K. Peethambaran v. High Court of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930** **WP(C).No. 13749 of 2008(R)** **----------------------------------------** **PETITIONER:** **---------------------** **K.PEETHAMBARAN, AGED 50 YEARS, S/O K.KUNHIKORAN, JUNIOR SUPERINTENDENT, MUNSIFF'S COURT, HOSDURG P O, KANHANGAD 671315, RESIDING AT KANHANGAD SOUTH, KASARGOD DISTRICT.** **BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.MANU TOM SRI.M.H.HANIS** **RESPONDENTS:** **-------------------------** **1. THE HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, ERNAKULAM, KOCHI-31.** **2. THE REGISTRAR, SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **3. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SMT. M.R.SREELATHA - R3 BY ADV. SRI.KRB.KAIMAL (SR.)- R.1,2 SRI.B.UNNIKRISHNA KAIMAL- R.1,2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008 ALONG WITH WPC NO. 15232 OF 2008, THE COURT ON 18/07/2008 DELIVERED THE FOLLOWING:** Kss ## **WPC.NO.13749/2008 R** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE NOTIFICATION DTD. 15/02/2007 ISSUED BY R2. EXT.P2: COPY OF THE COMMUNICATION DTD. 11/04/2008 RECEIVED BY THE PETITIONER.** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** Kss ## **V.GIRI, J.** ## **--------------------------------------------** W.P.(C).Nos.13749 of 2008 & 15232 of 2008 ## **------------------------------------------Dated this the 18[th ] day of July, 2008.** ## **JUDGMENT** Similar issues are involved in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. 2. The petitioner in W.P.(C)No.13749/08 is a Junior Superintendent presently working in the Munsiff's Court, Hosdrug. Pursuant to the notification issued by the High Court of Kerala on 15.2.2007 inviting applications from qualified candidates for appointment to the post of MunsiffMagistrate in the Judicial Service, petitioner applied for recruitment by transfer. As per the notification, there is a written examination and vive-voce (oral examination). The written examination carries a maximum of 900 marks and vivevoce carries 100 marks. The cut off marks for the main written examination is 40% in each paper for general candidates with an overall minimum of 45% in the written examination. There is relaxation provided in favour of candidates belonging to Scheduled Caste/Scheduled Tribe. **W.P.(C).NO.13749/08 & con.case.** 3. Only those candidates who secure the prescribed percentage of marks in the main written examination shall be called for vive-voce. The cut off marks for vive-voce is 30 per cent for general candidates and 25 per cent for candidates belonging to SC/ST. All the candidates should secure the minimum marks in the written examination and in the vive-voce. The marks secured by the candidates in the vive-voce shall be added to the total marks secured in the written examination and the names of those candidates shall be arranged in the list on the basis of the total marks. 4. The petitioner secured well more than the required minimum for each paper in the written examination. But he was awarded only 26 marks in the oral examination. He contends that the oral examination is intended to asses the candidates' overall general knowledge, grasping power of general principles of law analytical ability and suitability for appointment as a Munsiff-Magistrate. Insofar as the petitioner is concerned, he contends that a question was put to him about a past disciplinary action against him which had taken place in the year 1999. It was not a disciplinary action **W.P.(C).NO.13749/08 & con.case.** in relation to the performance of his official functions, but for allegedly participating in a protest demonstration taken by the members of the staff, while the petitioner was serving in the Hosdrug Munsiff's Court. It is the petitioner's case that he got such minimum marks in the vive-voce only because of the disciplinary action to which he was subjected to earlier. He submits that amongst those who had applied in the quota for recruitment by transfer, he has secured the maximum marks in the written examination and therefore, there is no reason why he should secure such low marks in the oral examination, as to exclude him from consideration. In these circumstances, he has approached this court seeking a declaration that his elimination from the list of successful candidates to be selected for recruitment by transfer is illegal and unconstitutional and for a mandamus directing the respondents to include his name in the list of successful candidates. 5. Insofar as the petitioner in W.P.(C) No.15232/08 is concerned, he is working as Junior Superintendent in the Sub Court, Attingal. He had secured more than the minimum required in the written **W.P.(C).NO.13749/08 & con.case.** examination, but has not secured sufficient marks in the oral examination. There is a contention that the prescription of 30 marks for vive-voce is per se illegal. It is further contended that to the knowledge of the petitioner, he was excluded from the list of successful candidates under the transfer quota because he was subjected to disciplinary proceedings earlier. The punishment imposed on him, as evidenced by Exts.P7 and P7(a), had apparently influenced his selection or his exclusion, as the case may be. Hence the writ petition challenging the exclusion of the petitioner from the list of successful candidates. 6. Counter affidavit has been filed by the 1[st] respondent in both the writ petitions. The prescription of minimum marks in the written examination as well as in the vive-voce has been upheld by the Supreme Court in Siraj v. High Court of Kerala {2006(2) KLT 923}. The vive-voce examination was conducted by a selection committee consisting of the Hon'ble Chief Justice and 4 senior most Judges as members. The petitioners in both the cases were interviewed by the committee. As they did not secure the minimum marks for eligibility for consideration **W.P.(C).NO.13749/08 & con.case.** for inclusion in the rank list, they were not included. The petitioners were awarded marks for the vive-voce examination on the basis of their performance in the examination. The allegation, that the petitioners were awarded low marks in the vivevoce examination despite their good performance in the interview only on the ground that they had been subjected to disciplinary proceedings, was denied. 7. I heard learned senior counsel for the petitioners Mr.K.Ramakumar and Mr.K.P.Dandapani and learned senior counsel Mr.K.R.B.Kaimal appearing on behalf of the High Court of Kerala and Ms.M.R.Sreelatha, learned Government Pleader on behalf of the Government. I had called for the confidential papers as also the minutes of the committee and mark lists. The same was made available to me. I have perused the same. 8. Though there was a contention against the prescription of minimum marks for the vive-voce examination, the same was not seriously pressed forth by the learned counsel for the petitioners, in the light of the authoritative pronouncement by the Supreme Court construing an almost identically worded notification issued by the High Court of Kerala for **W.P.(C).NO.13749/08 & con.case.** the previous selection, in Siraj v. High Court of Kerala {cited supra}. Further, there is no challenge against the notification as such. Though a reference was made to the judgment of the Supreme Court in Hemani Malhotra v. High Court of Delhi {2008(2) KLT SN 56}, the said dictum is not applicable to the facts of the case. That was a case where minimum marks for vive-voce was prescribed after the commencement of the selection process and after the written examination itself was conducted. In fact, the view taken by the Supreme Court in the aforementioned decision is an affirmation of the view taken by the Apex court in Siraj's case (cited supra) as is evident from the following observations made in paragraph 9 of the judgment. “There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court **W.P.(C).NO.13749/08 & con.case.** is of the opinion that prescription of minimum marks by the respondent at vivevoe, test was illegal.” 9. It is then contended that the petitioners have been awarded such low marks in the vive-voce only because of the fact that they had been subjected to disciplinary proceedings. This contention raised by the petitioners has been denied in the counter affidavit filed by the 1[st] respondent. The notification does not provide for any disability merely on account of the fact that the applicant was either subjected to disciplinary proceedings or even the currency of any disciplinary proceedings at the time of application. Marks are awarded by the members of the committee, all of whom are high constitutional functionaries. An interview cannot be equated to a written examination. An interview is not merely a question and answer session. It is intended to assess the personality and suitability of the candidate. No interview is conducted or is expected to be conducted on a pre-determined format. Several times the questions put to the applicant are impromptu and it is common to find that questions are generated from the answers given by the applicant or even by his inability to give an answer. All these go **W.P.(C).NO.13749/08 & con.case.** into the assessment of the candidate and the fact that a candidate might have performed well in his written examination is no guarantee whatsoever for the same level of performance in the oral examination. The converse also could be true. 10. The details of the disciplinary proceedings, if any, to which an applicant under the quota for recruitment by transfer has been subjected to are required to be given in the application itself. Such details are obviously before the members of the committee which conducts the interview. The details of the proceedings and the details of the punishment, if any, are also to be disclosed. The members of the committee, as stated above, are the Chief Justice and 4 senior most Judges of the High Court. Obviously, such constitutional functionaries, with the wealth of experience behind them, are perfectly competent to take note of the fact that a candidate, who is being interviewed by them had been subjected to disciplinary proceedings and to keep that factor at bay, in assessing the merit of the candidate. Learned senior counsel for the petitioners submitted that the factum relating to the disciplinary proceedings, which the candidates have **W.P.(C).NO.13749/08 & con.case.** been subjected to, should be treated as a totally irrelevant consideration and should not, therefore, be disclosed as a relevant factor to the members of the committee, who conduct the interview. I am unable to accept this submission. The purpose of interview is to assess the personality of the candidate, who obviously must be suitable for the post in question. The manner in which the candidate responds to the question would be a relevant factor. His ability to respond to the question in a positive manner is as important as his willingness to concede his lack of awareness on any particular aspect which arises for consideration in the course of the interview. The contention that in assessing the suitability of a candidate, to be selected for the post of MunsiffMagistrate, the facts relating to any disciplinary proceedings to which he has been subjected, should be totally eschewed from consideration, in my view, is untenable. With due respect to learned Senior counsel, it stems from a misconception regarding the basic purpose for which the oral examination is held and a misplaced apprehension that the members of the committee which interviews the candidate are not competent to either exclude from consideration **W.P.(C).NO.13749/08 & con.case.** irrelevant factors in assessing the suitability of the candidate or in not assessing the impact of such factors in the ultimate assessment of the candidate. I cannot assume that persons with such rich experience in men and matters would be unable to take note of the fact that the candidates were subjected to disciplinary proceedings and would be further unable to prevent such factor influencing their overall assessment of the candidate, keeping in the background, the nature of the post to which the recruitment is sought to be made. In my view, the contention of the petitioners that a fact relating to disciplinary proceedings to which the candidates have been subjected should be totally eschewed from consideration by screening such fact from the eyes of the members of the committee is untenable. 11. I have perused the papers inter alia containing the minutes of the recruitment committee and mark sheets. I have, in particular, referred to the marks awarded by each one of the members of the committee, including the Hon'ble the Chief Justice and the marks awarded by each member of the committee. It is a fact that the petitioners failed to secure the minimum 30% marks required for the oral **W.P.(C).NO.13749/08 & con.case.** **==> picture [212 x 9] intentionally omitted <==** examination to be included in the list of successful candidates. The absence of minimum marks is only a consequence of the performance of the candidates in the interview. It is not relatable to any other factor. I do not, therefore, find any ground to interfere with the list of successful candidates, who have been found eligible for recruitment by transfer to the post of Munsiff-Magistrate. I do not find any ground to interfere in the writ petitions. The writ petitions are bereft of merit and the same are hereby dismissed. Sd/- **(V.GIRI) JUDGE** sk/ **//true copy//**