STATE OF HARYANA Vs. SUBASH CHANDER MARWAHA

JUDGEMENT

(1.) This is an appeal by special leave from an order of the High Court of Punjab and Haryana dated 31-1-1973 passed in Civil Writ No. 1541 of 1972. That was a Writ Petition filed by respondents 1 to 3 for a mandamus. The petition was allowed and by its judgment the High Court issued a mandamus to the appellant to select respondents 1 to 3 under R. 10 (ii) of Part C of the Punjab Civil Service (Judicial Branch) Rules so that their names are brought on the High Court Register for appointment as Subordinate Judges in the Haryana State. The aforesaid rules had been adopted by the Haryana State after bifurcation.

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

(3.) It is contended on behalf of the appellant that the above finding against the State was erroneous. The submission was that under the rules the minimum of 45 % was an element to be considered for the eligibility of a candidate for selection and that while making the actual appointment by selection the State Government, in the interest of maintaining high-standards of judicial competence, were not prevented from fixing a minimum standard of a score of 55% marks, especially, as that was the view of the High Court also previously intimated to them. In our view that submission correct.