STATE OF UTTAR PRADESH SLJSHIL KLJMAR SRIVASTAVA D P SHUKLA CHANDRA PRAKASH AGGARWAL SUSHILCHAND SRIVASTAVA R P LAVANIA P N PARASHAR Vs. RAFIQUDDIN:STATE OF UTTAR PRADESH:STATE OF UTTAR PRADESH:STATE OF UTTAR PRADESH:STATE OF UTTAR PRADESH:STATE OF UTTAR PRADESH:STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These three civil appeals directed against the judgment of the High Court of Allahabad and four writ petitions filed under Art. 226 of the Constitution raise common questions of law relating to determination of seniority of members appointed as Munsifs in the Uttar Pradesh Nyayik Seva as a result of competitive Examinations of 1970, 1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 (hereinafter referred to as the Rules). Since the appeals and the petitions raise common questions of law they have been heard together and are being disposed of by a common judgment.

(2.) On Sept. 3, 1970 a Notification was issued by the Public Service Commission inviting applications for recruitment to 85 posts of Munsifs. In this examination 918 candidates appeared, out of whom 294 candidates on the basis of their marks in written papers, were called for viva voce test. After completion of the written and viva voce test, the Commission submitted a list of approved candidates to the Government on Oct. 25, 1971 recommending the names of 46 candidates for appointment to the service, which shall hereinafter be referred to as the 1st list of 1970 examination. On receipt of the list of 46 candidates the State Government requested the Commission to recommend some more candidates for appointment to the service as there was shortage of Munsifs, and it further suggested that the minimum of 40 per cent marks in the aggregate may be reduced to 35 per cent. The Commission agreed to the State Government's suggestion and thereafter it forwarded another list of 33 candidates on April 25, 1972 for appointment to the service which shall hereinafter be referred to as the IInd list. This list included those who had obtained 35 per cent marks in the aggregate, as well as 35 per cent marks in viva voce. All the 79 candidates, as recommended by the Commission in the aforesaid two lists were appointed to service by different Notifications issued between May, 1972 to 12th June 1973. On July 17, 1973 a Notification was issued determining inter se seniority of all the 79 candidates appointed on the basis of 1970 examination in accordance with their position in the list prepared by the Commission under R. 19 of the Rules. Meanwhile, the Public Service Commission held another competitive examination for appointment to the 150 posts of Munsifs which shall hereinafter be referred to as the 1972 Examination. The written test was held in November, 1973 and the result was declared on 26th June 1974. The Public Service Commission forwarded a list of 150 successful candidates to the Government for appointment to the service under R. 19 of the Rules and all those candidates were appointed to the service on different dates between 1975 to 1977.

(3.) Some of the unsuccessful candidates of the 1970 Examination made representation to the State Government for considering their case for appointment on the basis of their aggregate marks irrespective of their low marks in the viva voce. The State Government by its letter dt. 24th July, 1973 requested the Commission that in view of the shortage of Munsifs in the State and since in view of the amendment of R. 19 it was no longer necessary for a candidate to qualify independently in the viva voce, it may reconsider the result of the examinations of 1967, 1968, 1969 and 1970 and approve all those candidates for appointment to the service who might have obtained 40 per cent of marks or more in the aggregate even if they might have failed to secure the minimum marks in the viva voce test. The Commission refused to consider the proposal of the Government, as the minimum marks prescribed by the Commission under the then existing proviso to R. 19 could not be ignored in judging the suitability of a candidate. In spite of the Commission's refusal the Government pursued the matter further, and it convened a meeting of the Chief Minister, Chief Justice of the High Court and the Chairman of the Public Service Commission on 3rd May, 1974. At that meeting it was decided that in view of the immediate need for Munsifs the Public Service Commission should be requested to recommend such candidates of 1967, 1968, 1969 and 1970 examination who might have secured 40 per cent or more marks in the aggregate, but could not qualify in the viva voce. The committee took the view that after the amendment of R. 19 it was not necessary for a candidate to qualify in the viva voce test and therefore he could be appointed to the service if he had got 40 per cent or more marks in the aggregate. In pursuance of the decision taken by the said high level Committee the Government by its letter dt. May 10, 1974 requested the Commission to forward the application forms and the marks obtained by the unsuccessful candidates of the Examinations held during the years 1967, 1968, 1969 and 1970 who might have got 40 per cent or more marks in the aggregate but might not have qualified in the viva voce. The letter enclosed a note containing the decision taken by the high level committee. The Commission by its letter dt. 19th June 1974 informed, the Government that the application forms and other particulars of the unsuccessful candidates of 1967, 1968 and 1969 examination had been destroyed, and therefore the Commission was unable to forward the names of candidates of those examinations as desired by the Government. But the Commission forwarded with a covering letter dt. June 19, 1974 a list of 37 candidates of the 1970 Examination who had obtained 40 per cent or more marks in the aggregate but who had failed to secure 35 per cent qualifying marks in the viva voce which shall hereinafter be referred to as the IIIrd list. The Commission's letter contained a note that the candidates mentioned therein had obtained 40 per cent or more marks in the aggregate but they had not been found suitable by the Commission. This IIIrd list contained the names of Rafiquddin and 36 others, who were unsuccessful at the 1970 examination who will be referred to hereafter as the "unplaced candidates" of the 1970 Examination. On receipt of the IIIrd list of the "unplaced candidates" the State Government after obtaining approval of the High Court issued a Notification dt. Aug. 19, 1975 appointing 21 candidates out of the list of 37 candidates as Munsifs with a note that the appointments were being made on the basis of the 1970 Examination conducted by the Commission and the persons appointed were "unplaced candidates" with a further note that their seniority would be determined later on. Out of the list of 37 candidates forwarded by the Commission under its letter dt. June 19, 1974 the State Government found that the remaining 16 persons who had been unsuccessful at the 1970 Examination had again appeared in the 1972 Examination and they had been selected and appointed to the service. Therefore, the Government requested the Commission to select 16 more candidates from the 1972 Examination. In pursuance of the Government's request the Public Service Commission by its letter dt. 14/15th July, 1976 forwarded another list of 16 candidates who had appeared in the 1972 Examination for appointment to the service.