ORDER
N. Kumar, J.
The petitioners in these writ petitions have challenged the notification dated 19.12.1996 issued by the High Court of Karnataka calling applications for appointment of 10 members of the Bar as District Judges and the notification of the High Court dated 16th June, 1988 appointing respondents-4 to 11 as District Judges. The facts in brief are as under:
1. The first petitioner enrolled as an Advocate on 4th June 1983 is practising at Tumkur Bar and he has completed seven years of practice and he is fully eligible for being appointed as District Judge. He claims that he belongs to backward community (Vokkaliga by caste) as prescribed in the relevant Government Order. The second petitioner also is a practising Advocate enrolled himself on 28th November, 1984, practising at Tumkur Bar. He has also completed seven years of practice and is eligible for being appointed to the post of District Judge. He belongs to Scheduled Caste (Adi Karnataka). He has produced the caste certificate evidencing the same.
2. The High Court issued notification dated 19.12.1996 inviting applications from eligible candidates to fill up 10 posts of District Judges by direct recruitment, a copy of which is produced as Annexure-C. The main ground on which these notifications are challenged is that the notification issued by the High Court is not in conformity with the Government Order dated 20.06.1995, and it is contrary to Article 16(4) of the Constitution of India. The said notification did not disclose the number of post reserved to Scheduled Caste, Schedule Tribe and other Backward Class as per the reservation policy of the Government. As against total number of candidates of 406 only 168 candidates were invited for interview and therefore the selection process is not transparent. Though seats were reserved for Scheduled Caste, Scheduled Tribe and Other Backward Classes, not even a single candidate from OBC/SC/ST are recruited and recommended for the High Court for the reasons best known to them. The notification does not contemplate written test. The candidates were to undergo only viva voce test. The introduction of written test is not proper and legal. When the same is not mentioned in the notification and it was introduced in the middle of the process of selection, the notification and the selection conducted in pursuance of the said notification are illegal, arbitrary and vexatious and vitiates the constitutional provisions. Though the first petitioner belongs to OBC group he could not seek reservation in recruitment as advertisement does not disclose number of posts reserved for OBC and other groups. More over the advertisement did not even seek any details and certificates regarding their caste/ groups, consequently, the petitioner has been denied the opportunity of appointment. The respondents have denied the second petitioner a post though totally two posts were to be filled by the Scheduled Caste candidates. As the petitioners had faired very well and they are not selected, their valuable right is affected by these illegal process and therefore, they are seeking quashing of the notification.
3. When the petitioners filed writ petition on 16.06.1998 challenging the notification the State Government issued notification dated 16.06.1998 itself appointing 8 District Judges and the High Court on the same day issued a notification in haste and hurry posting the District Judges to various places. Therefore, the petitioners withdrew the said writ petitions with liberty to file fresh petitions. Permission was granted by the High Court for withdrawal on 01.07.1998. As the writ petitions challenging the validity of the appointment of Districts Judge filed in the year 1991 and 1996 were pending, the petitioners felt it is better to move the Supreme Court under Article 32 of the Constitution of India. Hence, they filed the the writ petition before the Supreme Court. After hearing all the parties concerned, the Supreme Court rejected the writ petition directing the petitioners to approach the High Court of Karnataka for exhausting the remedy there. The said order came to be passed on 18.12.1998. Immediately thereafter, they have filed the present writ petition.
4. After service of notice the respondents entered appearance and have filed a detailed but separate statement of objections controverting the allegations in the writ petition. The first respondent High Court of Karnataka stated that the petitioners filed applications in pursuance of the notification issued and they were called for interview on 08.12.1997 and 09.12.1997. They participated in the selection process fully knowing its procedure and therefore they are estopped from challenging the notification merely because they were unsuccessful in the selection process. In so far as first petitioner is concerned, he claims that he belongs to backward community (vokkaliga) but, he did not claim any reservation in the said category in his application for the post of District Judge, whereas the second petitioner belongs to SC and he had filed his application as such. He was called for viva-voce for consideration of his suitability for the post of District Judge and he was found to be unsuitable. The first petitioner had not claimed any reservation in his application. He would fall under the category III(a), but, there was no vacancy in the said category, so the impugned notification and the consequential appointment cannot be challenged on the ground set out in the writ petition.
5. Recruitment to the post of District Judges was made under the Karnataka Judicial Services (Recruitment) Rules, 1983. Under the said Rules, High Court of Karnataka has been empowered to adopt such procedure as it deems fit for selecting the candidates by direct recruitment. Respondents-4 to 11 were appointed in accordance with the provisions of Article 233 of the Constitution of India. As such, the provisions of Karnataka SC,ST and other backward Classes (Recruitment of appointments etc), Act, 1990, is not applicable to the said appointment. In view of Section 3 of the said Act, nothing in that Act shall apply to the post in respect of which recruitment is made in accordance with the provisions contained in the Constitution. Despite in-applicability of the said Act, High Court of Karnataka has followed roaster applicable to the cadre as per the notification dated 03.05.1994 and subsequent Government Order including the Government Order dated 20.06.1995 and specific note has been made in the notification dated 26.12.1996 to that effect. Petitioners are aware of the said note and filed their applications. Over 406 candidate including the petitioners belonging to other groups had applied for the post of District Judges. The note to the notification conveyed the reservation made as per the Government Order and has not caused any prejudice to any person. The roaster prescribed for appointment as per the Government Order dated 20.06.1995 was followed and the same was communicated to the Government by letter dated 19.12.1997 and a clarification dated 11.05.1998.The fact that the High Court had followed roaster is clear from the resolution passed by the committee constituted for recruitment of District Judges on 17.12.1997 and the resolution of the Full Court dated 17.12.1997.
6. The committee constituted for the recruitment of District Judges has prescribed written and oral viva-voce as better criteria to assess the suitability of the candidates. While sending interview cards well in time, it was specifically mentioned that they will have to appear for viva-voce examination both written and oral and they were given sufficient time to prepare for viva-voce. The selections were made in accordance with law. The Government on being satisfied has recommended to his Excellency the Governor for issuing of appointment orders and accordingly respondents-4 to 11 were appointed as District Judges.
7. Respondents-2 and 3 the Government of Karnataka has also filed its counter reiterating the stand taken by the High Court of Karnataka and also referring to various Government Orders where provision is made for reservation of the post of District Judges for SC/ST and OBC. The notification dated 16.06.1998 appointing eight District Judges has been issued as per the recommendations of the Hon'ble High Court of Karnataka and after obtaining approval of His Excellency the Governor of Karnataka. The Government of Karnataka received objections before issuing appointment orders. The said objections were brought to the notice of the Hon'ble Chief Justice of the High Court of Karnataka. In turn, the Hon'ble Chief Justice replied stating that the suitable candidates are not available in SC and ST category as well as OBC and therefore, one post of SC and post of ST had been kept vacant and carried forward and two posts reserved for OBCs have been filled up by General Merit category candidates and the posts are carried over to the next selection. On being satisfied with the said explanation, the Government recommended to the Governor for appointment of District Judges who in turn accepted the recommendations of the Government and appointed 8 District Judges.
8. The respondents-4 to 9 have also filed their statement of objections, contending that the first petitioner claims to belong to backward community (Vokkaliga by caste) as prescribed by the relevant Government Order. By no stretch of imagination he can claim the status of a person belonging to backward classes. Caste alone is not the basis for inclusion in the category of backward classes always. A Vokkaliga needs to be within a particular income group to claim the said status. Also, his holding of agricultural lands should not exceed the prescribed limit. Unless, the first petitioner satisfies the criteria prescribed in law he cannot claim to be a person belonging to backward community and in fact, a column in the application form specifically states that if the applicant claims reservation in any of the categories, he should produce relevant documents in support of such claim in the prescribed from as per the relevant Government orders. No such claims is put forth by the petitioner.
9. In so far as the second petitioner is concerned, though he claimed reservation as a person belonging to Scheduled Caste and two posts were reserved for Scheduled Caste he was not selected as he was not found suitable and one Scheduled Caste candidate has been selected, they specifically reiterated the stand taken by the High Court and the Government in the statement of objections and contend that all of them are selected purely on merit, they are not appointed in place of reserved post and they are not at fault. They have also prayed for dismissal of the writ petition.
10. The Learned Counsel for the petitioner Sri S. Shekar Shetty urged only two grounds challenging the notification;
1) The first ground was in the impugned notification, there was no mention of the number of posts reserved for SC, ST and other backward community and in the absence of those particulars the petitioners who belong to those reserved category are prejudiced and therefore the entire selection process commencing from such notification is liable to be quashed.
2) The second ground urged is, in the impugned notification nowhere it is stated that, the applicants have to face written examination. For the first time in the notice sent to them calling upon them to appear for viva voce before the selection committee, it was mentioned that they have to come prepared for the written and oral test. The rule governing the selection of District Judges on the date of notification did not specifically provide for a written examination. In the absence of any such specific rule, the conducting of written examination is illegal, and has seriously affected the petitioners and therefore the notification and the selection process is liable to be quashed.
11. Per contra, the learned Government Advocate representing respondents-1 to 3 contends that in the notification issued, a note is appended to where it is explicitly stated that posts are reserved for members of SC, ST and backward classes in terms of the Government orders. The notification issued for calling for applications does not mention the nature of examination the candidates have to undergo. But after short listing the number of candidates when individual notice was sent to each candidates calling upon them to appear before the committee, categorically it was mentioned that they have to appear for viva-voce, both written and oral and in the bottom of the said notice subjects in respect of which they should come prepared was clearly mentioned and more than a month's time was given for the candidates to prepare themselves and face the interview. The first petitioner who has filed writ petition claiming that he belongs to backward community did not choose to state that he belongs to backward community in Column No. 12 in the application form prescribed for applying to the post of District Judges. Along with the said application he also did not produce any certificate showing that he belongs to backward community. Applicants are practicing Advocates who has put in more than seven years of experience. They have filled up the forms in their own handwriting, they are aware of the constitutional mandate, the Government Orders, reservation policy, roaster followed coupled with the fact that in the notification the note appended clearly mentioned the application of the reservation policy to these posts also. After participating in the entire selection process, at the fag end when it became clear to them that they were not likely to get the appointment, suppressing these facts, the present writ petition is filed making it appear that a person belonging to backward community is sought to be denied. This conduct of the petitioner disentitles them to any relief.
12. The Learned Counsel for the respondents-4 to 9 contended that whatever may be policy of the Government and the law passed by the Government in the matter of appointment of District Judges which is done under Article 234 of the Constitution of India, the said policy of the Government and the law passed by the Government is not automatically applied to the appointments made by the High Court. The said provision makes it very clear that before those provisions are made applicable the consent of the High Court is a must. But, as a matter of fact the very notification categorically states that the Government policy regarding reservation equally applies to the recruitment of the District Judges and the material on record clearly establishes that the selection committee has selected the candidates applying those reservation policies. As no suitable candidates were available in SC and ST category, those posts were not filled up at all. That is how as against 10 posts only 8 persons were selected keeping vacant the remaining two posts and carried it forward to the next selection. In so far as post reserved for backward community is concerned there was no suitable persons available, persons from general merit category were appointed to those posts and thus two posts have been carried forward to next selection. In fact, a meritorious candidate has made way to accommodate a lady candidate. Therefore, the High Court has followed the policy of reservation in letter and spirit and no illegality is committed in selection. On the contrary, the petitioners have come to the Court with unclean hands. When the first petitioner did not claim any reservation as belonging to backward community, as is clear from the application, he is estopped from putting forth any such claim in this writ petition for the first time.
13. There was no mention of the number of posts reserved for Scheduled Caste, Scheduled Tribe and other Backwards community. It also did not mention anything about the written examination being conducted. Still, they did not choose to challenge the said notification on the said grounds. On the contrary, they applied to the post in pursuance of the said notification. Thereafter they have been served with a notice informing them to come prepared for the written and oral test. Even, at that stage, they did not choose to challenge the entire recruitment process. Thus, the petitioners took a chance to get themselves selected at the said interview. Only because they did not find themselves to have emerged successfully, they have filed this petition, as such they are estopped from challenging the notification.
14. From the aforesaid facts and the submissions made, the following points do arise for consideration: -
1) When the petitioners applied in pursuance of the notification issued and after writing the written examination and appeared for viva-voce interview, is it open to them to contend the notification issued is illegal and consequently selections made in pursuance of the said notification is liable to be quashed?
2) Whether the petitioners establish that not mentioning in the notification the number of posts reserved for Schedule Caste/Schedule Tribe and other backward community candidates has prejudiced them, vitiating the entire selection process?
3) Whether the petitioners establish that not mentioning in the notification the conduct of written test has prejudiced their interest vitiating the entire selection?
15. POINT NO. 1: It is now well settled that if a candidate takes a calculated chance and appears to the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee did not follow the prescribed procedure. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla : [1986]1SCR855 it has been clearly laid down by the Supreme Court that the High Court could not have granted relief to the petitioner who appeared for the examination without protest and after realising that he could not succeed in the examination, has filed a petition challenging the said examination. The said view has been reiterated in the case of Madanlal v. State of Jammu and Kashmir : [1995]1SCR908 where it was held that results of the interview cannot be successfully challenged by a candidate who takes a chance to get himself selected at the said interview and ultimately finds to be unsuccessful. Similar is the view expressed in the case of University of Cochin v. N.S. Kanjoonjamma : (1997)IILLJ228SC where it was held that having participated in the selection, a candidate is estopped to challenge the correctness of the procedure. This view has again been reiterated by the Supreme Court in the case of G.N. Nayak v. Goa University : [2002]1SCR636 where it has been held that when a candidate knew that there was a change in the eligibility criteria for the post, yet he cannot be allowed thereafter to contend that the eligibility criteria was wrongly framed.
16. Therefore, the Supreme Court has consistently taken the view that in pursuance of a notification calling for applications to apply for any post, if the notification is vague in respect of either the qualification prescribed, the procedure adopted or any other material fact which according to the candidate ought to have been mentioned in the notification and if they apply and participate in the selection process without protest and without murmur, and thereafter if they were to complain about the said notification or the selection process or the qualification prescribed for the said post, such a candidate is estopped from challenging the said notification or procedure. Once the candidate takes a calculated chance and appears at the interview, merely because the result of the interview is not palatable to him, he cannot rum round and subsequently contend that the notification or the process of interview was not fair, illegal and therefore the entire process is liable to be a struct down.
17. The petitioners who are practicing advocates who have put in more than seven years of practice on seeing the notification have submitted their applications. When the notification did not specify the number of posts reserved for.SC/ST/OBC they did not choose to challenge the notification. They submitted their application. The first petitioner did not claim the benefit of reservation to OBC though in the application form there was the column No. 12 meant for claiming such reservation. The second petitioner claimed reservation on the ground he belong to Scheduled Caste. After receipt of the notice informing them to appear for written examination as well as oral test they did not choose to challenge the notification or the notice which was served on them contending that no written examination could be conducted as the same was not mentioned in the notification. They wrote the written examination without a murmur. They appeared in the viva-voce. It is only when they found they did not posses the requisite merit for selection they have chosen to file these Writ Petitions challenging the notification on the aforesaid grounds. Once they have acquired in the process of selection they are estopped from challenging the notification and the selection process, as such they have disentitled themselves from maintaining this Writ Petitioner.
18. POINT NO.2: The first contention urged was that the notification did not mention the reservation regarding the number of posts reserved for Scheduled Caste, Scheduled Tribe and other backward Community which seriously prejudiced the petitioners who belonged to the said community. The notification issued by the High Court is produced at Annexure-C which reads as follows:
'HIGH COURT OF KARNATAKA
BANGALORE
NOTIFICATION DATED 19TH
DECEMBER 1996
Last date for receipt of Application; 31st January 1997 No. GOB-(I) 479/96. It is hereby notified that under Article 233 of the Constitution of India read with the provisions of the Karnataka Judicial Services (recruitment) Rules, 1983, the High Court of Karnataka proposes to recommend the appointment of 10(ten) Members of the Bar by direct Recruitment as District Judges.
The Minimum qualification for direct recruitment are:
i) Must be holder of degree in Law of any recognised University.
ii) Must be practising on the last date fixed for submission of application as an Advocate and must have so practiced for not less than seven years as on such date.
AGE:- Must not have attained the age of 48 years on the last date fixed for submission of application.
SCALE OF PAY:- Rs. 4700-150-5300-175-6000-200= 6400:
PROBATION:- A Candidate selected will be initially on probation for 2 years or for extended period. If necessary, and he/she must undergo such training as may be specified by the High Court.
NOTE: Posts are reserved for members of the Scheduled Castes and Scheduled Tribes as per the provisions of the Constitution of India and for other Backward Classes to the extent specified by the Government under Clause (4) of Article 16 of the Constitution of India as per G.O.No. DPAR 20 SHC 94 dated 3.5.94 and subsequent Government Orders issued in this regard.
xxx xxx xxxBy Order
V.G. Sabhahit
Registrar General',
(underlining by me)
19. A reading of the aforesaid notification makes it clear that the note appended clearly discloses that the posts are reserved for members of Scheduled Castes, Scheduled Tribes as per the provisions of the Constitution of India and for other Backward classes to the extent specified by the Government under Clause (4) of Article 16 of the Constitution of India. As per G.O. NO.DPAR 20 SHC 94 dated 3.5.1994 and the subsequent G.O. issued in pursuance thereof makes it very clear that out of the 10 posts, two has to be filled by scheduled caste candidates, one by scheduled Tribe and 2 by backward classes. It is true that the notification did not indicate the number of posts reserved in the aforesaid manner but that makes no difference. In fact in a similar situation, the Supreme Court in the same of University of Cochin v. N.S. Kanjoonjamma held as under:
(Supra)
It is seen that when the general rules have been made applicable there is no necessity by the University to make a special reservation rule for special recruitment. Therefore, the non-mention of the special recruitment in the Resolution is of little consequence. As seen, the Syndicate adopted the Rules in relation to the non-teaching staff of the University. As a consequence, the advertisement came to be made for special recruitment of the Scheduled Castes and Scheduled Tribes to the posts reserved for them. In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure. That apart, we have already held that procedure was correctly followed and therefore, the omission to mention in the advertisement that it was a special recruitment is of no consequence'.
(underlining by me)
20. In the application filed by the first petitioner as against Column No. 12 which is meant for particulars whether the candidate belongs to Scheduled Caste or Schedule Tribe or any Backward Community, he has not indicated that he belongs to backward class. If the applicant is claiming any reservation, he is expected to produce relevant documents in respect of such claims in the prescribed form as per the relevant Government Orders. Admittedly, along with the said application, the first petitioner has produced a certificate issued by the Mysore Secondary Education Board showing that he has passed the said examination wherein his date of birth is mentioned. He has produced the degree certificate issued by Bangalore University showing that he holds a degree of bachelor in law in the said university. He has also produced a certificate from the Karnataka Bar Council showing that he has been enrolled as an Advocate. He has also produced the documents showing that he is an income tax assessee and the acknowledgment issued from the Income Tax Department to show that he has paid the tax. Further he has given list of cases he has conducted during the year 1994-1996. Therefore, it is clear that the first petitioner was not claiming reservation under the category of backward class. He is a practising Advocate with more than 7 years of experience. He wants to be appointed as a District Judge. He has filled up the application in his hand. He did not choose to furnish the particulars sought for in the prescribed application from to claim reservation as a person belonging to backward class. Caste alone is not the basis for including a person in the category of backward class. He cannot claim to be a person belonging to Backward community merely because he belongs to Backward community merely because he belongs to Vokkaliga Community. Having produced Income Tax Certificate he ceases to be entitled to the benefit of reservation as a Backward Community Candidate. Infact if he claims reservation, he should produce the relevant documents in the prescribed form as per the relevant Government orders. It is obvious that he was clear in his mind that he was not entitled to the aforesaid reservation. It is in the write petition, for the first time, he is claiming reservation as a person belonging to backward class. Therefore, it is clear that he has not come to the Court with clean hands. He has falsely averred in para-2 of the writ petition that he belongs to backward community (Vokkaliga by caste) as prescribed in the relevant Government Order. It is clear from the material on record that though the writ petitioner belongs to Vokkaliga community, he has not demonstrated that he belongs to a backward class as specified in the Annexures to the Government orders and is eligible for reservations under Article 16(4) of the Constitution of India. Therefore, it cannot be said that any prejudice is caused to the first petitioner by non-mentioning of the number of posts which are reserved for backward classes.
21. In so far as the second petitioner is concerned, he belongs to a Scheduled Caste. He has claimed reservation as a person belonging to Scheduled caste. Though he did not possess the requisite eligibility criteria namely that he should be an Income Tax Assessee, the committee made an exception in cases of all candidates belonging to Scheduled Caste and all of them were invited for the interview. In fact, the record discloses that among 406 applicants, a separate list showing the names of Scheduled Caste and Scheduled Tribe was prepared and all of them were called upon to appear for the interview. He has secured 23 1/2 marks and his rank is 143. He is nowhere near the zone of consideration. Out of the two posts reserved for Scheduled Caste, one post is filled up by Scheduled caste candidate and the other post is not filled up by any other scheduled caste candidate as there was no suitable candidate to be appointed to the said post. Consequently as per the Government Rules, the said post is carried over to the next selection. In that view of the matter, the second petitioner having been found to be not suitable in the interview conducted for the post of District Judges, he was not appointed. Therefore, even in respect of the second petitioner, no prejudice is caused and there is no substance in the said contention.
22. Point No. 3 : The next contention urged is in the advertisement issued, there was no mention about the applicants facing the written examination. In the absence of any specific rule providing for conduct of the written examination and in the absence of same being mentioned in the notification, the procedure adopted in conducting the written examination that too midway is illegal and therefore the entire selection process is vitiated.
23. It is not in dispute that the rules governing the selection to the post of the District Judges as on the date of the notification do not provide for any written examination. Similarly, in the notification issued also there is no mention about conducting of the written examination for the candidates who applied for the post. However, the Karnataka Judicial Services (Recruitment) Rules, 1983, on which reliance is placed provides for method of recruitment to the post of District Judge. The method of recruitment is by promotion on seniority-cum-merit from the cadre of civil Judge and in the aggregate 33 1/3rd of the posts in the cadre of the District Judge may be filled by direct recruitment. It further states that High Court may, subject to those rules adopt such procedure as it deems fit for selecting the candidates by direct recruitment or by promotion by seniority cum merit. However, a specific provision is made for direct recruitment of Munsiffs on the basis of written examination and viva voce examination conducted by the High Court of Karnataka in accordance with the Rules. Therefore, in the light of the aforesaid undisputed position, in the absence of any prohibition for conduct of written examination in the relevant rules, merely because a written examination was conducted for the post of District Judge, can it be said that the entire recruitment process is vitiated.
24. A written examination assesses the candidate's knowledge and intellectual ability, a viva voce test seeks to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, dependableness, capacity for clear and logical presentation, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated perhaps with some degree of error, by viva voce test, much depending on the constitution of the interview board.
25. Viva voce test does suffer from certain disadvantages such as the difficulty of developing valid and reliable oral test, the difficulty of securing a reviewable record of an oral test and public suspicion of the oral test as channel for the exertion of political influence, also of other corrupt, nepotistic or extraneous considerations. But despite these acknowledged disadvantages, the via voce test has been used increasingly in the public personnel testing and has become an important instrument whenever test of personal attributes are considered essential. No satisfactory written tests have yet been devised for measuring such personnel characteristics as initiative, ingenuity and ability to elicit co-operation, many of which are of prime importance. When properly employed, the oral test today deserves a place in the battery used by the technical examiner. The viva voce test performs a very useful function in assessing personal characteristics and traits and in fact, test the man himself and is therefore regarded as in important tool along with the written examination.
26. The object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gate way to public service. But the question is how should the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both.
27. Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. The leave must combine academic ability with personality promise, some weight has to be given to the viva voce test. There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. An open competitive written examination is a must for recruitment to public posts which carry responsibility. In order to ensure that there are no political influence and other corrupt nepotistic and other extraneous consideration, a fool proof written test is mandatory to assess the candidates knowledge, academic ability and intelligence. There is no substitute for written test, and it has certain distinct advantages over viva voce test. However, it also has limitations. It cannot evaluate a candidate's initiative, alertness, dependableness, and a host of other characteristic of a personality. It is here a viva voce test performs a very useful function in as much as some of those qualities can be evaluated perhaps with some degree of error by viva voce test, much depending on the constitution of the interview Board. Selection must combine academic ability and personality promise. Therefore, both the written examination and viva voce test are essential features of a proper selection.
28. As already noticed, a discretion is given to the High Court to conduct such procedure as it deems fit. In pursuance of the said power conferred the selection committee decided to hold a written examination. The notice categorically stated that the petitioners have to appear for both written and oral interview. Note-2 of the said notice categorically states the subject on which they should get prepared namely, Civil Law, Criminal Law, Constitutional laws, General Principal of Service Law and General Knowledge. Written examination was conducted in respect of the candidates to whom notices have been sent. Thereafter, they were interviewed orally. The marks secured in written examination as well as in the oral interview were taken into consideration by the Selection Committee in assessing the merit of each candidate. A consolidated statement of the candidates with registration number and the marks secured were published.
29. The committee constituted for appointment of the District Judges consists of learned Judges of the High Court. In order to secure the best and the most suitable person and to avoid patronage and favouritism, if they decide to select on merit by holding written examination it cannot be found fault with. A written examination assesses the candidate's knowledge and intellectual ability. In the context of the selection to the post of District Judge, apart from knowledge of law of the said candidates, they must be able to express themselves. In writing. The Judge speaks through his Judgments. In order to know his capability of the law as well as his ability to appreciate the facts and thereafter to know his reasoning for his judgment, written test is a must. It is only the written examination that gives equal opportunity to the Advocates, who are practicing through out the Karnataka, in particular in the moffusil courts, in each Taluk and District, to participate effectively in the Selection process. They could exhibit their knowledge of law, intelligence and ability to write judgments, in such written examination. The Urban and Rural divide pales into insignificance, if the candidates performance is tested by a written examination. The committee had prescribed viva voce test also. It is not in dispute that in the matter of conducting written examination there was any discrimination. None of the candidates who appeared for the written examination had prior notice of such written examination except what is mentioned in the notice. All the candidates who were called for the interview took the examination, thereafter they have taken viva voce. It is thereafter based on their performance in both these examination their merit is considered and selection has been made. Under these circumstances, it is not open to the petitioners to contend that conducting written examination was illegal and that would vitiate the entire process.
30. The entire records of the selection process was secured and it was looked into, as sought by the learned Counsel for the appellant. The said material discloses that the Full Court in its meeting held on 18.01.1986 resolved to select the District Judge by direct recruitment and further resolved to authorize the Hon'ble Chief Justice to constitute a committee of Hon'ble Judges for the purpose of recruitment of District Judges, it is thereafter the High Court notification inviting applications for the post of District Judges was published in the Karnataka Gazette dated 28th December, 1986 in part 8. In pursuance of the aforesaid notification, 406 applications were received as on the last date fixed for the receipt of applications. Three applications were received after the last date fixed for receipt of applications. On the basis of the information furnished in the said applications, the Office prepared statements showing the names and other particulars of the candidates who have applied for the post of District Judge, statement showing the list of woman candidates who have applied for the post of District Judge, statement showing candidates who have practiced above 10 years and less than 15 years, statement showing candidates who have practiced less than 10 years, statement showing the list of candidates belonging to Scheduled Caste, Scheduled Tribe, statement showing list of candidates who have paid income tax for preceding three years, two years and one year and who are not income tax assessees. Among 406 applications received, 57 applicants were woman applicants, 22 applicants belonged to Scheduled Caste, 5 applicants belonged to Scheduled Tribe category. Taking note of the fact that out of 406 applications, 107 applicants have paid income-tax consecutively for three years as per the particulars furnished in their applications and taking into consideration the importance of the post and the basic pay available for District Judges as Rs. 4,700-00- Rs. 6,400-00, the committee resolved that those candidates who have been paying income tax consecutively for three years shall be called for the interview. However, it was also resolved to call for interview all the eligible candidates and candidates belong to SC and ST and women, even though they are not income tax Assesses. In the meeting held on 15.09.1997 the committee resolved that the candidates eligible for being called for the interview shall be directed to appear for both written and oral on the subjects namely Civil law, Criminal law, Constitutional Law, General Principles of Service law and General Knowledge. Model question papers and answer papers were prepared, the list showing the names of candidates who are eligible to be called for interview as aforesaid was prepared, the confidential recommendation report was called for from the concerned District Judges in respect of the candidates who are called for interview. Thereafter, individual notices were sent to all the candidates who were short listed. The interviews were spread over for nearly 14 days commencing from 3.12.1997 to 16.12.1997. In all 176candidates were interview. In the notice sent to each of the candidates they were called upon to appear for both written and oral tests. The question papers were set in Constitutional law, Service law, General Knowledge, Civil law and Criminal law.
31. Thereafter, oral interview was conducted by the committee members and each of the members has awarded marks to each of the candidates. It is on the basis of the marks secured both in written examination and viva-voce a consolidated statement of all the candidates with their registration number and the marks secured were prepared. Only one candidate belonging to Scheduled Caste was found to be suitable for being appointed. Therefore, one post ear marked for Scheduled Caste and one post ear marked for Scheduled Tribe has remained unfilled for want of suitable candidats. no suitable candidates were found among backward class. In their place, candidates from General Merit have been appointed carrying forward the said 2 posts for the next selection. One women candidate also has been accommodated at the cost of a meritorious candidate in General Merit. The selection committee was fully conscious of the Government Order providing for reservation to SC, ST, Backward Community and woman. In terms of the Government Order these posts have been filled up. In the merit list prepared, the first petitioner has secured 46 1/2 marks and his ranking in the said list is 45th. The second petitioner secured 23 1/2 marks and his ranking is 143rd. Both these candidates were no way near the zone of consideration, and lacked requisite merit. In fact the Government Order on which reliance was placed clearly provides for what should happen if suitable candidates are not available among SC, ST and Backward Classes. Clause 6 and 7 which deals with the said question reads as under:
'6. In case the candidates are not at all available as per the Reservation for SC/ST and other backward communities and vacant appointments shall not be filled and the same shall continue for the next appointments. The order referred above, i.e., No. 2 and 3 and the rules and regulations which are stated in the said orders shall have to be followed and given effect completely. The orders dated 12.7.1989 shall be applicable and shall given effect.
'7. The reservation made in this order for category 1, Category II(a), Category II(b), Category III(a) and category III(b) if the candidates are not available as per the reservation quota, the same shall have to be continued for next appointments and unfilled appointments shall be given to the general category and appointments as stated shall be carried forward.'
32. Therefore, it is clear that recruitment made for the post of District Judges is strictly in accordance with the Rules and the Government Orders and as such, there is no illegality committed in these selections.
33. For the reasons aforesaid, I pass the following order:
Writ petitions are rejected. No costs.