SINGH, J.


These three civil appeals directed against the judgment of the High Court of Allahabad and four writ petitions filed under Article 226 of the Constitution raise common questions of law relating to determination of seniority of members appointed as Munsifs in the Uttar Pradesh Nyayik Seva as a result of competitive examinations of 1970, 1972 and 1973 held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 (hereinafter referred to as the Rules). Since the appeals and the petitions raise common questions of law they have been heard together and are being disposed of by a common judgment


2. On September 3, 1970 a notification was issued by the Public Service Commission inviting applications for recruitment to 85 posts of Munsifs. In this examination 918 candidates appeared, out of whom 294 candidates on the basis of their marks in written papers, were called for viva voce test. After completion of the written and viva voce tests, th

e Commission submitted a list of approved candidates to the government on October 25, 1971 recommending the names of 46 candidates for appointment to the service, which shall hereinafter be referred to as the first list of 1970 examination. On receipt of the list of 46 candidates the State Government requested the Commission to recommend some more candidates for appointment to the service as there was shortage of Munsifs, and it further suggested that the minimum of 40 per cent marks in the aggregate may be reduced to 35 per cent. The Commission agreed to the State Government's suggestion and thereafter it forwarded another list of 33 candidates on April 25, 1972 for appointment to the service which shall hereinafter be referred to as the second list. This list included those who had obtained 35 per cent marks in the aggregate, as well as 35 per cent marks in viva voce. All the 79 candidates, as recommenced by the Commission in the aforesaid two lists were appointed to service by different notifications issued between May 1972 to June 12, 1973. On July 17, 1973 a notification was issued determining inter se seniority of all the 79 candidates appointed on the basis of 1970 examination in accordance with their position in the list prepared by the Commission under Rule 19 of the Rules. Meanwhile, the Public Service Commission held another competitive examination for appointment to the 150 posts of Munsifs which shall hereinafter be referred to as the 1972 Examination. The written test was held in November 1973 and the result was declared on June 26, 1974. The Public Service Commission forwarded a list of 150 successful candidates to the government for appointment to the service under Rule 19 of the Rules and all those candidates were appointed to the service on different dates between 1975 to 1977


3. Some of the unsuccessful candidates of the 1970 Examination made representation to the State Government for considering their case for appointment on the basis of their aggregate marks irrespective of their low marks in the viva voce. The State Government by its letter dated July 24, 1973 requested the Commission that in view of the shortage of Munsifs in the State and since in view of the amendment of Rule 19 it was no longer necessary for a candidate to qualify independently in the viva voce, it may reconsider the result of the examinations of 1967, 1968, 1969 and 1970 and approve all those candidates for appointment to the service who might have obtained 40 per cent of marks or more in the aggregate even if they might have failed to secure the minimum marks in the viva voce test. The Commission refused to consider the proposal of the government, as the minimum marks prescribed by the Commission under the then existing proviso to Rule 19 could not be ignored in judging the suitability of a candidate. In spite of the Commission's refusal the government pursued the matter further, and it convened a meeting of the Chief Minister, Chief Justice of the High Court and the Chairman of the Public Service Commission on May 3, 1974. At that meeting it was decided that in view of the immediate need for Munsifs the Public Service Commission should be requested to recommend such candidates of 1967, 1968, 1969 and 1970 examination who might have secured 40 per cent or more marks in the aggregate, but could not qualify in the viva voce. The committee took the view that after the amendment of Rule 19 it was not necessary for a candidate to qualify in the viva voce test and therefore he could be appointed to the service if he had got 40 per cent or more marks in the aggregate. In pursuance of the decision taken by the said high level committee the government by its letter dated May 10, 1974 requested the Commission to forward the application forms and the marks obtained by the unsuccessful candidates of the examinations held during the years 1967, 1968, 1969 and 1970 who might have got 40 per cent or more marks in the aggregate but might not have qualified in the viva voce. The letter enclosed a note containing the decision taken by the high level committee. The Commission by its letter dated June 19, 1974 informed the government that the application forms and other particulars of the unsuccessful candidates of 1967, 1968 and 1969 examination had been destroyed, and therefore the Commission was unable to forward the names of candidates of those examinations as desired by the government. But the Commission forwarded with a covering letter dated June 19, 1974 a list of 37 candidates of the 1970 Examination who had obtained 40 per cent or more marks in the aggregate but who had failed to secure 35 per cent qualifying marks in the viva voce which shall hereinafter be referred to as the III list. The Commission's letter contained a note that the candidates mentioned therein had obtained 40 per cent or more marks in the aggregate but they had not been found suitable by the Commission. This III list contained the names of Rafiquddin and 36 others, who were unsuccessful at the 1970 Examination who will be referred to hereafter as the "unplaced candidates" of the 1970 Examination. On receipt of the III list of the "unplaced candidates" the State Government after obtaining approval of the High Court issued a notification dated August 19, 1975 appointing 21 candidates out of the list of 37 candidates as Munsifs with a note that the appointments were being made on the basis of the 1970 Examination conducted by the Commission and the persons appointed were "unplaced candidates" with a further note that their seniority would be determined later on. Out of the list of 37 candidates forwarded by the Commission under its letter dated June 19, 1974 the State Government found that the remaining 16 persons who had been unsuccessful at the 1970 Examination had again appeared in the 1972 Examination and they had been selected and appointed to the service. Therefore, the government requested the Commission to select 16 more candidates from the 1972 Examination. In pursuance of the government's request the Public Service Commission by its letter dated July 14/15, 1976 forwarded another list of 16 candidates who had appeared in the 1972 Examination for appointment to the service


4. In March 1977 the State Government published a seniority list of successful candidates of the competitive examination of 1970. The "unplaced candidates" belonging to the III list of the 1970 Examination made representation to the High Court for determining their seniority in accordance with Rule 22 of the Rules on the footing that they were recruited to the service in pursuance of 1970 Examination and therefore they were entitled to the seniority as candidates belonging to the examination held in 1970 irrespective of their appointment being made in 1975. They claimed that they were senior to those who had been recruited to service in pursuance of 1972 Examination as well as to those who had been recruited to service earlier to them in pursuance of the 1970 Examination who were appointed in service in pursuance of I and the II lists of 1970 Examination but who had secured lower marks in the aggregate. Their representation was rejected by the High Court as well as by the State Government as in their view the "unplaced candidates" were unsuccessful in the competitive examination of 1970, their appointment was not in accordance with the Rules and as such they were not entitled to seniority of 1970. Rafiquddin and 16 other "unplaced candidates" filed Writ Petition No. 1303 of 1979 under Article 226 of the Constitution before the High Court of Allahabad for quashing the decision of the High Court and the State Government rejecting their representation and also for the issue of a writ of mandamus directing the High Court to confirm the petitioners and to grant them seniority of 1970, and to rearrange the seniority of Munsifs appointed in service in pursuance of 1970 Examination in order of merit on the basis of the aggregate marks obtained by each of the candidates at the said examination. A Division Bench of the High Court consisting of M. N. Shukla and K. M. Dayal, JJ. by their judgment dated March 31, 1982 allowed the writ petition on the finding that the unplaced candidates were appointed in service on the basis of the result of 1970 Examination. The Bench quashed the seniority list and issued a direction to the State Government and the High Court to prepare the seniority list of candidates of the 1970 Examination afresh in accordance with Rule 22 read with Rule 19 of the Rules and to confirm and promote them in accordance with the seniority list so drawn. The State of Uttar Pradesh has preferred Civil Appeal No. 4023 of 1982 against the judgment of the Division Bench. Civil Appeal No. 4024 of 1982 has been preferred by Sushil Kumar Srivastava and others against the aforesaid judgment of the Division Bench. It should be stated here that D. P. Shukla and three other unsuccessful candidates at the 1970 Examination had filed another writ petition - Writ Petition No. 4261 of 1974 in the High Court of Allahabad under Article 226 of the Constitution raising the grievance that even though they had secured higher marks in the competitive examination than those appointed to the service yet they were discriminated against, as they had not been appointed to the service instead 37 candidates "belonging to the III list" were appointed although they had obtained lower marks. Another Division Bench of the High Court consisting of Satish Chandra, C.J. and A. N. Verma, J. by its judgment dated March 30, 1982 dismissed the said writ petition on the ground that since the petitioners therein had failed to secure minimum qualifying marks in the viva voce they were not entitled to selection. Civil Appeal No. 3736 of 1982 has been preferred by the unsuccessful petitioners against the aforesaid judgment


5. In addition to the aforesaid three civil appeals four writ petitions have also been filed raising the same controversy. Writ Petition No. 4636 of 1982 has been filed in this Court under Article 32 of the Constitution by Chandra Prakash Agarwal an unsuccessful candidate at the 1970 Examination, challenging the appointment of those who had failed to secure less than 40 per cent marks in the aggregate. Sushil Chand Srivastava a member of the service appointed in pursuance of the 1972 Examination has also filed Writ Petition No. 12818 of 1984 under Article 32 of the Constitution challenging the validity of the appointment of "unplaced candidates" of the 1970 Examination belonging to the III list which include Rafiquddin and others on the ground that their appointment was illegal and for that reason they could not be treated senior to him. R. P. Lavaniya a member of the service who was recruited in pursuance of the 1973 Examination has also filed Writ Petition No. 1347 of 1984 under Article 32 of the Constitution claiming seniority over respondents 3 to 15 to the writ petition who had been recruited in service in pursuance of the 1972 Examination and appointed in service after the petitioner's appointment. P. N. Parashar and 11 others who had been recruited to the service in pursuance of the 1972 Examination filed a writ petition under Article 226 of the Constitution before the High Court of Allahabad being Writ Petition No. 5409 of 1982 challenging the seniority list prepared in pursuance of the judgment of the High Court in Writ Petition No. 1303 of 1979 (Rafiquddin v. State of Uttar Pradesh), on the ground that the "unplaced candidates" of the 1970 Examination were not entitled to seniority over the candidates of the 1972 Examination as they had been appointed to service earlier in time. That writ petition was transferred to this Court. Three civil appeals and four writ petitions including the transferred petition have been heard together at length


6. The U.P. Civil Service (Judicial Branch) Rules, 1951 that is, the Rules have been framed by the Governor under the proviso to Article 309 read with Article 234 of the Constitution in consultation with the U.P. Public Service Commission and the High Court which provide for recruitment to the service and lay down the conditions of service of personnel appointed to the U.P. Civil Service (Judicial Branch). Rule 3 provides that the Rules shall apply to Munsifs and Civil Judges. "Member of the service" as defined by Rule 4 means a person appointed in a substantive capacity "under the provisions of these Rules" or of the Rules in force previous to the introduction of these Rules to a post in the cadre of the service. Rule 5 provides that the strength of the service shall be determined by the Governor from time to time in consultation with the High Court of Judicature at Allahabad. It confers power on the Governor to increase the cadre by creation of additional or temporary posts as may be necessary. Rule 6 provides that recruitment to the service shall be made on the result of a competitive examination conducted by the Public Service Commission. Rule 8 lays down that the Governor shall decide the number of recruits to be taken in any particular year. Rule 15 provides for holding of competitive examination for recruitment to the service and it lays down that the examination may be conducted at such time and on such date as may be notified by the Commission and shall consist of written examinations in such legal and allied subjects including procedure as may be included in the syllabus prescribed in Rule 18 and an examination to test the knowledge of the candidate in Hindi, Urdu and also an interview to test the fitness of the candidates for appointment. Rule 18 prescribes syllabus for the competitive examination as contained in Appendix E. Appendix E provides that the examination will include written and viva voce test, it specifies the subjects for written test and the marks allotted to each subject. Clause 5 of Appendix E relates to the viva voce, and the notes appended thereto relevant for the determination of the question raised in these cases, are as under


5. Viva voce : The suitability of the candidate for employment in judicial service will be tested with reference to his record at school, college and in university and his personality, physique. The questions which may be put to him may be of a general nature and will not necessarily be of an academic or legal nature


Notes


(I) The marks obtained in viva voce will be added to the marks obtained in the written papers and the candidate's place will depend on the aggregate of both


(II) The Commission reserves the right to refuse to call for viva voce any candidate who has not obtained such marks in the two Law Papers as to justify such refusal or who does not satisfy the requirements of Rule 12(2) of the Rules


Rule 19 requires the Commission to prepare list of candidates approved by it and to forward the same to the government. Rule 19 as it stood in the year 1970 read thus


19. List of candidatesm approved by the Commission. - The Commission shall prepare a list of candidates who have taken the examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merit on the basis of their general suitability for the service


Provided that in making their recommendations the Commission shall satisfy themselves that the candidate -


(1) has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service;


(2) has obtained in the viva voce test such sufficiently high marks that he is suitable for the service


While preparing the list the Commission had to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify him for appointment to the service and further that he had obtained such sufficiently high marks in the viva voce test that he was suitable for the service. The position of the candidates in the list was to be determined on the aggregate marks obtained by a candidate both in written as well a viva voce test. Rule 21 provides that the Governor shall on receipt of the list prepared by the Commission consult the High Court and after into consideration the views of the High Court, select candidates for appointment from amongst those who stand highest in order of merit in the list if they are duly qualified in other respects. Rule 22 provides that the seniority of candidates shall be determined by the year of competitive examination on the results of which a candidate is recruited and his position in the list prepared under Rule 19. The Rules were amended by a notification dated January 31, 1972. After the amendment the Rules are known as the U. P. Nyayayik Seva Niyamavali 1951. Under the amended Rules the service has been designated as the U. P. Nyayayik Seva. It is not necessary to refer to all the amended provisions of the Niyamavali. After the amendment Rule 15 provides that the examination shall consist of written examination and interview to assess all round student career of the candidates and their personality, dress and general suitability. Rule 19 after the amendment reads as under


19. List of candidates approved by the Commission. - The Commission shall prepare a list of candidates who have taken the examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for the service


Provided that in making their recommendation the Commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service


A glance at the amended Rule 19 would show that the two clauses of the proviso have been omitted. Instead the new proviso to Rule 19 has been inserted which lays down that in preparing the list of the approved candidates the Commission shall satisfy itself that the candidate has obtained such aggregate of marks in the written test that he is qualified by his ability for appointment to the service. Now, after the amendment the Commission has no power to prescribe or fix any minimum marks qualifying for viva voce. Now it is not necessary for a candidate to be successful in the viva voce. Prior to the amendment a candidate could not be selected unless he had obtained minimum marks as fixed by the Commission in viva voce. The amended proviso of Rule 19 has dispensed with that requirement though viva voce test has been retained. It is not necessary to refer to other Rules as these are the only Rules which are relevant for the purposes of determining the controversy involved in these cases


7. The "unplaced candidates" of 1970 Examination claimed seniority of 1970 in terms of Rule 22 even though they were appointed in 1975. The State Government as well as the High Court rejected their claim as in their view the "unplaced candidates" formed a separate class as their recruitment to the service was made in special circumstances, even though they had been unsuccessful at the examination. The High Court on its administrative side rejected their claim for seniority whereupon Rafiquddin and other "unplaced candidates" approached the High Court on the judicial side by filing the writ petition under Article 226 of the Constitution challenging the order rejecting their representation. The Division Bench of the High Court constituting of M. N. Shukla and K. M. Dayal, JJ. held that the appointment of the "unplaced candidates" had been made in pursuance of the result of the competitive examination of 1970 and as such they were entitled to seniority of 1970 in accordance with Rule 22. The Bench further held that as the seniority in the service is determined on the basis of the year of the competitive examination the "unplaced candidates" belonging to the III list were entitled to be senior to those appointed to service on the basis of the result of the competitive examination of 1972 even though the "unplaced candidates" had been appointed to service later in time. As regards the inter se seniority of the candidates recruited to the service in pursuance of 1970 Examination the High Court held that the Commission had no authority to prescribe any minimum qualifying marks for viva voce and instead it should have prepared the list of successful candidates on the basis of aggregate marks secured by each candidate irrespective of the marks obtained by a candidate in viva voce. Adverting to proviso to Rule 19 the Bench observed : "It is true that the rule authorises the Public Service Commission to lay down such minimum marks but that it was so laid down prior to the holding of the examination of the year 1970 does not appear from the record. If any minimum marks were prescribed the candidate should have had notice of the same and only thereafter they could decide to appear or not to appear at the examination. The Public Service Commission cannot at its whim at any point of time without notice to the candidates fix minimum marks". On these findings the High Court directed that the merit list of 1970 recruits, should be drawn afresh on the basis of the aggregate marks secured by each candidate disregarding the qualifying marks fixed by the Public Service Commission for the viva voce test. The Division Bench directed that the seniority of the "unplaced candidates" include in the third list be re-fixed after rearranging the lists of candidates included in the I and II list on the basis of the aggregate marks. The effect of the judgment of the Bench has been that all those candidates who had been appointed to service in pursuance to the 1972 Examination have been made junior to the "unplaced candidates" of 1970 Examination although they were appointed much later. Further the seniority of regularly selected candidates and appointed to the service out of the I and II lists of the 1970 Examination is adversely affected on account of the rearrangement of the merit list as many of the unsuccessful candidates have become senior to those who had been included in the I and II list. Further the candidates who had passed along with the successful candidates of 1972 Examination also being unplaced candidates would go above all the candidates of the 1972 Examination including the candidates who had stood first in the 1972 Examination


8. After hearing the learned counsel for the parties at length and having given anxious consideration to the controversy raised in these cases, we are of opinion that the Division Bench completely misconceived the Rules and rendered the judgment in total disregard of the facts available on record. As discussed earlier the Rules entrust the Public Service Commission with the duty of holding competitive examination and recommending the names of suitable candidates as approved by it for appointment to the service on the basis of the proficiency shown by the candidates at the examination adjudged on the basis of the aggregate marks secured by them. The appointment to service is made from the list forwarded by the Commission to the State Government. Seniority in the service is determined on the basis of the year of the competitive examination irrespective of the date of appointment and the intense seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list. To recapitulate Rules 19, 21 and 22 as they stood during the year 1970 i.e. prior to their amendment is January 1972 were as under


19. List of candidates approved by the Commission. - The Commission shall prepare a list of candidates who have taken the examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merit on the basis of their general suitability for the service


Provided that in making their recommendations the Commission shall satisfy themselves that the candidate -


(i) has appointed such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service;(ii) has obtained in the viva voce test such sufficiently high marks that he is suitable for the service

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