SPA/37/2022 on 18 July, 2022

[Cites 20, Cited by 0]

Uttarakhand High Court

SPA/37/2022 on 18 July, 2022

1. The judgment rendered by Co-ordinate Bench of this Court was set aside by Hon'ble Supreme Court and, upon remand of the matter, these Special Appeals are being taken up for hearing. Since the judgment dated 14.12.2015 rendered by learned Single Judge in WPSS No. 1889 of 2015 and WPSS No. 2389 of 2015 have been challenged in these Appeals, therefore, these Appeals are being heard and decided together.

2. Special Appeal Nos. 656 of 2015 & 657 of 2015 have been preferred by employer; while, Special Appeal No. 37 of 2022 has been filed by persons, who were appointed pursuant to selection in question and had joined as Class-IV employee in the Bank; but, their services were subsequently terminated, in view of the judgment rendered by Co-ordinate Bench of this Court.

3. Learned Single Judge had allowed both writ petitions and had quashed the advertisement dated 21.10.2014 issued by Almora District Co-operative Bank 3 Ltd., whereby applications were invited for appointment against available vacancies on Class-IV post. The order passed by Registrar under Section 122 (3) of Uttarakhand Co-operative Societies Act, 2003, by which procedure for direct recruitment to Class-IV post was laid down, was also quashed on the ground that, selection based on interview alone is inherently bad, and against public policy as it gives unlimited subjective power to the Selection Committee.

4. Operative portion of the impugned judgment is reproduced below:-

"12. In view of this Court, this process is not a fair procedure at all. Once the entire criteria for selection is interview then it would mean that the Selection Committee has unlimited subjective powers as there is no objective criteria by which they can evaluate a candidate in the present case. This procedure is inherently bad and against public policy and cannot be allowed to stand by this Court. Even assuming for the sake of argument that Mr. Lalit Prasad has already participated in the interview and since he has already participated in the process cannot be allowed to challenge the legality and illegality of the procedure, as he has participated and having failed to qualify, cannot challenge the process. All the same, the second petitioner (Manoj Kumar) has not participated in the interview at all. What is challenged before this Court is a process which is patently illegal and unfair? Moreover, in view of this Court, even Mr. Lalit Prasad though has participated in the selection process but it cannot be said that he has failed to qualify as the result of the selection process are not out as yet. He has definitely participated in the selection process but before the result could be announced, he has already challenged the selection process before this Court. In any case, since there is inherent flaw in the entire procedure itself and even if Mr. Lalit Prasad (petitioner in WPSS No.1889 of 2015) cannot challenge the selection procedure, another petitioner (Mr. Manoj Kumar in WPSS No.2389 of 2015) can very well do so. The writ petitions succeed and the advertisement dated 21.10.2014 and order dated 13.12.2013 passed by respondent No.2 are hereby quashed."

5. The judgment rendered by learned Single Judge is challenged mainly on two grounds, namely-

(a) As per law laid down by Hon'ble Supreme court there is no rule of thumb with regard to allotment of marks for interview and Hon'ble Supreme Court has held that sometimes, only interview is considered to be best method for selection to certain posts and the view to the contrary, taken in the impugned judgment, is unsustainable.

(b) Both the writ petitions which were allowed by impugned judgment were not maintainable, inasmuch as, petitioner in Writ Petition (S/S) No. 2389 of 2015 had not applied pursuant to the advertisement, thus, had no locus standi to challenge the selection process and petitioner in Writ Petition (S/S) No. 1889 of 2015 is estopped from challenging the criteria of selection, after applying pursuant to the advertisement, in which criteria of selection was also mentioned.

6. Regarding first ground of challenge, learned counsel for the appellants have relied upon a judgment rendered by Hon'ble Supreme Court in the case of Lila Dhar Vs. State of Rajasthan and others; reported in (1981) 4 SCC 159. Paragraph no. 6 of the said judgment, on which, reliance was placed by learned counsel for appellants, is reproduced below:-

"6. Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview-test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu, Ajay Hasia v. Khalid Mujib Sehravardi and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview-test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great a weight, to the interview-test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview-test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union Public Service Commission."

7. Reliance has also been placed by learned counsel for appellants upon another judgment rendered by Hon'ble Supreme Court in the case of Siya Ram Vs. Union of India and another; reported in (1998) 2 SCC 566. In the said judgment, while dealing with the challenge thrown 6 to a selection, in which 50% marks were allocated for interview, Hon'ble Supreme Court has held as under:-

9. Mr Gupta, learned counsel for the appellant, strongly relied on a decision of this Court in Ajay Hasia v. Khalid Mujib Sehravardi and on the following observations of the Tribunal:

"On the other hand the practice followed in the Railway Department is altogether different and for promotion from lower grade/post to higher post or post invariably trade tests and selection tests consisting of written examination and viva voce and sometimes viva voce tests alone have been prescribed. The ability of a person who is already in service can be better judged by his past performance in the Department and as such, insistence for viva voce test for each promotion can hardly be appreciated. In any case, the allocation of as high as 50% marks for viva voce test to judge the professional ability of a candidate may sometimes lead to arbitrariness and may not achieve the object behind it. Having different pattern or set of rules for service requiring technical skill may be justified but even for such services, for the sake of expediency interview test should not be relied upon as an exclusive test and the marks assigned for interview/personality test should be minimal to avoid charges of arbitrariness, bias and the like minimal as observed by the Hon'ble Supreme Court in Ajay Hasia v. Khalid Mujib and Javid Rasool Bhat v. State of J&K. In the matter of promotion for other services in the Railway Department, more importance has to be given to record of service and seniority than the professional ability to be judged at the time of interview. This will bring uniformity with the other departments of Government of India and minimise the chances of complaint as made in the present case. The rule under which the selection for the post of CPI has been made in the instant case, therefore, requires a change."

In Ajay Hasia case there was challenge to the validity of admission to the Regional Engineering College, Srinagar. On merits of the case various contentions were raised and it was submitted that marks obtained by the candidates at the qualifying examination were ignored and as many as 50 marks were fixed for viva voce examination as against 100 marks allocated for the written test and relying on viva voce examination as a test for determining comparative merit of the candidate was arbitrary. On the question of allocation of marks for oral interview this Court observed that allocation of as high a percentage as 33 1/3 of the total marks for the oral interview should be regarded as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure could not be sustained. This Court said that under the existing circumstances allocation of more than 15% of the total 7 marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. The principle laid by this Court in Ajay Hasia case is not of universal application in all circumstances and in all cases though the court also touched upon the excessive marks allocated for viva voce in recruitment and promotion in public employment. In Lila Dhar v. State of Rajasthan this Court considered the decision in Ajay Hasia case and explained the use of the expression "or even in the matter of public employment" in the context of allocation of marks for oral examination of the candidates seeking employment or promotion. In this case the High Court had struck down the selection for the post of Munsifs on that ground that more than due weightage was given to the interview test in that 25% marks were allocated to viva voce under the Rules and thus holding that the selection was arbitrary and violative of Articles 14 and 16 of the Constitution. This Court said that the words "or even in the matter of public employment" were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment in the public service and that the observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. The Court then went on to observe as under:

"Nor do we think that the Court intended any wide construction of their observation. As already observed by us the weight to be given to the interview-test should depend on the requirement of the service to which recruitment is made, the source-material available for recruitment, the composition of the Interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Article 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case."

10. This Court held that the selection for the post of Munsifs was valid and could not be struck down. It said that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public service. It said that in the case of service to which recruitment had necessarily to be made from persons of mature personality, interview test may be the only way and subject to basic and essential academic and professional requirements being satisfied and that subjecting such persons to written test might yield unfruitful and negative results. There cannot be any rule of thumb regarding the precise weight to be given and that it must vary from service to service 8 according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. The Court said that it was a matter for determination by experts and also a matter for research and that it was not for the Court to pronounce upon it unless exaggerated weight had been given with proven or obvious oblique motives."

8. Learned counsel for the appellants have also relied upon a judgment rendered in the case of Kiran Gupta v. State of U.P. and others, reported in (2000) 7 SCC 719, in which selection for appointment as teacher in Government Aided Schools in State of Uttar Pradesh was challenged on the ground that selection based on interview alone is arbitrary and illegal. However, challenge to the selection criteria was repelled by Hon'ble Supreme Court. Relevant extract of the said judgment is reproduced below:-

"22. It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for 9 interview does not arise. Therefore, we think it an exercise in futility to discuss these cases -- Minor A. Peeriakaruppan v. State of T.N. and Ajay Hasia v. Khalid Mujib Sehravardi -- relied upon by Mr Goswami, which deal with admission to educational institutions/schools and also cases where prescribed method of recruitment was written test followed by an interview -- Ashok Kumar Yadav v. State of Haryana; D.V. Bakshi v. Union of India and Krishan Yadav v. State of Haryana.

23. However, it will be apt to refer to the decision of a three-Judge Bench of this Court in Lila Dhar v. State of Rajasthan. There, the impugned selection for the posts of District Munsifs under the Rajasthan Judicial Service Rules was made by the Rajasthan Public Service Commission. The ratio of marks allocated for written test and interview was 75:25. Speaking for the Court, Justice O. Chinnappa Reddy pointed out:

"In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview-test must be minimal. Therefore, the ratio of the decisions in Peeriakaruppan and Ajay Hasia cases in this regard cannot be applied in case of services to which recruitment has necessarily to be made from persons of mature personality. In such services interview-test may be the only way, subject to basic and essential academic and professional requirements being satisfied".

That case has been consistently followed in various judgments of this Court. We refer to a few of them here.

24. In Keshav Ram Pal (Dr) v. U.P. Higher Education Services Commission, Allahabad referring to the view taken by this Court in Peeriakaruppan v. State of T.N. and Ajay Hasia v. Khalid Mujib Sehravardi that the importance to be attached to the interview-test must be minimal, this Court commented that in the case of services to which recruitment had necessarily to be made from persons of mature personality, interview-test might be the only way, subject to basic and essential academic and professional requirements being satisfied and that subjecting such persons to a written examination might yield unfruitful and negative results, apart from it being an act of cruelty to those persons.

25. In Anzar Ahmad v. State of Bihar for appointment to the posts of Unani Medical Officer the Government prescribed that the Public Service Commission shall select the candidates on the basis of interview. The Commission allocated 50% marks for academic qualification and 50% for interview. This 10 Court, after referring to the aforementioned cases and relying upon Lila Dhar case upheld the method of selection by interview alone. That decision was followed in A.P. State Financial Corpn. v. C.M. Ashok Raju. In that case also selection of candidates by interview without a written test was upheld by this Court. The posts of Managers in the A.P. Financial Corporation were to be filled by interview without a written test. The Corporation approved the promotion criteria by viva voce without a written test and allocated marks under various heads; among them for interview 25% and for length of service 15% marks were prescribed. A Division Bench of the High Court while upholding the allocation of marks under various heads, reduced the percentage of marks for interview from 25% to 15% and increased percentage of marks for length of service from 15% to 25%. On appeal this Court held that the High Court fell into patent error in reaching the conclusion that 25% marks for interview were, in the facts of that case, excessive. It was observed that there was no dispute that no written test was prescribed for promotion to the post of Manager and above and the selection/promotion was only by viva voce test, so no limit could be imposed for prescribing the marks for interview.

26. In Siya Ram v. Union of India one of the grounds of attack was that the rules regarding selection for the post of Chief Personnel Inspector in Railways, permitted only oral test in the form of viva voce and no written examination was held. It was contended that the result of a selection merely on the basis of viva voce could not be reasonably fair and was liable to lead to arbitrariness. There, out of 100 marks, 50 were allotted for professional ability without prescribing any norms. While rejecting the contention, this Court, following the Lila Dhar case held that at times for certain posts only interview was considered to be the best method of selection.

27. For all these reasons, we find no illegality in Rule 12(3) of the 1995 Rules providing for selection of suitable candidates based on their performance in the interviews for appointment to the posts of Principals/Headmasters."

9. From perusal of the aforesaid judgments, it is apparent that selection based on interview alone is permissible, especially when the selection is for appointment to a post from amongst persons of mature age and personality. The weightage to be given for interview may vary from service to service. 11

10. In the present case, there is no allegation of oblique motive against the Bank. There is nothing on record to show that selection based on interview alone was aimed at providing undue benefit to a particular individual. In fact, this selection criteria was decided by the Registrar, in exercise of his statutory power, and the Bank merely followed the direction of the Registrar. It is nobody's case that Registrar took the decision regarding selection criteria, in bad faith. Thus, the selection process cannot be said to be vitiated merely because interview was the sole criteria of selection

11. It can be noticed from the judgments rendered by Hon'ble Supreme Court that there can be no rule of thumb with regard to weightage of marks to be given for interview, as it depends on several factors and question of permissible percentage of marks for interview has to be decided on the facts of each case, and it is a matter for determination by experts and not for the Courts to pronounce upon it unless exaggerated weight had been given for interview with proven or obvious oblique motives.

12. Learned counsel for the appellants further contended that petitioner in Writ Petition (S/S) No. 2389 of 2015 had no locus standi, as he had not applied pursuant to advertisement dated 21.10.2014 nor he was 12 interested in the selection, as he filed writ petition in November, 2015, although, interview were held upto 25.04.2015, therefore, he cannot be said to be an interested person. This Court finds substance in the submission made on behalf of the appellants that petitioner in this writ petition had no locus to challenge the advertisement. In fact, in paragraph no. 20 of the writ petition, it is stated that "the matter is like a public interest, but, service matter cannot be challenged in a PIL". This shows that petitioner is an interloper, who had filed writ petition at the instance of someone else.

13. Learned counsel for the appellants questioned maintainability of Writ Petition (S/S) No. 1889 of 2015 also on the ground that petitioner had participated in the selection, despite stipulation in Clause 4 of the advertisement regarding selection criteria and had also appeared for interview, but subsequently, he turned around to challenge the advertisement. This Court finds force in the said submission also. Since petitioner applied pursuant to the advertisement in question, therefore, he is now estopped from challenging the selection criteria, after taking a chance in the selection, as held by Hon'ble Supreme Court in Manish Kumar Shahi v. State of Bihar, reported in (2010) 12 SCC 576 and Dhananjay Malik & 13 others vs. State of Uttaranchal & others reported in (2008) 4 SCC 171.

14. For the aforesaid reasons, we are of the considered opinion that the impugned judgment rendered by learned Single Judge is erroneous, which deserves to be set-aside and these Appeals deserve to be allowed and are hereby allowed.

15. Accordingly, the judgment dated 14.12.2015, impugned in these appeals is set-aside. Writ Petition (S/S) No. 1889 of 2015 and Writ Petition (S/S) No.2389 of 2015 are dismissed. Appellants in Special Appeal No. 37 of 2022, who were terminated from service consequent to the judgment rendered by Co-ordinate Bench on 09.08.2018, shall be re-instated with continuity of service and other consequential benefits, within two weeks from the date of production of certified copy of this order before the Appointing Authority. However, they shall be entitled to salary only from the date of their reinstatement.

_____________________ MANOJ KUMAR TIWARI, J.

___________________ ALOK KUMAR VERMA, J.

Dt: 18th July, 2022 AK/SB

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