Judgment:
S. Nainar Sundaram, C.J.
1. This Letters Patent Appeal is preferred against the order of the learned single judge in Special Civil Application No. 5873 of 1985. The petitioner in the Special Civil Application is the appellant in this Letters Patent Appeal. The respondents in the Special Civil Application are the respondents in this Letters Patent Appeal. We prefer to refer to the parties as per their array in the Special Civil Application, for the sake of convenience.
2. The petitioner having applied for the post of Gram Sevak, took par in the written examination held in February, 1984. The petitioner was called for an oral interview on 18.4.1984. The petitioner was not selected and included in the select list prepared by the Interview Committee. The petitioner expressed a grievance over his non-selection by pointing out that instead of totalling of the marks achieved in the written examination with those of oral interview, there had been an exclusion of the petitioner from the select list on the ground that he has not achieved the minimum qualifying marks in the oral interview. The petitioner preferred the Special Civil Application impeaching his non-selection and asking for appropriate reliefs. Before the learned single Judge, who heard the Special Civil Application, the grievance of the petitioner was expatiated by pointing out that there could not be a fixing of the minimum qualifying marks for the oral interview and the rules governing the selection do not enable such prescription and hence this Court must intervene. The learned single Judge did not countenance the grievance of the petitioner, opining that the rules did authorise the authority concerned to prescribe the minimum qualifying marks for oral interview and even otherwise, the prescription of minimum qualifying marks for oral interview by the concerned authority was not arbitrary. In this view, the learned single Judge rejected the Special Civil Application.
3. Mr. B. P. Tanna, learned Counsel for the petitioner/appellant herein would submit rules concerning examination for recruitment to the post of Gram Sevak (Panchayat Service) bearing the nomenclature 'Gram Sevak' (Panchayat Service) Recruitment (Examination) Rules, 1982, hereinafter for brevity called 'Gram Sevak Rules', got formulated pursuant to powers conferred by Section 323 read with Sub-section (3) of Section 203 of the Gujarat Panchayats Act, 1961, hereinafter referred to as the Act, and the Gram Sevak rules of not envisage and authorise the prescription of minimum qualifying marks for oral interview and in absence of such authority and prescription by the Gram Sevak Rules, no such power could be claimed by necessary implication and hence in the present case the prescription of the minimum qualifying marks has got to be declared as illegal and without authority.
4. As against this Miss Rekha M. Doshit, learned counsel appearing for the respondents would submit that though Gram Sevak Rules do not specifically speak about prescription of minimum qualifying marks for oral interview, yet there being no inhibition for such prescription expressed in the Gram Sevak rules, the instructions issued in this behalf by the Gujarat Panchayat Service Selection Board, hereinafter referred to as 'the Board' constituted under Section 210 of the Act, can take the field. Miss Rekha M. Doshit, learned Counsel for the respondents in this behalf would place reliance on the instructions issued by the Board on 9.10.1980. As per the said instructions, we find that the minimum qualifying marks of 40% for oral interview and the ration of allocation of such minimum qualifying marks amongst the members of the Selection Committee, have been prescribed. With regard to the authority to issue such instructions what have been specifically asked to look to Rule 7 of the Gujarat Panchayat Services Selection Board (Functions) Rules, 1964, hereinafter referred to as 'the Board Rules', and the Gujarat District Panchayat Service Selection Committee (Functions) Rules, 1964, hereinafter referred to as 'the Selection Committee Rules'. Both the rules have come to be formulated pursuant to the powers under Section 323 of the Act. Section 323 of the Act is in the general field of conferment of the rule making power on the State Government for carrying out the purposes of the Act. Section 323(2) (b) in particular speaks about such rule making provision for all matters expressly required or allowed by the Act to be prescribed by rules. Why we are referring to this aspect is, Section 203(3) of the Act specifically speaks about the power of the State Government to make rules 'Regulating the mode of recruitment either by holding examinations or otherwise... and the powers in respect of appointment... ', and the Gram Sevak Rules are those that have come to be formulated pursuant to powers under Section 323 read with Sub-section (3) of Section 203 of the Act. It is true that Rule 8 in both the Board Rules and the Selection Committee Rules contemplates issuance of instructions by the Board to the Selection Committee for its guidance in the discharge of or relating to its functions. But Rule 23 of the Gram Sevak Rules makes it competent for the Board 'to issue necessary instructions in regard to the conduct of written examination and selection of the candidates under these rules'. The selection process will include the oral interview. In our view, the Gram Sevak Rules having been formulated specifically under Section 323 read with Sub-section (3) of Section 203 of the Act to govern the recruitment and selection of Gram Sevaks, must hold the field and instructions on the relevant aspects ought to have been more appropriately issued invoking Rule 23 of the Gram Sevak Rules. But without annexing significance to the quoting of the Rules, we are prepared to take it that the instructions dated 9-10-1980 relied on by the respondents could have source in Rule 23 of the Gram Sevak Rules also.
5. Then the question that relevantly engages our attention is when the Gram Sevak Rules, specifically formulated pursuant to powers under Section 323 read with Sub-section (3) of Section 203 of the Act have comprehensively spoken on the subject of recruitment to the post of Gram Sevak by holding written examination and oral interview and if nothing is found expressed in the Gram Sevak Rules with reference to prescription of minimum qualifying marks for oral interview, could there be issuance of instructions practically over-riding such rules. Rules 15, 16, 17 and 18 of the Gram Sevak Rules are relevant and they stand extracted as follows :
'15. Result of Examination :- On receipt of the result of examination, Secretary of the Committee shall place it before the Committee who shall publish the same on the Notice Board. The minimum standard of passing in the written examination shall be determined by the Committee from time to time.
16. Oral interview :- There shall be oral interview of 10 marks from amongst the candidates whose results have been declared under Rule 15. Candidates not exceeding five times, the number of vacancies to be filled shall be called by the Committee for oral interview strictly according to the marks obtained in the written examination.
17. Committee to assign marks for oral interview to candidates :- There shall be oral interview of 10 marks.
18. Committee to prepare selection list :- After the candidates have been interviewed a selection list which shall cover up the existing vacancies and future vacancies, as notified by the District Panchayat shall be prepared by the Committee in order of merit on the basis of the total number of marks secured in the written examination and oral interview. While preparing this selection list, the number of seats shall include the names of the candidates reserved for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class Candidates. In doing so if as per reserved quota number of Scheduled Castes and Scheduled Tribes candidates are not available sufficient for selection in the selection list, the Committee may add to this list such candidates from amongst the Scheduled Castes and Scheduled Tribes candidates who have passed the written examination and oral interview as may be necessary even though on merit the candidate rank lower'.
As we could see from the extracts made above, Rule 15 enables the prescription of the minimum standard of passing in the written examination as shall be determined by the Selection Committee. Rule 16 speaks about oral interview of 10 marks from amongst the candidates whose results have been declared under Rule 15, and further lays down the strength of the candidates who should be called for oral interview. Rule 17 enables the Selection Committee to assign 10 marks for oral interview. The main part of Rule 18 speaks about the preparation by the Selection Committee of the select list in order of merit on the basis 'of the total number of marks secured in the written examination and oral interview' (italic by us to emphasise). Nowhere in these rules we find a power conferred either on the Board or the Selection Committee to prescribe a minimum qualifying marks for oral interview.
6. In such a contingency, can the instructions dated 9-10-1980 prescribing the minimum qualifying marks for oral interview, be it so issued under Rule 8 of the Board Rules and/or the Selection Committee rules or deemed to have been issued under Rule 23 of the Gram Sevak Rules, over-ride or detract or add to or supplement what have been already prescribed under the Gram Sevak Rules covering the recruitment examination to the post of Gram Sevak. We have already seen that Section 203(3) of the Act enables the state Government to make rules, regulating the mode of recruitment either by holding examinations or otherwise... and the powers in respect of appointments. The Gram Sevak rules are those specifically formulated for such purposes concerning the post of Gram Sevak. As we have already analysed, the Gram Sevak Rules are exhaustive and comprehensive on the subject. While for written examination, there is a power for the Selection Committee to fix the minimum standard of passing, no such power is reserved for any authority concerning oral interview. On the other hand, there is only allocation of marks of 10 for oral interview. Rule 18 speaks about totalling up of marks secured in the written examination and oral interview. The Gram Sevak Rules, being statutory and they being imperative the Authorities are bound by them. The Authorities are not free to make stipulations and prescriptions as they think fit and proper. All the instructions under any rule whatsoever must conform to the statutory rules. There is a legal compulsion on the Authorities to confirm to, to adhere to, and to comply with prescriptions settled by the statutory rules. There is no escape from this position. Taking not of instructions dated 9-10-1980, relied on by the respondents we are not in a position to annex any weightage to it, for the simple reason that it does not conform to the prescriptions under the Gram Sevak Rules. It is also not possible to enter into a theory that the instructions is only supplementary to the Rules. Here the entire process of recruitment examination to the post of Gram Sevak has been comprehensively settled by the Gram Sevak Rules and they alone must speak and have spoken on the subject. All the powers, prescriptions and processes have got to be gleaned only from the Gram Sevak Rules and any instruction issued either under Rule 23 of the Gram Sevak Rules or under Rule 8 of the Board rules or the Selection Committee Rules cannot over-ride or detract or supplement or extend or enlarge them.
7. Our thinking on the above lines is not a new one and it has already found expression in the pronouncements of the Apex Court. It will be in order if we first refer to the pronouncement of Apex Court in P. K. Ramachandra Iyer v. Union of India, 1984 (2) SCC 141, where the Apex Court was concerned with the scope of recruitment rules governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research. There the Agricultural Scientist Recruitment Board (A. S. R. B.) was required to select candidates by holding competitive examination and viva voce test. A. S. R. B. prescribed minimum qualifying marks which a candidate must obtain at the viva voce test, before this name could be included in the merit list. The question that fell for consideration was whether A. S. R. B. was competent to prescribe such a minimum? Accepting the contention that A. S. R. B. has no such power, the Apex Court observed at pages 180-181 as follows :
'Neither Rule 13 nor Rule 14 nor any other rule enables the A. S. R. B. to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such powers in the A. S. R. B. when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which A. S. R. B. prescribed to itself, namely, that the candidate must have a further qualification of obtaining minimum marks in viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the rules. By necessary inference, there was no such power in the A. S. R. B. to add to the required qualification. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm.
8. Again in Umesh Chandra Shukla v. Union of India, 1985 (3) SCC 721, the scope for Delhi Judicial Service Rules, 1970 came up for consideration before the Apex Court. The Selection Committee apparently thought that it has got power to exclude candidates securing less than 600 marks in aggregate as not being suitable for appointment to the Judicial Service. Accordingly, it excluded all such candidates from the select list. It was contended that the Selection Committee would be competent to prescribe a minimum standard which a candidate should cross in the viva voce test in order to be suitable for appointment to judicial posts. This contention was repelled and the relevant observations at pages 735, 736 run as follows :
'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 600 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 it sown 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 are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service. It is not necessary to consider in this case whether any other reason such as character, antecedents, physical fitness which may disqualify a candidate from being appointed to the Delhi Judicial Service may be taken into consideration by the Selection Committee while preparing the final list. But on going through the rules, we are of the view that 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 prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix. The question whether a candidate included in the final list prepared and forwarded by the Selection Committee may be appointed or not is a matter to be considered by the appointing authority. In the instant case the decision that a candidate should have secured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee. Moreover recruitment of persons Service as required to be made under Art. 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court. Article 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of persons Services as it has been expressly dealt with in Art. 234 of the Constitution. We are of the view that the Selection Committee has no power to prescribe the minimum marks which candidate should obtain in the aggregate different from the minimum already prescribed by the rules in its Appendix. We are, therefore, of the view that the exclusion of the names of certain candidates, who had not secured 600 marks in the aggregate including total marks obtained at the viva voce test from the list prepared under Rule 18 of the Rules is not legal'.
9. In Durgacharan Misra v. State of Orissa & Ors. 1987 II CLR 245, the question of exclusion of the petitioner before the Apex Court, in the selection process by the Orissa Public Service Commission under the Orissa Judicial Service Rules, 1964, came up for consideration and the reason for exclusion of the petitioner there was made explicit by saying that the Public Service Commission took a decision that the candidate suitable for the post in question should secure at least 30% at the viva voce test and this decision was taken on the advice of the Judge of the High Court. The Orissa Judicial Service Rules, 1964 were analysed by the Apex Court and it was found that the said rules did not prescribe any such minimum marks to be secured at viva voce test and after referring to the earlier pronouncements which we have adverted as above, and also excluding the theory that there could be an advice in this behalf by the Judge of the High Court, who was present during the final viva voce test, the Apex Court held the decision of the Public Service Commission to prescribe the minimum marks to be secured at the viva voce test to be illegal and without authority. The significance of the statutory rules was discussed by the Apex Court and it was opined that the Public Service Commission must faithfully follow the rules, and select the candidates in accordance with the rules, and it cannot prescribe additional requirements for selection either as to eligibility or as to suitability.
10. The above being the proposition of law settled by the Apex Court, we do not think that there is a possibility for the respondents to get out of it and take over under the prescription which has come through the instructions and which instructions do not conform to the Gram Sevak Rules, but go beyond them. As pointed out by the Apex Court the selection process must adhere to the statutory rules and there cannot be a prescription of any additional requirement for selection either as to legibility or as to suitability. In view of above discussion, we are obliged to countenance the pleas of the petitioner.
11. Then the question that relevantly arises for our consideration is what is the relief that we should accord to the petitioner. The petitioner has specifically claimed in the petition that having had fared well in the written examination he had secured serial No. 4, and as regards the oral interview, he answered the questions properly and on the basis of his above performances, he had legitimate expectation of getting selected for the post of Gram Sevak. The respondents have not cared to file any reply to this case of the petitioner either before the learned single Judge or before us. In our view, the Petitioner should have got selected for and got the post, but for the fact that this unreasonable and unauthorised element, conceived of by the respondents had come in the way. In fairness and in equity, the petitioner must be accommodated. Then we should not loose sight of the events, which should have intervened. It is here, we feel obliged to take a pragmatic view, taking into consideration all the relevant facts and circumstances. The interview took place in 1984. Now we are in 1993. We are told that the select list prepared took 59 persons. These persons who are included in the select list would have got at the posts and would have progressed in service. We do not propose to upset the entire set up and in our view it would be reasonable and appropriate if we direct the respondents to accommodate the petitioner in the post of Gram Sevak, deeming his date of appointment as coming after the last of the appointees from the select list. Then taking up the question of back emoluments and service position, nothing is positively stated before us, by the petitioner that he was not earning otherwise. It would be in order not to mulct the respondents with the obligation to pay emoluments to the petitioner from the deemed date of appointment. Equally so, having given the petitioner, accommodation as the last of the appointees, the petitioner shall take his seniority after the last appointee from the select list. The service position of the petitioner shall be worked out only on that basis, and all other service benefits on that basis shall be given to him. The petitioner shall be given the posting within a period of eight weeks from the date of the receipt of this writ. Giving directions as above, this Letters Patent Appeal is allowed. We make no order as to costs.
12. Here we must note that Miss Rekha M. Doshit, learned counsel for the respondents would suggest that in view of our countenancing the case of the petitioner on the point, we only show the indulgence of re-opening the entire selection process. We do not think that we could at this point of time adopt the process and it will disturb the entire set up. We have not proposed to do so, and our reasons are as expressed above.