitment Board and another v. K.Shyam Kumar and others) 9. 1984 (3) SCC362(Shri Vallabh Glass Works Ltd. and another v. Union of India and others ) 10. 2003 ( 7) SCC197( Divisional Controller, KSRTC v. Mahadeva Shetty and another) 11. 1982 KLT13F.B.) ( Kunhikrishnan v. State of Kerala) and 12. 2013 UKSC39( Bank Mellat v. Her Majesty's Treasury 16. In support of the arguments of the learned counsel for the appellant, Sri.Bechu Kurian Thomas also submitted that the provisions W.A.No.1663/2013 12 under Rule 14(e) could not have been overlooked and the present stand of the High Court is not correct. It is submitted that the selection and appointment is subject to the provisions of Rules 14 to 17 of KS & SSR which is indicated in the notification itself and hence the stand that Rule 14(e) is not applicable cannot be accepted. The learned counsel further submitted that in the selection process marks could have been lowered to find out the candidates entitled for reservation as per the note provided under Rule 14(e).
17. The learned Standing Counsel for the High Court Sri.Unnikrishna Kaimal submitted that the writ petition is liable to be dismissed for undue delay and laches. Ext.P1 notification is dated 16.4.2007 and the writ petition is filed in the year 2012 after the judgment (Ext.P2) and after the appellant was terminated by Ext.P4 notification dated 22.12.2010. Even after the same there is a delay of nearly two years. Further fresh recruitment process has been initiated as per Ext.P5 notification dated 18.2.2011 for special recruitment to fill up two vacancies, including one claimed by the appellant for OBC. In the said selection process also, the appellant was an applicant, but he W.A.No.1663/2013 13 did not succeed as he could not obtain the minimum cut off marks. It is further submitted by the learned standing counsel that Clauses 4 and 6 of Ext.P1 notification will have to be read together and a minimum cut off mark is provided in the written examination for making a candidate eligible to appear for the interview. It cannot be lowered as contended by the appellant. It is submitted by the learned standing counsel that all the issues are covered against the appellant by Ext.P2 judgment. Therein the Division Bench directed the High Court to follow Rule 15 (a) and to fill up the reservation vacancies. It is submitted that the selection is to the post of District Judge in the Subordinate Judiciary and stipulations have been made in the notification in the light of the directions issued by the Apex Court in All India Judge's Assn. (3) v. Union of India (2002(4) SCC247 and in Siraj v. High Court of Kerala (2006(2) KLT923. Therefore only a candidate who obtains a minimum cut off mark can compete for inclusion in the selection list in the final stage and the appellant having failed to obtain the minimum marks in two papers, there is no question of lowering of his marks further so as to make him eligible for appointment after the W.A.No.1663/2013 14 commencement of the selection process. The selection committee cannot reduce the marks also. If at all any method had to be taken, it had to be provided before the selection. According to the learned counsel therefore only Rule 15(a) alone can be implemented by which separate selection itself is being undertaken which will protect the interest of the communities entitled for reservation. The learned counsel therefore submitted that the contention that Rule 14(e) is mandatory cannot be countenanced at all. The post being that of the District Judge in the Subordinate Judiciary, the lowering of marks will be against public interest. The object of the notification is to obtain the most qualified and eligible candidates and the same being the objective, the High Court was right in conducting the steps under Rule 15(a). The learned counsel also submitted that in the earlier writ petition which culminated in Ext.P2 judgment, the High Court in support of the award of moderation marks had relied upon Rule 14(e) to support the same and the said plea was rejected by the Division Bench and the judgment has become final. It is submitted that there is a considered finding as regards the various aspects concerning Rule 14(e) and the judgment W.A.No.1663/2013 15 does not suffer from any infirmity. Therefore the appellant cannot re-agitate the same, that too after a long lapse of time as his special leave petition stands dismissed.
18. First we will consider the principles concerning delay and laches which can be a ground to dismiss a writ petition . As far as the specific claim of the appellant is concerned, it can be seen that he is seeking the benefit of Rule 14(e) to get back the appointment which was terminated pursuant to Ext.P2 judgment of this court. Therefore it is purely a service matter as far as the appellant's claim is concerned since the entire selection proceedings were undertaken pursuant to Ext.P1 notification for selection and appointment of District Judges in six vacancies. The vehement argument raised by the learned counsel for the appellant Sri.P.Chandrasekhar to explain the delay and laches is by highlighting the fundamental right of the appellant conferred under Articles 14 and 16 of the Constitution of India. It is therefore submitted that even if there is a time lag of five years from the date of notification and two years after he was terminated, this court can re-examine the same. W.A.No.1663/2013 16 19. The principles upon which the ground of delay will be fatal to a claim have been explained by the Apex Court in various decisions. In 2013 (1) SCC353( Tukaram Kana Joshi and others v. Maharashtra Industrial Development Corporation and others) in paragraphs 13 and 14 the following principles have been highlighted : " 13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, W.A.No.1663/2013 17 must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. ( Vide P.S.Sadasivaswamyv. State of T.N. ( 1975 ( 1 ( SCC152, State of M.P. v. Nandlal Jaiswal ( 1986 ( 4) SCC566 and Tridip Kumar Dingal v. State of W.B. ( 2009 ( 1) SCC768 14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other W.A.No.1663/2013 18 side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not hard innocent parties if their rights have in fact emerged by delay on the part of the petitioners ( Vide Durga Prashad v. Chief Controller of Imports and Exports ( 1969 (1) SCC185, Collector ( LA) v. Katiji ( 1987 ( 2) SCC107, Dehri Rohtas Light Railway Co. Ltd. v. District Board ( 1992 (2) SCC598, Bhojpur, Dayal Singh v. Union of India ( 2003 ( 2) SCC593 and Shankara Coop. Housing Society Ltd. v. M. Prabhakar (2011(5) SCC607." 20. In paragraph 15 reference is made to the decision of the Apex Court in H.D.Vora v. State of Maharashtra (1984 (2) SCC337, wherein the Apex Court condoned a thirty year delay on finding that there is a violation of substantive legal right of the applicant. As far as the above judgment (Tukaram Kana Joshi's case (supra)) is concerned, it arose under Land Acquisition Act. The facts show that the Apex Court entertained the special leave petitions after finding that the functionaries of the State took over possession of the land W.A.No.1663/2013 19 belonging to the appellants without any sanction of law and without grand of compensation. No proper procedure was undertaken for acquisition and the parties were illiterate also. It was a case of continuing cause of action. The situation therein ( para 12) is different from the facts of this case.
21. In 2000 (1) SCC259( K.Thimmappa and others v. Chairman, Central Board of Directors, State Bank of India and another) in paragraph 8 reference is made to 1974 (1) SCC317( Deodhar v. State of Maharashtra) wherein it was held that, "claim for the enforcement of the fundamental right of equal opportunity under Article 16 itself is a fundamental right guaranteed under Article 32 and this Court has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like". The learned counsel Sri.P.Chandrasekhar heavily relied upon the above paragraph.
22. In AIR1967SC1450( The Moom Mills, Ltd. v. M.R.Meher, President Industrial Court, Bombay and others) the W.A.No.1663/2013 20 Constitution Bench while examining a similar contention held as follows: " It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party." In the said case no such negligence or laches or acquiescence on the appellant was found.
23. In 1984 (3) SC362(Shri Vallabh Glass Works Ltd. and another v. Union of India and others ) in paragraph 9, the above principles have been reiterated.
24. We will now consider as to how the Rules under KS & SSR were understood and explained by the Division Bench on an earlier occasion in Ext.P2 judgment in respect of the very same selection. We have already quoted Rule 14(e) of the Rules. The next relevant rule is Rule 15(a) which is extracted below: " The integrated cycle combining the rotation W.A.No.1663/2013 21 in clause ( c) of rule 14 and the sub-rotation in sub- rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of the rules or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re- notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates. Explanation:- One 'selection year' for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires. W.A.No.1663/2013 22 Note :- All pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2nd February 2006, shall be compensated." 25. The rule contains a non-obstante clause and it requires the authority to keep the vacancy meant for a community or group of communities as unfilled, if a suitable candidate is not available for selection. It has to be notified separately for that community or group of communities and will have to be filled up exclusively from among that community or group of communities. The rule requires repetition of the notification also.
26. We will now come to the relevant aspects of Ext.P2 judgment. The award of moderation marks, in the very same selection was under challenge therein. Appellant was also a beneficiary of such a procedure. Paragraph 29 will show that the learned counsel for the respondents in the writ petition relied upon Rule 14(e) to justify the procedure adopted by the High Court in awarding moderation marks. It was specifically argued that the Rule contemplates lowering of marks and awarding of moderation marks is an exercise supported by the W.A.No.1663/2013 23 rule. Ext.P9 is the counter affidavit filed by the High Court in that writ petition, wherein in paragraph 11 Rule 14(e) was specifically relied upon justifying the award of moderation marks. It was specifically contended in paragraph 13 that the award of marks was a policy intended to translate the implementation of the provisions in Rules 14 to 17 of KS & SSR.
27. Paragraph 31 of the judgment is extracted below wherein the said contention was considered : "31. Clause (e) essentially stipulates the preparation of a supplementary list with reference to each community or group of communities belonging to the reserved categories in any selection for the purpose of finalising the select list in order to satisfy the requirements of rules of reservation. The expression 'suitable candidates' under clause (e) is sought to be explained under the note to mean a candidate who has the notified minimum qualifications and minimum marks in the selection procedure lowered to the extent necessary. According to the learned counsel for the respondents the decision to award moderation is an exercise of lowering the marks to the extent necessary to identify the suitable candidates belonging to the reserved W.A.No.1663/2013 24 candidates. We reject the submission for more than one reason, (1) granting of moderation to all the candidates who participated in the selection process without reference to the fact whether such candidate belongs to reserved category or not, is not contemplated under clause (e), (2) assuming for the sake of argument that granting of moderation ( only in favour of candidates belonging to reserved categories) tantamounts to "lowering of marks to the extent necessary" for the purpose of identifying suitable candidates from the reservation categories, in our opinion, such an exercise is permissible only at the threshold, but not after the selection process commenced and (3) if such a procedure of lowering of the marks subsequent to the initiation of the selection process is permitted, the procedure contemplated under Rule 15 which provides for resort to the limited recruitment mentioned above, would become wholly redundant. It is well settled in law of interpretation of statues that any construction of a provision which would render another provision of the same law redundant is to be avoided as far as possible. We do not see any reason why the construction such as the one suggested by the respondents should be accepted on the face of the express language of Rule 15(a)." 28. The Bench, with regard to the applicability of Rule 14(e) W.A.No.1663/2013 25 was thus of the view that the lowering of marks to the extent necessary under note to Rule 14(e) is permissible only at the threshold, but not after the selection process commenced. If such procedure of lowering of marks is undertaken subsequent to the selection process, then Rule 15 will become redundant.
29. Even though it is vehemently argued by the learned counsel for the appellant that it is a judgment sub silentio, by relying upon the principles stated by the apex court explaining the said doctrine in Delhi Airtech Services Private Limited and another v. State of Uttar Pradesh and another (2011 (9) SCC354 ( paragraph 43), we do not agree. The aspect to be considered in the light of the well settled principles on the said doctrine is whether the crucial finding in paragraph 31 of Ext.P2 judgment is one divorced from the context and that too on a question which was not raised or required to be answered by the said judgment. The applicability of Rule 14(e) was raised by the respondents in the writ petition and specifically by the High Court in the counter affidavit. After considering the various arguments, this court examined the scope of Rule 14(e) and found that the argument is W.A.No.1663/2013 26 not liable to be accepted. Therefore it is not a case, as argued by the learned counsel for the appellant, that the applicability of Rule 14(e) was not specifically argued before this court. It is a case where only seven candidates could obtain the minimum marks and after awarding moderation marks alone more candidates could be reckoned for consideration. By awarding of 20 marks as moderation marks, 45 candidates became qualified. That exercise was sought to be justified under Rule 14(e) also. On this point the judgment Ext.P2 is not passed sub silentio.
30. The question of lowering of marks to the extent necessary as provided under note to Rule 14(e) could not have been therefore undertaken by the High Court at a stage thereafter, the learned standing counsel Sri.Unnikrishna Kaimal contended. According to him, when the argument in support of the applicability of Rule 14(e) was rejected by finding that it can be applied only at the threshold as otherwise Rule 15 will be redundant, there is no question of this court at this stage accepting the plea of the appellant. We find that the said arguments are cogent and convincing for different reasons. W.A.No.1663/2013 27 31. When we come to Ext.P1 notification, Clause 4 provides the mode of selection which reads as follows : " 4. Mode of selection 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 percent 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. If the number of applicants is disproportionately large vis-a-vis the number of posts to be filled up, the High Court may shortlist the candidates by their length of practice at the Bar and W.A.No.1663/2013 28 such shortlisted candidates alone will be called for the written examination. However, such shortlisting will not be applicable to the candidates belonging to Scheduled Caste/Scheduled Tribe." 32. Going by the same, there will be written examination and viva- voce. The written examination will consist of three papers, each paper carrying a maximum of 200 marks. General candidates and candidates belong to OBC will have to secure not less than 50% marks and candidates belonging to Scheduled Caste and Scheduled Tribes will have to secure 40% marks in each paper of the written examination for making them eligible for being called for viva- voce. The merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and viva-voce.
33. The learned standing counsel for the High Court relied upon paragraph 27 of the judgment in All India Judge's Association and others v. Union of India and others ( 2002(4) SCC247, wherein the Apex Court while considering the recommendations of Justice Shetty Commission, laid down standards to be followed for selection and appointment of District Judges and additional District W.A.No.1663/2013 29 Judges. In paragraph 27 it has been stated as follows: " At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service." 34. In paragraph 28 various directions have been issued and Clause ( c) therein reads as follows : "(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts." 35. In the light of the above dictum, it can be seen that there should be a written examination and viva voce which should be part of the competitive examination. In another decision of the Apex Court in W.A.No.1663/2013 30 Siraj v. High Court of Kerala (2006(2) KLT923, the prescription of minimum marks for the oral examination as a condition of eligibility for selection as Munsiff Magistrate was upheld. Some of the aspects are relevant here also. It was held by the Apex Court as follows: " Since the High Court is the best judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected. What the High Court has done by the Notification dated 26.03.2001 is to evolve a procedure to choose the best available talent. *********************** The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission ( I.A.S., I.A.F. etc.) or any other.
36. As far as this case is concerned, the appellant has not W.A.No.1663/2013 31 challenged before the selection and even now the prescription of minimum marks in the written examination to make him eligible for appearance in the Viva Voce. The object and purpose of selection is to get the best available talents among the candidates and therefore fixing of such minimum marks cannot be said to be arbitrary also. It has been held by the Division Bench in Ext.P2 judgment while considering the very same clause containing the prescription of minimum marks, in paragraph 17 that, it is a rational and non-arbitrary step. We extract the following from paragraph 17 : " Therefore, in order to satisfy the requirements of rationality of the procedure for selecting the suitable candidates to the post of District Judges from the members of the Bar, the High Court devised the system under which the candidates who other satisfy the basic eligibility criteria such as the age, academic qualification etc., are subjected to a process of examination consisting of two components, (1) written examination and (2) viva- voce. Such procedure obviously enables High Court to make a comparative assessment on the merits of the various candidates seeking appointment." Therefore it is evident that the rationale of the method was upheld W.A.No.1663/2013 32 by the Division Bench.
37. If that be so, the question is whether the marks can be lowered further to accommodate the petitioner/appellant as contended by him. Only in the case of candidates from Scheduled Caste and Scheduled Tribes 40% cut off mark is provided. The petitioner could secure only 42% in paper I and 44% in paper III. It is pertinent to note that under Clause 4 of the notification minimum marks have been fixed for a candidate to move to the further stage of the selection process, viz., Viva Voce. It cannot be lowered for obvious reasons. Hence Rule 14(e) cannot be invoked at that stage. Written examination and Viva Voce are two integral parts of the selection process. Even if it could be assumed that Rule 14(e) and the method provided therein could be gone into, then also a standard had to be fixed, as rightly pointed by the learned standing counsel for the High Court before the selection process started. It is a well settled principle that in the midstream the rules for selection cannot be changed or new norms cannot be introduced. Therefore in the absence of any prior decision on that point, the selection committee could not have lowered any mark to help the W.A.No.1663/2013 33 appellant and to the extent required for his appointment again.
38. Apart from the same as already pointed out the Division Bench in Ext.P2 has upheld the rationale of the provision for obtaining minimum marks as provided in the notification. Once such method is accepted, the argument that there should have been a further reduction, cannot be held good.
39. This is especially so since the vacancy ear marked for reservation candidates will have to remain unfilled and repeated selection process will have to be undertaken by resorting to Rule 15(a) which has already been undertaken by the High Court as evident from Ext.P5 notification. Therefore the same is another method by which the selection of suitable candidate is ensured to fill up the reservation slot. Hence the community's interest is not suffered also. If that be so, as rightly held by the Division Bench in Ext.P2, there cannot be any resort to Rule 14(e) as otherwise the provision under Rule 15(a) will become redundant. Werespectfully agree with the view. As far as Rule 15(a) is concerned, the same has to be the process after the list is published pursuant to the completion of the selection process. As far as W.A.No.1663/2013 34 Rule 14(e) is concerned, it is a step which will have to be taken before the selection starts at the threshold. We do not agree with the learned counsel for the appellant that Rule 14(e) envisages a step after the list is published. The inter play between the two rules is clear and explicit.
40. The learned counsel for the appellant invoked the proportionality principles in support of his argument. Support was sought from paragraph 72, 73 and 74 of the judgment in 2013 UKSC39( Bank Mellat v. Her Majesty's Treasury) and the decision of the Apex Court in 2010(6) SCC614( Chairman, All India Railway Recruitment Board and another v. K.Shyam Kumar and others), wherein various principles have been explained. In the first decision, paragraph 73 has highlighted the essence of the test of proportionality. It is evident from the said paragraph that there is a need to balance the interest of the society with that of the individuals and groups.
41. For easy reference, we extract hereinbelow paragraph 73 : "73. The De Freitas formulation has been applied by the House of Lords and the Supreme Court as a test of proportionality in a number of cases under the Human W.A.No.1663/2013 35 Rights Act. It was however observed in Huang v. Secretary of State for the Home Department ( 2007) UKHL11 (2007) 2 AC167 para 19 that the formulation was derived from the judgment of Dickson CJ in R v Oakes ( 1986) 1 SCR103 and that a further element mentioned in that judgment was the need to balance the interests of society with those of individuals and groups. That, it was said, was an aspect which should never be overlooked or discounted. That this aspect constituted a fourth criterion was noted by Lord Wilson, with whom Lord Philips and Lord Clarke agreed, in R (Aguilar Quila) v Secretary of State for the Home Department (2011) UKSC45 (2012) 1 AC621 para 45." 42. The Apex Court in an earlier decision in 2001(2) SCC386(Om Kumar and others v. Union of India), in paragraph 66 has explained the manner in which the said principle will have to be applied. We extract the said paragraph herein below : " 66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a W.A.No.1663/2013 36 nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying " proportionality" and is a primary reviewing authority." 43. In the subsequent decision in 2010 (6) SCC614( Chairman, All India Railway Recruitment Board and another v. K.Shyam Kumar and others), in paragraph 37and 39, the following relevant principles have been explained : " Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere. The courts have to develop an indefeasible and W.A.No.1663/2013 37 principled approach to proportionality, till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision-maker." 44. As far as the facts of this case is concerned, even if the said test is applied, we do not find that there is any case for interference at this stage. The authority namely the High Court had the obligation to conduct competitive examination which included written test and viva voce and marks have been fixed as per Clause 4 of the notification. Such was a rational step and a non-arbitrary one. The adoption of minimum marks is well justified since the selection is to the post of District Judges in the Subordinate Judiciary and there cannot be any compromise on the eligibility of candidates as otherwise it will affect the interest of the society. Therefore balancing of the interest of the W.A.No.1663/2013 38 society and that of the individual has to be undertaken. Evidently while considering the sustainability of the arguments raised by the learned counsel for the appellant, herein, the facts show that there was a decision to award moderation marks which was sought to be justified under Rule 14(e) which did not get acceptance by this court in Ext.P2 judgment. The interest of the community is well protected by resorting to the procedure under Rule 15(a) which has already been initiated by Ext.P5 notification as directed by the Division Bench in Ext.P2 judgment, therein in the operative portion it has been directed as follows : " 33. However, in view of the subsequent decision of the 1st respondent to fill up 10 posts, the 1st respondent may now proceed with the selection from out of the 7 abovementioned candidates in accordance with law by recasting the select list. In view of the fact that some of the 10 posts sought to be filled up are required to be filled up by candidates belonging to reserved categories, if on such an exercise any of the vacancies of the above mentioned 10 posts sought to be filled up cannot be filled up for lack of a suitable candidate, the respondents should now resort to the procedure contemplated under Rule 15 W.A.No.1663/2013 39 (a) of the K.S. & S.S.R. It goes without saying that it should be open to the respondents to prescribe such cut off marks as the minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances." 45. The said direction has become final. The appellant had also undergone the selection process and obviously his fate depended upon the outcome of the result of the competitive examination. He could not succeed also. The adoption of the procedure under Rule 15(a) cannot be said to be an unreasonable exercise. The appellant cannot be said to have been discriminated also in the matter since the entire procedure adopted is one provided under Rule 15(a) itself. The High court has evidently resorted to the measure authorised under Rule 15(a) by which interests of all concerned are also protected. The constitutional guarantee of reservation as far as the community is concerned is thus ensured. Therefore the argument that the principles stated in the various judgments of the Apex Court including Indra Sawhney v. Union of India and others ( 2000 (1) SCC168 and State of Kerala and another v. N.M.Thomas and others ( 1976 (2) SCC310, which W.A.No.1663/2013 40 are heavily relied upon by the learned counsel for the appellant, will come to the help of the appellant to get the relief cannot be accepted. The right to equality as envisaged under Rules 14 to 16 has been elaborately considered in those two decisions. The members of the community will have to be brought forward to join the main stream in the light of the principles of right to equality. But when we consider the effect of Rule 15(a) that right is not impaired at all as far as the present selection conducted is concerned. Therefore even if by applying the proportionality test, the appellant's claim will fail.
46. The discrimination alleged by not adopting Rule 14(e) by lowering the marks has no legs to stand. Alternatively both Rule 14(e) and 15(a) are available. The stand of the High Court that lowering of marks further from those fixed in Ext.P1 will dilute the selection of suitable and eligible candidates is well justified. It will not result in any discrimination as the procedure under Rule 15(a) for selection of candidates from the communities concerned has to be undertaken. After the amendment of the Rules, such steps have become obligatory. Hence the object sought to be achieved viz. to fill up such vacancies W.A.No.1663/2013 41 from among the candidates of communities eligible for reservation is not at all affected. There will therefore be no violation of Articles 14 and 16 of the Constitution. In that view of the matter it cannot be said that the procedure under Rule 14(e) has to be mandatorily followed in the selection. Under Rule 14(a) the unit of appointment is 20 out of which two is reserved for Scheduled Castes and Scheduled Tribes, 8 for Other Backward Classes and remaining 10 to be filled up on merits. The order of rotation is specified under Sub rule ( c) of Rule 14. The interplay between Rules 14 and 15 ensures continuance of the selection process by a fresh notification if suitable candidates are not available from any particular community. Those unfilled vacancies have to be notified separately. Hence the right of the community or group of communities is well protected.
47. We will also refer to AIR1985SC1351( Umesh Chandra Shukla v. Union of India and others) wherein while considering the fixation of such minimum marks for filling the posts in the Delhi Judicial services in the year 1984, the Apex Court in paragraph 13 has held as follows: W.A.No.1663/2013 42 "In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the viva voce test should be the basis for selection. On reading R.16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall be sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court has no such power under the Rules. We are of the opinion that the list prepared by the High Court after adding the moderation marks is liable to be struck down. The first contention urged on behalf of the W.A.No.1663/2013 43 petitioners has, therefore, to be upheld. We, however, make it clear that the error committed by the High Court in this case following its past practice is a bona fide one and is not prompted by any sinister consideration."(emphasis supplied by us) 48. Therein also the method of awarding of moderation marks was found to be illegal by the Apex Court and the above decision was relied upon by the Division Bench in Ext.P2 judgment. Therefore, going by the above dictum and the true effect of Ext.P1 notification, the aggregate marks obtained in the written examination and in the Viva Voce will be the basis for selection which cannot be therefore be tampered with. Hence lowering of marks again cannot be countenanced. As far as the ground of delay and laches in entertaining the writ petition is concerned, we agree with the learned Single Judge. The appellant did not challenge the prescription of cut off marks in Ext.P1 notification at any time. Of course, he was selected and appointed. But he had to be terminated pursuant to Ext.P2 judgment. He waited for another period of two years to file the writ petition and after another W.A.No.1663/2013 44 process of selection was undertaken by the High Court as per Ext.P5 notification pursuant to the directions issued in Ext.P2 judgment. Ext.P2 judgment is dated 13.09.2010. Ext.P4 notification terminating the service of the appellant is dated 22.12.2010. Ext.P5 notification is dated 18.02.2011 and the writ petition is filed on 24.09.2012. These aspects will loom large as far as the plea of delay and laches are concerned as against the appellant. The learned Single Judge has elaborately considered the various arguments. It cannot be said that the views taken by the learned Single Judge are so perverse warranting interference. For all these reasons we dismiss the writ appeal. No costs. T.R.RAMACHANDRAN NAIR, JUDGE K.ABRAHAM MATHEW,JUDGE sv. W.A.No.1663/2013 45