REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6205 OF 2011 [Arising out of SLP(C) No. 9147 of 2008]

Bhanu Pratap                                  ....Appellant

VERSUS

State of Haryana & Ors.                              ....  Respondent(s)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.  

2. In this appeal we are called upon to decide an issue pertaining to  

an  appointment  to  the  Post  of  Subordinate  Judge  under  the  

Haryana Civil Services [Judicial Branch] Examination which was  

advertised  in  2003  and  for  which  the  selection  process  was  

completed  in  2004.  Thereafter  two  candidates  who  alone  were  

selected  have  been  appointed  and  joined  their  services  on  

18.03.2005 and 07.07.2005, respectively.  

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3. Even  subsequent  thereto  advertisements  have  been  issued  for  

filling up similar vacancies in 2008 and 2010 which process was  

also  long  completed  and  persons  selected  have  also  been  

appointed  pursuant  to  the  said  selection  process.  We  are  also  

informed that in 2011, further 111 posts have been advertised for  

which selection process has been initiated.

4. The  appellant  herein  submitted  his  application  as  against  the  

aforesaid  advertisement  issued by  the  respondents  in  2003 for  

filling  up 73 posts  of  Subordinate  Judges under  Haryana Civil  

Services [Judicial Branch] Examination. The appellant appeared  

in the written tests and was declared successful and thereafter he  

was called for interview. Incidentally out of 3,471 candidates who  

appeared  for  the  written  examination,  only  3  persons obtained  

more  than  50%  marks  in  the  written  examination  and  were  

eligible under the extant Rules for being called for interview/viva-

voce. All the 3 candidates called for interview duly appeared before  

the  interview  board  constituted  by  the  Haryana  Public  Service  

Commission [for short “the Commission”] in which one of the then  

Judges of the Punjab and Haryana High Court was called as an  

Expert  Advisor  who  was  present  during  the  process  of  the  

interview.

5. It transpires from the records that in the interview conducted by

the Commission total marks allocated for the interview/viva-voce  

test were 120 and one Shri Vivek Nasir obtained 72 marks out of  

120, whereas, Shri Anubhav Sharma was awarded 60 marks out  

of 120. However, the present appellant could get only 20 marks  

out of the total marks of 120 for the interview. Since he failed to  

qualify in terms of Rule 8 of the Haryana Civil Services (Judicial  

Branch) Rules [for short “the Rules”] he was not appointed to the  

said post.

6. Feeling  aggrieved  the  appellant  filed  a  Writ  Petition  before  the  

Punjab  and  Haryana  High  Court  at  Chandigarh  which  was  

registered as CWP No. 12205 of 2005 in which he sought for a  

writ  of  mandamus  directing  his  appointment  to  the  post  of  

Judicial Officer. In the Writ Petition his contention was that since  

he received total aggregate marks of 508 out of 1020 total marks,  

i.e., 49.8% and since the marks obtained by him was short of 50%  

by  just  two  marks  the  same  should  be  rounded  off  to  the  

qualifying marks of 50% in aggregate in terms of Rule 8 of the  

Rules. It was contended that shortage of the percentage of half or  

less was to be rounded off and when the petitioner had obtained  

49.8% in the whole aggregate after viva voce test, he should have  

been treated to have obtained 50% and should have been deemed  

to have qualified.  

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7. The aforesaid contention of the appellant, however, was rejected  

by the Single Judge of the High Court and the Writ Petition filed  

by the appellant was dismissed, which order was further upheld  

by the Division Bench on appeal. Being aggrieved by the dismissal  

of his Writ Petition and Letters Patent Appeal, the appellant filed  

the present appeal in this Court, on which we heard the learned  

counsel appearing for the parties who had also taken us through  

the entire records.

8. Appointment  to  the  post  of  Subordinate  Judge  (HCS  Judicial  

Branch)  is  guided  by  Haryana  Civil  Services  [Judicial  Branch]  

Rules,  which are  statutory in nature.  Rule  7(1),  7  (2)  and 8(1)  

specifically deal with the minimum marks that a candidate has to  

obtain to qualify in the written test and also for selection. The said  

provisions are extracted hereinbelow for ready reference: -

“7(1) No candidate shall be credited with any marks  in any paper unless he obtains at least thirty three per   cent marks in it.

(2) No  candidate  shall  be  called  for  the  viva-voce  test unless he obtains at least fifty per cent qualifying  marks  in the  aggregate  of  all  the  written  papers  and  thirty three per cent marks in the language paper, Hindi  in (Devnagri Script).

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8(1) No  candidates  shall  be  considered  to  have  qualified in the examination unless he obtains at least  50% marks in the aggregate papers including viva-voce

test.”

9. In the advertisement issued by the respondents for filling up the  

said post along with instructions and information for candidates it  

was specifically mentioned that the syllabus of the examination  

would be as contained in Schedule under Rule 9 of para ‘C’ of the  

Rules  relating  to  the  appointment  of  Subordinate  Judges  in  

Haryana.  The  said  syllabus  was  set  out  in  detail  showing  the  

compulsory papers, description of subjects, maximum marks for  

each subject.  It  was also  communicated  that  for  viva-voce  test  

there will be 120 marks. The rules with regard to the conduct of  

the written examination were also set out therein. In clause (g)(i)  

thereof it was indicated that no candidate  shall be considered to  

have qualified in the examination unless he obtains at least 50%  

marks in the aggregate of all  papers including viva-voce test.  It  

was also stated thereafter in the advertisement that the merit of  

the  qualified  candidates  shall  be  determined  by  the  Haryana  

Public  Service  Commission  strictly  according  to  the  aggregate  

marks obtained in the written papers and viva-voce. For the viva-

voce test it was provided in the advertisement that it will be a test  

relating to the matters of general interest and is intended to test  

the candidate’s alertness, intelligence and general outlook. It was  

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reiterated  thereunder  also  that  the  merit  of  the  qualified  

candidates would be determined by the Haryana Public Service  

Commission strictly according to the aggregate marks obtained in  

the written papers and viva-voce.

10.As stated hereinbefore, a sitting Judge of the Punjab and Haryana  

High Court was associated as an Expert Advisor at the time of  

viva-voce test which consisted of 120 marks. The total 120 marks  

of  viva-voce  test  were  divided  under  four  heads  evaluating  the  

personal quality of the candidates as follows: -

“a) Awareness, outlook, Subject knowledge 30 marks         and general interest

b) Articulation and expression 30 marks c) Intelligence and alertness 30 marks d) Poise, bearing and other qualities 30 marks”

The Judge of the High Court was to classify a candidate as Expert  

Advisor under the following categories: -

“Class Marks Range

Excellent (E) 26-30 V. Good (G+) 21-25 Good (G) 16-20 Above average (A+) 11-15 Average (A) 06-10 Poor (P) 01-05”

11.It  is  brought  out  on  records  that  the  Judge  present  in  the  

interview graded Anubhav sharma as ‘G’, i.e., ‘Good’ placing him

within  the  mark  range  of  16-20,  whereas  Bhanu  Partap  was  

graded as “P”, i.e., ‘Poor’ placing him within the mark range of 01-

05  and  Vivek  Nasir  was  graded  as  “A+”,  i.e.,  ‘Above  Average’  

placing him within the mark range of 11-15. The aforesaid grading  

criteria to be awarded by the Judge for evaluating the personal  

quality of the candidates were circulated to the members of the  

Selection  Committee  for  viva-voce  examination  as  a  guideline  

before the viva-voce examination. Therefore, the minimum marks  

which could be given to the appellant in each of the heads, was  

only one and in this case, the Chairman, and the members of the  

Commission had given him the maximum marks, i.e., 5 marks,  

under each of above-mentioned four heads and consequently he  

got 20 marks out of 120 ascribed to the viva-voce examination.  

12.Counsel  appearing  for  the  appellant  submitted  before  us  that  

since  the  appellant  had received 49.8% in aggregate  in  all  the  

tests including viva-voce, the same could and should have been  

rounded off  to 50% in aggregate which would have entitled the  

appellant  to  be  selected for  appointment  to  the  aforesaid  post.  

Counsel  also  submitted  that  during  the  earlier  selection  

immediately  preceding  the  selection  in  question  there  was  the  

requirement  of  grading under  three  factors/categories  only  and  

the same came to be varied/increased in the selection in question  

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from three to six.  He contended that this increasing of grading  

factors/categories from three to six envisages much wider criteria  

in  the  selection  process  in  question  which  amounted  to  

arbitrariness.

13.The  aforesaid  submissions  of  the  counsel  appearing  for  the  

appellant  were  however  refuted  by  counsel  appearing  for  the  

respondents by submitting that the respondents have strictly and  

minutely  followed  and  complied  with  the  Rules  which  are  

statutory  in  nature  and,  therefore,  the  present  appeal  has  no  

merit at all. He also submitted that there cannot be addition of  

any marks unless the same is specifically permitted and provided  

either  under  the  Rules  or  in  the  advertisement  and,  therefore,  

there was no illegality or arbitrariness in the selection in question.  

14.In the light of the records placed before us we have considered  

the aforesaid submissions of the counsel appearing for the parties.  

The  relevant  Rules  have  already  been  extracted  above.  A  bare  

reading of the aforesaid rules would make it crystal clear that in  

order  to  qualify  in  the  written examination a  candidate  has to  

obtain at least 33% marks in each of the papers and at least 50%  

qualifying marks in the aggregate in all the written papers. The  

further  mandate  of  the rules  is  that a candidate  would not be  

considered as qualified in the examination unless he obtains at

least 50% marks in the aggregate including viva-voce test. When  

emphasis is given in the Rules itself to the minimum marks to be  

obtained making it clear that at least the said minimum marks  

have to be obtained by the concerned candidate there cannot be a  

question of relaxation or rounding off as sought to be submitted  

by the counsel appearing for the appellant.  

15.There  is  no  power  provided  in  the  statute  nor  any  such  

stipulation  was  made  in  the  advertisement  and  also  in  the  

statutory Rules permitting any such rounding off or giving grace  

marks so as to bring up a candidate to the minimum requirement.  

In our considered opinion, no such rounding off or relaxation was  

permissible. The Rules are statutory in nature and no dilution or  

amendment to such Rules is permissible  or possible  by adding  

some words to the said statutory rules for providing or giving the  

benefit of rounding off or relaxation.

16. We may also draw support in this connection from a decision of  

this  Court  in  District  Collector  &  Chairman,  Vizianagaram  

Social Welfare Residential School Society, Vizianagaram and  

Another. v.  M. Tripura Sundari Devi reported in  (1990) 3 SCC  

655. In the said judgment this Court has laid down that when an  

advertisement  mentions  a  particular  qualification  and  an  

appointment is made in disregard of  the same then it  is not a  Page 9 of 11

matter only between the appointing authority and the appointee  

concerned. The aggrieved are all those who had similar or even  

better  qualifications  than the  appointee  or  appointees  but  who  

had not applied for  the post  because they did  not possess the  

qualifications mentioned in the advertisement.

17. In the case of Umrao Singh Vs. Punjabi University, Patiala and  

Ors. reported in  (2005) 13 SCC 365 this Court  while  dealing  

with  the  power  of  Selection  Committee  for  relaxation of  norms  

held thus: -

“Another  aspect  which this  Court  has  highlighted  is  scope for  relaxation  of  norms.  Although Court must look with respect upon the performance of duties by experts in the  respective fields, it cannot abdicate its functions of ushering in a society based on rule  of law. Once it is most satisfactorily established that the Selection Committee did not  have the power to relax essential qualification, the entire process of selection so far as  the  selected  candidate  is  concerned  gets  vitiated.  In  P.K. Ramchandra Iyer   and Ors. v. Union of India and Ors.  (1984)ILLJ314SC this Court  held that once it is established that there is no power to relax   essential  qualification,  the  entire  process  of  selection  of  the  candidate  was  in  contravention  of  the  established  norms  prescribed  by  advertisement.  The  power  to  relax  must  be  clearly spelt out and cannot otherwise be exercised.”

18. Let us also examine the issue from another angle. If rounding off  

is  given to the appellant  as sought for  by him there has to be  

similar rounding off for a person who has missed 33% in one of  

the papers just by a whisker. To him and to such a person who  

could not get 50% in aggregate in the written test, if this rule of  

rounding off is offered then they would also get qualified. In that

event, there would be no meaning of having a rule wherein it is  

provided that a person must at least have the minimum marks as  

provided for thereunder. Somewhere a line has to be drawn and  

that line has to be strictly  observed which is  like a  Lakshman  

Rekha and no variation of  the same is  possible  unless it  is  so  

provided under the Rules itself. Both the Selection Committee as  

also  the  appointing  authority  are  bound  to  act  within  the  

parameters of the Rules which are statutory in nature and any  

violation or any relaxation thereof whether by way of giving grace  

marks or  rounding off  would be  acting  beyond the  parameters  

prescribed which would be illegal.

19.In that view of the matter, we find no merit in this appeal, which  

is dismissed but leaving the parties to bear their own costs.

................................................. J

          (Dr. MUKUNDAKAM SHARMA)

................................................J        (ANIL R. DAVE)

NEW DELHI, AUGUST 2, 2011.

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