1985 (8) TMI 387 - SC - Indian Laws

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this judgment are:

(a) Whether the High Court had the power under the Delhi Judicial Service Rules, 1970, to add two marks as "moderation" to the marks obtained by candidates in each written paper of the competitive examination, thereby effectively altering the minimum qualifying marks prescribed in the Appendix to the Rules for eligibility to appear at the viva voce test.

(b) Whether the Selection Committee or the High Court had the authority to exclude from the final select list candidates who had appeared in the viva voce test but did not secure a minimum aggregate of 600 marks, which was an additional requirement imposed by the Selection Committee beyond the minimum qualifying marks prescribed in the Rules.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Power of the High Court to add moderation marks to written examination scores

Relevant legal framework and precedents: Recruitment to the Delhi Judicial Service is governed by the Delhi Judicial Service Rules, 1970, framed by the Lt. Governor of Delhi in consultation with the High Court under Article 309 read with Article 234 of the Constitution. Rule 13 mandates recruitment after initial recruitment to be by competitive examination conducted by the High Court. Clause (6) of the Appendix to the Rules prescribes mandatory minimum qualifying marks for candidates to be eligible for the viva voce test: 50% in each written paper and 60% in aggregate for general candidates, and 40% in each paper and 50% in aggregate for Scheduled Castes/Tribes candidates.

Court's interpretation and reasoning: The Court examined whether the High Court's decision to add two marks to each candidate's score in each written paper (moderation) was within its powers. The High Court justified this on the ground that some candidates who otherwise scored high marks were excluded from the viva voce due to missing the qualifying marks by a small margin. This practice of moderation was said to have precedent and was likened to practices in universities where grace or moderation marks are awarded to address defects in question papers or valuation.

The Court rejected this justification, noting that there was no defect in the question papers or valuation process. The Court emphasized the mandatory nature of the qualifying marks prescribed in the Rules' Appendix, which could not be altered by the High Court. The addition of marks by way of moderation effectively amended the qualifying criteria, which could only be done by the Lt. Governor (Administrator) in consultation with the High Court under Article 234. The Court held that the High Court had no power to amend or relax the qualifying marks by adding moderation marks, especially when no irregularities in the examination were established.

Key evidence and findings: The minutes of the Full Court meeting showed that the moderation decision was taken collectively by the High Court judges after the initial results were approved. The decision was not targeted at specific candidates but applied uniformly to all. The Court noted that this resulted in inclusion of candidates who had not originally qualified under the Rules, thereby enlarging the competition pool unfairly and prejudicing candidates who had qualified initially.

Application of law to facts: The Court applied a strict construction of the Rules and held that the High Court's power to conduct the examination did not include the power to alter the qualifying criteria by awarding moderation marks. The Court reasoned that such amendment of the Rules must follow the constitutional procedure under Article 234 and could not be done unilaterally by the High Court.

Treatment of competing arguments: The Court acknowledged the High Court's bona fide intention and past practice but held that "hard cases cannot be allowed to make bad law." It rejected the argument that moderation was necessary to avoid injustice to borderline candidates, emphasizing the importance of fairness, equality, and adherence to the Rules.

Conclusion: The Court held that the High Court had no power to add moderation marks to the written examination scores and that the list prepared after such moderation was liable to be struck down.

Issue (b): Power of the Selection Committee to exclude candidates from the final list based on an additional minimum aggregate mark requirement

Relevant legal framework and precedents: Rules 17 and 18 of the Delhi Judicial Service Rules provide that the Selection Committee shall call for viva voce only those candidates who have qualified at the written test as per the Appendix and shall prepare the final list of candidates in order of merit. The Rules prescribe the minimum qualifying marks for eligibility to appear at the viva voce test but do not provide for any additional minimum aggregate marks as a condition for inclusion in the final select list.

Court's interpretation and reasoning: The Court examined the Selection Committee's practice of prescribing a minimum aggregate of 600 marks (including viva voce) for inclusion in the final list, which was not stipulated in the Rules. The Committee excluded candidates who had appeared in the viva voce but did not meet this additional threshold.

The Court held that the Selection Committee had no power to impose any additional qualifying marks beyond those prescribed in the Appendix. Such an imposition amounted to an amendment of the Rules, which could only be done by the Lt. Governor in consultation with the High Court under Article 234. The Court distinguished this from the Committee's power to assess suitability on other grounds such as character or fitness, which was not under challenge.

Key evidence and findings: The counter-affidavit of the Deputy Registrar admitted that the Selection Committee had prescribed the 600 marks minimum as a subjective standard of suitability, but the Court found no authority in the Rules for this practice. The final select list excluded candidates who had qualified under the written and viva voce tests but failed to meet this arbitrary aggregate threshold.

Application of law to facts: The Court applied the principle that recruitment rules framed under Article 234 have the force of law and cannot be altered or supplemented by the Selection Committee or the High Court without following the prescribed constitutional procedure. The Committee's additional requirement was therefore illegal.

Treatment of competing arguments: The Court did not consider whether other criteria such as character or antecedents could justify exclusion but focused solely on the illegality of imposing additional minimum marks. It rejected the argument that the Selection Committee's subjective assessment could override the Rules' prescribed minimum qualifying marks.

Conclusion: The Court held that the exclusion of candidates based on the 600 marks aggregate minimum was illegal and that the final list prepared by the Selection Committee on that basis was liable to be quashed.

3. SIGNIFICANT HOLDINGS

"The addition of any marks by way of moderation to the marks obtained in any written paper or to the aggregate of the marks in order to make a candidate eligible to appear in the viva voce test would indirectly amount to an amendment of Clause (6) of the Appendix. Such amendment to the Rules can be made under Article 234 only by the Lt. Governor (Administrator) after consulting the High Court in that regard."

"The High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the device of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation."

"Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness."

"No fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because Clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial Service."

"The Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix."

"We quash the list prepared by the Selection Committee and direct that a fresh list shall be prepared in order of merit on the basis of the aggregate of the marks obtained by the candidates at the written examination and at the viva voce test without taking into consideration the moderation marks added by the High Court and without reference to the decision of the Selection Committee that candidates who had obtained less than 600 marks in the aggregate should not be included in that list."

Core principles established include the strict adherence to recruitment rules framed under constitutional authority, the limitation on the powers of the High Court and Selection Committee to alter or supplement qualifying criteria, and the imperative to maintain fairness, equality, and transparency in public service recruitment processes.

The Court's final determinations were that the High Court's addition of moderation marks was ultra vires and illegal, and the Selection Committee's imposition of an additional minimum aggregate mark for final selection was also without authority. Consequently, the lists prepared on these bases were quashed, and directions were issued for preparation of a fresh list strictly in accordance with the Rules.