STATE OF U.P., ETC. v. RAFIQUDDIN & ORS. ETC.

Writ Petition No. 12818 of 1984.

E The petitioner was recruited to the service on the basis of the Y competitive examination of 1972. He is aggrieved by the direction '1 issued by the Division Bench of the-High Court in Rafiquddin's case, as his seniority was affected adversely. We have already taken the view that the unplaced candidates of 1970 examination cannot be senior to the candidates appointed in the service as a result of the 1972 F examination. The writ petition succeeds to that extent.

Transfer Case No. 15 of 1987.

The petitioners were recruited to the U.P. Nyayayik Seva on the basis of the result of the competitive examination of 1972. They are G aggrieved by the direction issued by the Division Bench in Rafiqud· · din's case for rearranging the seniority. Since we have already expres- sed the view that the unplaced candidates of 1970 examination are not entitled to seniority over the candidates appointed to the service on the result of the 1972 Examination. The petition is to succeed partly.

H Writ Petition No. 13047 of 1985.

STATE OF U.P. v. RAFIQUDDIN [SINGH, J.] 831

-Ji'; The petitioner was appointed to service on 22nd November 1976 A on the basis of the result of the 1973 examination. His main grievance is that respondent Nos. 3 to 15 to the petition have been shown senior to him although they were appointed in service between May 1976 to November 1977 on the basis of the result of competitive examination of 1972. Since the respondents were treated senior by the High Court, they were promoted to the post of Chief Judicial Magistrate/Civil B Judge ignoring the petitioner's claim. On behalf of the petitiener, two

- submissions were made: (i) respondent Nos, 3 to 15 were appointed later in time, cosequently they cannot. be treated senior to the petitioner; (ii) the selection and appointment of respondent Nos. 3 to 15 was against rules and as such they are not entitled to seniority over -~ the petitioner who is a regularly selected candidate. c We do not find any merit in either of the two submissions. Rule 22 lays down criteria for determination of the seniority of members of service. It directs that the seniority shall be determined on the basis of the year of examination which means that a person 'recruited to the D ~ervice in pursuance of the result of a particular year of examination would rank senior to the candidate who is recruited to service in pursuance of result of subsequent year of examination although he ' may have actually been appointed earlier in time. After the selection t of candidates, several formalities are followed before appointment is made under Rule 21. The selected candidates are required to undergo medical examination, their character and antecedents are verified and the approval of High Court is obtained and only thereafter the Gover- nor appoints them by issuing notification. Many a time, this process causes delay in making the actual appointment and in that process sometimes persons selected on the basis of subsequent examination are appointed before the successful candidates of earlier examination t- are appointed. But in view of Rule 22 the latter shall be senior to the former inrrespective of the date of appointment. Since there has been no challenge to Rule 22 and the appointment is not shown to be illegal for the reasons which we presently give, it must be applied in its plaip terms in determining the seniority of those recruited to service in accordance with Rules. The petitioner was appointed in service on the basis of the result of the 1973 examination while respondent Nos. 3 to -,I 15 were recruited to service on the basis of the result of the 1972 examination. Therefore, according to Rule 22, the respondent Nos. 3 to 15 are entitled to be sepior. to the petitioner. The mere fact that the petitioner was appointed few months before the respondent Nos. 3 to 1~ were appointed, cannot override the express provision of Rule 22. H

832 SUPREME COURT REPORTS [1988) I S.C.R. ·~ As regards, the second submission raised on behalf of the A petitioner, we do not find any illegality in the appointment of respon· dent Nos. 3 to 15. The competitive examination of 1972 was held for recruiting 150 candidates, the examination was held in 1973 and 1974. 16 successful candidates of 1972 examination were included in the list of 37 unplaced candidates of 1970 examination and the Government B had appointed them in service treating them as unplaced candidates of 1970 examination. On the request of the State Government, the Public Service Commission made recommendation in favour of 16 more candidates on the basis of result of 1972 examination which included the name of respondent Nos. 3 to 15 and they were appointed to the service between May 1976 to November 1977. Their appointment in service was made by the State Government on the recommendation of - G Public Service Commission made iii accordance with Rule 19 as they 1 had obtained the requisite aggregate marks in the written and viva voce test. Unlike the 21 unplaced candidates of 1970 examination respondents 3 to 15 were appointed in accordance with the Rules, they are therefore entitled to their seniority in terms Rule 22. We find no D merit iii the petition.

Before we close we would like to refer certain aspects which came to our notice during the hearing of the case relating to the func- tioning of the Public Service Commission, selection of candidates and their appointment to the Judicial Service. We were distressed to find 'r' E that the Public Service Commission has been changing the norms fixed by it for considering the suitability of candidates at the behest of the "' State Government after the declaration of results. We have noticed ~

that while making selection for appointment to the U.P. Judicial Service the Commission had initially fixed 40 per cent aggregate marks and minimum 35 per cent marks for viva voce test and on that basis it F had recommended list of 46 candidates only. Later on at the instance of the State Government it reduced th& standard of 40 per cent marks ·-f in aggregate to 35 per cent and on that basis it forwarded a list of 33 candidates to the Government for appointment to the service. Again at the behest of the State Government and with a view to implement the decision of the high level committee consisting of Chief Justice, G Chief Minister and the Chairman of the Commission forwarded name of 37 candidates in 1974 ignoring the norms fixed by it for judging the suitability of candidates. The Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norn:is: It may cm;1sult the ~tate. Governm~nt ~d the High Court in prescnbmg the norms for 1udgmg the suitability ?f H candidates if no norms are prescribed in the Rules. Once the Comm1s-

STATE OF U.P. v. RAFIQUDDIN [SINGH, J.] 833

·)*, sion determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates A to the Government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the I institution of Public Service Commission and the authenticity of selec- B tion. The State Government had made a preposterous suggestion to

- the Commission that unsuccessful candidates of 1967, 1968, 1969 should be selected and recommended for appointment by ignoring the marks obtained by them in viva voce test. If the Commission had accepted the Government's suggestion and forwarded the list and appointments had been made in 1975 as was done in the case of unp- laced candidates of 1970 examination, it would have made a mockery c of the entire system. We are of opinion that the Commission should take firm stand in these matters in making the selection in accordance with the norms fixed by law or fixed by it in accordance with law uninfluenced by the directions of the State Government unsupported by the Rules. D

We have noticed that a retired Judge of the High Court is appointed as an expert to assist the Commission in making the selec- tion for appointment to the Judicial Service. This practice is not desir- able. In A.K. Yadav's case a Constitution Bench of this Court observed that when selection for judicial service of the State is made it E is necessary to exercise the utmost care to see that competent and able persons possessing a high degree are selected because if we do not have good competent and honest judicial officers the democratic qual- ity of the State itself will be in serious peril. It is therefore essential that when selections to the judicial service are being made a sitting Judge of the High Court should be nominated by the Chief Justice of F '" the State to participate in the interview as an expert. The Constitution Bench further observed that a sitting High Court Judge would be in a better position to give advice to the Commission in the matter relating to selection of suitable candidates and his advice would be binding on the Commission unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be G recorded in writing by the Chairman and members of the Commission. The Constitution Bench had issued directions to the Public Service Commission of every State to follow this direction but it appears that in the State of U .P. this direction is not being followed. We therefore direct that in future selection for appointment to the Judicial Service shall be made by the Commission on the expert advice of a sitting H

834 SUPREME COURT REPORTS [ 1988] I S.C.R.

A Judge of the High Court nominated by the Chief Justice. "·?(·

There is another aspect which requires consideration. Seniority of officers recruited to the service is determined on th.e basis of the year of the competitive examination under which they are recruited. We have noticed that generally there is a considerable interreguum ' B between holding of the examination and the., appointment of the ,\0 ' selected candidates. Those selected under 191o examination were ).-

c appointed in 1973, 1974, and 1975 while those sele'cted under the 1972 examination were appointed in 1975 and 1976 and also in 1977. Simi- larly the successful candidates of 1973 examination were appointed in 1976 and 1977. No system was followed in making appointments as some of the candidates selected in subsequent examination were appointed earlier to those selected under the earlier examination, with -f - the result those appointed to the service later in time are made senior to those appointed in service earlier in time in accordance with Rule ,,,.,,, 22 .. This causes heart burning and other complications. In order to avoid these complications it is necessary that every effort should be D made to appoint the successful candidates of a particular examination ... before any candidate of subsequent examination is appointed. If for some reason this is not possible the State Government and the High Court both should consider the desirability of amending the Rule 22 to ensure that the length of service rendered by an officer is respected. y E In the result, Civil Appeal No. 4023 of 1982 and Civil Appeal F No. 4024 of 1982 and allowed. Civil No. 3736 of 1982 is dismissed. Writ Petition No. 4636 of 1982 and Writ Petition No. 13047 of 1985 are dismissed Writ Petition No. 12810 of 1985 and Transfer Case No. 15 of 1987 (transferred petition) are allowed partly. There will be no order .... as to costs in th"se cases. F S.L. ._.