TaxTMI 
TaxTMI 
1985 (8) TMI 387
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.... disposed of along with the writ petitions filed in this court. 2. The petitioners in the above petitions were applicants for the posts of Subordinate Judges in the Delhi Judicial Service. Recruitment to the Delhi Judicial Service is governed by the Delhi Judicial Service Rules, 1970 (hereinafter referred to as 'the Rules') made by the Lt. Governor of Delhi in exercise of the powers conferred by the proviso to Article 309 of the Constitution read with Article 234 of the Constitution, in consultation with the High Court of Delhi. The initial recruitment to the Delhi Judicial Service was made in accordance with Part III of the Rules. 'Initial recruitment' means the first recruitment and appointment made to the Delhi Judicial Service after the commencement of the Rules. Any recruitment to the Delhi Judicial Service after the initial recruitment is required to be made in accordance with the rules contained in Part IV of the Rules. We are concerned in these cases mainly with Rules 13 to 18 of the Rules and the Appendix attached thereto. Rule 13 of the Rules provides that recruitment after the initial recruitment shall be made on the basis of a competitive examination ....
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.... (1) Chief Justice or a Judge of the High Court deputed by him. (2) Two Judges of the High Court nominated by the Chief Justice. (3) Chief Secretary, Delhi Administration, Delhi. (4) A Secretary of the Delhi Administration nominated by the Administrator. 5. The Registrar of the High Court is the ex officio Secretary to the Committee. The Selection Committee is required to call for Viva Voce test only such candidates who have qualified at the written test as provided in the Appendix. The duties and functions of the Selection Committee are set out in Rules 17 and 18 of the Rules. They read: 17. The Selection Committee shall call for viva voce test only such candidates, who have qualified at the written test as provided in the appendix. 18. The Selection Committee shall prepare a list of candidates in order of merit. Such list will be forwarded to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list. 6. The foregoing is in brief the summary of the rules governing the recruitment of persons to the Delhi Judicial Service after the init....
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....iva Voce test by the Selection Committee. Before the final list of candidates was published by the Selection Committee, as required by Rule 18 of the Rules, the petitioners came to know that names of certain candidates who names had not been included in the above list of 27 qualified candidates had been included in the final list by the Selection Committee and that the names of certain candidates who had been interviewed by the Selection Committee had been omitted from the said final list. Immediately thereafter the petitioners filed those petitions questioning the validity of the procedure adopted by the High Court and the Selection Committee in the preparation of the final list of successful candidates. It is not necessary to refer to all the allegations made in the petitions for the purpose of deciding these cases. We propose to deal with only two contentions raised by the petitioners, namely: (1) Whether it was open co the High Court to include in the list prepared under rule 16 of the Rules names of the candidates who had not secured the minimum marks prescribed in the appendix of the Rules for being eligible to appear at the Viva Voce test; and (2) Whether i....
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....also. Accordingly, a second list was also prepared by the High Court and was put on the notice board for information of all the candidates. The said two lists of candidates who qualified at the written test, both before and after the moderation/revaluation, are annexed hereto and marked as 'annexure 'B' and 'C, respectively. A list of the candidates who had otherwise scored good marks in individual papers but could not secure 60% in the aggregate is annexed hereto and marked as Annexure 'D'. There was yet another candidate, namely, Shri Raj Kamal Gaur who had scored very good marks in all the law papers viz. in Criminal Law 178 out of 200; in Civil Law (I) 144 out of 200, in Civil Law (XI) 133 out of 200 and in language 50 out of 100 but secured 73 marks out of 150 in the Essay and General Knowledge paper and thus disqualified himself for lack of only 2 marks in the Essay and General Knowledge paper. This case was also taken into consideration by the Full Court for deciding to grant two additional marks to each candidate in each subject. This candidate if had only secured 75% marks out of 150 in Essay and General Knowledge paper would have obtained No. 2 pos....
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....-affidavit filed in Writ Petition 4365 of 1985. It contains the following names which are arranged in the order of merit: SL. No. Name 1. Miss Sangita Dhingra 2. Sh. Dimpy Kumar Malhotra 3. Ms. Anu Prem Shanker 4. Smt. R. Kiran Nath 5. Ms. Ravinder Kaur 6. Sh. Kamlesh Chandra Aggarwal 7. Sh. Rajan Sharma 8. Sh. Satish Kr. Manocha 9. Sh. Narender Poul Kaushik 10. Sh. Raj Kamal Gaur 11. Ms. Asha Menon 12. Sh. Pawan Kumar 13. Sh. Pradeep Chaddah 14. Sh. Narender Kumar 15. Sh. Naresh Kumar Kaushik 16. Sh. Padam Kant Saxena 17. Sh. Brijesh Sethi 18. Miss Rekha Rani 19. Miss Punam Jai 20. Sh. A. K. Chaturvedi 21. Sh. Sudip Ahluwalia 22. Sh. Dilbag Singh 23. Sh. Kamlesh Kumar 24. Sh. V. K. Maheshwari 25. Sh. Rakesh Garg 26. Sh. J. S. Malik 27. Sh. Raj Kumar Jain 28. Sh. Suman Kr. Khanna 29. Sh. Rajinder Kr. Grover 30. Sh. Vijay Kumar Scheduled Castes Candidates :- 1. Sh. Sukhdev Singh 2. Sh. Teeka Ram 3. Sh. Kunda Singh Mohi 4. Sh. Gian Chand 5. Sh. Suraj Bhan" 11. It is....
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.... final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed for the particular paper, decided that moderation of two marks in each paper to every candidate of the 1984 Delhi Judicial Service be done. Moderation has been done on several occasions in the past also. 13. The question for consideration is whether the High Court in the circumstances of this case had the power to add two marks to the marks obtained in each paper by way of moderation. It is no doubt, true that the High Court is entrusted with the duty of conducting the competitive examination under Rule 13 of the Rules. It is argued on behalf of the High Court that the power to conduct an examination Includes the power to add marks either by way of moderation or by way of grace marks if it feels that it is necessary to do so, and reliance is placed by the High Court on its own past practice, and the practice prevailing in a number of universities in India, where marks are awarded either as moderation marks or as grace marks. It is true that in some educational institutions marks are awarded by way of moderation at an examination if the examining body finds a....
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....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. In the instant case by resolving to add two marks to the marks obtained in each answer book by a candidate has virtually amended the Rules by substituting 48% in the place of 50% which is required to be secured in each written paper and 58% in the place of 60% which is required to be secured in the aggregate in the case of candidates not belonging to Scheduled Caste/Tribes and 38% in the place of 40% in each written paper and 48% in the place of 50% in the aggregate in the case of candidate belonging to Scheduled Castes/Tribes. The adverse effect of the moderation on the candidates who had secured the required qualifying marks at the examination in question is quite obvious, since four candidates whose names were not in the list of 27 candidates published on the first occasion have been included in the first list of candidates chosen for appointment from out of the fina....
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....ter adding the moderation marks is liable to be struck down. The first contention urged on behalf of the petitioner has, therefore, to be upheld. We, however, make it clear that the error committed by the High Court in this case following its past practice is a bona fide. one and is not prompted by any sinister consideration. 14. With regard to the second contention, namely, that the High Court had no power to eliminate the names of candidates who had secured less than 60U marks in the aggregate after the viva voce test, reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva voce test. There is no power reserved under Rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list. It is stated in paragraph 7 of the counter-affidavit filed in Writ Petition No. 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it ar....