HIGH COURT OF HYDERABAD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH, THROUGH ITS REGISTRAR GENERAL & ANR. ETC. versus P. MURALI MOHANA REDDY AND ORS. ETC. on 25 January 2019

HIGH COURT OF HYDERABAD FOR THE STATE OFTELANGANA AND STATE OF ANDHRA PRADESH,THROUGH ITS REGISTRAR GENERAL & ANR. ETC.

v.

P. MURALI MOHANA REDDY AND ORS. ETC.

(Civil Appeal Nos. 73-74 of 2019)

JANUARY 25, 2019

[A.K. SIKRI AND S. ABDUL NAZEER, JJ.]

Andhra Pradesh Judicial Service Rules, 2007 – r.6 –Absorption of Adhoc Judges on regular basis – In Brij Mohan Lalcase, Supreme Court prescribed the modalities and procedure forabsorption of Adhoc Judges on regular basis – It includedqualifying test as well as viva voce test – Pursuant thereto,appellant-High Court issued notification for the examination andheld the qualifying examination and also conducted interviews –All four respondents had secured the required minimum 40%/35%qualifying marks in the written examination – However, none ofthem had secured 40%/35% marks in the viva voce – Further, noneof them had secured 40%/35% marks in combined written test andviva voce examination – Respondents were considered notqualified for absorption on regular basis – Writ petition by therespondents – High Court took the view that Brij Mohan Lal casedoes not mention qualifying marks in viva voce and further pointedout that there was no stipulation for securing minimum qualifyingmarks in viva voce test either as per advertisement or as per theRules – On appeal, held: Brij Mohan Lal case does not lay downminimum qualifying marks for viva voce – It, however, prescribedqualifying marks in aggregate i.e. both for written examinationand interview combined – Insofar as Rules are concerned,minimum qualifying marks are mentioned for written examinationonly – Combined and cumulative effect of the judgment along withRules is that minimum qualifying marks were required for writtenexamination and no minimum qualifying marks were required forinterview, however, consolidated qualifying marks were requiredfor written examination and interview, which was 40% for generalcandidates and 35% for SC/ST/OBC candidates – In instant case,

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Aall the respondents obtained qualifying marks in writtenexamination, but none of them had secured qualifying aggregate/consolidated percentage marks – Thus, the respondents did notsecure consolidated qualifying marks (i.e. both in written plusinterview) as mandated by the Brij Mohan Lal case – Service Law –Andhra Pradesh State Higher Judicial Service Special Rules forBAdhoc Appointments, 2001.

Supreme Court-Directions – Andhra Pradesh Judicial ServiceRules, 2007 – Absorption of Adhoc Judges on regular basis –In Brij Mohan Lal case, Supreme Court prescribed the modalitiesand procedure for absorption of Adhoc Judges on regular basis –CPursuant thereto, appellant-High Court issued notification for theexamination and held the qualifying examination and alsoconducted interviews – All four respondents were considered notqualified for absorption on regular basis – Held: The respondentsdid not secure qualifying marks as per the judgment of the SupremeDCourt – However, considering the marks of the candidates, twocandidates had secured 99.7 and 99.3 marks as against the requiredmarks of 100 – Their marks rounded off to 100, considering thatthey were working as ad-hoc judges for number of years and alsothat it was only a qualifying examination for the purpose of

Conclusion

regularisation – Therefore, these two candidates/respondents to beEtreated as qualified – Insofar as other two candidates are concerned,they had secured 40%/35% marks in written examination thoughthey were not able to secure required aggregate marks – However,considering their substantial years of service and also the fact thatone of them belonged to SC category, who are supposed to secureFminimum qualifying marks of 30% in written examination as perRules – Thus, one more chance given to them to appear in writtenexamination and viva voce in accordance with mandate in BrijMohan Lal case – This direction given in exercise of powersu/Art.142 of the Constitution – Service Law – Constitution of India– Art.142 – Andhra Pradesh State Higher Judicial Service SpecialGRules for Adhoc Appointments, 2001.

Disposing of the appeals, the Court

HELD: 1. This Court is of the opinion that the judgment inBrij Mohan Lal’s case does not lay down minimum qualifyingH

marks for viva voce. It, however, prescribes qualifying marks inaggregate i.e. both for written examination and interviewcombined. [Para 17] [422-C]

2. Since the Court also directed that examination andinterview shall be held in accordance with the relevant Rulesenacted by the State for direct appointment to the Higher JudicialServices, such Rules were to be followed except to the extentthey stood modified by the modalities prescribed by the Court.For example, in the instant case, though Rule 6 of the Rulesprescribes 30% qualifying marks for SC and ST category inwritten examination. Thus, the candidates were required to obtainsuch qualifying marks in the written examination. At the sametime they were also mandated to secure consolidated qualifyingmarks (i.e. both in written plus interview) as prescribed inBrij Mohan Lal’s case. [Para 18] [422-D-E]

3. It follows that insofar as written examination and interviewis concerned, the minimum qualifying marks could be insistedupon if there was a stipulation to this effect in the Rules, inasmuchas there was no such direction in the judgment on this aspect.Further, insofar as Rules are concerned, minimum qualifyingmarks are mentioned for written examination only. A combinedand cumulative effect of the judgment along with the Rules wouldbe as under: (a) Minimum qualifying marks are required forwritten examination by general candidates and SC/ST/OBCcandidates respectively; (b) No minimum qualifying marks arerequired for interview. However, consolidated qualifying marksfor written examination and interview are required which is 40%aggregate for general candidates and 35% for SC/ST/OBCcandidates. [Para 19] [422-F-H; 423-A]

4. In instant case, all the respondents obtained qualifyingmarks in written examination. At the same time, none of themcould secure qualifying aggregate/consolidated percentagemarks. Insofar as non-securing of qualifying consolidated marksby the respondents is concerned, though the High Court has notedthis fact but has not touched upon this aspect at all. It has onlydealt with the aspect of requirement of minimum qualifying marksin viva voce test. [Para 20] [423-B]

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A5. Thus, faced with the situation where the respondentscould not secure qualifying marks as per the judgment of thisCourt. However, a close scrutiny of the marks obtained byrespondents would disclose that two candidates, have secured99.7 and 99.3 marks as against the required marks of 100. Theirmarks are rounded off to 100, going by the consideration thatBthey have been working as ad-hoc judges for number of yearsand also the fact that it was only a qualifying examination for thepurpose of regularisation. Therefore, these two candidates/respondents have to be treated as qualified the written test andinterview when their marks are aggregated. [Para 21] [423-C-E]C

6. No doubt, other two candidates could not secure 40%/35% aggregates marks and, therefore, they cannot be treated ashaving qualified the examination (consisting of written test andinterview). However, going by the finding they have, by this time,substantial number of years of service. Moreover, in the written Dexamination they could secure 40%/35% marks though they fellshort of this target when it comes to securing aggregate marksis concerned. It may also be pointed out that one of the candidatesbelongs to the Scheduled Caste category and as per the Rulespersons belonging to the SC/ST category are supposed to secure a minimum qualifying mark of 30% in the written examination.EIn such circumstances, it would be more appropriate to give themone more chance to appear in the written examination and vivavoce, which should be held by the High Court in accordance withthe mandate in Brij Mohan Lal’s case. This direction, therefore,is given having in mind the aforesaid equitable considerations,Fand in exercise of our powers under Article 142 of theConstitution. [Para 22] [423-F-H; 424-A]

Brij Mohan Lal v. Union of India & Ors.(2012) 6 SCC502 : [2012] 5 SCR 305 – relied on.

Umesh Chandra Shukla v. Union of India & Ors.G(1985) 3 SCC 721 : [1985] 2 Suppl. SCR 367 ;A. A. Calton v. Director of Education & Anr.(1983) 3SCC 33 ; K. Manjusree v. State of Andhra Pradesh &Anr. (2008) 3 SCC 512 : [2008] 2 SCR 1025 ;State ofBihar & Ors. v. Mithilesh Kumar (2010) 13 SCC 467:

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[2010] 10 SCR 161 ; Arunachal Pradesh PublicService Commission & Anr. v. Tage Habung & Ors.,(2013) 7 SCC 737 : [2013] 2 SCR 1134 – referred to.

From the Judgment and Order dated 25.03.2015 of the HighCourt of Judicature at Hyderabad, for the State of Telangana and theState of Andhra Pradesh in Writ Petition Nos. 38252 of 2014 and 38687of 2013

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V.V.S. Rao, Sr. Adv., Sudhanshu S. Choudhari, Ms. SurabhiGuleria, Sadineni Ravi Kumar, Guntur Prabhakar, Ms. Prerna Singh,Mrityunjai Singh (for S. Udaya Kumar Sagar) Mohit Paul, GowthamPolanki, Obhirup Ghosh, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. In these appeals, challenge is laid to thejudgment dated March 25, 2015 passed by the Division Bench of theHigh Court of judicature at Hyderabad, whereby two writ petitions filedby the respondents herein have been allowed. There are, in all, fourpersons who had filed these two writ petitions and who are appointed asAdditional District and Session Judges in the erstwhile State of AndhraPradesh (now States of Andhra Pradesh and Telangana) as Adhoc FastTrack Court District Judges.

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2. The issue of appointment of such Adhoc Judges came up forconsideration before this Court in Brij Mohan Lal v. Union of India &Ors.[1] whereby this Court prescribed the modalities and procedure to be Aundertaken for absorption of such Judges on regular basis. It includedqualifying test as well as viva voce test. Pursuant to these directions, theappellant herein, namely, High Court held the qualifying examination andalso conducted interviews. These four persons (hereinafter referred toas the ‘respondents’) were considered not qualified for absorption onregular basis. The respondents, feeling aggrieved by the decision of theBappellant, had challenged the same in the aforesaid two writ petitionswhich have been allowed in the following terms:

“31. In view of the aforesaid discussion, we hold that the decisionof the Selection Committee declaring that the petitioners and eachof them are not eligible to be absorbed for not securing theCminimum qualifying marks in viva voce or aggregate qualifyingmarks in written and viva voce is illegal and arbitrary. Therefore,we direct the respondents to appoint the petitioners and each ofthem as they have qualified in the written test and have also takenviva voce test. This appointment shall be made within a period ofDone month from the date of communication of this order, subjectto compliance with other formalities as required under law.”3. Some facts relevant for deciding the controversy, may now betaken note of:

Pursuant to the directions of this Court in Brij Mohan Lal’s caseEon the aspect of establishment and functioning of Fast Track Courts, theState of Andhra Pradesh created several Fast Track Court throughoutthe State of Andhra Pradesh. After establishing such Fast Track Court,the Government of Andhra Pradesh issued orders dated October 06,2003 appointing 20 advocates (19 advocates and 1 APP) from Bar onFad-hoc basis (in terms of Rules of Andhra Pradesh State High JudicialService Special Rules for Ad hoc appointment 2001) to preside over theFast Track Courts vide GOMs. No. 1798, dated October 06, 2003. Fromthe date of their appointment, the respondents and the similarly situatedpersons (all over the country) were claiming absorption permanently tothe post of District and Sessions Judge (Entry Level). Ultimately, thisGCourt in Brij Mohan Lal’s case directed all the States to conduct writtenexamination for the ad-hoc Fast Track Court District Judges, who wereappointed directly from the Bar and presiding/presided over the FastTrack Courts, and to initiate the process of selection for absorption ofthose officials. This Court in the aforesaid case also specified the mode H

HIGH COURT OF HYDERABAD FOR THE STATE OF TELANGANA& STATE OF A.P. v. P. MURALI MOHANA REDDY [A.K. SIKRI, J.]

and manner in which ad-hoc Fast Track District Judges are to be absorbedin the State Judicial Service. In nutshell, the relevant directions can besummarised:

(a) Written examination is to be conducted for 150 marks.

(b) Interview is to be conducted for 100 marks.

(c) Qualifying marks in the written examination shall be aggregate40% for general candidates and 35% for SC/ST/OBC candidates.

(d) Each of the appointees shall be entitled to one mark per yearof service in the FTCs, which shall form part of the interviewmarks.

4. In pursuance of the aforesaid directions, the High Court placedthe matter before the Committee of Judges constituted for recruitmentto the cadre of District Judges in the meeting held on August 09, 2012and the Committee resolved to issue a notification calling for applicationsfrom the working/former ad-hoc Fast Track Court District Judges forabsorption into regular cadre of Additional District Judges and directedto conduct a written examination with the syllabus that was given at thetime of conducting written examination for the post of District Judgeand to place the notification in the official website of Andhra PradeshHigh Court on August 13, 2012 calling for applications from working/former Adhoc Fast Track Court District Judges fixing the last date forreceipt of applications as August 31, 2012. It would be relevant to pointout that for appointment of Judicial Officers in the State, Andhra PradeshJudicial Services Rules, 2007 (hereinafter referred to as the ‘Rules’)were also in place. All the 19 Adhoc Fast Track Court District Judgessubmitted their applications. The High Court set up the mode ofexamination which comprised of Paper-I objective questions with multiplechoice for 50 marks (50 questions at the rate of one mark per question)and Paper-II subjective or narrative for 100 marks (5 questions, 20 marksper question) (Total duration for two papers-three hours) and viva vocefor 100 marks. It was also specified that in the written examination onehas to get minimum qualifying marks of 40% in aggregate for generalcandidates and 35% for SC/ST/BC candidates. Similarly, marks relatingto the completed years of service as Adhoc Fast Track Court DistrictJudges, were to be given to all the candidates.

5. Written examination was held on September 06, 2012.Thereafter, the answer sheets were evaluated. For conducting oral

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Ainterviews to the qualified candidates, the matter was placed before theCommittee of the judges in the meeting held on November 27, 2012.The Committee found that out of nineteen candidates, seventeen alonewere qualified for the oral interview and they were to be called forinterview. Accordingly, call letters were sent to those seventeencandidates to appear for oral interview. Two other candidates wereBpermitted to attend the oral interview in view of interim orders obtainedby them by filing writ petitions. After completion of interviews for 19candidates, a merit list was prepared, and the same was placed beforethe Committee. The Committee after considering the same found thattwelve candidates were eligible to be appointed as regular AdditionalCDistrict Judges. They have since been regularised.

6. As per the High Court, other seven candidates including thefour respondents, did not secure the required percentage of marks.Insofar as four respondents are concerned, who filed the writ petitions,the marks secured by them are noted hereunder:

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7. Vide impugned judgment, these writ petitions have been allowed by the High Court.

8. At this juncture, we would like to take note of the reasonswhich have weighed with the High Court in granting the relief to theGfour respondents. The High Court has taken note of the marks obtainedby these four respondents in the written examination as well as oralinterview, as mentioned above. On that basis, the High Court has itselfobserved that 40% qualifying marks in case of general candidates wouldbe 100 and in case of reserved candidates, it would be 87.5. Insofar aswritten examination is concerned, all the four candidates had secured H

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Minimsecure the minimum qualifying marks. However, none of them had secured40%/35% marks in the viva voce. Further, none of them had secured40%/35% marks in combined written test and viva voce examination.Precisely this was the reason for excluding the respondents from theconsideration zone from absorption as they could not secured thequalifying marks in viva voce test and aggregate qualifying marks of40%/35%. This approach of the appellant was questioned on the groundthat no such norm was published in the advertisement which was lateron stipulated unilaterally. Further, it was in derogation of the Rulesinasmuch as these Rules do not stipulate securing of minimum qualifyingmarks in the viva voce test. The appellant, on the other hand, sought tojustify the selection process in which respondents stood excluded, withthe submission that this process was followed strictly in accordancewith the judgment of this Court in Brij Mohan Lal’s case.

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9. The High Court has accepted the submission of the respondents.It observed that each of them qualified the written examination by securingthe minimum qualifying marks as per the stipulation given in theadvertisement, which was also in accordance with the Rules. Insofaras advertisement is concerned, following stipulation was inserted therein:

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10. Rule 6 of the Rules prescribed the methodology for conductingthe examination relevant portion whereof is as under:

“6. Methodology for conducting examination: (1) The High Courtfrom time to time shall notify the number of vacancies for thecategory of District Judges to be appointed by direct recruitmentindicating inter alia, the eligibility criteria, the syllabus, the numberof marks allotted for written examination, the qualifying mark to G

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be secured by a candidate, the number of marks allotted for theviva voce and the minimum to be secured therein by the candidate.

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Provided that owing to the contingency it shall be open to theHigh Court to conduct a screening test which shall be objectivetype before conducting the written examination followed up byBviva voce after duly notifying the same.

(2) While the written examination is meant to test the academicknowledge of the candidate, the viva voce is to test hiscommunication skills; his tact; ability to defuse the situations tocontrol the examination of witnesses and also lengthy irrelevantarguments and the like; and his general knowledge.

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(4) The written examination shall invariably carry 80 marks limitingthe viva voce to the remaining 20 marks.

Provided that the candidate shall secure a minimum qualifyingmark of 40% for O.C. category, 35% for B.C. category; and30% for S.C. and S.T. category in the written examination. (asamended by G.O.Ms.No.132, dated 16th November, 2011)

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11. The High Court, on the basis of the aforesaid stipulation in theadvertisement as well as in the Rules pointed out that there is no stipulationfor securing minimum qualifying marks in viva voce test either as peradvertisement or as per the Rules. Insofar as judgment in Brij MohanGLal’s case is concerned, the High Court took the view that it does notmention qualifying marks in viva voce and also clarifies that examinationand interview were to be held in accordance with the relevant Rulesenacted by the State for direct appointment of Higher Judicial Services.On that basis, the High Court concluded:

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“20. While reading the above pronouncement of Supreme Courtharmoniously with the Rule, we think the following procedurewould have been a fair one, as the said judgment has not ignored,rather accepted the relevant Rules:-

(i) Written test would be for 150 marks.

(ii) Viva voce would be for 100 marks.

(iii) Candidate has to secure minimum 40% qualifying marks inwritten test.

(iv) Candidate has to participate in viva voce test.

(v) Securing qualifying marks in viva voce or in aggregate are notthe requirements.

21. Therefore, we are of the view that the Selection Committeeshould not have adopted the norm of securing a minimum qualifyingmark in the viva voce test or for that matter, minimum aggregatequalifying marks.”

12. Regarding the move of the appellant in changing the criteriaafter issuing the advertisement, the High Court has held that it could notbe permitted and the discussion in this behalf proceeds as under:

“22. Moreover, it is rightly contended by the learned counsel forthe petitioners, relying on the aforesaid judgment of Supreme Courtin Umesh Chandra Shukla v. Union of India (3 supra) and A.A.Calton v. Director of Education (2 supra), that the respondentsand each of them cannot act contrary to the norms as published inthe advertisement or the Rules and admittedly, the advertisementdoes not stipulate a minimum qualifying mark for the viva vocetest or that of aggregate marks both in written and viva voce test.As the petitioners and each of them, in terms of the advertisementas well as the rules, have acted upon and that they acquired avested right to be considered in terms of the advertisement andthe rules.

23. It is not that the norms cannot be changed or varied, but thishas to be done in terms of the statutory rules. If they do not permit,the Selection Committee cannot lay down the same as it will beultra vires.

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A24. Moreover, as it appears from the original record producedbefore us, we find that the assessment was made on the basis ofminimum qualifying marks in the aggregate as well as in vivavoce tests and it does not appear that the aforesaid norms wereever published.”

B13. In support, the High Court has referred to various judgments[2].

14. We may mention at the outset that the High Court is right tothe extent that the appointments are to be made in terms of stipulationscontained in the advertisement. Though, such terms can be changed,but that has to be done in terms of statutory Rules. Insofar asadvertisement is concerned, there was no mention of securing minimumCqualifying marks in the viva voce test. The High Court is also right inpointing out that Rule 6 of the Rules does not contains any provision ofsecuring minimum qualifying marks in the interview. At the same time,it stipulates qualifying aggregate marks in written examination and vivavoce, as 40% for general category, 35% for backward category andD30% for SC/ST category in the written examination. This requirementof securing minimum qualifying marks in the written examination wasfulfilled by the respondents.

15. In the aforesaid backdrop, the only question remains to beseen is as to whether the approach adopted by the appellant was inconsonance with the modalities stipulated by this Court in Brij MohanELal’s case. The manner prescribed by this Court for appointment ofsuch ad-hoc judges on regular basis is contained in para 207.9 of thejudgment which makes the following reading:

“207.9. All the persons who have been appointed by way ofdirect recruitment from the Bar as Judges to preside over FTCsFunder the FTC Scheme shall be entitled to be appointed to theregular cadre of the Higher Judicial Services of the respectiveStates only in the following manner:

(a) The direct recruits to FTCs who opt for regularisation shalltake a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorptionGin the regular cadre of Additional District Judges.

2 Umesh Chandra Shukla v. Union of India & Ors., (1985) 3 SCC 721; A.A. Calton v.Director of Education & Anr., (1983) 3 SCC 33; K. Manjusree v. State of AndhraPradesh & Anr., (2008) 3 SCC 512; State of Bihar & Ors. v. Mithilesh Kumar, (2010)13 SCC 467 and Arunachal Pradesh Public Service Commission & Anr. v. Tage Habung& Ors., (2013) 7 SCC 737.H

HIGH COURT OF HYDERABAD FOR THE STATE OF TELANGANA& STATE OF A.P. v. P. MURALI MOHANA REDDY [A.K. SIKRI, J.]

(b) Thereafter, they shall be subjected to an interview by a SelectionCommittee consisting of the Chief Justice and four seniormostJudges of that High Court.

(c) There shall be 150 marks for the written examinationand 100 marks for the interview. The qualifying marks shallbe 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shallbe held in accordance with the relevant Rules enacted bythe States for direct appointment to Higher JudicialServices.

(d) Each of the appointees shall be entitled to one markper year of service in the FTCs, which shall form part ofthe interview marks.

(e) Needless to point out that this examination and interview shouldbe conducted by the respective High Courts keeping in mind thatall these applicants have put in a number of years as FTC Judgesand have served the country by administering justice in accordancewith law. The written examination and interview module, should,thus, be framed keeping in mind the peculiar facts andcircumstances of these cases.

(f) The candidates who qualify the written examination andobtain consolidated percentage as aforeindicated shall beappointed to the post of Additional District Judge in theregular cadre of the State.

(g) If, for any reason, vacancies are not available in the regularcadre, we hereby direct the State Governments to create suchadditional vacancies as may be necessary keeping in view thenumber of candidates selected.

(h) All sitting and/or former FTC Judges who were directlyappointed from the Bar and are desirous of taking the examinationand interview for regular appointment shall be given age relaxation.No application shall be rejected on the ground of age of theapplicant being in excess of the prescribed age.”

16. A conjoint reading of sub-para (c) and (f) of the methodologystipulated above would clearly bring out the following factors:

(a) Written examination was to be for 150 marks and interviewfor 100 marks.

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A(b) Such written examination and interview was to be held inaccordance with relevant Rules enacted by the State for directappointment to High Judicial Services.

(c) Each candidate was required to qualify the written examination.

(d) No qualifying marks for viva voce.

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(e) At the same time, candidates were supposed to obtain‘consolidated percentage as afore-indicated’, which means 40%aggregate and 35% for SC/ST/OBC candidates. Such consolidatepercentage means 40% and 35% respectively out of 250 marks.

C17. We are, therefore, of the opinion that even the judgment inBrij Mohan Lal’s case does not lay down minimum qualifying marksfor viva voce. It, however, prescribes qualifying marks in aggregate i.e.both for written examination and interview combined.

18. Since the Court also directed that examination and interviewDshall be held in accordance with the relevant Rules enacted by the Statefor direct appointment to the Higher Judicial Services, such Rules wereto be followed except to the extent they stood modified by the modalitiesprescribed by the Court. For example, in the instant case, though Rule 6of the Rules prescribes 30% qualifying marks for SC and ST categoryin written examination. Thus, the candidates were required to obtainEsuch qualifying marks in the written examination. At the same time theywere also mandated to secure consolidated qualifying marks (i.e. both inwritten plus interview) as prescribed in Brij Mohan Lal’s case.

19. It follows from the above that insofar as written examinationand interview is concerned, the minimum qualifying marks could beFinsisted upon if there was a stipulation to this effect in the Rules, inasmuchas there was no such direction in the judgment on this aspect. We findthat insofar as Rules are concerned, minimum qualifying marks arementioned for written examination only. A combined and cumulativeeffect of the judgment along with the Rules would be as under:

G(a) Minimum qualifying marks are required for written examinationby general candidates and SC/ST/OBC candidates respectively.

(b) No minimum qualifying marks are required for interview.However, consolidated qualifying marks for written examination and H

interview are required which is 40% aggregate for general candidatesand 35% for SC/ST/OBC candidates.

20. As noted above, all the respondents obtained qualifying marksin written examination. At the same time, none of them could securequalifying aggregate/consolidated percentage marks. Insofar as non-securing of qualifying consolidated marks by the respondents is concerned,though the High Court has noted this fact but has not touched upon thisaspect at all. It has only dealt with the aspect of requirement of minimumqualifying marks in viva voce test.

21. We are, thus, faced with the situation where the respondentscould not secure qualifying marks as per the judgment of this Court.However, a close scrutiny of the marks obtained by respondents woulddisclose that two candidates, namely, Sunitha Busireddy and S. SaradaDevi have secured 99.7 and 99.3 marks as against the required marksof 100. Insofar as Sunitha Busireddy is concerned, when the marks arerounded off, it has to be treated as 100 marks. Since, S. Sarada Devi isalso short by only 0.7 marks, there is no reason not to round off hermarks to 100 as well, going by the consideration that they have beenworking as ad-hoc judges for number of years and also the fact that itwas only a qualifying examination for the purpose of regularisation.Therefore, these two candidates/respondents have to be treated asqualified the written test and interview when their marks are aggregated.

22. No doubt, other two candidates could not secure 40%/35%aggregates marks and, therefore, they cannot be treated as havingqualified the examination (consisting of written test and interview).However, we find that they have, by this time, substantial number ofyears of service. Moreover, in the written examination they could secure40%/35% marks though they fell short of this target when it comes tosecuring aggregate marks is concerned. It may also be pointed out thatone of the candidates belongs to the Scheduled Caste category and asper the Rules persons belonging to the SC/ST category are supposed tosecure a minimum qualifying mark of 30% in the written examination.In such circumstances, it would be more appropriate to give them onemore chance to appear in the written examination and viva voce, whichshould be held by the High Court in accordance with the mandate in BrijMohan Lal’s case. This direction, therefore, is given having in mind the A

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Aaforesaid equitable considerations, and in exercise of our powers underArticle 142 of the Constitution. The High Court may hold such anexamination within a period of six months from today and during thisperiod these two persons shall also continue in service.

23. As a result, these appeals are disposed in the aforesaid terms.

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No order as to cost.

Ankit Gyan

Appeals disposed of.

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