ANSHUL KAKKAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The undisputed facts in this writ petition are as follows.

(2.) But the petitioners contend that the respondent-Commission's duty is to hold the written examination and the vava voce, prepare a list of qualified candidates in accordance with the marks obtained by them in the order of merit, and publish the same in the Punjab Govt. Gazette, and forward the list to the Government; and it is for the Government, in turn, to forward the names in accordance with the merit list as prepared by the Commission to the High Court of Punjab and Haryana for entering their names of the register maintained by the High Court. The petitioners also contend that as and when vacancies arise in the Judicial Branch of the Punjab Civil Services, the High Court will make the selection from the register in which the names have been entered and forward the same to the Punjab Govt. for appointment as Subordinate Judges under Article 234 of the Constitution of India. The petitioners, therefore, contend that the respondent-Commission is bound to publish the names of all qualified persons and send a list of all qualified persons to the Punjab Govt. in the order of merit and it is not open to the respondent-Commission to further make selection/categorisation from the qualified persons and to say that a particular candidate is not suitable for appointment. This is what the respondent-Commission has done in the case of the petitioners, as is evident from Annexure P1 to the writ petition wherein it has mentioned the names of 13 persons as qualified and found suitable and recommended for appointment in the general category, the names of 4 persons in the scheduled castes category, the name of one person in the ex Servicemen category, and names of the present two petitioners as qualified but not suitable. Therefore, the petitioners have prayed for the issue of a writ in the nature of certiorari quashing the impugned notification Annexure P1 to the extent it declares the petitioners unsuitable for appointment; a writ of Mandamus directing the respondent-Commission to declare the petitioners as fully qualified for appointment to the Judicial Branch, and further directing the respondent-Commission to forward the names of the petitioners to the Government as per the 1951 Rules; directing the Punjab Govt. to recommend the names of the petitioners to the High Court (respondent No. 3) for entering their names in the High Court Register and also directing the Punjab Govt. and the High Court to appoint the petitioners to the Judicial Branch of the PCS. Second respondent-Service Commission has filed a written statement admitting most of the facts but alleging that the vacancies were increased from 12 to 26 (which included 13 in the open category) and that the names of 13 candidates who were higher in merit were recommended for appointment. The respondent-Commission also alleges that the overall merit of the petitioners was lower than others and so their names were not recommended for appointment. Another contention raised by the respondent-Commission is that since only 13 vacancies were available for the general category, it had recommended the names of 13 candidates in the general category, and that the petitioners were not found suitable in view of their overall performance and, therefore, not recommended. In more than one place, the respondent-Commission has stated that in view of the vacancies in the general category being 13, the Commission had to recommend the 13 qualified candidates. It has also alleged that the Commission has to determine the suitability for appointment and that the petitioners were not found suitable. It has specifically alleged that it was not incumbent that all the candidates who had been interviewed by the Commission are to be declared as successful irrespective of the number of vacancies; that the next advertisement for the Judicial Branch of the PCS Examination has already been issued in the newspaper on 24.12.94; that even the written examination has already been held from 21.2.1995 to 24.2.1995; that the recommendation of the selected candidates is scheduled to be made in May, 1995 and, therefore, even the old select list automatically expires after the holding of the next examination.

(3.) In these circumstances, we have to first see whether the second respondent-Commission is entitled to declare certain candidates as qualified, (including the petitioners) but, while doing so, dub the petitioners herein as 'not suitable' for appointment We have also to see whether the respondent- Commission can take into consideration the number of vacancies while making the recommendation. If the respondent-Commission is bound to send only the list of qualified candidates in the order of merit without any appendage, as has been done in the case of the present petitioners then the further question arises as to whether the Punjab Government is bound to include and send to the High Court the names of the petitioners also in the select list for being entered in the register maintained by the High Court, and whether the Government is bound to appoint the petitioners to the Service as prayed for by them