Kerala High Court
Sreekumar vs Travancore Devaswom Board on 9 March, 1993
Equivalent citations: (1993)IILLJ504KER
JUDGMENT Balanarayana Marar, J.
1. The civil miscellaneous petitions and the original petitions are connected cases. The C.M. Ps. are filed by a devotee of the temples in Travancore and by the Kshetra Samrakshana Samithi. The O.P.s are filed by the candidates who appeared in the written examination conducted by the Travancore Devaswom Board for the post of Lower Division Clerks/Sub Group Officers. Petitioners challenged the written examination and the interview conductedby the Board. The averments in ail these petitions are more or less the same.
2. The facts: First respondent, the Travancore Devaswom Board (for short the Board) by proceedings dated September 8, 1991 decided to select Clerks-cum-Sub-Group Officers in the Board. Applications were invited by advertisement in Mathrubhoomi daily on September 23, 1991. 20152 applications were received out of which 19615 were found to be valid. The written examination was conducted on July 5, 1992 and a short list was prepared for interview. The; Board took a decision on August 11, 1992 to conduct an interview of persons who have secured 40 marks and above in the written examination. The interview was proposed to be conducted on August 20, 1992. In the meantime C.M.P. 2654/92 was filed under Section 105 of the Hindu Religions Institutions Act seeking a declaration that the proceedings for appointment are illegal and for a direction commanding the Board not to conduct the interview. By order dt. August 19, 1992 in CMP. 2654/92 this Court permitted the interview to go on, but directed that no appointment shall be made until further orders. This order was modified on August 25, 1992 by which it was directed that the results of the interview or the rank list shall not be published and that the results shall be kept in a sealed cover after the interviews are over to be dealt with in accordance with the final orders of this Court. The interview of the candidates who secured 40 marks and above in the written examination were completed and the result was produced before this court in a sealed cover.
3. Within a few days from the filing of C.M.P. 2654/1992, the other C.M.P. and the three original petitions were filed on the same averments and seeking more or less identical reliefs. In particular, the selection process is questioned as violative of the recruitment rules. The direction to write the name of the candidate and to subscribe his signature in the answer paper is stated to be a malpractice adopted by the Board. The decision to call for interview only those candidates who have secured above 40 marks in the written examination and the decision fixing minimum of 20 marks in the interview to make a candidate suitable for selection are also questioned. According to petitioners the selection process runs counter to the recommendation of the High Power Commission appointed by this Court and is in violation of the order passed on July 15, 1991 while considering the budget estimate for the year 1991-92. The main reliefs asked for are:
1, to quash the entire selection relating to the post of Lower Division Clerks/Sub Group Officers;
2. to declare the procedure followed for conduct of the examination and valuation as violative of all norms and fairplay;
3. to direct the Board to refrain from proceeding further in the matter of selection and
4. to conduct a fresh selection.
Incidental reliefs in the nature of a direction to the Board to produce before the court the select list and mark list and the answer papers are also claimed. Petitioner in O.P. 10831/92 seeks a direction to the Board for revaluation of his answer paper and to call him for interview on the basis of such revaluation.
4. The Board filed a counter affidavit in C.M.P. 2654/1992 raising the following contentions:
The existing vacancies in the cadre of Clerks/ Sub Group Officers were ascertained to be 28 and the anticipated vacancies as 16. A total number of 20152 candidates applied for the post, of which 19615 applications were found to be valid. The written test was proposed to be 1 conducted on June 21, 1992. Due to postal strike the test had to be postponed. It was conducted on July 5, 1992. Sri. C.N. Purushothaman Nair, Professor and Head of the Department, Commerce and Management, University of Kerala, was entrusted with the entire work concerning the written test including the preparation of the question paper, conducting the test and valuation. He had conducted the written examination in a fair and impartial manner. A short list was prepared for the purpose of interview as approved by the Board. On August 11, 1992 the Board decided that those who secured above 40 marks in the written test should be included in the short list for interview. The interview was conducted from August 20, 1992 to August 27, 1992. Altogether 707 candidates appeared for the interview. The Board has resolved to a fix a minimum of 20 marks for the interview to make a candidate suitable for selection. It was also decided that the final select list shall be prepared on the basis of aggregate marks obtained in the written test and the interview. While the candidates were being interviewed, the marks obtained in the written examination were not: available to the President and the Members of the Board. Marks were awarded in the interview on the performance of the candidates before the Board. In pursuance to the direction of this court the final select list signed by the President and the Members of the Board was kept in a sealed cover.
5. The Board has not violated any of the orders of this court or the provisions of the Travancore Hindu Religious Institutions Act or any of the rules framed under that Act. The vacancies notified were the vacancies which existed on November 30, 1990. The averment that the notification related to vacancies which were created by the Board after the order of this court dt. July 15, 1991 is therefore not true. The Board has not created any new post, nor has it made any attempt to make any appointment in violation of the order dt. July 15, 1991 in the matter of Travancore Devaswom Board's budget estimate for the year 1991-92.
6. There was no irregularity or illegality or any kind of malpractice whatsoever in the conduct of the written test and the preparation of the mark list. Adequate safeguards were taken by Dr. C.N. Purushothaman Nair to maintain the secrecy in the conduct of the written test and no kind of malpractice was done or caused to be done by him in this respect. The written test and the interview were conducted in accordance with the rules. The instruction in the question paper that the applicant should write his name, register number and signature in the answer book cannot be interpreted to perpetrate malpractice in the matter of selection and appointment.
7. The same counter affidavit was adopted in SC.M.P. 2812/92 and O.Ps 10704 and 10831/1992. A separate counter affidavit was filed by the Board in O.P. 10935/92, but the contentions raised therein are also similar. The Board wanted that counter affidavit as one sworn to for 9 the purpose of the other cases as well.
8. Since the two civil miscellaneous petitions and the three original petitions are connected, they are heard together. Heard counsel on both 5 sides.
9. The process of selection to the post of Lower Division Clerk/Sub Group Officer is challenged mainly on the following grounds:
i. The selection process is violative of Rule 9 of the Recruitment Rules.
ii. The decision to call for interview only candidates who secured above 40 marks and the decision fixing minimum of 20 marks in the interview for selection to the post are arbitrary and illegal, and iii. Malpractices were adopted by the Board in the selection process.
10. On the first ground it is urged by Sri Giri, learned counsel for the petitioner in C.M.P. 2654/92. which is treated as the main case, that the entire selection process is contrary to the procedure contemplated in Rule 9 of the Recruitment Rules. Rule 9 as amended reads thus:
"Before making recruitment the Board shall notify the probable vacancies and invite applications for appointment in two Malyalam Dailies having wide circulation. The application should be in the form prescribed in Schedule I appended to these rules. The completed application forms should reach the Board office within one month of the date of publication of the notification or such further time as may be extended by the Board. All the applications received in pursuance of the notification shall be duly registered and scrutinised. All eligible candidates whose applications are found to be in order shall be invited for interview or written test or both as the Board may determine. In case the Board decides that written test has to be conducted in a particular case, such test may be conducted in such manner as the Board may determine. After conducting the interview or written test or both, as the case may be, the Board shall prepare a rank list in the order of merit and the same shall be published in the notice board of the Board Office. The validity of the rank list will be for a period of one year from the date of publication thereof".
11. Rule 9 relates to appointments in the intermediate division which include Lower Division Clerks and Sub Group Officers. On receipt of the applications in pursuance to the notification the Board has to duly register and scrutinise the same. All the eligible candidates whose applications are found to be in order shall be invited for interview or written test or both as the Board may determine. It is for the Board to determine in what manner the written test has to be conducted. It is also for the Board to decide whether candidates are to be recruited on the basis of an interview or written test or both. But the rule is mandatory regarding the procedure to be followed by the Board in the matter of inviting the candidates for interview or written test. The rule specifically says that all eligible candidates whose applications are found to be in order shall be invited for interview or written test or both, as the Board may determine. When once the Board determines the procedure to be followed by them, all candidates whose applications had been found to be valid are to be invited either for the written test or for the interview or for both. The manner in which the written test has to be conducted can also be determined by the Board. It is thereafter that a rank list has to be prepared by the Board in the order of merit. On a reading of Rule 9 it therefore follows that the Board has first to decide whether candidates are to be selected on the basis of a written test or on the basis of an interview or on the basis of both. When once such a decision is taken, the Board shall determine the manner in which the written test has to be conducted. If interview alone is conducted, the rank list has to be prepared on the basis of such interview. If a written test alone is conducted, the rank list has to be prepared on the basis of the performance in the written test. In case the Board conducts a written test and an interview, a rank list has to be prepared on the basis of the marks obtained in both and that too in the order of merit.
12. Learned counsel for the petitioner would point out that there has not been any decision by the Board as to the procedure to be adopted by them. The notification Ext. R1(b) is silent on this aspect. Admittedly written examination was conducted on July 5, 1992. It was only on August 11, 1992 that the Board took a decision to call for interview persons who have secured above 40 marks in the written examination. No material was furnished on the side of the Board to show that the decision to conduct interview after the written examination was taken before the issue of the notification or atleast before the conduct of the written examination. It is therefore contended that the decision to hold an interview, and that too of persons who have secured a particular percentage of marks, is in violation of Rule 9. The question arises whether the Board can after the written examination, take a decision to conduct an interview of persons who have secured a particular percentage of marks in the written examination and to fix a minimum mark in the interview for selection. The procedure adopted by the Board in conducting the interview and in fixing the marks is arbitrary and illegal, according to learned counsel. Since it violates Rule 9, the entire selection process has to be quashed, argues counsel.
13. On the other hand Sri Sreedharan Nair, learned counsel for the Board, contends that the Board has every right to determine the manner in which the selection has to be made, Rule 9 having provided the various methods, it is for the Board to decide the method to be adopted. The selection can be on the basis of a written test or interview or both. When once the Board is empowered to make selection on the basis of written test and interview, the decision to hold the interview can be taken even after the written examination, argues counsel. But there is nothing in the rule conferring power on the Board to change the method of selection while the selection process is under way. That the Board is competent to determine the method of selection cannot be disputed. But the method of selection has to be determined by them even at the time of notification. The candidates are entitled to know the method by which the selection is made. The Board cannot, according to its whims and fancies, alter the method when Rule 9 does not confer such a power on them. The necessity of inviting all eligible candidates for interview or written test or both necessarily implies that the determination as to the method of selection has to be made at the earliest. That having not been done, the selection process is vitiated.
14. In this connection learned counsel for the petitioner cited the decision of the Supreme Court in Durgacharan Misra v. State of Orissa (AIR 1987 SC 2267). That relates to selection of candidates for subordinate judicial service in the State of Orissa. The rules provide for a viva voce test of all candidates who have secured a certain percentage of marks in the written examination. The marks obtained at the viva voce test are to be added to the marks obtained in the written examination and the names of the candidates are thereafter to be arranged by the Public Service Commission in the order of merit. The Commission had taken a decision that a candidate to be suitable for the post of Munsiff should secure atleast 30% at the viva voce test. This was challenged before the Supreme Court. It was held that the Commission has no power to prescribe the minimum standard at viva voce test for determining the suitability of the candidates for appointment as Munsiffs since that will be against the rules. It is spepifi-cally proved that the marks obtained at the viva voce test has to be added to the marks obtained for the written examination and the merit list has to be prepared on that basis. A contention was raised that the interview was conducted in the presence of a sitting Judge of the Orissa High Court nominated by the Chief Justice. The question arose whether he has power to add anything to the rules of recruitment. The Supreme Court held that the Judge may advice the Commission as to the special qualities required for judicial appointments and his advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted. But his advice cannot run counter to the statutory rules. The Supreme Court ultimately held that the Commission which has been constituted under the rules must faithfully follow the rules and candidates must be selected in accordance with the rules. It is further held that the Commission cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The entire selection was set aside with a direction to re-do the select list on the basis of the aggregate marks obtained by the candidates in the written examination and at the viva voce test.
15. The decision of the Supreme Court squarely applies to the present case also. The Board has to select the candidates in accordance with the procedure contemplated in Rule 9. They cannot prescribe additional requirements for selection either as to eligibility or as to suitability. In other words, all the eligible candidates are to be invited for the written examination if the selection is on the basis of the performance in the written examination. In case interview alone is conducted, the selection should be on that basis. If the selection is on the basis of both, the merit list has to be prepared on the basis of the performance in the written examination as well as the interview. Since Rule 9 does not contemplate any minimum marks either in the written exanimation or in the interview, a final list has necessarily to be prepared on the basis of the aggregate marks obtained by the candidates in the written examination and in the interview in the order of merit.
16. Incidentally a question arises as to whether fixation of 33 1/3% marks for the inter view is arbitrary and illegal. Learned counsel for the petitioner asserts that fixation of a high percentage of marks in the interview is arbitrary whereas counsel for the Board would contend that the Board has every right to fix the marks for the interview. Counsel on both sides had taken us through decisions of the Supreme Court on this aspect. We shall now refer to those decisions.
17. In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. 1981-I-LLJ-103 a Constitution Bench of the Supreme Court held that allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as Constitutionally invalid. In that case the Supreme Court was considering the challenge of the validity of the viva voce examination as a permissible test for selection of candidates for admission to a college. After quoting the observation of the Supreme Court in Periakaruppan v. State of Tamil Nadu, (1971 1 SCC 38) that the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless cannot be acceded to, the Supreme Court observed that in the matter of admission to a college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. The Supreme Court suggested that it would be desirable if the interview of the candidates is tape-recorded, for, in that event there will be contemporaneous evidence to show that what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.
18. The matter again came up before the Supreme Court in Lua Dhar v. State of Rajas-than and Ors. 1981-II-LLJ-297. A two Judge Bench of the Supreme Court stated that the observation in Ajay Hasia's case (supra) relating to public employment in the words "or even in the matter of public employment" occurring in paragraph 18 was per incuriam since the matter did not fall for the consideration of the court in that case (1981-II-LU-297 at 302). The Supreme Court was considering the validity of the selection to the Rajasthan Judicial Service.
The rule stipulated 75% of the marks for the written examination and 25% for the interview. The Supreme Court was of the view that the selection cannot be struck down on the ground that more than due weight was given to the interview-test. It was in this connection that Supreme Court considered the question whether the allocation of 33-1/3% of the total marks for the interview-test vitiated the selection procedure as arbitrary and unreasonable. Stating that the observation relating to public employment in Ajay Hasia's (supra) case was per incuriam, the Supreme Court observed that it is regulated by the rules and the court would be usurping a function if a redetermination is made and relative weight attached to the various tests.
19. The very same question was considered by the Supreme Court again in Ashok Kumar Yadav v. State of Haryana AIR 1987 SC 454). A Bench consisting of four Judges was considering the validity of selections made to the Haryana Civil Service (Executive Branch) and other allied services. One of the grounds of challenge was that in comparison to the marks allocated to the written examination, the proportion of the marks allocated to the viva voce test was exceedingly high and that introduced an irredeemable element of arbitrariness in the selection process so as to offend Articles 14 and 16 of the Constitution. In the case of ex-service men the marks allocated for the viva voce test came to 33.3% and for others 22.2%. After a survey of all the earlier decisions, including Lila Dhar's case (supra), the Supreme Court held that the allocation of 22.2% of the total marks for the viva voce test was arbitrary. While holding so the Supreme Court observed:
"The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. It is therefore obvious that the allocation of such a high percentage of marks as 33.3% opens the door wide for arbitrariness and in order to diminish, if not eliminate, the risk of arbitrariness, the percentage needs to be reduced".
20. The percentage of 33.3 was applicable in the case of ex-service men candidates. In the general category also the marks allocated cannot be as high as 22.2%, according to the Supreme Court. Reference is seen made to the observations of the Kothari Committee in the report made by it in regard to the selection to the Indian. Administrative Service and other allied services. In 1948 the percentage of marks allocated for the viva voce was 22. That was brought down to 21.6 in 1951 and again to 17.11 in 1964. It is observed that the Kothari Committee in its report made in 1976 pleaded for further reduction of the percentage of marks allocated for the viva voce test and strongly recommended that the viva voce test should carry only 300 out of 3000 marks. The Supreme Court observed thus:
"When the Kothari Committee, admittedly an Expert Committee, constituted for the purpose of examining recruitment policy and selection methods for the Indian Administra- live Service and other allied Services took the view that the allocation of 17.11% marks for the viva voce test was on the higher side and required to be reduced, it would be legitimate to hold that in case of selections to the Haryana Civil Services (Executive Branch) and other Allied Services, which are services of similar nature in the State, the allocation of 22.2% marks for the viva voce test was unreasonable".
21. In the light of these observations the Supreme Court posed the question as to what should be the proper percentage of marks to be allocated for the viva voce test in that case. On the basis of the marks allocated in the viva voce test by the Union Public Service Commission in the case of selection to the Indian Administrative Services and other Allied Services, the Supreme Court directed that hereafter in the case of selections to be made to the Haryana Civil Services (Executive Branch) and other Allied Services where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection. A general direction was thereafter given by the Supreme Court that this percentage should be adopted by the Public Service Com-mission in other States because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as guide for the State Public Service Commissions to adopt and follow.
22. The same question was considered by the Supreme Court in Mohinder Sain Garg v. State of Punjab (1991 1 SCC 662). After review of all the decisions the Supreme Court observed that Ashok Kumar Yadav's case clinches the issues. The Supreme Court was considering the validity of selection to the posts of Excise and Taxation Inspectors in the State of Punjab. Referring to the general direction given by the Supreme Court in AshokKumar Yadav 's case (supra) the Supreme Court observed:
"We fail to understand as to why the State of Punjab did not follow the same for making selections in 1989 for the posts of Excise and Taxation Inspectors".
The principle enunciated in Ashok Kumar Yadav's case (supra) was found applicable in those cases as well. After observing that the principle enunciated in Ashok Kumar Yadav's case may not in terms apply in the cases considered by the Supreme Court, it was held that fixation of 25% of the total marks for the viva voce test was arbitrary and excessive. Taking note of the situation and conditions prevailing in our country the Supreme Court held that it would not be reasonable to have the percentage of viva voce marks more than 15% of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for composite method of selection viz. written examination and interview.
23. The position therefore is that in the matter of employment to public service, the marks to be allocated for interview should not in any case exceed 15% of the total marks. As observed in Mohinder Sain Garg's case (supra), Ashok Kumar Yadav's case clinches the issues raised in these petitions. The general directions given by the Supreme Court in Ashok Kumar Yadav's case(supra) are binding on all the State Public Service Commissions and the directions regarding the maximum marks to be allocated for the interview has to be followed and complied with by the Service Commissions. It is true that in this case selection is made not by the Public Service Commission, but by the Devaswom Board, an authority coming within the definition of "State" in Article 12 of the Constitution of India. But that does not make any difference in the matter of application of the principles enunciated by the Supreme Court to selection made by the Board. The Supreme Court in Mohinder Sain Garg's case (supra) was considering the validity of selection made by a Selection Committee, and not by the Public Service Commission. Since no valid reason was given before the Supreme Court as to why the principle in Ashok Kumar Yadav's case (supra) was not applicable, the Supreme Court was of the view that the principle of that decision was applicable in that case also. Still, the Supreme Court observed that the maximum marks which can be allocated for the interview in that case should not exceed 15% taking note of the facts and circumstances of that case.
24. In the light of the decisions of the Supreme Court aforementioned we are of the view that the direction given by the Supreme Court in Ashok Kumar Yadav's case regarding the allocation of marks for the interview is applicable to the Board also. In otherwords, the marks allocated for the interview should not exceed 12.2% of the total marks viz. the marks allocated for the written test and the interview together. In any case the marks allocated for the interview should not exceed 15% of the total marks as held by the Supreme Court in the Constitution Bench decision in Ajay Hasia's case (supra) and in Mohinder Sain Garg's case (supra). But that will depend upon the facts and circumstances of the case. Ordinarily therefore the marks allocated for the interview should not exceed 12.2% as directed by the Supreme Court in Ashok Kumar Yadav's case.
25. Coming to the case on hand, the marks allocated for the written test is 150 and that for the interview 75. Thus, the marks allocated for the interview works out to 33.3% of the total marks. This is far in excess of the maximum that can be allocated viz. 15%. Fixation of the marks for the interview is therefore unreasonable and arbitrary. For that reason the selection process is liable to be quashed.
26. That takes us to the further question as to whether prescription of minimum marks for the written test or the interview is arbitrary. The Board had after the written examination resolved to call for interview candidates who had secured above 40 marks in the written examination. The Board has further fixed a minimum of 20 marks to be obtained by each candidate in the interview for being considered for selection. This fixation, according to learned counsel for the petitioners, is arbitrary and against the provisions contained in Rule 9. Calling for interview only those candidates who had secured above 40 marks in the written examination is against Rule 9 of the Recruitment Rules. It was also noticed that the Board had not determined the mode of selection at the time of notification. The decision to hold the interview was taken only after the conduct of the written examination. For that reason also the interview conducted is against the rule aforementioned. But it is the case of the Board that prescription of minimum marks either for the written examination or for the interview is not arbitrary or unreasonable and that such fixation has to be made to select the best candidates from out of the applicants. In this connection attention is ; drawn to the decision in State of U.P. v. Rafi-quiddin and Ors. (1987 (Supp) Supreme Court Cases 401). A question relating to determination of seniority of members appointed as Munsiffs in Uttar Pradesh as a result of competitive ex- animation arose for consideration. The Supreme Court had to consider the validity of R. 19 of the U.P. Civil Service (Judicial. Branch) Rules, 1951. Rule 19 relates to preparation of list of candidates approved by the Public Service Com-mission. That contains a proviso which reads:
"Provided that in making their recommendations the Commission shall satisfy themselves that the candidate-
(i) has obtained 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".
27. Interpreting the proviso the Supreme; Court observed that the Commission is required to judge the suitability of a candidate on the basis of sufficiently high marks obtained by a candidate in the viva voce test. It has therefore to fix some percentage of marks which in its opinion may be sufficient to assess the suitability of a candidate. The Supreme Court held that the Commission had power to fix the norm. In that case the Commission had fixed 35% minimum marks for the viva voce test. It was further held:
"Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate, the same has to be respected".
The Supreme Court did not find any Constitutional legal infirmity in Clause (ii) of the proviso above mentioned since that confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service. The question again came up for consideration before the Supreme Court in Mahamood Alam Tariq v. State of Rajasthan (1988) 3 SCC 241). Following the decision in Rafiquddin's case (supra) the Supreme Court held that the prescription of minimum qualifying marks of 60 (33%) out of the maximum marks of 180 set apart for the viva voce examination does not by itself incur any Constitutional infirmity. It is observed that the principles laid down in the case of Ajay Hasia, Lila Dhar and Ashok Kumar Yadav (supra) do not militate against or render impermissible such prescription.
28. The prescription of minimum marks either for the written test or for the interview does not therefore visit the selection with the vice of arbitrariness or unreasonableness. But the principles enunciated in the two decisions aforementioned are of no assistance to the Board since the rules do not prescribe the minimum marks either for the written examination or for the interview. The fixation of minimum marks for the interview, and that too since the date of the written examination, is patently against the provision contained in Rule 9 of the Recruitment Rules and as such invalid and inoperative.
29. The validity of the selection is also questioned on the ground of malpractices on the part of the Board. The direction to the candidates to write their names and subscribe their signatures in the answer papers is strongly relied on as a factor in support of this contention. According to the Board the entire selection process was entrusted to Dr. C.N. Purushothaman Nair against whom no complaint is voiced from any quarter. He is a person of high academic qualifications. The question papers are alleged to have been set by him. It was he who valued the answer papers and prepared the valuation list. It is true that no allegation is made against Dr. Purusholhaman Nair. But the valuer, whoever it may be, was in a position to know the names of the candidates. Whatever precautions the Board had taken and however impartial the valuer/valuers may be, the possibility of the valuers ascertaining the name of a candidate and to identify the person is always there. This direction on the part of the Board is against the ordinary practice followed in such examinations. We are at a loss to understand as to why the Board had issued such a direction. If the names of the candidates with their register numbers are not furnished to the valuers, there is no possibility of the valuers identifying the can- didates even if the Board has not resorted to the procedure of giving false numbers in the answer papers. In these circumstances we see much force in the contention raised by the petitioners that the Board has committed malpractice by giving direction to the candidates to write their names and asking them to subscribe their signatures in the answer papers.
30. Petitioner in CM.P. 2654/92 has a further contention that the process of selection is in violation of the order passed by this court on July 15, 1991 in the matter of Travancore Devaswom Board's Budget Estimate for the year 1991-92. A copy of that order is Annexure III to that petition. By that order the Board was directed not to make any appointments to the posts already created (going by the report of the audit) nor create any new posts until further orders from this court. The posts notified, according to counsel, include newly created posts which was restrained by the above menioned order. Am attempt was made by the Board to vacate the order by filing C.M.P. 444/1992. In the order passed therein this court observed that Annexure III order should continue till final orders are passed on the report submitted by the High Power Commission appointed by this Court. It was suggested that a revaluation can be made, if necessary, after the passing of the order on the High Power Commission Report. This court declined to interfere with Anenxure III order. The contention is that the notification for selection to the post of Lower Division Clerks/ Sub Group Officers clearly violates the order of this court directing the Board not to create any new post nor to make appointments to the posts already created.
31. Meeting this contention learned counsel for the Board points out that the notification related only to the vacancies which arose on the date of the notification and the resulting vacancies. According to the counsel no violation of the order of this court was intended, nor was the order violated in any manner. As directed by this court, the Board filed a statement showing the number of sanctioned posts and the vacancies available. A revised statement was also filed by the Board. On a perusal of the two statements we find some discrepancies. It is therefore not clear as to whether a correct picture of the sanctioned strength and the vacancies available is revealed in those statements. But we are of the view that a determination of the total staff strength and the total number of posts now lying vacant is not necessary in these petitions since the petitions are being allowed on other grounds. The question whether the notification is in violation of the order of this court dt. July 15, 1991 and the order passed on C.M.P. 444/92 is left open. The Board will do well if this aspect also is gone into in detail and the availability of the total of posts ascertained in accordance with the sanctioned staff strength before notification is issued in future for selection to the post of L.D. Clerks/Sub Group Officers.
32. To sum up, the entire process of selection is infirm. Rule 9 of the Travancore Devaswom Rules was contravened. The Board did not follow the procedure indicated in that rule. There has thus been a clear breach of the statutory rules. The principles laid down by the decisison of the Supreme Court have not been followed by the Board in fixing the mark for the interview. By virtue of the provisison in Rule 9, the Board has to determine whether the selection has to be made on the basis of the written test or on the basis of the interview or on the basis of both. This they have to do at the time of issue of the notification. Admittedly the Board had not done so. The resolution to conduct interview was adopted after the date of the examination. The marks allocated for the interview is far in excess of the maximum marks directed to be allocated by the Supreme Court in the case of an interview (vide the decisions in Ajay Hasia's case and Ashok Kumar Yadav's case). By asking the candidates to write their name and to subscribe their signature in the answer paper, the secrecy involved in the examination has been ignored. This is unfair. The entire process of selection is thus beset with arbitrariness and irrationality. The Board being a 'State' within the meaning of Article 12 of the Constitution of India must exercise its statutory powers in a bonafide and reasonable manner. Before exercise of the powers conferred on the Board by the rules, all the conditions embodied therein are to be complied with and the procedure indicated therein should be followed. Such is not the case herein. For these reasons the selection process is liable to be quashed and we do so.
33. The only question that survives for consideration is whether we should set aside the entire selection process or whether the Board can be permitted to interview all the candidates who appeared for the examination. Since the marks allocated for the interview exceeds the maximum marks which could be allocated as per the directions of the Supreme Court and since a malpractice has been perpetrated by directing the candidates to write their name, we are left with no alternative but to quash the entire selection process and we do so.
34. In the result both the civil miscellaneous petitions and the three original petitions are allowed and the entire selection process relating to the post of Lower Division Clerks/Sub Group Officers to the Travancore Devaswom Board in pursuance to Ext. R1(b) notification dated September 23, 1991 is quashed. The parties are directed to suffer their respective costs.