ANSHUL KAKKAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE undisputed facts in this writ petition are as follows. The second respondent-Punjab Public Service Commission (hereinafter referred to as the Commission) advertised for the appointment of 12 posts of Subordinate Judge (P. C. S. Judicial Branch) in April, 1993, out of which 6 posts were reserved for general category, 4 for the scheduled castes, and 2 for Ex Servicemen, mentioning specifically that the vacancies are liable either to be increased or decreased. The two petitioners in this writ petition who belong to the general category and possess the requisite educational qualification were permitted to appear in the written examination and were also among the 20 candidates called for viva voce, as they fulfilled the pre-requisite condition for being called for the interview. Out of 20, 15 belong to the general category, 4 to be scheduled castes and 2 belong to the Ex-Servicemen category. After the interview, the respondent-Commission prepared a merit list published it in the Punjab Govt. Gazette in accordance with the Punjab Civil Services (Judicial Branch) Rules 1951. But while forwarding the list for publication the respondent Commission mentioned against the names of the present petitioners as "qualified but not found suitable". There is no dispute between the parties with regard to the above facts.

(2.) BUT the petitioners contend that the respondent Commission's duty is to hold the written examination and the viva voce test, 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 in 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 caste category, the name of one person in the ex-Servicemen category, and the 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-Commissioner to forward the names of the petitioners to the Government as per the 1951 Rules; to 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 23 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 that 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 had to determine the suitability for appointment and that the petitioners were not found suitable. It is 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.) THE questions whether the Service Commission can mention that a candidate is qualified but still is not suitable for appointment, and whether the Service Commission can lake into consideration the number of vacancies for the purpose of sending the list of qualified candidates, and whether the Government is bound to send the names of the petitioners also to the High Court for being entered in the Register maintained by the High Court are answered and are squarely covered by a decision of the Supreme Court in Miss Neelima Shangla v. State of Haryana, AIr 1987 SC 169.