Vijendra Kumar Verma V/S Public Service Commission Uttarakhand CIVIL APPEAL NO.8861 OF 2010(October 8, 2010)

REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8861 OF 2010
[Arising out of SLP(C) Nos. 12787-12788 of 2008]

Vijendra Kumar Verma .. Appellant
Versus
Public Service Commission,Uttarakhand & Ors. .. Respondents

JUDGMENT
Dr. Mukundakam Sharma, J.

1. By passing an order on 15.9.2010, we dismissed SLP(C) No. 12787 of 2008 which was connected with SLP(C) No. 12788 of 2008. SLP (C) No. 12787 of 2008 was dismissed as not pressed.
2. SLP(C) No. 12788 of 2008 was filed by the petitioners namely Shri Vijendra Kumar Verma and Shri Harendra Kumar Ozha. But so far as Shri H.K. Ozha is concerned, on his behalf a prayer was made to withdraw his name from the petition as he was appointed as a judicial officer in the State of Uttar Pradesh.

By an order passed on the same day i.e. 15.9.2010, we removed his name as petitioner from the said petition with a further direction that the aforesaid petition would be considered only so far as Shri Vijendra Kumar Verma is concerned.
3. After passing the aforesaid order, we proceeded to hear the learned counsel appearing for the parties and after hearing the parties at length, we reserved our orders.
4. Leave granted.

5. By this common judgment and order, we now propose to dispose of the appeal in terms of our discussion and reasons recorded herein. The selection of judicial officers for Uttaranchal Judicial Service is governed by a set of rules called the Uttaranchal Judicial Service Rules, 2005. The Rules deal with the procedure and mode of selection, recruitment and appointment in the Uttaranchal Judicial Service comprising group A and B posts. In Uttaranchal Judicial Service, there is a post called Civil Judge (Junior Division). Rule 8 of the said
Rules lays down the eligibility criterion that a candidate for direct recruitment to the service apart from holding qualification of Bachelor of Law must possess a thorough knowledge of Hindi in Devnagari script as well as the basic knowledge of computer operation.

6. Rule 8 reads as follows:-



"8. A candidate for direct recruitment to the Service

must be -



(a) A bachelor of Law from a University established

by law in Uttaranchal or any other University of

India recognized for this purpose by the

Governor.



(b) Must possess thorough knowledge of Hindi in

Devnagri script.



(c) Basic knowledge of Computer operation."




7. Rule 14 of the said Rules lays down that the examination



may be conducted at such time and on such dates as may be



notified by the Commission and the same would consist of a



written examination on such legal and allied subjects in the



syllabus prescribed under Rule 17, an examination to test the



knowledge of the candidate in Hindi and in English and an



interview for assessing the merit of the candidates.




8. Rule 17 provides that the syllabus and the Rules relating



to the competitive examination shall be such as given in



Appendix II. The said Appendix II contains the syllabus as well



as the individual aggregate marks to be allocated against



individual papers.




9. Rule 18 of the said Rules speaks of the manner and mode



of the preparation of the final list of the selected candidates in



order of their proficiency as disclosed by the aggregate of marks


4


finally awarded to such candidates in the written examination



and interview whereas Rule 19 makes a provision as to how on



submission of the final list of the candidates prepared by the



Commission, appointment is to be made to the Post of Civil



Judge (Junior Division). It provides that on receipt of the list of



candidates submitted by the Commission, the Governor shall



make appointment to the post of Civil Judge (Junior Division) in



the order in which their names are given in the list.




10. An advertisement was issued on 16.2.2006 inviting



applications from eligible candidates for filling up 50 posts of



Civil Judge (Junior Division). The appellant herein submitted



his application for one of the aforesaid posts. The appellant



appeared in the preliminary examination and he was declared



successful in the said examination on 16.9.2006.




11. Thereafter, he was called for the Viva Voce examination



also, but despite his appearance in the viva voce examination



and doing reasonably well according to his own estimation, he



was not selected and his name did not appear in the final list of



selected candidates. The appellant, however, came to know that



he received total of 576 marks together in written examination



and in viva voce examination and on the basis thereof in his



estimation he should have been selected as persons getting total



marks of 568 were inducted into the service. The appellant


5


submitted that to his knowledge and information he was not



selected because according to the respondents the appellant did



not have basic knowledge of computer operation. The reason for



non-selection of the appellant was also disclosed in the counter



affidavit filed on behalf of Respondent No. 1 against the writ



petition filed by the appellant. In the said counter affidavit, it



was stated that the appellant was to put to test for determining



and ascertaining as to whether he possessed the basic



knowledge of computer operation. It is also stated in the said



affidavit that an expert in the field of computer was associated



for determining, assessing and ascertaining the aforesaid fact



and it was found that the appellant did not possess basic



knowledge in computer operation. Therefore, he was not



selected.




12. The aforesaid writ petition was filed by the appellant



praying for declaration that since the respondents have



introduced a new selection criterion during the midstream of the



selection, therefore, the selection process was vitiated. It was



also submitted that the action of the respondents in failing the



appellant only on the ground that he did not have basic



knowledge in computer operation should be set aside and



quashed and that the appellant should now be inducted into the



service.




6


13. The aforesaid writ petition was heard by the Division



Bench of the Uttarakhand High Court and finally by the



impugned judgment and order dated 28.3.2008, the writ petition



was dismissed with certain observations contained in the said



judgment.




14. Being aggrieved by the aforesaid judgment and order, the



present appeal is filed by the appellant on which we heard the



learned counsel appearing for the parties.




15. Mr. Shyam Diwan, the learned senior counsel appearing



for the appellant submitted before us that no syllabus was ever



prescribed by the respondents for judging and ascertaining the



basic knowledge of the candidate in computer operation either



before the selection process was initiated or even at the time



when the advertisement was issued and therefore such a



syllabus could not have been introduced by the respondents in



the midstream of such selection process and therefore, the



action of the respondent, in introducing a benchmark at a



subsequent stage is without jurisdiction and the same is



required to be set aside.




16. It was also submitted by the learned counsel for the



appellant that the benchmark provided for judging the suitability



of the person in computer operation being vague and there being


7


no proper guidelines for adjudging the said competence and



suitability, failing the appellant only on the ground that he did



not have sufficient knowledge in basic computer operation was



uncalled for and unjustified and therefore the appellant should



be declared to have passed the examination as he had passed



even in the viva voce examination as he scored more than the



minimum marks obtained by the successful candidates.




17. The aforesaid submissions of the learned counsel



appearing for the appellant were refuted by the learned counsel



appearing for the respondents who has taken us through the



records and on the basis of which he submitted that the



respondents have all along spelt out that the candidate desiring



to be appointed to the aforesaid post of Civil Judge (Junior



Division) must have the basic knowledge of computer operation



and therefore the same was a part and parcel of the syllabus



which was known to each one of the candidates including the



appellant and therefore no grievance could be raised in that



regard.




18. It was also submitted by him that the appellant having



participated in the entire selection process and having specific



knowledge that he would be required to have basic knowledge in



computer operation and then having taken a chance therein by



appearing in the viva voce and facing the questions of the expert


8


on the computer operation, he cannot now turn back and take a



stand that the said selection process is vitiated.




19. In the light of the aforesaid submissions of the learned



counsel appearing for the parties, we have considered the



records. The advertisement inviting applications from eligible



candidates for filling up the posts was published in a newspaper



on 16.2.2006. In the said advertisement, conditions of eligibility



have also been mentioned in clause 4 wherein the essential



qualifications were prescribed. In clause 4(c), it was specifically



mentioned that the candidate should have basic knowledge of



computer operation. In clause 9 of the aforesaid advertisement,



it was stated that the candidate desiring to apply should read



the advertisement carefully and apply only if he is satisfied



regarding eligibility according to the conditions of advertisement.



In paragraph 12(4), it was also mentioned that only those



candidates would be called for interview who would be declared



successful on the basis of main examination (written



examination).




20. The candidates were thereafter called for the written



examination which was held from 17.1.2007 to 19.1.2007 and a



list of successful candidates in the written examination was



published by the Uttarakhand Public Service Commission on



26.4.2007. In the aforesaid notification which was published, it


9


was also mentioned that the aforesaid successful candidates in



the written competitive examination will have to establish that



they have sufficient knowledge of Hindi in Devnagari script and



basic knowledge of computer operation. It was further stated



that with regard to the basic knowledge of computer operations,



the candidates should have the knowledge of Microsoft



Operating System and Microsoft Office operation. Interview



letters were thereafter issued and in so far as the appellant is



concerned, his interview letter was dated 21.5.2007. In the said



call letter for the interview also, it was specifically mentioned



that basic knowledge of the computer operation would be



essential to the candidate and in connection with the basic



knowledge of the computer operation, knowledge of Microsoft



Operating System and Microsoft Office Operation would be



essential to the candidate and the said knowledge of the



candidate would be examined at the time of interview.



Therefore, the appellant knowing fully well about the



requirement of having basic knowledge of computer operation



went for his viva voce examination and gave the said test without



any protest or demur of the kind that is being raised in the writ



petition and before us.




21. The basic knowledge of the appellant in computer



operation was tested at the time of his interview by an expert




10


who was sitting with the interview members conducting the



interview. The said expert after testing the knowledge, the



suitability of the appellant and his basic knowledge in computer



operation gave his opinion that the appellant did not possess the



basic knowledge of computer operation. Since possession of



such knowledge of computer operation was one of the eligibility



criteria for being selected for the aforesaid post of Civil Judge



and as the appellant was not found suitable and lacking in basic



knowledge of computer operation, he was not selected. The



issue is whether such a course adopted by the respondent could



be said to be illegal, without jurisdiction and unheard of.




22. In support of his contention, the learned counsel appearing



for the appellant relied upon the decisions of the Supreme Court



in K. Manjusree Vs. State of Andhra Pradesh & Anr. reported



in (2008) 3 SCC 512. In paragraph 25 and 27 of the said



judgment, it was said that introducing minimum marks for



interview in the midstream of the selection process is illegal.




23. The counsel for the appellant also relied upon a judgment



of this Court in Hemani Malhotra Vs. High Court of Delhi



reported in (2008) 7 SCC 11 and Ramesh Kumar Vs. High


Court of Delhi & Anr. reported in (2010) 3 SCC 104 in support


of the contention that minimum benchmark provided for





11


selection during the midstream of the selection process is



without jurisdiction.




24. In our considered opinion, the reliance on the aforesaid



judgments by the counsel appearing for the appellant was



misplaced as in the present case the requirement and the



necessity for having basic knowledge of computer operation as



one of the eligibility criteria and conditions for selection is



prescribed in Rule 8 itself. The said clause was also specifically



mentioned in the advertisement issued making it clear to all the



intending candidates that they must have basic knowledge of



computer operation.




25. When the list of successful candidates in the written



examination was published in such notification itself, it was also



made clear that the knowledge of the candidates with regard to



basic knowledge of computer operation would be tested at the



time of interview for which knowledge of Microsoft Operating



System and Microsoft Office Operation would be essential. In



the call letter also which was sent to the appellant at the time of



calling him for interview, the aforesaid criteria was reiterated



and spelt out. Therefore, no minimum benchmark or a new



procedure was ever introduced during the midstream of the



selection process. All the candidates knew the requirements of



the selection process and were also fully aware that they must


12


possess the basic knowledge of computer operation meaning



thereby Microsoft Operating System and Microsoft Office



Operation. Knowing the said criteria, the appellant also



appeared in the interview, faced the questions from the expert of



computer application and has taken a chance and opportunity



therein without any protest at any stage and now cannot turn



back to state that the aforesaid procedure adopted was wrong



and without jurisdiction.




26. In this connection, we may refer to the decision of the



Supreme Court in Dr. G. Sarana Vs. University of Lucknow &


Ors. reported in (1976) 3 SCC 585 wherein also a similar stand


was taken by a candidate and in that context the Supreme Court



had declared that the candidate who participated in the selection



process cannot challenge the validity of the said selection



process after appearing in the said selection process and taking



opportunity of being selected. Para 15 inter alia reads thus:-



"15.... He seems to have voluntarily appeared

before the Committee and taken a chance of having

a favourable recommendation from it. Having done

so, it is not now open to him to turn round and

question the constitution of the Committee."





27. In P.S. Gopinathan Vs. State of Kerala and Others



reported in (2008) 7 SCC 70, this Court relying on the above



principle held thus;





13


"44. .....Apart from the fact that the appellant
accepted his posting orders without any demur in
that capacity, his subsequent order of
appointment dated 15-7-1992 issued by the
Governor had not been challenged by the
appellant. Once he chose to join the mainstream
on the basis of option given to him, he cannot turn
back and challenge the conditions. He could have
opted not to join at all but he did not do so. Now it
does not lie in his mouth to clamour regarding the
cut-off date or for that matter any other condition.
The High Court, therefore, in our opinion, rightly
held that the appellant is estopped and precluded
from questioning the said order dated 14-1-1992.
The application of principles of estoppel, waiver
and acquiescence has been considered by us in
many cases, one of them being G. Sarana (Dr.) v.
University of Lucknow......."




28. In Union of India and Others vs. S. Vinodh Kumar and


Others reported in (2007) 8 SCC 100 at paragraph 18 it was


held that it is also well settled that those candidates who had



taken part in the selection process knowing fully well the



procedure laid down therein were not entitled to question the



same. Besides, in K.H. Siraj vs. High Court of Kerala and


Others reported in (2006) 6 SCC 395 in paragraph 72 and 74


it was held that candidates who participated in the interview



with knowledge that for selection they had to secure prescribed



minimum marks on being unsuccessful in interview could not



turn around and challenge that the said provision of minimum



marks was improper, said challenge is liable to be dismissed on



the ground of estoppel.




29. Now, while deciding the submission of the counsel



appearing for the appellant that judging the suitability of the



14


candidate by laying down the benchmark of basic knowledge of



computer operation being sufficient or insufficient is vague, we



are of the opinion that possessing of basic knowledge of



computer operation is one of the criteria for selection and in



order to judge such knowledge, an expert on the subject was



available at the time when the candidate was facing the Interview



Board. In order to ascertain the candidate's knowledge of



computer operation, he put questions and thereafter he gave



remarks that the candidate has sufficient knowledge or that he



does not have sufficient knowledge.




30. It is also to be considered that the Indian judiciary is



taking steps to apply e-governance for efficient management of



courts. In the near future, all the courts in the country will be



computerized. In that respect, the new judges who are being



appointed are expected to have basic knowledge of the computer



operation. It will be unfair to overlook basic knowledge of



computer operation to be an essential condition for being a judge



in view of the recent development being adopted. Therefore, we



are of the considered opinion that requirement of having basic



knowledge of computer operation should not be diluted. We also



deem fit not to comment over the standard applied by the expert



in judging the said knowledge as the same is his subjective



satisfaction. However directions can be recommended to make




15


the procedure more transparent. The directions in respect of



same have already been given by the High Court we do not think



proper to prescribe the directions for the same separately.




31. The aforesaid procedure for testing the knowledge may not



be foolproof but at the same time it cannot be said that the same



was not reasonable or that it was arbitrary. Therefore, after



giving very thoughtful consideration to the issues, we are of the



opinion that the appellant has failed to make out any case before



us for interference with the orders passed by the High Court.



We find no merit in this appeal and the same is dismissed.







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

[Dr. Mukundakam Sharma]





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

[Anil R. Dave]



New Delhi,

October 8, 2010